Wakilii

Basheka v Uganda Management Institute Governing Council and Another (Misc. Cause No. 007 of 2012)

High Court · [2013] UGHC 281 · 2013 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for judicial review by way of certiorari and mandamus challenging appointments of Directors at Uganda Management Institute
Decision
Appointments quashed by order of certiorari; matter remanded to Council for proper appointment process

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that the renewals of the contracts of the Director of Programmes and Student Affairs and the Director of Finance and Administration by Uganda Management Institute Governing Council were irregular and illegal. The appointments violated procedural requirements under the Frameworks and Procedures for Appointment and Renewal of Contracts for Directors, which required advertisement, a search committee, and senate involvement. The Director of Programmes position required a PhD, which Mr. Kasozi did not possess, and the Director of Finance and Administration, Mr. Bbosa, was 63 years old and ineligible for a five-year renewal. Both renewals should have been treated as fresh appointments with full compliance with established procedures.

Outcome

Appointments quashed by order of certiorari; matter remanded to Council for proper appointment process

Facts

Dr. Basheka Benon, a Senior Lecturer and Head of Higher Degrees Department at Uganda Management Institute, challenged the renewal of contracts for two Directors on 16 December 2011. The 1st respondent renewed Mr. Kasozi Mulindwa as Director of Programmes and Student Affairs and Mr. Deo Lukonji Bbosa as Director of Finance and Administration without following the Frameworks and Procedures for Appointment and Renewal of Contracts for Directors adopted on 2 September 2011. These procedures required establishment of a search committee, senate involvement, advertisement, and interviews. Mr. Kasozi did not possess a PhD, which was the prescribed qualification for the post of Director of Programmes, a position that supervises academic staff including Senior Lecturers. Mr. Bbosa was 63 years old at the time of renewal and was given a two-year contract instead of the statutory five-year term. The applicant contended he was deprived of an opportunity to apply for positions for which he was qualified.

Issues

  1. Whether the appointment/renewal of the two directors' contracts was proper.
  2. Whether the applicant was aggrieved by the appointment/renewal.
  3. What remedies are available to the parties.

Orders

  • A declaration that the appointment of Kasozi Mulindwa as Director Programmes and Students Affairs and Deo Lukonji Bbosa as Director of Finance and Administration by the 1st respondent on 16th December 2011 was illegal and irregularly and wrongly made in contravention of the Frameworks and Procedures of the Council and were irrational and unfair and ought to be quashed.
  • An order of certiorari to call and quash the irregular and illegal appointments and minutes of the 1st respondent of the appointment of the aforesaid Directors.
  • Costs of the application awarded to the applicant against the 1st and 2nd respondents.

Rules and key headnotes

Judicial Review — Grounds — Illegality, Irrationality, and Procedural Impropriety
The grounds upon which administrative action is subject to control by judicial review are illegality, irrationality, and procedural impropriety. Illegality means the decision maker must understand correctly the law that regulates his decision-making power and must give effect to it. Irrationality means a decision so outrageous in its defiance of logic or accepted moral standards that no sensible person who applied his mind could have arrived at it. Procedural impropriety includes failure to observe procedural fairness and failure to observe procedural rules expressly laid out in the legislative instrument.
Judicial Review — Public vs Private Law — Statutory Underpinning
For judicial review to apply, the act sought to be restrained must be of a public nature. Judicial review is only available where an issue of public law is involved. It is not possible to equate public law with the interests of the public per se. Usually it is the statutory underpinning that injects an element of public law into a dispute. Where a contract with a public institution is governed by statutory provisions regulating appointments, the public has an interest in seeing that the statutory body acts according to law, and judicial review is available.
Judicial Review — Locus Standi — Sufficient Interest
A staff member of a public institution who possesses the qualifications for a directorship and is deprived of participating in the appointment process by the institution's failure to follow prescribed procedures has sufficient interest to apply for judicial review of the administrative decision. The important consideration is not that the applicant must get the job, but that the public institution must follow the law and appoint qualified and competent persons.
Public Appointments — Frameworks and Procedures — Renewal vs Fresh Appointment
Where an appointee to a directorship was initially appointed as a stop-gap measure without possessing the basic qualifications required for the post, and the institution later adopts elaborate frameworks and procedures for appointments and renewals, the renewal of such appointee's contract cannot be treated as automatic based on performance alone. Where the appointee still lacks the basic qualifications at the expiry of the initial term and elaborate procedures are now in place, the institution should treat the renewal as a fresh appointment and follow the full procedure including advertisement and establishment of a search committee.
Public Appointments — Qualifications — Academic vs Administrative Posts
The post of Director of Programmes and Student Affairs at a tertiary institution, whose duties include providing strategic leadership to training, research and consultancy functions, spearheading quality assurance, supervising Heads of Department, and overseeing the training interests of participants, is not a purely administrative post but is majorly academic in nature. Where the law and quality assurance frameworks require a Senior Lecturer to possess a PhD, and the minimum requirement for Head of Department is the rank of Senior Lecturer, a Director of Programmes supervising academic staff must possess a PhD.
Modified Statutory Provisions — Statutory Instruments — Effect of Ministerial Modification
Where a parent Act provides an appointment process involving multiple entities (Chancellor, University Senate, and University Council), and the Minister by statutory instrument modifies the provisions to simplify the process to involve a single entity (Institute Council), the court must examine the Minister's demonstrated intention. Where the Minister duplicated certain recommendation functions for one category of officers but did not do so for another category, the simplified process applies and the entities omitted from the modified provision need not be involved.
Judicial Review — Time Limits — Cause of Action
An application for judicial review must be made within three months from the date when the grounds of the application first arose. Where an applicant challenges appointments made on a specific date and files the application within 33 days of that date, the application is filed in time. The mention of earlier appointments in affidavit evidence merely to provide background does not render the application time-barred where the relief sought relates solely to the recent appointments. A renewal or re-appointment is an appointment in its own right and can be challenged without reference to earlier appointments.

Legislation cited (21)

  • Judicature Act Cap 13 s.36
  • Judicature Act Cap 13 s.37
  • Judicature Act Cap 13 s.38
  • Judicature (Judicial Review) Rules 2009 r.3
  • Judicature (Judicial Review) Rules 2009 r.5(1)
  • Judicature (Judicial Review) Rules 2009 r.6
  • Judicature (Judicial Review) Rules 2009 r.6(2)
  • Judicature (Judicial Review) Rules 2009 r.7
  • Constitution of Uganda Art. 42
  • Universities and Other Tertiary Institutions Act 2001 s.31
  • Universities and Other Tertiary Institutions Act 2001 s.31(2)
  • Universities and Other Tertiary Institutions Act 2001 s.32
  • Universities and Other Tertiary Institutions Act 2001 s.32(1)
  • Universities and Other Tertiary Institutions Act 2001 s.32(2)
  • Universities and Other Tertiary Institutions Act 2001 s.54(3)
  • Universities and Other Tertiary Institutions Act 2001 s.54(4)
  • Universities and Other Tertiary Institutions Act 2001 s.82(c)
  • Universities and Other Tertiary Institutions Act 2001 s.82A
  • Universities and Other Tertiary Institutions Act 2001 s.119
  • Universities and Other Tertiary Institutions (Amendment) Act 2006
  • Universities and Other Tertiary Institutions (Modified Provisions applicable to Uganda Management Institute) Statutory Instrument No. 22 of 2006

Cases cited (9)

  • Kahoora Enterprises Ltd v Toro Mityana Tea Company (HCCS No. 1 of 2006)
  • URA Vs URA HCMC No. 8 of 2012
  • Makefe International Ltd v His Eminence Cardinal Nsubuga and Another (CACA No. 4 of 1981)
  • Sekebwa Haruna v Makerere University Guild and Others (HCMA No. 70 of 2006)
  • John Jet Tumwebaze v Makerere University Council and 3 Others (Civil Application No. 353 of 2005)
  • Kenya National Examination Council Vs Republic, Civil Appeal No. 266 of 1996 (Kenya)
  • Council of Civil Service Union v Minister for the Civil Service [1985] AC 410
  • Fr. Francis Bahikirwe Muntu & 15 Others Vs Kyambogo University
  • Auto Garage Vs Motokov

Full judgment

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Basheka v Uganda Management Institute Governing Council and Another (Misc. Cause No. 007 of 2012) [2013] UGHC 281 (25 March 2013)
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.