High Court judge, Hon. Justice Ssekaana Musa has dismissed an application to quash the appointment of Dr. Medard Bitekyerezo as National Drug Authority (NDA) Chairman over alleged conflict of interest and incompetence.
A Kimpi Isabirye, under Miscellaneous Cause No.23 Of 2017, late last year dragged Dr. Bitekyerezo and the Attorney General to court claiming that the 27th January 2017 appointment by the Minister of Health of Bitekyerezo was wrongful since he was “not fit and proper” person to be appointed to the office.
Amongst other allegations, the applicant (Isabirye) claimed that at the time of his appointment, Bitekyerezo run an illegal and substandard pharmacy within his Mbarara Medical Specialist Clinic which was also operating illegally without a license. The applicant further claimed that Bitekyerezo’s flouting of provisions of the National Drug Policy & Authority Act cap 206 and Medical and Dental Practitioners Act cap 272 respectively made him unfit and improper to oversee NDA whose laws he was breaching.
The applicants also wanted the Minister of Health to revoke Bitekyerezo’s appointment over purported conflict of interest since he himself run a pharmacy and could therefore not oversee a body that regulated pharmacies.
The applicant was represented by Mr. Kituuma Magala whereas the Attorney General was represented by Mr. Richard Adrole while Bitekyerezo was represented by Aliyo Galindo of Kalnar Advocates.
In preliminary objections to the suit, BItekyerezo’s lawyers successfully convinced the judge that although the suit had been purportedly brought as public interest litigation, it did not meet the basic criteria of the same.
In his 17th August 2018 ruling, Justice Ssekaana concurred with the lawyers and ruled that the “application is incompetently before this court and is struck out.”
The judge, however, in the interest of what he called “justice and completeness” went ahead to consider the rest of the issues that were raised for determination.
Justice Ssekaana further, following an affidavit from the Uganda Medical and Dental Practitioners found that Bitekyerezo’s Mbarara Medical Specialist Clinic was running legally. He also found that contrary to claims by the applicant, Bitekyerezo did not run any pharmacy and therefore could not be said to be running an illegal pharmacy, but even then went on to rule that since, the law under which the Chairperson NDA is appointed did “not set any eligibility criteria” but rather gave the minister of health unfettered discretion over appointments, it was difficult to declare an appointee fit and or unfit.
“The applicant in this matter has not set out circumstances or plausible facts upon which the exercise of discretion to appoint the 2nd respondent could be challenged on grounds of wrongful exercise of discretion by the minister of Health within the parameters set out in the above decisions. The issue is resolved in the negative,” ruled Justice Ssekana.
The judge also dismissed the alleged conflict of interest saying that the law did not state that “a person who is operating a Pharmacy cannot be eligible to be appointed a Chairperson.”
“It is important to note that there is a representative of the Pharmaceutical Society of Uganda to National Drug Authority Board, such a person may indeed have a private pharmacy; should that mean there is conflict of interest at all times?” ruled the judge, before dismissing the application with costs to the Attorney General and Dr. Bitekyerezo.