How Army Can Win Sejusa Case on Appeal

By: James Mugerwa

In my opinion, cheapest the Court of Appeal has erred in finding for Tinyefuza, nurse they seem to have opted to take an extremely narrow approach to the case by choosing to understand the case through civilian lenses.

I was not privy to the proceedings so I cannot put the blame on the inadequateness of the legal arguments of government lawyers. Normally lack of succinct guidance from lawyers, here Judges rarely takes it upon themselves to seek knowledge outside the court room.

In any event I will go ahead and make my arguments as if I was the lawyer for UPDF. I must stress that the unique nature of this case means that it cannot be wholly argued using legal instruments and arguments; instead it is one of those that must be expostulated from an academic or common sense point of view.

As such will be my arguments;

1. Military Professionals different from Public Servants:

Military Professionals are ‘Managers of Violence’, they are trained, skilled and empowered (Laws and Arms) to mete-out violence in the name of protection of the nation and its citizens. The purpose of employment in the army is maintaining reading readiness to fight a war, the product of this labor is to defend a nation.

With this sort of unique skill and legal mandate, a military professional is required to be obedient and loyal to the authority of the state, he is required to use this skill only in the interest of society and not in self-interest, and is morally impartial.

As such, their ‘constitutional rights’ yield to the unique nature of military service given the need for discipline, obedience and cohesion. This is all summed up with the denial right to refuse to be put in harm’s way by going to war, ultimately denying them the right to life.

While in main stream civil public service, decisions and authority of management can be challenged, in the army it is discipline, unquestioning obedience and full acceptance of authority. A job of a soldier is fight wars or maintain the readiness to fight wars. So a soldier like Sejusa is not a soldier because of his rank and or office or deployment or escorts.

By virtue of their profession (defend the nation) they are deployed by default. Their job being ‘to be ordered to defend the nation’, unlike public servants who are hired on a professional need basis e.g. a lawyer in ministry of health cannot then be required to serve tea because that is not his job. But a soldier regardless of their rank and what their office is, their job remains one, defend the nation against internal and external aggression.

So even when a soldier is not deployed in a specific office or field, he is by default of ‘the constitutional job description’ working. The only time a soldier is not able to perform this job is when they are not mentally or physically fit to fight a war.

2. Military/political control or Civil Control of Personnel.

It is arguable that Uganda Military is under civilian control to a large extent because it is the civilian authorities and instruments that control the recruitment, foreign deployment, budgets etc. However the concept of civilian control from which the Civilian courts of law is premised is not to control or predetermine combat readiness or operational effectiveness.

There is an equilibrium. That equilibrium is that many countries judicial institutions have tried to find by agreeing that much as it is imperative that there be objective civilian control to ensure ultimate professionalism, civilian control can never maximize national security.

As such they have sought to intrude cautiously by protecting certain rights such as; protection from discrimination on disability, race, religious or sexual grounds.

‘Katebe’ a disciplinary action. Sejusa’s is fighting an informal disciplinary action commonly known as ‘Katebe’. Losely defined as undemployment – an officer without a specific chore or assignment or office.

Linking in with point 1 above, katebe has no legal connotations because the job of a soldier is to defend the nation, but it is designed to curtail the privileges that come with a particular deployment. It therefore all revolves around fiscal benefits.

For example even when he had an office and was even getting a wage, in 2012, he said Museveni was “making serious blunders” by failing to fund his office to coordinate security organs “and is there giving billions to Kayihura to beat up and teargas Besigye and opposition.”

Katebe is therefore a functional imperative whose value can only be understood by the Army leadership on its value in ensuring UPDFs capability of defending the state. It is one of the many informal disciplinary measures in the army that are seen to be required to ensure success in war, absence of which, the readiness of the army will be deficient.

For the court to outlaw Katebe, it means that more formal disciplinary actions that are subjected to tribunal standards will exhaust resources and time for they will be litigated matters. Witnesses and frequent tribunal sessions will mean more funding of the court martial, transport costs for witnesses, random rotation of troops.

In order to cut costs and avoid these constraints on the readiness of the army, the military leadership will have no choice but to deploy unsuitable officers further compromising national security.

Therefore the Court of Appeal in their judicial reasoning or interpretation of civilian controls, must occupy themselves on how this judgment fulfills or supplements the military role or mission to uphold effectiveness of the UPDF. From my point of view, this judgment is counter-productive and its role does not reflect the need to achieve national security at a reasonable cost.

They have missed the equilibrium (civilian control but maximize national security). The decision of the Court of Appeal is an intrusion into the unity of the profession whereby all members work together as the same team with a single authority and loyalty structure and a common set of values.

It threatens the loyalty of the soldiers. By the Court of Appeal ruling in favor of Sejusa, it is arguable that the army leadership has conceded a significant part of its decision making role. This is why it is very important to appeal this case.

It disrupts the chain of command which undoubtedly affects combat effectiveness by subverting military discipline and obedience. Discipline and obedience are the fundamental base of the military, absence of which means that control is impossible.

Both civil, and political control elements of the army use various means and tools to further a common interest; which is the future survival of the organisation. This means that the Civil Courts should exercise their role in isolation of personal or self-interest of a soldier.

Instead they should focus on survival of the Army by ensuring its cohesion and readiness which require each and every soldier to be committed to combat effectiveness by giving full loyalty to the military unit. This is what the judge should have read into the case; this implies that instead of Sejusa being motivated by a desire to serve the common good, he has a greater concern with pay, benefits and the quality of his working life.

Appeal and Mitigating Measures.

Certainly this decision must be appealed, there is no doubt about it. But there is an urgent need to amend the law. Constructive dismissal must be disapplied to the military by an express statutory instrument with immediate effect.

Many countries that have had the foresight of this lacuna have indeed done exactly that, including the UK. Given the aforementioned reasons, military leadership should seek parliamentary control to stop the ‘floodgates’ that will weaken the army.

What is constructive dismissal and how is it litigated.

Like I said before, I was not privy to the proceedings but I am in any event, of the view that the Army approached the whole casually. This is simply because in order for a case of constructive dismissal to be successful, the test is very stringent, almost insurmountable.

The first serious test is; – Exhaustion of the internal complaints mechanism- i.e. did Sejusa first seek redress through the internal mechanism, eg. By writing to CDF or CIC to inquire about his status in the army?

Second test is intolerableness:-  Waere the actions of the army that formed his decision to resign intolerable. Meaning that they were harsh and unreasonable and left him with no choice but to resign?

Third test is Reasonable man’s test:- Would these actions have caused any other officer in the army and the same rank to resign?

Fourth test is did he actually resign? In order to qualify for constructive dismissal, you must have resigned first. Resignation must be in writing, formally communicated, delivered and received and must cite reasons.

Any other reason that suggests that resignation was not genuine but an excuse. In the case of Sejusa, did he resign just to escape internal disciplinary procedures?

Conclusion. Army lawyers must take this case seriously, it is winnable.


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