Uganda Chief Justice Selection Under EAC Treaty Law

Ronald Serwanga Thursday, October 15, 2026
Share

A close reading of the EACJ’s decision on Uganda’s appointments of its Chief Justice and Deputy Chief Justice, and what a Treaty challenge must prove.

Contents

The appointments and the dispute

The issue before the Court

What the Court decided

The legal principle in practical terms

Why the decision matters

The advocacy lessons in the record

How the case fits the EACJ line

A practical lesson for future claims

Conclusion

The appointments and the dispute

Male H. Mabirizi K. Kiwanuka’s reference concerned two of Uganda’s most important judicial offices. Filed on 8 September 2020, it challenged the nomination, parliamentary approval, appointment and swearing-in of Justice Alphonse Chigamoy Owiny-Dollo as Chief Justice and Justice Richard Buteera as Deputy Chief Justice. Mabirizi said that the process for the Deputy Chief Justice vacancy had not followed the safeguards in Uganda’s Constitution and that the defects also offended the East African Community’s commitments to good governance and the rule of law.

The central factual dispute was not whether these judges were qualified in the abstract. It was whether the constitutional steps leading to their appointments had been followed. Mabirizi alleged that the Deputy Chief Justice position had not been declared vacant, advertised or subjected to a separate interview; that Buteera had applied only for Chief Justice; that the Judicial Service Commission had not advised the President to appoint him as Deputy Chief Justice; and that Parliament’s committee vetting was closed and its report was not debated in plenary. He also complained that Parliament had not acted on his petitions about the nominations.

The Attorney General answered with a documentary account of the recruitment. The Judicial Service Commission had declared and advertised the Chief Justice vacancy, shortlisted three candidates, interviewed them, ranked them and advised the President. Buteera had been among those candidates. The Government’s position was that, once Owiny-Dollo moved from Deputy Chief Justice to Chief Justice, the Deputy Chief Justice office became vacant; the existing selection and advice could therefore support the consequential appointment of Buteera. The answer also relied on Uganda’s constitutional and parliamentary framework to defend the vetting process.

The Court heard the matter on 13 November 2025 and delivered judgment on 31 March 2026. The First Instance Division comprised Principal Judge Yohane Masara, Deputy Principal Judge Richard Wabwire Wejuli, and Justices Richard Muhumuza, Leonard Gacuko and Kayembe Ignace Rene Kasanda. Mabirizi appeared in person. The Attorney General was represented by Wanyama Kodoli, Apita Susan Akello and Amucu Daniella. The published judgment is a collective decision and records no separate dissenting opinion.

The issue before the Court

The legal question was whether Uganda’s presidential nominations, parliamentary approval and appointments of the Chief Justice and Deputy Chief Justice, considered together with the alleged procedural omissions, breached Articles 6(d) and 7(2) of the Treaty for the Establishment of the East African Community. Put simply: when a person says that a national constitutional appointment process was irregular, what must be shown before that complaint becomes a Treaty violation that the EACJ can remedy?

That question required the Court to keep two legal tasks distinct. The Constitution of Uganda allocates roles among the President, the Judicial Service Commission and Parliament. Article 142(1) requires presidential appointment of superior court judges on the Commission’s advice and with parliamentary approval; Article 147(1)(a) gives the Commission its advisory role. The EACJ, by contrast, was asked to decide whether the conduct attributed to Uganda violated the Community’s standards of good governance, democracy, accountability, transparency and the rule of law. A claimant had to show the connection between the national process and the Treaty obligation, not merely identify a disagreement about how a constitutional provision should be read.

The distinction is important for ordinary litigants. The EACJ is not a second Ugandan Constitutional Court with a general mandate to re-run every domestic appointment or parliamentary proceeding. Yet a State cannot avoid Treaty scrutiny simply by labelling its conduct “constitutional” or “internal.” The claimant must plead a recognisable Treaty wrong, identify the State action that caused it, and support the alleged breach with evidence capable of proving it.

What the Court decided

The Court dismissed the reference. The judgment accepted that the appointment process was subject to the Constitution and that compliance mattered, but it did not find that the evidence established the procedural breaches Mabirizi alleged. The record supported the Government’s account that the Chief Justice recruitment had been properly advertised and conducted, that the Judicial Service Commission had assessed and ranked candidates, and that Buteera had been part of that exercise. On the account accepted by the Court, appointment of Owiny-Dollo created a vacancy in the Deputy Chief Justice office, and the recommendation arising from the recruitment could be used for the resulting appointment.

The Court also considered the allegations about Parliament’s vetting and the fate of the applicant’s caveats against the constitutional and parliamentary rules governing appointments. The claim that a closed committee sitting or a report not debated on the floor necessarily made the process unlawful was not enough by itself. The reference needed reliable proof that the steps required by the applicable rules had been omitted or that the procedure, in context, failed the Treaty standard. The Court found no basis on the material before it to annul the appointments or to grant the requested injunction and damages.

The result should be stated carefully. The Court did not announce that secrecy is always proper, that citizen objections can always be ignored, or that the President and Judicial Service Commission may disregard constitutional procedure. It rejected this particular challenge because the record did not establish the alleged illegality and Treaty breach. No finding in the judgment turns a contested assertion into a general rule for future appointments.

The legal principle is therefore evidentiary as much as constitutional: a serious allegation about the appointment of a judge must be proved through the governing legal instrument and a traceable record of the steps actually taken. Where the State produces the vacancy notice, recruitment record, interview and ranking material, Commission advice and parliamentary approval, a claimant must identify a concrete gap or contradiction rather than rely on suspicion or the appearance of an irregularity.

The legal principle in practical terms

Articles 6(d) and 7(2) of the EAC Treaty give regional legal force to principles such as good governance, democracy, accountability and the rule of law. Article 6(d) names those principles as fundamental to the Community; Article 7(2) requires Partner States to adhere to them and take practical measures to realise them. The principles are not merely political aspirations. An individual may invoke them in a Treaty reference when specific State conduct is said to violate them and the claim falls within the Court’s jurisdiction under Articles 23 and 27.

That does not mean every breach of domestic law automatically becomes an EAC Treaty breach. The constitutional question and the Treaty question overlap, but they are not identical. The Treaty case asks whether the conduct of the State, viewed against its regional obligations, crossed the relevant line. The national Constitution supplies the rules that help measure the conduct; the EAC Treaty supplies the regional standard and the EACJ’s jurisdiction. A claimant who only says “the Constitution was breached” leaves a gap in the argument unless the pleading explains how that breach also undermines a Treaty principle.

The judgment’s practical rule can be expressed in four connected steps. First, identify the exact act or omission: for example, failure to advertise a vacancy, absence of Commission advice, or denial of a required form of parliamentary approval. Second, cite the constitutional or statutory provision that required a different step. Third, connect that failure to a specific Treaty principle, explaining why it is not a minor procedural disagreement. Fourth, produce admissible evidence showing what happened. The burden is not discharged by repeating that appointments must be transparent; the record must show how transparency was denied and why the denial matters under the Treaty.

This approach protects both sides of regional constitutional litigation. It prevents the Treaty from becoming an abstract label attached to any domestic dispute, while leaving space for genuine claims that a constitutional failure is also a failure of regional governance. In that sense, the decision’s caution is not hostility to Treaty review. It is a demand that a Treaty claim be built as a legal case rather than a political accusation.

Why the decision matters

The case is useful to lawyers and citizens because it translates a broad rule-of-law commitment into a practical pleading task. Appointment procedures are often conducted through several institutions, and a challenge may concern events that leave records in different places: a Judicial Service Commission file, the President’s appointment instrument, parliamentary committee minutes and the final oath. This judgment signals that a court will want to see those materials, or a persuasive explanation of why they are missing, before it finds that a constitutional controversy amounts to a Treaty violation.

For public institutions, the same rule works in reverse. A sound appointment is easier to defend when its file shows the legal basis for the vacancy, how applications were invited, what the selection body did, the advice sent to the appointing authority, the parliamentary action and the effective date of each appointment. That record serves institutional legitimacy, not only litigation. If a government says that a later vacancy arose automatically when one officeholder moved to another office, it should be able to identify the legal provision, the relevant chronology and the decision record supporting that position.

There is a public-interest dimension. Independence of the judiciary is not simply a matter of professional qualifications; it also depends on the credibility of the process by which judges take office. At the same time, courts should not invalidate appointments on unsubstantiated claims. A dispute involving senior judges can unsettle public confidence in either direction: opaque procedure can damage trust, while an annulment based on conjecture can do the same. The judgment places evidentiary discipline at the centre of that balance.

The decision is most useful as a First Instance Division analysis of how national appointment rules can enter a regional Treaty case. It is persuasive in the ordinary sense that it gives a reasoned approach other EACJ panels and advocates may consider. It does not bind the Appellate Division in the way an appellate ruling would, and its dismissal means its precedential force should not be inflated into a holding that all comparable appointments are valid. Its value is in its method: separate the Treaty issue from the domestic issue, test the actual record, and decide only the claim proved.

The advocacy lessons in the record

The judgment lists the applicant as appearing in person, so it would be unsafe to claim that a particular lawyer’s tactical error caused the result. A case analysis should describe what the record supports, not invent a courtroom story. What can fairly be said is that the allegations identified a concrete constitutional pathway, but a pathway of allegations still needed documentary proof capable of overcoming the Government’s account of recruitment and appointment.

A claimant in a similar case would improve the evidentiary presentation by attaching the relevant vacancy notice, the Judicial Service Commission’s regulations, official correspondence about advice to the President, the parliamentary rules, minutes or report, and the official appointment instruments. If a document is controlled by the State, the pleading should identify it, explain why it is material, and seek its production through the Court’s procedures. A table or chronology can help a judge see whether the Deputy Chief Justice position was occupied when the nomination was made, when it became vacant, and what advice was given for that particular vacancy.

For the State, the case illustrates the value of defending the process with evidence rather than bare assurances. A response should identify the legal source of appointment power and exhibit the actual administrative trail. Where the government relies on a “consequential” appointment, it should explain why the original selection and advice were sufficient for the new office, particularly if the applicant says that the office was not part of the advertised competition. Clear evidence of the Commission’s role can answer the allegation more effectively than a general assertion of constitutional compliance.

The judgment also counsels precision in remedies. A litigant who asks the EACJ to annul a sitting judge’s appointment should explain why the requested regional order is within the Treaty’s remedial framework, who would be directly affected, and how the public interest is served. Interim protection, final invalidation, compensation and a declaration are different forms of relief. A clear pleading should tell the Court which one is sought and why the proven facts justify it.

How the case fits the EACJ line

The decision sits within a long EACJ conversation about the practical force of Article 6(d). In James Katabazi and 21 Others v Secretary General of the East African Community and Attorney General of Uganda, Reference No. 1 of 2007, the Court treated the rule of law as enforceable where security personnel prevented a national court order from being carried out. In Samuel Mukira Mohochi v Attorney General of Uganda, Reference No. 5 of 2011, the First Instance Division considered how Uganda’s treatment of a Kenyan citizen engaged the Treaty’s governance principles. Those cases show that a Treaty claim may arise from conduct occurring within a Partner State, not only from action by an EAC institution.

At the appellate level, Attorney General of the Republic of Rwanda v Plaxeda Rugumba, Appeal No. 1 of 2012, confirmed that the Court can assess conduct against Articles 6(d) and 7(2), while remaining within its Treaty mandate. The human-rights principles reflected in the African Charter may help give content to the Treaty’s values, but the EACJ does not become a general human-rights court simply because those values are invoked. Mabirizi is consistent with that distinction: the constitutional context matters, but the applicant must still prove a Treaty-linked State wrong.

The appointment dispute also sits beside Legal Brains Trust v Attorney General of the Republic of Uganda, Reference No. 15 of 2020, decided in 2025, which dealt with a different question about the appointment of a sitting judge as Director of Public Prosecutions. The latter case illustrates the Court’s attention to the legal rules governing public appointments; it does not decide the precise vacancy and committee issues in Mabirizi. Read together, the cases encourage advocates to identify the particular constitutional rule and evidence for each appointment instead of treating all challenges to public office as interchangeable.

At the national level, Gerald Kafureeka Karuhanga v Attorney General, Constitutional Petition No. 39 of 2013, [2014] UGCC 13, addressed the constitutional machinery for appointing Uganda’s Chief Justice and the role of the Judicial Service Commission. Mabirizi itself discusses that line of authority. The two proceedings are complementary but ask different questions: Karuhanga interpreted Uganda’s Constitution in a domestic constitutional petition, while Mabirizi asked whether the alleged process also amounted to a breach of the EAC Treaty. Advocates should use the national case to establish the content of domestic appointment safeguards, then separately plead the Treaty connection required for regional jurisdiction.

The decision is not an appellate endorsement of every feature of Uganda’s process. Nor does its use as an example mean that a court must defer whenever Parliament or a Commission is involved. If later evidence shows a mandatory step was omitted, or if an appointment procedure is deliberately used to defeat judicial independence, the Treaty issue could be materially different. What remains constant is the need for a properly pleaded and evidenced connection between the national act and the regional principle.

A practical lesson for future claims

Before filing a regional reference, a claimant should build a short chronology and a source file. Record when the position became vacant, who announced it, whether applications were invited, who applied, what the Commission advised, when the President acted, what Parliament approved and when the oath was administered. Then set beside each event the constitutional article or rule that governed it. This disciplined preparation helps distinguish an actual departure from a procedure that merely looks unfamiliar to an observer.

The claimant should then state the Treaty theory in ordinary language. For example: “The State’s failure to use the required independent selection procedure removed accountability from the appointment and undermined the rule-of-law commitment in Article 6(d), contrary to Article 7(2).” The pleading must then support each factual part with the record. If the legal rule is disputed, set out the competing readings fairly and explain which construction better fits the text, institutional roles and purpose of the safeguards.

For public institutions, a transparent and retrievable process is the best practical answer to a future challenge. Publish what the law requires; preserve internal records; give reasons where procedure allows; and ensure that the appointment file makes clear how each office was filled. Parliamentary confidentiality may be permitted under domestic rules in some contexts, but the institution should still be prepared to explain the legal basis for that procedure and show that the constitutional approval step occurred.

For the public, the case offers a simple but valuable distinction. A complaint can be important even when it is not proved in court. A dismissal does not prove that every concern about a process was misplaced; it means the requested legal remedy was not justified on the evidence and law presented. That distinction is central to fair analysis of a court judgment and to public trust in regional justice.

Conclusion

Male H. Mabirizi K. Kiwanuka v Attorney General of the Republic of Uganda is a useful, measured decision about the boundary between domestic constitutional review and regional Treaty enforcement. It confirms that a national appointment dispute can be framed as an EAC Treaty case, but it also shows why the claimant must do more than attach the words “rule of law” to a domestic grievance. A clear legal bridge, a reliable evidentiary record and a remedy matched to the proven breach are essential.

The Court dismissed the challenge because the alleged defects and resulting Treaty breach were not established on the record it accepted. The practical value of the decision lies in that insistence on proof. The EACJ remains a forum for testing Partner State conduct against the Community’s foundational principles, but effective regional accountability depends on careful pleading and the ability to show what actually happened.

Sources Mentioned in This Case Analysis

Treaty for the Establishment of the East African Community (1999), Articles 6(d), 7(2), 23, 27 and 30. Constitution of the Republic of Uganda (1995), Articles 142(1) and 147(1)(a); Judicial Service Commission Regulations; Rules of Procedure of the Parliament of Uganda (2017). Male H. Mabirizi K. Kiwanuka v Attorney General of the Republic of Uganda, Reference No. 29 of 2020, [2026] EACJ 6 (First Instance Division, 31 March 2026). James Katabazi and 21 Others v Secretary General of the East African Community and Attorney General of Uganda, Reference No. 1 of 2007. Samuel Mukira Mohochi v Attorney General of Uganda, Reference No. 5 of 2011. Attorney General of the Republic of Rwanda v Plaxeda Rugumba, Appeal No. 1 of 2012. Legal Brains Trust v Attorney General of the Republic of Uganda, Reference No. 15 of 2020, [2025] EACJ 15 (27 November 2025). Gerald Kafureeka Karuhanga v Attorney General, Constitutional Petition No. 39 of 2013, [2014] UGCC 13. Google Search Central, “Creating Helpful, Reliable, People-First Content” and “Spam Policies for Google Web Search.”

Suggested Citation

Ronald Serwanga, “Uganda Chief Justice Selection Under EAC Treaty Law,” East Africa Legal Insight (15 October 2026).