The panel of five justices of the Constitutional Court have unanimously ruled that it is against the law for a Judicial officer to take up another appointment outside the Judiciary without first resigning.
This was the final determination of the case which was brought before court by city advocate (now deceased) Robert (Bob) Kasango challenging the appointment of Justice Mike Chibita as Director of Public Prosecution (DPP), while still a judge of High Court.
Judges Kenneth Kakuru, Geoffrey Kiryabwire, Cheborion Burishaki, Stephen Musota and Muzamiru Kibeddi noted that judicial officers being the custodians of justice have to comply with constitutional requirements before compelling others to do so.
After the submissions by the Applicant who represented him self and the respondent (Attorney General), no proof was brought before court from either the Judicial Service Commison (JSC) or from the Head of Public Service that justice Chibita resigned from Judiciary before taking over as DPP.
“His appointment as DPP was therefore null and void and contravened Article 23 (4) of the constitution.” Justice Kakuru ruled.
Court also noted that this appointment contravened the doctrine of Separation of powers in articles 128(1) , (2) , (3) and 129 of the constitutional.
The judges however, upheld the investigations and prosecutions which was done by the office of the DPP under Chibita, because the Directorate consists of several other staff who were legally in office.
The petitioner was awarded costs because court had already pronounced itself on a similar matter but the appointing authority had ignored it and went ahead to appoint a judge in office with following the set out procedures .
“In my view, if this country is to adhere to the rule of law, the principle of separation of powers has to be seen in practice. A judge can not work for both Executive and Judiciary at the same time. There’s bound to be conflict of interest which in turn erodes the independence of Judiciary,” ruled Cheborion Burishaki