In a notable ruling that took place on 6th September 2024, the High Court Judge Musa Ssekana has reaffirmed Dr. Victoria Abaliwano Walusansa’s status as the Deputy Executive Director of the Uganda Cancer Institute.
This decision is pivotal as Dr. Abaliwano’s appointment had been contested by her superiors, creating a protracted legal dispute. Judge Ssekana’s confirmation underscores the legitimacy of her position and aims to resolve the ongoing tensions surrounding her role within the organization.
The ruling also provides clarity and stability for the Uganda Cancer Institute amid the legal and administrative challenges.
Case background
According to an affidavit filed by Dr. Abaliwano as an Applicant in this case, she reports to the Executive Director (Dr. Jackson Orem) who is also a respondent in this case. Dr. Abaliwano was appointed on promotion to the office of Deputy Executive Director of the Uganda Cancer Institute (1st respondent) by the President of Uganda for an unspecified period and appointment communicated through the then Permanent Secretary of the Ministry of Public Service by letter dated 5th March 2013 and Ref: CP 91612
She stated that the job title was later changed to Deputy Executive Director and date, her appointment has never been terminated and/ or rescinded by the President.
However, on the 19th December 2022, her boss Dr Orem vide Internal Memorandum dated 19th December 2022 titled “Internal Advert No. 2/2022 made and communicated a decision to all heads of department for onward transmission to all staff of/ at UCI to the effect that the Board of Directors sitting on 16th December, 2022 approved Internal Advert No. 2/2022 for existing vacant position and all staff who qualified should apply.
Dr Abaliwano stated that the position of Deputy Executive Director, a position advertised is occupied by her and is not and cannot be vacant as claimed/ alleged at all and the fact is known to the respondents. That the impugned decision was therefore arbitrary, irrational, illegal, unfair, unreasonable, unjustified, invalid, and null and void.
The applicant further stated that the impugned decision of the respondents is ultra vires the authority/ powers of the appointing authority of His Excellency the President of Uganda under Article 172 (1) (a) of the Constitution of Uganda. She further stated that the actions and decisions of the respondents are unjustified, and unnecessary and are aimed at embarrassing her amongst staff at the UCI.
She therefore ran to court and applied to ask the court whether the decision of the respondents communicated in the Internal Memorandum dated 19th December 2022 and Internal Job Advert No. 2/ 2022 declaring and/ or approving vacant the position of Deputy Executive of the 1st respondent and seeking to fill it is illegal, unfair, irrational, arbitrary, unreasonable, invalid and null and void.
However in their submission before the court Dr Orem and Sharon Kwagala, the Principle Human Resource Officer of the UCI, argued that Dr Abaliwano did not exhaust all internal and administrative remedies.
They also argued that it was deponened for the administration of UCI that the office of the Deputy Executive Director fell vacant on the 25th of July, 2022 when Dr Abaliwano accepted the appointment of the Senior Consultant from the President.
The respondents further contended that the office fell vacant by operation of law on the 20th of January 2023. They further stated that the Uganda Cancer Institute Act put a three-year cap on the term of the occupants of the office of the Executive Director and Deputy Executive Director with eligibility to reapply.
They further argued that the Board of Directors exercised its appointing powers under the Uganda Cancer Institute Act and the same should be dismissed for abuse of court.
The Ruling
In his ruling, Justice Ssekana held that while a party who establishes the unlawfulness of an administrative action is generally entitled to a remedial order, the court retains the discretion to determine what is fair and just in the specific circumstances of each case. Based on this principle, the following orders were granted:
The court declared that the respondents’ decision, as communicated in Internal Advert No. 2/2022 and signed by Dr. Orem, which purported to declare vacant and subsequently fill the office of the Deputy Executive Director of UCI, was arbitrary, illegal, unfair, unjustified, and therefore null and void.
The court also issued an order quashing the respondents’ decision as communicated in Internal Advert No. 2/2022, which declared the office of Deputy Executive Director vacant and attempted to fill it, even though the position was currently held by the applicant.
The court prohibited the respondents, including the officers, servants, agents, representatives, or Board of Directors of UCI, from implementing, applying, using, or relying on the decision in Internal Advert No. 2/2022, and from interfering with the Dr Abaliwano’s tenure as Deputy Executive Director, to which she was appointed on March 5, 2013.
The court further prohibited the respondents, including the officers, servants, agents, representatives, board members, or any other persons from victimizing, intimidating, or harassing Dr Abaliwano in any manner related to this application.
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