CONSTITUTIONAL COURT RULING CREATES UNCERTAINTY

by Fred Muwema

I respond to two headlines ‘’Powers of Judges Cut ‘’ New Vision  newspaper and Court declares  interim  orders  invalid  Monitor Newspaper , all of today (24^th  February,2017) where a panel of three constitutional Court  Judges  are reported to have  held  that  only 5 Justices  of that  Court  can  issue Interim  Orders . For a long time, the practice of the Constitutional Court has been that a single Justice or three Justices of that Court can entertain Interim Order Applications. The full bench of 5 Justices has been reserved to handle   Constitutional Petitions which carry questions requiring interpretation of the Constitution.

By  a stroke of a pen, the  Constitutional  Court  has now  erased its own  wealth  of  jurisprudence  developed  in this  area which  in my view had been well founded. I am  of the considered  opinion  that this  decision is not based on interpretation  which  promotes the legislative  purpose  of the Law .

According  to the decision, all interim  orders  issued by a single  Justice or three Justices  of the Constitutional Court  are null  and void  and of no  effect as already  indicated  above. It would  appear  to me  that going by  the same  reasoning  of the Court, their decision is also null  and void  since  it was issued by  3 instead  of the  5 Justices  they recommend . Perhaps the 3 Justices  should  have referred  the matter to  5  Justices for a decision  to be binding  in the Constitutional Court.  

Having said that I contend that, the entertainment of the Interim Orders for an Injunction in Constitutional matters does not involve determination of a question requiring Constitutional interpretation. This mandate is vested in a panel of 5 Justices of the Constitutional Court under Article 137 of the Constitution. A Constitutional  question  arises  when  a person  alleges that any Law, act or  omission  by any person  or authority contravenes  a provision  of the Constitution. But when a person seeks an Injunction in the Constitutional Court, he is not seeking an interpretation of the Constitution at that stage but rather he is seeking a preservation of his Constitutional rights pending hearing of the main Constitutional Petition. An Interim  Injunction  is not constitutional  remedy  per se ,it is  a civil remedy which  can be granted by most judicial  officers of any rank.

Indeed Other litigants in other Courts can seek for Injunctions to preserve their rights or property before a Magistrate, Registrar, a single Judge of the High Court etc. The Civil  Procedure  Act and Rules which have been adopted as part of the practice and procedure  of the Constitutional  Court (See Rule 23 Constitutional   Court Petition and Reference Rules 2005) is the Law under which  Injunctions  are generally  granted by the Courts  without  exception.

Therefore when a single Justice or 3 Justices of the Constitutional  Court  are sitting to entertain an Interim  Order Application  for a civil  remedy  of an Injunction they are  properly exercising  their power which  is incidental  to the Constitutional  interpretation  sought. Moreover  a Constitutional  Court  justice  has  a dual designation  as a Justice  of Appeal  so his /her  mandate  is wide  enough  to grant  the end  of justice in Interim  Order Application.

I therefore do not agree that such a high ranking Judicial Officer  can be  powerless to stop  the continued violation of the Constitutional rights of a litigant who has petitioned the Constitutional Court through  an Interim Injunction  and yet a Magistrate, Registrar or Judge  of the High Court  can grant  the same remedy . The Constitutional Court is already constrained with a shortage of man power to handle Constitutional Petitions, how easy will it be for them  to be constituted  to hear  Interim Order Applications. This stance by the Court if allowed to stand would amount to denial of the substantive justice on technicalities and it would render an unequal treatment of litigants under the law.

It would be beneficial to the legal fraternity and the public for this decision to be tested on appeal so that this uncertainty can be settled once and for all.