The International Commission of Jurists (ICJ) is concerned about allegations of arbitrary and unfair treatment against Ugandan Supreme Court Justice Esther Kisakye and the implications it may carry for the independence of the judiciary in Uganda.
Justice Kisaakye has reportedly come under disciplinary proceedings by Uganda’s Judicial Service Commission, without proper notice or due process, and her salary has been suspended.
ICJ has received reports indicating that a disciplinary inquiry was initiated by the Judicial Service Commission (JSC) following Justice Kisaakye’s decision to deliver her dissenting judgment in one of the 2021 presidential election petitions. In that case, main opposition leader Robert Kyagulanyi Sentamu had filed a petition challenging the results of the 2021 presidential election.
He made a follow-up application seeking leave of the Court to amend his main application. The Court refused to grant the sought leave, holding the application had been beyond the strict time limit provided by law within which the petition should be filed. But Justice Kisaakye dissented, arguing that the Applicant had been deprived of his right to prepare the main application as he had been placed under illegal house arrest during the window of time he could have been preparing his application.
While delivering her dissenting judgment, which was covered by the members of the press on 18 March 2021, Justice Kisaakye alleged that Chief Justice Alfonse Owiny-Dollo, had attempted to obstruct her from handing down her dissenting judgment. The Chief Justice is reported to have ordered the confiscation of Justice Kisaakye’s files.
Reports received by ICJ indicate that Justice Kisaakye is now being investigated by the JSC on charges that are yet to be disclosed to Justice Kisaakye and the public. The ICJ also understands that the payment of Justice Kisaakye’s salary, housing, medical and other benefits has been stopped since July 2022 by the Secretary to the Judiciary, on allegations that she has been away from her duties without official leave since September 2021. ICJ understands that Justice Kisaakye denies these allegations as she contends that she was on duty from September 2021, went on leave from December 2021, and resumed her duties in June 2022.
The ICJ is concerned that the JSC has commenced a disciplinary inquiry against Justice Kisaakye without duly informing her, as is required under both domestic and international human rights law.
“It’s true. She has not been working since September last year. But I came to discover it towards the end of July. It was actually brought to me by the media. I didn’t know. I followed it up. So I stopped paying her. How can I pay somebody who is not working? I would be reprimanded for that. The Constitution is very clear and I’m answerable on every expenditure in the judiciary,” Bigirimana is quoted by URN
Asked if there was any other problem, which could have led to the suspension of Kisaakye’s salary, other than her absence from work, Bigirimana, said there was no other reason that he is aware of. Asked if he summoned Kisaakye to explain why she was not working, Bigirimana said he wouldn’t do that because the Supreme court justice is supervised by the chief justice.
Commenting on these reports, ICJ Africa Director Kaajal Ramjathan-Keogh, said:
“ICJ is concerned about these reports as they suggest violations of Uganda’s obligations, under African and universal international human rights law, to ensure due process and the right to a fair hearing for any person accused of criminal or ethical misconduct. Any charges against Justice Kisaakye should be clearly stated and the evidence substantiated, presented and subject to challenge. These reports also suggest interference with the independence of the judiciary.”
International law and standards require that where there are allegations of professional misconduct, the right to a fair hearing includes the right to be duly notified of the charges and any disciplinary proceedings to be undertaken. Commencing a disciplinary inquiry against Justice Kisaakye without notifying her would constitute a violation of her right to a fair hearing. The decision to stop the payment of her salary, housing, medical and other benefits without first conducting fair disciplinary proceedings against her, and finding her guilty of misconduct which justifies such suspension of benefits would be a serious violation of Uganda’s obligations to ensure due process in cases involving the discipline of a member of the judiciary. It would also undermine judicial independence.
The ICJ calls upon the Judicial Services Commission of Uganda to ensure that Justice Kisaakye’s procedural rights are fully respected. In particular, her right to receive her salary and other benefits must be restored and she must be duly notified of any disciplinary proceedings pending against her.
Principle 19 of the United Nations Basic Principles on the Independence of the Judiciary, states that, “[a]ll disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct.” Such standards include the right of a judge to a fair hearing, as guaranteed for every person under article 28 of the Constitution of Uganda, article 7 of the African Charter on Human and Peoples’ Rights, as well as article 14 of the International Covenant on Civil and Political Rights. In respect of judges facing disciplinary proceedings, section 11 of the Judicial Service Act of Uganda underscores their right to a fair hearing as follows:
“In dealing with matters of discipline, and removal of a judicial officer, the [Judicial Service] commission shall observe the rules of natural justice; and, in particular, the commission shall ensure that an officer against whom disciplinary or removal proceedings are being taken is—
(a) informed about the particulars of the case against him or her;
(b) given the right to defend himself or herself and present his or her case at the meeting of the commission or at any inquiry set up by the commission for the purpose;”
Section 10(1) of Uganda’s Judicial Service (Complaints and Disciplinary Proceedings) Regulations provides procedures to be followed by the JSC upon receiving a complaint of misconduct. It states that “The respondent shall be served the copy of the complaint and shall be required to file a reply within fourteen days from the date of service.”
Principle 11 of the United Nations Basic Principles on the Independence of the Judiciary, states that “[t]he term of office of judges, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law.” Salaries and other benefits of judges must not be tampered with during their tenure as judges.