Following a ground breaking Constitutional Court decision that rendered her appointment null and void, Justice Jane Frances Abodo has temporarily stepped down from her duties as the country’s Director of Public Prosecution (DPP) pending the resolution of the Court case appeal in the Supreme Court.
Justice Abodo, who was appointed by President Yoweri Museveni in April, 2020 has seen her job hang in balance after a panel of five Constitutional Court Justices unanimously found last week that it was unconstitutional for a High Court Judge to hold an executive or constitutional office without resigning the judicial office first.
The court decision came against the backdrop of a successful petition by now deceased city lawyer Bob Kasango, who in 2016, inundated by a raft of criminal prosecutions, ran to the Court challenging the prosecutorial powers of Justice Abodo’s predecessor Justice Mike Chibita, who has since been promoted to the Supreme Court.
Mr. Bob Kasango litigated that it was against the constitutional doctrine of separation of powers in government and an assault on the independence of the Judiciary for then High Court Judge Chibita to simultaneously hold prosecutorial powers on behalf of the state and institute criminal proceedings against him.
Agreeing with him, Mr. Justice Kenneth Kakuru who delivered the Constitutional Court judgement said:
” … Hon. Justice Mike Chibita did not first resign as a Judge of the High Court before his appointment to the office of DPP. His appointment as Director of Public Prosecutions therefore was null and void and in contravention of Article 223(4) of the Constitution”
The learned Justice berated President Museveni and the Judicial Service Commission for ignoring the law and precedent to continue appointing Judges to positions outside the Judiciary without seeking their resignation first.
” I would like to observe that Judges and Justices are still being assigned and/or appointed to various executive and constitutional offices. The relevant authorities especially the Judicial Service Commission must ensure that before a Judge or Justice takes up another appointment he or she first resigns.
” Judicial officers as custodians of Justice must comply with this constitutional requirement. They must not be seen to be contravening the very constitution they took oath to uphold, while requiring others to uphold it” He said.
Now, in an internal memo to staff, Ms. Alice Komuhangi Khaukha, who has been playing the role of DPP while Justice Jane Abodo has been abroad on official duties, said she will continue working as such until the determination of an appeal of the case.
” Reference is made to the DPP’s memo dated March 2, 2020 where she delegated me to execute the functions of her office on her behalf during her absence on official duty. I will continue executing these functions in light of the Constitutional Court decision in the Constitutional petition No. 16 of 2016 dated March 18, 2021. ” She wrote.
It is uncertain how the appeal in Supreme Court will pan out.
However, the appointment of Justice Jane Frances Abodo and Justice Simon Byabakama ( Electoral Commission Chairman) have been a subject of considerable controversy within legal circles and the public.
In 2020, immediately after her appointment, human rights watchdog Legal Brains Trust petitioned the Arusha- based East Africa Court of Justice challenging the appointment on not so dissimilar grounds from those in the Bob Kasango case.
Justice Jane Abodo, responded in a Court filing which The Legal Reports has accessed that she didn’t believe it was unconstitutional for a serving High Court Judge to be appointed DPP.
” I have carefully read the provisions of the Constitution of the Republic of Uganda and there is no provision restricting the appointment of a qualified judicial officer to position of DPP” She deponed, adding:
” The DPP is not a member of the executive branch of government. I perform my duties independently and I am not subject to control or direction of any person or authority ”
In June, 2020, two months after the appointment of Justice Jane Abodo as DPP, President Yoweri Museveni assented to the Administration of the Judiciary Act which some commenters have held addresses this legal question.
In its Section 20, the law permits the appointment of Judicial officers outside the Judiciary provided they apply for leave of absence without pay and their period of absence won’t exceed three years.
However, laws do not apply retrospectively and it is left to be seen how the Supreme Court will deal with these questions.