Tinyefuza takes army to court
Oct 30, 2009
GENERAL David Tinyefuza petitioned the Constitutional Court to declare that his resignation from the army could not be questioned because he had been appointed Presidential Advisor on military affairs.
Over time, the court has decided on a number of high-profile cases. In a series, Saturday Vision looks back at some of the attention-grabbing cases that visited the court room.
By Edward AnyoliÂ
GENERAL David Tinyefuza petitioned the Constitutional Court to declare that his resignation from the army could not be questioned because he had been appointed Presidential Advisor on military affairs.
He also wanted court to determine whether he could be prosecuted by the army’s High Command for offences he allegedly committed in the course of his testimony to the parliamentary committee on defence and internal affairs.
 Tinyefuza had told MPs that the army’s leaders were corrupt, inefficient and lax and called for their resignation if they could not end the LRA war in the north.
His view was that he would be charged before the High Command with offences arising out his testimony, which he believed was true and given in good faith, so he resigned.
On December 3, 1996, Tinyefuza wrote to the President and chairman of the army High command, who was also the Minister of Defence, tendering in his resignation from the army.
However, on December 8, 1996, the state minister for defence rejected his resignation and told him to follow the procedure of resigning under section 28(1) of the NRA Regulation Statutory Instrument No 6 of 1993.
Tinyefuza argued that army authorities requiring him to resign from the army in accordance with Section 28(1) of NRA, and threatening disciplinary, administrative, criminal or civil action against him arising out of his testimony before MPs, were contrary to the Constitution and infringed on his rights.
STATE:
At the commencement of hearing of the case, the Solicitor General, Peter Kabatsi, raised a preliminary objection seeking to strike the petition, saying Tinyefuza had not paid the requisite fees for the petition.
He submitted that the registrar should not have received the petition unless fees had been paid. Kabatsi also asked the court to strike off the petition because it did not disclose cause of action against the Attorney General.
He asked the judges to dismiss Tinyefuza’s petition saying it was defective because it was supported by affidavits which contained grave inconsistencies.
Kabatsi argued that the President had no authority to remove an army officer from the army according to the 1993 National Resistance army regulations. He stated that a regulation made under a Statute of Parliament would not override an express power granted in the Constitution.
He said at the time Tinyefuza was appointed to the civil service, there were no regulations concerning the transfer of officers from the army to the civil service. Kabatsi argued that under the Public Service standing orders, it is possible for persons to join the civil service from other organisations if they are granted leave, but Tinyefuza was not permitted.
WITNESS
Amama Mbabazi was called as a State witness. He said Tinyefuza was still a member of the army and continued to receive benefits from the army. He testified that the High Command met and agreed on a policy which was to the effect that army officers posted outside the army would continue to belong to the army, but their salaries would be met by the respective organisations they would be working for.
DEFENCE:
Godfrey Lule, the lawyer who represented Tinyefuza, argued court fees were paid and produced the receipts. He also submitted that affidavits were properly sworn.
Lule further stated that the petition disclosed a cause of action, saying the petitioner (Tinyefuza) was apprehensive that his rights were threatened by the Minister of State for defence’s actions, when he rejected his resignation.
“This is a constitutional matter. Whatever irregularity existed should not defeat the matter now,†Lule argued.
Lule said by virtue of section 5(1) of the National Resistance Army Statute, service in a regular force of the army was full time military service, but after being moved into the civil service, Tinyefuza was no longer a the full time employee of the army.
RULING
Justice Egonda Ntende said: “Once a threat arises to a person’s fundamental rights and freedom, he is entitled to seek redress in the appropriate court under Article 50 of the Constitution. He does not have to wait for the threat to be put in effect and then claim his rights. The petitioner did not have to be prosecuted before asserting his privilege under Article 97â€.
Justice Ntende said the 1993 army regulations did not govern and regulate the High Command.
He said Tinyefuza’s resignation from the High Command ought to be attended to by the High Command, taking into account the fact that he could not be compelled to belong to it when he no longer wished to be in the army.
“I would find that the petitioner has substantially succeeded in the main prayer. I would grant a declaration to the effect that he cannot be punished or otherwise disciplined or questioned by anybody including the army, for his testimony to the parliamentary committee.†Justices Seth Manyindo, Galdino Okello, Alice Bahigeine, Patrick Tabaro and F. Egonda Ntende heard the case.
APPEAL
The Attorney General appealed against the decision, saying the judges erred in law when they decided that any threatened disciplinary, administrative, criminal or civil action against Tinyefuza in any tribunal, forum or court of law, arising out of his testimony was unconstitutional because it violated Article 97 of the Constitution.
Supreme Court judges James Wako Wambuzi, John Tsekooko, Joseph Mulenga, Alfred Karokoora, George Kanyeihamba and Laetitia Kikonyogo allowed the appeal and set aside the Constitutional Court order.
On January 28, 1998, the Attorney General won the case and Tinyefuza continued to serve the army diligently.
WHO IS GENERAL DAVID TINYEFUZA?
Tinyefuza in Runyankole means, “I don’t regretâ€. And perhaps when he took a decision to testify before the parliamentary committee that was probing the war in the north and to resign from the army, he knew he would not regret his decision.
He is soft-spoken. He has a well-groomed moustache, hardly smiles and you wouldn’t know whether he is happy or not. Tinyefuza loves reading and does a lot of research. He is disciplined, bold and respects his colleagues, as well as commands a lot of respect in the army.
He served as commanding officer during the insurgency in northern Uganda with a lot of dedication and won the President’s admiration.
Tinyefuza is also well known for thoroughly investigating and chairing the committee which probed former army commander Maj. Gen. James Kazini. The committee later recommended that Kazini be tried by the General Court Martial.
Born 56 years ago, he served as senior Commander in Chief from 1991 to 2001, worked as Presidential Advisor on peace and security from 1993 to 1997 and Minister of Defence 1989 to 1992.
Tinyefuza joined the National Resistance Army, now UPDF in 1981, during its guerrilla war aimed at ousting the government of the day. They succeeded and took over power on January 26, 1986, by which time he was a senior officer and historical member of the High Command.
  In 1998, he was promoted to the rank of Brigadier and from 1994 -1995, Tinyefuza represented the NRA in the Constitutional Assembly.
Those who know him well say he does not like controversy and prefers to keep a low profile.
FEEDBACK
If you have comments on this story or you know of any old court story you would like to share with us, send an email to the editor at:
saturday@newvision.co.ug
By Edward AnyoliÂ
GENERAL David Tinyefuza petitioned the Constitutional Court to declare that his resignation from the army could not be questioned because he had been appointed Presidential Advisor on military affairs.
He also wanted court to determine whether he could be prosecuted by the army’s High Command for offences he allegedly committed in the course of his testimony to the parliamentary committee on defence and internal affairs.
 Tinyefuza had told MPs that the army’s leaders were corrupt, inefficient and lax and called for their resignation if they could not end the LRA war in the north.
His view was that he would be charged before the High Command with offences arising out his testimony, which he believed was true and given in good faith, so he resigned.
On December 3, 1996, Tinyefuza wrote to the President and chairman of the army High command, who was also the Minister of Defence, tendering in his resignation from the army.
However, on December 8, 1996, the state minister for defence rejected his resignation and told him to follow the procedure of resigning under section 28(1) of the NRA Regulation Statutory Instrument No 6 of 1993.
Tinyefuza argued that army authorities requiring him to resign from the army in accordance with Section 28(1) of NRA, and threatening disciplinary, administrative, criminal or civil action against him arising out of his testimony before MPs, were contrary to the Constitution and infringed on his rights.
STATE:
At the commencement of hearing of the case, the Solicitor General, Peter Kabatsi, raised a preliminary objection seeking to strike the petition, saying Tinyefuza had not paid the requisite fees for the petition.
He submitted that the registrar should not have received the petition unless fees had been paid. Kabatsi also asked the court to strike off the petition because it did not disclose cause of action against the Attorney General.
He asked the judges to dismiss Tinyefuza’s petition saying it was defective because it was supported by affidavits which contained grave inconsistencies.
Kabatsi argued that the President had no authority to remove an army officer from the army according to the 1993 National Resistance army regulations. He stated that a regulation made under a Statute of Parliament would not override an express power granted in the Constitution.
He said at the time Tinyefuza was appointed to the civil service, there were no regulations concerning the transfer of officers from the army to the civil service. Kabatsi argued that under the Public Service standing orders, it is possible for persons to join the civil service from other organisations if they are granted leave, but Tinyefuza was not permitted.
WITNESS
Amama Mbabazi was called as a State witness. He said Tinyefuza was still a member of the army and continued to receive benefits from the army. He testified that the High Command met and agreed on a policy which was to the effect that army officers posted outside the army would continue to belong to the army, but their salaries would be met by the respective organisations they would be working for.
DEFENCE:
Godfrey Lule, the lawyer who represented Tinyefuza, argued court fees were paid and produced the receipts. He also submitted that affidavits were properly sworn.
Lule further stated that the petition disclosed a cause of action, saying the petitioner (Tinyefuza) was apprehensive that his rights were threatened by the Minister of State for defence’s actions, when he rejected his resignation.
“This is a constitutional matter. Whatever irregularity existed should not defeat the matter now,†Lule argued.
Lule said by virtue of section 5(1) of the National Resistance Army Statute, service in a regular force of the army was full time military service, but after being moved into the civil service, Tinyefuza was no longer a the full time employee of the army.
RULING
Justice Egonda Ntende said: “Once a threat arises to a person’s fundamental rights and freedom, he is entitled to seek redress in the appropriate court under Article 50 of the Constitution. He does not have to wait for the threat to be put in effect and then claim his rights. The petitioner did not have to be prosecuted before asserting his privilege under Article 97â€.
Justice Ntende said the 1993 army regulations did not govern and regulate the High Command.
He said Tinyefuza’s resignation from the High Command ought to be attended to by the High Command, taking into account the fact that he could not be compelled to belong to it when he no longer wished to be in the army.
“I would find that the petitioner has substantially succeeded in the main prayer. I would grant a declaration to the effect that he cannot be punished or otherwise disciplined or questioned by anybody including the army, for his testimony to the parliamentary committee.†Justices Seth Manyindo, Galdino Okello, Alice Bahigeine, Patrick Tabaro and F. Egonda Ntende heard the case.
APPEAL
The Attorney General appealed against the decision, saying the judges erred in law when they decided that any threatened disciplinary, administrative, criminal or civil action against Tinyefuza in any tribunal, forum or court of law, arising out of his testimony was unconstitutional because it violated Article 97 of the Constitution.
Supreme Court judges James Wako Wambuzi, John Tsekooko, Joseph Mulenga, Alfred Karokoora, George Kanyeihamba and Laetitia Kikonyogo allowed the appeal and set aside the Constitutional Court order.
On January 28, 1998, the Attorney General won the case and Tinyefuza continued to serve the army diligently.
WHO IS GENERAL DAVID TINYEFUZA?
Tinyefuza in Runyankole means, “I don’t regretâ€. And perhaps when he took a decision to testify before the parliamentary committee that was probing the war in the north and to resign from the army, he knew he would not regret his decision.
He is soft-spoken. He has a well-groomed moustache, hardly smiles and you wouldn’t know whether he is happy or not. Tinyefuza loves reading and does a lot of research. He is disciplined, bold and respects his colleagues, as well as commands a lot of respect in the army.
He served as commanding officer during the insurgency in northern Uganda with a lot of dedication and won the President’s admiration.
Tinyefuza is also well known for thoroughly investigating and chairing the committee which probed former army commander Maj. Gen. James Kazini. The committee later recommended that Kazini be tried by the General Court Martial.
Born 56 years ago, he served as senior Commander in Chief from 1991 to 2001, worked as Presidential Advisor on peace and security from 1993 to 1997 and Minister of Defence 1989 to 1992.
Tinyefuza joined the National Resistance Army, now UPDF in 1981, during its guerrilla war aimed at ousting the government of the day. They succeeded and took over power on January 26, 1986, by which time he was a senior officer and historical member of the High Command.
  In 1998, he was promoted to the rank of Brigadier and from 1994 -1995, Tinyefuza represented the NRA in the Constitutional Assembly.
Those who know him well say he does not like controversy and prefers to keep a low profile.
FEEDBACK
If you have comments on this story or you know of any old court story you would like to share with us, send an email to the editor at:
saturday@newvision.co.ug