The composition and quorum of the Uganda Judicial Service Commission: understanding Article 146(2) of the Constitution
The composition and quorum of the Uganda Judicial Service Commission: understanding Article 146(2) of the Constitution

Summary/Abstract: Article 146(1) of the Constitution of Uganda establishes the Judicial Service Commission (JSC). Article 146(2) provides for the composition of the of the JSC. They are nine members including the Attorney-General who is an ‘ex officio member.’ However, the Constitution is silent on the quorum of the JSC. The drafting history of Article 146 shows that although members of the JSC are nominated by different ‘bodies’, they are independent and not representatives of those bodies. However, the Attorney-General is the exception. He represents the government and is expected to protect its interests. Thus, the drafters of Article 146 made him/her an ex-officio member of the JSC. This was meant to ensure that he/she does not ‘influence’ any of the decisions of the JSC. Since the Constitution is silent on the quorum of the JSC, section 13 of the Judicial Services Act (1997) (the Act) provides for the quorum and states that the quorum of the JSC ‘shall be six.’ Section 13(3) provides that the decision of the JSC, if possible, shall be by consensus. If this is not possible, section 13(4) is triggered and it states that the decision ‘shall be by a majority of all the members.’ Under section 2 of the Act, the Attorney-General is an ex-officio member. However, section 13(6) of the Act states that ‘[i]n any matter of discipline or a proposal to remove a judge or other judicial officer, the decision shall be carried by at least six members of the Commission at a meeting at which the Attorney-General is present.’ The JSC has interpreted section 13(6) as giving the Attorney-General a casting vote in matters mentioned in section 13(6). It is argued that section 13(6) as interpreted by the JSC is contrary to Article 146(2) if read in line with its drafting history and therefore unconstitutional. The drafting history of the Constitution is one of the ‘rules’ of constitutional interpretation in Uganda. Although Article 146(2) provides that the JSC ‘shall’ be composed of nine members, section 13(7) of the Act provides that ‘the Commission may act notwithstanding the absence of any member or any vacancy in the office of a member.’ It is argued that if there is a vacancy at the JSC, the JSC is not properly constituted. This is so because quorum is dependent on constitutional composition. If the JSC is not properly constituted, quorum cannot be raised. Thus, the last part of section 13(7) is contrary to Article 146(2) and therefore unconstitutional.

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