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Court of Appeal quashes decision to retire Gen Sejusa from UPDF

Kampala, Uganda | THE INDEPENDENT | The Court of Appeal has today quashed a decision that retired the former Coordinator of Intelligence Agencies David Sejusa from the Uganda Defense Forces- UPDF.

The decision to retire him had been made in 2016 by High Court Judge Margaret Oumo Oguli in relation to a suit filed by Gen Sejusa (formerly Tinyefunza) 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, is chaired by the Chief of Defence Forces and 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 (AG), 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 had been retired and he could not benefit from the same, adding that he was instead treated as if he is in military prison after 34 years of diligent service.

He listed General Yoweri Museveni, Major Gen Jim Muhwezi, Major General Benon Biraro, Lieutenant General Henry Tumukunde, Major General Kahinda Otafiire and Major Gen Mugisha Muntu, among others as some of his comrades who had been retired from the army.

In March 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 sh1 billion 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.

It’s against this background 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.

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