Security and Fragility of Tenure of Public Servants within the Legal Framework in Uganda
Abstract
This conceptual paper examines the security and fragility of tenure of public servants in Uganda within the established legal and policy frameworks. The conceptualisation involved a systematic literature review of the 1995 Constitution of the Republic of Uganda, as amended, together with a host of other principal and subsidiary legislation that provides for the security of tenure of public servants in Uganda. Other primary sources such as court cases and secondary sources such as policy documents, relevant articles, and reviews were also reviewed. The paper reveals that despite its strength due to its robustness, the labour law of Uganda has gaps which, in addition to the manner of its coordination and implementation, potentially and actually generates both positive and negative expectations and outcomes for the public officers in relation to their security of tenure at the workplace. In this paper, we argue that a fair implementation of the law guarantees tenure security while unfair implementation of it predisposes the public officers to a fragile and insecure tenure. We also suggest strategies that can be employed to avert tenure fragility and enhance tenure security to foster the socioeconomic transformation of the civil servants and the country as a whole
Downloads
References
Ministry of Gender, Labour, and Social Development (MGLSD) of the Republic of Uganda the national employment policy for Uganda: Increasing Decent Employment Opportunities and Labour Productivity for Socio - Economic Transformation. (2011). Author.
Employment Act, No. 6, (2006) Uganda.
National Resource Governance Institute [NRGI], Legal framework: Navigating the web of laws and contracts governing extractive industries. (2015) https://resourcegovernance.org/sites/default/files/nrgi_Legal-Framework.pdf
Art. 2, Clause 1 & 2 of the Constitution of the Republic of Uganda (1995) Kampala: Republic of Uganda.
Article 175 of the Constitution of the Republic of Uganda (1995 as amended, p. 137) Clause (a) and Clause (b)
As provided in Article 257 (2) (a)
Article 257 (2) (b)
Lewis, A. (2014). Word Web 7.1. Retrieved from wordweb.info.
Institute of Certified Public Accountants of Uganda (ICPAU). (2019). Information paper on labour law in Uganda: Sample AML & CTF Policies and Procedures Manual – 2019. Retrieved from https://www.icpau.co.ug /sites /default/files/Resources/INFORMATION%20PAPER%20ON%20LABOUR%20LAW%20IN%20 UGANDA.pdf
Article 173 of the constitution of the Republic of Uganda (1995, as amended)
Article 40 Clause 2 of The Constitution of the Republic of Uganda 2005 as amended
Articles 25(1) on slavery and servitude; Article 25(2) on forced labour; Article 29(1) on right to freedom of association; Article 34(4)on protection of children from economic exploitation and hazardous work, Article 39 on right to a clean and healthy environment, Article 40 (1) on right to work under satisfactory, safe and healthy conditions; equal pay for equal work without discrimination, rest and reasonable working hours and periods of holidays with pay and remuneration for public holidays; Articles 40(3) right to form and join trade unions; and Article 40(4) on protection of women during pregnancy and after birth, in accordance with the law.
These include; The Employment Act No. 6 of 2006; the Labour Unions Act No. 7 of 2006; the Labour Disputes (Arbitration and Settlement) Act No. 8 of 2006; the Occupational Safety and Health Act No. 9 of 2006; the National Social Security Act, Cap 220, and the Statutory Instrument No. 62, Employment (Recruitment of Ugandan Migrant Workers Abroad) Regulations (2005).In addition, there are other relevant laws, such as, the Local Government Act Cap 243, Laws of Uganda (2000); the Public Service Act (2008); the Education Act (2008); the Uganda Citizenship and Immigration Act (1999); the Prevention of Trafficking of Persons Act (2008); the Public Service (Negotiating, Consultative and Disputes) Settlement Machinery Act (2008); National Disability Act (2006); and the Equal Opportunities Commission Act (2007). Negotiations are handled within the legal framework of the Labour Union Act; the Budget Act; the Public Service Act; the Public Finance and Accountability Act; the Public Service (Negotiating, Consultative and Dispute) Settlement Machinery Act; Workers Compensation Act 2000 (Ch. 225); and other relevant laws.
These include; the East African Community Treaty (2000), which provides for integrated approach to employment strategies (Article 104); the East African Common Market Protocol and the Free Movement of Persons Regulations; the Ouagadougou Declaration and Plan of Action on Employment and Poverty Alleviation in Africa (2004); the Africa Agenda (2063); ILO Convention No. 122 on Employment Policy (1964); as well as the ILO Declaration on Fundamental Principles and Rights at Work (1998).
(Institute of Certified Public Accountants of Uganda [ICPAU], 2019).
National Employment Policy (2011)
Other relevant policies include; the National Child Labour Policy (2006); the Uganda Gender Policy (2007); the National Policy on HIV/AIDS and the World of Work(2007) and Plan of Action (2010); the National Policy on Disability, the National Equal Opportunities Policy (2006); the Community Mobilisation Strategy (2006); National Industrial Policy (2008); National Population Policy (2010); National Oil and Gas Policy of Uganda (2008); the Agriculture Investment Policy (2010); and the Public Service Commission Regulations.
Sustainable Development Goals (2030)
National Resource Governance Institute [NRGI] (2015). Legal framework: Navigating the web of laws and contracts governing extractive industries. https://resourcegovernance.org/sites/default/files/nrgi_Legal-Framework.pdf
National Employment Policy (2011)
Ministry of Public Service (2010). The Uganda public service standing orders: The roles, obligations and conduct of a public officer. Author. Kampala.
The entitlements include negotiable items and items for consultation as indicated in Appendix G – 2 (p. 318). Negotiable items include salaries/allowances (see Appendix A-24 PSF9 of the PSSO;
Articles 172 and 200 of the 1995 Constitution as amended; PSSO, 2010, p. 6); hours of work; health and safety at wok; all types of leave (including annual, maternity/paternity, sick, study, sabbatical); principles and procedures of redundancy; medical expenses and sick pay; funeral expenses; retirement and other terminal benefits; and any other matter by mutual agreement. Items for consultation include disciplinary procedures; welfare; training; promotion; transfers; methods of salary payment; technological changes; and policy aspects that affect employment such as employment policy, structural adjustment programme (SAP), incomes policy, and schemes of service.
Art. 172 of the constitution of the republic of Uganda
Art. 173 of the constitution of the republic of Uganda
For instance, in Agwee Kalanga Vs AG (SC – 2001/119) [2008] UGHC 82 (27 March 2008) the high court ruled that dismissal of the applicant was wrongful and in breach of Art. 173 (b) of the constitution. Similarly, in Lukwago Vs Attorney general & 3ors (Miscellaneous Application – 2014/94) [2044] UGHCCD 47 (28 March 2014), the civil division court ruled that the applicant had a right to remain in office as Lord mayor as per the laws of the land.
Ways, for instance, Art. 21 provides for equality of all persons in all spheres of political, economic, social, and cultural life. Further, Clause 2 institutes that a person will not be discriminated against on grounds of sex, race, colour, ethnic origin, tribe, birth, creed or religion, social or economic standing, political opinion or disability. Art. 28 of the constitution talks about fair hearing for any criminal offence in court or tribunal. This is strengthened further in Art. 42 which gives the right to just and fair treatment in administrative decisions.
S. 6 of the Employment Act (2006).
A case in point is Nkunyingi Ssembajja vs Secretary, Public Service Commission &Anor (Miscellaneous cause – 2019/82) [2020] UGHCCD 74 in which the civil division court ordered the reinstatement of the applicant because he had been dismissed without fair hearing.
S. 9 Sub-section 2 of the Employment Act (2006)
At the local government level, the Employment Act has instituted District labour officers who receive complaints of employers, public servants inclusive, investigate them against any defense put forward and settle or attempt to settle such complaints made by way of reconciliation, arbitration, adjudication or such procedure as they think appropriate and acceptable to the parties. In other institutions, work tribunals are the legal entities put in place to handle officers’ complaints. In June 2020, court awarded UGX 120 million to Stella Nyanzi in a court case against her former employer, Makerere University for violating its staff appeals tribunal to reinstate her.
(e.g., members of parliament in Art. 83, and judicial officers in Art. 144).
(Art. 166, Cls. 2).
Art. 254 of the constitution of the republic of Uganda
S.17 Sub-section 1 of the NSSF Act states that the treasury may make payments to the fund in respect of those Government employees specified by the Minister responsible for public service who are under fifty-five years of age (NSSF Act, CAP 222 Vol. 9).
Citizens’ Coalition for Electoral Democracy Uganda [CCEDU] (2021). Labour rights in Uganda: A summary overview.https://www.ccedu.org.ug/index.php/blog/36-labor-rights-in-uganda-a-summary-overview
The key labour laws include the Workers Compensation Act 2000, the Minimum Wages Act 2000, the Employment Act 2006, the Labour Union Arbitration and Settlement Act 2006 and the Occupational Safety Act 2006.
Obilil, I. A. (2020). Uganda: The right to annual leave and the law in Uganda. Kampala Associated Advocates. Mondaq
The author cited,
In KyazzeVs Busoga College Mwiri (Labour Dispute Reference No. 143 of 2016) it was held that, although an employee is entitled to leave in accordance with the Employment Act, such leave is ordinarily granted when the employee applies for it and unless there are special circumstances, an employer may not force an employee to go on leave.
Section (F-c) stresses on that posting and reporting for duty should always be justified on genuine administrative guidelines, not as a punitive measure. Section (F-r) emphasizes following of proper disciplinary procedures in handling public officers. Sub-section 4 states that the rules of natural justice must apply in all disciplinary cases of whatever description and Sub-section 8 stipulates that interdiction of an officer can only be done after expeditious investigation has been done to reach a conclusion.
(Public Service Commission Regulations; PSSO, 2010).
by MGLSD (2011)
Government of the Republic of Uganda, 2010. National Development Plan, National Planning Authority.
(NDP 3; 2020/2021—2024/2025).
Fox, L., Senbet, L. W., & Simbanegavi, W. (2016). Youth employment in Sub-Saharan Africa: challenges, constraints and opportunities. Journal of African Economies, 25(suppl_1), i3-i15.
International Labour Organisation (ILO). (2009). Global Wage Report 2008/9. Geneva: International Labour Organisation.
(Article 173 of the 1995 Constitution of the Republic of Uganda, as amended; ICPAU, 2019; Equal Opportunities Commission Act [EOCA], 2007).
In the Ministry of Gender, Labour and Social Development by Statutory Instrument No. 62 of 2005(Recruitment of Ugandan Migrant Workers Abroad)
(Article 29 of the 1995 Constitution as amended),
For instance, in the case [2009] UGHC 139, the High Court caused Uganda Wild Life Authority to pay Mr. Mugisha Richard Bob Kagoro damages, compensation and suit costs for unfairly terminating him from service.
The National Employment Policy for Uganda (MGLSD, 2011, p. 9)
(See the case UGHCCD 59; 14 May 2015).
(MGLSD, 2011).
This contravenes natural justice as can be seen in the cases John Jet Tumwebaze v. Makerere University Council and 3 Others Civil Application No. 353 of 2005 and Lugolobi v Tororo District Local Government (HCT-04-CV-MC-2014/19) [2015] UGHCCD 35 (26 March 2015).
Uganda National Health Survey 2009/2010
(See case [2018] UGIC 25)
Uganda Population Report (2010)
MGLSD (2011, p. 12)
Harris, A., Schuster, C., Meyer-Sahling, J., & Mikkelsen, K. S. (n.d.). Civil service management practices for a more motivated, committed and ethical public service in Uganda.
Harris, A., Schuster, C., Meyer-Sahling, J., & Mikkelsen, K. S. (n.d.). Civil service management practices for a more motivated, committed and ethical public service in Uganda.
International Labour Organisation (ILO). (2008). Key indicators of the labour market, 2008. Geneva: International Labour Organisation.
Filmer, D., & Fox, L. (2014). Youth employment in sub-Saharan Africa. The World Bank.
MGLSD (2011)
MGLSD (2011)
such as Article 21 of the 1995 and the Disability Act 2006 of the Republic of Uganda.
Uganda Human Rights Commission (UHRC), Human rights and business country guide Uganda. (2020) Retrieved from https://www.uhrc.ug/download/uganda-business-and-human-rights-country-guide/ MGLSD (2011).
as is seen in the case [2018] UGHCCD 236 where the incumbent Acting Principal Education Officer for Gulu Municipal Council was not shortlisted by Gulu District Service Commission. The Commission decided that only one candidate was the only applicant to be shortlisted and an invitation to that effect was published on 16th July, 2018 fixing the date of interview as 27th July, 2018. This prompted the Acting Principal Education Officer to file an application for the prerogative orders of certiorari, prohibition, mandamus, and an interim injunction.
(Article 173 of the 1995 Constitution of the Republic of Uganda, as amended)
(MGLAD, 2011, p. 19).
Harris et al (n.d.)
(MGLSD, 2011, p. 15).
(MGLSD, 2011, p. 14).
Brooks, K., Zorya, S., Gautam, A., &Goyal, A. (2014). Good jobs in agriculture for Africa’s young people: What will it take to create them? A paper presented at PIM Seminar on Youth Employment in Sub-Saharan Africa on February 27, 2014, at IFPRI, Washington, DC.; Fox, L. (2016). What will it take to meet the Youth Employment Challenge in Sub‐Saharan Africa? GLM| LIC Synthesis Paper No, 2.; MGLSD, 2011, p. 9
Fox, M. L., Haines, C., Munoz, M. J. H., & Thomas, M. A. H. (2013). Africa's got work to do: employment prospects in the new century. International Monetary Fund.
(MGLSD, 2011, p. 9).
Opio, G., Foreword. In MGLSD, The National Employment Policy for Uganda: Increasing Decent Employment Opportunities and Labour Productivity for Socio - Economic Transformation. Kampala: MGLSD. (2011, p. iii).
as defined in Article 175 (b) of the 1995 Constitution of the Republic of Uganda as amended,
Rondinelli, D. A. (2006). Reforming public administration in post-conflict Societies: Implications for international assistance. Washington DC: United States Agency for International Development. (2006, pp. 13–14)
Copyright (c) 2022 John Mary Vianney Kimuraheebwe, Dennis Zami Atibuni, PhD, Deborah Manyiraho
This work is licensed under a Creative Commons Attribution 4.0 International License.
