TO : THE HON ATTORNEY GENERAL

DATE: 1st February, 2023

RE: LEGAL OPINION ON APPOINTMENT OF JUDICIARY STAFF BY PUBLIC SERVICE

COMMISSION PRIOR TO THE ADMINISTRATION OF JUSTICE ACT, 2020 AND THE
STATUS OF THE MEMORANDUM OF UNDERSTANDING BY THE JSC AND THE PSC.

References

1. Letter from the Chairperson, Judicial Service Commission Ref CO/02/11/2022 dated 2 nd
November, 2022.

2. Memorandum of Understanding between the Judicial Service Commission and the Public Service
Commission dated 10th February, 2022.

3. Background:

1.1 The Constitution was amended in 2015 to provide for the Judicial Service Commission, Article
148A was introduced in the Constitution. The Administration of Judiciary Act, was enacted in
2020 to chiefly among others enable the Judicial Service Commission recruit, discipline and
remove their own their staff.

1.2 Prior to the enactment of Article 148 A of the 1995 Constitution, the staff of the Judiciary were
recruited through the Public Service Commission.

1.3 Article 148 of the Constitution provides that subject to the provisions of this Constitution, the
Judicial Service Commission may appoint persons to hold or act in any judicial office other than
the offices specified in Article 147(3) of this Constitution and confirm appointments in and

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 exercise disciplinary control over persons holding or acting in such offices and remove such
persons from office.

1.4 Article 148A and Section 13 of the Administration of the Judiciary Act provide for the Judiciary
to appoint, discipline and remove such staff of the judiciary as may be prescribed by Parliament
by law.

1.5 Prior to the enactment of this legislation, recruitment was done by the Public Service Commission
albeit without any enabling instrument. On 10 th February, 2022 the Judicial Service Commission
executed a Memorandum of Understanding with the Public Service Commission to provide
personnel, technical and professional assistance as the Judicial Service Commission was still
shoring up its capacity to execute the mandate.

4. Legal Issues.

(i) Whether the recruitment conducted by the Public Service Commission on behalf of the
Judicial Service Commission prior to the enactment of Article 148A of the Constitution and
the Administration of Judiciary, Act 2020 is valid.

(ii) Whether the recruitment of the staff by the Public Service Commission on behalf of the
Judicial Service Commission after the enactment of Article 148A of the Constitution but
before the commencement of the Administration of Judiciary, Act 2020 is valid.

(iii) Whether the recruitment of Staff by the Public Service Commission on behalf of the Judicial
Service Commission after the enactment of Article 148A and the Administration of Judiciary
Act, 2020 is valid.

(iv) What is the appropriate way forward for recruitment conducted by the Public Service
Commission after the Commencement of the Administration of Judiciary, Act 2020?

(v) What remedies are available in the Circumstances?

5. Resolution of Issues.

Issue 1;

6. Whether the recruitment conducted by the Public Service Commission on behalf of the
Judicial Service Commission prior to the enactment of Article 148A of the Constitution and
the Administration of Judiciary, Act 2020 is valid.

1.1 Article 148 of the Constitution provides that subject to the provisions of this Constitution,
the Judicial Service Commission may appoint persons to hold or act in any judicial office

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 other than the offices specified in Article 147(3) of this Constitution and confirm
appointments in and exercise disciplinary control over persons holding or acting in such
offices and remove such persons from office.

1.2 Article 166 (1) (b) of the Constitution provides that except as otherwise provided in this
Constitution, the functions of the Public service Commission include- to appoint, promote
and exercise disciplinary control over persons holding office in the public service of
Uganda as provided in Article 172 of this Constitution.

1.3 The Appointments of staff by the Public Service Commission for confirmation to the
judicial service were thus duly appointed by the Public Service Commission and would be
deployed in accordance with the Public Service to be deployed in any part of the Public
Service which did not exclude the Public Service.

1.4 Paragraph 15 of Section A-m of the Public Service Standing Orders, 2021 provides for
movement of Personnel within, to or from outside the Public Service.

1.5 It further provides that a Ugandan citizen and who holds a pensionable post in the Public
Service may be appointed to any position in a Government entity which is classified as
other Public Service.

1.6 It is therefore pertinent to conclude, that the recruitment done by the Public Service and
deployed in the judicial service would be then classified as the other service and would
absorbed by the Judicial service.

1.7 This was the position until the amendment of Article 148 to introduce Article 148A which
introduced sweeping changes.

Issue 2;

7. Whether the recruitment of the staff by the Public Service Commission on behalf of the
Judicial Service Commission after the enactment of Article 148A of the Constitution but
before the commencement of the Administration of Judiciary, Act 2020 is valid.

3.1 Article 148A of the Constitution provides as follows;

“Appointment of staff of the judiciary. “Notwithstanding Article 172(1)(b), the Judicial Service
Commission shall be responsible for the appointment, discipline and removal of such staff of the
judiciary as may be prescribed by Parliament by law.”

3.2 The amendment made the Judicial Service Commission, obtain the exclusive mandate to recruit,
discipline and remove its own staff.

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 3.3 Article 148A expressly clarified the ambiguity that the Public Service Commission was using
under the general Article 172(1) (b) of the Constitution to continue executing the mandate of the
Judicial Service Commission.

3.4 This ambiguity although clarified, could not be practically effected because Parliament had not
prescribed the enabling legislation to put it into effect.

3.5 Nevertheless, the Public Service Commission’s continuation of recruitment amounted to ultra
vires actions.

3.6 Wade & Forsyth, Administrative Law, 10th Edition opined at 200 that,

“In public law the most obvious limitation on the doctrine of estoppel is to be invoked so
as to give an authority power which it does not in law possess. In other words, no
estoppel can legitimise action which is ultra vires.”

3.7 In essence, after 2015 after the amendment and introduction of Article 148A, the Public Service
Commission ceased to have any mandate to conduct any further recruitment on behalf of the
Public Service Commission.

3.8 In Cropp v Judicial Committee [2008] NZSC 46, It was held that the primary rule is that no
waiver of rights and no consent or private bargain can give a public authority more power than it
legitimately possesses. Once again, the principle of ultra vires must prevail when it comes into
conflict with the ordinary rules of law.

3.9 It is our considered opinion, that after August 2015, post amendment of Article 148, the actions
of the Public Service Commission in as far as conducting recruitment on behalf of the Judicial
Service Commission are considered ultra vires.

Issue 3

4.1 Whether the recruitment of Staff by the Public Service Commission on behalf of the
Judicial Service Commission after the enactment of Article 148A and the Administration of
Judiciary Act, 2020 is valid.

4.2 A review of the minutes of appointment by the Public Service Commission and appointment
letters of the Secretary of to the Judiciary indicates that the Public Service Commission continued
to appoint staff to the judiciary service even after the commencement of the Administration of
Judiciary Act, 2020.

4.3 Section 13(3) of the Administration of Judiciary Act, 2020 provides that All staff of the
Judiciary…shall be appointed by the Judicial Service Commission Act in accordance with the
approved structure of the Judiciary.

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 4.4 Section 13(3) is couched in mandatory terms and bestows upon the Judicial Service Commission
the exclusive authority to appoint staff of the judicial service.

4.5 On 16th February, 2022 the Public Service Commission and the Judicial Service Commission
executed a Memorandum of Understanding with various provisions.

4.6 The Memorandum of Understanding provided in the recitals that whereas the Public Service
Commission, prior to the enactment of the of Article 148A of the Constitution, and the
Administration of Judiciary Act, 2020 executed the said mandate.

4.7 Clause 2.1 of the MOU provides that the Judicial Service Commission through the provision of
personnel, who shall, with the Judicial Service Commission taking the lead at all times and
making the decisions, assist and advise on the appointment, promotion, discipline and removal of
the administrative and other staff in the judicial service.

4.8 In essence, the Public Service Commission has only been assisting the Judicial Service
Commission on an arrangement, where the Judicial Service Commission owns the process and
leads it, the Public Service Commission only acts to assist.

Issue 4

5. What remedies are available in the Circumstances?

5.1 The available remedy to the Judicial Service Commission would be divest the services of
staff recruited outside the legal framework as stipulated. But would this be a solution or
create an absurdity?

5.2 This in essence would create a legal grievance to a large section of personnel who had no say
in the impugned recruitment process. They would be condemned unheard, the likelihood of
success from a legal challenge would be imminent.

5.3 Administrative law abhors this line of action, although legally correct, it is judicially untenable.
In Cooper v Wandsworth Board of Works, (1863) 14 CBNS 180, Erle CJ in judgment held;

“The contention…of the Plaintiff has been that although the words of the statute, taken in
their literal sense, without any qualifications at all, would create a justification for the act
which the district board has done, the powers granted by that statute are subject to a
qualification which has been repeatedly recognized, that no man is to be deprived of his
property without having an opportunity of being heard…”

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It is therefore our considered opinion, that the leverage with the right to be heard by those who
are likely to be affected by the decision of the Judicial Service Commission, are given a right to
be heard first before any decision is taken by the Commission.

……………………………………………….. ……………………………
Twinomugisha Mugisha Mukama Allan
SA SA

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