The Court of Appeal has quashed a decision that retired the former Coordinator of Intelligence Agencies David Sejusa from the Uganda Defense Forces- UPDF.
The decision was made by High Court Judge Margaret Oumo Oguli more than five years ago, in relation to a suit filed by Gen Sejusa against the UPDF Commissions and Promotions board for refusing to retire him from the military following his application.
The Commissions Board, formed under the UPDF Act 2005, and chaired by the Chief of Defense Forces, is responsible for the retirement and promotion of army officers. But in his suit, filed in November 2015, Sejusa indicated that he had earlier applied for retirement through the board and received no response within the mandatory 90-days.
Sejusa then asked the court to declare that he ceased to be a UPDF officer on April 8, 2015, when he applied to retire. In his suit, Sejusa explained that the refusal to pay him his salary, since April 2013, the withdrawal of his uniforms, housing and transport allowances and guns among others, tantamount to constructive discharge from the army.
He asked the court to order the UPDF Commission and the Attorney General, to hand him a discharge certificate as a sign that he has retired from the army. At the time, he questioned why many of his comrades, among them General Yoweri Museveni, Major Gen Jim Muhwezi, Major General Benon Biraro, Lieutenant General Henry Tumukunde, Major General Kahinda Otafiire and Major Gen Mugisha Muntu, had been retired, yet he could not benefit from the same.
He added that he was instead treated as if he is in military prison after 34 years of diligent service and accused the top leadership of the UPDF of infringing on his fundamental human right by refusing to retire or employ him.
In May 2016, justice Oguli affirmed that Sejusa was retired from the army because at the time, he was neither engaged, occupied, posted or even paid by the UPDF. Oguli faulted the UPDF for trampling on Sejusa’s fundamental right to retirement and ordered that the General be paid 750 million Shillings in compensation for the grievances as well as the salary arrears.
Sejusa had demanded 1 billion Shillings in compensation and damages for normal loss, as well as punitive damages for consistent torture and arrest. But the army through Senior State Attorney Max Kalemera argued that Sejusa was still an active serving officer, a status that remains unchanged until one gets a discharge certificate.
The decision of the High Court was, however, challenged by the Attorney General on grounds that the High Court judge erred in law and fact for finding that Sejusa ceased being an officer of the UPDF on the day he applied for retirement. The judge was also faulted for having ruled that Sejusa was entitled to pension contributions yet there is no such contribution in the UPDF.
It’s on the basis of this that a panel of three Court of Appeal Justices comprised of Christopher Izama Madrama, Irene Mulyagonja and Monica Mugenyi Quashed Oguli’s orders. According to the Justices, the High Court expanded its administrative jurisdiction to engage itself in matters concerning the retirement of officers which is a preserve of the UPDF Commission’s, Promotions Board as per the UPDF Act.
To the Justices, Sejusa ought to have waited for feedback from the board before petitioning the High Court seeking to be discharged because there were pending correspondences between his lawyers and the President.
According to Justice Madrama, there was no decision from the Board that Sejusa was challenging in the High Court and therefore there was nothing to subject to judicial review. Instead, he says there was a delay in communication which was a violation of section 66 of the UPDF Act.
“…The basis of his action tested on the question of whether his resignation was effective. This did not give jurisdiction to the High Court under its administrative review jurisdiction to delve into other matters to be dealt with by statutory authorities prescribed in the UPDF Act with the mandate to deal with matters of retirement and retirement benefits of a General in the UPDF”, Madrama wrote in the lead decision.
The Court of Appeal added that saying retirement of a soldier or officer of the armed forces is a broad and complex process that involves many players such as the body that is required to look into the issues of gratuity to determine how much a retiring officer should get, among others.
However the Judges have noted that the silence of the board regarding Sejusa’s retirement is wrong and if he so wishes, he can challenge the same by filing an ordinary suit.
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