Court ruling on service award stokes controversy 

A High Court judgement, which approved a Parliament decision to reward four commissioners with ‘a service award’ totalling Shs1.7b, has elicited a combustible debate within the legal fraternity.

On May 23, Mr Daniel Bwette, a concerned citizen, petitioned the High Court, seeking declaratory orders that the payment to members of the Parliamentary Commission as a service award was illegal, oppressive, irrational, biased, unfair and void.

He specifically sought a declaration that the meeting by the House commissioners to create an award payment is an abuse of power and in contravention of the principle that a leader should not make a decision when he or she has a pecuniary interest.

The commissioners, who received the payments, include former Leader of the Opposition Mathias Mpuuga and NRM-leaning MPs; Solomon Silwany, Esther Afoyochan, and Prossy Akampulira.

But High Court Justice Douglas Karekona Singiza, basing on the political question doctrine, on Tuesday ruled that the commissioners committed no illegality, saying the payment “was approved by Parliament and formed part of the budget presented by the Executive.”

The political question doctrine is often used by judicial officers to avoid contentious matters that may lead to a confrontation with the Executive or the Legislature.

“In my view, it is probably not right for this court to inquire into the procedure, which the Executive and Parliament adopted while exercising their respective functions. One would expect that both bodies scrutinised the specific payments to be made, but that is beyond the ambit of this application,” he ruled.

But the judge accused the Clerk to Parliament, Mr Adolf Mwesige, of acting beyond his powers to approve the payment.

“Retirement benefits are entitlements and not ex-gratia, it is puzzling why the accounting officer placed them under ex-gratia payments,” Justice Singiza noted. “And if this item was for retirement benefits, then why are the beneficiaries of gratuitous awards mixed up in this item?” he wondered.

Ambiguity issue

However, a section of lawyers have described the judge’s ruling as ambiguous, with some saying it will be successfully appealed.

Mr Ateenyi Tibaijuka, an advocate, told the Daily Monitor that it was absurd for the court to rule that the Clerk to Parliament should be subjected to disciplinary action when he was not a party to the suit.

“This decision flouts Article 44 of the Constitution regarding the non-derogable right to a fair hearing and the rules of natural justice; many people are basing their arguments on the fact that the ‘service award’ followed budgetary processes to deem it legal,” he said.

“But there are judgments from the Constitutional Court that guided that Parliament needed to enact a Bill, which has to be signed by the Executive to make such payments, which was not done, and Parliament continues to operate that way,” Mr Tibaijuka added.

Mr Tibaijuka said the judge’s obiter dicta (expression of opinion) remarks, which are not legally binding, raise eyebrows because they possess a divergent view from the ruling itself, which he termed ‘dangerous’.

Similarly, Mr Ivan Bwowe, a lawyer, said the High Court overstretched its mandate by holding the Clerk to Parliament liable when he was not given a right to a fair hearing, which could constitute one of the grounds for appeal.

Mr Eron Kiiza, who largely practices human rights law, said the judgement could frustrate the citizenry and civil society efforts to combat graft.

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