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Asiimwe v Attorney General (Civil Appeal No. 050 of 2009)

Court of Appeal · [2019] UGCA 132 · 2019 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Civil appeal from the High Court's dismissal of applications for judicial review
Decision
Appeal allowed; appellant reinstated as Chief Administrative Officer with general damages of UGX 135,000,000 and costs

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Holding

The Court of Appeal allowed the appeal, holding that the 2005 amendment to Article 188 of the Constitution, which transferred power over Chief Administrative Officers to the Public Service Commission, had no retrospective effect on officers already validly appointed. The Attorney General's advice requiring sitting officers to reapply and be interviewed for posts they already held had no legal basis and was unconstitutional. The appellant's substantive appointment remained valid, and his resulting retirement was unlawful. The Court ordered reinstatement, quashed the impugned decisions by certiorari, and awarded UGX 135,000,000 in general damages (including compensation for loss of income) plus costs.

Facts

The appellant was appointed and confirmed in the permanent and pensionable public service, ultimately appointed Chief Administrative Officer for Bundibugyo District on transfer effective 1 April 2005. On 30 September 2005, the Constitution (Amendment) Act 2005 amended Article 188, transferring power to appoint, discipline and remove Chief Administrative Officers from the District Service Commission to the Public Service Commission. On the Attorney General's advice, the Public Service Commission required affected officers to reapply for posts they already held and undergo interviews to regularize their appointments. The appellant applied on 7 February 2006 and was interviewed on 23 May 2006. Before results were announced, on 4 October 2006 he was transferred to Kanungu District as Acting Chief Administrative Officer. On 10 November 2006 he was retired from the public service, having apparently failed the interview. His salary at the relevant time was UGX 1,534,543 per month.

Issues

  1. Whether it was necessary for the appellant, already holding a substantive office, to undergo an interview by the Public Service Commission following the 2005 amendment to Article 188 of the Constitution.
  2. Whether the appellant was demoted by his transfer to Kanungu District as Acting Chief Administrative Officer.
  3. Whether the appellant was wrongfully retired or dismissed from the public service.
  4. Whether the appellant was entitled to the prerogative writs of certiorari and prohibition and other remedies sought.

Orders

  • The Judgment of the High Court is set aside and substituted with this Judgment.
  • An order of certiorari quashing the decisions of the Permanent Secretary, Ministry of Local Government contained in letters Ref LG/P/10010 dated 4 October 2006 (deployment as Acting Chief Administrative Officer) and dated 10 November 2006 (retirement from public service).
  • The decision of the Public Service Commission retiring the appellant from the Public Service of Uganda is quashed.
  • The appellant is awarded general damages of shs. 135,000,000/=.
  • The respondent is ordered to reinstate the appellant in office as Chief Administrative Officer with immediate effect.
  • The respondent is ordered to pay costs at this Court and the Court below.
  • The amount in paragraph 4 shall attract interest at 15 percent per annum from the date of Judgment until payment in full.

Key headnotes

Constitutional Amendment — Retrospective Effect — Validity of Pre-existing Appointments
A constitutional amendment transferring appointing authority over public officers does not have retrospective effect on the appointments of officers already validly in office; such officers' appointments remain valid and are not revoked or invalidated by the amendment.
Legal Advice — Attorney General — Decisions Lacking Legal Basis
Where the Attorney General's advice has no basis in law, decisions taken on its strength are of no legal effect; requiring an officer to re-apply and be interviewed for a post lawfully held is unconstitutional and the results of such a process are void.
Certiorari and Prohibition — Quashing Unlawful Administrative Decisions
An order of certiorari will issue to quash administrative decisions made without legal basis, and a public officer unlawfully retired pursuant to such decisions may be reinstated where his substantive appointment was never validly revoked.
Wrongful Dismissal — Compensation — Duty to Mitigate
A person wrongly dismissed is entitled to compensation for financial loss suffered, subject to the duty to mitigate by seeking other employment; the compensation is based on, but not necessarily equal to, the emoluments the employee would have earned.

Legislation cited (3)

  • Constitution of Uganda Article 188 (as amended)
  • Constitution (Amendment) Act 2005
  • Rules of the Court of Appeal Rule 30

Cases cited (4)

  • Fr. Narcensio Begumisa and Others v Eric Tibebaaga (Civil Appeal No. 17 of 2002)
  • East Africa Airways vs Knight 1975 EA 165
  • Bank of Uganda v Fred Masabi and Others (Civil Appeal No. 3 of 1998)
  • David Iyamulemye v Attorney General (Civil Appeal No. 8 of 2016)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.