By Spy Uganda
Embattled former Jinja Resident District Commissioner Eric Sakwa has landed in more problems after the High Court dismissed a case he had filed against the Attorney General William Byaruhanga and Hajji Yunus Kakande of the President’s Office, challenging his interdiction.
His interdiction is contained in a May 4th, 2020 letter signed by Haji Yunus Kakande, a Secretary in the Office of the President. Kakande directed Sakwa to handover office to the District Internal Security Officer of Jinja who shall perform all the duties of RDC until further notice.
Trouble for Sakwa started on April 24th, 2020 when he was arrested and arraigned in Court for manslaughter in connection to the death of the late Charles Isanga of Lwanda in Mafubira sub county.
Prosecution alleges that between March 17 and March 22, Sakwa and others still at large tortured Isanga leading to his death. Sakwa and his co-accused are also accused of robbing their victim Shillings 80,000, three crates of beer, eight trays of eggs, soda, water and sachets of waragi, all valued at Shillings 429,000.
He pleaded not guilty to the charges and was remanded to Kirinya prison. He was however released on bail by the Jinja Chief Magistrate, Jessica Chemeri , although he has since insisted that he has to return to his office.
Sakwa, who is currently on bail over charges of manslaughter and theft, last month dragged the Attorney General and Hajji Kakande to the High Court, demanding their resolution to interdict and throw him out of office, claiming that he was never given chance for a fair hearing before the interidtion.
However, in her ruling, Justice Jeane Rwakakooko upheld the interdiction and dismissed Sakwa’s application with costs to the Respondents (Attorney General and Hajji Kakande), meaning that on top of the current problems he is facing, Sakwa has since added on himself the burden on paying hundreds of millions of shillings in litigation to the people he had sued.
Here below is Justice Rwakakoko’s rulings, which has added another nail in Sakwa’s coffin.
THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT JINJA
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
MISC. CAUSE NO. 10 OF 2020
SAKWA ERIC JOSEPH ……………………….APPLICANT
VERSUS
1. ATTORNEY GENERAL ………………………RESPONDENTS
2. HAJI KAKANDE YUNUS
BEFORE HON. JUSTICE JEANNE RWAKAKOOKO
RULING
Introduction:
The Applicant filed an application for Judicial Review for the following reliefs;
a) A prerogative Order of Certiorari be issued to quash the decision of the Secretary of the Office of the President signed by the second respondent interdicting the Applicant.
b) An Order of prohibition issues to restrain the Respondent’s agents from forcing the Applicant out of the office pursuant to the said letter of interdiction.
c) The costs of this application be provided.
Brief Facts:
The grounds in support of this Application of this application were laid out in the Notice of Motion and in the Applicant’s affidavit in support and briefly are that;
1. The applicant was appointed on promotion as the Resident District Commissioner for Jinja District by H.E the President of Uganda and is serving as the Resident District Commissioner for Jinja District and that his appointment is political.
2. The applicant is not a Civil Servant and his appointment is not subject to any other terms save for those contained in the appointment letter and the functions and duties laid down under the Local Government Act.
3. That on the 8th day of May, 2020 the Applicant received a letter stating that he had been interdicted on the 4th day of May, 2020, which letter was authored by the 2nd Respondent.
4. That the Applicant was never given any hearing before the interdiction letter was written and all rules of natural justice were flouted.
5. That the reason for interdiction is a case of manslaughter for which the Applicant was charged in court.
6. That it is not one of the conditions of service for the Applicant that if he has any criminal case in court against him, he has to be interdicted.
7. That the letter of interdiction did not show that the 2nd Respondent was directed by the appointing authority to interdict him.
8. That the 2nd Respondent did not follow proper procedure to interdict the Applicant since it was not on the direction of the President.
9. The Applicant is being threatened by the 2nd Respondent and agents of the 1st Respondent with eviction from his office.
The Respondents opposed this Application and they filed an Affidavit in reply which was sworn by the 2nd Respondent, Haji Kakande Yunus briefly stating that;
1. The Application is incompetent, devoid of merit, an abuse of court process, prematurely brought before this Honorable court.
2. That I know that the Applicant was arrested and charged with manslaughter and was subsequently remanded to prison on Friday 24 April, 2020.
3. That on the 4th day of May, 2020, I wrote to the Applicant informing him that he had been interdicted and barred from exercising the powers and functions of his office as Resident District Commissioner pending completion of the case/charges of manslaughter against him.
4. That the Applicant’s is a senior civil servant whose emoluments are payable directly from the Consolidated Fund or directly out of monies provided by Parliament.
5. That I know that the Applicant in the performance of his duties is answerable and accounts to me as the Responsible Officer in the Office of the President and that the Applicant is subject to all the privileges and conditions of public service which are governed by the Uganda Public Service Standing Orders (2010).
6. That the decision to interdict the Applicant is lawful and is within the unfettered administrative discretion of the Responsible Officer/Permanent Secretary.
7. That once a civil servant is subject to court proceedings or any kind of investigation, the Responsible officer ought to interdict him until such proceedings are terminated against the public officer.
8. That the decision I made is not irregular since it is not a requirement nor is it a precondition under the Uganda Government Public Service Standing Orders to give a hearing to the Applicant before exercising my discretion to interdict the Applicant.
9. That the Application against me (2nd Respondent) is improperly brought against me and ought to be struck off.
10. That there are no sufficient grounds for the grant of the orders sought by the Applicant and this is not a proper case for judicial review and that it be dismissed.
Representation:
The Applicant was represented by Mr. Caleb Alaka, Mr. Evans Ochieng and Mr. Nyote David Innocent and the Respondents were represented by Mr. Musota Brian and Ms. Jackie Amusugut.
Legal basis of Application:
Black’s Law Dictionary 9th Ed. At page 924 defines Judicial Review as;
”A court’s power to review the actions of other branches or levels of government; especially the court’s power to invalidate legislative and executive actions as being unconstitutional”
Or,
“A court’s review of a lower court’s or an administrative body’s factual or legal findings.”
The principles governing Judicial Review are well settled. As stated in the submissions of Counsel for the Respondents, and as cited in the case of Balondemu David Vs. The Law Development Centre (Miscellaneous Cause No. 61 of 2016);
“Judicial review is concerned with Prerogative Orders which are basically remedies for control of the exercise of power by those in public offices. They are not aimed at providing final determination of private rights which is done in normal civil suits. The said orders are discretionary in nature and court is at liberty to refuse to grant any of them if it thinks fit to do so even depending on the circumstances of the case where there had been clear violation of the principle of natural justice” (John Jet Mwebaze vs Makerere University Council & 2 others – Misc. Cause No. 353 of 2005).”
Judicial review is concerned not with the decision in issue but with the decision making process through which the decision was made. The merit of the decision is not within the scope of judicial review. It is the process by which the High Court exercises its supervisory jurisdiction over proceedings and decisions of inferior courts, tribunals and other bodies or persons who carry out quasi-judicial functions or who are engaged in the performance of public acts and duties. It is a check and balance in determining whether the decision making authority lacked or exceeded jurisdiction, committed an error in law, acted illegally or breached the rules of natural justice. The purpose is to ensure that the individual is given fair treatment by authority to which he or she has been subjected to. (see DOTT Services Ltd. Vs Attorney General & Anor – HC Misc. Cause No. 125 of 2009).
What is certiorari?
Justice Benjamin Kabiito stated in the matter of Prof. Isaiah Omolo Ndiege Vs Kyambogo University – Misc. Cause No. 141 of 2012 that “Certiorari is designed to prevent abuse of power. The purpose of certiorari is to ensure that an individual is given fair treatment by the authority to which he is subjected. Its effect when issued is that the order of an inferior court, tribunal or a public authority or other decision made is quashed. The court will issue it when it is convinced that the decision challenged was reached without jurisdiction or in excess of jurisdiction in breach of the rules of natural justice or contrary to the law. (See: JOTHAM WELAMONDI VS. CHAIRMAN OF ELECTORAL COMMISSION OF KENYA (2002) KLR 486).
When issued certiorari quashes a past decision or act. The effect of the order of certiorari is to restore the status quo ante which was the situation pertaining before the infringed decision was made”.
As cited in the Respondent’s submissions, Section 7A(2) of The Judicature (Judicial Review) (Amendment) Rules 2019 provides:-
“The court shall grant an order for judicial review where it is satisfied that the decision making body or officer did not follow due process in reaching a decision and that as a result, there was unfair and unpleasant treatment.”
As was further cited by Counsel for the Respondent, the case of Bridge International Academies Vs Attorney General (Misc. Cause No. 160 of 2016) the court held that, to succeed in an application for Judicial Review, the Applicant must show that the action complained about was either illegal, irrational or that there was procedural impropriety or that there was a combination of any of the above grounds.
The crux of this matter, therefore, is whether the decision to interdict the Applicant from office was illegal, irrational or that there was procedural impropriety or a combination of any of the above grounds.
Issues for determination:
There were no issues agreed upon by the parties. The Respondent proposed issues but the following issues will be considered for court’s resolution, which I believe will settle this matter.
1) Whether the interdiction of the Applicant was lawful
2) Whether the 2nd Respondent was properly added to this suit?
3) Whether the Applicant is entitled to the reliefs sought?
Resolution of the Issues:
ISSUE 1: WHETHER THE INTERDICTION OF THE APPLICANT WAS LAWFUL
The Applicant’s counsel submitted that the actions and decision of the Respondents to interdict the Applicant from office was not proper and did not follow the proper process since the letter of interdiction did not indicate that the 2nd Respondent was directed to interdict him by the appointing authority (the President of the Republic of Uganda).
Counsel for the Respondents submitted that the decision to interdict the applicant was based on the firm reason that the Applicant had been charged with an offence and any reasonable authority addressing itself to the facts and law would have made the same decision and that the decision to interdict was in consonance with logic and acceptable moral standards as defined in the Public Service Standing Orders.
Following the Applicant’s arrest and charge of manslaughter and remand to prison on 24th April, 2020, the 2nd Respondent wrote to him on the 4th May, 2020 informing him that he had been interdicted and barred from exercising the powers and functions of his office as Resident District Commissioner pending completion of the case/charges of manslaughter against him.
The Applicant contends that the interdiction was not proper since the 2nd Respondent was not vested with the authority to interdict him unless he was directed by the President of the Republic of Uganda and that the interdiction was irregularly procured and that the Applicant was never given any hearing before interdiction thereby flouting all rules of natural justice. The Respondent however contends that it was lawful and justified to interdict the Applicant for the reason that the Applicant had been arrested and charged with manslaughter and remanded to prison and that it is within the unfettered administrative discretion of the 2nd Respondent, who is the Responsible Officer/Secretary. The Applicant thereafter filed this matter to quash the decision of the 2nd Respondent to interdict the Applicant and prayed that the prerogative orders sought be granted.
The arguments raised by Counsel for the Applicant are mainly two; one, that the 2nd Respondent acted without the legal power to do so (unlawfully and therefore illegal) and secondly that he acted without giving the Applicant a chance to be heard and therefore did not observe the rules of natural justice (which are considered unlawful on the grounds of unfairness and procedural incorrectness).
Counsel for the Applicant submitted that the decision to interdict the Applicant was wrongly exercised by the 2nd Respondent since the power to interdict him lies with the President of the Republic of Uganda, since his appointment was political and that he is not a civil servant and that the interdiction was not on the directive of the President and that therefore the 2nd Respondent did not follow the proper procedure to interdict the Applicant. The Applicant relied on his appointment letter and counsel submitted that the position of RDC that the Applicant holds is at the pleasure of the President and that the Secretary to the Office of the President (the 2nd Respondent) writes and appoints him in that capacity as acting on behalf, and on instructions and direction of the President. He submitted therefore that the interdiction letter has to also show that the President had directed the same since the 2nd Respondent has no powers to interdict the Applicant. Further, Counsel submitted that the Applicant is not governed by the Public Service Standing Orders (2010) since the appointment letter does not adopt these Standing Orders and that they are not part of his contract of service. He argued that it is on this basis that no proper process was followed in interdicting the Applicant.
Counsel for the Respondents, in their submission referred to the Affidavit of the 2nd Respondent where he avers that the Applicant is a Senior Civil Servant whose emoluments are payable directly from the Consolidated Fund or directly out of monies provided by Parliament. Further, that the Applicant, in performance of his duties is answerable and accounts to the 2nd Respondent as the Responsible Officer in the Office of the President, and that the Applicant is subject to all the privileges and conditions of Public Service which are governed by the Uganda Public Service Standing Orders (2010) and that the decision to interdict the Applicant is within the unfettered administrative discretion of the Responsible Officer/Permanent Secretary.
Whether the Applicant falls into the category of a Public Officer who is bound by the Public Service Standing Orders (2010).
Other than the Appointment letter relied on, the Applicant did not rely on any other compelling documents or arguments confirming that his appointment is not governed by the said Public Service Standing Orders. Counsel for the Respondents submitted on this issue with detail.
The Applicant’s appointment letter referred to Article 99 of the Constitution of the Republic of Uganda, which provides that executive authority of Uganda is vested in the President and shall be exercised in accordance with this Constitution and the laws of Uganda. Further, the said appointment letter refers to Article 203(1) which provides that there shall be, for each District, a Resident District Commissioner who shall be appointed by the President. The said Appointment Letter was on the letter head of the Office of the President and was signed by a Mr. Bashaasha Willis for Secretary, Office of the President and was copied to the Head of Public Service and Secretary to Cabinet, The Auditor General, The Permanent Secretary, Ministry of Public Service and The Secretary, Public Service Commission. Just on the face of the said letter, wouldn’t it show that there was some kind of linkage between the appointment and the Public Service?
As submitted by Counsel for the Respondent and with reference to the case of Oyaro John Owiny vs Kitgum Municipal Council (Mis. Cause No. 007 of 2018);
“The Expression “Public Officer” has the meaning assigned to it by articles 175(a), 175(b) and 257(1) of The Constitution of the Republic of Uganda, 1995 which are;
“any person holding or acting in an office in the public service,” where public service means service in any civil capacity of the Government the emoluments for which are payable from the Consolidated Fund or directly out of monies provided by Parliament. And that
“public office” means an office in the public service;
“public officer” means a person holding or acting in any public office;
“public service” means service in a civil capacity of the Government or local government.
As stated above, Article 203(1) of the Constitution provides that there shall be, for each District, a Resident District Commissioner who shall be appointed by the President.
S.70(1) of the Local Governments Act provides that there shall be, for each District, a Resident District Commissioner who shall be a senior civil servant appointed by the President.
S.71(3) of the Local Governments Act provides that the expenses of the office of the Resident District Commissioner, including salaries, allowances and pensions, shall be charged on the Consolidated Fund.
Counsel for the Respondents summed up the above that since the Applicant is employed as a senior civil servant in accordance with S.70(1) of the Local Governments Act and his emoluments are payable directly from the Consolidated Fund as clearly seen under S.71(3) of the Local Governments Act, they submit that the applicant is thus a Public Officer bound by the Public Service Standing Orders.
Resolution:
I agree with the submission of Counsel for the Respondents on this and find that the Applicant, though appointed by the President in accordance with the Constitution of the Republic of Uganda, is a Public Officer and bound by the Public Service Standing Orders.
Whether the 2nd Respondent had the mandate to interdict the Applicant
Counsel for the Applicant submits that as the Applicant was appointed by His Excellency the President, and that any interdiction should be by or on directives of the President and since there were no such directives, then the interdiction did not follow the proper procedure.
Counsel for the Respondents gave a detailed submission on how the 2nd Respondent had the authority or mandate to interdict the Applicant. Counsel submitted that;
Under Article 172(1)(a) of the Constitution, the President may, acting in accordance with the advice of the Public Service Commission, the Education Service Commission or the Health Commission, as the case may be, appoint persons to hold or act in any office in the public service of Uganda of the rand of head of department or above other than those referred to in Article 200 of this Constitution, including confirmation of appointments, the exercise of disciplinary control over such persons and their removal from office.
Under Article 172(3) of the Constitution, the President may delegate any of his or her powers under this Article by directions in writing, to any service commission or to any other authority or public officer as may be prescribed by Parliament and may, in like manner, revoke the delegation.
Article 174 of the Constitution provides for Permanent Secretaries and Counsel submitted that the 2nd Respondents affidavit avers under paragraph 1 that he is the Secretary and the Accounting officer in the office of the President.
Counsel further submitted that under the Public Service Commission Regulations, SI No. 1 of 2009, Regulation 38 vests the power to interdict a public officer in the “Responsible Officer”.
The expression “Responsible Officer” is defined under the Interpretation section of the Regulations and also in the Public Service Standing Orders to mean;
a) “A Permanent Secretary of the Ministry in or under which, the Officer is serving”;
Under Regulation 38, the Responsible Officer may interdict an officer from exercising his or her powers and performing the functions of his or her officer where;
a) A responsible officer considers that a public interest requires that a public officer ceases to exercise the powers and perform the functions of his or her office; or
b)Disciplinary proceedings are being taken or are about to be taken or if criminal proceedings are being instituted against him or her;
Resolution:
I am inclined to agree with Counsel for the Respondents that by virtue of Regulation 38 of the Public Service Commission Regulations, SI No. 1 of 2009, the 2nd Respondent, being the “Responsible Officer” in the President’s Office, had the legal capacity to interdict the Applicant who is a “Public Officer”, stopping him from exercising his powers and performing the functions of the office of the Resident District Commissioner, JInja, until the Applicant is cleared of the charge of manslaughter against him.
Whether the Applicant was entitled to be heard prior to the interdiction and whether the decision to interdict the Applicant was irrational
The Applicant, in his Application and Affidavit in support of the application, stated that he was never given any hearing before the interdiction letter was written and that all rules of natural justice were flouted.
The Respondents, in the Affidavit in reply of the 2nd Respondent, stated that;
a) I know that once a civil servant is subject to court proceedings or any kind of investigation, the Responsible Officer ought to interdict him until such proceedings are terminated against the Public Officer.
b) I have been informed by my Attorneys in the Attorney Generals Chambers whose information I verily believe to be true, that the decision I made is not irregular as stated by the Applicant, since it is not a requirement nor is it a precondition under the Uganda Government Public Standing Orders, to give a hearing to the Applicant before exercising my discretion to interdict the Applicant.
The issue for consideration is whether one is entitled to be heard prior to being interdicted.
The Public Service Standing Orders, 2010 define interdiction as “the temporary removal of a public officer from exercising the duties of his or her office while investigations over a particular misconduct are being carried out.” Accordingly, interdiction involves a temporary removal of an officer from performing his or her normal duties. An officer, who is interdicted, is prohibited from coming to work, and he or she receives no less than one half of his or salary with effect from the date of interdiction until the matter is finalized. If the officer is cleared or acquitted at the conclusion of the disciplinary proceedings or trail that triggered the interdiction, he or she is granted all emoluments withheld during the period of interdiction in the even that he or she is allowed to return to duty. All emoluments are therefore restored. (see Oyaro John Owiny vs Kitgum Municipal Council).
In the same case, it was held that;
By virtue of Regulation 38 of The Public Service Commission Regulations, S.I No. 1 of 2009, and Regulation 28 of The Education Service Commission Regulations, S.I 51 of 2012, a public officer may be interdicted pending a disciplinary enquiry. Interdiction therefore is not a form of a disciplinary sanction but is in the nature of the first step taken towards possible disciplinary sanctions……….
The key rationale for interdiction is the reasonable apprehension that the public officer will interfere with the investigation or repeat the misconduct. …..
In most cases of interdiction, the nature and gravity of the criminal or disciplinary offence laid against the officer is such that it would not be in the public interest for the officer to continue to discharge his or her official duties before he or she is cleared of the charge…
Justice Mubiru in the above case went on to state that Interdiction is based only on preliminary investigations conducted by the employer and is but the initial stage within the disciplinary process. An officer on interdiction remains innocent until proven otherwise. In addition, such an officer has a legitimate expectation that he or she will be given an opportunity to respond to any adverse findings arising out of the preliminary investigations conducted by the employer. I find therefore that the decision to interdict is not subject to the right to be heard.
Resolution:
I agree with the above position as laid out in the above case, that the decision to interdict is not subject to the right to be heard first since interdiction is but a first step towards disciplinary proceedings. Therefore, there was no need for the Applicant to be heard before he was interdicted.
On the issue of whether the decision to interdict was irrational, and taking into consideration Counsel for the Respondent’s submissions and authorities provided (Counsel for the Applicant did not submit on this), I agree that it is only reasonable and not irrational at all to interdict a public officer charged with manslaughter, as the Applicant was. The Applicant does not dispute the fact that he was arrested, charged and remanded to prison for manslaughter
Further, in the Public Service Standing Orders, 2010, it clearly defines interdiction as “the temporary removal of a public officer from exercising the duties of his or her office while investigations over a particular misconduct are being carried out.” These Public Service Standing Orders also show that it is not irrational to get a public officer temporarily removed from exercising his or her duties pending investigations.
Lord Greene’s judgement in Associated Provincial Picture Houses Ltd vs. Wednesbury Corpn [1947] 2 All ER at page 680 (extracted from the Uganda Civil Justice Bench Book published by the Law Development Centre, January, 2016) stated that “an unreasonable decision … is not what the court considers reasonable and court will only interfere where there is no rational basis for the decision…”.
Resolution:
In the instant case there is a rational decision to interdict, and that decision is that the Applicant was arrested, charged for manslaughter and remanded to prison. I therefore find that the decision to interdict was rational.
ISSUE 2: WHETHER THE 2ND RESPONDENT WAS PROPERLY ADDED TO THE SUIT
This was an issue raised by Counsel for the Respondent who submitted that the 2nd Respondent was wrongly sued in this case and prayed that he be struck off with costs. Learned Counsels for the Applicant did not address this issue in their submissions.
In the Affidavit of the 2nd Respondent, paragraph 16, he states that the decision to interdict the Applicant was made in his official capacity as Secretary in the Office of the President and further states that in paragraph 12, that the decision to interdict is within the unfettered discretion of the Responsible Officer/Permanent Secretary.
I agree with the submissions of Counsel for the Respondents and add that the 2nd Respondent does not qualify to be a party to this suit taking into account the provisions of Article 250 (1)(2) of the Constitution of Uganda which provides that:
“250(1) “where a person has a claim against the Government, the claim may be enforced as a right by proceedings taken against Government for that purpose”.
(2) “Civil proceedings by or against Government shall be instituted by or against the Attorney General and all documents by or against the Attorney General and all documents required to be served on the Government for purposes of or in connection with those proceedings shall be served on the Attorney General.”
Counsel for the Respondent referred to the case Fuelex Uganda Ltd versus A/G & Others in Misc. Cause No. 048 of 2014 wherein the Applicant in that case sued the Attorney General & the Minister of Energy & Mineral Development and the Commissioner Petroleum Supply Department. A preliminary objection was raised and the issue was whether the 2nd and 3rd Respondents are proper parties to that application. Court resolved that the 2nd and 3rd Respondents do not qualify to be parties to the suit in view of the clear provisions of Articles 250(1)(2) of the Constitution of the Republic of Uganda.
In the instant case, the 2nd Respondent, in authoring the Interdiction letter was not acting in his personal capacity but was acting as the Responsible Officer/Permanent Secretary, Office of the President and the decision to interdict was not his personal decision but that of his office.
Resolution:
Therefore, the 1st Respondent, the Attorney General is the right Respondent in this matter and the 2nd Respondent should not have been made a party in his personal capacity.
ISSUE NO. 3: WHETHER THE APPLICANT IS ENTITLED TO THE RELIEFS SOUGHT
The Applicant failed to prove any of the grounds in which he was challenging the decision to interdict him. He is therefore not entitled to any of the reliefs he seeks and there is no basis for issuing the Applicant’s prayers for orders of Certiorari, Prohibition and costs.
Conclusion:
For reasons I have given in the Ruling, this Application fails and is hereby dismissed with costs to the Respondents.
I so Order.
____________
Jeanne Rwakakooko
JUDGE
30/05/2020
Ruling delivered electronically on 1st June, 2020 to:
1) Mr. Caleb Alaka – Counsel for the Applicant
2) Mr. Nyote David Innocent – Counsel for the Applicant
3) Mr. Ochieng Evans – Counsel for the Applicant
4) Mr. Musota Brian – Counsel for the Respondents
5) Ms. Jackie Amusugut – Counsel for the Respondents
______________
Jeanne Rwakakooko
JUDGE
