Wakilii

Ndahura v Attorney General & Anor (MISC .CAUSE NO. 323 OF 2018) 2019 UGHCCD 9 (2019-01-14)

High Court · [2019] UGHCCD 9 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for judicial review seeking certiorari to quash termination of appointment and prohibition restraining implementation of that decision
Decision
Application for judicial review dismissed; applicant's termination from Equal Opportunities Commission upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that disputes regarding tenure of Equal Opportunities Commission members appointed under section 5(2) of the EOC Act 2007 are properly subject to judicial review, not the Employment Act. The Minister acted lawfully in terminating the applicant's appointment because section 10 of the EOC Act forbids commissioners from holding public office elsewhere. The applicant's position on the NWSC Board constituted public office under article 175 of the Constitution, which he was required to relinquish upon appointment to the Commission. The termination was neither ultra vires nor procedurally unfair. Application dismissed.

Outcome

Application for judicial review dismissed; applicant's termination from Equal Opportunities Commission upheld

Facts

The applicant was appointed Vice Chairperson of the Equal Opportunities Commission on 16 December 2015. In November 2018, the Minister of Gender, Labour and Social Development terminated his appointment on discovering he simultaneously served as a director on the National Water and Sewerage Corporation Board. The Minister cited Cabinet Minute No. 16 of 2016 directing that no person should serve on more than one board. Prior to termination, the applicant was invited to a meeting and asked to resign from one position, which he refused. The applicant admitted he held the NWSC directorship before his EOC appointment but maintained there was no legal bar to holding both positions. The applicant sought judicial review to quash the termination decision.

Issues

  1. Whether the applicant's complaint is amenable to judicial review or is an employment dispute under the Employment Act.
  2. Whether the impugned termination of the applicant's appointment on the Equal Opportunities Commission was illegal, ultra vires, irrational and unreasonable.

Orders

  • Application dismissed.
  • Interim order given on 26th November 2018 hereby vacated.
  • Costs of the application to the respondents.

Rules and key headnotes

Judicial Review — Amenability — Constitutional Appointments Distinguished from Employment Disputes
Disputes regarding the tenure of Equal Opportunities Commission members, who are appointed by the President with parliamentary approval under section 5(2) of the Equal Opportunities Commission Act 2007, are regulated by that Act and are amenable to judicial review, not subject to the Employment Act as employment disputes.
Judicial Review — Grounds for Relief — Illegality, Procedural Unfairness, Irrationality
For an administrative decision to attract remedies in judicial review, the applicant must demonstrate that the decision was illegal and ultra vires, that the process was unfair with denial of the right to a fair hearing, or that the decision was irrational such that no reasonable tribunal would have arrived at the same decision.
Equal Opportunities Commission — Statutory Incompatibility — Public Office Disqualification
Section 10 of the Equal Opportunities Commission Act 2007 requires commissioners to relinquish previous offices including public office once appointed to the Commission. A directorship on the National Water and Sewerage Corporation Board constitutes public office within article 175 of the Constitution because emoluments are funded by parliamentary appropriation under section 27 of the NWSC Act.
Ministerial Authority — Termination of Appointment — Acting Within Statutory Powers
Where a commissioner of the Equal Opportunities Commission breaches section 10 of the EOC Act by continuing to hold public office elsewhere after appointment, the line Minister acts lawfully and within statutory authority in terminating that appointment, even though the President is the appointing authority, because the Minister acts in capacity as member of the Executive headed by the President.
Procedural Fairness — Adequate Opportunity to Respond
An administrative decision satisfies the requirement of procedural fairness where the affected person is given opportunity to respond in writing to the concern, is invited to a meeting to discuss the matter, and is given further opportunity to state their position before the final decision is made.

Legislation cited (8)

Cases cited (3)

  • Amal v Equal Opportunities Commission (Miscellaneous Cause No. 233 of 2016)
  • Makuza v Civil Aviation Authority (Miscellaneous Cause No. 205 of 2007)
  • Thugitho Festo v Nebbi Municipal Council (Civil Application No. 15 of 2017)

Full judgment

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

Ndahura Vs Attorney General & Anor (MISC .CAUSE NO. 323 OF 2018) 2019 UGHCCD 9 (2019-01-14)
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.