THE 23RD GUILD CHIEF JUSTICE HANDOVER MESSAGE!

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AGUMA EUGENE VS ATTORNEY GENERAL CONSTITUTIONAL PETITION NO. 1 OF 2021.

THE REPUBLIC OF UGANDA
IN THE GUILD TRIBUNAL OF UGANDA CHRISTIAN UNIVERSITY
AT MUKONO
IN THE MATTER OF THE CONSTITUTIONAL PETITIONS OF THE GUILD
CONSTITUTION AND
IN THE MATTER OF THE CONSTITUTIONAL PETITIONS REFERENCE RULES CONSTITUTIONAL PETITION NO 1 OF 2021.

CORAM:
Hon Mr. Justice Ainebyona Wilberforce, CJ. Hon Lady Justice Ndagire Helen Julian, DCJ. Hon Lady Justice Evelyn Mugisha.
Hon Lady Justice Dorothy Atatukunda.
Hon Mr. Justice Kizza Arnold Luminsa.

AGUMA EUGENE……………………………………………………………. PETITIONER

VERSUS
ATTORNEY GENERAL OF UCU GUILD GOVERNMENT………………RESPONDENT

JUDGMENT OF HON.JUSTICE AINEBYONA WILBERFORCE; CJ.

INTRODUCTION.
The Constitutional Petition captioned herein above was lodged in this Honorable tribunal pursuant to the provisions of Articles 64, 69 and 70 (1) (a) of the Student’s Guild Constitution, amended as of 22nd November, 2012; and, as well, Order 4 rule 1, 5, 6 and 9 of the Guild Tribunal Rules 2015. The Petition seeks, and pleads for, various reliefs from this Court by way of orders and declarations; and these reliefs prayed for, are set out in full detail here below.
Facts and Background:
On the 25th April, 2021, the UCU Students Guild Parliament carried out an election of the leader of Opposition and finally voted Hon. Ainebyona Arthur as leader of opposition, an act the petitioner contends contravenes the various provisions of the Guild Constitution. Further, the petitioner contends that the act amounts to an amendment of the Guild Constitution.
Reliefs sought by the Petitioner.
a) That the decision of parliament to elect the leader of opposition is not founded on any law and thus unconstitutional
b) That the office of leader of opposition is non-existent and to hold otherwise would result into a violation of the constitution.
c) The petitioner prays for costs of this petition
d) Any other remedy the court may deem fit.
Affidavit evidence.
The petition was supported by the affidavit of Aguma Eugene, the Petitioner.
At the scheduling conference presided over by the secretary to tribunal who doubles as Justice of the tribunal, the Lady Justice Evelyn Mugisha, 3 issues were agreed by both parties and thus framed for courts determination. However, for purposes of study, a scheduling conference is a step/ arrangement carried out by the court prior to the holding of the trial of the case. Order 5 and rule 1 of the Tribunal Rules of Procedure as of 2015 states that” The tribunal shall hold a scheduling

conference to sort out points of agreement and disagreement, the possibility of mediation, arbitration and any other form of settlement”. This requirement is further emulated by Uganda’s Courts of Judicature by virtue of 0rder 12 and rule 1 of the Civil Procedure Rules SI- 71, (Laws of Uganda). A scheduling conference is basically aimed at indicating what exactly the parties (petitioners and respondents) have agreed upon, their points of divergence and finally what issues they have laid down for courts determination. A number of decided cases both of local and persuasive jurisdiction have emphasized the essence of a scheduling conference and why it must be followed by court before hearing of the case and these include See: Male Mabirizi & Ors vs Attorney General Constitution Petitions Nos.49 of 2017,3 of 2018,5 of 2018, 10 of 2018 and 13 of 2018, Saleh Kamba & Anor v Attorney General & 4 Ors Constitutional Petition No.16 of 2013, Dr James Akampumuza vs Attorney General, Makerere University and others Constitutional Application No.57 of 2010 arising from Constitutional Petition No.47 of 2010, Uganda Law Society & Anor vs The Attorney General Constitution Petition No 2 of 2002 and
The Attorney General of the Republic of Uganda vs The East African Law Society & Another Appeal No.1 of 2013 amongst others). Upon discussing shortly what a scheduling conference is, the issues agreed upon by parties to the Petition and adopted by Court for determination, are as follows.

1. Whether the act of electing a leader of opposition by Parliament is constitutional?
2. Whether the act of electing a leader of opposition amounted to an amendment of the UCU Student’s Guild Constitution.?
3. What remedies are available to the parties?
   

Representation.
Petitioners/ Applicants.
At the hearing of the Petition, Counsel Turinamukama Bayern Turinawe, Counsel Timothy Orima and Counsel Obi Allan (holding in brief) represented the Petitioner.
Respondents. The respondent was represented by Guild Attorney General Maria Nagadya Diana Angel, Simon
Nkurunga (senior state attorney in the Attorney General’s Chambers) and Dorothy Natukunda (senior state attorney in the Attorney General’s chambers).

Upon application by learned counsel for the parties, leave was granted to them to file written submissions. In the detailed submissions, counsel for the respective parties cited various authorities in support of their arguments, which I found to be very useful. I have considered the said submissions and authorities without necessarily having to reproduce them in this judgment. I applaud counsel for extensive and valuable research which assisted the tribunal in the determination of this matter.
Before considering the Petition, I am inclined to first deal with, and dispose of what appears from the submissions of either Counsel to be a preliminary objection.
Counsel for the Petitioner raised a preliminary objection on the competence of the respondent’s affidavit as the respondent did not swear his affidavit before a Commissioner for Oaths, contrary to section 5 of the Commissioner for Oaths Act Cap 19, Laws of Uganda and Rule 7 of the Commissioner for Oaths Rules. He further contended that the signature of the deponent (Mugisha Gavin) on the copy that was served on them was either scanned or photocopied which definitely meant that the deponent did not appear before the commissioner for oaths to swear the affidavit. Relying on JSC Katureebe’s ruling in the Supreme Court in Kakooza John Baptist v Electoral Commission & Another, Election Petition Appeal No.11 of 2007, where he stated “that practice where a deponent of an affidavit signs and forwards the affidavit to a commissioner for oaths without him being present is, in my view, a blatant violation of the law regarding making affidavits and must be condoned in any way” Counsel for the petitioner submitted that the procedural requirements in regard to signing of affidavit must at all times be complied with failure of which will render the concept of civil procedures useless. Therefore, being persuaded by the ruling in Kakooza John Baptist v Electoral Commissioner and Another (supra), prayed that the tribunal through its discretion struck out the affidavit off the court record.
In response, counsel for the respondent Attorney General Diana Nagadya, conceded that it was a scanned signature and that the deponent of the affidavit did not appear before the commissioner of oaths who commissioned it. However, relying on Article 126(2) (e) of the 1995 Constitution, as

Amended submitted that at times, courts shall dispense off justice without undue regard to technicalities as thus asked court to regard that as a mere technicality and proceed to administer justice based on the fact that the substantive facts where well in stipulated in the affidavit regardless of the scanned signature of the deponent.
Analysis
According to the Black’s Law Dictionary 3rd Edition, a preliminary point of objection is defined as a formal step by which parties raise of questions of law which they contend should be dealt with separately, before commencing with the main issues in the proceeding by court. It raises a pure point of law which is usually on the assumption that all the facts pleaded by the other side are correct and thus based on a commonly accepted set of facts as pleaded by both parties. See:Eng John Eric Mugyenzi vs Uganda Electricity Generation Company Limited CACA No 8/ 2008, Crane Bank Limited (In Receivership) vs Sudhir Ruperalia Civil Appeal No 252 of 2019, Riley Services Limited vs The Judiciary Civil Appeal No 38 of 2015, Yaya v Obur and Ors Civil Appeal No. 81 of 2018).
It is trite law that points of law can be raised at any stage of the proceedings either orally or by application whether or not they were pleaded in the pleadings or not. See: Mukisa Biscuits Manufacturing Co. Ltd West End Distributors Ltd [1996] 1 EA, Hon Mr. Justice Bashaija Andrew in Mathias Lwanga Kaganda versus UEB CS No.124 of 2003 and Nakiryowa Majorie Kiddu and another vs Maurice Sserugo Kiddu and The Administrator General Civil Suit No.587 of 2015). Inference is drawn from Order 15 rule 2 of the Civil Procedure Rules SI-71 Laws of Uganda which dictates that once of points of law are raised, Court has to resolve them in a first a Ruling or Judgment. However, important to note, it’s a matter of courts discretion as regards when to dispose of the preliminary point of law either immediately or defer its ruling until after hearing the whole case. This implies that no hard and fast rule can and should be laid down to fetter the courts discretion. See: Uganda Telecom Ltd vs Zte Corporation CA No.03 of 2017, Attorney General versus Oluoch [1972] EA 392, Express Electrical Engineers & Contractors vs Uganda Posts and Telecommunications Corporation Civil Appeal No.8 of 1980, The Attorney General v Major General David Tinyefunza, S.C. Constitutional Appeal No.1 of 1997. A party who desires to raise a preliminary point of law herein either has an option of invoking order 6 rules 27 and 28, or Order 6 rule 29 and order 7 rule 11 of the Civil Procedure Rules SI-71, Laws of Uganda, a clear

distinction between Order 6 Rule 27 and 28, or Orders 6 Rule 29 and Order 7 rule 11 was clearly fortified by the decision in Ismail Serugo vs Kampala City Council and Anor Supreme Court Const Appeal No.2 of 1998. Basing on the Supreme Court ruling in Uganda Telecom Ltd vs Zte Corporation (supra) and similarly in Attorney General vs Oluoch [1972] EA 392, it’s from this basis that the tribunal opted to exercise its unfettered discretion by pronouncing itself on the preliminary point of objection raised after hearing the whole case, as follows;
Issue 1: Whether the respondent’s affidavit be struck out on the basis of the scanned signature of the deponent.
According to Mulla, The Code of Civil Procedure Vol,17th Edition, an affidavit is defined as a written statement on oath that sets out matters that are within the knowledge and belief of the person making it in person. The person making such belief is one referred to as the deponent, in other words a deponent is a person who makes an affidavit under oath. See: Binaisa Nakalema & 3 Others vs Mucunguzi Myers; MA No.460 of 2013 where court referring to the earlier decision in Taremwa Kamishana Tomas versus Attorney General discussed the concept of deponents as the persons who make written statement on oath satisfying that the matters set out are within their belief and knowledge and it must at all times by authorized by the deponent themselves before the commissioner of oath). An affidavit is similar in form to a statutory declaration which is also made on oath for the purpose of declaring the truth. However, the distinction between the two is well set in section 2 of the Statutory Declarations Act Cap,22 Laws of Uganda in that the former (affidavits) are restricted to court matters while statutory declarations are restricted to other matters not referable to court, except where a particular written law provides otherwise. An affidavit also acts as a means of adducing evidence in court, inference on this can be drawn from Order 19 rule 1 of the Civil Procedure Rules S1-71 and further r 2(1) of the same rules. See:
Massa v Achen [1978] HCB 297, Dr. Sheikh Ahmed Mohamed Kisuule v Greenland Bank Limited (In liquidation) HCMA 616 of 2007).
The rationale behind affidavits, I opine is basically to fully ascertain whether the facts contained in the affidavit therein are in the best knowledge of the deponent so that court may proceed to hear the matter. This serves as a way of administering justice especially in situations where the deponent can’t easily be reached or appear in court in person because of some justified difficult beyond his/her control. In other words, they serve as a fly over of dispensing off justice though this must

follow procedural requirements as well set in the Commissioner of Oaths Act Cap,19 Laws of Uganda in line with Commissioner for Oaths (Advocates) Act Cap 5, Laws of Uganda (Emphasis mine). The formal requirements of affidavits are well set forth in the aforementioned statutes and the rules governing the same as seen in Order 19 r 3 of the Civil Procedure Rules S1-71. See: Kaigama v Dabo Bourbon [1986] HCB 58).
Invoking the Commissioner of Oaths Act Cap 19, Laws of Uganda and the Commissioner for
Oaths (Advocates) Act Cap 5, Laws of Uganda, it’s a procedural requirement that before a commissioner puts his signature on affidavit or any other document that is before him, the person who is depone in that affidavit has to be before the commissioner so that the commissioner can first ascertain whether the deponent knows the facts within the affidavit and whether he/she believes they are true. See: Bishop Patrick Baligasiima vs Kiiza & Others Misc. Application No.1495 of 2016 Arising from Misc. Application No.471 of 2016 and Civil Suit No. 279 of 2016).
It wasn’t disputed by counsel for the respondent that the signature on the affidavit is scanned. Clearly, this offends section 6 of the Oaths Act, Cap 19 Laws of Uganda which is in pari materia with section 5 of the Commissioner for Oaths (Advocates) Act Cap 5, Laws of Uganda. As both sections provide:
“Every commissioner for oaths before whom any oath or affidavit is taken or made under this Act shall state truly in the jurat or attestation at what place and on what date the oath or affidavit is taken or made”. (Emphasis added)
Clearly, these provisions require an affidavit to be made before a commissioner for oaths. This requirement is strengthened by rule 7 of the Commissioner of Oaths Rules which clearly spelt that:
“A commissioner before taking an oath must satisfy himself or herself that the person named as the deponent and the person before him or her are the same and that the person before him or her are the same and that the person before him or her are the same and that the person is outwardly in a fit state to understand what he or she is doing”. According to this rule as earlier hinged on, the requirement that a deponent of an affidavit should appear before a commissioner of oath serves very important purposes, namely; to identity the person named as the deponent and to assess his/her mental fitness. This has been supported by a number of legal jurisprudences to include. See: Joy

Kaingana vs Dabo Boubou (supra,Vicent Kafeero & 11 Ors versus AG;Misc Application No.048 of 2012, Mukuye &106 Ors versus Madhvani Group Ltd, Misc. Application No.0821 of 2013 from Civil Suit No 0651/2012, Makerere University versus St. Mark Education Institute & Ors; HCCS No.378 of 1993).
Further as counsel for the Petitioner clearly averred in his submission, the practice where affidavits are not made before a commissioner for oaths was criticized by the Supreme Court in Kakooza John Baptist versus Electoral Commission & Another (supra), as per Katureebe, JSC who stated that:
“The practice where a deponent of an affidavit signs and forwards the affidavit to a commissioner for oaths without him being present is, in my view, a blatant violation of the law regarding making affidavits and must not be condoned in any way. The deponent of an affidavit must take oath and sign before the commissioner for oaths as required by law. A commissioner who commissions an affidavit without seeing the deponent cannot say that the affidavit was taken or made before him or her, nor can he state truly in the jurat or attestation at what place or time the affidavit was taken or made. Equally the deponent cannot claim to have taken or made the affidavit before the commissioner for oaths.” Ideally, this case presents that failure to comply with this requirement renders the affidavit incurably defective and must struck out. See: Jayantilal Amratlal Bhimji & Another vs Prime Finance Company Ltd, Misc. Application No.467 of 2007; Kaingana v Dabo Boubou (supra) and Attorney General versus Kilembe Mines Ltd & Another, Misc. Application No.702 of 2008).
However, notwithstanding the above stated legal jurisprudence. I am alive to the fact that this tribunal is mandated under Article 65 (1) (e) of the Students Guild Constitution, amended as of 22nd November, 2012 and further under Article 126(2) (e) of the 1995 Constitution of the Republic of Uganda, as Amended to administer substantial justice without undue regard to technicalities. The spirit behind the above stated provisions reminds this tribunal of the basic purpose of all litigation which is to try as much as possible to promote justice so that all matters in controversy between parties are fairly adjudicated upon; and determined. See: Baligasiima vs Kiiza & Others (Miscellaneous Application No.1495 of 2016). Whereas, it’s a matter of both law and practice that a person depone in the affidavit must at all times appear before the commissioner of oath at the time of signing a signature as well guided by the provisions of Section 5 of the

Commissioner of Oath (Advocates) Act (supra) in line with Rule 7 of the Commissioner of Oath Rules and a number of aforementioned legal jurisprudence including the Kakooza vs The Electoral Commission (supra). I take cognizance of the fact, that this rule may vary according to the circumstances of each case take for instance in the case of Gordon Sentiba & 2 Ors vs Inspectorate General of Government CACA 14 of 2007 where it was held that failure to comply with the requirement as set under section 5was regarded as mere technicality.
While counsel for the Petitioner asserts that Section 5 of the Commissioner of Oaths (Advocates) Act (supra) must be interpreted in its strictest sense and thus must be complied with, to which I agree, he must at the same time be mindful of the fact that such a section is in line and fits within the ambits of constitutional provisions that support dispensing of speedy, fair and equal justice as well stipulated under Article 65(1) ( e) of the Students Guild Constitution in line with Article 126 (2) ( e) of the 1995 Constitution of Uganda. Therefore, the question before this Honorable tribunal is does the scanned signature in question dig down to the fundamental roots of the affidavit to render the whole affidavit incurably? Once disregarded, does it pose far reaching effects on the entire affidavit. To answer the above questions, the tribunal ought to examine whether the scanned signature correctly corresponds with the deponent mentioned in and then whether the deponent is fully aware of the averments made in the affidavit are to the best of his knowledge. Upon answering such questions, the tribunal may ascertain whether or not the entire affidavit be struck out on basis of the scanned signature on the affidavit.
As courts ought to take caution and pay keen attention to the procedural improprieties brought to their attention by either counsel just like in the matter before us, they must at all times first assess and ascertain the extent to which such impropriety affects the subject matter before rendering the entire subject matter defective. Otherwise, the courts may be termed as “loiters or dawdlers” for errors which would have been curable under Article 65 (1) (e) of the Students Guild Constitution in line with Article 126(2) (e) of the 1995 Constitution of Uganda, as Amended. In other words, the courts must desist from the back-and-forth movement of litigants in its premises based on a matter of technicality that can be easily resolved without affecting the subject matter least they may be substituted to a market place. Take for instance where “a one Nobert buys an avocado from a market and because it isn’t ripe to his expectations, he goes back to claim for another. But even then, a one Nobert would have regarded this as a mere technicality as he can still eat

the avocado for as long its fit for human consumption without necessarily having to waste his time and resources to have a recourse to the market place. But because there lies a distinction between a market place and court justifies why Nobert can back and forth move to the market until he fulfills his exact desire even for a mere issue that could have been resolved by either opting to eat the avocado or store it somewhere in his fridge for it to ripen to his expectations and be enable to eat “. (Emphasis mine). Whereas this may be the practice in the market, this shouldn’t be the practice in courts of law. Whereas the courts must apply strict interpretation of procedural requirements, this shouldn’t serve to the desire of one party and to the detrimental of the other party, for the core mandate of the tribunal must be seen to manifest which in my opinion is equal access to justice. This can be done by the tribunal either disregarding such an error as a technicality especially in situations where such technicality doesn’t any in sense affect the gist of the subject matter “affidavit” in this case. Notably, this will help promote justice on either side because at the end of the day, the courts are not employed to satisfy one party’s desires but avail justice to all parties.
It’s not in dispute that the requirements as set forth under Section 5 of the Commissioner of Oaths (Advocates) Act (supra) in regard to affidavit are not only matters of law but also a court’s checkpoint of the advocates competence through ascertaining which law school one attended and then if they fully appreciated the law on Civil Procedure. However, I opine this shouldn’t serve as a yardstick to defeat justice on errors that would be curable by the courts of law without necessarily having to render the entire affidavit defective.
Clearly from the submissions of counsel for the respondent, whereas this is a scanned signature, it’s clear on court record that the deponent doesn’t dispute to any facts in the affidavit. Its further on court record that indeed the scanned signature on the affidavit does correspond with the deponent’s signature. This is based on the fact that the commissioner of oath was with the deponent himself at the time of the appending the signature. Reckoning back on the import behind the provision of Section 5 of Commissioner of Oath (Advocates) Act, I am of the view that the major purpose of the deponent appearing before the commissioner of oath is to ascertain whether what is embedded in the affidavit therein is to the best of their knowledge of the deponent. Therefore, the phrase in Section 5 (supra) that the deponent at the time of signing must be before the commissioner of oath shouldn’t in my view be strictly interpreted if justice to be served. If the court is able to

satisfy the fact that indeed the deponent agrees to whatever is embedded in the affidavit which is the primary goal behind the stated provision in my view, I believe the question of scanned signature is immaterial in that regard and may be treated as a mere technicality. Had there been a dispute in the contents raised in the affidavit and a contradiction in the signature perhaps this would have rendered the entire affidavit defective. But as it has been justified to the contrary by counsel for the respondent that scanned signature doesn’t anywhere dig down to the contents of the affidavit as the deponent fully affirms that whatever contained in the affidavit is to the best of his knowledge. And neither has it been disputed nor questioned by counsel of the
Petitioner leaves the tribunal’s hands tied on rendering the entire affidavit defective but rather regard it as a mere technicality if justice to be seen to be done.
I must note that Uganda’s Parliament in 2011 enacted the Electronic Signatures Act, 2011 which Act though not particularly addressing affidavits intends to cater and permit electronic signature for which in my view, a scanned signature on an affidavit is part. Clearly from this Act, the legislators intended to mitigate the rigid restrictions posed by the law that require physical appearance of a person by availing options one may exercise in the event they can’t appear physically. Further, it’s my reasoned opinion that this Act intended to reflect the true notions of Article 65 (1) (e) of the Students Guild Constitution in line with Article 126 (2) (e) of the 1995 Constitution of Uganda, as Amended to which this tribunal must at times be bound.
Being guided by Article 65(1) (e) of the Student’s Guild Constitution and Article 126(2) (e) of the 1995 Constitution, I contend whereas its good practice that the deponent must all times appear in person before the commissioner of oath at the time of signing pursuant to Section 5 of the Commissioner of Oath (Advocates) Act (supra), something advocates ought to adhere by. This rule shouldn’t at all times be given strict interpretation if justice is to be seen to be done in the courts of law, for a scanned signature can still amount to a valid signature if a proper justification is adduced just like in the instant facts where, Counsel for the respondent fully affirmed that deponent affirms to every point raised in the affidavit, she further submitted that the commissioner of oath was in full touch with the deponent even at the time of filling the affidavit though the deponent given the nature of his duty was soon called on to take on government assignment thereby optioning to scan his signature as he was between a rock and hard place (emphasis mine).

Conclusively, in exercise of courts discretion and in line with Article 65 (1) (e) and Article 126 (2) (e) of the 1995 Constitution, as Amended and the decision in Moses K. Katuramu vs Attorney General Appeal Civ.Appeal No.2 of 1985, Wambuzi P. (as he then was) sated thus “In interpreting a provision of the law a Court must ensure justice and pay less respect to technicalities “. It’s my view that in the interest of justice on either side, the scanned signature be regarded as a mere technicality as opposed to striking out the entire affidavit defective from court record as been discussed therein.
Preliminary point of objection 2. Whether the tribunal has original jurisdiction over the subject matter of the Petition.
It was the Attorney General’s contention that this tribunal has no jurisdiction to entertain the Petition as it doesn’t raise any issue for constitutional interpretation as provided for under Article 137 of the 1995 Constitution of Uganda, as Amended. Counsel for the respondent, Dorothy relying on the cases of Ismail Serugo vs Kampala City Council and another, Constitutional Petition No.14 of 1997 and Paul Kwanga Ssemwogerere and another vs Attorney General, Constitutional Petition No 3 of 1999, where court held that where a petition does not raise a question for Constitutional Interpretation, then it should be dismissed. On this basis, Counsel contended that the facts as submitted by the Petitioners don’t reflect any law requiring interpretation of the Constitution within the meaning of Article 70 of the Students Guild Constitution, and thus prayed that the Petition be dismissed with costs for being incompetent.
In response Counsel for the Petitioner Bayern Turinawe submitted that jurisdiction is a creature of statute. He contended that pursuant to Article 69 of the Students Guild Constitution this tribunal is endowed with the mandate to hear and determine disputes among the students, and further held that under Article 70 of the Students Guild Constitution, the tribunal did have jurisdiction to hear the matter. He submitted that the complaints raised in the Petition such as the election of the leader of opposition fall within the ambits of the “acts” and “omissions” which happen to contravene certain provisions of the Students Guild Constitution such as Article 27(1) (e) thereby requiring interpretation which jurisdiction, this tribunal is enjoined with under Article 70 of the Students Guild Constitution in line with Article 69 of the Students Guild Constitution.
Analysis

It is trite that jurisdiction is a term of comprehensive import embracing every kind of judicial action and that the term may have different meanings in different contexts. It has been defined as the limits imposed on the power of a validly constituted court to hear and determine issues between persons seeking to avail themselves of its process by reference to the subject matter of the issues or to the persons between whom the issues are joined or to the kind of relief sought. See: A. G of Lagos State v. Dosunmu (1989) 3 NWLR pt.111, pg.552 SC, Mukasa vs Muwanga HCMA No.31,1994, Athanasius Kivumbi Lule v Hon.Emmanuel Pinto Constitutional Petition No 5 of 1997 Mulla, The Code of Civil Procedure Vol 1, 17th Edition page 409). It therefore means and includes any authority conferred by the law upon the court to decide or adjudicate any dispute between the parties or pass judgment or order. A court or tribunal cannot entertain a cause which it has no jurisdiction to adjudicate upon lack of which goes far beyond any error, omission or irregularity nor can it be regarded as a mere technicality but rather a nullity since no court can confer jurisdiction upon itself. Therefore, a court must have both jurisdiction and competence in order to be properly seized of a cause of a matter. The rationale behind this is basically to prevent a court from proceeding on a matter that is entirely, or in part, outside of its remit; and thereby wasting much resources and effort for no good reason.
The issue of jurisdiction was extensively dealt with by the Kenya Court of Appeal in the case of Owners of Motor Vessel Lillian “s” v. Caltex Oil Kenya Limited [1989] KLR 1 in which Nyarangi
JA, citing Words and Phrases Legally Defined vol.31- N at page 13 held:
By jurisdiction, is meant the authority which a court has to decide matters that are before it or take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by statute, charter or commission under which the court is constituted and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters which the particular court has cognizance or as to the area over which the jurisdiction shall extend, or it may partake both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it had jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether

the facts exist. Where the court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing.
The Court of Appeal further held that:
Jurisdiction is everything without it; a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that is without jurisdiction. Drawing from the above decision and as early hinged on, jurisdiction is the power or authority vested in court to “decide matters that are before it” or “to take cognizance of matters in a formal way for its decision. It then be equated to a “National identity card, you either have it or not” (emphasis mine). Important to note is One cannot speak of jurisdiction without the power or authority to make a decision on the merits. To have jurisdiction is to have the power to inquire into the fact, to apply the law and to declare the relief in a regular course of a judicial proceeding.
Owing to the above fact, the Guild tribunal established under Article 64 of the Students Guild Constitution (Chapter 7) derives its jurisdiction from the provision of Article 70 of the Students Guild Constitution, which states as follows:
Article 70 of the Students Guild Constitution states;
(1) The Guild Tribunal shall have jurisdiction to hear and determine any question arising within the Student Guild or among the students on:
(a) Any matters regarding the interpretation of this Constitution
(b) Any matters relating to the enforcement of Guild Statutes
(c) Matters relating to abuse of human rights
(d) Election petitions of Members of Parliament;
(e) Election of the Speaker and Deputy Speaker of Parliament;
(f) Disputes between students which are not criminal in nature including all civil cases that are based on contractual, trust and equity basis.

Spelling out Article 70 (1) of the Students Guild Constitution which forms the basis of this issue, it clearly stipulates that this tribunal is envisaged with the jurisdiction in regard to interpretation or constitution of the provisions of the Constitution. Important to note, is this provision must be read together with all other the provisions that establish and ear mark the mandate of the Tribunal for instance Articles 64, 65 and 69 of the Students Guild Constitution. Particularly, Article 69 (supra) states “the tribunal shall have the duty of hearing and determining cases between students and ensuring discipline, order, peace and equity prevail among the students”. Clearly, from understanding of Article 69 (supra), I opine the framers of Constitution intended to envisage this tribunal with the unlimited jurisdiction to hear and determine any matter in light of Article 70 of Guild Constitution for as long as it raises a question of law and dispute amongst the students. See: Kugonza Isaac & Anor vs Attorney General Constitutional Petition No.1 of 2014 in the Uganda Christian University Tribunal. Further, the provision of Article 70(1) of the Student’s Guild Constitution is in pari materia with Article 137 (1) of the 1995 Constitution of the Republic of Uganda, as Amended to which this Tribunal is subject. This is because Uganda Christian University established by the Uganda Christian University Charter Notice, 2005 derives its validity from The Universities and Other Tertiary Institutions Act,2001 (Act No.7 of 2001) which Act obtains usage and effectiveness from the 1995 Constitution of the Republic of Uganda. Therefore, citing, Article 137 of the 1995 Constitution as put forth by the Counsel for the respondent in her submission, Article 137 (1) of the 1995 Constitution envisages the Court of Appeal of Uganda sitting as Constitutional Court with unlimited jurisdiction with regard to matters pertaining interpretation of the Constitution, the import of the same is well reflected under Article 70(1) of the Student’s Guild Constitution. Clearly, what stands out in all of the above stated provisions is that for this tribunal to have jurisdiction over any complaint brought before it in light of Article 70(1) of the Students Guild Constitution, then interpretation of a provision of the Constitution must be necessary in the resolution of the said complaint. See: Attorney General vs Major General David Tinyenfuza, Supreme Court Constitutional Appeal No.1 of 1997, Ismail Serugo vs Kampala City Council & Another Constitutional Appeal No.2 of 1998, Mbabaali Jude vs Hon.Edward Kiwanuka Ssekandi Constitutional Petition No. 0028 of 2012, Herman Semujju vs Attorney General Constitutional Petition No.1 of 1998, Charles Kabagambe vs Uganda Electricity Board Constitutional Petition No.2 of 1999 and Paul Ssemwogerere and 2 others vs

Attorney General Constitutional Petition No.1 of 2002, Engineer Edward Turyomurugyendo & others vs Attorney General & Others Constitutional Petition No.25 of 2009.
In order to determine whether this tribunal has jurisdiction over the complaints set out in the Petition in the instant matter, the criteria set by Wambuzi CJ with the concurrence of the rest of the court in Ismail Serugo vs Kampala City Council & Another Constitutional Appeal No.2 of 1998, becomes very instructive as he thus stated; “for the Constitutional Court to have jurisdiction the petition must show, on the face of it, that interpretation of a provision of the Constitution is required. It is not enough to allege merely that a Constitutional provision has been violated”
The Petition before us clearly as evident in the affidavit in support of petition prima facie raises questions of constitutional interpretation of particular provisions of the Students Guild Constitution. Particularly interpretation of Articles 27 (1) (e) of the Guild Constitution and ascertain as to whether then the act of Parliament electing the leader of opposition contravenes the same as contended by the Petitioners. Important to bear in mind, is that provision of Article 137 of the 1995 Constitution, as Amended is not strictly inclined to interpretation of the Constitution as it ought to read as a whole as it clearly enjoins the Constitutional Court with the power to determine whether an impugned provision of Act of Parliament contravenes a provision of the Constitution, or whether a person, or an institution has acted in a manner that violates a provision of the Constitution. From the wording of Article 137(3) of the 1995 Constitution, an act or omission is not strictly inclined to an Act of Parliament, in my view, the clear and broader interpretation of Article of 137(3) of the 1995 Constitution is that any act whether an activity done by institution which in the case before us is Parliament happens to be in contravention of the certain provisions of the Constitution, then the Constitutional Court is endowed with jurisdiction to hear such a matter. In the instant facts, it is clear the Guild Parliament as an institution/ Arm of Guild Government participated in carrying out an election of leader of opposition in Parliament, an act which the petitioners contend contravened the provisions of the Students Guild Constitution such as Articles 27 (1) (e) of the Guild Constitution justifying as to why this Honorable Tribunal enjoys the unfettered jurisdiction to hear this matter.
Further, based on the fact that the question of interpretation and contravention are intertwined in that, the former serves the latter justifies that indeed this tribunal enjoys in rem rights of jurisdiction

in this matter. Take for instance “one can’t give birth to a bouncing baby before they become pregnant” (emphasis mine). For the act of getting and being pregnant automatically leads to the determination of whether or not giving birth to a baby. This equally applies to this court, in order to ascertain whether or not the act of electing a leader of opposition as contended by the Petitioner contravened the various provisions of Constitution as contended by the Petitioner. This tribunal ought to interpret the stated provisions firstly and this will automatically determine the tribunal’s stand on whether or not indeed the act contravened the provisions of the Guild Constitution. For interpretation serves as the first step to determining whether or not the act is in contravention of the Guild Constitution by Court.
Being guided by Article 70(1) of the Student’s Guild Constitution in line with Article 137 of the 1995 Constitution, as Amended, I contend that this tribunal is envisaged with the jurisdiction to hear and determine the above stated Constitution Petition.
Having determined the preliminary objection, I now proceed to determination of the issues as;
As already established, the question of jurisdiction is very important as each court must at all times before determining itself on matter ascertain as to whether it seized with the power to hear such matter. Clearly, as resolved in the Preliminary point of objection, this tribunal is enjoined with the perquisite jurisdiction pursuant to Article 70(1) of the Students Guild Constitution, as Amended 22nd November, 2012 to hear this petition as it indeed entails Constitutional interpretation as to whether the act by Parliament electing a leader of Opposition contravenes the stated provisions of the Students Guild Constitution.
The Guild tribunal, like any other tribunal, has the mandate bestowed upon it under the provision of Article 66 of the Students Guild Constitution, to act in the name of the Guild and in conformity with the values, norms and aspirations of the Guild in whom the power vests. In the exercise of its oversight role, this tribunal has to ensure that whatever act, omission done any authority or institution conferred upon such power by this Constitution is subjected to, is in accord with the clear provisions of the Constitution in that regard. Thus, with regard to the petition before us for determination, it is incumbent on this tribunal to determine whether, or not, the impugned act, or anything done by authority or an institution contravened the respective provisions of the Constitution, as are alleged by the petitioner.

As judicial officers, upon whom this Constitutional remit is bestowed, we exercise the responsibility with a clear sense of purpose; and do so in the full knowledge that it is a noble duty we exercise in the name, and for the good, of the guild in whom ultimate power vests. In other words, the tribunal must all times in its service exhibit true notions of fair, equal and speedy justice to the students on whose behalf we exercise judicial power (Guild within the meaning of Article 4 of the Students Guild Constitution). Article 66 of the Guild Constitution is more specific on the role and function of the tribunal in the administration of justice, and provides as follows: “Article 66. Exercise of quasi-judicial powers
(1) Quasi-judicial power is derived from the Charter and the Guild and shall be exercised by the Tribunal established under this Constitution in the name of the Guild and in conformity with the values, norms and aspirations of the Guild.
Burden of Proof.
As is the case with all other matters brought before the tribunal, the burden to prove each of the grounds raised in the Constitution Petition, that an impugned provision of a statute or any act or omission done by any authority offends some provision of the Constitution, rests on the person challenging the validity of such an act or the enactment. This is in accordance with the provisions of section 106 of the Evidence Act (Cap 6, Laws of Uganda 2000 Edn) which states as follows; “106. Burden of proving, in civil proceedings, fact especially within knowledge.
In civil proceedings, when any fact is especially within the knowledge of any person, the burden of proving that fact is upon that person”.
Important to note is that burden only shifts onto the respondent in the case of evidential burden onto the Respondent upon the Petitioner either raising a prima facie case necessitating adverse proof by the Respondent; or where the evidence required to determine the matter before Court is either in the possession, or only within the knowledge, of the Respondent. See: Amama Mbabazi vs Museveni & 2 others Supreme Court Presidential Election Petition No.1 of 2016,Raila Odinga v Uhuru Kenyatta & Anor Kenya Supreme Court Presidential Election Petition No.1 of 2017, NTN Pty Ltd vs The State Constitutional LRC at page 333, Re Rivas and the Belize

Advisory Council [1993] 3 LRC 261, Canadian Case of Regina vs Oakes,26 DLR (4th) 201, Patel vs Attorney General [ 1963] ZLR 99, Re Ontario Film Appreciation Society and Ontaria Board of Cencers 147 DLR (3rd) 58 at page 64).
Upon establishing who bears the burden of proof, I will now proceed to outlay the rules of constitutional construction or Interpretation that will aid this Honorable Tribunal in determining itself on the raised issues for determination.
Rules of Constitutional Construction or Interpretation.
Rules of Constitution Interpretation are basically the tools/ mechanisms that guide the courts of law in construing certain constitution provisions so as to establish the true meaning and spirit behind those provisions. (Emphasis mine).
The general principles governing constitutional interpretation were ably propounded by their
Lordships of the Supreme Court in the case of Major General David Tinyefuza vs Attorney General Constitutional Petition No.`1 of 1997 (unreported) and on appeal in Constitutional Appeal No.1 of 1997(unreported) in the Supreme Court of Uganda. These principles have been restated in a number of Constitutional Cases amongst which include Zachary Plum and Another Vs Attorney General Constitutional Petition No.6 of 1999(unreported), Dr. James Rwanyarare and Another Vs Attorney General, Constitutional Petition NO.5 OF 1999(unreported). These principles include the following

1. The Constitution is the Supreme law of the land and forms the standard upon which all other laws other laws are judged. This rule emphasizes the Constitution as the fountain of the rule of law and thus not an ordinary document, for it is a sacred legal instrument (Juristic philosophers such as Prof Hans Kelsen has referred to it as a ground norm. See: Tur and Twining, Essays on Kelsen (1986) & Paulson’s Articles (in particular (1992) 12 O.J.L.S.311 (emphasis mine). This connotes that any law that is inconsistent with or in contravention of the Constitution is null and void to the extent of its inconsistency. See Article 2(2) of the 1995 Constitution of the Republic of Uganda, as Amended, this in pari materia with Article 1(2) of the Students Guild Constitution, as Amended, Presidential Election Petition No.2 of 2006 (SC) Rtd Dr. Col. Kiiza Besigye v

Y.K.Museveni, Harrikissoon vs Attorney General of Trinidad and Tobago [1981] AC 265,Oloka Onyango & others v Attorney General Constitutional Petition No.8 of
2014, Brigadier Henry Tumukunde v The Attorney General and Another and Legislative Drafting (Universal Law Publishing Co. (Third Edition), 1994, B.R at page 166.

2. The principle of Constitution interpretation that in any question relating to the interpretation or application of any provision of the Constitution, the primary aids to the interpretation must be found in the Constitutional itself: See: Supreme Court of Malawi Court Reference by the Western Highlands provincial Executive [1995] PG SC 6; SC 486 (20th September,1995).
3. The entire Constitution must be read as an integral whole with no particular provision destroying the other but each sustaining the other. This is the true rule of harmony, the rule of completeness, and exhaustiveness. Thus, where there are several articles that conflict with each other in the same constitution, it is the duty of the court to give effect to the whole constitution by harmonizing its provisions. This is that I refer to as the principle of anti-isolation, for example if a one Nobert is given a task to educate the church about faith in the Bible, he can’t interpret one scripture in isolation of the others, he ought to interpret all scriptures pertaining the same as a whole to create a deep and meaningful understanding. See: Minister of Home Affairs (Bermuda) vs Fisher [ 1980] AC 319, John Harun Mwau & 3 others vs Attorney General of Kenya & 20 others [ 2012] Eklr, Attorney General vs Salvatori Abuki Constitutional Appeal No.1988 (SC), South Dakota vs North Carolina; 192 U.S.A 268 (1940)
4. Where words or phrase are clear and unambiguous, they must be given their primary, plain, ordinary or natural meaning. In otherward, the language used must be construed in its natural and ordinary sense. See: S vs Marwane 1982 (3) SA 717 (AD) at p.745, Fisher vs Bell [1961] 1 QB 394, Hon. Theodre Ssekikubo & Others vs Attorney General and 4 Ors Constitutional Appeal No.1 of 2015)
5. Where the language of the Constitution or a statute sought to be interpreted is imprecise or ambiguous a liberal, a general or purposeful interpretation should be given. See: Attorney General Vs Major General David Tinyefunza Constitutional Appeal No.1 of 1997, Fuelex Uganda Limited vs Uganda Revenue Authority.
6. The principle of Constitutionality, in determining the constitutionality of a legislation, its purpose and effect must be taken into consideration. Both purpose and effect are relevant in determining the constitutionality of either effect animated by the object of the legislation intends to .See the following legal jurisprudence Giffels & Vallet vs The King [1955] DLR 620, at p.630, Zimbabwe Township Developers (Pvt) Ltd vs Lous Shoes (Pvt) Ltd 1984 (2) SA 778 (ZSC), Ssemogerere & others vs Attorney General, EALR [2004] 2 EA 276 at p.319, the Uganda Supreme Court adopted the above principle expressed by the Canadian Supreme Court in The Queen vs Big M Drug Mart Limited [1986] LRC 332, see also Attorney General vs Salvatori Abuki (supra)
7. A Constitutional provision containing a fundamental human right is a permanent provision intended to cater for all times to come and therefore should be given dynamic, progressive liberal interpretation keeping in view the ideas of the people, their social economic and political cultural values so as to extend the benefit of the same to the maximum possible. See: Uganda Constitutional Court Constitutional Petition Reference No.036/11: Thomas Kwoyelo Alias Latoni vs Uganda, Okello OKello John Livingstone and 6 Others vs The Attorney General and Another Constitutional Petition No 1 of 2005, Attorney General of Tanzania vs. Rev Christopher Mtikila -2006 (10 of 2005) [2006] TZHC 5)
8. The history of the country, (evident in the preamble) in this context the history of an institution like Uganda Christian University, and further the legislative history of the Constitution is also relevant and a useful guide to Constitutional Interpretation. See: Saleh Kamba & others vs Attorney General; Constitutional Petition No.16 of 2013.
9. The National objectives and Directive principles of state policy guide the courts in applying and interpreting the Constitution. The Interpretation of the Constitution must be therefore in such a manner that promotes the national objectives and directive principles of State policy. This principle was elucidated in the persuasive Namibian case of State vs Acheson (1991) (20) SA 805 (page 813) Mohamed AJ stated: “The Constitution of a nation is not simply a statute which mechanically defines the structures of government and the relationship of government and the governed. It is a mirror reflecting the “national soul” the identification of ideas and…. aspirations of a nation, the articulation of the values bonding its people and disciplining its government. The spirit and tenor of the Constitution must, therefore preside and permeate the process of judicial interpretation

and judicial discretion”. In the context of Uganda Christian University, this principle connotes that as the tribunal interprets the Guild Constitution, the objectives and principles of the Institution and the Guild Constitution must be the paramount consideration. See also the persuasive Kenya Supreme Court Re The matter of the Interim Independent Electoral Commission Constitutional Application No.2 of 2011.

10. The principle of interpreting the constitution as a living document is another guide to Constitution interpretation. This principle enables courts expedite justice and breathe life into the Constitution by construing unjust and archaic laws and bringing them in conformity with the Constitution. My assertion is backed by the case Botswan of Dow vs Attorney General (1992) LRC (623). Agunda, JA, stated “. It (the Constitution) cannot be a lifeless museums piece; on the other hand, the Courts must continue to breathe life into it from time to time as the occasion may arise to ensure the health growth and development of the State through it. We must not shy away from the basic fact that whilst a particular construction of a Constitutional provision may be able to meet the designs of the society of a certain age such a construction may not meet those of a later age. I conceive it that the primary duty of the Judges is to make the Constitution grow and develop in order to meet the just demands and aspirations of an ever-developing society which is part of the wider and larger human society governed by some acceptable concepts of human dignity”. The analogy behind the above case is that this principle, is meant to cater for the both the present and future generation, our grandchildren and great grandchildren the “Bazukulu” as citizens of Uganda. This is to be achieved by giving room for adjustment and change in the provisions of the Constitution which might not be applicable to the environment at the time take for example as you are all aware this is a dot com era which the bazukulu refer to as “twenty twenty era”. This implies there may be need to breathe life in some provisions of the Constitution to cater for such changes based on the fact that the Constitution is the bed rock to which the nation finds rest as it’s here to stay. See: Article 274 of the 1995 Constitution, as Amended, Attorney General vs Osotraco Ltd: Court of Appeal of Uganda Civil Appeal No.32 of 2002, Ephrahim vs Pastory & Another [1970] LRC (Const) 757, Bull vs Minister of Home Affairs [1987] LRC (Const.) 547).
11. The principle that the Constitution is sur generis. This simply means that the Constitution reigns supreme and all the other laws derive validity from it. See: Dr. James Rwanyarare and Another Vs Attorney General, Constitutional Petition NO.5 of 1999 (unreported).
    Being mindful of these principles, I now proceed to resolve the framed issues for determination.
    ISSUE 1. Whether the act of Parliament electing a leader of opposition is constitutional.
    I have had the benefit of reading the submissions and authorities relied upon by learned counsel for the parties. In my view, the determination of the contentions by the parties necessarily requires us to review the pleadings and consider the pertinent facts, which are not disputed by the parties. It is apparent from the pleadings that on the 25th April, 2021 Parliament conducted an election of the Leader of Opposition in contravention of various provisions of the Guild Constitution and principles of good governance as contended by the Petitioner. The petitioner further contends that the leader of opposition only operates under multi-party dispensation which is not operational under the UCU Guild constitution as it offends various articles of Uganda Christian University Guild Constitution. In their pleadings, the respondent averred that the act of electing a leader of opposition is not constitutional as alleged by the petitioner and that it didn’t contravene Article 27 of the Students Guild Constitution.
    Analysis.
    In determining this ground, it is pertinent to review the law as well asserted by Counsel for the petitioner to be contravened as a result of electing the leader of opposition which is Article 27 (1) (e) of the Students Guild Constitution.
    27 “Qualifications and Requirements for Presidential Candidates.
    (1) In order to participate in the Guild president nomination, process a s a potential candidate a student must meet the following substantive requirements:
    (a) Meet the requirements for Guild Member of Parliament
    (b) He has spent at least an academic year as a registered student of the University and is enrolled for an academic program

(c) is able and willing to affirm and subscribe to the Instruments and Identity of Uganda Christian University
(d) is baptized and confirmed member of the church of the Anglican Communion that is in fellowship with the church of Uganda (Anglican) and;
(e) Stands on his her or own merit, and does not officially represent or receive contribution from a national political party
Clearly, from the wording of Article 27 of the Student’s Guild Constitution, this provision is applicable to the qualifications of Presidential Candidate, however counsel for the Petitioner contended that the act of electing the leader of opposition in an institution like UCU offends the spirit behind Article 27 particularly clause (1) ( e ) of the Students Guild Constitution as it applies in multi-party system/ dispensation which doesn’t apply in university settling like Uganda Christian University. Counsel relying on Byamugisha Moses vs Attorney General of UCU Guild Government, to which case the position of the member of Parliament was nullified from office on grounds that he had obtained support from an external party known as FDC.
Therefore in resolving this issue, this tribunal ought to determine firstly, whether the spirit behind Article 27 (1) (e) of the Students Guild Constitution prohibit multi system/ dispensation in Uganda Christian University, if so whether the position of leader of opposition is only applicable under multi-party dispensation as asserted by the Petitioner and thus Constitutional in the context of UCU, and finally whether provision of Article 27 ( 1) ( e ) of the Guild Constitution should apply as a yardstick to other positions such as a member of Parliament.
Sub issue 1. Whether the spirit behind Article 27(1) (e) prohibit multi-party system in UCU.
Taking into account the principle of Constitutional Interpretation No. 3 herein
Principle No. 3 “Where words or phrases are clear and unambiguous, they must be given their primary, plain or natural meaning. The language must be construed in its natural and ordinary sense.”. I will restate Article 27 particularly Clause 1 (e) of the Students Guild Constitution which states;

27 (1) (e) states “In order to participate in the Guild President nomination process as a potential candidate student must meet the following substantive requirement
(e) Stands on his or her own merit, and does not officially represent or receive contributions from a national political party”.
Counsel for the Petitioner contends that Article 27 (1) (e) of the Student’s Guild Constitution prohibits multi-party system/ dispensation.
A Multi-party system is basically an arrangement of governance where many parties compete for power and government will often pass between coalitions formed by different combination of parties. Under this system of governance, there are vast majority of multi-party systems, numerous major and minor political parties will hold a serious chance of holding office. The rationale behind this system is that it plays an essential role in the functioning of every modern democracy, as it organizes and articulate interests and ensure political participation and competition, which constitute major features of a democracy. In other words, multi-party system acts as an essential requisite for a democratic political system. For it performs several roles critical to the functioning of a democracy as they are the central means to aggregate interests and thereby translate “mass preferences into public policy” and “representative institutions that endow regimes with legitimacy; provide ideologies that represent social, economic and political interests; and produce leaders who through democratic elections form the machinery of government or opportunities for political participation .See: John-Jean Barya, Political Parties, the Movement and the referendum on Political Systems in Uganda: One Step Forward, Two Steps Back, Supra pg at 29 to 31, J. Oloka Onyango, The Social Political Context of the 2006 Elections, Presentation at the East African Law Society Symposium on Elections Law, Conduct and Dispute Resolution. Kampala, February 2th 2006, Elijah D. Mushemeza, The Functioning of a Multiparty System in Local Government, ACODE Policy Briefing Paper, No.20,2007).
Borrowing leaf from the 1995 Constitution of the Republic of Uganda, as Amended. Multi-party system/ dispensation is well recognized under Article 69,70 and 71 of the Constitution. For a better understanding, let me give the historical thrive of multi-party in Uganda.
Historical Emergence of Multi-Party System in Uganda.

Uganda’s experiences with multiparty politics date way back to the times shortly after independence. Self-rule in Uganda has been characterized by several ups and downs since the country attained independence from the British in 1962. At the onset of Independence, Uganda sought for self-governance under a multiparty system. Though the Late Professor Mugaju calls Uganda’s attempt at multipartyism “pseudo multiparty politics”. I opine that the consciousness among Ugandans at that time that the free association of people in political parties and the competition among those parties for the power to govern the country guarantee genuine and substantial democracy. However, the early experiences with multiparty democracy in Uganda were rather disillusioning and the several challenges made it inevitable for that first attempt at political pluralism to fail. This was evident by first attempt which somehow turned into one-party state under the first UPC government. This then gave birth to one of the most brutal military dictatorships on the African continent under the late Idi Amin. When the dictatorship was over thrown, Uganda tried the multiparty experiment again in 1980, this time with worse results leading to the culmination of five-year bush war by the National Resistance Movement.
Upon taking over power, the National Resistance Movement (NRM) proclaimed an era of “fundamental change”, based on a “Ten Point Programme” whose principles had been elaborated during the Bush war. President Museveni promised an interim period of four years for restructuring the system and creating democratic institutions and was able to initially base his rule on broad popular support. Important to note is that during this period, the leadership under President Museveni introduced a “new” form of political governance called the “No party” or “Movement” system. The main tenets of the system were based on a number of facts amongst which included the fact that Uganda had through a conflictual and the turbulent history mainly caused by the political party competition and therefore the country needed to reconcile the people of Uganda, heal old wounds and bring about national unity. Further, the movement political system was one based on consensus rather than confrontation and this would be closer to typically African values of solidarity, reconciliation, seeking general consensus of all and keeping peace and togetherness without fragmentation. See Kasfir, Nelson,” No-Party Democracy in Uganda”, Journal of Democracy,9:2 (1998)
On this basis, Uganda operated under the Movement system of governance from 1986 to 2005 July and during that period political parties existed in form but not in substance and were declared by

the 1995 Constitution to be in abeyance during the existence of the Movement System. This was after the July 2000 referendum to which the citizens voted and retained the Movement system. However, In July 2005, Ugandans voted in a second referendum to determine whether to retain to multiparty governance or to retain the Movement system, and thus freely chose to govern themselves under a multi-party democracy dispensation with political parties presenting candidate for Presidential, Parliamentary and Local Government elections with the winning candidate in Presidential elections becoming President of the country and the winning party in Parliamentary elections controlling Parliament through its majority of Members of Members in Parliament. The political party (parties) with minority seats form the opposition in Parliament. It’s from this historical background that the concept of multiparty was reinstated in Uganda and thus operational in the government structure of Uganda as of present: See; Political Parties Organizations Act 2005, Foundation for Human Rights Initiative (FHRI) Uganda, Presidential and Parliamentary Elections 2006: Counting the Gains, at pg vii, John Ssenkumba, “The Dilemmas of Direct Democracy: Neutralising Ugandan Opposition Politics under the NRM, in A. O. Olukoshi (ed), The Politics of Opposition in Contemporary Africa, Uppsala, Nordiska Afrikainstitutet,1998, p.127. Sabiti Makara, Lise Rakner and Lars Svasand, ’Turnaround: The National Resistance Movement and the Re-Introduction of a Multiparty System in Uganda, in J. Kiiza, Makara and L. Rakner (eds), Electoral Democracy in Uganda: Understanding the Institutional Dynamics, Processes and Outcomes of the 2006 Multiparty Elections, Kampala Fountain Publishers,2008, p.282.)
Upon discussing what amounts to a multi-party system, its historical existence and how operational it takes. I will proceed to determine whether its tenants are traceable in the university settling of Uganda Christian University and if so whether Article 27 (1) (e) of the Students Guild Constitution does or not prohibit multi-party system.
Invoking the ruling in Saleh Kamba & Another vs Attorney General and others Constitution Petition No.16 of 2013, the Constitutional Court has emphasized the principle of Constitutional Interpretation that”. Where words or phrases are clear and unambiguous, they must be given their primary, plain, ordinary or natural meaning. For the language used must be construed in its natural and ordinary sense “. Clearly, the words under Article 27 (1) (e) of the Student’s

Guild Constitution must be given their literal, natural and ordinary meaning as they provide in order to participate in the guild president nomination process as potential student, a student must, “Stand on his or her own merit, and doesn’t officially represent or receive contributions from a national political party”. The duty bestowed on this tribunal is therefore to interpret Clause (e) in its literal meaning.
Clearly from the stated Clause (1) (e) of Article 27 of the Guild Constitution, there are three key words, stands on his own merit, doesn’t officially represent or receive contribution from a national political party. To stand on own merit according to the Black’s law dictionary means without considering other things, Oxford Learners English dictionary has defined to stand on his merit as to putting into account of your individual without necessarily considering any other thing., doesn’t officially represent. According to the Black’s law dictionary, represent means to act in capacity for a certain an individual, organization or group of people. National political meaning an organization recognized as a political party in accordance with the Political Parties Organizations Act. In my view therefore, the spirit behind this provision was to ensure that any UCU guild presidential candidate stands as an individual without having to represent or seek resources from any national political party. As earlier discussed, the system of multi-party system as operationalized under the Political Parties Organizations Act is applicable where a number of parties elect their respective leaders to compete for political positions. Clearly from the wording, the fact the provisions of Article 27(1) (e) of the Guild Constitution bar representation of a university leader based on a political party which political parties were restated after the 2005 referendum that saw the emulation of multi-party politics indeed justifies that fact the UCU student’s guild constitution intended to prohibit multi-party dispensation.
From the affidavit in support of the Petition, the petitioner asserts that the practice of multi-party dispensation is in contravention of various provisions of the Constitution, its therefore this courts duty to interpret the provisions of the Constitution as whole bearing in mind of the decision in Paul. K. Ssemwogerere and Another Vs Attorney General-Constitutional Appeal No.1 of 2002, where court emphasized the principle of constitutional interpretation in which the entire Constitution has to be read together as an integral whole and no particular provision destroying the other but each sustaining the other. This rule of the harmony, the rule of completeness and exhaustiveness. Therefore, to establish the spirit behind Article 27(1) (e), it’s my reasoned opinion

that Article 27(1) (e) be must together with Articles 27(1) (c) and Article 46 (2) (d) of the Student Guild Constitution.
Article 27(1) (c) states “In order to participate in the Guild president nomination process as potential candidate a student must,
(c) Is able and willing to affirm and subscribe to the Instruments of identity of Uganda Christian University
Whereas Article 46(2) (d) on the “Qualification of Member of Parliament” states
(2) A student is not qualified for election as a member of Parliament if that person:
(d) is unable or unwilling to acknowledge and respect the instruments of identity of Uganda Christian University.
Whereas Article 27(1) (c) of the Guild Constitution is applicable to the Guild Presidential Candidate and Article 46(2) (d) to the Member of Parliament. The two places emphasize on “acknowledgment and respect of the instruments of identity of Uganda Christian University” as a cardinal test/ qualification for one to be nominated to either office in Uganda Christian University. What then amounts to “Identity”. According to the Oxford Learners English Dictionary, identity is defined as the qualities, beliefs, expressions that make up a person or a group of people. The broader term of identity encompasses a number of things to include the values, norms, aspirations, beliefs and qualities of an individual or a group. Uganda Christian University is an authentic Christian University institution established by the church of Uganda in 1997 in response to a call for quality higher education in Uganda, especially from a Christian perspective. Uganda Christian University replaced the historic Bishop Turkey Theological which initially trained clergy and educators during its 84-year history from 1913- 1997. This was after the local Chief, Hamu Mukasa, granted an 86.5-acre site for the college to operate in the present day Mukono. Pursuant to section 102(2) of the Universities and Other Tertiary Institutions Act, 2001 (Act No.7 of 2001), Uganda Christian University was granted a charter by His Excellency the President of the Republic Uganda as of 20th day of May, 2004 thereby giving it legal efficacy as one of the Private recognized institutions of higher learning in Uganda. This is evident by the Uganda Christian University Charter 2003 which serves as the supreme law of

the University. The preamble of the charter reads “the charter to provide for the establishment, control, governance and administration of Uganda Christian University, and for connected purposes, in accordance with The Universities and Other Tertiary Institutions Act,2001”. Important to note, the charter thought not in express terms spells out the university’s norms, beliefs, aspirations and practices which definitely reflect its identity to which each member of the University ought to abide by. Section 3 of the University Charter defines “Instruments of identity
“To mean the statement of the University’s Christian identity approved and maintained by the Proprietors under section 8. Section 8 of the University Charter provides “the Christian Identity of Uganda Christian University is summarized in the motto “God the Beginning and the End” and is articulated in the Instruments of identity, which include a Rule of Life, shall be consistent with the teaching of the Church of Uganda and shall be approved and maintained by the Proprietors of the University through the University Council”. Further Section 7 of the University Charter states “Uganda Christian University is dedicated through teaching, scholarship, service, spiritual formation, student development and social involvement to the preparation of Students for thoughtful, productive lives of Christian faith and service in their respective professions and places”.
The above stated provisions of the charter reveal that the beliefs, aspirations, norms of Uganda Christian University are premised on Christian faith which ought to manifest through the daily practices, conduct and activities of both management and students. Further the notions of the Christian faith are also evident in the core values to which the university stands which are Diligence, Servanthood, Integrity, Christ centeredness and Stewardship. I contend that it’s the above mentioned that consist of the true defined identity of Uganda Christian University which is required for one to possess within the meaning of Article 46(2) (b) of the Guild Constitution. This then connotes that whatever practice adopted by students of Uganda Christian University must be seen to reflect the identity of the University which includes history and objectives (norms, values and aspirations). Failure of which may be rendered inapplicable within the context of Uganda Christian University.
Article 1(1) of the Students Guild Constitution, as Amended provides that “This Constitution shall be, under the legal authority of the University Charter, the supreme law of Uganda Christian University, and shall have binding force on all authorities and persons under the

Student’s Guild”. This provision manifests the supremacy of the University Charter to which the Students Guild Constitution derives its mandate. This in turn implies that whatever is embedded therein must be seen to reflect the identity of Uganda Christian University which is the sole spirit behind the university charter. Further, any act performed by a student body under the Guild Constitution must portray the aspirations, values, norms and aspirations of Uganda Christian University justifying why framers enacted the provisions of Article 27 (1) (c), (e) and 46(2) (b) of the Students Guild Constitution on respect of identity as a cardinal requirement for one to qualify as a student leadership.
Therefore, it’s worthwhile to note that when interpreting the Constitution, the national objectives and directive principles ought to be put into consideration as a principle of Constitutional Interpretation.
This principle was elucidated in the persuasive Namibian case of State vs Acheson (supra) where Mohamed AJ stated.” The Constitution of a nation is not simply a statute which mechanically defines the structure of government and the relationship of government and the governed. It is a mirror reflecting the “national soul” the identification of ideas and …aspirations of a nation, the articulation of the values bounding its people and disciplining its government. The spirit and tenor of the Constitution must, therefore preside and permeate the process of judicial interpretation and judicial discretion”. This principle connotes that as the tribunal interprets the above provisions, the norms, beliefs, values, aspirations that reveal the identity of Uganda Christian University are of paramount consideration. As clearly evident from the University Charter, the identity of Uganda Christian University is premised on the Christian faith as well evident under section 7 and 8 of the Charter, this then implies whatever act, practice carried on under this constitution must reflect the Christianity faith. Christian faith in my view would entail, practices, systems that portray a balanced, holistic and religious institution based not on any tribal and political affiliations but geared at bringing a holistic student with Christian based values and norms which in my opinion is the identity of Uganda Christian University.
As earlier discussed, the historic nature of multi-party system, its structure and operation that definitely is characterized with competition for power and government between coalitions formed by different combination of parties. Such a system doesn’t reflect the true identity of Uganda Christian University as required by the University Charter but also the provision of Article (27)

(1) (c), Article 46(2) (b) of the Guild Constitution since it contravenes the aspirations, beliefs, norms and values of Institution like Uganda Christian University which is premised on Christian faith. As an institution based on the Christian faith, it should at the forefront of harmonizing students as opposed to scaling up divisions among students through multi-party dispensation that tends awake political struggles in turn destroying the objectives and history to which UCU stands. It’s actually the reason as to why religious institutions worldwide continue to embrace their cherished values, norms and aspirations as opposed to systems like Multi party dispensation, because in the event they embrace such systems, then they stand to contradict their norms, values and aspirations (their true Identity). Our sister institution is an example the Islamic University in Uganda, whereas it’s based on Islamic faith, it doesn’t permit multi-party dispensation.
Therefore, the true identity of Uganda Christian University qualified for one to take up any elective office is willingness to uphold and respect the true identity of Uganda Christian University as stipulated under Article 27(1) (c) and Article 46(2) (b) of the Guild Constitution justifying the import of Article 27(1) (e) of the Guild Constitution, which emphasizes that one stands his or her own merit without representing or having to receive any contribution from any national political party. This provision in my view was intended to safeguard the true identity of Uganda Christian University by putting a ring fence /blockage to any acts/ systems such as Multi party dispensation from having their entry into Uganda Christian University since they tend to conflict with its identity consisting of the norms, values, beliefs and aspirations for which stands.
Having interpreted Article 27 (1) (e) together with Articles 27(1) (a) and Article 46(2) (b) of the Guild Constitution and further the decision in Byamugisha Moses vs Attorney General of the Uganda Guild Government (2014), I contend that the spirit behind Article 27 (1) (e) of the Guild Constitution indeed bars multi-party system as it puts a blockage to multi-party dispensation in an institution like Uganda Christian University and thus not operational. This is because it contravenes the identity of the University as it was defined under the University Charter but also under the provisions of Article 27(1) (e) and 46 (2) (b) of the Students Guild Constitution.
Sub issue 2. Whether electing a leader of opposition only applies under multi-party system, if so whether it is constitutional in the context of Uganda Christian University.
Analysis.

As earlier discussed, multi-party system is a system where people freely chose to govern themselves with political parties presenting candidates for Presidential, Parliamentary and Local Government elections with the winning candidate in Presidential elections becoming President of the Country and the winning party in Parliamentary elections controlling Parliament through its majority of Members in Parliament. The political parties with minority seats form the opposition in Parliament. The opposition is formed by the largest party or coalition of parties that does not have the support of the majority of members in the House of Representatives. The opposition is sometimes called the alternative government because it could form government if it was to win the support of the majority of members. Following the Amendment of the 1995 Constitution in 2005, significant changes were introduced to prepare for a multi-party Parliament. These included, among other provisions, the Prime Minister, who was also to hold the portfolio of the Leader of Government Business in Parliament, the Leader of Opposition in Parliament, the Government Chief Whip and the Opposition Chief Whip. See: Article 108A, 1995 Constitution of the Republic of Uganda, as Amended, Part IIA and Part IIB of the Administration of Parliament Act Cap 257, Laws of Uganda, History of Parliament. http://www.parliament,go.ug. Retrieved 9 September 2016, Tracing the origin of the Uganda Legislative Council.
Drawing inference from the 1995 Constitution of the Republic of Uganda, as Amended. Article 82A effected by section 6A of the Administration of Parliament Act Cap 257, Laws of Uganda provides for the position of Leader of the opposition and under clause (1) it states “Under the multi organizations or multiparty form of democracy, there shall be, in Parliament, a leader of the opposition”. Clearly, the stated provision justifies the fact that the office of the leader of opposition is constitutionally structured and follows that in multi-party dispensation, its recognized. However, I opine the title (Leader of Opposition) is bestowed upon the elected leader of the largest political party not within the ruling government. My assertion is backed by Section 1(ea) of the Administration of Parliament Act Cap 257, Laws of Uganda that defines leader of opposition to mean the member of Parliament who is the leader in Parliament of the party in opposition to the Government and having the greatest numerical strength in Parliament. Section 6B of the Administration of Parliament Act (supra) sets the procedure of choosing a leader of opposition and roles and functions amongst which is to appoint and head an alternative Shadow Cabinet whose duty is to challenge and influence government legislation on the floor of Parliament as is well stipulated under Section 6E of the Administration of Parliament (Amendment) Act, 2006.

Being guided by Article 82A of the 1995 Constitution of Uganda, section 1(ea) and Part IIA of the Administration of Parliament Act (supra). I agree with the counsel for the petitioner that indeed the position of leader of opposition only operates under multi-party dispensation. For example, what justifies existence of fish in the absence of water, I doubt there is a justification for fish to exist and yet there is no water. Equally, the position of leader of opposition wouldn’t be justified in the absence of opposition originating from competition for political power by different party coalitions (Emphasis mine).
Counsel of the Respondent in her submission contended that the position of leader of opposition was not a functional office in UCU but ceremonial just to allow UCU Parliament compete favorably in the evaluation of parliament. She further contended applying the persuasive rule approach that the leader of opposition was to act as a controller of the House. Counsel of the Petitioner in response submitted that had been that case, it remains unconstitutional as there was no law establishing for the office of leader of opposition in the Guild Parliament. In rejoinder, Counsel for the respondent submitted that under Article 60 of the Students Guild
Constitution, Parliament has the power to make rules to regulate its own procedure and further under Article 60(4) (a) of the Constitution. And therefore, it’s from this basis that the Parliament presided with the election of the leader of Opposition.
Analysis.
In Constitutional Petition No.14 of 2011 Advocate Coalition and for Development and Environment vs Attorney General, the Constitutional court stated “it is trite law that courts of law act on credible evidence adduced before them based on the law and do not indulge in conjecture attractive reasoning or fanciful theories”. This case implies that whatever evidence brought before court must be based on the law, the courts of law must desist from enforcing submissions based on lamenting as opposed to the law (emphasis mine). See Philip Karugaba vs. Attorney General Constitutional Petition No.11 of 2002. Clearly the position of leader of opposition ought to be legally established and the procedure for the election clearly laid down. An election is a creature of statute and thus ought to be clearly established by the law. See: Paul.K. Ssemogerere and Zachary Olum vs Attorney (supra), Dr. Kizza Besigye vs Yoweri Kaguta Museveni and Election Commission Supreme Court Election No. 1 of 2006, Robert Sentamu Kyagulanyi vs Yoweri Kaguta Museveni Tibuhaburwa and 2 others Presidential Election No. 1

of 2021, Kasibante Moses vs Katongole Singh Marwaha & Anor Election Petition No.23 of 2011, Ngoma Ngime vs Hon. Winnie Byanyima and Election Commission, Election Petition Appeal No.25 of 2008. World over elections of particular offices is well envisaged by the law with the duration well stipulated. Borrowing from our national laws, as earlier discussed, an election for such a position is constitutionally established with a clear procedure and structure for its operation. This is why all elections from central government level to local government level are well legally established as evident by the Constitution and the various statutes. This was geared at ensuring proper government resource allocation towards such as activities to avoid wastage of the tax payer’s money on anxious baseless activities. Further, this serves to prove the magnitude of importance attached towards an election, least every tom, dick and harry organ of government would just wake from slumber and conduct an election for its members in the name of exercising its mandate.
Therefore, even where counsel for respondent submitted that the position was to act as ceremonial, this should have been legally established by the law. For our role as the tribunal is not to entertain matters concerning ceremonial and non-functioning offices unfounded on the law. But rather hear matters pertaining positions that hold legal efficacy, I opine this is what distinguishes the courts of law from your known society-based conflict resolve committees. For judges in the courts of law must regulate their decisions by fundamental laws and not by their vows, which are not fundamental. To permit this therefore, would imply that Parliament can at hold an election for any office in exercise of its legislative discretion that is not legally provided for in the Constitution, something I opine would render the validity of the Constitution useless. See: Centre for Rights Education and Awareness & Anor v The Speaker of the National Assembly, Kenya High Court of Kenya at Nairobi, Milimani Law Courts Constitutional & Human Rights Division, Petition No.371 of 2016, Constitutional Petition No 30 of 2011 Gilbert Bukenya Balibaseka vs Attorney General.
Counsel for the respondent in her submission further argued that under Article 60 of the Student’s
Guild Constitution, Parliament is mandated to make rules regulating its business and it’s from this provision, that Parliament proceeded with the exercise of electing a leader of opposition.
Article 60 on Procedure of Parliament states;

(1) Subject to the provisions of this Constitution, Parliament may make rules to regulate its own procedure, including the procedure of its committees.
(4) The rules of procedure of Parliament shall include the following provisions.
a) The Speaker shall determine the order of business in Parliament and shall give priority to Guild business,
Analysis.
It’s clear under the above provision, that the Speaker enjoys wide, and almost unfettered discretionary power to determine the Order of Business in the House. But this doesn’t guarantee power to Parliament especially the Speaker under Article 60 (4) (a) of the Student’s Guild Constitution to move a motion of an activity that is not initially embedded in the Parliamentary Rules of procedure and the Constitution. In Male H. Mabirizi K. Kiwanuka vs Attorney General Consolidated Constitutional Appeal No.02 of 2018, the Supreme Court succinctly noted that “Parliament was to follow all the set procedure set out in the Constitution and the Parliamentary Rules of Procedure “. From the onset of the stated decision, it connotes whereas Parliament enjoys discretion to determine the rules regulating its procedure, that doesn’t anywhere confer power Parliament through the Speaker of Parliament move a motion for conducting an election that is neither envisaged by the rules nor in the Constitution. That would amount to a blatant volition of law as thereby rendering such act invalid. See: Paul Ssemwogerere & Others vs Attorney General (supra), Prof.J. Oloka-Onyango & 9 Others v Attorney General, Constitutional Petition No.8 of 2014, Law Society of Kenya v. Attorney General & Another, Constitutional Petition No.313 of 2014, Kesavananda Bharati v. State of Kerala and Another, Supreme Court of India, Petition 135 of 1970 and Njoya and Others v. Attorney General and Others (2004) AHRLR 157 (KeHC 2004).
Further, I am of the view of the Constitution and the rules of Parliamentary Rules act as a guiding tool on how Parliament is to move about determining about rules that regulate its procedure, take for instance in the matter before, this election must already have envisaged in the Constitution and Parliament can proceed on the procedure it deems fit to conduct it, as opposed to passing motion that introduces an act that is strange to the law. In my view, that would amount to abuse of the discretion and misapplication, misuse and misdirection by Parliament of the mandate guaranteed

to it under Article 60 of the Guild Constitution. For this would amount retrospective legislation which is not permissible in the law (emphasis mine). Further to permit this would Maybe in such a scenario, Parliament would have firstly amended its rules providing for such activity (election of the leader of opposition), which was never the case in this matter. That serves to show there was no adherence to the rules of procedure which has adverse effect on the election carried out. Parliament must at times keep up its Constitutional recognized fortune, respect and integrity. For it must avoid engaging in illegally founded business just like the one question which tend to demean, tarnish and lower the reputation of Parliament as a law-making institution.
Being guided by the maxim “Exturpi causa non oritur action” as was well articulated in the landmark case of Makula International Ltd Vs His Eminence Cardinal Nsubuga & Anor Civil Appeal No.4 of 1981, where it was held that “A court of law cannot sanction what is illegal, and illegality once brought to the attention of court overrides all questions of pleadings, including and admission made thereon”. More Legal jurisprudence on this. See: Zakeri Kitende vs Orient Bank Ltd Civil Suit No.591/2013, Active Automobile Spares Ltd vs. Crane Bank Ltd and Rajesh Pakesh SCCA 21/2001, Musoke Mike & Another v Kalumba James Revision Cause No:09 of 2019. Therefore, it’s my assertion that in the absence of law through which Parliament proceeded to conduct the election of leader of opposition greatly presents gross illegalities which can’t be sanctioned by this tribunal as reflected in the maxim “Exturpi causa non oritur actio” that no action can arise from an illegal act.
I, therefore contend that the exercise of electing a leader of opposition by Parliament illegal as it lacks legal basis. Further, had there been the set procedure, this position wouldn’t still stand in the context of Uganda Christian University since this position is operational under multi-party dispensation as earlier established. And thus, not recognized in UCU as its in contravention with its identity, norms, values, beliefs and aspirations and thus not expressly stipulated in the Constitution but greatly implied in the University Charter from which the Students Constitution derives validity.
Sub issue 3. Whether its legally right for the Petitioners to rely on Article 27(1) (e) of the Students Guild Constitution.

Counsel for the respondent submitted that the Petition couldn’t stand as it had brought under Article 27(1) (e) of the Guild Constitution which addresses the qualification of the Guild Presidential as opposed to Multi party dispensation. Counsel for the respondents submitted emphasizing the principle of Constitutional that the constitution should be read as a whole with each provisions sustaining each other, he thus invited to interpret that above provision with other provisions of the Constitution. Counsel invited court to the decision in Byamugisha Baguma vs Attorney General of Guild Government (2014) relied the tribunal relied on the stated provision to nullify the election of a Member of Parliament on grounds of having obtained a financial assistance from a national political party.
Analysis.
I am mindful that indeed the heading of the Article 27 of the Guild Constitution provides for the qualification of the Guild President Aspirant. However, more important to bear in mind is the principle of Constitutional Interpretation as was well envisaged in Tinyefuza vs. The Attorney General: Constitutional Appeal No.1 of 1997, that the “entire constitution has to be read as an integral whole with its letter and spirit, as the supreme law being respected” In other words, under this rule the entire Constitution has to be read as an integral whole with no particular provision destroying the other but each sustaining the other. Whereas that provision applies to a Guild Presidential, that doesn’t guarantee in my view that it can’t be interpreted so as to give a meaningful effect to the Constitution irrespective to the heading to which its addressed. Ideally, the Guild President is voted by the students of Uganda Christian University across all faculties, equally a member of Parliament is elected by the students of Uganda Christian University however based on faculty level to which a student represents. Whereas there lies a distinction between the two in that former is elected by the entire students and the former a particular faculty, it’s my view that there lies a thin line which shouldn’t bar one from petitioning seeking a clarification on a provision most especially where such a provision if read together with other provisions would harmonize and reveal out the spirit behind the meaningful existence of the Guild Constitution. Clearly, the petitioners through Article 27(1) (e) of Guild Constitution are seeking an answer as to whether multi-party dispensation is permissible in UCU, ideally determination of the tribunal on the same doesn’t not only create an impact on the Guild Presidential Aspirant but rather on the entire elective positions such as Member of Parliament.

Therefore, the reliance by the petitioners on Article 27(1) (e) of the Guild Constitution is not in regard to the position of the leader of opposition as the respondents contend but rather establish the question of multi-party dispensation as it was whether it does apply in the Uganda Christian University which in my view cuts across all the elective student positions all the way from the Guild Presidential election to Parliamentary election. In Salvatori Abuki vs Attorney General, Constitution Petition No.2 of 1997, the Court held that “the Constitution must be construed not in a narrow and legalistic way but broadly and purposely so as to give effect to its spirit” Borrowing the idiomatic maxim:” He who sticks to the letter of the law, only gets to the bark of the tree” clearly emphasizes that “the substance of the law, the effect of the law, are matters far weightier than the niceties of form or circumstances. The reason behind the law makes the law what it is. For reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself”. Its therefore my view that Article 27(1) (e) of the Guild Constitution shouldn’t be narrowed to an interpretation as to qualification of a Guild President but rather be given broader interpretation of the spirit/ reason behind Article 27(1) (e) which clearly forbids multi-party system as earlier established, for this is the true nature of elective system in UCU thereby in turn binding on all positions regardless of the Presidency. This justifies as to why in Byamugisha Moses vs Attorney General of UCU Guild Constitution it was relied on to nullify the position of the member of parliament to have obtained assistance from the national political party.
Therefore, whereas the provision of Article 27(1) (e) of the Guild Constitution applies to Qualifications and requirements for Presidential Candidates, it’s not cast in stone as such a provision may relied upon if there is need to address such a provision with other provisions of the Constitution to give effect and meaning to the Constitution. Therefore, it’s my view that it was legally right for the petitioners to rely on the stated provision.
Having resolved the three sub- issues under issue 1, which is; Whether the act of Parliament electing a leader of opposition is constitutional. I therefore turn to pronounce myself on the main issue as raised by this court as follows,
Upon establishing that indeed the position of leader of opposition is only operational under multiparty dispensation which doesn’t apply in the university context of Uganda Christian University as it contravenes the true identity of Uganda Christian University embedded in the

Charter of 2003 which entails its values, norms and aspirations and further Article 27(1) (e) of the Guild Constitution as has been interpreted in the sub issues above together with Article 1(1), Article 27 (1) (b) and Article 46(2)(b) of the Students Guild Constitution. It’s my stand that the act of electing a leader of opposition by Parliament is declared unconstitutional as it goes down to the grass root level of contravening the fundamental beliefs, aspirations of an Institutional like Uganda Christian University. Further I note, whereas the system of multi-party system is not embraced in Uganda Christian University, its recognized in some other institutions which presupposes that University politics are not synonymous with Uganda Christian University, for the respondents can still move and practice this system in other institutions like Makerere University, Gulu University that fully embrace multi-party system in their student elective system as opposed to the soils of Uganda Christian University. (Emphasis mine)
In conclusion, the act of Parliament electing a leader of opposition is unconstitutional as it contravenes various provisions of the Guild Constitution to include Article 27(1) (e) of the Guild Constitution that bars multi-party dispensation in Uganda Christian University. Further, in the absence of law legally establishing for the election of the leader of opposition either by the Guild Constitution or the Parliamentary Rules of Procedure amounts to an illegality which still renders the whole process unconstitutional.
Issue 2. Whether the act of electing a leader of opposition amounted to an amendment.
Counsel for the Petitioner contended that the act of Parliament electing a leader of opposition amended the Constitution. Counsel relying on the case of Paul Ssemwogerere vs Attorney General (Supra), noted as it was stated by JSC, George Kanyeihamba that the Constitution can be amended by infection, where an amendment of act greatly affects the other provisions of the Constitution. Thus, contended that the act of Parliament electing the leader of opposition amounted to amendment by affection. Counsel for the respondent in response noted that, the act of Parliament voting a leader of opposition didn’t amount to an amendment, Counsel further invited court to look at the case of Paul K Ssemwogerere vs Attorney General (supra), where it was contended that an amendment only takes place where there is an act or law in the Constitution that being amended and that in the matter before us, there was neither nor any act that Parliament amended therefore that didn’t amount to an amendment.

Analysis.
Having declared the act of Parliament electing a leader of opposition in Guild Parliament unconstitutional as the whole procedure was tainted with illegalities and further in contravention with the stated provisions of the Guild Constitution has been discussed in the 1st issue. It is my assertion that whatever activity that follows such as amendment is a nullity and shouldn’t be discussed by court. However, for purposes of study. I will shortly address the law on amendments.
Article 110 of the Students Guild Constitution, as Amended provides for the Amendment of the Constitution as it states that “This Constitution shall only be reviewed and amended as provided herein”. Article 111 of the Student’s Guild Constitution clearly provides for the Procedure of Amendment.
Article 111. Procedure for Amendment
(1) Petitions for the amendment of this Constitution shall be in one of the following three alternative methods:
(a) A Petition tendered to Parliament and signed by 200 students presently enrolled at Uganda Christian University.
(b) A Petition submitted to the Office of the Speaker of Parliament signed by at least 1/3 (one third) of the members of Parliament.
(c) A Petition submitted by the Office of the Student Affairs or Dean of Students signed by the Director or Dean whichever is applicable submitted to the Student’s Affairs Board of the University.
Clearly, the above provision outlines the different ways through which an amendment of the Constitution occurs. The above procedure is in pari materia with Article 259, 260 and 262 of the 1995 Constitution of Uganda, as amended. From the stated provisions, it’s clear that an amendment must either be tendered by the students or submitted to the Speaker of Parliament signed by 1/3 of the members of Parliament. Important to note is that an amendment is said to occur where there has been a replacement of act or law in the Constitution thereby changing its existence. This implies that there ought to be an act in place amending the alleged provisions of

the Constitution as asserted by the Petitioners. See: Teo Soh Luna vs. Minister of Home Affairs and others (1990) LRC (Constitution) 490, Attorney General (SCU) (unreported): The Bribery Commissioner v. Pedrick Ranasinghe (1965) A.C 172 (H. L): The Queen vs. Big Drug Mart Ltd (1986) LRC (Const.). (332); and “The Constitutional Law of India” 3rd Edition, Vol.1 by H.M.
I am well aware of the decision in the case of Paul Ssemwogerere and Another Vs Attorney General, Constitutional Appeal No.1/2000 where JSC George Kanyeihamba asserted the Constitution can be amended by infection/implication as was contended by Counsel for the Petitioner. In my view amendment by infection means that the amendment of an article had the effect of amending an article which had the effect of amending an article which had not been specifically mentioned at all. In other wards it would mean a change classified by either vary, add or subtraction in a certain provision of the Constitution which in turn would affect other provisions of the Constitution which are not part of the amended provision. A number of decided cases from common illustrate amendment by infection. See: Queen vs Big Drug Mart Ltd (1986) LRC 332, Attorney General for Ontario vs Reciprocal Insurers (1924) AC 326 from Canada and The Bribery Commissioner vs Patrick Ranasinghle (1965) AC 172 from Ceylon. Clearly from those cases, for an amendment by infection to occur, there ought to be Act that’s is being subject to amendment that would in turn infect the other provisions of the Constitution as was well submitted by Counsel for the respondent Simon Nkurunga (Senior State Attorney General’s Chambers).
Whereas Counsel for the Petitioner relies on Paul K Ssemwogerere vs Attorney General (supra), the question of amendment by infection in this case arose from the Constitutional Amendment Act No.13 of 2000 which was said to have amended other provisions of the Constitution. It’s my view, that the facts in Paul K Ssemwogerere vs Attorney General are distinguishable from the facts in this, in that whereas in the former, there existed a Constitutional Amendment Act No. 13 of 2000 and in the latter (this Petition), there was neither any act nor any legislation that was passed as amendment to infect any provisions of the Constitution. The question then would whether the act of Parliament of electing a leader of opposition without any legal efficacy amounted an amendment? In my view, I contend it wouldn’t amount to amendment by infection since in the first place, there was no law providing for an election of the leader of opposition which perhaps would have been said to have amended other provisions of the Constitution by infection. Even where the Petitioner contends that the amendment by infection would have been implied on other

provisions pertaining elections by way of a variation, addition, subtraction. Even where it includes an addition, the act ought to hold legal efficacy to amount to an amendment by infection. Further, from the instant facts, the required procedure pertaining amendment as set under Article 111 of the Students Guild Constitution was not only met but the entire process of electing the leader of Opposition tainted with illegalities which implies the rest of legislation carried therein as “colorable legislation” which can’t be sanctioned by this Honorable Tribunal.
Therefore, as already been resolved in issue 1 that the act of electing a leader was unconstitutional as it tainted with illegalities to which the petitioners contend amounted to an amendment in my view is described as “colorable legislation” that can’t be sanctioned by this tribunal and therefore contend whatever carried therein as illegal.
Issue 3: Whether the petitioners are entitled to the reliefs sought.
In the result, I dismiss the petition. I declare that the act of parliament electing a leader of opposition is inconsistent with the various provisions of the Constitution, as thus unconstitutional, as been discussed.
I declare that the act of electing a leader of opposition didn’t amount to amendment as the whole process was tainted with illegalities. For its unconstitutional and void. As all the other the Learned Justices on the panel agree, the petition is hereby dismissed.
As to costs, I take note that though the raised issues are of great importance and thus of public interest litigation as was contended by the Respondent. However, under Order 26 rule 1 of the Civil Procedure Rules in line with section 27 of the Civil Procedure Act envisages this tribunal with discretion to grant costs where it deems it fit for it provides that “The court may if it deems fit order a plaintiff in any suit to give severity for the payment of all costs incurred by any defendant”. This is in line with section 27 of the Civil Procedure Act, and further Order 9 rule 1(f) of the Tribunal Rules as of 2015. Indeed, the petitioners have proved the ingredients for the grant of costs, and it’s my view that in the interest of dispensing justice to all parties, the petitioners be awarded costs.
Therefore, the final decision of the tribunal is as follows:

1. By unanimous decision of the tribunal, the preliminary objects fail.
2. By unanimous decision of the tribunal, the act of Parliament electing a leader of opposition is unconstitutional within the perimeters of the Guild Constitution as been discussed.
3. By unanimous decision of the tribunal, the act of electing a leader of opposition doesn’t amount to an amendment and thus null and void.
   RECOMMENDATIONS BY THE TRIBUNAL.
   The tribunal as established by Article 64 of the Student’s Guild Constitution is established as the third arm of Guild Government with its functions as well stipulated under Articles 65,66,69 and 70 of the Students Guild Constitution. The rationale behind the stated provisions were aimed at ensuring the tribunal keeps within its perimeters of duty without having to interfere into the mandate of the other organs of government such as Guild Parliament and the Guild Executive. Perhaps, this can be said to reflect the true doctrine of separation of power as propounded by Professor Montestique in his book “The Spirit of the Law”. Though this is not absolute as evident by the doctrine of checks and balances. Courts must at all times desist from enforcing duty that lies within the ambits of other organs of government. Therefore, to enhance and promote proper functioning of the tribunal as the third arm of the Guild Government, avoid assuming the role of law making, and further prevent vexatious and illegal founded submissions, as the Justices of tribunal we hereby make the following recommendations to the Guild Parliament for effect;

• Establish a Constitutional Commission review committee with guidance of the Ministry of Justice and Constitutional Affairs to revisit the Guild Constitution so as to harmonize the various provisions of the law on establishment of Guild Offices and their mandate such as the Office of the Leader of Opposition in Parliament as the Institution of Parliament may deem it fit to avoid retrospective legislation.
• Legally carry out any amendments in the Guild Constitution that the Institution of Parliament may deem it fit for effective running of the Guild to avoid legal confusion in court.
• Document all the Parliamentary Proceedings taken on the floor of Parliament to facilitate and guide the tribunal whenever there is a claim on the same before the courts of law.
• Effect and carryout any reforms pertaining election of the various offices in Guild Parliament which the Institution of Parliament may deem fit to avoid colorable legislation.
• Establish a law reporting commission to facilitate and ease the work of the tribunal and further guide the Guild on the precedent laid down to avoid misrepresentation of precedent in court.
  Lastly, I wish to thank counsel of all the parties for the detailed research, exposition and clarity of submissions. This tribunal was very much assisted by such. Thank you so much.
  3rd John 1:2 reads “My dear friend, I pray that everything may go well with you and that you may be in good health-as I know you are well in spirit”. This scripture presents the fact my health and yours is an essential factor for life, therefore dear students, it’s our obligation to Pray for God’s protection and the same time observe the standards operating procedures as issued by the Ministry of Health (Government of Uganda) so as to curtail the Covid-19 pandemic.
  Dated, signed and delivered by email and WhatsApp at Kampala on the 30th day of June,2021.
  

Hon Mr. Justice Ainebyona Wilberforce, CJ.

Hon Lady Justice Ndagire Helen Julian, DCJ.

Hon Mr. Justice Kizza Arnold Luminsa.

Hon Lady Justice Evelyn Mugisha.

Hon Lady Justice Dorothy Atatukunda.

HON. MASEMBE OWEN VS ATTORNEY GENERAL-MISCELLANEOUS CAUSE NO. 1 OF 2021.

UGANDA CHRISTIAN UNIVERSITY – KAMPALA CAMPUS
IN THE GUILD TRIBUNAL OF KAMPALA CAMPUS
HOLDEN AT MENGO
MISCELLANEOUS CAUSE NO. 1 OF 2021
HON. MASEMBE OWEN ……………………………………………… APPLICANT

VERSUS

ATTORNEY GENERAL ………………………………………………. RESPONDENT

BEFORE; HIS LORDSHIP KIMULI MARK SEMPALA.

RULING;
This application is before this honorable court as a result of the Guild President’s suspension of the Guild Tribunal Chief Justice Asio Lillian and two other Guild Tribunal Justices namely, Mukwaya Paul and Akot Lorna. The applicant asserts that the whole process of the Guild President suspending the Guild Tribunal Chief Justice and the other two Guild Tribunal Justices was actuated by malice and bad motive, and are accordingly illegal and unconstitutional. The applicant also asserts that the whole process was a nullity and contravenes the rules of natural justice.
Pursuant to Order V of the Guild Tribunal Rules of Procedure, 2015, a scheduling conference was conducted. Parties to the suite were amended from Hon. Masembe Owen V Namujehe Phoebe and Attorney General to Hon. Masembe Owen V Attorney General because the Guild President could not be sued. The above facts were agreed upon by both the learned counsel for the applicant Ainebyoona Albert and senior counsel, learned Attorney General Magoola Mark. Issues of the suite were framed by counsel for the applicant and the learned Attorney General consented with a few modifications made to them.
The final issues were;

1. Whether the actions of the Guild President suspending the Guild Tribunal Chief Justice and the other two justices of the Guild Tribunal are legal?
2. Whether the procedure undertaken complies with the rules of natural justice?
3. Whether there are any available remedies?
   An attempt to resolve the matter through Alternative Dispute Resolution was made but it failed. This was so because counsel for the applicant asserted that having served the respondent with the intention to sue, there was no response at all or any sign of resolving the matter outside court procedure. He further asserted that his client Hon. Masembe Owen had given him strict instructions to sue and therefore represent him in court. Therefore the conclusion was that there shall be a Guild Tribunal session on Friday, 30th April, 2021 starting at 11:00 a.m. The scheduling conference was then adjourned.
4. The learned counsel for the applicant Ainebyoona Albert propounded that the actions of the Guild President suspending the Guild Tribunal Chief Justice and the other two Justices of the Guild Tribunal were illegal. He relied on Article 28 of the 1995 Constitution of the Republic of Uganda which provides for the right to a fair hearing, Article 42 of the 1995 Constitution of the Republic of Uganda which provides for a right to just a fair treatment in administrative authorities, Article 44 of the 1995 Constitution of the Republic of Uganda which provides for prohibition of derogation of particular human rights and freedoms and in particular clause (c). He also relied on Article 128 of the 1995 Constitution of the Republic of Uganda which provides for the independence of the judiciary, Article 67 of the Uganda Christian University Students’ Guild Constitution which provides for the independence of the Guild tribunal. Article 73 of the Uganda Christian University Students’ Guild Constitution which provides for the grounds and the procedure for removal of a Guild Tribunal Justice from the tribunal.
5. He relied on cases which included Attorney General V Gladys Nakibule Kiseka Constitutional Appeal-2016/2018 UGSC 30(11) JULY 2008, Sirros V Moore (1974) 3 ALLER 776. He also relied on the case of Yasin Sentumbwe V Uganda Christian University (Miscellaneous Cause-2017/22) [2018] UGHCCD 210 (17January 2018). He further relied on the case of Masalu Musene and 3 Others V Attorney General Constitutional Petition No.5 of 2004 and the case of Saverino Twinobusingye V Attorney General ( Constitutional Petition-2011/47) [2012] UGCC 1 (20 February 2012) in his rebuttal.
6. He presented a copy of the suspension letters that were presented to the Guild Tribunal Chief Justice and the other two Guild Tribunal Justices which read;
7. “Dear …………………………… I hereby write this to show my sincere disappointment in this department of the judiciary in line with conduct. The call to a leader is to be greatly exceptional in all they do, to be better at all they do with steady progress and life in the leadership, but you have proven to be contrary to this conduct and I hereby suspend you from your office on the following grounds.
8. Conduct and behavior.
9. Failure to perform duty and failure to show records as to why this has occurred in summary poor communication skills.
10. You are not to conduct any Guild activity until called upon to, or supposed to refer to yourself as part of the Desirable Legacy Government however as a penalty you are to ensure that you personally collect Uganda Shillings 200,000 as minimum as a contribution to the 2k Campaign by Next Week on Friday, 26th April, 2020.
11. Quote; Leadership is not a liability by a legacy platform for all thus call for team response and conduct at all times.
12. Yours Sincerely,

Namujehe Phoebe Desire. Guild President.
UCU KAMPALA CAMPUS. 2020-2021.”
Counsel for the applicant prayed that this honorable court awards damages, costs to the applicant and orders the President to write apology letters to all the three Justices of the Guild Tribunal that were suspended.
The learned Attorney General, Magoola Mark in his submissions raised objections to the learned counsel for the applicant’s submissions and he relied on the estoppel of conduct, rule three of the Judicature Act, Article 1(1) of the 1995 Constitution of the Republic of Uganda which provides for the supremacy of the constitution, Article 2 of the 1995 constitution of the Republic of Uganda which provides for the defense of the constitution, Article 66 of the Uganda Christian University Student’s Guild Constitution which provides for the powers of the Guild Tribunal, Article 68 of the Uganda Christian University Student’s Guild Constitution which provides for the appointing authority of the Guild Tribunal Justices and Article 72(2) of the Uganda Christian University Students’ Guild Constitution which provides for the integrity and moral character of the Guild Tribunal Justices.
He relied on several cases which included Chief Constable of North Whales V Evans (1982) 3 ALLER 141, Hon. Theodore Sekikuubo and 2 others V Attorney General MC NO.92 of 2015, Dawson Kadope V URA MISC. CAUSE NO. 0040 OF 2019, Ignatius Loyola Malungu V Inspector General of Government MC NO. 59/2016(2017) UGHCCD 196 and Abbay Kumar V k Srinivasan AIR 1981 Delhi 381.
Senior counsel prayed that this honorable court quashes the matter before it.
The matter before this honorable court is a matter of public interest. It is intended to move this honorable court so as to examine the process that was used by the Guild President while suspending the Guild Tribunal Chief Justice and the other two Guild Tribunal Justices. It further propels this honorable court to pronounce itself on any available remedies.
Chapter 7, Article 73 of the Uganda Christian Students’ Guild Constitution, provides for the grounds and procedure for removal of a member of the Guild Tribunal from the tribunal and therefore stipulates that, “(1) A member of the Tribunal shall be removed from his or her seat on the Tribunal if that person is:
(a) An ongoing failure to perform the basic functions of office; (b) In a compromising position; or
(c) Corrupt.

(2) Any member of the Guild who is not satisfied by the position of any member of the Tribunal shall in writing inform the Minister of Justice and Constitutional Affairs and state those grounds in clause (1) above of discontent clearly.
(3) On receipt of such written complaint the Minister of Justice and Constitutional Affairs shall cause an investigation to be conducted into that matter.
(4) The Minister shall then give a report to the President and speaker of parliament detailing on whether or not that Member should be removed.
(5) The report shall be tabled before parliament and the President for debate and in all cases the tribunal member being the subject of a report shall be accorded a right to a fair hearing.
(6) Parliament shall then recommend to the President what action to be taken on the findings of the report.
(7) A President shall within seven (7) days of receipt of the recommendations by parliament take relevant action on the report.”
As per the facts before this honorable court, the grounds and procedure for removal of a member of the Guild Tribunal from the tribunal were not followed by the appointing officer as she sent out suspension letters to the Guild Tribunal Chief Justice and the other two Justices of the Guild Tribunal informing them that ” you are not to conduct any Guild activity until called upon to, or supposed to refer to yourself as part of the Desirable Legacy Government …” This therefore implies that the suspension of the Guild Tribunal Justices amounted to removal from the Guild Tribunal because for that period of time, they were not Justices of the Guild Tribunal.
Article 1(2) of the Uganda Christian University Students’ Guild Constitution provides that, “If any other instrument or custom belonging to the guild body is inconsistent with this constitution, the constitution shall prevail.” As per the facts before this honorable court, the learned attorney general introduced a custom of the desirable legacy government working together to achieve a desirable legacy. He propounded that the Guild President and the other two Justices of the Guild Tribunal had an oral contract at the beginning of the regime to work together with other Guild leaders regardless of position for the good of the Guild government and it meant that they were subject to the Guild President’s penalties if they failed to work for the Guild government as expected.
This custom, given the fact that it gives the Guild President absolute power over other Guild government officials regardless of position and yet there ought to be separation of powers, is inconsistent with this constitution.
Therefore, the removal of the Guild Tribunal Chief Justice and the other two Justices of the Guild tribunal was null and void on grounds that the appointing officer did not follow the right procedure to remove them from the Guild Tribunal and that the oral contract of the desirable legacy Guild government that was relied on to take the suspension action which amounted to removal was inconsistent with the Uganda Christian University Students’ Guild Constitution.

This honorable court therefore orders that,

1. The Guild Tribunal Chief Justice and the other two Guild Tribunal Justices that were illegally dismissed resume their offices because their removal did not fall within the ambits if the law. This honorable court however dissents to order the Guild President to write apology letters to the three Guild Tribunal Justices so as to avoid “bad blood” between her and the three Justices of the Guild Tribunal as the apology letters may be used to mock the Guild President.
2. The applicant is awarded costs amounting to two currency points (40,000 Uganda shillings) to cater for the time and expenses incurred in perusing this suit.
   I so order.
   KIMULI MARK SEMPALA.
   REGISTRAR/ JUSTICE OF THE GUILD TRIBUNAL. Friday, 30th April, 2021.

KIMARA HARMONY VS AINEBYOONA IVAN ARTHUR & GUILD ELECTORAL COMMISION-MISCELLANEOUS APPLICATION NO.1 OF 2021(ARISING OUT OF CIVIL SUIT NO 1 OF 2021).

THE REPUBLIC OF UGANDA

IN THE GUILD TRIBUNAL OF UGANDA CHRISTIAN UNIVERSITY MUKONO

MISCELLANEOUS APPLICATION NO.1 OF 2021

(ARISING OUT OF CIVIL SUIT NO 1 OF 2021)

KIMARA HARMONY………………..…………………………………APPLICANT

VERSUS

AINABYOONA IVAN ARTHUR…………………………………………….1st RESPONDENT

GUILD ELECTORAL COMMISION………………….……………….….2nd RESPONDENT

BEFORE HIS LORDSHIP HON. MR JUSTICE AINEBYONA WILBERFORCE; CJ

RULING

This application is brought by way of chamber summons against the 1st Respondent and 2nd Respondent under section 33 of the Judicature Act Cap 13, Laws of Uganda and section 98 of the Civil Procedure Act Cap 71, Laws of Uganda) Order 41 rule 1 and 9, and Order 52 rule of the Civil Procedure Rules (Statutory Instrument 71-1) for orders that;

a) A Temporary injunction issues refraining the 1st respondent from swearing in as of 6th April, 2021 till the main suit is disposed off.

b) Costs for the Application are provided for

The grounds of this application are set out in the affidavit of Kimara Harmony (1st Applicant) which briefly state; that there is a prima facie case, and the applicant is to suffer irreparable injury and that the balance of convenience lies in his favor and therefore a temporary injunction be issued refraining the 1st Respondent from swearing in.

In the interest of time the irrespective counsel filled written submissions and I have considered the respective submissions. The applicant was represented by himself whereas the 1st respondent was represented by and the second respondent did not attend/show up.

The applicant submitted that the legal principles to be considered in an Application for a temporary injunction are elementary and were stated in American Cyanamid Co. v Ethicon Ltd [1975] AC 396. This was cited with the approval of Kiyimba Kaggwa v Haji A.N Katende [1985] HCB 43 as;

The grant of an interim or temporary injunction is an exercise of judicial discretion. The whole purpose of a temporary injunction is that parties ought to be preserved in status quo until the question to be investigated in the suit can be finally disposed of thus the applicant ought to satisfy the following,

Firstly, an applicant for a temporary injunction must show prima facie case with a probability of success. There ought to be a triable issue, which ought to go to a tribunal for adjudication, not necessarily one that must succeed. Secondly, that there is Likelihood of “irreparable” damage or injury. By irreparable injury, it is meant injury which is substantial and couldn’t not be adequately remedied or atoned for by damages. Thirdly, if the court is in doubt it will decide the application on a balance of convenience.

The applicant in his submission contests the electoral process leading to the victory of the 1st respondent as it was tainted with irregularities such as failure for some students to vote and further the 2ND respondent failure to address the complaints as raised by the applicant. This is further evident in the affidavit in support presented by the applicant which rises a serious question of law.

On the second ingredient, the applicant contends that he is to suffer irreparable damage in the event the injunction is not granted based on his profound reputation he holds in society. And lastly on the balance of convenience, the applicant contended that it would be detrimental to the applicant if the order is not granted prior to hearing of the main suit.

Counsel for the 1st Respondent submitted that the Applicant must show that there is a substantial question to be investigated with chances of winning the main suit on his part. The phrase “substantial question to be investigated” has been extended in the case of “American Cynamide (supra) by Lord Diplock thus; “The court no doubt must be satisfied that the claim is not frivolous or vexatious in other words, that there is serious question to be tried”

The Black’s Law dictionary, 11 Edition on page 811, defines the word frivolous to mean, lacking in high purpose; trifling, trivial, and silly, lacking a legal basis or legal merit; manifestly insufficient as a matter of law. The word vexatious according to the same Dictionary on page 1876 is defined to mean “without reasonable or probable cause or excuse; harassing, annoying.” Taking note of the aforementioned points, counsel for the respondent that applicant’s submission was vexatious as it didn’t display any serious points of law to be answered, Counsel further argued that Applicant’s contention of loss of reputation as irreparable injury doesn’t any sense hold water since the plaint doesn’t anywhere disclose the reputation of the applicant and therefore shouldn’t be entertained by this Honorable Tribunal. Counsel for the 1ST respondent prayed that an injunction not be issued against the 1st Respondent.

Court’s Determination.

Section 38 of the Judicature Act Cap 13, Laws of Uganda in with Order 41 rule 29 of the Civil Procedure Rules [Statutory Instrument 71-1] envisages this honorable tribunal with the mandate to grant orders of a temporary injunction in all cases in which it appears to be just and convenient to do so as to refrain any person from doing acts. Important to note is, the above stated provisions are supported by Article 64, 69 and 70 of the Student’s Guild Constitution, amended 22nd November 2012 which clearly spell out the mandate of the tribunal and matters that are to be handled by it in respect to the student’s affairs. An injunction can be referred to as order by court restraining the defendant from carrying out or performing a given act (see Justice Richard Butera in Patrick Kaumba Wiltshire v Ismail Dabule Civil Application No 3 of 2018 arising out of CA No 2 of 2018, Hwang Sung Industries Ltd v Tajdin Hussein and others SCCA No.19 of 2008).

The granting of a temporary injunction is an exercise of judicial discretion as was discussed in the cases of Equator International Distributors Ltd v Beiersdorf East Africa Ltd & Others Misc. Application No.1127 of 2014, Capital Shoppers Ltd and others v Uganda Revenue Authority Miscellaneous Application No.265 of 2020 arising out of Miscellaneous Cause No.109 of 2020). Worthwhile to note is that the discretionary powers are to be exercised judiciously as was noted in a number of legal jurisprudence to include Zubeda Muhamed and anor v Laila Wallia and another Civil Reference No 7 of 2016, Yahaya Kariisa vs Attorney General & Another, S.C.C.A No.7 of 1994, [1997] HCB 29, Erisa Rainbow Musoke vs Ahamada Kezala [1987] HCB 81, Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223). The rationale behind the grant of a temporary injunction is aimed at preserving the status quo, which simply denotes the existing state of affairs existing before a given particular point in time ( Yakubo Senkungu and others v Cerencio Mukasa S.C.C.A No 5 of 2013, Daniel Mukwaya v Administrator General H.C.C.S No.630 of 1993,[1993] IV KALR 1).

It should be noted that where there is a legal right either at law or in equity, the court has the power to grant an injunction in protection of that right. Further to note, is that a party is entitled to apply for an injunction as soon as his legal right is invaded (Titus Tayebwa v Fred Bogere and Eric Mukasa Civil Appeal No.3 of 2009).

It is trite law for application to be maintained three conditions must be satisfied by the Applicant as was discussed in the case of Behangana Domaro and Anor v Attorney General Constitutional Application No.73 of 2010 that is, That the applicant must show a prima facie case with the probability of success, that the applicant might otherwise suffer irreparable injury which would not be adequately be compensated by an award of damages and if the court is in doubt, it would decide an application on the balance of convenience ( see American Cyanamid Co. v Ethicon Ltd ( supra) reckoned in Kiyimba Kaggwa v Haji A.N.Katende ( supra), Nasser Kiingi and Another vs Attorney General and two others Constitutional Application No.29 of 2012 )

I will now proceed to look at these conditions in relation to this case because each case must be considered upon its own peculiar facts.

Firstly, that the applicant must show a prima facie case with probability of success. Justice Musa Ssekaana in Capital Shoppers (U) Ltd and others vs Uganda Revenue Authority (Supra) on discussing prima facie case noted, the applicant must attest that there is a triable issue, which ought to go to the tribunal for adjudication, not necessarily one that must succeed. The analogy of this case presents, on the face of it, there must be a matter of law in contention. Though the applicant didn’t orally in his submissions address the court in respect of the triable issue, as he turned bits and pieces, the affidavit as presented by him reflects that there is triable issue that needs to be addressed by court as reflected the main civil suit no 1 of 202.I differ from the respondent submission that the application is frivolous or vexatious as the affidavit of the applicant reflects serious questions of law that need to be addressed by this Hon. Tribunal as evident by all the irregularities in the electoral process as contained in the affidavit which amongst others include non-compliance with the law. Therefore, given the fact that this is at the interlocutory stage, it is no part of the courts function to resolve conflicts of evidence on affidavit, nor resolve difficult questions of law. What is basically needed is a prima facie case which what I as have stated above, has been shown.

That there is irreparable damage to be suffered by the applicant. In the case of Tonny Wasswa vs Joseph Kakooza [1987] HCB 79, court defined the phrase “irreparable damage” to basically refer to the damage that cannot be adequately atoned for in damages, in otherward this damage must be substantial or material which cannot be adequately atoned for in damages. (see Tumusiime v Busobozi Civil Appeal No.0038 of 2016, Gapco Uganda Ltd v Kaweesa & Anor Miscellaneous Application No.259 of 2013 Arising out of Civil Suit No.133 of 2013). The applicant contended that failure to grant the injunction would constitute irreparable damage to his reputation, however when asked as to how an election would tantamount to bad reputation, the applicant could hardly answer. I must note that counsel ought to address words in the right meaning, the connotation of the word reputation can only be best applicable in the event there has been a ridiculous act that has been committed on part of the defendant that would lower his reputation in the estimation of the right thinking members of society ( see Francis Lukooya Mukoome & Anor v The Editor in Chief Bukedde Newspaper & 2 Ors Civil Suit No351 of 2007, A.K.Oils & Fats (U) Ltd v Bidco Uganda Limited HCCS No.0715 of 2005). The Applicant’s affidavit doesn’t disclose any ground of loss of reputation as a basis for grant of this injunction (counsel must at all times avoid pick and peel submissions as a shield to seek favor and sympathy from court, for all submissions must not only to be a manifestation of the plaint but also a true reflect of the law itself emphasis mine). This is an election exercise, countries world over have held elections whose end goal is to have a win or loss. It can’t be disputed that indeed there are always irregularities in the election exercise justifying as to why there is a main suit before this tribunal pending determination. However, emphasis is that this must never be used as a yardstick to measure reputation otherwise, the courts would be overwhelmed with floodgates for losers in the election rendering the whole essence of an election useless. Perhaps, now election loss by the various contestants would be substituted for defamation as the applicant puts it. Therefore, from this ground, I contend that the applicant didn’t anywhere convince this tribunal on the ingredient as to irreparable damage.

Lastly, the matter lies on the balance of convenience lies in favor of the applicant. In the case of Victoria Construction Works Ltd v Uganda National Roads Authority HMA No. 601 of 2010 the High Court while citing the decision in J.K Sentongo vs Shell (U) Ltd [1995] 111 KLR 1, by Justice Lugayizi observed that if the applicant fails to establish a prima facie case with likelihood of success, irreparable damage and need to preserve the status quo, he or she must show that the balance of convenience was in his favor. Further Bashaija K Andrew J in Makerere University v Omumbeija Namusisi Farida Nalwembe Bwanga ( Miscellanous Applicatiion No.658 of 2013), stated that the balance of convenience will lie more to the applicant who will suffer more if the respondent is not restrained in his or her activities complained in the suit. The question is then, with whom did the balance of convenience lie? Court takes record of the fact that neither the applicant nor the counsel of the 1st respondent discussed this ingredient as they both didn’t fully understand the concept of balance of convenience thereby rendering it absent.

In nutshell and for reasons stated herein above, this application for the grant of the temporary injunction fails and dismissed with no order as to costs.

I so order,

Dated, signed and delivered by email and WhatsApp at Mukono on the 6th day of April,2021

AINEBYONA WILBERFORCE

CHIEF JUSTICE.

UGANDA CHRISTIAN UNIVERSITY GUILD TRIBUNAL RULES OF PROCEDURE, 2015

UCU GUILD TRIBUNAL RULES OF PROCEDURE 2015 FINAL DRAFT COPY.pdfDownload

The Uganda Christian University (UCU) Student’s Guild Constitution.

Guild Constitution (Final), 22 Nov 2012-2-2.pdfDownload

NEW MEMBERS OF THE GUILD TRIBUNAL-2020/2021.

The 23RD Guild President OF Uganda Christian University His Excellency, AGABA KENNETH AMPONDA with the powers vested in him under Article 68 of the UCU Students Guild Constitution recently appointed 5 Justices to the U.C.U Guild Tribunal the Judicial Organ of the UCU Guild Government.

1. JUSTICE AINEBYONA WILBERFORCE – CHIEF JUSTICE.

2. JUSTICE NDAGIRE HELLEN- DEPUTY CHIEF JUSTICE.

MEMBERS OF THE BENCH.

3. JUSTICE KIZZA ARNOLD LUMINSA.

4. JUSTICE MUGISHA EVELYNE.

5. JUSTICE AKATUKUNDA DOROTHY.

To the inspirational Outgoing Bench, JUSTICES; NANJOBE RUTH(CHIEF JUSTICE), NDYAMUHAKI JOEL(DEPUTY CHIEF JUSTICE, JUSTICE NAMAGEMBE JOJO L, JUSTICE OBILAN JOSEPH AND JUSTICE AINEBYOONA WILBERFORCE……Much thanks to you all for you have surely had a positive and sustainable Impact and your names are engraved deep down the Jurisprudence of UCU for your Delligent Service.

OTIM JOEL V ATTORNEY GENERAL OF UGANDA CHRISTIAN UNIVERSITY-MUKONO CONSTITUTIONAL PETITION NO. 4 OF 2014

IN THE REPUBLIC OF UGANDA

IN THE STUDENTS’ GUILD TRIBUNAL OF UGANDA CHRISTIAN UNIVERSITY AT MUKONO.

CONSTITUTIONAL PETITION NO. 4 OF 2014

OTIM JOEL…………………………………………………………………………PETITIONER

VERSUS

ATTORNEY GENERAL…………………………………………..……………..RESPONDENT

CORAM:

JOEL BASOGA CH; PAMELA ACIDRI OKUNIA J; KABAFUNZAKI BRIAN J; BALYAINHO LASTONE GULUME J; AYEBAZIBWE JOLLY J;

This Constitutional Petition is brought under article 70(1a) of the Uganda Christian University Guild Constitution.

This petition arises out of parliamentary actions on motions passed on the 10^th September 2014. The petitioners seek a declaration, permanent injunction and costs on grounds that;

• The transfer of the guild shirts project and guild awards from the office of the secretary general to the office of the speaker contravenes Articles 1, 2(3), 24(1), 24(4), 34(2), 36, 40, 42(2), 43(2), 45(3), 97(3), 99(1).

• The direction by the parliament for the vice president to reprint the guild leader’s chart contravenes Articles 1, 2(3), 24(1), 24(4), 34(2), 36, 40, 42(2), 43(2), 45(3), 97(3), 99 (1).

In a scheduling conference conducted on the 17^th September 2014 four issues were agreed upon and they are here in stated;

1. Whether the petitioner discloses a cause of action

2. Whether the motion passed by parliament to shift the organization of the guild awards from the general secretary’s office to the speaker’s office is inconsistent with the constitution

3. Whether the motion passed by parliament to shift the making of the guild shirts from the General Secretary’s office to the speaker’s office is inconsistent with the constitution

4. Whether the motion passed by parliament against the Vice President to reprint the guild leaders chart was inconsistent with the constitution.

Prior the hearing, an interlocutory matter as to the grant of a temporary injunction was heard and the temporary injunction was granted. Also there was a prayer by the Rt. Hon Speaker and the Rt. Hon Deputy Speaker to be joined as respondents and so were denied.

JUDGMENT OF JUSTICE BASOGA JOEL

The facts concerning this matter are that the petition was brought by Otim Joel, a student of Uganda Christian University in his 2^nd year at the Faculty of Law. Parliament on 10/8/14, made certain resolutions that included passing a motion to shift the Guild Awards from The office of the General Secretary to the office of the Speaker. The parliament also passed a resolution shifting the Guild Shirts project from the office of the General Secretary to the Office of the speaker. And lastly parliament had also passed a resolution directing the vice president to reprint the Guild Charts in his own capacity and at his own cost.

During the scheduling conference, the following issues were agreed to:

1. Whether the petition discloses a cause of action.

2. Whether motion passed by Parliament to shift the Guild awards from the office of the General Secretary to the Speakers office contravenes the Guild Constitution.

3. Whether the motion passed by Parliament to remove the Shirts project from the office of the General Secretary to the Speaker’s office is in contravention of the Constitution.

4. Whether the motion directing the Vice President to reprint the Guild leaders chat, contravene the Guild Constitution.

Counsel for the Petitioner was Counsel Kugonza Isaac &Counsel Obiga Joel.

Counsel for the Respondents were the Attorney General Senior Counsel Bangi Sayid Senior Counsel Owino Innocent, Counsel Kaddu Benjamin, Counsel Kakuru Enoch, and Counsel Namyalo Lavendah.

1. Whether the petition discloses a cause of action?

Concerning the 1^st issue, the petitioner submitted, relying on Serapio Rukundo V Attorney General Constitutional petition No 3 of 1997.Where it was stated that for one to determine a cause Action in a Constitutional Petition, one merely had to look at the plaint to establish this. The Respondent contended this by relying on Nabwokye Ivan V Attorney General Constitutional Petition No.2 of 2013 UCU Law Reports where two occurrences would be used to determine whether there is a cause of Action; these were stated by Lord Agaba Arnold as he then was:

1. Breach of an obligation.

2. Breach of a Constitutional Provision.

It is my finding that the Petition discloses a Cause of Action.

Article 137(3) of the Constitution of Uganda states that :

(3) A person who alleges that—

(a) an Act of Parliament or any other law or anything in or done

Under the authority of any law; or

(b) Any act or omission by any person or authority,

is inconsistent with or in contravention of a provision of this Constitution, may petition the Constitutional Court for a declaration to that effect, and for redresswhere appropriate.

Since the petition alleged the violations of Articles 1, 2(3) 24(1), 24(4), 34(2), 36, 70, 172(2) 173(2), 75(3), 93(3), 99(1) of the Uganda Christian University Guild Constitution (herein after referred to as the Guild Constitution), this allegation alone gives rise and amounts to a cause of action for the purposes of a Constitutional Petition. The position regarding a cause of action for Constitutional matters should not be construed as strictly as those in any other Action, where on petition prima facie alleges the breach and violation of a constitutional provision, as per the standard of Article 137 of the Guild Constitution, the person has a cause of action.

2. Whether motion passed by Parliament to shift the Guild awards from the office of the General Secretary to the Speakers office contravenes the Guild Constitution?

The Petitioner submitted relying on Parliamentary Hansard (AnnextureB) where the motion to transfer the Guild awards was passed by a vote. They further relied on Article 24(4) Guild Constitution that confers powers upon the President, to delegate her powers to different offices. This is reinforced by Article 37 (2) and Article 42(2) of the Guild Constitution that establish the functions of the office of the General Secretary. In addition they sought to rely on KiizaBesigye V Yoweri Museveni Constitutional Petition No. 1 of 2006, which established the Constitution as the ultimate source of Authority. The petitioner averred that the Guild awards were budgeted for under the Office of the General Secretary simultaneously under the Handover Ceremony, which according to Counsel Kugonza were the same event and therefore Parliament would not shift such a responsibility.

The Respondents contended that the organization of the Guild Awards is primarily the responsibility of the Office of the Director of Students affairs (herein after referred to as the DOSA), this position was reaffirmed by Article 6 of the Guild Constitution that provides for the DOSA as the Primary Organ overseeing the student Guild. The respondents further contended by relying on the case of Zachary Olum V Attorney General Constitutional Petition No.6 of 1989. In response to the petitioners averment, concerning the Handover and the Guild awards being the same event, the respondents contended that the Handover ceremony of the Guild and the Guild awards are technically different events which cannot be construed so to the advantage of the Petitioners who had not proved them as one event.

It is my finding that the motion to transfer the organization of the Guild Awards from the office of the General Secretary to the office of the Speaker is in contravention of the Constitution.

To have an understanding of this, I will direct you to the establishment of Parliament and its major functions under the Guild constitution.

Article 43 (1) of the Guild Constitution establishes Parliament. It states categorically:

There shall be a Parliament of the Uganda Christian University Guild Government.

The Composition and functions of Parliament shall be prescribed by this Constitution as stated in Article 43(2) of the Guild Constitution. The question then, is what are the prescribed functions of Parliament in the Guild Constitution?

Parliament’s first Function is to make law (legislations). This is provided for under Article 45(1) of the Guild Constitution. This states:

Subject to the Provision of this Constitution, Parliament shall have the power to make Laws on any matter of the Peace. Order and development and Good governance of the Guild…

Parliament is also charged with the Responsibility of protecting the Constitution and promoting the democratic governance of the UCU Students Guild as provided for under Article 45(3) of the Guild Constitution.

In addition Parliament is also mandated to pass the Guild Budget before the beginning of each fiscal year as provided for under Article 97(3) of the Guild Constitution.

Quite clearly one can summarize the Obligations and functions of parliament into three major roles.

• The Legislative Role

• Promotion of Good Governance and accountability (through its Committees established under Article 51 of the Constitution)

• Passing the Guild Budget.

It is important to note that, of all the functions stated in the Constitution, the Parliament is not given the mandate to shift ministerial responsibilities from one office to another. In Centre for Human Rights Development (CEHURD) V Attorney General: Constitutional Petition No 16 of 2011, the constitutional Court took heed of a preliminary objection that hearing a matter concerning the implementation of maternal health was a political question, and courts did not have the jurisdiction to entertain matters of national policy. In relation to the instant case, and considering the roles of Parliament established in the Guild Constitution, The Parliament cannot assign itself roles like the Guild awards. This would fundamentally be against the Position reached in CEHURD v Attorney General (as earlier cited) that espouses he modern concept of Separation of powers. This apparent motion is therefore unconstitutional and in violation of the Uganda Christian University Guild Constitution.

Yet even then, whether the Guild Awards are under the office of the DOSA, the Parliament cannot make resolutions on reassigning and giving responsibilities to the Office of the Speaker because this is not a part of its mandate under the Guild Constitution as earlier on discussed.

.

It is therefore my finding that Parliament Motion to shift the Guild Awards from the Office of the General Secretary to the office of the Speaker is null and Void because it is in contravention of Articles 43(1), 43(2) that establish its functions and restrict the functions of Parliament pursuant to the Constitution.

3. Whether the motion passed by Parliament to remove the Shirts project from the office of the General Secretary to the Speaker’s office is in contravention of the Constitution?

The petitioner relied on the doctrine of Separation of powers established in Jim Muhwezi and 3 others v Attorney General Constitutional Petition No.10 of 2008. He averred that Parliament’s role was to majorly make law and protect the Constitution. He emphasized the mechanism of checks and balances where all the organs of parliament would check their powers, but in the instant case he averred that Parliament was instead grabbing power.

The respondent contended that there was no express directive from the President to the General Secretary allowing her to print and makes the Guild Shirts as is mandated under Article 24(4). The respondent further averred that as part of Parliaments mandate to protect the constitution and promote good governance under Article 45(3) of the Guild Constitution, they could pass a motion to that effect.

In considering this, the evidence adduced (the Guild Budget) the Project of the Guild Shirts was expressly budgeted for under the office of the General Secretary.

With that Position in mind and considering my deliberation on the mandate of Parliament in the 2^nd issue, Parliament does not have the mandate to shift the Guild shirts Project from the office of the General Secretary to the office of the Speaker.

And yet even then considering the fact that Parliament’s mandate to pass the Guild Budget before the beginning of each fiscal year as provided for under Article 97(3) of the Guild Constitution. This provision does not give them the mandate to shift the Budget after they have passed it. This would be stretching their powers.

I will therefore find it relevant to state, that the framers of the Uganda Christian University Guild Constitution found it prudent to state categorically under Article 43 of the Guild Constitution. The Composition and functions of Parliament shall be prescribed by this Constitution. The acts of any authority or arm of Government should be authorized by the Constitution. This limit is important because the framers fore saw the abuse of power in situation where it is convenient to do so. I would therefore adjudicate by saying that reference of the legality and constitutionality any act of the Congress or Parliament should be found in the Constitution which is the Supreme of Law. Without this then, the Rule of Law will become a hollow shibboleth as different organs of Government will engage in different acts unsanctioned by the supreme law.

I therefore declare that the Motion passed by Parliament to shift the Guild Shirts Project in contravention of the Constitution. And I order that the previous status quo of the Guild Shirts being handled by the Office of the General Secretary Prevails.

4. Whether the motion directing the Vice President to reprint the Guild leaders chat, contravenes the Guild Constitution?

The petitioners submitted that the motion contravened Articles 31 and 59 of the Guild Constitution. They further averred that the motion ordering the vice president to reprint Shirts is not Permitted or sanctioned under the authority of the Law.

The respondent contended the Petitioners submission by relying on the precedent of Tinyefunza v Attorney General Constitutional Petition No.1 of 1996 that emphasizes the rule of harmony while interpreting the constitution.

It is my finding that the motion directing the Vice President to reprint the Guild Leader’s Chart at his personal cost is unconstitutional.

It is trite law that the expenses of a government are all to be provided for by the Budget. This is accordingly passed by the Guild Parliament under Article 97(3) of the Guild Constitution. Any expense outside that cannot be accepted unless peculiar circumstances are proved. But yet even then Parliament cannot go ahead and order the Vice President to reprint the Guild Chart. This is because as earlier on discussed in Issue 2, Parliament’s mandate is accordingly restricted to functions prescribed in the Constitution. Ordinarily if the quality of the Charts was in fact sub standard, the Parliament could make an investigation through one of its committees, declare its findings and then Parliament could take a decision concerning the competence of the Vice President’s performance of his duties. This entire procedure is well spelt in the Guild Constitution and I will not spend more time articulating myself on the procedures since they are well spelt out and the Attorney Generally is legally mandated to give legal advice to the Government. This is unequivocally outside Parliaments mandate as it was never foreseen that Parliament would order people to perform their duties more so in this instant case of ordering the Vice President to reprint the Guild Charts.

I therefore find that the motion ordering the Vice President to reprint the guild charts is in contravention of the Guild constitution.

Each Party bares their own costs.

JUDGEMENT OF JUSTICE PAMELA A.O

This suit is brought under Article 137 of the Constitution of the Republic of Uganda and article 70(1a) of the Uganda Christian University Guild Constitution which clearly state that the courts and this Tribunal shall have the Jurisdiction to hear and determine any question arising within the Student Guild or among the students on any matters regarding the interpretation of this Constitution.

This is the Constitutional Petition number 4 of 2014 between Otim Joel being the Petitioner and the Attorney General being the respondent. The hearing of the main suit took place on the 7^th October, 2014 before a fully constituted bench of five judges who listened to the matter.

The petitioner was represented by counsel Obiga Joel and counsel Kugonza Isaac, while the following counsels represented the respondent; senior counsel Bangi Sayid, senior counsel Owino Innocent Manuku, counsel Kaddu Benjamin, counsel Kakuru Enock and counsel Namyalo Lavendah. The Counsels made oral submissions and adduced documentary evidence to persuade the Tribunal.

The issues to be determined by the Tribunal were agreed during the scheduling conference that was held on the 17^th September, 2014, as follows;

1. Whether the Petitioner discloses a cause of action?

2. Whether the motion passed by Parliament to shift the Guild awards project from the office of the General Secretary to the Speakers office contravenes the Constitution?

3. Whether the motion passed by Parliament to shift the Guild T.Shirts project from the office of the General Secretary to the Speakers office is unconstitutional?

4. Whether the motion passed by Parliament to order the Vice President to reprint the Guild Charts is unconstitutional?

Having had the benefit to listen to the oral submissions of counsels from both sides, here are my findings and my reasoning for making the decision the way I did;

1. Whether the Petitioner discloses a cause of action?

In resolving the first issue counsel Kugonza Isaac submitted on the authority of Serapio Rukundo V AG Constitutional petition no 3/1997, that in disclosing the cause of action, the court should consider and look at the plaint for the alleged facts and consider them to be true.

He added that in the plaint it was clearly stated that during the Parliamentary session held on the 10^th of September, 2014, a motion was moved to transfer the Guild awards project and the guild T-shirts project from the General Secretary’s office to the office of the Speaker. Further the Parliament passed a motion that was to the effect that the Vice President was to re-print the guild leaders’ chart. Counsel for the Petitioner produced evidence contained in the Parliamentary Hansards.

The Respondent’s first counsel, Kaddu Benjamin argued that there was actually no cause of action because Counsel for the Petitioner didn’t actually show that there was a breach of obligation or breach of constitutional provisions by the actions alleged in the Tribunal case of Hon. Nabwokye Ivan v AG Guild Constitutional Petition No 2/2013. He further submitted that under the authority of George Owor v AG and Hon. William Okello Constitutional Petition 38/2010, the cause of action needs to demonstrate with clarity that an alleged act is contrary to the Guild Constitution. Counsel Kaddu went ahead to demonstrate that the transfer of the Guild Awards project from the General Secretary’s office didn’t contravene any Constitutional provisions given the fact that it is not under the main designated duties assigned to the office according to article 42 of the Guild Constitution and that the Guild awards were not reflected as one of the items that the General Secretary planned under the Guild Budget.

I have very carefully addressed my mind to the arguments of both counsel in this Constitutional petition. It is trite law in Uganda that a plaint which discloses no cause of action must be rejected. To say that a plaint discloses a cause of action, it must show that the Plaintiff enjoyed a right; that the right was violated; and that the Defendant is liable for that violation as per the case of Auto Garage & Others V Motokov (NO. 3) [1971] E.A. 514.

In the instant case I agree with the Respondents that the Petitioner didn’t disclose the cause of action to the Honorable Tribunal. With due regard for the decisions of the previous courts on this matter, it is not enough for counsel to persuade the tribunal to entirely rely on the plaint to determine that a cause of action exists. The sections 101to 111of the Evidence Act clearly emphasizes that he who asserts a matter must prove it but he who denies it needs not to prove it. Am of the opinion that, much as the plaint may assert the existence of a fact, it’s necessary for counsel make an effort to adduce evidence so to prove what is asserted. As regards this matter, counsel for the Petitioner did not disclose the cause of action and clearly showing how the actions alleged in the plaint contravene the particular provisions in the Guild Constitution.

2. Whether the motion passed by Parliament to shift the Guild awards project from the office of the General Secretary to the Speakers office contravenes the Constitution?

The Guild awards project was initially to be managed by the office of the General Secretary which is part of the Executive arm of Government. Counsel for the Petitioner, Kugonza explained that each arm of Government has specific duties for example; Article 34(2) of the Guild Constitution provides that the Cabinet can determine and formulate policies and also perform any other duties conferred upon them by the Constitution. Particularly the General Secretary under article 42 of the Guild Constitution is mandated to keep minutes of Guild Cabinet meetings and perform any duties as the President may direct. Parliament is mandated under article 45 of the Guild Constitution to make laws on any matter for the peace, order, development and good governance of the Guild.

This was to illustrate that each arm of Government has specific duties and thus one arm should not directly interfere with the role of others. He relied on the authorities of Rtd. Col. Kizza Besigye v Yoweri Kaguta Museveni Election Petition no1of 2006 and Speaker of National Assembly v Eloku SCCA no 20 of 1999 which clearly stated that the Constitution is the ultimate source of authority and therefore the Guild Parliament is contravening the Constitution by acting ultra vires.

Counsel relied on the affidavit of Molly Nantongo to show that the Guild awards project was indeed moved to the Speaker’s office by a motion passed in Parliament on the 10^th September, 2014. He added that since the General Secretary had planned for the Guild awards within the Hand over package, it will have severe budgetary implications on the office since article 97 provides that there should be equitable application of funds which have to be well accounted for to the financial advisor.

Counsel Owino Innocent Manuku for the Respondent counter argued this issue by asserting that the Guild awards project was in fact not planned for by the General Secretary because it is not reflected anywhere on the guild budget. He added that the Guild awards were not meant to be handled by the General Secretary’s office but rather by the office of the Director of Student Affairs which under article 6 of the Guild Constitution has authority to overseeing the Students’ Guild activities and advise where necessary. Counsel submitted that the motion doesn’t stand as per the evidence of the Hansards where the DOSA emphasized that, the guild awards were not handled by the General Secretary’s office but rather by a committee headed by staff members. Therefore this case is frivolous and vexatious and the court ought to dismiss it as per the case of Zachery Olum and another v AG Constitutional Petition no 6 of 1996.

I have analyzed that indeed every arm of Government has its distinct roles that should be performed with limited interference from other arms of Government in the Doctrine of separation of powers manifested in the 1995 Constitution of the Republic of Uganda and also in the case of AG v Maj. General Tinyefuza C. A 1/97 . The more practical approach is the doctrine of checks and balances which combats dictatorship to a larger extent by preventing abuse of power through arbitrary and irresponsible exercise of powers by any of the organs of government. Chief justice Benjamin Odoki , as he then was the chairman of the Constitutional Commission, likened the system operation to the three stones under a cooking pot which each play a significant role in supporting the pot. Therefore, each of the three arms of Government , should work to support the other arms of Government by performing its duties while checking how others exercise theirs in order to prevent monopoly of power BUT one arm should not directly interfere in the work of the other.

On the other hand, I find that the Parliament and General Secretaries office cannot claim to possess powers which are not vested unto them by the Constitution. This is acting ultra vires and usurping of power they actually do not possess as per the Hansards where DOSA explains that the guild awards project was managed by a committee of staff members. Therefore going ahead to institute a suit on this claim is indeed frivolous and vexatious because the cause of action is nonexistent as per se since the General Secretary had not planned for the awards in her budget. Therefore the suit actually would not be entertained to determine its constitutionality since the Constitution does not expressly provide for the duty of the guild awards to be managed by a specific office.

3. Whether the motion passed by Parliament to shift the Guild T-shirts’ project from the office of the General Secretary to the Speakers office is unconstitutional?

Counsel Obiga Joel, for the petitioner opened his argument by stating that the separation of powers does not imply grabbing of powers by one arm of government. He cited the case of Jim Muhwezi and 3 others v AG Constitutional Petition 1 of 2004, in which court noted that the doctrine of checks and balances to protect the people from tyranny. He further submitted that the Parliament never exhausted the option of forming the Parliamentary standing committees to investigate the matter and report back to Parliament before transferring the project.

Senior Counsel Bangi Sayid for the Respondent argued that the office of the General Secretary was incapable and incompetent to effectively work on the guild T shirts project since the General Secretary was not around during the semester. He added that the General Secretary has no evidence to show that the T shirt project was assigned to her office by the President or cabinet since the wordings of articles 24(4) and 42(2) of the Guild Constitution are very particular as to who can hand over duties to the office of the General Secretary. Counsel further noted that the Guild Constitution is quite not exhaustive in stating the duties of some offices are not specifies and it does not set a limit to the DOSA’s direct involvement in the students affairs.

Having heard the submissions of both counsels, I make my ruling on this issue that the Parliament was indeed acting inconsistent to the constitution by transferring the guild T-shirts’ project from the General secretaries office to the office of the Speaker simply because they passed a motion without considering other options to make the General Secretary perform her duties as expected under the Constitution by forming standing committees. It is acting ultra vires and breaching the separation of powers for the parliament to take over projects from the Executive arm of government even if their duties are not specifically provided for in the Constitution which is to grant authority to organs and not to give a detailed specification of the duties to be performed by performed by each organ. The t shirts’ project could be one of the many duties that are not expressly provided for under the Constitution but it does not mean that the project will not be undertaken because no authority was appointed to perform it.

4. Whether the motion passed by Parliament to order the Vice President to reprint the Guild Charts is unconstitutional?

The roles and duties of the Guild Vice President are expressly provided under article 31(3) of the Guild Constitution to deputize for the Guild President wherever the need shall arise, perform such other functions as may be assigned to him or her by the President, or as may be conferred on him or her by this Constitution; and shall also be responsible for the affairs of students’ clubs, societies and organizations.

In the instant case the Vice Presidents office is charged with the duty to print Guild Leaders’ charts as budgeted for under article 97(3) of the Guild Constitution in which he is to fully account as per the financial rules of the University.

Counsel cited article 43(2) of the Guild Constitution to emphasize that the parliament has no authority to make resolutions regarding the duties of other arms of government but rather to make law.

Counsel Kakuru Enock submitted on behalf of the respondent as regards this matter. He stated that the supremacy of the Constitution must be upheld at all times according to article 2(3) of the Guild Constitution and re-emphasized this by citing the case of Maj. Gen. David Tinyefunza v AG Constitutional Petition 1 of 1991.

He argued that the Parliament did not violate any provisions of the constitution in seeking the Vice President to re print the guild chart because it had errors made on the name of Hon. Muzeyi Vicent and the constituency if the Guild Speaker and also stated that there is no such constitutional provision for the Deputy Chief Justice.

Having addressed my mind to the submissions of both counsels, it is out of prudent humanitarian good will that the vice president should not re print the guild leaders charts simply because of the following reasons; The errors made on the chart were quite minor and insignificant considering that majority of the corrections were made on the draft chart before printing the final copy and in comparison to the multitudes of guild officials whose names and constituencies were spelled right. The financial source of the re printed charts is uncertain since the finances allocated for that purpose was used up. This would mean making a fresh requisition for other finances which would not be prudent since it will cause budgetary constrains given the few weeks until the new guild government takes over power.

As regarding the costs of the suit counsel for the petitioner prayed that the costs of the suit be paid by the respondents while Counsel Namyalo Lavendah submitted on costs of the suit made prayers on behalf of the respondent. She stated that costs of a suit are only awarded at the discretion of court to the party in whose favor judgment is entered. However in a public interest litigation as such, awarding of costs to the petitioner would be detrimental to the public since its tax payers money that would be used to pay the costs. Therefore the position in the case of Muwanga Kivumbi v AG Petition no 9 of 2005 and Advocacy for Natural Resources Governance and Development v AG Constitutional Petition no 40 of 2003 is that no one should benefit from an act which is merely in the publics interest.ule that

I agree with the judgments in the cases of J Oloka Onyango v AG Constitutional Petition no 8 of 2014, Muwanga Kivumbi v AG Petition no 9 of 2005 and Advocacy for Natural Resources Governance and Development v AG Constitutional Petition no 40 of 2003 that no costs should be awarded in public interest litigations and therefore let each party foot its own costs regarding this suit.

It is my opinion that the acts of parliament are contrary to the guild constitution particularly the guild T-shirts and the guild charts. Therefore order the following;

1. A declaration that the act of Parliament in passing a motion to shift the Guild T.Shirts project from the office of the General Secretary to the Speakers office is unconstitutional.

2. A declaration that the act of Parliament in passing a motion to order the Vice President to reprint the Guild Charts is unconstitutional

3. The temporary injunction granted against the Parliament as per the miscellaneous application should take a permanent injunction form restraining Parliament from executing any executive duties

4. Each party should bear its costs.

JUDGMENT OF JUSTICE KABAFUNZAKI BRIAN

This petition arises out of parliamentary actions on motions passed on the 10^th September 2014. The petitioners seek a declaration, permanent injunction and costs on grounds that;

• The transfer of the guild shirts project and guild awards from the office of the secretary general to the office of the speaker contravenes Articles 1, 2(3), 24(1), 24(4), 34(2), 36, 40, 42(2), 43(2), 45(3), 97(3), 99(1).

• The direction by the parliament for the vice president to reprint the guild leader’s chart contravenes Articles 1, 2(3), 24(1), 24(4), 34(2), 36, 40, 42(2), 43(2), 45(3), 97(3), 99 (1).

In a scheduling conference conducted on the 17^th September 2014 four issues were agreed upon and they are here in stated;

5. Whether the petitioner discloses a cause of action

6. Whether the motion passed by parliament to shift the organization of the guild awards from the general secretary’s office to the speaker’s office is inconsistent with the constitution

7. Whether the motion passed by parliament to shift the making of the guild shirts from the General Secretary’s office to the speaker’s office is inconsistent with the constitution

8. Whether the motion passed by parliament against the Vice President to reprint the guild leaders chart was inconsistent with the constitution.

Prior the hearing, an interlocutory matter as to the grant of a temporary injunction was heard and the temporary injunction was granted. Also there was a prayer by the Rt. Hon Speaker and the Rt. Hon Deputy Speaker to be joined as respondents and so were denied.

I now proceed to address the issues at hand.

1. Whether the petitioner discloses a cause of action

Counsel Kugonza commenced with the case of Serapio Rukundo v AG C/P No. 3/1997 and submitted that it is a matter of ordinarily looking at the petition to determine a cause of action and for as long as there is an existing allegation; it is enough to disclose a cause of action. Impliedly the grounds of the petition should establish a cause of action in a petition and for this matter the transfer of the projects in question by parliament form the Secretary General’s office to the office of the speaker and ordering the Vice President to reprint the guild charts should meet the demand of a cause of action.

Senior counsel Kaddu in response cited the case of Hon. Nabwokye Ivan v Attorney General and two others. Constitutional Petition No.2 Of 2013(UCU Law Reports to clarify what Hon. Agaba Arnold defined as to amount to a cause of action in petitions and suits.

In as much as I appreciate both counsel submissions it is paramount that constitutional petitions are of a unique nature that they need be handled distinctively. This is the same reason why the Constitutional (Petitions and References) rules of 2005 passed. It’s unfortunate counsel cited such an important piece of legislation in expression of their argument on a cause of action.

It is also important in constitutional petition to consider delicately locus standi and cause of action. The respondent counsel dwelled more on locus than cause of action. With locus standi, it is the capacity to sue or petition whereas cause of action is the reason to actually sue or petition.

With constitutional petitions, there is an effect of the position of locus standi in relation to Article 50 and 137 of the 1995 Constitution of the Republic of Uganda. The fact at hand proportionately falls within the provisions of Article 137 of the 1995 Constitution of the Republic of Uganda. This must be harmonized with rule 3 of the Constitutional (Petitions and References) rules of 2005 and clearly this rule elaborates on contents of the petition. What more of contents if provided by law and provided in the petition as required would be needed for a cause of action? The framers of these rules had in consideration the fact that the petitions should have a pivot on which they stem. The petition on record is clearly in conformity to the required contents and definitely there is a cause of action.

2. Whether the motion passed by parliament to shift the organization of the guild awards from the general secretary’s office to the speaker’s office is inconsistent with the constitution

The petitioner’s counsel based his arguments o articles 24(4), 34(2) and 42 of the guild constitution that the transfer of the guild awards project was explicitly contrary to the said articles. Counsel also quoted a number of case law but I do not intend to rely on the same for I do not find any relation to the issue at hand. This is a matter of fact and should be closely unfolded. The guild awards have always been conducted during the handover ceremony but that does not make them one and the same project.

The copy of the Hansard annexure “B” stipulates clearly the DOSA’s statements during the session that the guild award is not handled by the General Secretary’s office and that there is a committee headed by a staff member that accords the awards. The ambiguity of this statement is the fact that it does not express if actually the same committee handles the awards financially or if there is an existing budget for the same. My interpretation of this is that the committee coordinates and selects the leaders qualifying for the awards and forwards the list for execution.

I took time to analyze the extent of parliamentary powers under the guild constitution and the parliament has no powers whatsoever to amend a budget whose amendment is not presented to it by the cabinet. The parliament vested the budget of the guild awards to the office of the General Secretary when it was approving the guild budget.

The respondent counsel centered on the fact that the guild award projects were never under the office of the General Secretary and clearly upon analysis of the guild budget there is no office with the guild award project. I find it that the practice that has been in relation to guild awards should be upheld in this instance on a point of fact.

However it is not prudent to focus and dwell on points of facts where there is an existing law in relation to the exercise of such facts of a procedural nature, it would be circumventing the law. Therefore chapter six of the Guild constitution relates to the guild parliament and this subject to other provisions we must focus on it to legally determine this issue. Particularly, Article 45(3) is a very important provision in relation to the affairs at issue. The parliament can do any actions as long as it finds them fit for democratic governance of the students’ guild.

SC Kaddu submitted that the guild awards were never under the office of the Secretary General and this definitely is supported by the DOSA’s position. The parliament then cannot purport to transfer a project in its inexistence. If the handling committee is headed by a staff is it then democratic governance to vest the project in issue to the parliament? To throw away a piece of bread eaten on by a rat and eating one where it was squatting is useless. In other words two wrongs whether in law or fact do not make one right. It is a very compromising situation for the office of the speaker of parliament as the epitome of parliament to be accountable to the committees under his office. I do not intend to dwell more on this issue for it seems to me that the point of contention as to motions is not considered by the either party as a query but rather the outcome.

I therefore find that the motion made to transfer the guild awards to the respective offices is not to have made any effect and the respective offices should handle the projects as accorded to at the commencement of this guild government. The office of the DOSA must be consulted in doing so.

3. Whether the motion passed by parliament to shift the making of the guild shirts from the General Secretary’s office to the speaker’s office is inconsistent with the constitution

This issue is to be analyzed from the fact that the guild shirt project is clearly stipulated in the guild budget under the office of the General Secretary. As I earlier stipulated in issue 2, the parliament has no capacity to amend a budget whose amendment is not presented to it by the cabinet and as such the procedural irregularities in the second issue apply respectively.

I therefore find that the guild shirt project is and should be executed by the office of the Secretary General’s office.

4. Whether the motion passed by parliament against the Vice President to reprint the guild leaders chart was inconsistent with the constitution.

The guild leaders’ charts project is handled by the office of the guild Vice President. The charts clearly stipulate that there are mistakes as to the names of Hon. Muzeyi Vicent as “Hon. Muzeyi Vincent” and the constituency of the Rt. Hon speaker was stated as “MP Residents” yet he is MP Non Residents.

First, a sample of the charts was presented and corrections made thereto. The office of the Vice President is responsible for the charts production but doesn’t actually do the printing but rather contracts a party which does the printing. On matters this court has taken judicial notice of such as the constituency of the Rt. Hon Speaker of parliament is clear that mistakes were made. However on matters concerning names, no proof was provided in defense as to the eligibility of the names by the respondents for they had the burden. At least a certified copy of the identity card of passbook should have been presented to confirm the genuineness of the name. This was not done. This court will not assume the duties of counsel in ascertaining and presenting evidence.

H. E Mateeka Innocent and the Office of the Vice President are two different people in law. In as much as Mr. Mateeka Innocent holds the office of the Vice President, the contract for the printing of the shirts was done in the scope and course of duty and as such he is not liable for any mistakes in the charts in issue. The government is vicariously liable and for this reason we think it for the same reasons why the Attorney General is a party in this matter.

Article 97(3) of the guild government relates to governments control of the guild funds. Article 99(1) of the guild constitution also stipulates the expenditure of the said guild funds. Unfortunately the government as per the guild budget does not cater for miscellaneous provisions which imply that for the guild charts to be reprinted, the guild cabinet must formulate amendments in the budget and forward it to parliament for approval. This is because its government liability.

The contention that the guild Vice President was to reprint the charts on his own costs is merely an allegation, it is not anywhere on evidence; say in the Hansard. The vice president’s actions as per the charts were not his as a person but rather actions for and on behalf of the government.

The motion is only justified on points of fact if it relates to the point of reprinting at the expense of the government. As I earlier expressed for this to happen a new structure should be drafted by the cabinet and forwarded to parliament for approval to cater for the reprinting. If not done, the direction for the reprint would then be unconstitutional.

I therefore find that:

• The petition in fact disclosed a cause of action.

• The motions relating to transfer of guild shirts projects and the guild awards project are unconstitutional.

• The motion to direct the Vice President to reprint the guild leaders charts is not justified for the recommended procedure for a reprint was not obliged.

• Each party bears its own costs of the suit.

I order accordingly.

Obiter dictum: It is unfortunate that this government has had rifts between the parliament and the cabinet but it should be understood that with governments in Uganda Christian University guild, you serve and go. Whether you want it or not you cannot be reconsidered for the same office if your term as a student has lapsed. It is high time students realized the purpose of being a leader in such institutions. It is not all about disproving each other.

I do hope and pray that there may be no appeal against this judgment on grounds that I misspelled anyone’s name or even that I did not stipulate proper title where necessary.

Some of these aspects are what I may call mere technicalities or mistakes in that their existence does not cause any damage whatsoever.

JUDGMENT OF JUSTICE JOLLY AYEBAZIBWE

In the Constitutional Petition number 4 of 2014 between Otim Joel the Petitioner Vs Attorney General the respondent. The hearing of the main suit took place on the 7^th October, 2014 before a fully constituted bench of five judges who listened to the matter upon which I was apart of them I carefully addressed my mind to the matter, I have read through the Judgment of JUSTICE LASTONE .G. BALYAINHO and I concur.

1. The petition in fact discloses a cause of action.

2. The act of Parliament in passing a motion to shift the Guild T-shirts project from the office of the General Secretary to the Speakers office contravenes with guild constitution

3. The act of Parliament in passing a motion ordering the Vice President to reprint the Guild Charts is unconstitutional.

4. The act of parliament in passing a motion relating to transfer of the guild awards project are unconstitutional.

JUDGMENT OF JUSTICE LASTONE .G. BALYAINHO

The facts of this petition have been carefully and accurately stated in the preceding opinions of my fellow Justices, in that regard I shall not restate the facts. The petition from the scheduling conference raised four issues for determination, which I shall determine one after the other sequentially.

1. Whether the petition discloses a cause of action?

Mr. Kugonza Isaac for the Petitioner averred that indeed the petition disclosed a cause of action. Citing Serapio Rukundo v Attorney General Constitutional Petition No. 3 of 1997 and Jeraj Shariff & Co. v Chotal Fancy Stores [1960] EA 374 at 375, Counsel submitted that the question of whether a Petition discloses a cause of action is answered and determined by perusing through the Petition together with the affidavits that accompany the former in support.

In response, Mr. Kaddu Benjamin appearing for the Respondent, contended that the proper test for a cause of action in Constitutional petitions was well addressed by Hon. Lord Justice Agaba Arnold Barigye in Nabwokye Ivan v Attorney General & 2 Ors Constitutional Petition No. 2 of 2013 (reported in [2014] UCU Law Reports 50), where the learned Justice citing the decision of Mpagi Bahigeine DCJ (as she then was) in George Owor v Attorney General & Hon. William Oketcho Constitutional Petition No. 38 of 2010 stated that; (a) there should be a breach of a Constitutional obligation or (b) breach of Constitutional provisions to give rise to a cause of action in Constitutional matters. Counsel further submitted that in addition to merely alleging an act or omission contrary to the Constitution, the Petitioner should demonstrate with clarity the provisions of the Constitution that have been violated.

The determination of this issue rests on answering the question of whether the Petition meets the test of a cause of action in Constitutional matters. Firstly, a cause of action per the Osborn’s Concise Law Dictionary, 9^th Edn, p. 73 is simply “the fact or combination of facts which gives rise to a right of action.”

The Halsbury’s Laws of England, 4^th Edn (Re-issue). Vol. 37 at p.24 gives a more elaborate definition of a cause of action as follows;

‘Cause of action’ has been defined as meaning simply a factual situation the existence of which entitles one person to obtain from the Court a remedy against another person. The phrase has been held from the earliest time to include every fact which is material to be proved to entitle the claimant to succeed, and every fact which the defendant would have a right to traverse. ‘Cause of action’ has also been taken to mean the particular act on the part of the defendant which gives the claimant his cause of complaint, or the subject matter or grievance founding the claim, not merely the technical cause of action.”

For purposes of Constitutional Petitions, the authorities on what the test for a cause of action is, are numerous. Most outstanding of these include Baku Raphael and Anor v Attorney General Constitutional Appeal No. 1 of 2003, Ismael Serugo v kampala City Council Constitutional Petition No. 2 of 1998, and Nakachwa Joyce v Attorney General & 2 Ors Constitutional Petition No. 2 of 2001. That being settled, the opinion expressed in the judgment of his Lordship Odoki CJ (as he then was) in Baku Raphael and Anor v Attorney General (supra) summarises neatly the law on this point. He stated that:

“… where a petition challenges the constitutionality of an Act of Parliament, it sufficiently discloses a cause of action if it specifies the Act or its provision complained of and identifies the provision of the Constitution with which the Act or its provision is inconsistent or in contravention, and seeks a declaration to that effect. A liberal and broader interpretation should in my view be given to a constitutional petition than a plaint when determining whether a cause of action has been established.”

Both Counsel made relevant submissions on this point. The tests submitted by both Counsel in my opinion are not in any way contradictory but rather supportive of each other; and whereas merely perusing through the petition and the supporting affidavit(s) may not necessarily prove a cause of action, this supportive test is saved by adopting a “liberal and broader interpretation … in a constitutional petition … when determining whether a cause of action has been established,” as opined by Odoki CJ (as he then was) in Baku Raphael and Anor v Attorney General (supra). The test submitted by Mr. Kaddu is not any different but merely more comprehensive. It is the test I shall apply with caution.

Determining the establishment of a cause of action is usually a preliminary step to hearing and determining the merits of a case. The requirement that there should be breach of a Constitutional obligation should not be extended to require strict proof of the same at this preliminary stage. In my opinion a mere allegation should suffice. But that is not the end the chain. In the alternative, where the allegation is one of breach of Constitutional provisions (as it is in the instant case), the Petitioner should with certainty and clarity, point out the impugned provisions (Articles) of the Constitution. And indeed in either case, the Petitioner should demonstrate how the act or omission complained of is in breach of the Constitutional duty, or the impugned provisions of the Constitution. I will state again, this demonstration should not require strict proof at this preliminary stage.

In the petition filed on 16^th September 2014, the Petitioner alleged that;

1. The act of the Uganda Christian University Guild Parliament [hereinafter Guild Parliament] of passing the motion… during the 10^th September 2014 parliamentary session assigning and effectively transferring the “Guild Shirt project” and the “Guild Awards” to the Office of the Speaker from the Office of the General Secretary contravene Articles 1, 2 (3), 24 (1) & (4), 34 (2), 36, 40, 42 (2), 45 (3), 97 (3), 99 (1) of the Uganda Christian University Students’ Guild Constitution. [hereinafter the Guild Constitution]

2. The act of the Guild Parliament in passing the motion… during the 10^th September 2014 parliamentary session directing the Guild Vice President to reprint new Charts on his personal allowances contravenes Articles 1, 2 (3), 7 (3), 24 (1) & (4), 34 (2), 36, 40, 43 (3), 45 (3), 97 (3) & 99 (1) of the Guild Constitution.

From the above two paragraphs of the petition, the Petitioner’s allegation is very clear. The Petitioner alleges breach of provisions of the Guild Constitution and lists the particular Articles of the Guild Constitution alleged to be contravened. The alleged contravention arises from Guild Parliament’s passing of the said motions. In short the Petitioner in the instant petition challenges the Constitutionality of the decisions made by Parliament through the passing of the particular motions.

Needless to restate, the petition was inter alia brought under Article 70 of the Guild Constitution. In my opinion Article 70 (1) (a) of the Guild Constitution is a summary of Article 137 (3) of the national Constitution of the Republic of Uganda, 1995. In that regard, a cause of action in Constitutional matters is established where a Petitioner’s allegation points to an Act of Parliament or any other law, or anything in or done under the authority of any law; or any act or omission by any person or authority (whatever the case), is inconsistent with or in contravention of a provision of the Constitution. As earlier stated the petition must show the impugned provisions of the Constitution as well as the provisions of the Act of Parliament or any other law alleged to be inconsistent with or in contravention of the Constitution where the latter is the case.

The instant petition meets this criterion in all aspects. The merits as to the inconsistency or contravention of the impugned Constitutional provisions by the alleged acts, omissions, Act of Parliament or any other law at this point are immaterial in determining the establishment of a cause of action. It follows that the assertion of Mr. Kaddu to the effect that the Petitioner did not demonstrate how the actions of Parliament contravened all the alleged impugned provisions the Constitution listed in the petition fails at this point. I find that the petition discloses a cause of action within the meaning and the test set in Baku Raphael and Anor v Attorney General (supra). I shall now turn to the second issue of the petition.

2. Whether the motion passed by the Guild Parliament shifting the “Guild Awards Project” from the Guild General Secretary’s Office to the Office of the Speaker of the Guild Parliament contravenes the Guild Constitution?

Mr. Kugonza submitted that the Guild Constitution is the supreme law in as far as the laws governing Guild business are concerned. He founded his passionate submission on the celebrated words of Kabyeihamba JSC (as he then was) in Rtd. Col. Dr. Kizza Besigye v Electoral Commission & Yoweri Kaguta Museveni Presidential Electoral Petition No. 1 of 2006 where the learned Justice and professor at the preamble of his judgment stated that:

“… the overriding constitutional dogma in this country is that constitutionalism and the 1995 Constitution of Uganda [Guild Constitution] are the Alpha and Omega of everything that is orderly, legitimate, legal and descent. Anything else that pretends to be higher in this land must be shot down at once by this Court using the most powerful legal missiles at its disposal.”

Counsel further submitted that Parliament contravened Articles 24 (4), 34 (2), 42 (2), 43 (2) & 97 (3) of the Guild Constitution in shifting the “Guild Awards Project” from the Guild General Secretary’s Office to the Office of the Speaker of the Guild Parliament. He maintained that the “Guild Awards” are budgeted for under the handover budget and therefore are under the Guild General Secretary’s Office since the latter budget appears under the Guild General Secretary’s Office as reflected in the Uganda Christian University Students’ Guild Budget 2014/2015. Counsel in support of his submissions, as well as hoping to persuade the Bench cited a decision by the Supreme Court of Appeal of South Africa in Speaker of the National Assembly v De Lille and Anor 1999 (4) SA 863; where the suspension of the respondent as a Member of the Assembly under the circumstances was held void for want of Constitutional Authority; Mohamed CJ at para. 14 stated that”

“No Parliament however bana fide or eminent its membership, no President, however formidable be his reputation or scholarship, and no official, however efficient or well-meaning, can make any law or perform any act, which is not sanctioned by the Constitution. … [any] law or conduct inconsistent with the Constitution is invalid and the obligations imposed by [the Constitution] must be fulfilled. It follows that any citizen [student] adversely affected by any… action of any official or body, which is not properly authorised by the Constitution, is entitled to the protection of the courts [the Guild Tribunal]. No Parliament, no official and no institution is immune from judicial scrutiny in such circumstances.”

Counsel reaffirmed to the Tribunal that no matter the motive or intentions of the August House in passing the said motion, however noble, they are not sanctioned by the Guild Constitution and therefore void and unconstitutional.

In reply Mr. Owino Innocent Manuku SC, whose submissions I found quite logical as well as informing contended that the Petitioner’s submissions were totally misguiding. He averred that the handover is budgeted for separately from the “Awards.” That the Guild Budget pays much attention to detail and therefore any inference whatsoever that somehow the “Awards” budget was part of the handover budget without the budget expressly stating so is frivolous and vexatious. Counsel, citing Zachary Olum & Anor v Attorney General Constitutional Petition No. 6 of 1999 moved the Tribunal not to consider the claim as it was absurd without any merit. The learned SC citing Article 6 of the Guild Constitution submitted that the Office of the Director of Students’ Affairs (DOSA) oversees the Students’ Guild business, and it is the office in charge of the Guild Awards per the Hansard of the 6^th Parliamentary Session held on 10^th September 2014. It was Counsel’s submission that this particular motion was obsolete, misguided and uncalled for, since Parliament has no power to interfere with projects under the DOSA’s office.

The submissions made by both Counsel in respect to the second issue were quite almost exhaustive. My answer to this issue is premised on two questions.

1. Under what budget and, or department (office) is the “Guild Awards Project?”

In respect to this question, I find the Petitioner’s submission very wanting. The Guild Budget has a lump-some of Shs. 2,500,000/- as money for the handover. There is no mention of Guild Awards below, besides, above nor beneath the handover row in the budget. I am persuaded by the Respondent’s submission that the budget pays much attention to detail that any such assumption, inference or presumption (as made by the Petitioner) is likely to cause accountability anomalies and difficulties. Indeed such should be avoided at all times. It is unfortunate that the affidavit of Miss Molly Nantongo makes no mention of what office and budget the Guild Awards Project lies. The only slightest guidance I could find was that in the Hansard of the 6^th Parliamentary Session held on 10^th September 2014 where the “DOSA clarified that the Guild Awards is not handled by the General Secretary’s Office, [but] that there is a committee headed by a staff member that gives awards.” The instant statement made by the DOSA is not much helpful in the resolution of the question at hand.

The statement merely points out which ‘body’ gives the awards. It makes no mention of which office or department makes the procurement of the awards to be given out. Probably a name of the office or department would have pointed to the budget under which the awards are procured. This seems one of the eminent questions pertinent to the resolving this issue. Be that as it may, the DOSA’s statement establishes an indisputable profound fact; which is, that the decision of who gets what award is made by a committee and not merely one person, office or department. The fairness of awarding is not in issue in this petition, but with a leap of ‘faith’ it can be said that the awarding process would be a fair one.

Throughout the oral submissions, both counsel under the second issue addressed the Tribunal only on “Guild Awards.” A perusal through the budget reflects a sum of Shs. 2,400.000/- as budget for the Orombi Guild Excellence Awards to be procured by the Office of the Speaker, which per the budget will procure 80 units/awards. Whereas Mr. Kugonza submitted that the “Guild Awards” are different from the “Orombi Guild Excellence Awards,” if it be true that the University, assuming that the Guild Awards are not part of the Guild Budget, will spend millions of money giving Guild leaders awards on two separate occasions, I am utterly and exceedingly marveled by its generosity. The most logical conclusion is that the University may not be willing to sponsor two separate awards to be given to the same guild officials (by way of classification).

In the event that the above assumption is true, the 2014/2015 Guild Budget knows only one set of awards, the Orombi Guild Excellence Awards. These per the Budget are under the Office of the Speaker of the Guild Parliament. In that regard, there was no need to pass the motion shifting the so called “Guild Awards” from the General Secretary’s Office to the Office of the Speaker under which they are budgeted for under the budget. This is only true in as far as, or in the event that the two sets of awards (Guild Awards and the Orombi Guild Excellence Awards) are actually the same.

Even if I was to agree with the Petitioner’s submission that the two sets of awards were different, the awards upon which the Petitioner’s second claim/issue is premised don’t appear in the Budget. It was the Petitioner’s very submission that Articles 97 (3) & 99 (1) of the Guild Constitution prohibit Guild expenditures outside or untra vires the Guild Budget. I am left to wonder where will the money of the “Guild Awards” come from? Is the Office of the Speaker per the instant motion expected to procure two sets of Awards, one under the Guild Budget reflected as Orombi Guild Excellence Awards, and the other, the “Guild Awards” passed in the motion?

I indeed find myself of no use in availing an answer to the question of “under what budget, and, or department (office) is the ‘Guild Awards’ Project?” The grave inconsistencies and pitch-black loopholes in the evidence have rendered me of no opinion, save to leave the question to more appropriate administrative offices. That leads me to the second question.

2. Under what law did Parliament pass the instant motion?

May I restate the words of Mohamed CJ in Speaker of the National Assembly v De Lille and Anor (supra) that; “no Parliament however bana fide or eminent its membership, … can… perform any act, which is not sanctioned by the Constitution. …”

From the resolution of the first question, I surely find no law under which Parliament could have passed such a motion. I need to point out that Parliament is at liberty to pass any motion at any time during the proceedings of the August House as long as such motion is within the law. All the decisions taken by the August House are by way of moving a motion, which should be seconded and then the House votes on the motion. I cannot dare lay a rule fettering or altering how the August House makes whatever kind of decisions, but as long as the Parliament acts outside the law, it is subject to judicial scrutiny as pointed out by Mohamed CJ in Speaker of the National Assembly v De Lille and Anor (supra) and that goes for any Guild Office, or department under the Executive. If by any chance the so called “Guild Awards” are the very “Orombi Guild Excellence Awards” reflected in the Guild Budget under the Office of the Speaker, I entirely agree with Mr. Owino SC on the point of the motion shifting the “Guild Awards” from the General Secretary’s Office to the Office of the Speaker of Guild Parliament to be a misguided one, obsolete and uncalled for.

For the record the Guild Parliament has no authority under the Guild Constitution to move projects from one office to another. The Guild Constitution vests paramount but limited power in the Parliament in as far as planning and budgeting is concerned. The Parliament has the power to approve or disapprove the budget as and when presented by the Cabinet under Article 97 (3) of the Guild Constitution. This power does not extend to amending the budget but the Parliament in sending the Cabinet back to the drawing board can make recommendations that need to be considered by the executive. Similarly, where Article 91 of the national Constitution of the Republic of Uganda, 1995 confers powers to the President to assent to a bill before it becomes law, such powers are not leeway to the President to amend or alter clauses of a bill sent from Parliament. A deeper insight in the other powers of Parliament granted by the Guild Constitution establishes that the powers of the standing committees of Parliament are well stipulated under Article 59 of the Guild Constitution, and under Article 41, Parliament has power to censure a minister; and most importantly the Parliament has power and authority to make law under Article 45 of the Guild Constitution. In summary the Articles conferring any powers to any of the Guild Government Organs are clear cut and unambiguous to which I have applied the literal meaning. See: Maj. Gen. David Tinyefunza v Attorney General Constitutional Petition No. 1 of 1996. There was no submission laying out the law under which Parliament passed the instant motion and I find that in so doing it acted ultra vires.

For the above reasons, I shall not deal with [in light of issue two] the individual unconstitutionality of the said motion in respect to the impugned Constitutional provisions stated in the petition.

3. Whether the motion passed by the Guild Parliament shifting the Guild Shirts Project from the Guild General Secretary’s Office to the Office of the Speaker of the Guild Parliament contravenes the Guild Constitution?

Mr. Joel Obiga for the Petitioner, submitted that the instant motion in all aspects contravened the impugned Articles of the Guild Constitution listed in the petition. Counsel, citing Jim Muhwezi & 3 Ors v Attorney General & Anor Constitutional Petition No. 10 of 2008, contended that the motion was a rap to principles of good governance entrenched not only in the Guild Constitution, but also the national Constitution; most profoundly, the principle of separation of powers.

In response, Mr. Bangi Sayid SC submitted that the August House passed the said motion to protect the sanctity and supremacy of the Guild Constitution pursuant to Article 2, & 45 (3) of the Constitution. This is an obligation of all members of the Students’ Guild under Article 2 (3) of the Guild Constitution. That in the furtherance of democratic governance and quality service to students, the August House found that the General Secretary’s Office had been sluggish towards executing the Guild Shirts Project, and thus moved it to the Office of the Speaker which is in position to do a better job. This was all done in nothing but the name of justice and fairness. Persuasively, SC submitted that the Guild Constitution, unlike the national Constitution is shallow and not clear cut as to what office is in charge of execution of what guild projects.

The second and third issues have a lot in common and I shall therefore resolve the instant issue in the same manner I did the previous. The resolution of the third issue rests on the answer to the two questions;

1. Under what budget and, or department (office) is the Guild Shirts Project?

The answer to the instant question is a straight one. From the Guild Budget, the guild shirts are assigned Shs. 1,620,000/- with which 60 shirts have to be procured each budgeted at Shs. 27,000/-. At paragraph 4 of her affidavit, Miss Molly Nantongo swore stating that guild shirts were budgeted for under her docket and are reflected under the Guild Work Plan, and that her office had commenced the process of realising the Guild Shirts Project per paragraph 5 of her affidavit.

Mr. Bangi Sayid SC objected to this position contending that the Office of the General Secretary only executes duties expressly instructed upon it by the President pursuant to Article 42 (2) of the Guild Constitution. And that there was no record pointing to any instructions from the President to the Office of the General Secretary requiring it to undertake and execute a Guild Shirts Project. Upon this premise, SC submitted that that mandate was conferred upon the Office of the General Secretary by Parliament under Article 42 (2) under which provision the instant office is required to convey the decisions of Parliament as well; and that the said mandate was conferred during, and upon the approval of the budget as was presented to the August House pursuant to Article 97 (3) of the Guild Constitution.

I find myself in agreement of Mr. Bangi’s objection. But in part. Indeed the Guild Budget gives a straight answer, which is that the Guild Shirts Project is under the Office of the General Secretary and nothing more. It is the mandate of Parliament to approve or disapprove of the Guild Budget as and when presented by the Cabinet as required by the Guild Constitution under Article 97 (3). But that is all that the Article mandates Parliament to do. To stretch the interpretation of Article 97 (3) of the Guild Constitution to entail giving power to Parliament to confer the undertaking and execution of Guild Projects to certain Offices and Ministries as the August House deems fit, would be attempting to milk a bull. Among the purposes and effects of Article 97 (3), I don’t find that being one of them. Such an attempt amounts to allowing Parliament to abuse the separation of powers as and when it so wishes. Be it done cautiously or sub-cautiously, it is immaterial.

The submission of Mr. Joel Obiga at this point makes much more meaning. Indeed there is need to respect the doctrine of separation of powers. Be that as it may, in the usual business and interaction of the Parliament and the Executive, this doctrine is not applied in its strictest sense and hence is not absolute in that regard. The question that ensues is what is this doctrine of separation of powers, and how is it applied?

The BLACK’S LAW DICTTIONARY (8^th edn) defines separation of powers to mean;

“The division of governmental authority into three branches of government, legislative, executive and judicial, each with specified duties on which neither of the other branches can encroach; the constitutional doctrine of checks and balances by which the people are protected against tyranny.”

The quote of Justice Louis Brandeis (see: Roscoe Pound. The Development of Constitutional Guarantees of Liberty 94 (1957), gives a precise and accurate rationale for the doctrine. He stated thus:

“The doctrine of separation of powers was adopted … not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was both to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.

Turning to the application of the doctrine, the Constitutional Court in Jim Muhwezi & 3 Ors v Attorney General & Anor (supra) stated that the Constitution of Uganda makes provision for separation of powers. It is a fact that three organs of state are not rigidly separated in functions and powers. The separation of powers between the executive and the legislative may overlap here and there but the distinction is very clear. May I add the Guild Constitution is not much different, it has provisions similar to the national Constitution providing for separation of Powers. It establishes the executive under Chapter five and the Parliament under Chapter six; providing for the roles, duties and powers of each arm or organ thereunder respectively. The powers of the parliament to check the executive under Article 59 of the Guild Constitution notwithstanding, such powers don’t extend to allowing the Parliament the liberty to usurp the powers and overtake the roles of the executive. To recall the words of George Whitecross Paton, in A Textbook of Jurisprudence 330 (G.W. Paton & David P. Derham eds., 4h ed. 1972, “the legislature makes, the executive executes, and the judiciary construes the law.” Anything done by the legislature outside making law which is not expressly provided for by the Guild Constitution would be acting ultra vires its powers.

In that regard, I am persuaded that the second question of Under what law did Parliament pass the instant motion?, has been silently but sufficiently answered in the resolution of the preceding question concerning the budget, and, or department (office) under which the Guild Shirts Project falls. I therefore find that the Parliament in transferring a project from an Office under the executive to one under the legislature was an abuse of the checks and balances doctrine. The August House acted ultra vires its powers. Surely “no Parliament however bana fide or eminent its membership, … can… perform any act, which is not sanctioned by the Constitution. …” See: Speaker of the National Assembly v De Lille and Anor (supra), per Mohamed CJ. However noble Parliament’s intentions were in passing the instant motion, they were outrightly not sanctioned by the Guild Constitution and therefore unconstitutional.

4. Whether the motion passed by the Guild Parliament directing the Vice President to reprint the Guild Leaders’ Charts contravenes the Guild Constitution?

Mr. Joel Obiga submitted that without prejudice to the impugned Articles mentioned in the petition, the instant motion contravened Articles 31, 34, 59, & 97 (3) of the Guild Constitution. He further maintained that requiring Mr. Mateeka Innocent to reprint the Guild Leaders’ Charts at his own cost was unfair under the circumstances. Counsel relied on paragraph 9 of Mr. Mateeka’s affidavit. And that the Office of the Vice President allowed Guild Officials time to go and verify as well as rectify any mistakes prior to the printing of the final copies of the Charts. This was backed by evidence of the sample copy of the Chart and the Final Copy. Unfortunately, not many Guild Officials took heed to the call and hence the mistakes on the final Charts.

In reply, Mr. Kakuru Enoch for the Attorney General, citing Maj. Gen. David Tinyefunza v Attorney General (supra), submitted that the Guild Constitution should be read as a whole. Counsel contended that in passing the said motion, Parliament sought to uphold the supremacy of the Guild Constitution pursuant to Article 2 (3), as well as promote democratic governance pursuant to Article 45 (3) of the Guild Constitution as it exercised its auditory power. Counsel relied on the 8^th edition of the Black’s Law Dictionary to support his submission on democratic governance. He further contended that the legislature should be allowed its legislative independence. That the errors of misstating the Rt. Hon. Speaker’s constituency as MP Residents, yet he is MP NON-RESIDENTS; Misspelling Hon. Muzeyi Vicent’s Christian name as ‘Vincent’ with an ‘n’; addressing the Lady Justice Pamela Acidri Okunia, Secretary to the Tribunal as ‘Deputy Chief Justice’; are misleading representations to the persons who seek information about the above named officials by looking at the Guild Leaders’ Chart 2014. Counsel submitted that the reprinting costs could be covered by the miscellaneous budget, and that the plea of injustice could not stand.

Mr. Kaddu in support and addition to co-counsel’s submissions contended that the Constitutional titles of the members of the Bench, particularly the Chairperson and the Secretary of the Tribunal are clearly established under Article 68 (2) of the Guild Constitution, which provision establishes the composition of the Honorable Tribunal. Counsel further relied on the decision of the Tribunal in Keith Kyaruzi v Electoral Commission, Election Petition No. 1 of 2013 (Unreported) to reaffirm his position that the presiding justice of the Tribunal is the Chairperson in whose absence there can be no deputy within the meaning of Article 68 (2) of the Guild Constitution. That the title of Deputy Chief Justice is not known and is hence alien to the Guild Constitution, making it misguiding a grave misrepresentation.

In consideration of the above submissions, I find that Parliament was justified to require better quality Guild Leaders’ Charts with accurate information as to the names, and Constituencies or titles of the respective Guild Officials. According to the Hansard of the 6^th Parliamentary Session held on 10^th September 2014, the instant motion merely required Mr. Mateeka to reprint the Charts with all corrections thereto. The assertion that the reprinting costs were to be covered by Mr. Mateeka as a person, save being stated in his affidavit, I found no other evidence to corroborate this fact. That then raises the question, where will the money covering the reprinting costs come from? The submission that the miscellaneous budget would cover such expenses fails in so far as the Guild Budget has no provision for Miscellaneous Expenses. If there is no money to cover the reprinting, then it is is not possible to execute the said decision. Parliament should have pointed out the expected source of the money to make its decision executable. However justified and lawful the instant motion could have been, it is not possible to effect it due to lack of a source of funds.

It is pertinent that the names and titles or constituencies of Guild Officials are correctly and accurately spelt. It would be misleading as well as undermining to do the otherwise. But it is not worth to apportion blame at this point. If one party did not exercise due diligence, indeed it should be found guilty- but would it be any helpful now? I don’t think so. A government with less than a month to handing over should be spending monies on better priorities than reprint Charts. But this is not a cushion for condoning substandard and poor quality services by Guild Offices. We (students) expect quality services and nothing short.

Be that as it may, the objection raised by Mr. Kaddu about the appropriate and Constitutional titles of the Members of the Tribunal, particularly the Chairperson and the Secretary, is worth addressing at this point. Indeed the Article 68 (2) of the Guild Constitution is very clear; that the presiding justice of the Tribunal shall be called the Chairperson, and the secretary to the Tribunal shall be called Secretary. The prestigious titles of Chief Justice and Deputy Chief Justice seem alien and not known to the Guild Constitution. I find myself in agreement with Counsel’s objection, and I shall sustain it.

Notwithstanding the above, I can’t help but comment on paragraph (a) of clause (2) of Article 68 of the Constitution. The provision reads thus:-

68. Appointment of Members of the Tribunal

(1) …

(2) The Tribunal shall be comprised of:

(a) A Chairperson who shall preside over all the meetings of the Tribunal;

Considering the authority of Keith Kyaruzi v Electoral Commission, Election Petition No. 1 of 2013 (Unreported) cited by Mr. Kaddu Benjamin, the provision makes it impossible to hold any Tribunal sessions (where meetings is construed to mean sessions or proceedings) when the Chairperson for one reason or another is indisposed, and unable to duly execute his duty when reasonably unavailable. Recalling the principle that justice should be administered expediently, since justice delayed is justice denied, it is on record that the Honorable Tribunal has proceeded and issued rational just decisions in the absence of the Chairperson. These rare incidences have occurred where the then sitting Chairperson was indeed unable to make it or was unavailable to attend such session. See: Lwanga Allan & Mwaka James Tolit v Electoral Commission, Constitutional Petition No. 3 of 2013 a case determined by 3 Justices in the absentia of the then sitting Chairperson; Attorney General v First Aid Club, Civil Suit No. 2 of 2013 a case heard and decided by Hon. Lady Justice Gladys N. Kikule; recently Otim Joel v Attorney General of Uganda Christian University-Mukono, Miscellaneous Application No. 2 of 2014 also determined by three Justices in the absence of the Chairperson.

With great reverence to the role of the Honorable Tribunal in jealously protecting the sanctity and supremacy of the Guild Constitution under Article 2 (3) as established under Article 1, the Honorable Tribunal cannot interpret and apply the provisions of the Guild Constitution as rigid hard and fast rules. Constitutional provisions contain living principles of justice, Constitutionalism and rule of law inter alia. Whatever the Constitutional provision, it is informed and interpreted in light of the letter and Spirit of the Constitution. It is this profound principle that informs the intention of the promulgators. The same enlightens generations to come what the purpose and effect of the respective provisions is, or could be. And whereas a good Constitution should stand the test of time without being amended every now and them, it equally suffices to say that a good Constitution should be susceptible to requisite and pertinent amendments. A very rigid Constitution can turn out to be an instrument of injustice. This is because the sacred provisions of the Constitution are not mere rules of procedure to be waived as government organs, authorities or persons feel like, not even this Honorable Tribunal. These provisions are binding upon all persons and authorities in the Guild. But that does not go without saying that the Honorable Tribunal is charged and mandated to administer justice in conformity with the values, norms and aspirations of the Guild pursuant to Articles 65, 66 & 69 of the Guild Constitution. In my opinion the values, norms and aspirations of the Guild are those in the best interest of the students without whom there would be no Guild. See: Chapter Sixteen-Interpretation of Key Words: Guild Constitution.

I respectfully find, that whatever the intention of the promulgators was by insisting that its only the Chairperson to preside over the meetings of the Tribunal, and where it is maintained that the Secretary of the Tribunal cannot deputize the former in the event that he/she is absent, would have failed the expedient administration of justice in the cases I pointed out earlier, which were decided in the absence of the then sitting Chairpersons. Exalting the role of presiding over a meeting/session/ proceedings over and above the goal of administering justice is a shot in the foot to the spirit and letter of the Guild Constitution. The decision of a Chairperson carries the same weight as that of any sitting Justice whether concurring or dissenting. The Chairperson enjoys no casting vote. The role of presiding is merely one for maintaining order during meetings.

Mr. Kaddu submitted that referring to the Secretary of the Tribunal as Deputy Chief Justice confers upon him/her roles and duties not subscribed to his/her position as a member of the Bench by the Guild Constitution. Counsel’s submission is surely informed. I don’t think the promulgators could have intended for the Secretary to be the Vice Chairperson, if the relevant provision is interpreted literally. But what happens when the Chairperson is indisposed, or out of the Country, or is on other official duties (for example mooting) on the day of hearing the matter? What happens when the matter has been adjourned and stayed for weeks and the Chairperson still can’t make it? Would it be just to the parties? What do we then make of Article 65 (b) of the Guild Constitution? Would the Tribunal be justified to delay justice? Would that be just in itself? Above all would it be Constitutional? It is upon that background that I find that it is not any prejudicial to the parties to a case if the Secretary of the Tribunal acted as Deputy and presided over a proceeding in the absence of the Chairperson.

Even bearing in mind Counsel’s concern, I must say the Guild Constitution as amended was not promulgated from heaven and brought down on us. It was enacted and amended by natural persons, students at that, notwithstanding that they could have sought guidance here and there. It would be so absurd to look at our supreme Guild Law with a presumption that it was enacted by gods, that it is perfect in every sense of the word, that there is nothing therein that can be amended for better governance, justice, rule of law, and Constitutional order. The promulgators and the Constituent Assembly did a very good and recommendable job, we should build on the strong foundation which they proudly lay for us. It would only be just to correct any short sightedness that might have befallen them.

I conclude this by saying that whether the Chairperson is addressed as Chief Justice, or the Secretary as Vice Chairperson/ Deputy Chief Justice, what is most important is that each of them should diligently and efficiently execute the roles and duties expected of them. In the normal business of the Tribunal, the Secretary has in the name of justice deputized the Chairperson. If that is indeed unconstitutional, then to the contrary, I can’t think of anything more Constitutional than justice and fairness. And may God save our Guild the day our Constitution is used to defeat justice. May darkness cover such day that it shall know no light. May that day indeed never come.

I now turn to the prayers.

PRAYERS:

The Petitioner respectfully prayed to the Honorable Tribunal to adjudge and declare that;

1. The petition disclosed a serious cause of action,

2. The motion passed by the Guild Parliament shifting the “Guild Awards Project” from the Guild General Secretary’s Office to the Office of the Speaker of the Guild Parliament contravened the Guild Constitution,

3. The motion passed by the Guild Parliament shifting the Guild Shirts Project from the Guild General Secretary’s Office to the Office of the Speaker of the Guild Parliament contravened the Guild Constitution,

4. The motion passed by the Guild Parliament directing the Vice President to reprint the Guild Leaders’ Charts contravened the Guild Constitution,

5. The Tribunal issues a permanent injunction restraining the Office of the Speaker from executing any further executive duties, and

6. The Petitioner be awarded costs to the suit against the Respondent.

Expressly objecting to the last prayer, Miss. Namyalo Lavendah for the Respondent contended that the Petitioner was not entitled to costs as the instant petition is brought in public interest. Counsel relied on Muwanga Kivumbi v Attorney General Constitutional Petition No. 9 of 2005. She further prayed that the Honorable Tribunal with reference to the Respondent’s submissions finds the petition frivolous and vexatious; declare the actions of Guild Parliament lawful and Constitutional; and that each party should bear its own costs.

Mr. Isaac Kugonza retaliated by contending that costs can be awarded in a public interest litigation. He relied on the case of Prof. J. Oloka-Onyango & 9 Others v Attorney General Constitutional Petition No 8 of 2014 where the Court awarded the Petitioners 50% of the taxed costs.

I find that prayers (a), (b), (c), and (d) have been adequately addressed in the resolution of the respective issues.

1. I find that the petition discloses a cause of action,

2. That the motion passed by the Guild Parliament shifting the “Guild Awards Project” from the Guild General Secretary’s Office to the Office of the Speaker of the Guild Parliament was passed under no authority of law and therefore unconstitutional.

3. That the motion passed by the Guild Parliament shifting the Guild Shirts Project from the Guild General Secretary’s Office to the Office of the Speaker of the Guild Parliament was passed under no authority of law, the motion violates the doctrine of separation of powers and is an abuse to the checks and balances doctrine hence being unconstitutional.

4. That the motion passed by the Guild Parliament directing the Vice President to reprint the Guild Leaders’ Charts though Constitutional is not executable for lack of a source of funds to finance the reprinting costs.

5. That there is no need for an injunction whatsoever against the Office of the Speaker restraining it from executing further executive duties because; the Office of the Speaker did not instruct itself to execute any executive duties, and I don’t think such a prudent Office in anyway plans to abuse the doctrine of separation of powers. Be that as it may, the Office of the Speaker is not in issue but only the motions of Parliament instructing the former to undertake duties not conferred upon it by the Constitution, the execution of which would be unconstitutional. The permanent injunction is herein denied.

6. That each party bears its own costs. Counsel for the Petitioner did not file a bill of costs and merely prayed that the Tribunal should assess the costs the Petitioner deserves as it deems fit. I find that equity has not favored indolent Counsel, the Petitioner’s Counsel should have been more vigilant if they so wished to persuade the Bench to award costs to the Petitioner.

The petition succeeds in part.

As the Honorable Tribunal we so rule.

Dated at ………………… this ……..day of ……………….. 2014

………………………….

BASOGA JOEL (CHAIRPERSON)

………………………….

ACIDRI OKUNIA PAMELA (SECRETARY)

…………………………..

LASTONE GULUME BALYAINO (MEMBER)

…………………………..

KABAFUNZAKI BRIAN (MEMBER)

…………………………..

AYEBAZIBWE JOLLY (MEMBER)

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OTIM JOEL V ATTORNEY GENERAL MISCELLANEOUS APPLICATION NO. 2 OF 2014

IN THE REPUBLIC OF UGANDA

IN THE STUDENTS’ GUILD TRIBUNAL OF UGANDA CHRISTIAN UNIVERSITY AT MUKONO.

MISCELLANEOUS APPLICATION NO. ………. OF 2014

ARISING FROM CONSTITUTIONAL PETITION NO. 4 OF 2014

OTIM JOEL………………………….…………………………………………………APPLICANT

VERSUS

ATTORNEY GENERAL……………………………………….…….……………..RESPONDENT

CORAM:

PAMELA OKUNIA ACIDRI J; KABAFUNZAKI BRIAN J, LASTONE G BALYAINHO J

JUDGEMENT OF O A PAMELA J

The petitioners are seeking a temporary injunction restraining the Speaker’s office from performing the duties vested unto him by the motions passed by Parliament on the 10^th September, 2014. Effectually the motions transfered the Guild Awards project and the Guild shirts project from the General Secretary’s office to the Speakers office. They further seek for a temporary injunction restraining H.E the Vice President of the Guild, Mateeka Innocent from reprinting the Guild Leaders’ Charts.

The plaintiffs submitted affidavits to court on the 16^th of September, 2014 and they proved that the Parliament indeed had a session on the 10^th September, 2014 in which it moved and passed motions as such. Their main complaint is unconstitutionality of such thereby seeking a temporary injunction to restrain the further performance of the said duties.

A temporary injunction is provided for under O41 r 2 and r 9 Civil Procedure Rules SI 71-1 and its granted at court’s discretion. This is aimed at maintaining the status quo or the existing state of affairs before a given particular point in time as stated in Erisa Rainbow Musoke v Ahamada Kezala [1987] HCB 81. Further the case of Kiyimba Kaggwa v Haji Abdul Nasser Katende [1985] HCB 43, lays down the rules for granting of a temporary injunction which include; (a) to maintain the status quo, (b) there should be a prima facie case disclosed and (c) the order is intended to save the applicant from suffering irreparable injury or damage.

In my opinion, before deciding to grant or to deny a temporary injunction, it’s important to consider if there is a prima facie case. According to Lord Diplock in American Cyanamid Co. v Ethicon Ltd [1975] AC 396 [407—408], the applicant must first satisfy court that his claim discloses a serious issue to be tried. This is a matter on which I will not dwell much given the fact that it would pre-empt the main suit just as court observed in the case of Elias Lukwago, Lord Mayor and KCCA v Attorney General HTC-00-CV-MC-No 237 of 2013, where court agreed with the respondent counsel submission that the application sought almost the same requirement of proof and same remedies as in the main suit and as such was not necessary in the instance. On this argument it is prudent that the issue as to whether there is a prima facie case be decided in the main suit. However in Humphrey Nzeyi v Bank of Uganda Cons. Pet No.1 of 2013 the court was of the view that, regardless of the fact that the matter of a prima facie case is so sensitive, the applicant is under duty to produce evidence that shows that the matter is so urgent and that it requires an interim order otherwise the applicant would suffer irreparable damages.

As regards to this, counsel for the petitioner, Kugonza Isaac submitted that the shifting of the Guild shirt project and the Guild awards project from the General secretary’s office to the Speakers office would cause serious financial accountability issues as regards the fact that the guild budget has limited funds and all the projects were submitted by the office that was meant to implement it. The guild is also left with a short period of four weeks to conclude their activities. Therefore, accountability on the side of the General secretary would be difficult if the implementation of the projects is done by the office of the Speaker. He further added that this indicates the failure of separation of powers in the institution as the Parliament is directly meddling in the affairs of the Executive, since Article 97 (3) of the Guild Constitution clearly provides for the duties of the General secretary and one of those is to implement policies. During the rebuttal, counsel for the Respondent, argued that, this would not cause irreparable damage since, it would still have been budgeted for, thus the office of the Speaker would ably account. In my view, much as separation of powers is not an absolute concept, the level of interference during checks and balances should be minimum since all arms of government have specified duties as provided for under the Guild Constitution. It’s therefore right and fitting to grant the temporary injunction to set a clear position of separation of powers as precedence that activities planned for by an office should be implemented by it with limited interference.

The balance of convenience simply means that the plaintiff has to show that failure to grant the interim injunction is to their greater detriment. In the Ugandan case of Kiyimba Kaggwa v Haji A.N Katende [1985] HCB 43 court held that the balance of convenience lies more on the plaintiff which will suffer more if the respondent is not restrained in the activities complained of in the suit. Thus in the instant case the balance of convenience lay with the Petitioners to show that indeed the passing of the motion by Parliament to move the T-shirt and the Guild awards projects from the office of the General secretary to that of the Speaker was indeed detrimental. And the petitioner also had to prove that great harm would emanate if the Vice President was required to re-print the Guild Leaders Chart. Counsel for the petitioner submitted that the Vice President would have to utilize his personal resources to reprint the Guild leader’s Chart which would be detrimental to him since he has other use for the money and indeed printed the charts the first time except for some errors. On the other hand, the General Secretaries office would be held accountable to for a project which was implemented by another office. They would possibly fail to graduate because of this, thus, great injustice would occasion to them. Counsel for the Respondents agreed that the balance of convenience lay with the Petitioner’s to prove their case. In my analysis, I agree that the balance of convenience lay with the Petitioners to prove their case.

An injunction can also be granted at courts discretion where, the refusal to grant the temporary injunction will lead to irreparable damage/ injury suffered by the plaintiff. In the Ugandan case of NTCO Ltd v Hope Nyakairu [ 1992-1993] HCB 135 court stated that an irreparable damage is one that can’t adequately be atoned for in damages. In the instant case the counsel for the Petitioner, argued that the damages are irreparable, however In my opinion I find that since monetary a sums are involved, it’s a damage that can be cured, reason being the office that impalements the projects should be compelled to provide the accountability for it in the order to avoid situations where the wrong office is held liable. The Vice president would have to be forced to re-doing the work on condition that a new budget should be drawn to provide for it.

It’s my opinion therefore that the injunction should be granted to the Petitioners mainly to maintain the status quo until the final judgment on the main case is delivered.

KABAFUNZAKI BRIAN. J

The petitioner in a petition seeks court’s redress on matters arising out of parliamentary actions as to motions passed on the 10^th September 2014. Arising out of the petition, the petitioner also seeks for a temporary injunction to restrain the office of the speaker to execute the projects that were transferred to his office from the office of the secretary general. They also seek to halt the decision by parliament as to the execution of reprinting of the guild charts by the vice president.

Counsel Obiga submitted that where as the motions were passed, they are heading for execution and this would thus defeat the purpose the main petition for there is possibility of success. He further cited the case of Kiyimba Kagwa v Hajji Abdul Nasser 1985 HCB 43 that the rules court considers in awarding a temporary injunction are to maintain the status quo and that there should be a prima facie case, and if not awarded it would cause irreparable damage to the party seeking it.

In relation to the matter here in, counsel Obiga stated that the budget which includes the projects in question was passed by parliament. The said budget was never amended and as such the parliament has no authority to transfer such projects. He stated that the constitutional issues of separation of powers would be violated as per the Guild Constitution. This matter need be handled with care, it is trite knowledge that a constitutional petition is already on record and in reference to the facts in the petition, this tribunal, referring its minds to the law and evidence on record would sustain a decision if no reasonable excuse is given by the respondent. This impliedly is a prima facie case.

What status quo is the petitioner seeking to maintain? This question is primarily related to facts here in mentioned. The parliament passed a motion and actually transferred the projects in issue to the Speakers office. They also passed a motion that the vice president reprints the guild charts. S.C the Attorney General submitted that the projects can be executed anytime. If I may relate the above statements, the petitioners are seeking to stay the execution of the said projects and the decision that the vice president reprints the Guild Charts and yet they can be executed any time. The point of contention here is, what would be the effect of the success of the petition if the status quo at the time of filing the petition has changed to the detriment of the decision after the hearing? My reaction to this would be to create a balance of convenience to avoid such instances.

In any case does the refusal to grant this injunction create sufferance of irreparable damage? Counsel Kugonza submitted that the state of affairs after the execution of the projects and decisions in question would definitely affect the Secretary General and Vice President respectively. He further submitted that each office is required to make reports of their executed projects in relation to the budget and if not done, the funds for such projects thereto must be evidenced as floating.

Counsel Owino stated that in the case of Betuko (U) Ltd and Another v Barclays Bank HCCS 40/2008. For a party to be accorded a temporary injunction a disclosure of a serious action must be proved. He stated that Article 42 of the Students’ Guild Constitution is a serious question of interpretation. This article is material and sensitive. It is not necessary for interpretation for award of an injunction. It is for the main petition.

As per the vice president’s issue, the submission by the respondent counsel was that the expenses were supposed to be catered for by the account of the vice president as a person that is to say H. E Mateeka Innocent. A balance of convenience is primarily to cater for both parties to the case; however it is prudent to consider it for the long run as well. It would not be a balance of convenience for the government to pay costs to the vice president in instances where the petition succeeds. What then is the solution for all this? The petitioner also submitted that nothing can be produced unless it exists on a work plan and as such the actions of parliament cannot be considered to be just for they are not budgeted for. He stated that such actions are contrary to Articles 97(3), 42(2) and 34(2). To answer the different questions herein, it is my finding that the points of contention in the petition can only be handled with at most justice if no further actions are done to change the state of affairs. It is paramount that there is need to ascertain which office has authority to execute the projects in contention thus need to halt the execution.

I therefore order that there be a temporary injunction on the following:

1. The execution of the both projects transferred from the general secretary’s office to the speaker’s office.

2. The Vice President’s order to reprint the guild charts.

3. This injunction shall relate to the status quo at the time of its issuance.

4. This injunction shall automatically terminate when the main petition is disposed of for the decisions arising out of the petition determines which party has authority to execute the projects and orders that is to say the speaker or the General Secretary.

I order accordingly.

JUDGEMENT OF G.B. LASTONE J

The miscellaneous application was brought under Order XLI r2 (1), and r9 Civil Procedure Rules SI—71-1 (CPR) and S. 98 Civil Procedure Act (CPA) seeking for orders that:-

1. A temporary injunction be issued restraining the office of the Speaker of the Guild Parliament from executing the duties of the Guild shirt project and the Guild Awards project pending the disposal of the petition.

2. A temporary injunction be issued restraining the enforcement of the execution of the motion requiring the Vice President of the Guild Government to reprint the guild leaders’ charts.

3. Costs of the application be issued against the respondent.

The grounds of the application are that;

1. The applicant as a student of Uganda Christian University, a lover of the rule of law and therefore keen to the observance of the Uganda Christian University Students’ Guild Constitution, has filed a petition with the Students’ Guild Tribunal against the office of the Attorney General being aggrieved with certain decisions of the Students’ Guild Parliament passed in the 6^th Parliamentary session held on 10^th September 2014.

2. The said Parliamentary decisions, although unconstitutional are effective for execution. And that such execution would distort the status quo and make the affected persons suffer irreparable damage or injury.

3. It is in the interest and spirit of justice that an order of temporary injunction is issued to restrain the Speaker of the Students’ Guild Parliament from executing the duties of the Guild shirt project and the Guild Awards Project, as well as restraining the execution of the motion passed against the Vice President requiring him to reprint quality guild leaders’ charts.

Evidence:

The application, which was heard in open court notwithstanding that it should have been heard in chambers per Order XLI r9 CPR considering that the Honorable Tribunal applies the national laws mutatis mutandis, was supported by two affidavits. One deponed by Mr. Mateeka Innocent and the other by Miss. Molly Nantongo. At paragraph 9 of his affidavit Mr. Mateeka stated that Parliament passed a resolution requiring him to reprint the guild leaders’ charts and that he would suffer irreparable damage since he is expected to foot the bill from his personal funds per the subsequent paragraph. At paragraphs 4, 5 and 6 of her affidavit, Miss Nantongo stated that the motions transferring the Guild shirt and the Guild Awards projects from the General Secretary’s office to the Speaker’s office were to be “executed by immediate effect,” and this would bring about “disparities in figures during the auditing process,” since it involves budget and accountability implications accompanied by grave consequences. The office of the General Secretary as well as the General Secretary will suffer irreparable damage in that regard.

Submissions of Counsel.

Mr. Joel Obiga, Counsel for the Applicant, submitted that the decisions of Parliament to deassign the Guild shirt project and the Guild Awards project from the General Secretary’s office to the Office of the Speaker of the Guild Parliament are a violation of the doctrine of separation of powers. Counsel further submitted that the application of the temporary injunction is aimed at maintaining the status quo, and that the main petition has triable issues. Counsel sited the cases of Kiyimba Kaggwa v Haji A.N. Katende [1985] HCB 43 to support the maintaining of the status quo, and Semakula Augustine, Trading as Semakula & Co. Ltd v The Commissioner General Miscellaneous Application No 321 of 2011 to support the criterion of triable issues. He further submitted that there was a prima facie case as indeed the Honorable August House had made the said decisions whose Constitutionality is being challenged in the main suit. Be that as it may, the application met the set considerations of law for grant of a temporary injunction. Counsel persuaded the bench that the Balance of convenience lay with the applicant. Categorically, that the motions passed affecting the office of the General Secretary [i.e. the Guild Awards project and Guild shirt project] have accountability ramifications to the detriment of the General Secretary’s office. Secondly that requiring the Vice President to personally fund the reprinting of quality guild leaders’ charts would lead to spending of monies that may not be refunded having not been budgeted for.

In response, Mr. Banji Sayid SC, Counsel for the Respondent averred that the applicant had not made out a prema facie case, that the balance of convenience did not lay with the applicant, citing Kiyimba Kaggwa v Haji A.N. Katende [1985] HCB 43. Mr. Owino Innocent Manuku SC, Counsel for the Respondent submitted that the status quo as at the date of filling the application is what should be considered by the court. Relying on Betuko Uganda Ltd & Anor v Barclays Bank & Others HCCS No. 40 of 2008 (HC Commercial Division) Counsel submitted that the current status quo is the Parliament’s passing of the motions, and therefore there is no need to grant a temporary injunction. This is because the Speaker’s office had started to execute the assigned projects. Secondly that the prema facie case requirement had not been met. He submitted that this requirement is discharged when the applicant shows not merely a triable case but a ‘serious action to be tried’ per Betuko Uganda Ltd & Anor v Barclays Bank & Others HCCS No. 40 of 2008.

The applicable law.

Section 38 Judicature Act gives court power to grant orders of a temporary injunction in all cases in which it appears to the court to be just and convenient to do so to restrain any person from doing acts. The grant of a temporary injunction is invariably in the discretion of the court. Under r. 9 of Order XLI CPR the application is by summons in chambers. Summons in chambers require the judge to order for appearance of both parties in chambers at a later date to determine the application. The general considerations for the granting of a temporary injunction are candidly laid under Order XLI r. 1 & 2 CPR. Be that as it may, the interpretation of Order XLI r. 2 (when read together with r. 9 of the same Order) as a general rule a temporary injunction can only be issued during the subsistence of a suit. Furthermore, r. 3 of the same Order requires as a general rule for notice of the application for the injunction to be served to the opposite party before court can grant such order. Indeed the Attorney General was well aware of the instant application to which his office appeared to defend.

The leading authority on the grant of interim injunctions is American Cyanamid Co v Ethicon Ltd [1975] AC 396 where Lord Diplock at 407—408 held that;

“… the applicant must first satisfy the court that his claim discloses a serious issue to be tried. It is no part of the court’s function at the hearing of an application for interim injunctive relief to try to resole conflicts of evidence or to decide difficult questions of law, unless the material available to the court at the hearing of the application fails to disclose a real prospect of the claimant’s succeeding in his claim for a permanent injunction. The court should go on to consider whether the balance of convenience lies in granting or refusing the interim relief sought.”

V T Zehurikize J in Byanyima Nathan v NRM HCT-05-CV-MA-NO. 225/2013 held that in the law on injunctions as it stands today is that “the court shall in all cases, before granting an injunction, direct notice of the application for the injunction to be given to the opposite party” upholding Order XLI r 3 of CPR.

The court in granting an interim injunction will consider the following;

1. The balance of convenience: BASHAIJA .K. ANDREW J in Makerere University v Omumbejja Namusisi Farida Naluwembe Namirembe Bwanga Misc Application No. 658 of 2013 discussed the principle of balance of convenience, in which he stated that the balance of convenience lies more to the Applicant who will suffer more if the Respondent is not restrained in his/her activities complained of. Citing Kiyimba Kaggwa v Haji A.N. Katende [1985] HCB 43

2. Maintenance of status quo: “Status quo” simply denotes the existing state of affairs existing before a given particular point in time. The purpose of the order for temporary injunction is primarily to preserve the status quo of the subject matter of the dispute pending the final determination of the case, and the order is granted in order to prevent the ends of justice from being defeated. See: Daniel Mukwaya v. Administrator General, H.C.C.S No. 630 of 1993; Erisa Rainbow Musoke v. Ahamada Kezala [1987] HCB 81.

3. Irreparable injury or damage: The other cardinal consideration is whether in fact the applicant would suffer irreparable injury or damage by the refusal to grant the application. If the answer is in the affirmative, then court ought to grant the order. See: Giella v. Cassman Brown & Co. [1973] E.A 358. By irreparable injury it does not mean that there must not be physical possibility of repairing the injury, but it means that the injury or damage must be substantial or material one, that is one that cannot be adequately atoned for by way of damages. See: Tonny Wasswa v. Joseph Kakooza [1987] HCB 79; NTCO Ltd.v. Hope Nyakairu [1992 – 1993] HCB 135.

4. Further, the applicant must demonstrate that there are serious issues to be tried. See: Daniel Mukwaya v. Administrator General, H.C.C.S No. 630 of 1993 [1993] IV KALR I. However, in the event that the court is in doubt as to any of the above factors, the case ought to be decided after weighing doubts against certainties of the risks of doing injustice; also referred to as the “balance of convenience”. See: Francome v. Mirror Group Newspapers [1984] IWLR 892.

It therefore follows that a temporary injunction under Order XLI r. 2 CPR may be granted upon a party making an application for a temporary injunction by chamber summons, which application in practice is accompanied by an affidavit in support of the application; and on proof of the above four considerations. In the summons in chambers the judge may grant the interim remedy sought if satisfied that it is just to award the sought order.

Consideration:

I will make my finding on the four considerations separately.

1. With whom does the balance of convenience lie?

This is a case of special nature, the applicant is not the party to directly suffer the grave injustice. The miscellaneous application arises from a Constitutional petition, by which the petitioner intends to defend the sovereignty of the Constitution and the rule of law. However, by applying for the interim injunction pending the disposal of the petition, the petitioner aims at maintaining the status quo (as inferred from the submissions). Mr. Otim Joel will not be suffering any direct irreparable damage given that his name was never resounded during oral submissions on this issue. It is Mr. Mateeka and Miss. Molly whose affidavits accompanied the application who I shall then consider.

Precisely the decisions of the Honorable August House upon being passed under the right procedure are immediately effectual vested with power and authority. When the Honorable members have voted in the required numbers following the passing of a motion and the support of the same, the said decision is a decision of an authoritative guild body. Mr. Mateeka as a person will not suffer any irreparable damage in my opinion, the Hansard is clear. A motion was moved to have the guild leaders’ charts reprinted and it was supported. However the details of voting have not come into issue in the current application so I will not deal with them. There is nothing in the Hansard to the effect that Mr. Mateeka is supposed to reprint the charts from his personal money. The question is where will the money come from.

Be that as it may, Miss. Molly’s case is different. And in spite the scanty evidence to make a profound finding in regards to her case, I find that she is likely to suffer grave injustice as an accounting officer of the guild in the matter of the said projects. I therefore rest her case pending the main suit but rule that the balance of convenience lies with her in this matter.

2) Is there a status quo to maintain?

The definite answer is yes. The case raises Constitutional questions of separation of powers which the Parliament and Cabinet have failed to resolve. Needless to say the instant application arises from a Constitutional petition. By implication the sovereignty of the Constitution per the petition is under threat. The powers, roles and duties of the Parliament are for the Parliament to execute, in the same spirit the powers, roles and duties of the Cabinet are for the Cabinet to execute. Checks and balances allow for very minimal intervention and not for ousting the powers of one government organ by another.

The above notwithstanding, the applicant did not make a case for the status quo. Counsel for the Attorney General agreeably submitted that the status quo is one of Parliament having passed the motions. Indeed the court cannot order the passing of the motions to be reversed, but that is not the end of the story. Mr. Owino submitted that the status quo to be considered is one at the date if filing the application, and he cited Betuko Uganda Ltd & Anor v Barclays Bank & Others HCCS No. 40 of 2008. If am to agree with his submission, then the status quo is likely to be altered if the Speaker’s office continues with the execution of the projects. Furthermore, in my opinion the status quo prior to passing the specific motions in issue cannot be ignored as the same are being challenged in the Constitutional petition from which the instant application arose. It is my finding that the temporary injunction would be necessary to maintain the status quo prior to the passing of the motions or the status quo at the date of filing the application pending disposal of the petition. The distortion of the status quo not only threatens to frustrate the ends of justice, but also pauses an imminent grave threat to the Constitutional sovereignty of the Guild Constitution and the principles that guide the Guild government. I need not to emphasize that there is a status quo to maintain.

3) Will the applicant suffer irreparable damage?

I trust that I sufficiently and substantively answered this question in my resolution of the first question on the balance of convenience.

4) Whether there are serious issues to be tried?

The case of Francome v. Mirror Group Newspapers [1984] IWLR 892 gives sufficient guidance on what court should do in case there is doubt as to whether there are serious issues to be tried. The doubt may rise due to the fact that Court does not deal with the substantive merits of the case, nor does it answer complex questions of law in deciding to grant a temporary injunction or not. According to Francome v. Mirror Group Newspapers, where the court is in doubt as to any of the above conditions (including whether there is serious triable case), the case ought to be decided after weighing doubts against certainties of the risks of doing injustice; also referred to as the “balance of convenience”. I am persuaded that I have efficiently discussed the matter of balance of convenience in answering question one. I must add that there is a pending Constitutional petition which by the very nature raises Constitutional concerns. The Honorable Tribunal as a sober vigilant custodian of the law regulating the Students’ Guild of all bodies is expected to be more keen and more enthusiastic in ensuring the sovereignty and protecting the sanctity of the Students’ Guild Constitution. I find that it is not safe for this Honorable Tribunal to rule that there are no serious issues to be tried when the instant matter touches the very soul and spirit of the law that birthed this Honorable Tribunal, the Honorable Parliament and the Cabinet. I therefore find that there are serious issues to be tried.

I therefore find that the application succeeds on the following conditions,

1. That the Office of the Rt. Hon. Speaker of the Students’ Guild Parliament halts any activities whatsoever directed towards executing either the Guild shirts project or the Guild Awards project pending the disposal of the suit.

2. That Mr. Mateeka Innocent should halt the reprinting of the guild leaders’ charts pending the resolution of the budget ramifications and the final disposal of the petition from which the application arose.

3. That the costs of the application will be decided with the main petition.

RECOMMENDATIONS

I have keen concern for the drawing elections and the likely load of work or projects that the government needs to dispose of.

• I recommend that the Cabinet and the Parliament work amicably and mutually hand in hand for the success of government business in the short time left to handing over.

• I further recommend that the boundaries and the virtual walls of our “offices” should not bar the respective persons undertaking projects from consulting and seeking advice from stakeholders and fellow guild officials (notwithstanding that they serve in a separate arm of government).

• I end by affirming that we are mere vessels of service; whose honor is in diligent, honest, noble, transparent, reliable, proficient, and selfless service.

Nabwokye Ivan v Attorney General of Uganda Christian University, Rt. Hon. Kajubi Brian & Rt. Hon Bamwise Joel Constitutional Petition No 2 of 2013

Nabwokye Ivan V Attorney General of Uganda Christian University, Rt Hon Kajubi Brian & Rt Hon Bamwise Joel

IN THE REPUBLIC OF UGANDA
IN THE GUILD TRIBUNAL OF UGANDA CHRISTIAN UNIVERSITY
AT MUKONO
CONSTITUTIONAL PETITION NO 2 OF 2013
BETWEEN
NABWOKE IVAN …………………………………………………PETITIONER
VERSUS

1. ATTORNEY GENERAL
2. HON KAJUBI BRIAN
3. HON BAMWISE JOEL …………………………………………. RESPONDENT

CORAM
A.B. AGABA; CH, G.N. KIKULE; SEC, E.K. AKANDINDA, I.W. BATAMBUZE, S. KYABO

JUDGMENT OF THE HON. CHAIRPERSON OF THE TRIBUNAL A. B. AGABA.

Nabwokye Ivan [herein referred to as the petitioner] brought this petition under Article 70 (1) (a) and (e) of the Uganda Christian University students guild constitution [herein after referred to as the guild constitution]. The applicant is a student of Uganda Christian University and one of the 4 members of parliament for the business faculty, constituency for management and entrepreneurship. He was represented by two counsel; Mr. kaddu Benjamin and Mr. Tony Tumukunde.

The first respondent is the Attorney General of the Uganda Christian University student’s guild government. He is the legal representative of the guild government and he was sued on behalf of the guild government. He is represented by the Attorney general himself Mr. Kyarusi Keith Sc. and his deputy Ms Nuwamanya Maureen Sc.
The second and third respondents [herein referred to as the ‘respondents’] are the Right Hon. Speaker of the guild parliament and his deputy respectively. They are represented by Mr. Serugendo Joshua Sc. and Mr. Kansiime Gideon. The third respondent was initially represented by Mr. Kajubi Brian however he stepped down from the bar for prudence and the aiding of expeditious hearing. The second and third respondents were impleaded pursuant to MISCELLANEOUS APPLICATION NO 1 OF 2013, HON KAJUBI BRIAN AND HON BAMWISE JOEL V NABWOKYE IVAN determined on the 2nd August 2013.

The applicant petitioned the guild tribunal on the ground that the election of the Right Hon Speaker Kajubi Brian and his deputy Hon Bamwise Joel was inconsistent with the guild constitution and that the subsequent suspension of the activities of the applicant as Member of Parliament for the business faculty was unconstitutional, null and void. The facts are that, the respondents were voted into office by the current parliament on the 15th March 2013. Hon Nuwamanya Maureen was elected by the house in its first sitting to perform the function of acting speaker and she presided over the election. The election was premised on section 14 (d) which permits the election of the any law student to chair a meeting in the absence of both the speaker and the deputy. Hon Maureen acted on the advice of Mr. Edgar Quensi Baguma, an official in the office of the Director of Student’s Affairs [herein referred to as the DOSA].

Following the matter of HON SERUGENDO JOSHUA AND HON OPIO KIZITO CONSTITUTIONAL PETITION NO 1 2013, on 20th July 2013, the speaker suspended the activities of the four business faculty members of parliament.
The petition is supported by two affidavits deponed by the petitioner himself and Mr. Anthony Achura the acting speaker for the former parliament. The respondent’s reply is supported by two affidavits as well deponed by the Right Hon Speaker Kajubi Brian and Ms Nuwamanya Maureen.

The issues requiring court’s determination were framed and put to court as follows.
1. Whether the election of the Rt. Hon Kajubi Brian and Rt. Hon Bamwise Joel as speaker and deputy speaker was constitutionally carried out?
2. Whether the doctrine of prospective overruling should be applied in this matter?
3. Whether the suspension of the activities of the petitioner was constitutional?
4. What remedies are available?

Before I take to answering the four questions put to court, I wish to make some edifying observations.
At the hearing on preliminary objections, counsel for the respondents and the AG objected to the audience to the petitioner contending that the petitioner did not have a cause of action in the matter. Counsel for the petitioner albeit the effort to demonstrate that the petitioner in fact has a cause of action, was very elusive and resultantly was unable to satisfactorily demonstrate that the petitioner had a cause of action. Although counsel for the respondents conceded, to the petitioner’s possession of a cause of action, court was not satisfied with the display from counsel. It is therefore in the best interest that I make some observations on this matter.
Stroud’s judicial dictionary defines a cause of action as the entire set of circumstances giving rise to an enforceable claim. In addition, Black’s law dictionary defines a cause of action as a group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person.

In constitutional matters two occurrences give rise to a cause of action. The first is breach of obligations under the constitution that is to say unlawful infringement of constitutional right. And secondly, breach of constitutional provisions themselves and not rights necessarily that accrue therein. If the petitioner alleges the former, then the criteria/ ingredients as stated in NAKACHWA V ATTORNEY GENERAL &ORS EA [2002] 2 must be demonstrated they are,
1. That the petitioner must have a constitutional right.
2. That there must be violation of the constitutional right.
3. And that the violation must be by the respondent.

Such a petition would be then brought under article 50 of the 1995 constitution of the republic of Uganda. Article 19 of the guild constitution gives effect to such proceedings.
A cause of action is not always fixed to a particular right established but can also exist where there is an act or omission contrary to the constitution. Indeed Mpaji Bahigeine DCJ in GEORGE OWOR V THE ATTORNEY GENERAL AND HON WILLIAM OKECHO CONSTITUTIONAL PETITION NO 38 OF 2010 correctly noted at page 9 that, a liberal and broader interpretation should be given to constitutional petitions than a plaint when determining whether a cause of action has been established. Where the petitioner alleges the latter occurrence, the petitioner will have to establish an alleged act or omission that is contrary to a provision of the constitution. The petitioner will be required to demonstrate with clarity by identifying the provision of the constitution with which the act or omission is in contravention then seeks a declaration to that effect. In the instant case, it is the petitioner’s submission that article 49(3) was disregarded during parliamentary election of the speaker. Additionally, he alleges that speaker had no powers to suspend his activities as a member of parliament and in doing so violates articles 43 (3), 17, 9(2), 54 and 1(1) of the guild constitution. Such an allegation naturally qualifies the petitioner to have a cause of action.

I shall now deal with the issues.

Issue 1 was framed, whether the election of the Rt. Hon Kajubi Brian and Rt. Hon Bamwise Joel as speaker and deputy speaker was constitutionally carried out?

Mr. Tumukunde for the petitioners contended that the election of the respondents was unconstitutional. He premised his arguments on the fact that it was carried out by Ms Nuwamanyi Maureen who was neither the outgoing speaker of parliament nor the outgoing deputy yet article 49(3) of the guild constitution places that duty on the outgoing speaker. To counsel the duty to preside over the election was placed upon Hon Achura Anthony the acting speaker of the outgoing parliament. I find it pertinent to reproduce the entire article.
49. Speaker and Deputy Speaker of parliament.
(1) There shall be a speaker and deputy speaker of parliament.
(2) Members from among themselves shall elect the speaker and deputy speaker in their first sitting after assuming office.
(3) The outgoing speaker shall preside over and election of a speaker and deputy speaker of parliament.
(4) (a) The speaker shall call and preside over all meetings in the guild parliament and General assembly in consultation with the Guild president.
(b) The deputy speaker shall preside over any such meetings as provided in (a) above in the absence of the guild speaker and in any case at least chair 4 meetings in a term of office.

Mr. Serugendo Sc. was of a contrary stance, in my view Senior Counsel correctly posed the true question embedded in this issue, to be, whether an election of the speaker can be conducted by a person other than the outgoing speaker? It was Mr. Serugendo’s opinion that the election was in fact legitimately presided over by the operation of section 14(d) of the Uganda Christian University Students Guild Parliamentary Rules of Procedure [here in referred to as the rules of procedure]. He supplemented his argument with the view that section 14 of the rules of procedure, is a regulatory provision that was inserted by the framers intended that there would be an alternative incase the speaker or his deputy was unable to perform their duty. To Mr. Serugendo Sc. the election of the speaker by someone else rather than the outgoing speaker was thus envisaged by the section. The section in its entirety states;
Presiding at meetings/ sessions (section 14)
(a) The speaker shall preside at the subsequent parliamentary sessions after his election.
(b) The speaker shall preside over all the general assembly occasions.
(c) In the absence of the speaker, the deputy speaker shall deputize.
(d) In the absence of both the speaker and the deputy speaker the members present and forming a quorum shall point an acting speaker from amongst themselves to provide over the parliamentary meeting or general assembly, who must be a law student.
(e) The election of the acting speaker in (d) shall be supervised by the general secretary.
…

Mr. Serugendo Sc submitted that articles 60(2) and 60(3) were brought into operation when Ms Nuwamanya Maureen presided over the election of the speaker. The article states,
60. Procedure of parliament.
(1)…
(2) Parliament may act not withstanding a vacancy in its membership.
(3) The presence or participation of a person not entitled to be present or participate in the proceeding of parliament shall not by itself invalidate those proceedings.
(4)…
I find that the argument of Mr. Serugendo Sc must fail and that of Mr. Tumukunde should succeed in part. To me article 49(3) is forthright, only an outgoing speaker can preside over the speaker’s election. Article 49 must be read hand in hand with article 43(3) which states that the term of office of parliament would among others end on the day when elected members of parliament and make oath of Member of Parliament, it follows that after the newly elected parliament took oath they assumed office and the life of the old parliament ended. The speaker of the old parliament then automatically becomes the outgoing speaker, as the outgoing speaker, he is left with only one constitutional duty, which is to preside over the election of the speaker and the deputy.

The operation of the articles disqualifies Hon Nuwamanya Maureen from those capable of carrying out the duty of presiding over such an election since she belonged to the newly elected parliament and not the outgoing parliament. Be that as it may, close scrutiny of the section relied on by senior counsel reveals that it is to operationalise the article 49(4) and not article 49(3). The section envisages a situation where the speaker, deputy speaker and the general secretary are already in office it hence cannot be relied on in situations where there is no speaker and deputy elected to office and where there is no general secretary to oversee the election. Naturally at the time of election of the speaker the office of the general secretary is vacant. It is a section that operates only when parliament is fully constituted, yet in the instant facts, it was utilized while the parliament had not commenced business since office of the speaker and deputy speaker was vacant and yet the speaker is the head of parliamentary business.

Even then articles 60(2) and 60(3) cannot operate in such a situation. The vacancy in parliament envisaged is not of speakership but membership, besides that clarity in the wording, the articles operate only when parliament has proceedings. It only follows that parliament can only proceed when the office of the speaker is fully constituted. Article 49(2) creates a constitutional deadline in which the speaker and deputy must be elected, that is in the first seating of parliament.

It follows therefore that the first order of business in parliament is to elect a speaker and deputy, article 60(2) and 60(3) couldn’t have come into operation without a speaker to chair the proceeding. It is my view that an election of the speaker is not any mere proceeding; it is a crucial stage of life of the parliament. The election is so vital that if it is not carried out, parliament cannot have any dealings. The speaker is the head of parliamentary business and a vacancy in such an office can trigger a stand still on all governmental activities, without vetting ministries, and other organs would be vacant, budgetary and legislative proceedings wouldn’t be carried out. It would thus be detrimental if this court interpreted such a vacancy to be that in the speakers’ office and more so such an interpretation could create extreme absurdities with the laissez faire approach to vacancy in his office.
It was the opinion of the counsel for the petitioners that Hon Achura Anthony was the right person to preside over the election since he was acting speaker during the old parliament. The facts leading up to the election of Hon Achura Anthony’s election as acting speaker are that, Hon Ongwe Stanislaus Okello intended to stand for guild presidency in 2013. By the operation of article 50(50) (e) Hon Ongwe Okello took leave from office. Parliament elected an acting speaker who performed functions until the facts leading up to this case.
It is my view that he would have been the wrong person to preside over the election of the speaker. Critical reading of article 50(5)(e) reveals that an acting speaker’s term of office set off through an election to office by the speaker’s intention to stand in any general election. The announcement of the result concludes the term of office of the acting speaker. By this alone, Hon Achura’s term of office ended when the results were announced. This means that by the time the speaker’s election was conducted by Ms Maureen, he had lost his acting speakership.
However what is unclear is what happens when the speaker wins the election in which he stood. Two scenarios come to mind, the first is that the deputy assumes office of the speaker, or an election of the speaker is carried out. Who then would preside over this election? In the first scenario, although it would seem that the obvious option is for the deputy to assume office because of his experience there, automatic assumption would defeat the sovereignty of parliament. As already stated the speaker is a crucial person in parliament, the speaker heads all business of parliament. Parliament must always reach a consensus through voting. It is the salient characteristic of parliamentary identity. It wouldn’t be fitting to compel a speaker on to the parliament whom they did not vote into that position.
It must be realized at this point that there exists a lacuna in the laws, a situation such as this where the outgoing speaker and his deputy are unable to oblige to their constitutional duty. If it were possible to anticipate that a speaker and the deputy can fail to perform their functions hence enacting section 14(d), it is well in the obvious that the same can happen so as to fail to have the outgoing speaker’s office perform its function.

In conclusion on this matter, parliament misinterpreted section 14(d), it is only the outgoing speaker who can preside over the election of the speaker.

Issue two is engulfed by issue three.
Issue three is, whether the suspension of the activities of the petitioner was constitutional?

Mr. Kaddu contended that articles 43(3) which provides that the life of parliament would end on the swearing in of elected members of parliament, 17 which guarantees student’s right to participate in guild government affairs, 9(2) which prohibits discrimination, 54 which lays down the grounds for vacating a seat by a member of parliament and 1(1) which states that the guild constitution is supreme law of Uganda Christian University thereby binds all authorities and persons under the student’s guild were all violated by the act of the speaker suspending the activities of the members of parliament for business constituency. Mr. Kaddu reasoned that because the suspension of the petitioner’s activities as Member of Parliament was not based on any law, the act of suspending the activities of members of parliament was thus in its self unconstitutional. He was further of the view that the effects of their indefinite suspension created a vacancy, in parliament and hence amounted to the speaker declaring the vacancy. He further noted that the speaker’s duty is to only notify the electoral commission of the vacancy under article 47(2). He concluded that it is thereby the duty of the Electoral commission.
The Attorney General on the one front contended that the speaker’s action was clearly a suspension not an expulsion or dismissal of the members. He further argued that the action of the speaker putting to a halt the activities of the members till the electoral commission tabled the changes to parliament did not amount to bringing to an end their term of office. On the second front he argued that article 54 relied on by the petitioners did not spell out the grounds for suspension of a member of parliament, and moved court not to rely on it since the action was to suspend the activities of the members and not the members themselves. He went on to state that article 17 is not absolute and can be justifiably limited, and further that the members of parliament could still participate in guild activities but not as members of parliament. He stated that the petitioner could not have been discriminated against under article 9(2) since the decision of the speaker applied across and did not isolate the member alone.
I am of the view that the powers of the speaker in the guild constitution do not encompass suspensions. Without further deliberation on this matter his act of suspending the activities of the members of parliament for the business faculty was unconstitutional. In addition, I find it unwarranted to. The evidence is that the legal officer wrote to the speaker in light of the Hon Serugendo petition (supra) and recommended that ratification of the acts be done by parliament. Article 113 of the guild constitution provides that the advice of the legal officer binds all guild governments. To me the speaker had a clear step to follow which he did not.
I turn now to the question of prospective overruling which will as well engulf the question of remedies. Prospective overruling is a technique of court whereby a court overrules one of its earlier decisions but in a unique style so that it operates only in relation to subsequent dealings. Prospective overruling is a discretionary tool for courts to apply. The tribunal has full discretion to determine what remedies are appropriate except where that remedy has been specified by an appropriate law. It is the duty of this bench to act judiciously when granting or rejecting the remedy prayed for.
Halsbury’s Laws of England, 4th Ed. Reissue Vol. 1(1) at p. 272 Para. 165 provides,
“165. Remedy is discretionary. In both judicial review proceedings and in an ordinary action, the power to make a declaratory judgment is discretionary. The discretion should be exercised with due care and caution, and judicially with regard to all the circumstances of the case, and except in special circumstances should not be exercised unless all parties interested are before the court. It will not be exercised where the relief claimed would be unlawful or unconstitutional or inequitable for the court to grant or contrary to the accepted principles upon which the court exercises its jurisdiction.”
From the above, all decisions of court must be equitable. They ought to balance the state of affairs especially in constitutional petitions that seek a correct position of the law. Decisions of judges are at all times unique in their nature and although the breath of a judgment is the law, judges must be most pragmatic especially in constitutional cases. Peace and stability must transcend over the jurisdiction of a judicious adjudicator. My lords we must stand apart from the many as makers of a nation and not breakers of it. We have a duty, to effect social change and to do this sensibly in a manner that is placid upon those who subscribe to the constitution and yet affirmative to the constitution, democratic structures and the intended system. In other words, we must not make a placebo of the remedy only to postpone the dispensation of justice. Simply put my Lords, we must demonstrate a real interest in our society, in its peace, its strength and its future. The evidence is that there were several violations of constitutional provisions, during the election of the speaker and the suspension of the activities of the members of parliament for the business faculty, but are we compelled to reach a conclusion where aspects are null and void? My lords I think not.

The experience of time has resulted into the technique of prospective overruling which unclenches us from the orthodox rule of retrospective pronouncements. Justice Mulenga expounded on this doctrine in ATTORNEY GENERAL v PAUL K. SSEMOGERERE AND ZACHARY OLUM CONSTITUTIONAL APPEAL NO 3 OF 2004 he stated that;

Under the doctrine of prospective overruling, when a competent court declares a law to be invalid it may, in special circumstances, order that the declaration will apply only to the future, i.e. prospectively, and will have no retrospective effect. I would categorize the cases availed to us in which the doctrine has been applied into three. The first category includes cases where the court’s decision declaring the law to be invalid amounts to a departure from its previous decisions holding or applying that law as valid law. Upon applying the doctrine and ordering that its new declaration shall have no retrospective effect, the previous decisions, remain undisturbed as if the law was valid when they were pronounced… The second category is where in making a declaration of invalidity the court, though not departing from any previous decisions to the contrary, is interpreting the law differently from what hitherto the public had mistaken it to be and on which they had in good faith regulated their affairs and relationships. Upon the court applying the doctrine, and ordering the declaration to have only prospective effect, the affairs and relationships previously entered into in accordance with the misinterpretation remain undisturbed… The third category is where, upon holding a legislation to be unconstitutional, the court has applied the doctrine of prospective overruling to suspend the declaration of invalidity in order to give the legislature time to rectify the defect(s) in that legislation…To this I should add an observation that as the doctrine entails the exercise of discretionary power, the doctrine of prospective overruling ought to be applied judicially and cautiously in exceptional circumstances; and the fiat that it must never be invoked if its application would result in legitimizing anything done mala fides, or in undermining the integrity or wholesomeness of the Constitution.
It is clear that the application of the doctrine is a question of qualities. I am certain that the current situation lies in the second category. The evidence is that parliament misinterpreted section 14(d) of the guild constitution to encompass the ability for the parliament to elect an acting speaker to preside over the election of the speaker after the outgoing speaker and deputy speaker declined to perform their constitutional duty. This was as already shown a violation of article 49(3).
Furthermore appears that the right Hon. speaker while following the case of Hon Serugendo (supra), mistook the declaration that, the act of declaring and holding elections for reviewed constituencies without presenting changes to the parliament for approval and budgeting purposes is unconstitutional, to have resulted into vacancies, subsequently in a bid to cure the unconstitutionality, he suspended the activities of the members of parliament business faculty while awaiting the tabling of changes by the electoral commission to parliament. I have no reason to think this was malicious of the office of the speaker in any way but an honest misinterpretation of the tribunal’s judgment.

The law is a tool that can and must be utilized flexibly. A concise description of all surrounding situations must be the basis of any law’s application or the court’s action, simply because the law does not apply in vacuum. The fact is the outgoing speaker and his deputy declined to preside over the election as a result of the standoff between the parliament and the DOSA’s office, it although the reasons of the standoff could be justified, it was very unwarranted and unfair to cling to offices when the students had democratically elected the next representatives.
Bearing in mind the limited time in which the government has to serve it being an interim government, the limited funds it has to run on, and the fact that ordering fresh elections for speakership yet the outgoing speaker is still unlikely to be willing to cooperate, keeping in mind that the elections for business faculty parliamentary candidates was unchallenged and to avoid frustration of a justifiable situation, we must strike a balance in the premises. The law is a journey of purpose and experience, the presence of an adjudicator is most felt in the finality of affairs.

I hereby make the following declarations.
1. That the election of the Rt. Hon Speaker Kajubi Brian and Rt. Hon Bamwise Joel was unconstitutional as it contravened article 49(3) of the guild constitution.
2. That the suspension of the activities of members of parliament for the business faculty was unconstitutional as it contravened articles 43(3) and 50 of the guild constitution.

In addition I make the following orders.

1. That the doctrine of prospective overruling, apply to the declaration (1) above, such that the Rt. Hon Kajubi Brian and Rt. Hon Bamwise Joel retain office as if they were validly elected speaker and deputy speaker respectively. Additionally that all their activities since occupying the office of speakership are valid.
2. That the doctrine of prospective overruling, partially apply to the declaration in (2) above such that the presence of members of parliament for the business faculty in parliament as is valid. And that their participation as members of parliament is valid.
3. Let each party bare its own costs. And specifically to the respondents, the Attorney general’s office was highly capable of representing the respondents but on their own election decided to procure private services, on this basis and the fact that such petitions aid the jurisprudence of the university, costs should be borne by them.

I make the following recommendations.
1. Lacunas such as the one pointed out as a result of the outgoing government’s standoff are tracked down and filled.
2. That the electoral commission presents such changes to parliament that will be acted upon in the September semester elections so as to avoid contention.
3. That article 97(4) of the guild constitution be followed to the root of the meaning as to avoid unnecessary tension when arms of government and the organs are to hand over.

JUDGMENT OF HON. GLADYS KIKULE.
The brief facts of this case have already been laid out by the His Lordship the Chairperson of this honorable tribunal. Therefore, I shall elect to delve right into the heart of this petition that is the issues that were placed before this tribunal.

ISSUE 1:
Issue one read as follows; Whether the election of the Rt. Hon. Kajubi Brain and his deputy the Rt. Hon. Bamwise Joel as speaker and deputy speaker was constitutionally carried out?

I do agree as submitted by counsel for the petitioners that the constitution is supreme and ought to be upheld and respected within the confines of the people, institutions or organs that it binds. In this case the confines of the Uganda Christian University Students’ Guild Constitution are provided for under Article 1 (1). This constitution binds all authorities and persons under the Students’ Guild. I am also of the view that it is eminent to guard jealously the supremacy of the constitution and I am aware of the ever apparent need to protect the tenets of a supreme law such as this regardless of the setting that is a nation, an institution or even a Students’ Guild as in this case.
The principles of constitutional interpretation are always at the heart of a constitutional petition and as judges it is important to hold these principles fast and at the finger tips of the conscience of judgment. Counsel for the petitioner, Tumukunde Tony gave a number of authorities on the interpretation of the constitution. He advanced the fact that if words of the constitution are unambiguous then they should be given their plain, ordinary and purposive meaning so that it best suits the intentions of the framers as was stated in the case of JOSEPH TUMUSHABE V ATTORNEY GENERAL CONSTITUIONAL PETITION NO. 6/2004. The words of the constitution once clear must always be taken to mean that which ordinarily they would mean without availing a stretched connotation to cure any absurdity that may occur. I concur with the submissions of Mr. Tumukunde Tony pertaining to the principles of interpretation of the constitution. Counsel for the petitioner advanced the argument that the word ‘shall’ in Article 49(3) of the Students’ Guild Constitution (hereinafter referred to as Guild Constitution) connotes to and is in fact a mandatory word that is to the effect that only the outgoing speaker or in essence the deputy outgoing speaker in the absence of the outgoing speaker can actually preside over the election of the speaker in the first seating of a newly sworn in parliament. This is undisputed because the word shall is clear and unambiguous therefore it ought to be given its plain and ordinary meaning. No alternative seems to be availed both in the Guild Constitution and the Parliamentary Rules of Procedure.

This established, I continue to scrutinize the argument of counsel for petitioner. He continued to contend that it was Achura Anthony, the then acting speaker in the place of Ongwe Stanislaus who should have conducted the elections of the speaker in that first parliamentary seating. In my opinion, Achura Anthony was in fact not the right person to carry out the election. The presiding circumstances were to the effect that Mr. Ongwe Stanislaus the then Speaker, run for guild presidency and thus according to Article 50 (5) (e) of the Guild Constitution, he sought leave from office. A speaker was duly elected to serve pro tem as under the ambit of this clause. However, the constitutional period of this service that is; the service of the speaker that is serving pro tem starts when the speaker who is participating in the general elections seeks leave from his office up until the elections are concluded and results are announced.
Upon this breakdown, in applying this article to the situation, in essence Hon. Achura Anthony’s time of service had elapsed and this means that he would no longer be speaker at all. It is a challenge because in this case Mr. Ongwe Stanislaus declined to return to office and this would leave a seeming vacancy. Furthermore, David Nangosi the then deputy speaker declined to attend the first seating of the newly sworn in parliament. This was due to the prevailing circumstances of the standoff by the previous government until the Director of Students Affairs (DOSA) gave accountability of monies in the Guild and payment of allowances of guild officials was made. The circumstance that unfolded does not seem to have been envisaged by the Guild Constitution or the Parliamentary Rules of Procedure. The question to be asked is how then a new speaker can be elected to a fresh parliament if the individual who is meant to preside over it that is; both the outgoing speaker and his deputy, is not in a position to carry out this duty. There seems to be a lacuna pertaining to the situation in which the new parliament of 2013 was entrapped. Therefore, in their eyes this warranted the course of electing an acting speaker that is Hon. Nuwamanya Maureen as acting speaker from amongst themselves to preside over the election of the speaker. However it is not possible to elect an acting outgoing speaker simply because this is not envisioned in the Guild Constitution or the Uganda Christian University Students Guild Parliamentary Rules of Procedure.

The counsel for the respondents, Senior Counsel (Sc) Serugendo Joshua advanced the fact that the election process of the speaker and the deputy was actually constitutional. This was conceded to by the Attorney General. According to Serugendo Joshua Sc, Article 60 clauses 1 and 2 of the Guild Constitution were submitted. Mr. Serugendo Joshua Sc contended that according to article 60(1), parliament can actually make its own rules of procedure which is undisputed. Clause 2 provides that parliament may act notwithstanding a vacancy in the membership. Mr. Serugendo Joshua Sc continued to submit section 14 (d) and (e) of the Uganda Christian University Students’ Guild Parliamentary Rules of Procedure. This section has already been laid down by His Lordship, the Chairperson of the Tribunal. Paragraph d provides for the election of an acting speaker to preside over the parliamentary meeting or the general assembly in an instance where both the speaker and the deputy speaker are absent. Paragraph e is to the effect that the election of the acting speaker shall be supervised by the general secretary.
Counsel invited the court to apply the golden rule of statutory interpretation which is to the effect that even though words should be given their plain and ordinary meaning, if the application of the literal rule creates an ambiguity, then the words ought to be given a modified interpretation to cure the ambiguity. In applying this rule to the instant case, the words of Section 14 (d) and (e) are clear and in no way serve an ambiguity once given the literal meaning. Instead, applying the golden rule to section 14 (d) and (e) would instead pose a difficulty. I opine that the application of the golden rule would mean that there is no general secretary since by the time of the swearing in of a new parliament and the president, the life span of the cabinet also ceases. This is the vacancy that counsel for the second and third respondent Serugendo Joshua Sc contended would exist. He thus proceeded to rely on the earlier stated Article 60(2) of the Guild Constitution submitting that parliament can still act with the vacancy of the general secretary or his deputy for that matter. I elect to disagree with the learned counsel’s submissions. The interpretation of Section 14 once accorded the literal interpretation of the words does not create an ambiguity that would have to be cured by a more modified interpretation. The words are clear and they simply mean that when the parliament is duly constituted with a speaker and a deputy then in the instance of their absence an acting speaker can be elected from among them.

This makes paragraph (d) of section 14 crystal clear because in this case a general secretary would be in office. In the first seating of a new born parliament, only the outgoing speaker or in the case of his absence the outgoing is given the mandate to preside over the election according to article 49(3) of the Guild constitution. This would mean that though the situation is dire as was in this case where the outgoing speaker declined to return to office and the previous government had a standoff with the Director of Students Affairs over accountability for monies and payment of allowances, another person conducting the election of the speaker in the first seating of a young government apart from the outgoing speaker or his deputy in the absence of the outgoing speaker hi is rendered unconstitutional.
Therefore pertaining to this issue I agree with His Lordship the Chairperson of this honorable tribunal that the election process of Rt. Hon. Kajubi Brian and Rt. Hon Bamwise Joel as speaker and deputy respectively was unconstitutional and I do agree that this issue one based on the petitioner’s argument must succeed but in part. This is because the one Achura Anthony who is alleged to have been the rightful individual to carry out the election is not indeed the rightful person to have carried out the election of the new speaker and his deputy.
Before I proceed to tackle issue two, just as His Lordship the Chairperson of the tribunal has stated, we are of the view that issue two is engulfed by issue one or three depending on the findings therein. Therefore I proceed to issue three.

ISSUE THREE:
Issue three read: Whether the suspension of the petitioner was constitutional?

Counsel for the petitioner Kaddu Benjamin contended that the suspension of the petitioner by the speaker was done contrary to articles 43(3), 17, 9(2), 54 and 1(1) of the Guild Constitution. Counsel then referred to the decision of the tribunal in Constitutional Petition no.1 of 2013 that is HON. SERUGENDO JOSHUA AND HON. OPIO KIZITO V ELECTORAL COMMISSION which was to the effect that the declaring and holding of elections for reviewed constituencies of the Business faculty by the electoral commission without tabling the changes before the parliament for approval and budgeting purposes was declared unconstitutional. He further submitted that this was in no way connoting to the declaring of the seats vacant or granting the speaker any power whatsoever to declare a vacancy in parliament. This, according to Mr. Kaddu Benjamin was clearly stated in the judgment by His Lordship Agaba A. Barigye the Chairperson of the Tribunal that it is solely within the ambit of the duties of the electoral commission and not in the power of the speaker.
He further submitted that the only incidences wherein a member of parliament is to vacate office are provided for under Article 54 of the Guild Constitution which does not contain any provision to the effect that a member of parliament would vacate office upon suspension by the speaker of parliament. Premised upon the supremacy of the constitution, counsel was of the view that the constitution must prevail above all persons and officials under the guild as provided for under Article 1 (1) of the Guild Constitution. Therefore, according to counsel for the petitioner, since the speaker did not have the authority or the power to suspend a member of parliament, this act or course of action was unconstitutional.
Kansiime Gideon also Counsel for second and third respondent was of the view that the act of the speaker in suspending the activities of the petitioner along with three other members of parliament was indeed unconstitutional because the speaker does not have any authority to actually declare vacancies or suspend the activities members of parliament. Counsel contended that the decision of the tribunal in HON. JOSHUA SERUGENDO & HON. OPIO KIZITO V ELECTORAL COMMISION (supra) was to the effect of scrapping the four reviewed constituencies of the Business faculty and re-establishing the two seats that existed before in the Business faculty. This would mean that the only duty of the speaker would be to inform the Electoral commission of this vacancy in writing after which the Electoral commission would organize a by-election. Counsel further contended that in essence, the effect of declaring the reviewing of constituencies by the electoral commission without the tabling of the changes to parliament was to render the four seats fictitious that is not having been in existence since the process that brought them to being was unconstitutionally carried out. In essence according to Counsel for the second and third respondents, the speaker would in that sense not be suspending the activities of any member of parliament since these constituencies did not exist in the first place.

I shall not labour to restate the arguments of the Attorney General but it should be noted that he was of the view that the suspension of the activities of the members of parliament was constitutional.
In regard to this issue, there was a mention of the principle of functus officio. This principle is a principle in adjudication that is to the effect that a court does not have the jurisdiction to reopen a case that has already been finally decided before it except in two instances that is; firstly where there has been a slip up in the drawing of the judgment and secondly where there has been an error on expressing the manifest intention of court. Functus officio is a cognate of the English word defunct that is to the effect that something is no longer existing or functioning. In other wards once that case is decided upon then the court loses jurisdiction to open up the same case just because it has changed its mind on it or it erred in its jurisdiction over the case.
In the present scenario, in light of the decision of His Lordship the Chairperson of the tribunal, I agree with emphasis accorded on the intention of the decision taken by this honorable tribunal in the constitutional petition no1 of 2013 as mentioned before, upon which a large part of this petition is premised. The effect of the declaration that the declaring and holding of elections for reviewed constituencies without tabling the changes before parliament for approval and budgeting purposes was unconstitutional has been clearly laid down by His Lordship the Chairperson of this tribunal and I elect not to deviate for this decision and emphasis. This is clear ironing out of any error that was made as to the manifest intention of the decision that was taken in the constitutional petition. From the discussion above, the principle of functus officio does not entrap this tribunal as we are not deviating from our previous decision but find it prudent and expedient to make our manifest intention clear as to what the effect of the decision arising from the aforementioned constitutional petition was.
The essence of breaking down the above principle was to resolve the need to make the intention of the tribunal clear in regard to the declaration that emanated from the case of HON. JOSHUA SERUGENDO & ANOR V ELECTORAL COMMISSION (supra) before this honorable tribunal. This clearly does not connote to a deviation from that decision which would cause the hands of the tribunal to be tied in emphasizing and making clear its intention in the aforementioned case. In my opinion, after scrutiny of the above arguments, I am of the view that the suspension of the activities of the members of parliament under the two business faculty constituencies was not within the ambit of the powers of the speaker and thus unconstitutional. I now turn to issue two of the petition.

ISSUE TWO:
I have had the opportunity of addressing my mind to the discourse of His Lordship the Chairperson of the tribunal on this issue and I find no useful additions to the above. I concur with his decision regarding this issue.

ISSUE FOUR:
Whether there are any remedies?
There are three sets of remedies that can be granted in civil suits by courts of law that is legal remedies, equitable remedies and declaratory remedies. All these apply in different instances and cannot all be granted in the same civil suits. In the instant case the petitioners and the respondents had different prayers as regards the remedies that could be accorded to them. I concur with his Lordship the Chairperson of the Tribunal in regard to the remedies granted to the parties to this case. I find no expedient necessity to supplement on them. However it is important to note that this is a constitutional petition and the foundation of such petitions is for petitioners to leave with clarity on the law and clarity on its interpretation therein. This should always be the end point and what the parties really seek in regard to a constitutional petition.
I am the view that the parties should bear their own costs seeing as this is a case that pertains to public interest, though it affects individuals, it’s their representative offices that the case affects and not the personal aches of these individuals. This is an interim government and it holds that it is important for this government to carry on business smoothly so as to make a change and facelift the government; making it attractive to the students it actually ought to seek to serve above all. In this instance, the students of the Business faculty who ought to be represented at this time are lacking representatives in the parliament because of such an issue. I applaud the desire to advance constitutionalism in this university and I opine that this spirit should be kept up.

RECOMMENDATIONS:
As I conclude and rest my decision, I elect to point out a few hurdles and I hope that there will be a vivid change in times and generations to come. It is unfortunate that the previous government under the leadership of His Excellency Wabwire Emmanuel were aggrieved and decided to have a standoff for what I would view as justifiable reasons.
All governments need accountability and if it cannot be given in the government of such an institution that is a university, how then can we possibly expect it in the government of our nation? These universities breed our future leaders in the governments that we submit to consciously or sub-consciously. However, what does a young interim government do when it finds itself in such a situation? From its definition, it is clear that the shortened length of its life is the greatest feature of all the activities and line of action that it takes. I am not advocating for lawlessness because the usual procedures are lengthy and may not support an interim government; on the other hand I advance the need to make its work easier in every way especially by the government handing over power.
I opine that more diplomatic ways can be sought to actually solve particular issues. I would recommend that the electoral commission indeed tables the changes before the parliament so as to end the antagony that the students of the Business Faculty face given the fact that they cannot be duly represented at this point in time. Furthermore, a regime of lawlessness should end. As mentioned my fellow learned Justice Agaba A. Barigye in his recommendations, there are lacunas in the law that should be dealt with, but also the instances provided for should also be followed and the constitution should not be trampled on by the guild officials who should actually be its most celebrated custodians of this supreme law.

JUDGEMENT OF HON. KYABO SILAS
I shall not restate the brief facts or anything that my learned colleagues have stated for the purpose of avoiding repetition, though I have this to say;

As regards issue one, whether elections of the Rt. Hon Kajubi Brian and Rt.Hon Bamwise Joel were constitutionally carried out?

I agree in thinking with the learned Counsel for the petitioners about the National objective and Directive state policy. Such is calculated to promote a just, free and fair democratic society, hence a guiding principle to Courts while interpreting the Constitution. However, when Counsel seeks asylum from the Constitutional Court, he/she should strongly refrain from reproducing the principles of Constitutional interpretation because the Court being constituted for that purpose is already aware of them.
Be that as it may, the cardinal question to answer is, was Article 49(3) of the Guild Constitution as amended breached? Or is Article 60(1) and (2) of the Guild Constitution as amended as well as Section 14 (c) and (d) of the Parliamentary Rules of Procedure be put into Consideration?
Having thoroughly read and understood the submission of the learned counsel for both the petitioner and the respondent, I have this to say;
On the face of it, the election of the Speaker and the Deputy speaker was unconstitutional. However, there is a question that is irresistibly lingering in my mind which is to the effect that, what if there is a quagmire situation, should Parliamentary business go a sunder? I will in perpetuity answer in the negative. It is to this effect that I rule that the Parliament should Marshal and Orchestrate a way to cater for such situations because, they are impeccably unavoidable, and that’s why the results we hold are thus inevitable. Plans fail due to lack of counsel but with many advisers they succeed. Hence Parliament together with the Speaker and his Deputy should take cognizance of this ruling.
On the second issue of whether the doctrine of prospective overruling should apply.
I understand the doctrine of prospective overruling as an authoritative declaration that the decision overruled is not good in law. In general, the decision overruled would be regarded as not good in law for all so that all arrangements’ made on the basis of this decision would fall to the ground. To avoid this hardship, courts restrict the operation of the overruled decision to the future cases only and not in retrospect. (Previous decision)
In the case of NORTHERN RAILWAY V SUNBOLT OIL & REFINING 287 U.S (1932) US SUPREME COURT. Cordozo. J observed that “this is not a case where a court in overruling an earlier decision has given to the new ruling a retrospective hearing and thereby has made invalid what was valid in the doing”
One of the objectives of this doctrine is therefore to overrule a precedent without having a retrospect effect. If this doctrine is not given it will wash away they whole dynamic nature of the law, it will be against the concept of judicial activism.
Cordozo. J was of the view that the law should keep up with the changes occurring in society. The law has to be dynamic not static. If in a new and changed society, the citizens are bound by the old law, it will lead to grave injustice. The citizens whose lives are bound by the law of the land should be given laws according to the changed needs. Therefore, the doctrine of prospective overruling is an important tool in the hands of judiciary to give fait and timely injustice to the citizens.
With those few regards, I rule that the doctrine of prospective overruling should apply.
As regards the remaining issues, I agree in thinking with Hon Chief Justice.
All parties to bare their own costs.

JUDGMENT OF HON I. BATAMBUZE
I had the benefit of reading in draft the judgment of my learned brother and chairperson Lord Agaba Arnold and i agree with reasons he has articulated for his judgment. I will only add one or two comments of my own in support and by way of emphasis and elucidation. The facts and background to this case have been ably narrated and described in the judgment of Lord Gladys K and there is no need for me to repeat them.
Since the onset of this petition, i really had the pleasure of being entertained by both counsel for the petitioners and respondents with their rich submissions while distinguishing, extinguishing and marriage of the different constitutional law cases and authorities from Uganda, Africa and the Diaspora
This matter seems to me, rotates around the circumstances before, during and after the election of the speaker Rt. Hon Kajubi Brian and the deputy Speaker Rt. Hon. Joel Bamwise. It’s the grievances of the previous government which have led to the challenging of the election of the second and third respondents and it’s the decision of the Speaker to suspend the activities of the petitioner in parliament which becomes the umbilical cord of this petition.
Therefore, it is upon this background that i do briefly answer to the issues raised in the petition.
Whether the election of the Hon. Kajubi Brian and Bamwise Joel as speaker and Deputy Speaker was constitutionally carried out.
Counsel for the petitioner submitted in a wealth of authorities of case law and written law to boast their arguments some to which i entirely take note and appreciate them for their efforts. In their submission, i can plainly tell that it is more of a matter of constitutional interpretation rotating around Article 49(1), (2) and (3) of the Guild Constitution, which has been exhaustively explained by my learned brother Lord Arnold Agaba.
Counsel for the respondents on the other hand contested counsel for the petitioner arguments driven under the spirit of Article 60(2) of the Guild Constitution, which provides that;
“Parliament may act not withstanding a vacancy in its membership”
Its basing on that Article that parliament went on to vote a one Nuwamanya Maureen to preside over the elections of the Speaker where Kajubi Brian emerged as Speaker deputised by Joel Bamwise.
Questions now rise to know if Nuwamanya Maureen was the right person to preside over the election of speaker. The questions are
1. Was Maureen Nuwamanya an Mp?
2. Was Nuwamanya Maureen the right person to preside over the elections of the new speaker?
3. Was she aware of the duties of the speaker?
I answer the above questions in the following ways.
1. In paragraph two of her affidavit before the Tribunal, she confirms that she is a law student and a member of parliament for Non- Residents. Therefore this makes me answer the first question in affirmative
2. Article 49(3) of the Guild Constitution provides that “the outgoing speaker shall preside over the elections the speaker and the deputy speaker of parliament”.
This provision is very clear and i believe i should give it a plain and natural meaning.
Counsel for the respondents cited Section 14 (d) of The Parliamentary rules of Procedure, which provides that “in the absence of both, the speaker and the deputy speaker, the members present and forming a quorum shall appoint an acting speaker from amongst themselves to preside over parliamentary meeting or general assembly meeting, who must be a law student”
This they supported with Section 14(e), which also provides that; “the election of the acting speaker in (d) of this section shall be supervised by the general secretary”
The Parliamentary Rules of Procedure do not define who the general secretary is and to me the argument fails because it does not make the person the Members of parliament vote to preside over the election of the Speaker and his/her deputy an acting outgoing speaker nor an acting new speaker. and even if, i don’t find it logical for Nuwamanya Maureen to preside over parliamentary meeting when she was new since its presumed she has no wide knowledge of parliamentary business. Therefore, i conclude on this question that Hon. Nuwamanya Maureen was not the right person to preside over the elections of a speaker because it was unconstitutional.
It’s at this point however when i bring in the doctrine of prospective overruling which was first brought to the attention of this Tribunal by learned counsel for the petitioner. It has been well explained by my learned brother Lord Agaba Arnold.
Hence, in my opinion since the election of the speaker is in question because of the differences in the previous government, i say that time has passed, the guild budget was passed and many activities have followed and the speakers in question have never been complained about by the members of parliament. The consequences of removing the speakers from office will cause financial insecurity to our beloved university through facilitation of unplanned parliamentary meetings, allowances and this would literally also mean that there should be a new vetting exercise for everyone who went through their hands during the vetting exercise. In my conclusion to this, i agree that the election of the Hon. Speaker Kajubi Brian as speaker and Hon. Bamwise Joel was unconstitutional

ISSUE TWO
Whether the doctrine of prospective overruling should apply
i had the benefit of listening to the submissions of both counsel for the petitioners and counsel for the respondents but despite the wealth of authorities in defence of their arguments both the petitioners and respondents on this issue, i was entirely not convinced by each side due to their reliance on the decision of this very Tribunal in the case of hon. Serugendo Joshua & Anor v Electoral Commission constitutional petition no.1 of 2013. It would mean that i would be trying to overturn the decision in this case thereby making it an appeal. Therefore i do not feel having the constitutional authority to do that and hence i do the doctrine of prospective overruling only applies in the circumstances listed by the Hon. Chairperson Agaba Arnold.

ISSUES THREE AND FOUR
I do entirely agree with the decisions and reasoning of the Chairperson on these two issues

RECOMMENDATION(S)
On the election of the speaker and his deputy, Article 49(3) of the Guild Constitution provides that “the outgoing speaker shall preside over the election of the speaker and his deputy”,
I find it unrealistic due to the fact misunderstandings between guild parliamentarians towards the end of their terms in office, are common mainly attributed to financial misapprehensions and transactions. It is at this point that I find senior counsel Serugendo Joshua’s idea highly relevant. Article 82(5) of the Constitution of the Republic of Uganda is to the effect that the chief Justice presides over the election of the new speaker of the parliament of the Uganda. Hence, in my opinion, to avoid these political fights in the future i recommend that parliament may amend this to the effect that the chairperson of the Tribunal or in his absence, a member of the tribunal he or she chooses, is to preside over the election of the incoming speaker.

JUDGEMENT OF HON. AKANDINDA ELIZABETH.
I have had the benefit to read through the judgments of my fellow Lords and i entirely agree with them on all the grounds. I do not wish to depart from their judgments, however the following should be noted.
The powers of the speaker need to be put categorically clear within the guild constitution and or any other statutes to enable him run his or her office smoothly without stepping on toes of other people. I have learn with profound shock that the constitution leaves a lot of gaps un covered which need too much care for one to ensure not falling off from the line. Once the constitution remains as if this station remains like this, the speaker is left like a toothless dog that cannot bite.
Allow me to note that we cannot go ahead with such confusion. This being an interim government has to laterally act as a learning aid for the forth coming government. All the above most activities were done for the good cause of the university however much they are unconstitutional. Considering the remaining time for this government, this cannot take us anywhere, we have to forge a way forward.
Allow me to say that both parties should come to agree that they were both called to serve and both should appreciate each other effort to defend the common cause. The suspended Member of Parliament should be called / reinstated with immediate effect and that the office of the speaker continues to carry on its duties as usual. There should be no cause for alarm when both parties are partners in service.
Once again, allow me to say that the overseer body/ office should be vigilant enough in future to help innocent students and individuals not be victims of circumstance. These bodies should guide relevant offices to do their duties an a constitutional manner. The office of the Director of student’s affairs in particular should play its role with diligence. I have noted with concern that the two consecutive cases have been as a result of negligence of duty by the responsible overseer office.

DATED, DELIVERD AND SIGNED AT MUKONO THIS …………DAY OF ……………….. 2013

……………………………………
Hon. AGABA B. ARNOLD
CHAIRPERSON OF THE TRIBUNAL

……………………………………..
Hon. G. N. KIKULE
SECRETARY OF THE TRIBUNAL

………………………………….
Hon. S. KYABO
MEMBER OF THE TRIBUNAL

………………………………….
Hon. I. BATAMBUZE
MEMBER OF THE TRIBUNAL

……………………………….
Hon. E. K. AKANDINDA
MEMBER OF THE TRIBUNAL