Constitutional Law

Attorney General v Senkali George & 45006 Ors ((CIVIL APPEAL NO.2 OF 2006)) [2009] UGSC 1 (21 January 2009);

Flynote: 

Headnote and Holding: 

This was a second appeal from the judgment of the Court of Appeal in
which the appellant’s appeal from the High Court was dismissed with costs
to the respondents. In the suit, the respondents who had been deployed in
the army under previous governments claimed against the appellant, the
Attorney General, for a declaration and specified remedies. The
declaration was to be to the effect that notwithstanding the successive
Legal Notices and the different names those Notices prescribed for the
military institution of the country, they, the respondents, remained
members and in the regular service of the Army. The respondents claimed
that they were therefore entitled to payment of salary arrears, terminal
benefit and allowances. They claimed these benefits because they

contend that at all material times they were employed in Government
service as members of the Uganda Army.
The Supreme court was of the view that, whether or not any individual or
groups of the respondents are members of the existing armed forces, is
both a much a matter of law and fact. That in democratic states, the armed
forces of the nation are established by the Constitution and structured and
organized in accordance with laws made by Parliament or similar
legislative bodies. Beyond that, the armed forces of a country are
regarded as instruments of the central government, commanded,
equipped, disciplined and trained for the exercise of physical force in the
interests of the state. That in a modern state, it is inconceivable and
impractical for a group of soldiers, let alone thousands of them to exist,
live and remain members of the army without the knowledge or
deployment by the central government or its relevant departments.
Therefore that, before any officer or soldier can successfully claim against
a government for an infringement of his or her right in the army, there
must be clear proof that the claimant was not only a member of the armed
forces controlled by that government but was so acknowledged by the
authorities of the same government as its soldiers and who are ready at
any time to be deployed in those forces. That the evidence presented in
this case was inadequate to indicate even remotely the said membership
or deployment.
The Supreme Court dismissed the appeal holding that the evidence on
record showed that respondents belonged to and served loyally in a
number of successive and previous armies before the establishment of the
Uganda People’s Defence Force. That most of the respondents had never
belonged to and they did not now belong to the UPDF at all. Hence that
the respondents failed to show that they remained members of the UPDF
both in law and fact. Court further agreed with the findings and decisions
of the learned trial judge that the UPDF is an entirely new army from those
that existed before it.

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