Ministers sued for being in office

Even after President Museveni dissolved Cabinet on May 12, a section of ministers remain in offices. 
While addressing a news conference at the weekend, ICT and national guidance minister Judith Nabakooba said ministers continue performing their duties until formally stopped even as legal minds described their actions as illegal and warned of “dire consequences”. 

“What has been taking place is that they appoint and we hand over. What we are waiting for is the appointment. If there is any need for guidance, the Attorney General or Prime Minister will guide us formally, but as of now, I will still continue with my role of informing the public,” minister Nabakooba said.

“I cannot leave that vacuum, we haven’t received any written directive but once we receive it, then we shall definitely have to comply,” she added.

Deputy Attorney General Jackson Kafuuzi, however, gave a legal opinion that contradicts minister Nabakooba’s briefing.
Mr Kafuuzi told Daily Monitor yesterday that once the term of office of Cabinet expires, the ministers should wait for a temporary instrument if they are to continue working, otherwise, their continued stay amounts to an illegality.

“Ideally speaking, unless the President issues an instrument of temporary extension of our stay in office, which he has been issuing in the past, permitting ministers to do official work in the absence of the same instrument, the permanent secretaries should instead be doing the ministers’ work now. We can only remain in office to hold meetings but cannot sign statutory contracts that bind the ministry and can be challenged in office,” Mr Kafuuzi said by telephone yesterday.

“There is a loophole in our Constitution about our transition. We are lucky it is the same President, how about if it was a new President? Some of my colleagues are not comfortable with them being out of office but that is the position of the law,” he added.

The deputy chief government legal adviser also revealed that they have since written to the Prime Minister about the expiry of Cabinet.

He added that core to their prayers is for a temporary instrument to extend the Cabinet’s term of office as they wait for the new instruments of appointment.

“I have been arguing with some of my colleague ministers that if the Cabinet was dissolved and we are no longer holding meetings as ministers, so why are we insisting that we are still in office legally?  So apparently, we are in office just to clear our desks as we await for the announcement,” Mr Kafuuzi said. 

President Museveni, who sworn in for the sixth elective term last week, is expected to appoint a new Cabinet any time from now after the previous Cabinet tenure expired on May 12.

It is upon this backdrop that city lawyer Hassan Male Mabirizi has since instituted a private prosecution against four ministers for allegedly continuing to work despite their term of office expiring last week.

The ministers in the spotlight are; Matia Kasaija (Finance), Edward Katumba Wamala (Works), Jeje Odongo (Internal Affairs) and Benny Namugwanya (Kampala Affairs).

In his affidavit, Mr Mabirizi argues that on May 12, the five-year term of the last Cabinet expired and that accordingly, all ministers’ offices became vacant.

He adds that Gen Katumba on May 14, held a press conference at the Uganda Media Centre, impersonating the minister of Works and Transport.

Mr Mabirizi also accuses Mr Kasaija of having spoken in the capacity of Finance minister at the same media briefing yet he was no longer holding the same position.

Mr Mabirizi accuses Ms Namugwanya of having held a press conference on May 14, whereby she allegedly impersonated Kampala Affairs minister and gave updates on the swearing-in of new Kampala Capital City Authority elected leaders.
Gen Odongo’s case is that he officiated at the taking of office of the new executive director of the National Identification and Registration Authority.

“I know that the above constitute offenses of impersonation, contrary to Section 381 (1) of the Penal Code for which the accused should be charged,” Mr Mabirizi argues.

He adds: “The said offenses were committed in Kampala, within the criminal geographical jurisdiction of this court. I affirm to this affidavit in support of a complaint against the accused (the four ministers) so that warrants of arrest are issued and the accused prosecuted for the alleged offenses.”

When contacted, Gen Katumba and Ms Namugwanya laughed off the matter. They also denied being in office following the expiry of the Cabinet.

“I am not even aware that Mabirizi has instituted private prosecution proceedings against me. I think Mabirizi just likes the name Katumba. I am home waiting for the swearing-in at Parliament on Thursday,” Gen Katumba said in a telephone interview yesterday.

“In this transition period, I can work if the President calls me and gives me instructions but as per now, I am home not doing any official work,” he added.

Likewise, minister Namugwanya said: “Who told you that I am in office working? I am home enjoying my holiday after working non-stop for 10 years. I have since cleared my desk and waiting for the matching orders.”

Legal experts weigh in 

Constitutional lawyer Michael Aboneka explained that the Constitution is not clear on when the tenure of the ministers expires, apart from them resigning or dying, meaning their tenure expires also when that of their appointing authority does so.

“Now until a new Cabinet is appointed, they (old ministers) are supposed to return all the Cabinet documents and hand them over to permanent secretaries. Ideally, that is why we have permanent secretaries who continue to work since they are not politicians,” Mr Aboneka said in a telephone interview yesterday.

“Now there is a new government, with the principal who is supposed to either renew the term of the old ministers or appoint new ones. Therefore, whatever, the ministers do now without full instruments of appointment is a nullity,” he added.
Shadow attorney general Wilfred Niwagaba had similar thoughts.

“Their term of office expired under the government they were appointed. So as they are acting illegally and unconstitutionally,” Mr Niwagaba said.

Constitutional lawyer Peter Walubiri said if there is a formal dissolution of Cabinet, then the ministers are in office illegally.
“Since their service is not regulated by any law, as long they continue sitting in office, guarded by a police officer, driven in big cars, their decisions are still binding,” Mr Walubiri said.

The president of the Uganda Law Society, Ms Pheona Wall Nabasa, on the contrary, said in order to avoid a vacuum in political leadership, the ministers should continue being in office.

However, she was quick to warn the outgoing ministers: “Do not sign statutory instruments that can be challenged in court”.
Likewise, Mr Elison Karuhanga, a private lawyer from Kampala Associated Advocates, explained that during the transition period, ministers should mainly be preparing handover documentation.

“Certainly, the government cannot be left to operate in a vacuum. Ministers should mainly be preparing handovers. It is advisable that legally-binding decisions during this period are avoided, otherwise, it can cause legal challenges.”

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