Go Serve in Peace: Justice Musa Ssekaana Finally Announces Eng. James Nkamwesiga Kasigwa the Legitimate Boss at National Bureau of Standards

Court finally on Monday ruled in favour of Eng. James Nkamwesiga Kasigwa. He was declared the legitimate Uganda National Bureau of Standards (UNBS) Executive Director, flooring one of his hitherto competitors, Muyambi Fortunate Benda, who had petitioned Court to declare his appointment as illegal and a nullity.

At the High Court of Uganda via Application for a judicial review before Justice Musa Ssekaana, Muyambi had dragged the Attorney General Kiryowa Kiwanuka, the UNBS, the Minister of Trade, Industry and Co-operatives Hon. Francis Mwebesa and Eng. James Nkamwesiga Kasigwa himself, over what he termed as illegal appointment by Minister Mwebesa.

Among his prayers, Muyambi had wanted court to declare that the Minister`s decision to appoint Nkamwesiga, in total disregard of the National Standards Council (NSC) was irrational, procedurally improper and a nullity. Court heard that NSC had dust-binned Nkamwesiga`s quest for the job and had selected among the six candidates, only two, namely Muyambi Fortunate Benda, and Apollo Ssegawa, for the minister to pick.

Muyambi also wanted court to declare that in appointing Nkamwesiga against NSC recommendation, Mwebesa did not only abuse the legal process, but also contravened provisions of the Uganda National Bureau of Standards Act 2013. He hence called for a permanent Injunction restraining Nkamwesiga from continuing to occupy and acting in the office of the Executive Director at UNBS.

He further sought a court order for Nkamwesiga to immediately vacate and cease acting in the office of the Executive Director at UNBS, and for the latter to stop recognizing him as ED, as well as directing the Minister to proceed and pick one from the two candidates recommended by the National Bureau of Standards Council!

The ED`s office fell vacant in July 2023. On 27^th of the same month, Richard Daniel Nangalama Makayi, the Deputy Executive Director in charge of management and Finance Services, was appointed the acting Executive Director. Nangalama told court that on January 5^th 2024, he ran an advertisement in a daily newspaper for the ED`s position which attracted several applications, but six candidates were shortlisted upon which, UNBS retained the services of Profiles International Uganda Limited, to offer professional services for the recruitment process.

“The said professional conducted several stages of the interview processes for the shortlisted candidates which included psychometric tests, a written technical test and assisted the National Standards Council (NSC) to come up with the assessment tools for PowerPoint and Oral Interviews,” said Nangalama.

He said that the Consultant complied a Recruitment Report of the six shortlisted candidates which was forwarded to NSC. However, NSC seem to have ignored the professionals’` guidance. This stance, since the Minister, on May 13^th 2024, instead declared Nkamwesiga as the new Executive Director of UNBS. “I was invited to the office of the Minister to receive the new Executive Director, that being the 4^th respondent (Nkamwesiga), testified Nangalama.

Throughout the court proceedings, Muyambi was represented by Counsel Wanabungo Innocent, whereas the Attorney General Kiryowa Kiwanuka was represented by Masaba Peter, the Principal State Attorney. UNBS had Counsel Patience Akampurira and Nkamwesiga was represented the by lawyer Ebert Byenkya.

The Arguments

Counsel Wanabungo submitted that his application discloses three grounds for Judicial Review, which include illegality, irrationality, and procedural impropriety. He argued that the Minister acted illegally by appointing Nkamwesiga without a cause of action. “A cause of action must arise from the act or actions committed by the defendant and in this case the State. The Minister acted illegally by appointing the 4^th Respondent without the recommendation of the Board, as required by the UNBS Act.”

He further faulted the Minister, saying he acted with procedural impropriety by failing to follow the mandatory provisions of the Act. He also accused the minister of having acted illegally by denying his client an opportunity to be heard. He said the Minister again acted illegally by not allowing Muyambi to correct or contradict the statements in the report of the Board of Inquiry.

“The decision of the Minister was irrational as it was grossly unreasonable, arrived at through illogical reasoning and disregarded relevant considerations. The Board recommended another candidate. The Applicant performed well. The Minister acted with procedural impropriety as the totality of the affidavit evidence adduced by the applicant proves irrationality,” closed Wanabungo.

But Counsel Peter Masaaba simply watered Wanabungo`s arguments down, saying that courts should not interfere with the decisions taken by the legislature or the executive, if they are within the constitutional and legal powers.

A review of decisions of non-interference by the Judiciary in legislative and executive matters should prevail, save for exceptional circumstances involving the deprivation of the liberty of a citizen. Courts have previously guided that the judiciary should have minimal interference in their questioning of the exercise of legislative and judicial functions, further argued Masaaba.

The argument that the Attorney General had earlier written to the Minister, advising him against undermining the National Standards Council*s recommendations, seem not to have held any water. Wanabungo had argued that the Attorney General and the Minister had contradicted themselves by emphasizing the binding nature of the former`s opinion on the appointment of Nkamwesiga, which suggests that his appointment was illegal.

The Court Analysis

Justice Ssekaana guided that the Minister exercised powers conferred upon his office to appoint the 4^th respondent, which decision was being challenged for illegality on the basis that he appointed a person who was not recommended by the Council. “The Minister exercised powers conferred under the Uganda National Bureau of Standards Act which empower him to appoint persons in accordance with the law,” he analyzed.

He added thus; “The Minister’s power exercisable on recommendation of the Council and the power of the council in making recommendation to the Minister is equally subjected to the law and principles of fairness and compliance with the law. This complementarity in ensuring good governance ensures symbiotic relationship between the Minister and National Bureau of Standards Council.”

The Ruling

After quoting several authorities, among others, the case of Richard Byarugaba vs AG, Hon Betty Amongi and Patrick Ayota HCMC No 173 of 2024, and that of Osinde Osudo vs Attorney General and Civil Aviation Authority in HCMC No. 271 of 2021. Justice Ssekaana proceeded to give his ruling.

He ruled that the Minister had availed court with reasons grounded on sound and solid motives why he rejected the NSC recommendations for the said appointment. “The exercise of power by the Uganda National Bureau of Standards Council in recommending the appointments was equally subject to the general powers conferred under the Act. They should not act arbitrarily or illegally simply because they preferred one candidate over the other.”

He added, that the selection and subsequently the recommendation of the person to be appointed must be justified premised on qualifications as stipulated by law. Court heard that the minister subjected the report of the NBS Council to thorough analysis and due diligence on the recruitment process, candidates’ profiles and alignment to the job requirements.

That the minister further observed the requirements as specified in the advertisement which informed his appointment of the ED in line with UNBS Act The judge ruled that the Minister after due diligence found that the two persons recommended for the position of Executive Director did not have the minimum requirements.

Court heard, the said requirements the duo lacked were; An Honours degree in science relevant to UNBS mandate and a Master’s degree in a relevant Science or Management field, a Membership to a recognized professional body relevant to UNBS Mandate and, a Minimum of 15 years’ practical experience in senior leadership or Management Positions in a reputable organization.

“The Minister was justified in rejecting recommendations which deviated from the minimum requirements which were a condition precedent for the appointment to the position of Executive Director,” Ruled Justice Ssekaana, adding that the council failed in their statutory duty of selecting the best suited candidate when they ignored relevant considerations.

He said the above development, indirectly left the Minister in exercising his powers with no option but to select from among the different candidates who sat interviews. “The position would have been different, if the Minister had appointed a person who never took part in the selection process.”

Ssekaana said that the minister was exercising incidental powers to address a challenge which had been created by the Council and lapses in the recruitment process were mere irregularities which should not render his decision invalid. “The court will not 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 4^th respondent was duly appointed by the 3^rdrespondent. This application fails and dismissed with no order as to costs. I so Order.”

This ruling now makes Eng James Nkamwesiga Kasigwa sit comfortable in the office he assumed on the morning of Monday May 13th 2024, when he replaces Dr David Livingstone Ebiru who had served in the position from May 2021 to July 2023. Kasigwa is an Electrical Engineer who, before joining UNBS, had worked with multiple corporations, both home and away.

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Stanley Ndawula: Stanley Ndawula is a two and a half decades’ seasoned investigative journalist with a knack for serious crimes investigations and reporting. He’s the Founding Editorial Director and CEO at The Investigator Publications (U) Limited