Why appointing acting judicial officers could undermine rule of law

2 April 2025, 10:44 am

By Ronald Ssemagonja

Article 142, clauses one and two, of the Constitution of the Republic of Uganda grants the President the mandate to appoint judicial officers. It is against this backdrop that, on 7th February 2025, the office of the President issued a press release notifying the country that President Museveni had appointed twenty-one judges to the High Court in an acting capacity for a two-year term.

The debate surrounding acting judicial appointments is not a new phenomenon in the country’s constitutional and legal history. Abu Mayanja, a prominent legal mind and legislator of the time, emphasised during the Parliamentary debates on the Judicial Officers (Validation) Bill 1966 that the appointment of High Court judges is so important and fundamental to the preservation of liberty, justice, and security that stringent provisions were made in the Constitution to ensure that only capable, impartial, and independent individuals are appointed as judges of the High Court.

Mayanja went on to acknowledge that the Constitution allows for acting judicial appointments, but only as a rare exception to the rule. Such appointments were intended to address exceptional circumstances, such as emergencies or an overwhelming judicial workload, upon formal representation by the Chief Justice to the President. He, however, warned that what was designed as an exception had been twisted into a routine practice, with acting appointments becoming the default, according to Mayanja.

According to Denis Kusaasira, an advocate and senior partner at ABMAK Associates – Advocates and Legal Consultants, Kampala, the executive’s decision to appoint yet another group of acting judges, despite the pending Supreme Court determination, highlights the dangers of the June 2023 stay order. Kusaasira notes that such developments illustrate instrumentalism in law, signalling to political actors that legal principles are negotiable, which also undermines the rule of law.

“The continued appointment of acting judges while the matter is sub judice can be interpreted as an attempt by the executive to manipulate the legal process by creating a ‘fait accompli’ (a situation that has already been established and is difficult to reverse), which in turn puts the Supreme Court in a difficult position. The Court would have to address not only the legal question of constitutionality but also the practical implications of its decision. The Supreme Court recently found itself in a similar position in Attorney General v Hon. Kabaziguruka, where it had to address the practical implications of its decision on persons who had already been convicted by the court martial,” he said.

It should be remembered that Judge Farida Bukirwa, an acting judge among the 16 acting judges appointed in 2022, was controversially removed from her position during her two-year term. Her removal was widely speculated to have been triggered by her ruling in the contentious Uganda Muslim Supreme Council case, which involved significant political and religious interests. Acting judges, therefore, may feel compelled to issue rulings that please certain stakeholders to secure confirmation, hence compromising their independence and impartiality. This would undermine the core principle of judicial independence, which is essential for upholding the rule of law.