Ssasaga v Woboya and Anor (Election Petition No. 9 of 2016) [2016] UGHCEP 49 (15 June 2016)

Mr. Komakech argued that if indeed the 1^st Respondent had resigned with effect from 10^th May, 2015 as he claims, he would no have stopped earning a salary, which he continued to earn even as of June, 2015. Further, that he would have also ceased receiving financial facilitation for carrying out duties of office of the Prime Minister which, according to “Annexture A” (supra) he continued to receive even as of December, 2015.

To further prove that the 1^st Respondent was still in Public Service earning salary after 10^th May 2015, Mr. Komakech specifically pointed out the entries in “Annexture A” (supra) showing excise duty. He argued that this was a tax on salary earned by the 1^st Respondent or on money received for activities related to his office in the office of the Prime Minister. Counsel argued that the trend of excise duty went on even after the 2^nd December, 2015 when the 1^st Respondent was nominated, and that it proves that at the time of his nomination, the 1^st Respondent had not resigned as required by law, but was still in active service in the Public Service.

Further citing Article 252(2) of the Constitution, Mr. Komakech argued that it is a mandatory requirement thereunder that one who has retired from a public office ceases to perform duties of that

office. Counsel also cited the Halbury’s Laws of England, Vol. 15

paragraph 737 at page 560 where it is stated that if the law requires one to resign, he or she must resign. That in this case the 1^st Respondent did not resign at the time he was nominated by the 2^nd Respondent and hence did not qualify for nomination to be elected as MP.

Mr. Komakech further submitted that at the time he presented his nomination to the IEC, the 1^st Respondent had not attained the statutory forty - five years required for early retirement from the Public Service. Counsel submitted that the 1^st Respondent categorically stated in his evidence under cross - examination that he was born on 24^th June, 1969. That yet according to “Annexture B” to his affidavit in support of the answer to the petition, which is a letter from Public Service accepting the 1^st Respondent’s early retirement, it would mean that for him to be forty - five years, the 1^st Respondent would have been born on 24^th July, 1970. Counsel argued that this contradicted the evidence of the 1^st Respondent under cross - examination which, by calculation, would mean that he was two months short of the period required for early retirement under the Uganda Government Public Service Standing Orders, 2010, Section L-a (3)(a).

Mr. Komakech pointed out that under the retirement procedure; the law requires that a person must submit his request within six months to the date of retirement. That in this case the 1^st Respondent submitted his application on 4^th May, 2015, and just two days after on 7^th May, 2015, there was an acceptance, which is contrary to the law. Counsel concluded that the retirement of the 1^st Respondent was null and void and as such he was not validly nominated and his election as MP should be nullified.

In reply, Mr. Kimuli Moses and Mr. Isaac Nabende joint Counsel for the 1^st Respondent submitted that the 1^st Respondent was lawfully nominated by the 2^nd Respondent. Counsel referred to “Annexture B” (which was by error marked as “C”) to the affidavit of the 1^st Respondent in support of answer to the petition as proof that the 1^st Respondent had effectively retired from the Public Service by the time he was nominated for elections as MP. “Annexture B” is the letter earlier referred to which was addressed to the 1^st Respondent signed by the Permanent Secretary, Ministry of Public Service. It shows that the 1^st Respondent’s request to retire from the Public Service was accepted with effect from 10^th May. 2015. Premised on this letter, Counsel for the 1^st Respondent argued that the retirement of the 1^st Respondent was lawfully done and the 1^st Respondent was duly nominated for elections as MP.

Further referring to the testimony of the 1^st Respondent under cross - examination, Mr. Kimuli pointed out that the 1^st Respondent commenced work in Public Service in 1997 and retired on 20^th May, 2015, which is a continuous service of more than ten years required for one to qualify for early retirement. Also, that the 1^st Respondent clearly testified that he was born on 14^th July, 1969, and retired on 20^th May, 2015, which also satisfies the legal requirement of forty- five years for one to qualify for early retirement from the Public Service.

Regarding the salary received by the 1^st Respondent on 19^th June, 2015, after he had retired, Mr. Kimuli argued that this was the last salary and that there was no evidence of any other salary received after that date. Further, that under paragraph 3 of letter “Annexture B” (supra) it was stated that Permanent Secretary office of the Prime Minister should initiate the process of terminal benefits of the 1^st Respondent. Counsel argued that terminal benefits would come subsequently, and that this could explain why salary was paid later in June, 2015.

On the issue of excise duty which appeared on the 1^st Respondent’s

account statement long after he had retired, Mr. Kimuli argued that

it reflected the Uganda Revenue Authority tax on transactions made

by the 1^st Respondent which had nothing to do with getting a salary

after he had retired. Mr. Kimuli further took issue with “Annexture

A” (supra). He argued that although the Petitioner’s Counsel placed

on it much reliance show that the 1^st Respondent received salary

and financial facilitation to do official work after he had had retired,

the document is not a bank statement. That it is not named for

what it is, and that its source is not mentioned. That it is also not

certified and hence cannot be relied upon.

Mr. Kimuli vehemently argued that “Annexture A” (supra) did not

serve the purpose for which Counsel for the Petitioner submitted

on. That the document indicates the name of the 1^st Respondent as

“supplier”, and that an employee of Government cannot be its

supplier. That it could only mean that the 1^st Respondent engaged

in the supply to the office of Prime Minister after he had retired. Mr.

Kimuli maintained that the 1^st Respondent was duly nominated for

salary had not been paid, it could only mean that it was for the official work done for the month of June, 2015.

Mr. Komakech maintained that since letter “Annexture B” (supra) was dated 7^th May, 2015, and accepted the 1^st Respondent’s retirement with effect from 10^th May, 2015, the 1^st Respondent could not have retired after giving six months’ notice required by law. Further, that he had not attained the age to qualify for early retirement, and hence did not meet the requirement under Article 80 (4)(supra) and Section 4(4) PEA to qualify for the nomination for elections as MP.

Opinion:

In order to determine the validity and or lawfulness of the 1^st Respondent’s nomination for elections as MP, regard will be put to provision of Section 61(1) PEA (supra) which states in part that;

“The election of a candidate as a member of Parliament shall only be set aside on any of the following ground if proved to the satisfaction of the court:

(b)

(C)

4. that the candidate was at the time of his or her election not qualified or was disqualified for election as a member of Parliament(underlined for emphasis).

The Court of Appeal in Ngoma Ngime vs. Electoral Commission

& Hon. Winnie Byanyima, Election Petition appeal No. 11 of 2002, held that the operative words in the above cited section are; “election of a candidate as a member of Parliament”. In other words, for a person to qualify for election as MP, he or she must first be duly nominated as such in accordance with the law. In this regard I am further fortified by provisions of Section 13 PEA (supra) which specifically provide for nomination as follows;

“A person shall not be regarded as duly nominated for a

constituency and the nomination paper of any person shall be regarded as void if -

1. )

2. )

(c) the person seeking for nomination was not Qualified for election under section 4

I

(d)

4. the person seeking nomination has not complied with the provisions of section 4.” (Underlined for emphasis).

Therefore, being duly nominated for elections is an essential statutory prerequisite for a person to qualify for election as MP.

Section 4 PEA (supra) to which Section 13(supra) makes reference with which a person seeking nomination must comply; specifically provides for “qualifications and disqualifications of a member of Parliament”. The relevant part under sub - section (4) thereof states as follows;

“Under the multiparty system a public officer or person employed in any government department or agency of government or an employee of a local government or any body in which the government has controlling interest, who wishes to stand in a general election as a member of parliament shall -

1. in the case of general elections, resign his or her office at least ninety days before nomination day...” Important to note is that Section 4(4)(supra) more or less reproduces provisions of Article 80(4)(supra), which stipulate that;

“Under the multiparty political system, a public officer or

person employed in any government department or agency of government or an employee of a local government or anybody in which the government has controlling interest, who wishes to stand in a general election as a of parliament shall resign his or

her office at least ninety days before nomination day. ”

It is in no doubt, therefore, that both the constitutional and statutory provisions above provide specifically for “resignation” from the Public Service of a person who wishes to participate in the general elections as MP. More importantly, the timelines for the resignation are clearly set out therein.

It is called for to clarify on the key concepts of “resignation” and “retirement”. This is because confusion was created by Counsel on both sides in their submissions using the terms interchangeably. Black’s Law Dictionary, 8^th Edn, at p. 1342 defines the term “retirement” as follows;

“Voluntary termination of one’s own employment or career, esp. upon reaching a certain age. ” (Emphasis added)

At page 1336(supra) the term “resignation” is defined to mean;

“The act or an instance of surrendering or relinquishing an office, right, or claim....A formal notification of relinquishing an office or position...”

“Resignation” is therefore quite different from “retirement” both in form and substance. Even though at some point the two could have the same effect of one leaving the Public Service, they have completely different legal and practical implications.

A clear distinction between the two concepts for purposes of the instant petition is under Article 80(4) and Section 4(4) PEA (supra) which specifically provide for “resignation” of a person from the Public Service in order to participate in elections as MP. “Retirement”, on the other hand, is provided for under different provisions of the Constitution and governed by the Public Service Act (Cap. 288) and the Uganda Government Public Service Standing Orders, 2010, made under Section 13 of the parent Act. Retirement by a public officer is not necessarily for purposes of participating in elections. Retirement and elections are coincidental because with or without elections, a public officer at some point in time has to retire. Therefore, the constitutional and statutory

provisions governing resignation of a person from the Public Service were not intended not cover persons who retire from the Public Service for whatever reasons.

“Annexture B” (supra) is a letter in reference to the subject matter of; “EARLY RETIREMENT FROM PUBLIC SERVICE”. It is dated 7^th May, 2015, and it was in response to the 1^st Respondent’s letter of 4^th May, 2015, in which he requested for early retirement from the Public Service. For ease of reference, I reproduce the letter verbatim below.

“MINISTRY OF PUBLIC SERVICE

P.O. BOX 7003 KAMPALA.

7^th May, 2015 Mr. Woboya Vincent

Principal Disaster Management Officer

Thru: Permanent Secretary

Officer of the Prime Minister KAMPALA.

Dear Sir,

EARLY RETIREMENT FROM PUBLIC SERVICE

I refer to your letter dated 4^th May, 2015 on the above subject. This is to inform you that on the basis of your length of service, it has been decided that you be granted early retirement with effect from 10^th May, 2015 in accordance with the provisions of the Uganda Government Standing Orders, section L-a 3(b).

The Permanent Secretary Office, of the Prime Minister, is requested to initiate the processing of your terminal benefits on the integrated personal and payroll system (IPPS) and thereafter, submit a hard copy of your pension file to this Ministry for further action.

On behalf of government, I take this opportunity to thank you for dedicated service you have rendered and wish you success in your future endeavors.

Yours faithfully,

Jane K. Mwesiga

For: PERMANENT SECRETARY

C.C. Office of the Auditor General KAMPALA

By expressly making specific reference to the Uganda Government Public Service Standing Orders, section L-a 3(b), the above latter meant that the leaving of the Public Service by 1^st Respondent did not fall within the ambit of resignation for purposes of participating in elections envisaged under Article 80(4) (supra) and Section 4(4) PEA (supra). In fact, the letter does not state that the allowing of the 1^st Respondent’s retirement was premised on his intention to participate in the elections but on the length of his service in the Public Service. He simply retired from the Public Service under the provisions of the Public Service Act (supra) and the Uganda Government Public Service Standing Orders (supra) and this had nothing to do with resignation. For as long as he qualified for retirement under the law, regardless of the elections he would be entitled to retire from the Public Service.

Therefore, the issue of whether the 1^st Respondent was duly nominated for elections as MP depends solely on whether he properly retired from the Public Service.

The Public Service Standing Orders (supra); Section L-a 3(b) to which “Annexture B” made specific reference; which is relevant to the “Retirement of Pensionable Officers”, states as follows;

“A pensionable public officer may retire from the Public Service in accordance with the provisions of the Pensions Act when he has;

(а) attained his or her forty fifths (45^th) birthday and served for a continuous pensionable period of at least ten (10) years,

Section (L-c) which sets out the “Retirement Procedure” provides as follows;

“(1) A Pensionable Public Officer cannot retire voluntarily until he or she has applied, and a request to retire is not effectual until it is accepted by the Responsible Permanent Secretary.

2. Request to retire should be submitted not less than six

(б) months before the expected day on which a public officer will cease his or her duties and must be addressed to the Pension Authority. The officer through whom the application has been routed must signify whether he or she supports the application for retirement and if not; indicate the reasons.

2. Six months to the mandatory retirement age, a public officer shall submit his application to retire to the Pensions Authority accompanied by relevant Pension form fully completed by the Responsible Officer. (Emphasis added).

I must emphasis that the provisions relevant to early retirement have to be read together and not in isolation because each gives effect to the other.

It is in no doubt that leaving the Public Service by way of retirement has to be in accordance with the Public Service Act (supra) and the Uganda Government Public Service Standing Orders (supra) made there under. It does not matter whether the persons who retires intends to participate in elections or not. Upon reaching the statutory required age, he or she has to leave the Public Service because he qualifies for retirement; be it voluntary, early, or mandatory.

Worthy of note is that retirement, whether early or mandatory, attracts pension as stipulated under Article 254 that;

“(1) A public officer shall, on retirement, receive such pension as is commensurate with his or her rank., salary and length of service. ”

In addition a person who has retired from the Public Service under provisions of the Public Service Act (supra) does not qualify for re -appointment to the same or different office in the Public Service on the same terms, because he or she has attained pensionable age and therefore does not qualify to be appointed under the same terms of service.

On the other hand, under resignation a person simply relinquishes office in the Public Service at any time after giving formal notice. Under Section 4(4) PEA, resignation is purposely to enable the person to participate in the elections as MP. The implications of resigning, whether to participate in elections or not, are clear from the Public Service Standing Orders (supra) Section A-n which states as follows;

^ul. A public officer may leave the Public Service or cease to be in the Public Service in one of the following ways,

m

on: -

(a)

2. ;

3. )

4. )

(e)

445 (f)

(9) ;

(h) resignation Under Section A- n 11, it is provided that;

“11. A public officer who wishes to resign from, a public office shall apply to the Government by giving a notice of

thirty (30) days. The officer shall not leave office until his or her application to resign has been approved in writing indicating the date the officer may leave.

12

1 3

14. A pensionable officer who resigns his or her office relinquishes all rights and privileges attached to the post...”

The above latter are general provisions on resignation for any person who wishes to relinquish office in the Public Service through

that option, and he or she must give thirty days notice of his or her resignation. However, the under Article 80(4) (supra) and Section 4(4) PEA (supra) resignation is specific for those who wish to participate in election, and they must give notice of ninety days before the nomination date. In either cases of resignation, there is no prescribed age limit or specified length of period of service provided one gives the required notice which must first be accepted. Also to note is that resignation does not attract pension because the person “relinquishes all rights and privileges attached to the post...” However, a person who resigns under provisions of Article 80(4) (supra) and Section 4(4) PEA (supra) can be re-appointed to the Public Service under the same or different terms of service and office if he or she qualifies. This is the import of Article 253 which stipulates that;

1) Where any person has vacated an office established

by this Constitution, that person may, if qualified, again be appointed or elected to hold that office in accordance with the provisions of this Constitution. ”

By providing for resignation under the Constitution and statute, the intention of the legislature was primarily aimed to cure the mischief of public officers taking advantage of the their public offices to campaign in elective partisan politics, possibly using the public facilities. Under retirement, however, using the public office facilities would not arise because the officer would have permanently left the Public Service on attainment of a mandatory pensionable age or early retirement.

From the law and evidence articulated and evaluated above, it is clear enough that the 1^st Respondent did not resign from the Public Service. He cannot be said to have resigned from the Public Service simply because that is not the path he took. He took the path of early retirement. Therefore, Article 80(4)(supra) and Section 4(4) PEA (supra) which provide for resignation of a public officer to participate in elections do not apply to him.

Even under the early retirement which he opted for, and which would apply in this case, the 1^st Respondent needed to properly retire from the Public Service for him to qualify for nomination for election as MP. By “properly retiring” is meant retiring in accordance with provisions of the governing law under the Public Service Act (supra) and the Uganda Government Public Service Standing Orders (supra).

From the evidence on court record and the law articulated above, the 1^st Respondent did not properly retire from the Public Service. In fact it cannot be said that he retired at all at the time he sought for nomination for election as MP. Yes; he could have attained forty five years of age and served a pensionable period of ten years. However, he did not give the required statutory six months’ notice prior to his early retirement from the Public Service. “Annexture B” (supra) a letter in which his early retirement was purportedly accepted is glaring evidence that the 1^st Respondent only made his request on 4^th May,2015, and just two days after it was accepted with effect from 10^th May, 2015. This was contrary to the law cited above. The purported acceptance done even before the stipulated statutory period could elapse was illegal and the early retirement based on it void ab initio.

In addition, there is no evidence showing that the 1^st Respondent ever addressed his request to retire to the Pension Authority routed through the officer as required under Section L-c (2) cited above. “Annexture B” (supra) signed for the Permanent Secretary, Ministry of Service Public was simply responding to the 1^st Respondent’s request for early retirement dated 4^th May 2015 which was not

addressed to the Pension Authority six months to the retirement date as required by the law.

Apart from the above latter, there is more proof under “Annexture A” (supra) the Accounts Statement of the 1^st Respondent, which in no uncertain terms shows that he did not cease performing his official duties even after the effective date of his purported retirement on 10^th May, 2015. For instance on 21^st May, 2015 the 1^st Respondent received on his Account No. 121006330401 the first installment of Ug.Shs.12 million as “Facilitation for dissemination of Disaster Policy in Sironko and Kween Districts”. On the same date, he received the second installment of Ug.Shs.14.5 million for the same activities in the same district. On the same date, he yet again received a third installment of Ug.Shs. 10.035 million for same activities on same account.

On 10^th June, 2015, the 1^st Respondent again received on the same account Ug.Shs. 1.8 million as “Facilitation for the Preparations for Construction and Physical Planning for Resettlement of Landless People in Bugishu sub region”. On 2^nd December, 2015, he was paid Ug.Shs. 9,187 as “Facilitation for the baggage allowance on early retirement from Kampala to Sironko.” All payments were made to the 1^st Respondent’s account under the “Operating Unit” of the office of the Prime Minister. There is no doubt that he was receiving money for activities of the office of the Prime Minister where he was Principal Disaster Preparedness Officer. Most importantly, the evidence demonstrates that the 1^st Respondent was still in active service in the Public Service after he purportedly retired. Furthermore, “Annexture A” (supra) shows that the 1^st Respondent continued to earn a salary after he had supposedly effectively retired on 10^th May, 2015. In this particular regard, I am not persuaded by the argument advanced by Mr. Kimuli that the 1^st Respondent received salary in June, 2015 because under “Annexture B” (supra) the PS, Ministry of Public Service requested the PS office of the Prime Minister to initiate the process for terminal benefits of the 1^st Respondent, which would be paid later. Salary and terminal benefits are quite different. A salary is paid in lieu of the work done. Terminal benefits are entitlements due to a person upon retirement from service. Therefore, a salary paid in June, 2015, could only be for the work done after the purported retirement. A person cannot be said to have retired from a public office for which he continues to earn a salary and receive financial payments for activities of that office as clearly demonstrated by the “Annexture A”.

In that regard, I find the objections to “Annexture A” by Counsel for the 1^st Respondent misconceived. The 1^st Respondent under cross- 165 examination admitted the document as a true reflection of his Accounts Statement. He also admitted having received the money thereon. The document is clearly his Account Statement from 01^st June, 2015 after the purported retirement date to 31^st December, 2015.

Secondly, Counsel for the 1^st Respondent based on the very document to demonstrate, and rightly so, that the excise duty on it reflected transactions of the 1^st Respondent other than his salary. Therefore, he cannot be permitted to approbate and reprobate the document.

I also find as incorrect the argument that the 1^st Respondent became a “supplier” to the Office of the Prime Minister after retirement hence the various payments for activities of that office in his name as a “supplier”. Court takes Judicial Notice of the shift in Government Policy from cheque payment system for the supply to it of goods and services to Electronic Fund Transfers (EFT) where all Public Service employees are paid their salaries, entitlements, and other benefits on their accounts as “suppliers” of services to Government. Therefore, the use of the term “supplier” on “Annexture A” (supra) in reference to the 1^st Respondent had nothing to do with him supplying to Government after retirement, but actually had everything to do with him receiving payments for the performance of official duties as a Principal Disaster Management Officer in the Prime Minister’s Office even after he had purportedly retired.

The net effect is that the 1^st Respondent did not comply with the legal requirements for early retirement from the Public Service. His retirement was unlawfully done and cannot be sanctioned or overlooked by a court of law. In the case of Makula International vs. His Eminence Cardinal Emmanuel Nsubuga & Anor [1982] HCB12, it was held that a court cannot sanction what is illegal, and an illegality once brought to the attention of court supersedes all matters of pleadings including admission.

It follows that the 1^st Respondent’s nomination for elections as MP was based on an illegality and it cannot be left to stand. It was null 600 and void ab initio. The Petitioner has satisfied this court to the required standard that the 1^st Respondent was not validly nominated and hence was at the time of his election not qualified as member of Parliament within the meaning of Section 61(1) (d) PEA (supra). On that ground alone the election of the 1^st Respondent as 605 MP for Budadiri County East Constituency is nullified.

Having found as above, it would not be necessary to try and resolve the other issues which are automatically rendered purely academic in light of court’s findings under Issue No.l. It is accordingly declared and ordered as follows;

1. The 1^st Respondent was not validly nominated for elections as MP for Budadiri County East Constituency.

2. The election of the 1^st Respondent as MP for Budadiri County East Constituency is hereby nullified.

3. It is ordered that fresh elections be conducted for MP for Budadiri County East Constituency.

4. The Petitioner is awarded costs of this petition.

BASHAIJA K ANDREW

JUDGE

15/06/2016

_% k V

Mr. Komakech Geoffrey Counsel for the Petitioner present.

Mr. Isaac Nabende Counsel for the 1^st Respondent present.

Mr. Jude Mwasa holding brief for Mr. Mwenyi Joseph Counsel for 625 the 2^nd Respondent present.

Petitioner present.

1^st Respondent absent

No representative from the 2^nd Respondent.

Ms. Grace Kanagwa Court Clerk present.

Court: judgement read in open court

BASHAIJA K ANDREW

JUDGE

15/06/2016