Wakilii

Abaliwano v The Uganda Cancer Institute and Another (Judicial Review Miscellaneous Cause 5 of 2023)

High Court · [2024] UGHCCD 147 · 2024 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for judicial review of the decision to advertise the applicant's position as vacant
Decision
Application granted; impugned decision quashed; applicant's tenure as Deputy Executive Director affirmed

Observed later treatment

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Holding

The court held that the Board of Directors of the Uganda Cancer Institute acted illegally and unconstitutionally in advertising the position of Deputy Executive Director as vacant while the applicant, who was appointed by the President under Article 172(1)(a) of the Constitution, remained in post. The applicant's subsequent promotion to Senior Consultant was an elevation in rank supporting her existing role, not a removal from office. Only the President who appointed her has power to remove her. The decision to advertise the position was quashed and the respondents were prohibited from implementing it.

Outcome

Application granted; impugned decision quashed; applicant's tenure as Deputy Executive Director affirmed

Facts

The applicant was appointed Deputy Director of Uganda Cancer Institute by the President on 5 March 2013 under Article 172(1)(a) of the Constitution. On 25 May 2022, the President appointed her on promotion to Senior Consultant (Medical Oncology), which she accepted. She continued in her post as Deputy Executive Director while holding the new rank. On 19 December 2022, the Board of Directors approved Internal Job Advert No. 2/2022 advertising her position as Deputy Executive Director as vacant and inviting applications. The applicant challenged this decision by way of judicial review, contending that only the President who appointed her could remove her from office, and that her promotion to Senior Consultant was an elevation in rank, not a removal from her existing post. The respondents argued that the position fell vacant when the applicant accepted promotion to Senior Consultant and that the Uganda Cancer Institute Act limited the term of the Deputy Executive Director to three years with eligibility for reappointment.

Issues

  1. Whether the suit against Dr. Jackson Orem, the 2nd Respondent, is statute barred under section 30 of the Uganda Cancer Institute Act.
  2. Whether the suit is premature because the applicant did not exhaust all internal and administrative remedies.
  3. Whether the decision of the respondents communicated in Internal Memorandum dated 19th December 2022 and Internal Job Advert No. 2/2022 declaring the position of Deputy Executive Director vacant is illegal, unfair, irrational, arbitrary, unreasonable, invalid and null and void.
  4. What remedies are available to the applicant.

Orders

  • A declaratory order that the decision of the respondents communicated in Internal Advert No. 2/2022 purportedly declaring vacant the office of Deputy Executive Director is arbitrary, illegal, unfair, unjustified, and null and void.
  • An order of certiorari issues removing and quashing forthwith the decision communicated in Internal Job Advert No. 2/2022.
  • An order of prohibition issues barring the respondents and their officers from implementing, applying, using or relying on the impugned decision and from interfering with the applicant's holding of the position of Deputy Executive Director.
  • An order of prohibition issues barring the respondents from victimizing, intimidating or harassing the applicant in any way arising from this application.
  • The applicant is granted costs of the application.

Rules and key headnotes

Presidential Appointments — Article 172(1)(a) — Power to Remove Officers
Where the President appoints a public officer under Article 172(1)(a) of the Constitution, only the President or a person to whom the President has delegated that power may remove the officer from office. The appointing authority retains the exclusive power to disappoint.
Judicial Review — Preliminary Objections — Section 30 Uganda Cancer Institute Act — Qualified Immunity
The immunity from personal liability provided under section 30 of the Uganda Cancer Institute Act for members of the Board and staff extends only to acts done in good faith in the performance of their functions. Whether an act was done in good faith is a question going to the merits of the case and cannot be determined as a preliminary point of law.
Judicial Review — Exhaustion of Remedies — Rule 7A(1)(b) Judicature (Judicial Review) Rules
The rule requiring exhaustion of alternative remedies before judicial review is a discretionary rule, not a bar to jurisdiction. Where the enabling statute provides no internal mechanism for challenging decisions of the decision-making body, and where the applicant seeks redress against that body itself, the court may exercise its discretion to entertain the application without requiring exhaustion of internal remedies.
Public Service — Promotion to Higher Rank — Effect on Existing Office
A promotion by the President to a higher rank (such as Senior Consultant) which does not specify a new posting or deployment is an elevation supporting the officer's existing role, not a removal from the office held. The officer continues to perform the same functions at an elevated rank with improved terms of service.
Judicial Review — Illegality — Unlawful Exercise of Power — Improper Purpose
A decision by a public body is illegal where the body exercises a power for an improper purpose, including where the decision-maker is motivated by personal animosity towards the affected person or acts to achieve an object other than that for which the power was conferred. The exercise of public power must be for proper purposes and with clear motives intended under the enabling law.
Supremacy of the Constitution — Article 2 — Uganda Cancer Institute Act
The enactment of a statute such as the Uganda Cancer Institute Act cannot repeal, dilute or override the Constitution. Where an officer's appointment is constitutional under Article 172(1)(a), the terms of a subsequent statute cannot be used to remove the officer from office in a manner inconsistent with the Constitution.
Interpretation Act Section 24 — Power to Appoint Includes Power to Remove
Under section 24 of the Interpretation Act, where any Act confers a power to make appointments, the authority having power to make the appointment also has power to remove, suspend, reappoint or reinstate any person appointed in the exercise of that power, subject to any limitations or qualifications affecting the power of appointment.

Legislation cited (34)

Cases cited (8)

  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696
  • Water & Environment Media Network (U) Ltd and 2 Others v National Environmental Management Authority & Another (Consolidated Miscellaneous Causes No. 239 & 255 of 2020)
  • Ojangole Patricia & 4 Others v Attorney General (High Court Miscellaneous Cause No. 303 of 2013)
  • Twinobusingye Severino v Attorney General (Constitutional Petition No. 47 of 2011)
  • Troop v Dulles 356 US 86
  • Barbarah Imaryo v Attorney General (High Court Miscellaneous Cause No. 349 of 2020)
  • ACP Bakaleke Siraji v Attorney General (High Court Miscellaneous Cause No. 212 of 2018)
  • Council of Civil Service Unions v Minister for the Civil Service [1985] AC 375

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Abaliwano v The Uganda Cancer Institute and Another (Judicial Review Miscellaneous Cause 5 of 2023) [2024] UGHCCD 147 (6 September 2024)
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.