By KT Reporter
The Constitutional Court has unanimously dismissed a petition challenging unequal employment benefits at the Office of the Auditor General-OAG.
Nine former employees at the OAG, petitioned the Constitutional Court asking it to declare unconstitutional, Regulations 89(1) and 122(4) of the National Audit (Terms and Conditions of Service of Staff) Regulations, 201l claiming that they contravene Article 21(1) & (2) of the Constitution which provides that all persons are equal before and under the law in all spheres of political, economic, social and cultural life and every other respect and shall enjoy equal protection of the law.
The complaint about regulations, which were made in April 2011, created two types of employees: those appointed on contract and those appointed on permanent terms. The petitioners argued that the regulations favoured Staff appointed on contract by granting them gratuity and discriminating against those employed on permanent terms, who are excluded.
The Attorney General and the Auditor General, who were the respondents in the matter, opposed the petition, arguing that it raised no issues for constitutional interpretation. They also contended that the petition does not disclose any cause of action against them since it does not describe any act or omission perpetrated that contravenes any provision of the Constitution.
In his lead judgement, Justice Jesse Byaruhanga Rugyema ruled in favor of the government arguing that employment is a choice and therefore individuals have the right not to accept employment whose terms they don’t agree with.“The petitioners, in exercise of their “right of employment choice” accepted to offer their services under the set of terms and conditions provided by the impugned Regulations. The petitioners are not saying that the terms and conditions are unfavourable or exploitative, but that the terms and conditions are discriminatory on the ground that the regulations have the effect of favouring a section of the staff, excluding the other,” Byaruhanga’s judgement reads in part.
He added that the discrimination envisaged by the constitution in Article 21(2) and the Employment Act, Section 6 is employment based on sex, race, colour, ethnic origin, creed, economic standing, political opinion or HIV & disability and other such categories. “It therefore follows that not all distinction, exclusion or preference in employment and occupation amounts to discrimination. Those categories based on the inherent requirements of a particular job are not deemed discriminatory…I find that the petitioners have not adduced evidence that the impugned Regulations are discriminatory in any way…Once the petitioners who in this case are in the category of employees who did not qualify for gratuity accepted the terms and conditions as provided by the impugned Regulations, it follows that in the circumstances, it cannot be said that they were discriminated against merely because others who offered their services…under different terms and conditions provided by the same rules earned gratuity,” Byaruhanga’s judgement reads in part.
Justices Irene Mulyagonja, John Mike Musisi, Keturah Kitariisibwa Katunguka and Esta Namabayo, who formed the panel of five, were all in agreement with Byaruhanga.
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