Busulwa v Public Service Commission (Miscellaneous Cause 7 of 2023) [2024] UGHC 230 (16 March 2024)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MUKONO **MISCELLANEOUS CAUSE NO. 007 OF 2023** IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW SSEKING DECLARATIONS AND PREROGATIVE ORDERS OF CERTIORARI, MANDAMUS AND PROHIBITION

BUSULWA SAMUEL::::::::::::::::::::::::::::::::::::

#### **VERSUS**

PUBLIC SERVICE COMMISSION ::::::::::::::::::::::::::::::::::::

# BEFORE: HONOURABLE JUSTICE DAVID MATOVU **RULING**

#### Introduction

1. Busulwa Samuel (hereinafter referred to as the "Applicant") filed Miscellaneous Cause No. 007 of 2023 in the High Court of Uganda at Mukono against Public Service Commission (hereafter referred to as the "Respondent") seeking orders of certiorari, mandamus and declarations relating to the appointment of Mr. Kibuuka Godfrey as the Chairperson of theMukono District Service Commission, Mr. Arthur BlickMugerwa as a member representing persons with 1 | Page

disabilities, Mr. Semakula Badru Idris and Ms. Nakacwa Lydia as members of the commission.

The Applicant sought a declaration that Ms. Kiondo Stella Margaret was not fit and proper person to represent urban authorities on the commission and in her place Ms. Katumba Sarah should be appointed to represent the urban authorities on the Mukono District Service Commission.

The Applicant sought for general and aggravated damages and costs of this cause.

#### **Background facts**

- 2. The Mukono District Service Commission (hereinafter referred to as the "MDSC") term of office expired on 12<sup>th</sup> March, 2022 and thereafter the process of reconstructing the MDSC commenced. - 3. The Mukono District Council submitted five (5) names to the Respondent to constitute the MDSC and these were:- - Mr. Kibuuka Godfrey Kisuule as Chairperson $i$ - Mr. Arthur Blick Mugerwa as a member representing ii) persons with disabilities - iii) Mr. Semakula Badru Idris as a member

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- Ms. Nakacwa Lydia as a member $iv$ - Ms. Sarah Katumba as a member representing urban $\mathbf{v}$ authorities. - 4. While the Respondent was considering the above names a one Ms. Kiondo Stella Margaret petitioned the Public Service Commission contending that she was the person lawfully elected as a member to represent the urban authorities and therefore the name of Ms. Sarah Katumba was wrongly submitted by the Mukono District Council to the Respondent as the member representing the urban authorities on MDSC. - 5. The said Kiondo Stella Margaret also filed Miscellaneous Cause No. 048 if 2023 before this Honourable Court challenging the process vide which she was removed from the MDSC. - 6. The Respondent vide their decision dated 19<sup>th</sup> January, 2023 found merit in the petition of Ms. Kiondo Stella Margaret as the person lawfully elected to represent the urban authorities on the MDSC. - 7. As a matter of fact the Respondent approved and even inducted Mr. Kibuuka Godfrey Kisuule, Mr. Arthur Blick 3 | Page

Mugerwa, Mr. Semmakula Badru Idris and Ms. Nakacwa Lydia but did not confirm Mr. Kibuuka Godfrey Kisuule as the Chairperson of the MDSC.

- 8. During its Council meeting of 13<sup>th</sup> June, 2023 the Mukono District Council complied with the directions of the Respondent and rescinded the appointment of Ms. Sarah Katumba as the representative of urban authorities and replaced her with Ms. Kiondo Stella Margaret which decision was challenged in by Miscellaneous Cause No. 020 of 2023 which sought to block any discussion or debate on matters of MDSC by the Mukono District Council. - 9. Court notes that the absence of the MDSC adversely affects the smooth running of Mukono District Council and this state of affairs cannot be allowed to prevail.

#### Legal representation

$10.$ Mr. Kenneth Nsubuga represented the Applicant while Mr. Mark Muwonge represented the Respondent.

### Evidence of the Applicant

- 11. The affidavit in support of this cause by the Applicant deponed on 20<sup>th</sup> February, 2023 in great detail narrates the background facts stated hereinabove. - The said affidavit also shows how the nomination of Ms. 12. Kiondo Stella Margaret as a member of MDSC is illegal and procedurally improper and a misinterpretation of section 54 (2) of the Local Government Act. - 13. The Applicant challenges the jurisdiction of the Respondent to determine who should fit on the MDSC. - In the affidavit in rejoinder the Applicant goes ahead to 14. state that Ms. Kiondo Stella Margaret had corruption, dishonestly and Integrity allegations against her by residents of Mukono.

### Evidence of the Respondent

- The Respondent filed an affidavit in reply deponed by 15. John Geofffrey Mbabazi, the Secretary of the Respondent and briefly states as follows;- - Mukono District Council selected 03 (Three) 16. The members of the District Service Commission and submitted 5 | Page

said names to the Respondent for approval of the appointment.

- That during the Respondent's meetingheld on the 18<sup>th</sup> 17. day of August, 2022, only two names of the three were approved to wit; Eng. Kibuka Godfrey Kisuule as member and Ms. Nakachwa Lydia as a representative for women. - Mr. Ssemakula Badru Idris who had been proposed as 18. chairperson was not approved. - As a result of the above, the MDSC has only three 19. members i.e. Eng. Kibuka Godfrey Kisuule as an ordinary member, Ms. Nakachwa Lydia as a representative for women and Mr. Arthur Blick Mugerwa as member representing Persons with Disability. - That as it stands currently, the MDSC does not have a 20. Chairperson and a member representing Urban Authorities. - That on the 25<sup>th</sup> day of August, 2022, the Respondent 21. received an appeal from Ms. Kiondo Stella Margaret against the Mukono District Leadership for failing toforward her name the District Council for appointment as a member to representing Urban Authorities.

- That after careful study and consideration, members 22. guided that the District Chairperson forwards the name of Ms. Kiondo Margaret Stella to the District Council to avoid denying the people of Mukono the service they deserved. - 23. However, the Chairperson Mukono District declined to the said guidance and instead stated that the District Executive would appoint its own representative for urban authorities - On the 04<sup>th</sup> of October, Mukono District made a 24. submission for approval of appointment of Eng. Dr. Kibuka Godfrey Kisuule as Chairperson to the District Service Commission. - Further, on the 14<sup>th</sup> of December, 2022, Mukono District 25. Executive, without the involvement and approval of Urban Councils nominated and submitted for approval a one Sarah Katumba as representative for urban authorities to the MDSC. - However, the Respondent took a decision not to consider 26. piece meal submissions of members in order to enforce full composition of District/ City Service Commissions and a circular to this effect was issued and circulated to all Districts and cities.

27. That thisisnot a proper case for the grant of the orders sought and as such the same ought to be dismissed.

## Submissions

Both parties filed written submissions which this Court 28. has carefully read and considered while arriving at its decision

## **Issues**

Whether this application fulfills the conditions for judicial 29. review?

What remedies are available to the parties? $30.$

## Decision of Court

Judicial review is considered an oversight role that courts 31. perform in regard to processes by which pubic bodies and officialsexercising statutory functions make decisions.

The principles governing judicial review are well settled. 32. Judicial review is not concerned with the decisionin issue but with the decision making process through which the decision was made.

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- It should be noted that the orders sought under judicial 33. review do not determine private rights and Court grants them depending on the circumstances of a case where there has been violation of the principles of natural justice. See John Jet Tumwebaze versus MakerereUniversity Council and 2 others Misc. Cause No. 353 of 2005, DOTT Services Ltd versus The Attorney General Misc. Cause No. 125 of 2009. - 34. Judicial review generally operates in three ways. The first deals with the question of whether there is a breach of law, implying that a decision- maker must be aware of the nature and extent of legal parameters within which he or she isoperating; illegality. - The second deals with the question of whether a decision 35. was unreasonably wrong. In this regard, he Court is concerned with whether the decision was so shockingly illogical that no one in his or her right mind would have made a similar decision; irrationality.

The third deals with procedural impropriety which entails 36. that the decision- making authority did not observe the basic principles of fair hearing, including adherence to the 9 | Page

established rules by which jurisdiction is conferred, even where such failure does not involve any denialof natural justice. See Council of service Union versus Minister for Civil service (1984)3 ALL ER 935

- Illegality as a ground for juridical review simply put is 37. that the law regulates the decision-making powers of public bodies and they must give effect to that. - 38. If they do not, then they have acted illegally / ultra vires and as such are subject to judicial review. See Council of Civil Service Unions versus Minister for the Civil Service (1985) AC 375. - 39. In the instant case, Counsel for the Applicant submitted that the Respondent misinterpreted and misapplied section 52 (2) of the Local Governments act when it stated in its decision that the role of the Mukono District Executive Committee is simply to present a name to the District Council for consideration - Counsel further submitted that the power to recommend $40$ is discretionary and not mandatory.

- However, the correct position of the law is found in 41. Section 54(2) of the Local Governments Act as amended. - Section $54(2)$ (b) is to the effect that a member of a 42. district service commission representing a urban authority shall be appointed by the District Council on the recommendation of the urban Council. - Section $54(2)$ (c) further states that in the case of a 43. district with more than one urban authority, executive committee members in that district shall recommend a member to be appointed to the district service commission by the District Council. - This Court disagrees with Counsel as regards the 44. interpretation of Section 54(2) (c) of The Local Government Act. - As regards a District with only one urban authority, it is $45.$ straight forward; the appointment is done by the District Council. - However, where there are several urban authorities and/ 46 or town councils, like it is the case ofMukono District, it is only fair and logical that all urban councils are involved in the election of their representative.

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- 47. This is the background from which the executive committee members of the various urban councils elected a one Ms. Kiondo Stella Margaret as their representative to the MDSC. - Therefore, in this instant cause, the Respondent did not 48. act illegally and as such this ground fails. - 49. As regards irrationality, themain reason why the Respondent did not approve the appointment of Engineer Dr. Godfrey Kibuuka Kisule as a chairperson of the MDSC was that the Respondent wanted to have a fully constituted MDSC submitted to them which reason court finds proper. - The Circular issued by the Respondent was not restricted $50.$ to Mukono District alone but applied to all other districts and cities in Uganda like that had not submitted or had partially submitted names of members for approval to the respectiveDistrictService Commissions. - This Court does not find this decision by the Respondent $51.$ irrational and as such this ground is also not proved.

## Conclusion

- 52. In the final result, this application partially succeeds with the following orders;- - Court finds the following members as lawfully appointed 53. without contest and an order of mandamus is hereby issued against the Respondent to approve the following persons as members of the MDSC - Engineer Dr. Kibuuka Godfrey Kisuuleas Chairperson $i$ - Mr. Arthur BlickMugerwa as a member representing ii) persons with disabilities - Mr. SemakulaBadruIdris (member) iii) - Ms. NakacwaLydia (member) $iv)$ - Court having found a merit in Miscellaneous Cause No. 54. 048 of 2023 and allowing the same hereby orders that Ms. Kiondo Stella Margaret also joins the above (4) members mentioned hereinabove as representative of urban $\mathbf{a}$ authorities to the MDSC. - The Respondent is ordered to approve the above MDSC in 55. order to avoid any further delay.

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Miscellaneous Cause No. 007 of 2023 is partially allowed 56. in respect to four (4) members of MDSC but the appointment of Ms. Katumba Sarah is hereby rejected and in her place Ms Stella Margaret is hereby appointed as Kiondo the representative of urban councils to MDSC.

- Court finds Miscellaneouscause No. 0024 of 2023 and all 57. applications arising therefrom to have been ably dealt with herein since it relates to the same subject matter and issues. - 58. Court also finds that having ably decided the instant cause, Miscellaneous Cause No. 0020 of 2023 is rendered redundant.

Each party shall bear its own costs of this cause. 59.

day of $M$ 2024. Dated this

David Matovu **JUDGE**