[2024] UGHCCD 176

# **THE REPUBLIC OF UGANDA**

#### **IN THE HIGH COURT OF UGANDA AT KAMPALA**

# **[CIVIL DIVISION]**

# **JUDICIAL REVIEW MISCELLANEOUS CAUSE NO. 0100 OF 2023**

# **STEVEN HENRY MWANJE :::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT VERSUS**

**THE ATTORNEY GENERAL OF UGANDA:::::::::::::::::::::::::::::::::::::RESPONDENT**

#### **BEFORE; HON. JUSTICE SSEKAANA MUSA**

#### *RULING*

This is an application brought under Article 42 of the Constitution of Uganda, 1995; Sections 33 and 36 of the Judicature Act, Cap. 13; Rules 3,4,5,6,7, and 8 of the Judicature (Judicial Review) Rules SI 13-1 as amended by SI No. 32 of 2019 for orders, and judicial reliefs that:

- *1) A Declaration doth issue that the findings, conclusions, and recommendations and/or directives numbered 8, 9, and 25 in the report of the Select Committee on the State Affairs at the National Social Security Fund of February 2023, adopted by Parliament on 9th March 2023, together with the resolutions numbered 7(c), 8, 16, 25 and 27 in the Resolution of Parliament on the Report of the Select Committee on the State of Affairs at the National Social Security Fund passed on 09th March 2023 against the applicant are tainted with illegality, procedural impropriety, offend the rules of fairness and/or natural justice and are null and void.* - *2) A Declaration doth issue that any attempt by the Respondent and/or its agencies and/or institutions to implement the said recommendations and /or*

*directives numbered 8, 9, and 25 in the report of the Select Committee on the State Affairs at the National Social Security Fund of February 2023, adopted by Parliament on 9th March 2023, together with the resolutions numbered 7(c), 8, 16, 25 and 27 in the Resolution of Parliament on the Report of the Select Committee on the State of Affairs at the National Social Security Fund passed on 09th March 2023, illegal and unfair.*

- *3) A writ of Certiorari doth issue quashing forthwith the findings, conclusions, recommendations and/or directives numbered 8, 9, and 25 in the report of the Select Committee on the State Affairs at the National Social Security Fund of February 2023, adopted by Parliament on 9th March 2023, together with the resolutions numbered 7(c), 8, 16, 25 and 27 in the Resolution of Parliament on the Report of the Select Committee on the State of Affairs at the National Social Security Fund passed on 09th March 2023 made against or affecting the applicant.* - *4) An Order of Prohibition doth issue barring and/or prohibiting the Respondent and/ or any of the respondent's officers, servants, agents, entities or institutions from directly or indirectly or in any other way, acting upon, implementing, or relying on the impugned findings, conclusions, recommendations and/or directives numbered 8, 9, and 25 in the report of the Select Committee on the State Affairs at the National Social Security Fund of February 2023, adopted by Parliament on 9th March 2023, together with the resolutions numbered 7(c), 8, 16, 25 and 27 in the Resolution of Parliament on the Report of the Select Committee on the State of Affairs at the National Social Security Fund passed on 09th March 2023.* - *5) A Permanent Injunction restraining the Respondent and/ or any of the respondent's officers, servants, agents, entities or institutions from directly or indirectly or in any other way, acting upon, implementing, or relying on the impugned findings, conclusions, recommendations and/or directives numbered 8, 9, and 25 in the report of the Select Committee on the State Affairs at the National Social Security Fund of February 2023, adopted by Parliament on 9th*

*March 2023, together with the resolutions numbered 7(c), 8, 16, 25 and 27 in the Resolution of Parliament on the Report of the Select Committee on the State of Affairs at the National Social Security Fund passed on 09th March 2023.*

# *6) An Order doth issue that the respondent pays the costs of this Application.*

The grounds in support of the application are briefly set out in the Notice of Motion and the affidavit in support sworn by Stevens Henry Mwanje contending that;

- 1. That, on 25th January 2023, the Rt. Hon. Speaker of Parliament constituted a Select Committee on the Affairs at the National Social Security Fund (NSSF). The terms of reference of the Select Committee were: - a) to examine the corporate governance structures at NSSF; - b) to examine the circumstances surrounding the appointment of NSSF's Managing Director; - c) to evaluate the status and safety of savers' money in NSSF; - d) to examine the extent of stakeholder engagement in decision-making at NSSF; and - e) to inquire into any other matter incidental to the aforementioned points. - 2. That on 9th March 2023, Parliament adopted the Report of the Select Committee and made several resolutions under the title "Resolution of Parliament on the Report of the Select Committee on the State of Affairs at NSSF. - 3 The applicant is aggrieved by certain parts of the Resolution of Parliament, particularly the findings, conclusions, directives, and/or decisions in recommendations 8, 9, and 25 of the Report, and in resolutions 7(c), 8, 16, 25, and 27 of Parliament. The impugned findings, conclusions, recommendations, directives, and/or decisions affect the applicant's person and/or his rights. - 3. That, despite these resolutions, the Select Committee and Parliament did not invite me to meet, correct, or contradict the manifestly false but prejudicial demands, statements, findings, conclusions, and/or recommendations made against the applicant. I was neither given notice of the allegations against me nor provided with the information and/or materials used against me. Given

the prejudicial nature and gravity of the consequences of these findings and decisions, which include the potential loss of employment and prosecution, I was entitled to and ought to have been given a fair and reasonable opportunity to address the allegations.

- 4. That, as CFO at NSSF, my role is a leadership one involving planning, coordination, implementation, and management of activities. I do not practice accountancy as defined in the Accountants Act 2013. At NSSF, services such as auditing, verification, and certification of financial statements are performed by the Financial Controller, and the Board of Directors signs off the audited financial statements. Therefore, the Select Committee's conclusion that I should step aside, that the Board should terminate my employment, and that I be prosecuted for practicing accountancy without a practicing certificate, is tainted with illegality, arbitrariness, unfairness, and unreasonableness. - 5. - 6. That, several findings, conclusions, recommendations, and/or directives made by the Select Committee and adopted by Parliament, such as the directive for a lifestyle audit and the investigation of all NSSF departments, are generalized, blanket, and fishing expeditions. Since I am neither a Minister of Government nor a Member of Parliament, I have no alternative remedy but to challenge the decisions of the Select Committee and Parliament in this Court by way of judicial review. Even if any alternative relief exists, which I deny, it would be discretionary and not efficient or effective in addressing my grievances.

The Applicant also filed a Supplementary Affidavit in support as follows;

7. That, the Uganda Police has alleged that I caused financial loss to NSSF through fraudulent payments totaling UGX 1.43 billion and operated as CFO without a practicing certificate. Had I been given a chance to address these allegations before the Select Committee and Parliament, their findings and recommendations might have been different, and I would not be subjected to police scrutiny. My role as CFO is limited to authorizing payments, not making decisions on departmental budgets or activities, which are handled at the Board or department level

The Respondent filed an affidavit in reply by *Terugurwa Paul* the Principal Clerk Assistant to the respondent;

- 1) The respondent contends that the Parliament of Uganda, established under the Constitution, discharges its functions through appointed committees. These committees are mandated, among other things, to assess and evaluate the activities of government and other bodies. Select committees, in particular, are empowered to investigate specialized matters of national interest and make recommendations for the general debate of the house. - 2. In response to the Applicant's claims in paragraphs 8-15, the respondent asserts that during the inquiry into NSSF, the management and staff, including the Applicant, were duly represented. The Applicant was given several opportunities to respond to questions regarding financial affairs, operations, qualifications, and job descriptions at NSSF. His submissions were considered, and all related evidence was evaluated by the committee before making its findings. - 3. Regarding paragraphs 16-26 of the Applicant's affidavit, the respondent argues that the Applicant's employment as Chief Finance Officer without being a member of the Certified Public Accountants was irregular and illegal, contravening the Accountants Act 2013. Furthermore, the involvement of state investigative agencies is intended to assess the Applicant's culpability, and he will be afforded further hearings on the detailed allegations contained in the report.

The issues for determination;

- *1) Whether the findings, conclusions, recommendations, and/or directives numbered 8, 9, and 25 in the Report of the Select Committee of Parliament on the Affairs of NSSF and the Resolutions numbered 7(c), 8, 16, 25, and 27 in the Resolution of Parliament dated 09th March 2023 made against the Applicant were made illegally, irrationally, and/or with procedural impropriety or unfairness.* - *2. What remedies are available to the parties?*

# *DETERMINATION*

**Whether the findings, conclusions, recommendations, and/or directives numbered 8, 9, and 25 in the Report of the Select Committee of Parliament on the Affairs of NSSF and the Resolutions numbered 7(c), 8, 16, 25, and 27 in the Resolution of Parliament dated 09th March 2023 made against the Applicant were made illegally, irrationally, and/or with procedural impropriety or unfairness.**

The Applicant's submitted that the select committee was by its nature and purpose investigatory and inquisitorial. Owing to this, the Select Committee's decisions were likely to injure the persons it sought to investigate or inquire in to, include occasioning reputational injury. It was therefore imperative that Select Committee acts judiciously and treats fairly all persons that would be affected by its decisions or proceedings.

The Applicant's counsel contends that all evidence on record shows that the entity under investigation was NSSF, not the Applicant, as reflected in the terms of reference of the Select Committee found in the Hansard of 25th January 2023**, page 6983** (**Annexure "A" to the Affidavit in Reply**). The inquiry specifically focused on NSSF's governance structures, the appointment of its Managing Director, the status and safety of savers' money, stakeholder engagement in decision-making, and related matters. The Applicant's Counsel further submitted that the Applicant was appointed by the NSSF Board **under Section 42 of the NSSF Act**, and only the Board has the authority to consider appointments or dismissals of NSSF staff. The Select Committee, by addressing the Applicant's employment and accusing him of practicing accountancy without a license (as seen in recommendation 9), exceeded its jurisdiction and encroached on the powers of the NSSF Board.

Counsel for the Applicant argued that Parliament violated **Articles 28(1) and 42 of the Constitution, with Article 28** embodying the principles of natural justice and being non-derogable under Article 44(c). Counsel submitted that the Applicant was not given notice of the accusations, which is crucial for preparing a defense, and thus the respondent failed to meet this requirement. Additionally, the Select Committee withheld material evidence, only sharing it as appendices to its final

report, which prejudiced the Applicant and denied him the opportunity to challenge the evidence, thereby violating the principles of natural justice.

The applicant's counsel argued that the Respondent's directive instructing the IGG to conduct an investigation is vague, lacks specific allegations, and unjustifiably shifts from a "lifestyle audit" to a broader "investigation," broadening the scope without reason. The Applicant contends that there is no reasonable suspicion or specific wrongdoing to justify the investigation, describing it as a "fishing expedition" aimed at uncovering wrongdoing without prior evidence. They argue that this investigation is an abuse of power intended to intimidate rather than address real concerns and does not meet the standard of fairness. The Applicant concludes that the directive should be quashed as it is unreasonable and irrational.

The respondent's counsel submitted that the Select Committee operated under **Article 90(1) and (3) of the 1995 Constitution**, following established procedures, specifically **Rule 190 of the Parliamentary Rules of Procedure (S. I No. 30 of 2021)**. Counsel argued that the Applicant was given multiple opportunities to participate, and the decision to investigate and recommend his termination was made through proper parliamentary oversight.

The respondent's counsel submitted that under **Article 94(1) of the 1995 Constitution and Rule 208 of the Parliamentary Rules of Procedure (S. I No. 30 of 2021),** the Select Committee had the power to summon witnesses. The Applicant was invited to participate, and his evidence was considered alongside that of NSSF management. Counsel further argued that the Applicant was given a fair opportunity to be heard, both through his physical appearance before the committee and the exchange of documents, as noted in paragraph 9(b) of the affidavit by Turugurwa Paul.

The respondent's counsel argued, **citing Namuddu Hanifa vs The Returning Officer Kampala District and Others HCM No 7 of 2006** that judicial review focuses on the decision-making process, not the decision itself. They contended that the Applicant's submissions address the merits of the case rather than the process. The Counsel also stated that the issues raised in paragraphs 3-39 of the Applicant's supplementary affidavit pertain to matters of law and decisions by the Select Committee and Parliament, which are not subject to judicial review.

# *Analysis*

# *ILLEGALITY*

The Parliament of Uganda set up a Select Committee on the State of Affairs at the National Social Security Fund. There were clear terms of reference to give guidance on the what was required specifically in the execution of their oversight mandate and constitutional role. The applicant is challenging the exercise of the power of the Select Committee upon its findings and recommendations made against him in respect of his employability and practice as an Accountant.

The respondent contends that the Select Committee operated within its constitutional mandate and followed the established rules of procedure. They argue that the Applicant was given multiple opportunities to participate in the process and that the decision to investigate and recommend his termination was reached following proper parliamentary oversight procedures.

The Select Committee made finding/recommendation /directive 9 which was adopted as resolution 8 of Parliament that;

*"The applicant as CFO failed in his responsibility of ensuring that he obtains accountability for monies disbursed to COFTU and NOTU amounting to UGX 806,525,000/= and that the applicant's appointment is contrary to the Accountants Act, 2013 and NSSF Board should terminate his employment and he be prosecuted by the DPP for the offence of practicing without a practicing certificate."*

The Select Committee was by its nature and purpose investigatory and inquisitorial and their decisions were most likely to injure the persons it sought to investigate or inquire into, including occasioning reputational injury. It was therefore imperative that the select committee acts judiciously and treats fairly all persons that would be affected by its decisions or proceedings. The terms of reference were made clear and concise and the Select committee did not have power to made findings and recommendations not within the terms of reference given by Parliament. The exercise of power not vested under the terms of reference is a reviewable error committed by the decision-maker (select committee) which will lead to an excess of jurisdiction (power). This in turn would imply that all unlawful acts are void on account of their having never had any legal basis.

The Select Committee of Parliament cannot purport to dismiss the applicant who holds the position of Chief Finance Officer as per the terms of Employment in accordance with the qualifications that were deemed sufficient. Their recommendations of the charging the applicant for practicing Accountancy without a practicing certificate was legally erroneous and contrary to the terms of reference. The applicant was holding the position in accordance with the terms and qualifications set by the Board of National Social Security Fund which was never illegal and the findings of the Select Committee were illegal and in excess of the powers so vested by Parliament. In simple terms such recommendation which is unlawful is null, void and without legal effect and the applicants service should only be brought to an end upon expiry of his contract term or lawfully brought to an end by resignation or lawful dismissal.

The principle of legal relativity is built upon the insight that people (whether individuals or officials) are prone (for prudential, among other, reasons) to treat unlawful administrative action as lawful until and unless it is held to be lawful by a court. The court should make affirm the unlawfulness of a flawed decision or administrative act, such that the unlawful act falls to be treated as if it were lawful. See *R (New London College) v Secretary of State for Home Department [2013] UKSC 51, [2013] I WLR 2358*

Indeed, the applicant has been summoned by Uganda Police to answer to charges which have been instigated by the unlawful findings, recommendations of the select committee that the applicant is practicing Accountancy illegally without a practicing certificate contrary to the Accounts Act. Unlawful acts or decisions are merely voidable; they may be treated as valid if all relevant opportunities to establish its unlawfulness have evaporated. The Select Committee misconstrued the Accountants Act to mean that the applicant was practicing accountancy without practicing certificate. The Accountants Act excludes people like the applicant holding positions like him in public entities like NSSF from being persons who practice accountancy. This is a glaring illegality which clouded the Select Committee and it contrary to the Accountants Act.

The powers of court under judicial review is based upon an understanding of the respective constitutional responsibilities of public authorities, parliament and the courts. The constitutional function of the courts in the field of public law, is to ensure so far as they can, that public authorities in question does not misuse its powers or exceed their limits. The powers of the Select Committee on State of Affairs at the National Social Security Fund were confined to the terms of reference and exceeded the powers conferred when they decided to make findings outside their mandate and further making recommendations for the dismissal from employment and also for the arrest and prosecution of the applicant.

The extent of the court's responsibility in relation to a particular exercise of power by a public authority necessarily depends upon the particular circumstances, including the nature of the particular authority in question, the type of power being exercised, the process by which it is exercised, and the extent to which the powers of the authority have limits or purposes which the courts can identify and adjudicate upon. The courts would adopt a restrained approach to review legislative acts of Uganda Parliament, but the courts would not abdicate their primary function of upholding the rule of law and would intervene if necessary to uphold constitutional fundamentals. The rule of law enforced by courts is the ultimate controlling factor on which the constitution is based. See *AXA General Insurance Ltd v HM Advocate [2011] UKSC 46, [2012] 1 AC 868*

The decision or finding and recommendations of the Select Committee are quite oppressive and thus unreasonable since they were arrived at without according the applicant an opportunity to be hard on the alleged findings specifically. The recommendations subject the applicant to an excessive hardship or unnecessarily onerous infringement of his rights and interests. When Parliament decides to choose to deploy powers of constitutional oversight in so draconian fashion that the hardship suffered by affected individuals in consequence will justify the court condemning the exercise as irrational and perverse. See *R (on the application of Khatun) v Newham LBC [2004] EWCA Civ 55, [2005] QB 37*

The focus of attention in these cases will be principally the impact of the decision upon the affected person. The outcome or end-product of the decision-making process will thus be assessed, rather than the way the decision was reached (although the factors taken into account in reaching a decision may also be assumed to be-incorrectly weighed). Since the claim is essentially abuse of power, in the sense of excessive use of power, each case must be considered in the context of the nature of the decision, the function of the particular power and the nature of interests or rights affected. The applicant has been condemned by the findings, recommendations and directives passed by Parliament as result of the Select Committee exercise of powers which affects his employment and equally faces potential prosecution by DPP as recommended in the report.

## *PROCEDURAL IMPROPRIETY*

The applicant was summoned to attend the Parliamentary hearing in the Select Committee as part of the administration and management of National Social Security Fund. It was never specific about his employment and qualifications for the position of Chief Finance Officer. The resultant recommendation made in a general inquiry and hearing would be quite unfair and contrary to the procedural fairness expected at Parliament in accordance with Article 42 of the Constitution which guarantees the right to fair and just treatment. There is a presumption that procedural fairness is required whenever the exercise of a power adversely affects an individual's rights protected under the Constitution. The procedural fairness is not limited to the protection of legal rights in the strict sense; it also applies to more general interests, of which the interest in pursuing a livelihood and in personal reputation. See *Beti Kamya Turwomwe v AG & Anor HCMA No. 209 of 2022; R v Secretary of State for Transport Ex p Greater London Council [1986] QB 556.*

The findings, recommendations and directives made by the Select Committee and adopted by Parliament had the effect of pre-judging of the applicant and it presumed the applicant guilty of committing an offence under the Accountants Act, by recommending arrest and prosecution. The recommendation should have confined itself to causing further investigation and not directing the DPP or Police to cause arrest and prosecution.

Secondly, the applicant contends that he was never given any notice prior to the summoning to appear before the Select Committee about his employment with National Social Security Fund. In simple terms he was unfairly taken by surprise and this prejudiced him when his qualifications were put in issue and could not adequately respond to the issues due to insufficient notice. Where a person is supposed to suffer a particular loss from the decision, the duty of 'candour' is much higher. The major reason for imposing an obligation to give prior notice is usually to afford those affected an opportunity to make representations. The notice must give adequate particulars of what to expect at the hearing so that he can prepare his answers. The applicant needed the notice and sufficient particulars to answer the allegations of lack of qualifications or practicing accountancy contrary to the Accountants Act as the Select Committee found and recommended prosecution thereafter. 'It has to be remembered that a right to be heard is axiomatically worth little without knowledge of the case that has to be met'*(R (Morgan Grenfell & Co Ltd & Co Ltd) v Special Commissioner of Income Tax [2001] EWCA Civ 329)*. See also *Council of Service Unions v Minister of Civil Service [1985] AC 374*.

The Select Committee and Parliament (by adoption) acted with procedural impropriety when they made findings/recommendations/ directives and resolutions against the applicant. If the applicant had been given an opportunity to provide sufficient information, it would have arrived at the findings with factual or evidential or legal basis.

## *IRRATIONALITY*

The Select Committee made a finding/recommendation and directive which states that; *'While the applicant (among others) did not participate in the final approval* *of UGX 1.8 billion budget for donations, he should step aside with immediate effect for investigation by the IGG for offences of abuse of office, corruption, and conspiracy to commit a felony with a view of immediate prosecution'*

This finding is challenged for irrationality and unreasonableness because matters concerning approval of the NSSF budget, annual or supplementary, are invested by statute, in NSSF Board and the Minister under Section 29 of National Social Security Fund. The applicant is neither the NSSF Board/Member thereof nor the Minister as the law provides. The applicant is merely an employee of NSSF pursuant to Section 42 of the NSSF Act. The Applicant has no powers to make the National Social Security budget.

In the case of *Council of Civil Service Union vs. Minister for Civil Service [1985] AC 374 ALL ER 935. Diplock J stated thus;*

"*By 'irrationality', I mean what can now be succinctly referred to as 'Wednesbury's unreasonableness'... It applies to a decision which is so outrageous in defiance of logic or of accepted moral standards that no sensible person who has applied his mind to the question to be decided could have arrived at it. Whether the decision falls within this category is a question judges by their training and experience should be well equipped to answer, or else there would be something wrong with our judicial system.*"

To determine this ground, it is therefore important to assess and analyze whether in arriving at the decision, the body acted in a way so outrageous that it defeated any logic. Wednesbury unreasonableness is associated with extreme behavior.

The decision to make the finding/recommendation/directive against the applicant is not supported by evidence on record which points to a contrary view of how the budgeting process is conducted with NSSF.

Any decision made by a public body can be challenged if it is repugnant to reason. It is not for the court to decide what is reasonable and what is unreasonable. The test of reasonableness is not what the court thinks is reasonable, but 'unreasonable' is something so absurd that no reasonable or sensible person could come to that decision. It is quite possible that two reasonable persons may come to opposite conclusions on the same facts without being regarded unreasonable.

The wide constitutional powers exercisable under the doctrine of separation of powers must be exercised with circumspection since they have far reaching consequences and repercussions on any individual and other arms of government like the Executive and there is inherent limitation in its exercise when making recommendations which may become unenforceable or create hardship in implementation. A decision is irrational in the strict sense of that term if it is unreasoned; if it is lacking ostensible logic or comprehensible justification like in this case. See *Beti Kamya Turwomwe v AG & Anor HCMA No. 209 of 2022*

The committees finding which resulted in making the recommendation to investigate the applicant is not supported by the whole evidence which was available on record and is not capable of reasonably supporting the finding of fact. Therefore, a material mistake or disregard of a material fact in and of itself renders a decision irrational and unreasonable.

The applicant's duties are set out under the Human Resource Manual of NSSF and the Finance Procedures Manual of NSSF. None of the applicant's roles therein include making and approving the NSSF budget. The applicant's role is restricted to monitoring, managing and making payments out of the approved budget. A decision or finding or recommendation may be quashed for material error of fact in the reasoning process. See *R (on the application of March) v Secretary of State for Health [2010] EWHC 765 (Admin); Med. L. R 271, R v (on application of MD (Gambia)) v Secretary of State for the Home Department [2011] EWCA Civ 121*

Therefore, the Select Committee and Parliament grossly misunderstood the applicant's roles, duties and responsibilities as CFO and hence the allegations against him. The select Committee and Parliament ascribed the roles, duties and responsibilities of other offices, being NSSF Internal Audit Department, NSSF Financial Controller, the Auditor General and NSSF Board. This makes the decision, findings, recommendation and directives irrational and unreasonable.

## *What remedies are available?*

Since this application has succeeded on all the grounds raised, the applicant is entitled to the following declaration and order;

*A Declaration doth issue that the findings, conclusions, and recommendations and/or directives numbered 8, 9, and 25 in the report of the Select Committee on the State Affairs at the National Social Security Fund of February 2023, adopted by Parliament on 9th March 2023, together with the resolutions numbered 7(c), 8, 16, 25 and 27 in the Resolution of Parliament on the Report of the Select Committee on the State of Affairs at the National Social Security Fund passed on 09th March 2023 against the applicant are tainted with illegality, procedural impropriety, offend the rules of fairness and/or natural justice and are null and void.*

*An Order of Certiorari doth issue quashing the findings, conclusions, recommendations and/or directives numbered 8, 9, and 25 in the report of the Select Committee on the State Affairs at the National Social Security Fund of February 2023, adopted by Parliament on 9th March 2023, together with the resolutions numbered 7(c), 8, 16, 25 and 27 in the Resolution of Parliament on the Report of the Select Committee on the State of Affairs at the National Social Security Fund passed on 09th March 2023 made against or affecting the applicant.*

This application succeeds on all the grounds and I make no order as to costs.

I so order.

*Ssekaana Musa*

*Judge*

*31st October 2024*