Constitutional and International Human Rights Lawyer Professor Cephas Lumina says there is no need for a Constitution amendment in order to allow the Judicial Service Commission to advertise the Chief Justice position.

Commenting on Justice Minister Mulambo Haimbe’s remarks that advertising the position of the Chief justice had no constitutional backing and that there was need of an amendment to facilitate for that, Prof Lumina said the existing legal framework was sufficient and it was unacceptable for a minister of justice not to understand this.

“I don’t know where the Minister gets that, his views are simply incorrect, he’s not well informed. In fact, it is unacceptable for a Minister of Justice not to understand such a simple issue. There is absolutely no need for the constitution to be amended to provide for the interviewing of candidates for appointment of judges. The existing legal framework is sufficient to allow the Judicial Service Commission to put in place a procedure that provides for a transparent and open selection process that includes advertising Judicial vacancies. The framework in question, I think the starting point is article 173 paragraph one of the Constitution. That one makes it very clear that the values and principles of the public service include merit as the basis of appointment and promotion. These values apply to all state institutions including the Judicial Service Commission and our commission,” Prof Lumina said.

“Now to be specific with regards the issue we are talking about here, the pertinent sections are sections three, four and 41 of the Civic Commission Act No 10 of 2016. If we go through each of these provisions that I spoke about, section three expands on the values and principles of the public service as capped in Article 3 (1) of the constitution. I want to emphasize two things, in section three of the Service Commission Act, this builds on what is set out in Article 173 (1) of the constitution. Remember the constitution just provides the overall framework and then specifically legislation expands on what is in the constitution. Fair competition, merit must be the basis of appointments and promotions in the public service.”

He said the Service Commission Act stated that service commissions should operate on the principle that should uphold opportunities to all eligible citizens for appointment at all levels of the public service.

“Another imperative within section three is that service commissions must operate on the principle that they must uphold equal opportunities to all eligible citizens for appointment and at all levels of the public service. Then Section four of the same Act focuses on the values and principles of human resource management in the public service. And you see here, it talks about qualifications, merits, competency, experience and competitive selections during vacancies as one of the core principles to the public service,” Prof Lumina said.

“If you look at these provisions, it doesn’t require a genius to realise that you cannot give effect to these values on circumstances where the selection processes are not transparent, or where vacancies are not advertised, where selection criteria are not known. So, for example, how do you ensure fairness or equal opportunity when people are not aware of the available vacancies? How do you ensure fairness when people don’t know which selection criteria judicial appointees are actually selected?”

He said section 41 of the Service Commissions Act allowed service commissions, including the Judicial Service Commission, to issue regulations for the implementation of their functions.

“Now you cannot prove a judicial candidate’s integrity in the absence of a transparent and open process that allows various stakeholders to offer their opinions on the capability of that candidate, it is impossible. Then section 41 of the Service Commissions Act allows each of the service commissions, including the Judicial Service Commission to issue regulations for the implementation of their functions. Now, the key regulations can be issued very quickly and this is the reason why we have these things. They can be issued very quickly by various statutory instruments. They can actually, within those regulations, have Judicial Service Commission sorting out the criteria for appointment, sorting out requirements for advertising and just governing the entire process,” said Prof Lumina.

“So in short, if you look at what I have mentioned, these provisions here 173 (1) of the constitution, as elaborated in section three and four of the Service Commissions Act and importantly section 41 of the Service Commissions Act, there is absolutely no need for constitution amendment to provide advertisement or interview of judges in public, there is actually no need for constitution amendment so I don’t know where the Minister got that information from. If he has looked at the law, then he has completely misunderstood the law.”