Gen. Museveni can still assign, deploy Sejusa - Court

NewvisionFeb 15, 2022Read original

COURT | GEN SEJUSA | UPDF

KAMPALA -

This means President Yoweri Museveni, the Commander-in-Chief of the Armed Forces, Lt. Gen. Wilson Mbadi, the Chief of Defence Forces and Brig. Gen. Joseph Musanyufu, the Joint Chief of Staff, can assign and deploy Sejusa as an active officer of the Uganda People’s Defence Forces (UPDF).

The AG, Kiryowa Kiwanuka, had appealed against Justice Margaret Oumo-Oguli’s decision to constructively discharge the former spy chief from the UPDF.

He argued that the trial judge erred in law when she found that Sejusa was entitled to a discharge certificate regardless of fact that the remedy is alien to the UPDF Act.

Oguli had ruled that Sejusa ceased to be an officer of the UPDF on April 8, 2015 since the 90 days within which the UPDF Commissions Board ought to have officially communicated his decision to him had expired.

She stated that the refusal by the army to pay Sejusa’s salary and other benefits, withdrawal of his army uniforms and guns as well as the refusal to deploy him amounted to constructive discharge of the latter (Sejusa) from the UPDF.

However, three Court of Appeal justices; Christopher Madrama, Irene Mulyagonja and Monica Mugenyi quashed the trial judge’s decision, noting that Section 66 (2) of the UPDF Act does not prescribe an automatic resignation following an application by an officer to the statutory commissions board.

“The appeal is allowed and we set aside the decision of the High Court. There shall be no order as to costs,” Madrama ruled.

The judgement of the three justices was delivered by registrar Susan Kanyange on Friday in the presence of George Kalemera, a representative of the AG.

Neither Sejusa nor his lawyers were in court.

The justices noted that Sejusa’s application in the lower court sought diverse declarations, but does not show the role of other authorities concerning emoluments and whether Sejusa was treated justly or unfairly.

They said the basis of Sejusa’s actions rested on the question of whether his resignation was effective upon the expiry of the 90-day period, during which the board was supposed to communicate a decision on his application for resignation.

The justices said this did not give power to the High Court under its administrative review jurisdiction to delve into other matters dealt with by statutory authorities prescribed in the UPDF Act, with the mandate to deal with matters of retirement and benefits of a general.

“The delay was, therefore, actionable as tort and the matter did not require judicial review as it was still on the table for consideration by the appropriate authorities. There was no decision that could not be subjected to judicial review,” Madrama ruled.

Judicial review is the revisiting of the lawfulness of a decision, action or failure to act in relation to the exercise of a public function.

The justices said the trial judge ought to have compelled the authority to act within a specified time, but not to replace its decision as considerations to approve the resignation of an army officer.

Madrama noted that the matter presented to the High Court required evidence to prove whether Sejusa was treated unjustly and unfairly, as well as consideration of the terms and conditions of service of UPDF officers, which could not be resolved on the basis of affidavit evidence.

Following the Court of Appeal decision, Sejusa is not entitled to sh750m that had been awarded to him by the lower court.

The four-star general is also no longer entitled to general damages for wrongful withholding him in the UPDF since April 8, 2015, after AG’s appeal was allowed.