Why Uganda’s Major General David Tinyefuza Attempted to Leave the Army Over Harassment
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Tags: Major General David Tinyefuza, Military High Command, Uganda
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The surprise resignation had sparked a war of words between the petitioner and his bosses who were angered by his testimony to the parliamentary committee. When he appeared before court, junior Defence minister Amama Mbabazi said the petitioner remained a member of the armed forces even after his appointment to the public service in 1993.
Fall out with army. On December 3, 1996, then Maj Gen David Tinyefuza (now Gen Sejusa) applied to resign from the army citing harassment and intimidation by the Military High Command. His request was, however, denied, prompting him to run to court.
He is one person many love and hate in equal measure. As a serving senior military officer who sat on the Military High Command, he was the least expected to challenge not only the political authority, but also the army command.
In 1996, then Maj Gen David Tinyefuza (now Sejusa) ran to the Court of Appeal to challenge the decision by then State minister for Defence turning down his request to resign from the army.
This was the first time the new Constitution promulgated in 1995 was being challenged constitutionally.
The Court of Appeal proceedings, which drew huge crowds during the three weeks of hearing, followed a circular dated January 23, 1997, issued by court registrar Joseph Mulangira which set February 18 as the start of the court hearing.
The circular listed a five-member team of justices to hear the case. They were Deputy Chief Justice A. T. Manyindo, G. M. Okello. Mpagi Bahigeine, P. J. M Tabaro and Egonda Ntede.
How it started
The case followed the surprise application by Maj Gen Tinyefuza to resign from the UPDF. Tinyefuza on December 3, 1996, applied to resign from the army citing harassment and intimidation by the Military High Command.
The alleged harassment and intimidation was said to have started following his appearance before the Parliamentary Committee on Defence and Internal Affairs on November 29, 1996.
The committee was probing the war in northern Uganda that was raging at the time. Tinyefuza, also the presidential adviser on defence matters, accused the government before the committee of failing to end the 10-year insurgency.
According to The Monitor newspaper of February 11, 1997, then State minister for Defence Amama Mbabazi wrote to Tinyefuza informing him that the Military High Command had directed that he channels his resignation letter through the Army Commissions Board.
However, the General snubbed the minister’s letter and instead filled a constitutional petition in the Court of Appeal against the army and the government. By so doing Tinyefuza became the first Ugandan and UPDF officer to challenge government in the Constitutional Court since the promulgation of the new Constitution in October 1995.
The resignation had been rejected by the commander-in-chief and President Museveni, who said the resignation letter should have been tendered through the Army commissions’ board.
As the registrar of the Court of Appeal had promised on the appointed date on February 18, 1997, crowds jammed the court to witness the Maj Gen taking on his bosses. Tinyefuza was represented by Godfrey Lule of Sebalu, Lule and Company Advocates.
During the opening of the appeal, Lule told the five-member team of judges that his client “was being harassed by his military bosses following his testimony before the parliamentary committee.”
Lule went on to say: “By the time of resignation, Tinyefuza was no longer a member of the army having been appointed to the public service and was a presidential adviser on military affairs in 1993, although he was still a member of the High command.”
The surprise resignation had sparked a war of words between the petitioner and his bosses who were angered by his testimony to the parliamentary committee.
His petition to the Court of Appeal was seeking to declare the army’s rejection of his resignation and threats to disciplining him unconstitutional and violation of his fundamental human right.
However, in his earlier submission solicitor general Peter Kabatsi, who was representing the State, questioned the validity of the case saying the petitioner had not been wronged in any constitutional way.
The solicitor general asked court to summon then State minister for Defence as a prosecution witness in the case. Though the petitioner’s lawyers were opposed to it, court went ahead and invited the State minister.
But this was before the test of the mastery of the English language when the representative of the petitioner sparked a grammatical debate when he was put to task to explain the difference between “in” and “of” as used in his statement when he said “Tinyefuza was a Major General in the UPDF”.
Appearance of junior Defence minister
When he appeared before court, Mbabazi told court that the petitioner remained a member of the armed forces even after his appointment to the public service in 1993.
“The Major General remained in active military service on his appointment to public service and even drew his food rations and other emoluments,” Mbabazi was quoted by a local daily as saying. “It is standard policy of the UPDF that officer’s that are appointed to high officers outside the army can maintain the membership and they are many examples to prove that.”
He went on to name other high-ranking army officers who had been appointed to public service but remained in the army like then Internal Affairs minister, Maj Tom Butime, Col Kizza Besigye, Uganda’s ambassador to China Brig Fred Oketcho, and Maj General Elly Tumwine.
Mbabazi went on to say that prior to his new appointment, Tinyefuza had gone on to serve as minister of State for Defence and presidential adviser on defence for a two-year contract but did not cease being in the army.
After three weeks of marathon hearing, the two sides made their final submissions. The solicitor general, who was the first to make the final submission, said petitioner Maj Gen David Tinyefuza had failed to prove the violation of his constitutional rights and asked the five member team of judges to dismiss the case with costs.
Lule said in his four-hour long closing remarks that, “The learned solicitor general’s prayer to dismiss the petition should be rejected not only because the petitioner in my view has proved his case but also because of other conscientious issues raised.”
After Lule’s final submission, the head of the five-man team of judges, then Deputy Chief Justice Seith Manyindo, said: “We thank the leaders of both parties for the good work and the research you have done.”
Manyindo promised to notify them on the judgment day.
On April 25, 1997, all the five judges ruled in favour of Maj Gen David Tinyefuza’s constitutional petition which sought to legalise his resignation from the army. His resignation had earlier been declared null and void by the minister of State for Defence on December 8, 1996.
“The minister had no authority to declare the petitioners resignation from the High Command, “said Justice Engoda Ntende in his submission.
He went on to say: “The petitioner’s resignation from High Command ought to be attended by the High Command taking into account of the fact that the petitioner cannot be compelled to belong to the army when he no longer wishes to be a member thereof.”
In justice Tabaro’s submission, he said: “I would grant the orders of redress prayed for and declared that no organs of the State or authority can proceed against the petitioner. By virtue of my findings that taking action against the petitioner would be unconstitutional. I would find a restraining order unnecessary. I would award costs to the petitioner.”
All the five judges agreed that the petitioner ceased in law to be a member of the army in February 1993 upon his appointment as a presidential adviser. Court ruled that Tinyefuza enjoyed an absolute privilege in his testimony to the parliamentary committee on defence, and no on, including the President, have powers to prosecute him.
Overjoyed
The overjoyed Tinyefuza kept smiling as the judges delivered their judgment. After the judgment he was hugged by different people and all he could say was asante sana (thank you very much), it was not until when he was pressed by the media to say something that he said “There is hope for Uganda,” before being driven away.
At the end of April, his lawyers wrote to the army commander, Maj Gen Mugisha Muntu, to collect all army facilities that were with their clients now that he was retired. As a result of that letter, Military Police commandant Brig John Mugume and his men stormed Tinyefuza’s residence in Kyengera where they collected all military ware, including guns, uniform, communication equipment among others.
He was only left with the ceremonial wear. The exercise was witnessed by the police and Tinyefuza’s lawyers.
However, at the beginning of May there was change in government approach. The Attorney General appealed against the Supreme Court ruling which was in favour of the petitioner.
The appeal did not go well with many of the parliamentarians who asked government to let Tinyefuza go.
Though the appeal was made to the Supreme Court, the two parties finally agreed to settle the case out of court. A short while later, Maj Gen David Tinyefuza was back in the army until 2016 when he launched another court battle to leave the army.
Government defence
When he appeared before court, junior Defence minister Amama Mbabazi said the petitioner remained a member of the armed forces even after his appointment to the public service in 1993.
“The Major General remained in active military service on his appointment to public service and even drew his food rations and other emoluments,” Mbabazi was quoted by a local daily as saying. “Its standard policy of the UPDF that officer’s that are appointed to high officers outside the army can maintain the membership and they are many examples to prove that.”
