What retirement of Seven permanent secretaries in ‘public interest’ means

Without providing any details, President Museveni has retired seven senior permanent secretaries in public interest.
The President swung the axe 37 days after he pledged to defeat a racket of thieving officials in his government he vilified as “parasites” and even wished them hell. 

He, however, didn’t name the corrupt officials but promised to root out corruption and asked the public to “stay tuned”.

In the changes announced last week, Mr Museveni either promoted or demoted some permanent secretaries, reappointed meticulous or politically connected technocrats and sent a total of seven top government officials into early retirement.

Ms Jane Kibirige (Clerk to Parliament), Ms Christine Guwatudde Kintu (Office of the Prime Minister), Mr Pius Wakabi (Agriculture), Ambassador Patrick Mugoya (Foreign Affairs), Mr Kivumbi Lutaaya (Vice President’s office), Mr Benon Mutambi (Internal Affairs), and Mr David Ebong (Technology and Innovation), were all retired in public interest.

The President’s decision to retire the affected officials, however,  rattled sections of the public that took to social media to ask about the meaning of “retired in public interest.” 

Ms Sarah Bireete, the head of the Centre for Constitutional Governance, questioned the move and asked the President to explain why he is pegging the forced retirement of the seven officials on public interest.

Former Aruu MP Odonga Otto talked of double standards in the President’s decision and without mentioning names, referred to “dangerous permanent secretaries” who were “deleted” by Parliament’s Public Accounts Committee (PAC), but for unexplained reasons remain in offices.

In the absence of the details, the President’s decision has triggered speculation on the transgressions of the affected permanent secretaries, with some of their peers who talked to Daily Monitor at the weekend calling the retirement in public interest “a disgraceful send-off “ and “a vote of no confidence.”

Standing Orders
Counsel Isaac Ssemakadde of Legal Brains Trust of Uganda invokes Public Service Standing Orders to draw a line between “retirement in public interest” and dismissal. 

He, however, explains that a person previously employed in public service cannot be re-engaged after retirement in public interest and dismissal from the public service.  

According to Uganda Public Service Standing Orders, retirement in public interest is where the appointing authority requires an officer to relinquish his or her office as a disciplinary measure, which doesn’t merit dismissal, and the officer is entitled to retirement benefits in accordance with the Pensions Act.  

Under government standing orders, removal from office either by dismissal or retirement in public interest is the exclusive responsibility of the appointing authority.

Therefore, when a public officer is retired in public interest, the standing orders say he or she is entitled to a period of notice, any authorised earned leave and transport back to his or her place of domicile in accordance with section (A-n). However, on dismissal a public officer forfeits all his or her privileges, including claim to a period of notice.  

State House speaks out
Although some people argued that the ‘retirement in public interest’ mode of exit triggered at the pleasure of the President is abused to punish certain individuals for political and nepotistic reasons, Mr Museveni quoted constitutional provisions and referred to the powers given to his office by Article 99, 172(1) (a) of the Constitution of the Republic of Uganda and the Uganda Public Service Standing Order (A-n). 

State House has defended the President’s decision and reiterated that the appointing authority has the absolute right to retire public officials prematurely on the grounds of lack of integrity and ineffectiveness, in public interest, under the provisions of Public Service standing orders.

“Being retired in public interest is one of the methods of retirement under the public service standing orders. It’s the prerogative of the President to do that under Article 99, 172 (1) (a) [of the constitution],” Senior Presidential Press Secretary Linda Nabusayi said.  

However, a senior technocrat in one of ministries says the President seems not to have understood that the decision to retire a public officer is a disciplinary issue and for such a person to be retired in public interest, he or she must have gone through the processes and there must be evidence that he or she refused to reform.     

Bukimbiri MP Eddie Kwizera Wagahungu, known for filing constitutional suits, questioned the constitutional provisions the President cited as a basis for retiring the seven permanent secretaries in public interest.

“Article 99 gives the President powers to exercise authority, which is shared with Public Service Commission (PSC). I doubt whether PSC was even consulted in the appointment and retirement of some permanent secretaries,” he said.

“There is a process under which such a decision is reached. You don’t wake up and just retire a public officer on contract without giving him or her opportunity to be heard… a permanent secretary who has not performed to President’s expectation is not retired in public interest without any minute or record of his or her transgressions. The President should have written to public service but I doubt whether this was done,”  he added  

Retired PSs speak out
Even though some of the affected permanent secretaries/ accounting officers refused to speak on record and chose to comment privately, Mr Benon Mutambi, the outgoing permanent secretary in the Ministry of Internal Affairs, has denied any wrongdoing and sought to be told where he fell short to deserve retirement in public interest. 

Mr Mutambi said: “I must be honest to you; I also do not know. All I know about myself is that I had given my best, was committed to transform that place [Internal Affairs ministry]. May be I shall in future get to know where I fell short.”

Other affected permanent secretaries, who spoke off the record, said the President’s decision does not give them opportunity to be heard, and demanded to know the crimes they committed to deserve what they called “disgraceful retirement” after long years of “devotion” and “selfless service.” 

The right to be heard
On whether retirement in public interest violates the principle of natural justice and the right to be heard, Counsel Ssemakade, invokes “the clean hands doctrine “where one who comes into equity must come with clean hands. He argues that since their appointments breached principles of fairness, transparency, equality and accountability, the seven permanent secretaries have no moral and legal authority to challenge anything. 

“The fact that they came to offices not by right, not by merit, not by fair competition but rather by gift of appointing authority,  technically these public servants being interlopers at law, cannot claim the moral or legal authority to cry wolf: my right to be treated fairly and justly have been violated,” he said. 

The big question
In the end, Mr Ssemakadde argues, “it’s a case of the proverbial chickens coming home to roost” and insists that “It’s irrational to understand the President’s decision through the prism of rationality, fairness and legality.  The rational question to ask, according to Mr Ssemakadde and other legal brains Daily Monitor talked to is “Why has the President has chosen to give these public service fat cats merely a slap on the wrist for their allegedly high crimes against the state? The people are entitled to know the reasons for the sanction of retirement in public interest.”

But what’s public interest?
According to Mr James Nangwala, another lawyer, public interest has been interpreted legally to mean something which is of serious concern and benefit to the public, the community at large, as opposed to an individual.  

On where the forced retirement of the permanent secretaries leaves the principal of natural justice and the right to be heard, Mr Nangwala argued: “Probably the said public interest over weighs the right to be heard.”    Other senior lawyers who talked to Daily Monitor on the matter, however, argue that “public interest” is one of the most used terms in public administration yet it is arguably the least defined and least understood since few public officials have any clear idea what the term actually means and what its ramifications are in practice.

Shadow AG weighs in
According to Shadow Attorney General Wilfred Niwagaba, public interest ordinarily means that the affected officer is not fit to continue occupying a public office. The appointing authority determines what constitutes public interest and usually borders on integrity issues.

“A public office is held at the pleasure of the President and unless the retirement is in writing stating a reason as to why you have been retired and you find such a reason unjustified and disputable. Otherwise, under the current circumstances, the question of fair hearing here doesn’t arise. The retired officers have no choice but to retire with disgrace,” he said.   

PS role

A permanent secretary formulates strategic plans and coordination of multiple functional areas in a ministry, including tendering advice to the responsible minister in respect of the business of the ministry or department; Initiating implementation of policies of government, and ensuring proper expenditure of public funds in the ministry or department.

what they say...

“Being retired in public interest is one of the methods of retirement under the public service standing orders. It’s the prerogative of the President to do that under Article 99, 172 (1) (a) [of the constitution],” Senior Presidential Press Secretary Lindah Nabusayi 

“A permanent secretary who has not performed to President’s expectation is not retired in public interest without any minute or record of his or her transgressions. The President should have written to public service, but I doubt whether this was done,”  Bukimbiri MP Eddie Kwizera Wagahungu

“The fact that they came to offices not by right, not by merit, not by fair competition but rather by gift of appointing authority,  technically these public servants being interlopers at law, cannot claim the moral or legal authority to cry wolf: my right to be treated fairly and justly have been violated,” Isaac Ssemakadde, lawyer  

“A public office is held at the pleasure of the President and unless the retirement is in writing stating a reason as to why you have been retired and you find such a reason unjustified and disputable. Otherwise, under the current circumstances, the question of fair hearing doesn’t arise. The retired officers have no choice, but to retire with disgrace,” Shadow Attorney General Wilfred Niwagaba

“I must be honest to you; I also do not know. All I know about myself is that I had given my best, was committed to transform that place [Internal Affairs ministry]. May be I shall in future get to know where I fell short,” Mr Benon Mutambi, the outgoing Permanent Secretary in the Ministry of Internal Affairs