Court gives Byarugaba permission to challenge Ayota’s NSSF appointment

Kampala, Uganda | THE INDEPENDENT | The High Court has granted Richard Byarugaba, the former Managing Director of the National Social Security Fund-NSSF, permission to amend his petition. He seeks to challenge the appointment of Patrick Ayota, whom he accuses of being ineligible as his successor.

The amendment was approved by Civil Division High Court Judge Musa Ssekaana on Wednesday during the hearing of Byarugaba’s case, in which he seeks to renew his contract as the NSSF MD. During the hearing, Byarugaba, accompanied by his lawyer Anthony Bazira from Byenkya, Kihika, and Company Advocates, informed the court that he had filed an application to amend his petition to challenge Ayota’s appointment.

Byarugaba listed the Minister for Gender, Labour, and Social Development Betty Amongi, and the Attorney General respectively as the respondents to his cases. He argued that Ayota was appointed on August 18th, 2023, while holding the substantive statutory position of Deputy MD on a fixed five-year term, making him ineligible for the MD appointment.   Therefore, he requested the court to invalidate Ayota’s appointment and issue a permanent injunction to prevent Ayota from acting as the MD of the fund.

Alternatively, he asked the court to allow him to amend his affidavit in a petition he filed two months ago, which challenges the government’s decision not to renew his contract. Byarugaba contended that these new developments were created to undermine his application since they arose after filing and service of the judicial review application and are now being used as a defense against his suit. He argued that these developments are unlawful and contravene the principles of the National Social Security Fund (NSSF) Act as amended. He further stated that granting the requested amendments would not prejudice the respondents.

However, in response, the respondents, who today were represented by Wanyama Kodoli and Allan Mukama from the Attorney General’s chambers, opposed the application on grounds that it raises new issues for determination. While relying on the affidavit of State Attorney Ambrose Ocol, they said the application introduces a new cause of action on completely new facts and includes new prayers, including declarations.

As such, the respondents argued that the amendment is intended to defeat/deprive the defense raised earlier in the main case and would prejudice them. They further stated that the application is frivolous, vexatious, and an abuse of the court process because it is merely intended to delay the hearing of the main case. They asked the court to dismiss it with costs.

In his brief ruling, Justice Ssekaana allowed Byarugaba to amend his petition so that the issues could be determined at once. Ssekaana, however, ordered that Byarugaba should make Ayota a party to the case so that he can respond to the allegations being levied against him in the interest of fairness, ensuring that he is not condemned unheard. The case has now been adjourned to October 12th, 2023, for mention.

In August 2023, Byarugaba filed a petition against the Attorney General and Amongi, seeking court orders for Amongi to fulfill her statutory duties and complete his reappointment as the NSSF MD, as recommended by the Board and required by the law. Byarugaba’s argument is based on procedural irregularities and the decision to reject the Board’s recommendation for his reappointment, as well as a violation of his legitimate expectations by not affording him a fair hearing.

He served as the NSSF MD since August 1, 2010, and his second appointment, which began on November 29, 2017, expired on November 30, 2022. Byarugaba contends that even before his second contract could run its course, Amongi attempted to prematurely end it by stating that he should have retired upon reaching 60 years of age. He adds that only with the intervention of the Attorney General was he able to complete his second term of office.

The NSSF Board of Directors had recommended renewing the contracts of both Byarugaba and his deputy Patrick Ayota. However, Amongi renewed only the contract of the Deputy MD and deferred Byarugaba’s appointment, citing various allegations, including financial impropriety, collusion with contractors, defiance of presidential directives, and corruption. Despite stakeholders meeting at State House on December 6, 2022, and receiving guidance from President Yoweri Museveni to conclude Byarugaba’s appointment process, Amongi did not follow the guidance.

Byarugaba argues that this, along with ignoring the February 2023 report of the Parliamentary Select Committee on the state of affairs at NSSF where he was cleared of financial impropriety allegations, makes the decision not to renew his contract illegal, irrational, and procedurally incorrect. According to Byarugaba, the decision also disregarded the Inspector General of Government’s report, which cleared him of allegations and supported the Board’s recommendation based on his previous performance in office.

Records indicate that NSSF, under Byarugaba’s and his Deputy’s leadership, currently has 2,000,000 members and assets worth 17 trillion Shillings. Based on this performance, Byarugaba is seeking to have the decision not to renew his contract set aside.

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