The decision delivered on Thursday by a panel of five Constitutional Court Justices arises from an unsuccessful petition filed by Kiyingi and Nalunga in 2022 against the Attorney General.
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President Museveni and top Judicial Officers at the New Court of Appeal building owned by the Judiciary.
The Constitutional Court has dismissed a petition by Asuman Kiyingi and Joyce Nalunga Birimumaso, the Leadership Code Tribunal Deputy Chairperson and member, respectively, seeking equal privileges, tenure, rights, protection and status as High Court judges.
The decision delivered on Thursday by a panel of five Constitutional Court Justices arises from an unsuccessful petition filed by Kiyingi and Nalunga in 2022 against the Attorney General.
The Justices are Irene Mulyagonja, Oscar Kihika, Margaret Tibulya, Moses Kazibwe Kawumi and Dr Asa Mugenyi.
Kiyingi and Nalunga petitioned the Court challenging the constitutionality of certain provisions of the Leadership Code Act, arguing that they discriminated against them compared to judges of the High Court. They sought declarations that the Leadership Code Tribunal is a court of judicature, that they are judicial officers, and that they are entitled to the same tenure, status, privileges, and terms of service as High Court judges.
Kiyingi and Nalunga informed the Court that they were appointed as Deputy Chairperson and Member of the Leadership Code Tribunal, respectively, after responding to an advertisement by the Judicial Service Commission (JSC). The court heard that their appointments, made on June 1, 2020, came with a five-year term renewable once.
However, Kiyingi and Nalunga said that upon accepting their roles, they realized their terms of service reportedly conflicted with the Constitution since they wanted similar treatment to those of the Judiciary staff /Judicial Officers.
To address their concerns, they told the Court that they wrote to the Minister of State for Ethics and Integrity and the Minister of Public Service, seeking enhanced remuneration comparable to High Court Judges.
In response, the records before the Court indicate that the Solicitor General issued an opinion on November 3, 2020, stating that Leadership Code Tribunal members are not judicial officers under the Administration of Judiciary Act 2020 and their remuneration is governed by the Leadership Code (Amendment) Act 2017.
Dissatisfied with this opinion, Kiyingi and Nalunga filed the current petition.
However, the Attorney General opposed the petition, arguing that the judiciary and Leadership Code Tribunal have distinct terms and conditions of service, as outlined in the 1995 Constitution and the Leadership Code Act.
The Attorney General said factors like responsibility, effort, and experience determine pay, not just qualifications.
The government also highlighted that judicial officers serve permanent and pensionable terms under Article 144 of the Constitution, whereas Leadership Code Tribunal members serve five-year terms without an age limit.
A comparative analysis showed that a High Court judge's pay (Shs. 15,350,000) differs from the chairperson of the Tax Appeals Tribunal (Shs. 24,500,000), with similar rates applying to the Public Procurement and Disposal of Assets (PPDA) Tribunal.
The Attorney General asked the court to dismiss their petition on the basis that they accepted the terms and conditions for their respective jobs when they were not forced.
In their decision, Constitutional Court Justices have ruled that the Leadership Code Tribunal is not a court of judicature within the meaning of the Constitution.
The justices also found that the petitioners are not judicial officers and cannot enjoy the same terms and conditions as judicial officers unless provided for in their letters of appointment.
"Despite the first petitioner/Kiyingi having the same qualification of a judge of the High Court he cannot be accorded the same or comparable status, privileges, terms and conditions of service as a judge of the High Court unless his letter of appointment provides so", reads the decision.
The court further ruled that the taxation of the petitioners' salaries is not discriminatory and that the Leadership Code Act's limitation of their tenure to five years is not inconsistent with the Constitution.
According to the Justices, the adverts Kiyingi and Nalunga responded to were clear on the positions they were applying for.
"By responding to the adverts the petitioners were accepting to be bound by them. The court cannot look at the description of a person and then determine that his remuneration should differ from what he or she accepted in the appointment letters or contracts of service", added the Justices.
The Court has gone ahead to explain the meaning of a Judicial Officer under "The Administration of Judiciary Act.
The Court said a Judicial officer' means the Chief Justice, Deputy Chief Justice, Principal Judge, Supreme Court Justices, Court of Appeal Justices, High Court Judges, Chief Registrar, court Registrars, magistrates, or other persons holding court-related offices prescribed by law.
Notably, Justice Dr Mugenyi who wrote the lead judgment ruled that the definition excludes the petitioners, Asuman Kiyingi and Joyce Nalunga Birimumaso, as well as individuals holding offices connected to tribunals. They said since the Act is unambiguous, no alternative interpretation is permissible.
"Consequently, the Chairperson, Vice Chairperson, and members of the Leadership Code Tribunal do not qualify as judicial officers under the Administration of Judiciary Act. They are not officers of the judicature courts and therefore cannot benefit from the terms and conditions outlined in the Act", the Court held.
The Petitioners went to Court shortly after President Yoweri Kaguta Museveni had assented to the Judiciary Administration Act on June 19, 2020, thereby making it into law. This act aims to strengthen the Judiciary's independence as an arm of government.
One of the key provisions of this act is the continued payment of monthly salary to a retired Chief Justice and their deputy, in addition to a lump-sum package equivalent to 2.4 percent of their annual salary multiplied by five and the total number of years spent in service.
Similarly, retired Justices of the Supreme Court, the Court of Appeal, the Principal Judge, and Judges of the High Court will continue receiving 80 percent of their salaries once they've reached the mandatory retirement age.
They will also be entitled to a lump-sum retirement benefit, state security, chauffeur-driven cars, and annual medical and housing allowances. It's some of these issues that could have probably prompted them to seek similar status shortly after accepting their appointments in June 2020.
