The High Court has dismissed a case in which former National Social Security Fund (NSSF) managing director, Richard Byarugaba was challenging the Gender Minister’s refusal to reappoint him to the position.
In his petition, Mr Byarugaba had said that Minister Betty Amongi’s refusal to reappoint him as NSSF Managing Director despite the Board’s approval was unlawful and illegal. Byarugaba also contended that Ayota was appointed while holding the substantive statutory position of Deputy MD on a fixed five-year term, making him ineligible for the MD appointment.
But in a ruling delivered on Friday, April 19, 2024, Justice Musa Ssekaana said the NSSF Act does not provide for a fair hearing in regard to Byarugaba’s petition.
“The 2nd respondent was acting in accordance with the law-NSSF Act and the Act does not provide for a hearing before any decision is made for appointment or reappointment of the Managing Director of NSSF, affected persons must be accorded a hearing. Demanding a hearing before the Minister can exercise any discretion to appoint would be asking for so much and would be an absurdity. The decision-maker should not be unnecessarily burdened in taking a decision by demanding hearings at every stage. Such a hearing will only be required in exceptional circumstances if the person sets out strong and cogent grounds for it,” he said.
On Ayota’s appointment as MD, the court ruled: “The applicant has attempted to challenge the appointment by inferring that the 3rd respondent was holding 2 positions at the same time. With the greatest respect this is erroneous and devoid of merit. The 3rd respondent has clearly deposed that when he was appointed to the position of Managing Director, the Board appointed a one Kasaato to the position of Acting Deputy Managing Director.”
Byarugaba had also contended that even before his second contract could run its course, Amongi attempted to prematurely end it by stating that he should have retired upon reaching 60 years of age. He added that only with the intervention of the Attorney General was he able to complete his second term of office.
The NSSF Board of Directors had recommended renewing the contracts of both Byarugaba and his deputy Patrick Ayota. However, Amongi renewed only the contract of the Deputy MD and deferred Byarugaba’s appointment, citing various allegations, including financial impropriety, collusion with contractors, defiance of presidential directives, and corruption. Despite stakeholders meeting at State House on December 6, 2022, and receiving guidance from President Yoweri Museveni to conclude Byarugaba’s appointment process, Amongi did not follow the guidance.
Byarugaba argued that this, along with ignoring the February 2023 report of the Parliamentary Select Committee on the state of affairs at NSSF where he was cleared of financial impropriety allegations, makes the decision not to renew his contract illegal, irrational, and procedurally incorrect. According to Byarugaba, the decision also disregarded the Inspector General of Government’s report, which cleared him of allegations and supported the Board’s recommendation based on his previous performance in office.
But Justice Musa Ssekaana said the minister did not breach any legitimate expectation of the applicant and the decision not to reappoint the applicant was an exercise of discretion vested in the Minister.
“The applicant was investigated by separate organs including Parliament and IGG not at the instigation of the 2nd respondent but rather on the statutory and Constitutional mandate of different government agencies. I find this allegation devoid of any merit,” he added.
He also said that the court cannot lightly presume abuse or misuse of power and will make allowance for the fact that the decision making authority is the best judge of the situation.
“The appointment of the 3rd respondent (Patrick Ayota) was an act involving the Minister of Labour, and Social Development as the Minister (Betty Amongi) responsible for the affairs of NSSF through reporting and exercising supervisory function after applying her mind to the exercise of power and followed the law as prescribed and should not be interfered with in absence of any justification or any breaches of the law,” he ruled.
“This court cannot quash the appointment of the 3rd respondent which resulted from a recommendation of the Board. Such a decision would violate the principle of fairness and would amount to condemning the Board unheard in respect of their decision to appoint the 3rd respondent,” the judge added.
He also noted that the courts need to recognize that there is always need to justify their intervention or non-intervention in administrative matters as their constitutional role in judicial review is sometimes limited in their capacity to decide matters which admit no generalized or objective determination.
He dismissed the case with no costs to Byarugaba as the petitioner.