THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISCELLANEOUS CAUSE NO. 56 OF 2019
IN THE MATTER OF ARTICLES 42 AND 44 OF THE CONSTITUTION, SECTION 36 OF THE JUDICATURE ACT, CAP. 13 AS AMENDED BY THE JUDICATURE (AMENDMENT) ACT NO.3 OF 2002.
IN THE MATTER OF THE JUDICATURE (JUDICIAL REVIEW) RULES, 2009
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW BY WAY OF CERTIORARI, PROHIBITION, DECLARATION AND INJUNCTION
SSEKIRANDA KIBIRIGE DAVID :::::::::::::::::::::::::::::::: APPLICANT
NAKASEKE DISTRICT LOCAL GOVERNMENT :::::: RESPONDENT
BEFORE: HON. MR. JUSTICE BASHAIJA K. ANDREW
Ssekiranda Kibirige David (hereinafter referred to as the “Applicant”) brought this application against Nakaseke District Local Government (hereinafter referred to as the “Respondent”) under Articles 42 and 44 of the Constitution of the Republic of Uganda, Sections 36 and 38 of the Judicature Act Cap. 13 (as amended); Sections 98 of the Civil Procedure Act Cap 71; Rules 6, 7 and 8 of the Judicature (Judicial Review) Rules 2009; Order 52 Rules 1 and 2 of the Civil Procedure Rules SI 71 -1; for judicial review seeking remedies that;
- An order of certiorari doth issue to move this court, quash, set aside and declare as invalid and illegal and or void and a nullity the directive and/or decision and/or decision making process of Nakaseke District Local Government under the hand of Katotorama John, its Chief Administrative Officer (CAO) contained in the letter dated 14th February 2019, Ref. ADMIN./133/135/01 to the Applicant stating as hereunder;
- That the Applicant was convicted of two counts of embezzlement of UGX. 250,000/= (Two Hundred Fifty Thousand Shillings) and abuse of office.
- That as a convicted person, public office the Applicant is disqualified from office for a period of ten (10) years as provided for under the Anti-Corruption Act 2019 and under the Prevention of Corruption Act (Cap 121).
- That the payment of salary to the Applicant be stopped immediately.
- A declaration that the disqualification of the Applicant by the Respondent vide its CAO, in the letter dated 14th February 2019, was void and is a nullity under the requisite laws.
- A consequential order quashing the decision disqualifying the Applicant from his position as Cold Chain Assistant in the Respondent District.
- A declaration that the action of the District CAO, acting under his office to disqualify the Applicant without according him a hearing/right to be heard, contravened the rules of natural justice and is unconstitutional.
- Costs of the suit.
The grounds of the application are briefly that the decision of the Respondent contained in the impugned letter dated 14/02/ 2019, is unconstitutional, illegal and unlawful, ultra vires and offends the rules of natural justice. That the Respondent in making its decision contained in the impugned letter, acted unfairly and unjustly against the Applicant, contrary to Article 28, 42 and 44 of the Constitution when he did not give the Applicant the right to be heard, in contravention of the rules of natural justice and the applicable law. Further, that the Respondent in making its decision contained in the impugned letter committed deliberate and manifest errors, in contravention of the Constitution and the applicable law, in that the Respondent acted unfairly and unjustly in disqualifying the Applicant when they wrongly applied a repealed law to the detriment of the Applicant; did not give the him an opportunity to be heard and did not conduct a hearing in accordance with the rules of natural justice. That it is in the interest of justice that the declaration and orders of certiorari be granted as prayed for.
The above grounds are supported by the affidavit sworn by the Applicant. He essentially states that he has since 2002 been in the employment of the Respondent, in the position of a Cold Chain Assistant, until 14/02/2019, making seventeen years. That he was earning a monthly salary UGX.640,000/= (Six Hundred Forty Thousand shillings) and enjoying other privileges and rights. That on 31/08/2018, he was convicted and sentenced to a fine of UGX.2,500,000/= on the counts of embezzlement and abuse of office. That following the said conviction and sentence, he continued in the said position and has since been earning his salary.
Further, that other than convicting and sentencing him, the criminal court of the Anti-Corruption Court of Buganda Road did not give any other reliefs or orders to do with disqualification of his services. That surprisingly, on 14/02/2019, the CAO of the Respondent under his hand in a letter, disqualified the Applicant from the Public Service and from his position, for a period of ten (10) years.
That the said letter was copied to him and various other offices namely; the District Chairperson, the Resident District Commissioner, the District Internal Auditor, the Secretary District Service Commission, the District Health Officer, Personal file, the Chief Finance Officer, the Head of Human Resource; all of the Respondent District.
That following the letter disqualifying him, his salary was forthwith stopped and he was no longer to be paid salary. That the said letter of his disqualification was premised on a repealed and non-existing law, code named “the Prevention of Corruption Act (Cap. 121); and that the Anti-Corruption Act 2019, does not provide for the disqualification from public office of a convictee, for the stated period of ten (10) years within the purview of Section 19 and 11 of the Act. That in addition, prior to the Respondent disqualifying him from service, he was not called or given a disciplinary hearing or any hearing in regard as to why he ought not to be disqualified or otherwise. That no reference was made to the Uganda Public Service Standing Orders prior to and/or upon his disqualification from service. That as such he has been put to ridicule and inconvenience for the untimely disqualification, without a hearing, and for the stated period for which he now seeks general and punitive damages commensurate with his salary and the ten (10) years period to wit, UGX.640,000/= for 120 months totaling to UGX.76,800,000/= .
The Respondent opposed the application in an affidavit sworn by Bigirwa Kaliisa Samuel, the Deputy CAO of the Respondent. He states that during his employment with the Respondent, the Applicant was charged before the Anti-Corruption Court for the offences of embezzlement and abuse of office, contrary to Section 19 (a) (i-iii) and Section 11 (1) of the Anti-Corruption Act, respectively. That the particulars of the offence were that, on 19/02/2012 at Nakaseke District Local Government, being employed by the District as a Cold Chain Assistant, stole refrigerator, cold box, and vaccine carrier all valued at US$1,319.68 approximately UGX.3,233,216/= at the rate of 2,400/= per USD, the property of the Government of Uganda, being Ministry of Health, which he had access to by virtue of his office. Also, that as Cold Chain Assistant, in abuse of his office did an arbitrary act prejudicial to the interest of his employer to wit took in his possession Government stores meant for health services in the district. The deponent states that the Applicant was tried and convicted as charged and sentenced, on the 31/08/2018, for the said offences, respectively. He attached a copy of the judgment marked “A”.
Further, that on 11/02/2019, the office of the CAO of the Respondent received a letter from Karugaba Collins D/SP (Head of Investigations into the Applicant’s criminal case) informing them of the Applicant’s conviction. (Attached is a copy of the letter marked “B”). That under Section 46 of the Anti-Corruption Act 2009, a person who is convicted of an offence under the Act (specifically Section 19 and 11) is automatically disqualified from holding public office for a period of 10 years. Also, that under Regulation 39 of the Public Service Regulations 2009, where a Public officer has been convicted on a criminal charge, the responsible officer may, if he or she considers it to be in the public interest, suspend the officer from the exercise of the powers and functions of his or her office and may direct what proportion, if any, of the emoluments of the officer shall be paid to him or her pending consideration of his or her case under these Regulations. That acting under Section 46 of the Anti-Corruption Act 2009, and Regulation 39 of the Public Service Regulations 2009, the CAO of the Respondent directed stoppage of any further payment of salary to the Applicant until disposal of his case by the appointing authority, the District Service Commission.
In addition, that under Regulation 47 (1) of the Public Service Regulations 2009, if an officer to whom the regulations applies, is adjudged guilty of a criminal offence which is likely to warrant disciplinary proceedings, the responsible officer shall forward a copy of the charge and the judgment, together with the proceedings of the court, if available, and his or her recommendations to the Secretary District Service Commission, as was done in this matter. That under Regulation 47 (1) of the Public Service Regulations, 2009, the Commission shall determine whether the officer shall be subjected to disciplinary punishment on account of conviction without the proceedings prescribed in Regulations 38, 39 and 40.
Further, that under the above-mentioned provisions of the law, there was no legal requirement to conduct a hearing on whether a convict’s (Applicant) salary from Public Service should be stopped, and that it was at the discretion of the Responsible Officer to do so. That as such, the decision to stop the Applicant’s salary was within the precincts of the law relating to Public Service. The Respondent thus denies that its acts have put the Applicant in ridicule or inconvenience, and maintains that the claim for general and punitive damages is misconceived. That since the Respondent’s decision to stop the Applicant’s salary was lawful, regular and proper, the Applicant is not entitled to the orders sought.
At the hearing counsel, Mr. Abbas Bukenya represented the Applicant while counsel Mr. Anaclet Turyakira, represented the Respondent. Both counsel filed written submissions on court record which have been taken into account in arriving at the decision herein.
The issues for determination are as follows;
- Whether the CAO of the Respondent was justified to terminate and disqualify the Applicant from employment in the manner he did.
- What remedies are available to the parties?
Resolution of issues:
Issue No.1: Whether the CAO of the Respondent was justified to terminate and disqualify the Applicant from employment in the manner he did.
The Applicant contests the decision of CAO contained in letter dated 14/2/2019 stopping the Applicant’s salary and subsequent termination from Public Service, as procedurally improper, unlawful and ultra vires. Evidence of both parties shows that while in the employment service of the Respondent, the Applicant was charged in the Anti-Corruption Court for the offence of embezzlement and abuse of office contrary to section 19 (a) (i-iii) and Section 11 (1) of the Anti-Corruption Act 2009, respectively. He was found guilty as charged and convicted vide HCT-00-ACS-0012 in the Chief Magistrate’s Court, Anti-Corruption Division of High Court.
Section 46 of the Anti-Corruption Act (supra) provides as follows;
“A person who is convicted of an offence under section 2, 3, 4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24 and 25 shall be disqualified from holding a public office for a period of ten years from his or her conviction.”
It is not in dispute that the court which convicted and sentence the Applicant of the two offences listed under Section 46 (supra) is a competent court. Therefore, the Applicant, as a convict, squarely falls within the ambit of persons charged under Section 46 (supra) which ends up with a conviction. It follows, therefore, that the automatic operation of the provisions to the effect that such a convicted person “shall be disqualified” from holding a public office for a period of ten years from his or her conviction, applies to the Applicant.
It must be emphasized, for the present and future reference, that Section 46 of the Anti-Corruption Act (supra) is quite independent, and a stand – alone provision. It is self-regulating in procedure and effect, from the rest of the statute, and it operates as a “consequential order” upon every conviction under the specified provisions of the Act. Regardless of whether or not, a court issues a specific order disqualifying a person convicted person under the provisions, the effect of the conviction is that provisions of Section 46 (supra) automatically apply to the convicted person, who is then barred from holding a Public office, for the period of ten years from the date of conviction. It does not matter that the convicted person ultimately serves a sentence of imprisonment or pays a fine. Still, the effect of the conviction is to bar him or her from holding a public office for the prescribed period. The provision is much more concerned with the effect of the conviction than of the sentence, if any is passed.
It is also noted that the Applicant faults the CAO of the Respondent for having written to him the impugned letter of 14/02/2019, by which the Applicant’s salary was stopped and he was subsequently disqualified from Public Service. The impugned letter is Annexture “D” to the Applicant’s affidavit in support and also Annexture “C” to the Respondent’s affidavit in reply. The reading of the letter shows that the CAO was acting pursuant to a letter from State House (Annexture “B” to the Respondent’s affidavit) dated 11/2/2019. The letter states, in part, as follows;
“This is to inform you that the above mentioned person, a Cold Chain Assistant attached to Nakaseke District was on 31st August 2018 convicted and sentenced at the Anti-Corruption Court Kololo with crimes of embezzlement and abuse of office… In this regard, I bring to your attention section 46 of the Anti-Corruption Act, 2009, which provides for automatic disqualification of a person who has been convicted under the Act, from holding public office for a period of ten (10) years…The purpose of this communication is to request you to take administrative action against the above named person.”
The letter was copied to RDC and Secretary, of the Respondent. Quoting from the said letter, the CAO then wrote to Head Human Resource, Nakaseke District, letter Annexture “C” dated 14/2/2019 and in the last paragraph wrote as follows;
“In view of the above, I direct you to stop payment of salary of Mr. Ssekiranda David Kibirige immediately until further instructions to you.”
Still following upon the said letter Annexture “C” (above) the CAO wrote letter Annexture “D” also dated 14/02/2019, addressed to the Secretary, District Service Commission of the Respondent, submitting the Applicant for disqualification from office in accordance with the contents of letter Annexture “B” from State House, and attached the court judgment dated 31/8/2018.
From the above evidence of the various stated correspondences, it is quite certain that the CAO of the Respondent did what was legally required of him/her to do, in circumstances where a person employed in Public Service has been a subject of conviction of a criminal offence, pursuant to Section 46 of the Anti-Corruption Act, 2009.
Besides the above, the Public Service Commission Regulations (made pursuant to Section 27 of the Public Service Act, 2008) under Part IV thereof, prescribes the procedure for disciplining Public officers. Of relevance to this case, Regulation 42 thereof, provides that if an officer to whom these regulations apply is adjudged guilty of a criminal offence which is likely to warrant disciplinary proceedings the responsible officer shall forward a copy of the charge and judgment together with proceedings of court, if available, and his recommendation to the secretary. In that case, the commission has discretion on whether or not to subject the officer to a punishment without an interdiction by the responsible officer, as provided under Reg.38; suspension by the responsible officer pending investigation into the officer’s conduct as provided under Reg.39, and without a report to the secretary as to whether the officer has been interdicted, and without proceedings for dismissal being taken by the commission against the officer, as provided under Reg.40.
From the above elaborate procedure, a number of things are clear. Firstly, the CAO in this case is the “responsible officer”. Secondly and most importantly, the commission has ultimate discretion to punish the officer without recourse to an inquiry, investigation and/or consideration of the officer’s case. Thirdly, although the regulations do not define what a “criminal offence” is, in the instant case, the offence of embezzlement and abuse of office under the Anti-Corruption Act (supra) are cognizable offences which are defined and sentences prescribed by law. Therefore, the CAO of the Respondent in writing the impugned letter was acting well within his/her legal mandate and as such never acted ultra vires.
Regarding the Applicant’s contention that he was never accorded a hearing by the Respondent before being disqualified from holding Public office for 10 years and his salary stopped, court finds that the Respondent needed not to hold such a hearing in the circumstances. The inquiry into the Applicant’s conduct had already been properly inquired into by a competent court of law which found him guilty and convicted him. As already stated, once a Public Servant is charged and found guilty of the offence of embezzlement and abuse of office under the Anti-Corruption Act (supra) it is automatic under Section 46 thereof, that such a person shall be disqualified from holding a public office for the specified period. Therefore, an inquiry by an administrative body, such as the Respondent, into the conduct of a convicted Public officer of the said offences adds no value. If anything, such an inquiry by the administrative body would be pre-empted by the conviction of the Public officer of the said offences by court. The Respondent did not breach any principle of natural justice because they were not, in the circumstances, required to give such a hearing, or at all.
The Applicant also advanced the argument that decision to disqualify the Applicant was illegal because it was based on a wrong and/or non-existing law. That the CAO of the respondent in his letter referred to the Anti-Corruption Act of 2019 and that there is no such a law in existence and that the Applicant was terminated under non – existing law. This contention, however, has no merit for a number of reasons.
Firstly, it is quite evident that this was just a clerical error apparent on the face of the record, and it does not require extrinsic evidence to establish its correctness as such an error since, in any case, there is not such Act of 2019. Also, the citing of a wrong provision of the law or even failure to cite any such law, is not fatal to the outcome of any such proceedings. Therefore, merely citing the wrong law by the CAO would not have a bearing on the fact that the Applicant was duly disqualified by the automatic operation of the Anti-Corruption Act (supra) from holding Public office. The Applicant was subjected to a proper and fair trial by court and convicted as charged. Accordingly, there was no illegality, or at all. The substance of the conviction remains with the same effect. Such a lapse is a technicality that can be ignored within the context of Article 126(2)(e) of the Constitution.
Secondly, the CAO’s decision communicated in the impugned letter was premised on the letter from State House (supra) which correctly cited Section 46 of the Anti-Corruption Act as the correct law under which the Applicant as a Public officer was disqualified from Public Service for a period of ten years upon conviction of the offences under the relevant provisions of the law. Thus, the decision to disqualify the Applicant from Public service was based on the appropriate existing law. Issue No. 1 is answered in the negative.
Issue No. 2: What remedies are available to the parties?
Having found as above, the application has no merit. It is dismissed with costs to the Respondent.
BASHAIJA K. ANDREW