By Mulengera Reporters
Writing on behalf of the Finance Ministry, Minister Matia Kasaija has written to the Attorney General Kiwanuka Kiryowa instructing him to apply for stay of execution against Justice Musa Sekaana’s 31st January ruling which had the effect of creating a crippling leadership vacuum at Uganda Retirement Benefits Regulatory Authority (URBRA), by declaring the governing board null and void besides directing the ouster from office of Counsel Rita Nansasi Wasswa who has been serving as Ag CEO for the last 6 months.
She substantively serves as the Corporation Secretary but was designated to serve as Ag CEO in August last year after then CEO Martin Anthony Nsubuga’s contract wasn’t renewed on grounds of unsatisfactory performance.
Nsubuga protested this by institituting a Judicial Review application in the High Court protesting his ouster from the job. He asserted that he was ousted because the Board and line Minister Kasaija didn’t like him as a person because of financial resources’ allocation-related disagreements.
He sued four Board members, Nansasi and Kasaija personally claiming that they had ganged up against him. Kasaija, who had all along been criticized for seemingly favoring Nsubuga (who five fears earlier had been given the job on a silver platter without competition) was reportedly angry about the Judicial Review application and couldn’t believe that Nsubuga would pay him back this way (by personally dragging him to Court).
In the end, the High Court held that the continued stay in office of the four board members was untenable because they became board members without having the relevant experience relating to retirement benefits schemes’ management matters. This potentially creates governance problems at URBRA, something that Kasaija and the Finance Ministry believe is anomalous and an absurdity because it has the effect of paralysing business at the Authority.
Imagine a situation where the regulator of a sector worth trillions having to indefinitely do without a governing board and a CEO? To Kasaija, this would be reckless and that’s why the AG has had to be instructed to apply for stay of execution and also to appeal to the Court of Appeal to have the Musa Sekaana judgement overturned.
In his ruling, Justice Musa Sekaana ironically didn’t order for Nsubuga’s reinstatement though he disputed the circumstances under which the governing board disregarded his written expression of interest to have his contract renewed so that he could head the regulatory agency for another 5 years. Matia Kasaija’s letter is dated 5th February and is copied to PSST Ramathan Goobi and the Solicitor General.
An analysis on the appeal papers the AG chambers has since filed in the Court of Appeal sheds light on the exact case that is being advanced to support the appeal against trial judge Musa Sekaana’s ruling.
It’s being contended that it was inappropriate and erroneous for the learned Judge to have digressed into board members’ qualifications as part of his inquiry into Martin Anthony Nsubuga’s Judicial Review application. That this ought to have been considered and addressed under a different suit altogether and not under Judicial Review. That Nsubuga, the applicant ought to have been advised to file a fresh suit, which never happened.
There is also concern as to why the High Court Judge didn’t find it prudent to leverage the Approbation/Reprobation doctrine to inquire into the dishonesty regarding why the former CEO only disputed the Board members’ qualifications or lack of the same only after his desire to be considered for contract renewal was disregarded.
That he served under the same Board members, who supervised him for all those years, and he never raised a red flag about their inadequate qualifications. The AG will assert that, by not looking into this glaring dishonesty, the trial Judge erred and didn’t act properly. The trial Judge is also being faulted for overlooking the approbation and reprobation-related argument as was advanced by the respondents.
That the applicant, in the Judicial Review application ought not to have been permitted to keep quiet about such alleged illegality for all those years and only raised a red flag and went to Court against the same only after failing to obtain a favorable decision from the same Board members regarding his contract renewal.
The AG will also prompt the Court of Appeal Justices to inquire into why the trial Judge didn’t make any reference to that anywhere in his ruling yet it was very glaring. That it was also inappropriate for the trial Judge to have kept a blind eye on that.
There are also concerns that some of the orders the trial Judge proclaimed were insensitive and bordered on being proclaimed in vain. Reference is also being made on the trial Judge’s order requiring disbandment of the Board and vacation of the CEO office, which could lead to chaos at URBRA because of the huge governance vacuum that could result.
That the trial Judge also ought to have thought about such absurdity that could potentially result from having a governing Board-level vacuum in place at the time the CEO office is also vacant.
The Board has to constitute top management which is headed by the CEO, and constituting a new Board takes not less than a year because of many stakeholders who have to be consulted by both the Finance Ministry and the President. (For comments on this story, get back to us on 0705579994 [WhatsApp line], 0779411734 & 041 4674611 or email us at mulengeranews@gmail.com).
