IGG cannot stop Governor from exercising his duties

Monday April 16 2018

IGG cannot stop Governor from exercising his duties

John Ken–Lukyamuzi  

By John Ken–Lukyamuzi

I was a victim of circumstances related to misjudgment by the Office of the Inspector of Government during my legislative days and I still recall the pronouncements of torture which would be subjected to me by that office. I, therefore, owe a legal commentary to the general public on the recent rift between the IGG and the Governor of Bank of Uganda.
The Black Law Dictionary (9th edition) defines the Ombudsman as an official appointed to investigate and report on the activities of public institutions, and the general rule on the same, is that such a person has no powers to reverse administrative action. That definition is not in any way different from what the Uganda Constitution states in Articles 225, 226 and 227 of the same Law.

The Bank of Uganda under Articles 162 and 161 of the same Constitution exists as a public institution with peculiar characteristics intended to enable it to regulate Uganda’s banks let alone promote and maintain a stable monetary economy free from the influence of unscrupulous politicians. That is why under the same provisions, the framers of the Constitution freed the Bank of Uganda from the direct control of any person or authority in pursuance of the independence goal.

Under Article 227 of the Constitution, the Inspectorate of Government, in the performance of its functions, shall be independent and shall not be subject to the direction or control of any person or authority; the same attribute is shared by the Bank of Uganda with reference to Article 162(2) of the same Law. That common line in my view, symbolises the existence of mutual respect and understanding for each of the two celebrated institutions.

I have read the legal commentary of Counsel Didas Nkurunziza on the impasse between the Central Bank and the IGG. However, I think that Nkurunziza should have exhaustively read the recommendations and observations of the Supreme Court in the Constitutional Petition of John Ken-Lukyamuzi Vs The Attorney General and The Electoral Commission (2010) before coming to any conclusion on the matter. The Ruling of the Supreme Court on the powers of Ombudsman in Uganda, in the above petition, is a locus classicus.

In the said case, the Supreme Court observed that the powers which the IGG used in removing me from Parliament, were not only excessive, but also did not belong to the territory of the IGG as stated under Article 235(A) of the Constitution. The Supreme Court held that the IGG could not act as a complainant, an investigator, a prosecutor and judge at the same time. It called for the immediate operationalisation of Article 235(A) of the Constitution, by putting in place the Leadership Code Tribunal to prevent the IGG from acting as one.

I hold high respects for the current IGG, Justice Irene Mulyagonja. Her ruling in the high profile Revision case of Twine Amos Vs Tamusuza (High Court No. 0011 of 2009) has demonstrated her capability in framing focused judgments. In that case, Justice Mulyagonja observed that the Revisionary Powers of the High Court under Section 83 of the Civil Procedure Act, are unlimited even in cases where an appeal would lie and held that the lower court in that case, therefore, exercised its jurisdiction illegally, hence causing the miscarriage of justice. Justice Mulyagonja’s ruling in that case should have assisted her to understand that as IGG, she has no jurisdiction over the administrative area in Bank of Uganda. Her intervention in the Central Bank culminated into mis-directed jurisdiction.

Parliament in 2017, amended the Leadership Code (2005) by establishing the Leadership Code Tribunal, whose function shall be to examine and adjudicate any breach of the Leadership Code referred to it by the Inspectorate, make decision on any matter from any public institution and recommend to the authorised person, the disciplinary action to be taken against the suspect.

Although the jurisdiction of the IGG under Article 226 of the Constitution covers officers and leaders employed in the public sector and any such institutions and organisations as Parliament may prescribe by law, the IGG exceeded the binding line by ordering the suspended officers of the Central Bank to resume their duties in open defiance of the Governor’s administrative action. The IGG has power to investigate the Bank on matters related to corruption and financial impropriety, but it has no power to act as a Leadership Code Tribunal referred to in Article 235A of the Constitution in that Bank.

The IGG cannot, therefore, stop the Governor of the Central Bank from exercising his routine administrative duties, including the suspension of disobedient officers provided he does so with the full knowledge of the Board of Directors of the bank. In situations where the rule of law and the principles of national justice in administration are at stake, the IGG in consultation with the aggrieved parties in the Central Bank, can invoke Article 42 of the Constitution in protection of their rights and freedoms through the courts of law.

Mr Lukyamuzi is the president-general of Conservation Party and former Rubaga South MP.