In 2020, a committee chaired by Kadaga said Byabashaija could only get two more years as Commissioner General of Prisons, but the committee that Among chairs in January gave the Prisons boss three more years.
If former Speaker Rebecca Kadaga was still in charge of Parliament, Commissioner General of Prisons Johnson Byabashaija would likely no longer hold his current job.
Byabashaija got a three-year extension in January when President Museveni’s continued faith in him was approved by the parliamentary Appointments Committee.
Byabashaija, who will be 65 in September, clocked retirement age of 60 years in 2017. President Museveni reappointed him on contract until 2020, and again in May 2020.
In 2020, the Appointments Committee of Parliament, chaired by Kadaga as Speaker, had refused to renew Byabashaija’s contract, reasoning that the president had extended the contract by three years yet the law prescribed two-year extensions for Prisons officers who had clocked 60 years of age.
The Committee, chaired by Kadaga, was reading Section 24 of the Prisons Act (2006), which provides that service on contract after one clocks the retirement age of 60 can only stretch to a maximum of four years, dished out in two-year extensions. And, according to the section, the extensions can only happen twice, not more.
Section 24 of the Prisons Act (2006) reads thus: “A Prisons officer who has reached retirement age may apply to the appointing authority to serve in the service on contract for a continuous period not exceeding two years at a time, but in any case, the total number of years served on contract shall not exceed four.”
In light of that, Kadaga’s committee threw back the matter to the president until he reduced the period of Byabashaija’s reappointment from three to two years. And going by that reasoning, that would be the final time he would be reappointed to the position.
But in January, the Parliament’s Appointments Committee, chaired by Deputy Speaker Anita Among, approved the president’s reappointment of Byabashaija as Commissioner General of Prisons for another three years. Sources say a member of the Appointment’s Committee referenced the discussions that happened about the same subject in the former Parliament but was shrugged aside.
Some defend the parliamentary Appointments Committee on okaying Byabashaija’s new contract, arguing that Section 24 of the Prisons Act (2006) does not apply to the Commissioner General of Prisons and his deputy.
Clause (2) (a) of Section 24 says the application to serve in the Prisons service on contract – after clocking 60 years of age – shall be made to the Secretary to the Prisons Authority in the case of a Prisons officer of, or above the rank of Assistant Superintendent of Prisons.
Those who argue the section does not apply to the Commissioner General and deputy base their argument on two grounds; that the provision does not mention the Commissioner General and his deputy, and that the section applies to the Prisons officers who are recruited by the Prisons Authority. The Commissioner General and Deputy are appointed by the President as per Article 216 of the Constitution.
The appointment, however, is on the recommendation of the Prisons Authority under section 10 (1) (b).
On the first argument, the clause refers to a Prisons officer of, or above the rank of assistant superintendent of Prisons. Section 2 of the Act defines a Prisons officer as a member of the Prisons service of whatever rank. That would ordinarily include a Commissioner General and deputy, but some argue the Commissioner General is not a rank but an administrative position.
Frank Baine, the Uganda Prisons Service spokesperson, also says the provision does not apply to the Commissioner General of Prisons and the deputy. He argues that the Act is for other Prisons officers. When one takes up the rank of Commissioner General or Deputy Commissioner General, Baine argues, they cease to be members of the Public Service.
“Their contracts up to that point are dependent on the President. The moment you have already retired from Public Service, you cease being under Public Service laws but the President, who is the appointing authority,” Baine says.
But Dan Wandera Ogalo, a lawyer of renown who has done considerable work in the field of constitutional law, disagrees with the above interpretation.
He says as long as one is still paid by tax payers money, they are still public servants. He also disagrees with the argument that a Commissioner General is not a prisons officer as described under Section 2 of the Prisons Act (2006).
Keeping with then old guard
Over the decades, President Museveni has showed reluctance to let go of public servants whose contracts expire and should ordinarily not be renewed, or clock retirement age.
In 2013, Museveni created an embarrassing situation for the Judiciary when he insisted on keeping the then Chief Justice Benjamin Odoki after he had clocked the mandatory retirement age of 70 years for the Chief Justice and justices of the Supreme Court.
Museveni’s insistence on keeping Odoki on job, and Odoki’s readiness to stay on resulted in former Ntungamo Municipality MP Gerald Karuhanga petitioning the Constitutional Court over the matter, and in the end four out of the five justices on the panel ruled that the president had erred, and that the appointment of Odoki as acting Chief Justice contravened several provisions of the Constitution.
Odoki then went into forced retirement, and his successor, Bart Katureebe, was put in the awkward position of having to repeatedly assure the country that he would retire the moment he clocked 70 and wouldn’t seek to cling on to the position. Katureebe eventually retired in 2020.
Museveni also kept reappointing the late Emmanuel Tumusiime-Mutebile to the position of Governor of Bank of Uganda of Uganda until the latter died in office early this year as he was serving an unprecedented fifth term as Governor.
Before Tumusiime-Mutebile, it was an established custom that the Governors who would serve longest would last two five-year terms, and so when Tumusiime-Mutebile finished his second term in 2011, it was highly anticipated that he would be retired, only for him to get re-appointed three more times.
Going by those and a number of other examples, it would appear that Museveni does not trust easily and once he finds individuals he feels serve him well, he will keep them in place for as long he can. And the law may not necessarily stand in his way.
In 2013, Museveni moved the late Gen. Aronda Nyakairima from beign chief of defence forces to become minister of Internal Affairs. Before deploying Gen. Aronda in Cabinet, the practice had been that soldiers who got appointed to Cabinet retired from the army before taking up their appointments. But Aronda did not, and Museveni reportedly invoked his prerogative to appoint whoever he chose to any position and got the parliamentary Appointments Committee to approve Aronda’s appointment. A number of soldiers, including Aromda’s two successors as CDF – Gen. Katumba Wamala and Gen. David Muhoozi – have since been appointed to ministerial positions without first retiring from the army.
The critics of appointing serving soldiers to become ministers before they retire from the army say the action offends Article 208 of the Constitution, which requires army officers to be nonpartisan, among other things. Appointment to Cabinet predisposes a serving soldier to serving partisan interests of the ruling party.