a) A temporary injunction is issued against the respondents restraining them from acting in contempt of a Court Order by, inter alia, declaring the seat of the Lord Mayor, KCCA vacant and organizing a by-election for the position of Lord Mayor KCCA pending the final determination of Misc. Cause 362 of 2013;
c) Kiggundu who is Chairman of the EC be arrested and detained in civil prison for disobeying a Court Order and;
d) Costs.
At this preliminary stage, Lukwago’s chamber summons discloses a cause of action against Kiggundu.
[1]Lugolobi affidavit, in particular para 13 but generally the whole affidavit is considered.
[2]HCCS 802/97 (1998) KALR 52 at 53.
[3] Auto Garage v. Motokov (1971) E.A 514.
[4]Chamber summons, paras. 1 - 4 and Lukwago’s affirmation in its entirety.
[5]Both attached as Annexure EL-1 to Lukwago’s affirmation.
[6]See Annexure EL-2; Ruling of Justice Nyanzi, para 15 at p.7.
[7]Barishaki affidavit, para 4.
[8]Barishaki affidavit, para 6. The said order is attached as Annexure A to Mr. Barishaki’s affidavit. It has two stamps with the inscription received. One of the stamps is not signed and the other is signed with 10:05 below the signature.
[9]High Court Misc. Application No. 347 of 2013, p.5.
[10](2004) Vol. 1 KLR, p.588.
[11]Supreme Court Civil Appeal No. 1 of 2001 p. 7.
[12]Barishaki affidavit, para. 7.
[13]Barishaki affidavit, para. 8.
[14]Barishaki affidavit, para. 9.
[15]Barishaki affidavit, para. 12.
[16]Barishaki affidavit, paras.13 & 14.
[17]Lukwago affirmation, para.3.
[18]Lukwago affirmation, para.5.
[19]Lukwago affirmation, para.6.
[20]Lukwago affirmation, para.6.
[21]Kiwanuka affidavit, paras.2-4.
[22]Kiwanuka affidavit, para.3.
[23]Kiwanuka affidavit, para.3.
[24]Kiwanuka affidavit, para.4.
[25]Kiwanuka affidavit, para. 5.
[26]Kiwanuka affidavit, para. 6.
[27]Kiwanuka affidavit, para. 6.
[28]Kiwanuka affidavit, para. 7.
[29]Kiwanuka affidavit, para. 7.
[30]Kiwanuka affidavit, para. 7.
[31]Kiwanuka affidavit, para. 7.
[32]Kiwanuka affidavit, para. 8.
[33]Kiwanuka affidavit, para. 9.
[34]Kiwanuka affidavit, para. 9.
[35]Kiwanuka affidavit, para. 9.
[36]Kiwanuka affidavit, para. 9.
[37]Kiwanuka affidavit, para. 9.
[38]Sewanyana affidavit, para.2.
[39]Sewanyana affidavit, para.2.
[40]Sewanyana affidavit, para.4.
[41]Sewanyana affidavit, para.4
[42]Sewanyana affidavit, para.5
[43]Sewanyana affidavit, para.6.
[44]Sewanyana affidavit, para.6.
[45]Sewanyana affidavit, para.6.
[46]Sewanyana affidavit, para.6.
[47]Sewanyana affidavit, para.6.
[48]Sewanyana affidavit, para.7.
[49]Sewanyana affidavit, para.7.
[50]Sewanyana affidavit, para.7.
[52] Article 128 on independence of the judiciary; with specific emphasis on sub article (3).
[53]David SejjaakaNalima v. RebeccahMusoke Supreme Court Civil Appeal No. 12 of 1985.
[54](2005) Vol 2 EALR p.344.
[55]See also Chuck v. Cremer (1) Corp Temp 442.
[56](2005) Vol. 2 EALR p.344.
[57]See for example, Twinobusingye Severino v. AG, Constitutional Petition No. 47 of 2011. Starting at around line 20 to 25. See also Uganda v. Robert Sekabira and 10 others, High Court Criminal Session 0085 of 2010. p.5, where Justice Ralph Ochan, quotes Lord Griffith above, among other cases. I also take the view that for purposes of rule of law, the principle is the same, ie supremacy of the Constitution whether in civil or criminal cases.
[58]Muriisa Nicholas v. AG and 3 ors. Misc. Cause No. 35 of 2012, p. 16.
[59](2003) (3) ALD 83 2003 (5) ALT 86.
[60] (2003) (3) ALD 83 2003 (5) ALT 86.
[61]Annexure B to Mugisha affidavit.
[62]See Annexure B to Mugisha affidavit, p.4 showing officers in attendance. Charles Ouma, the Deputy Director Legal Affairs also appears to have acquiesced in the illegality by continuing to be present there.
[63]It is also attached to LugolobiHamidu’s affidavit as Annexure A
[64]Lugolobi affidavit, para. 6 to 10.
[65]Lugolobi affidavit, para. 10.
[66]Lukwago affirmation, para. 4.
[67]See Lugolobi affidavit paras. 6-10 and Mugisha affidavit para. 11. See also the AG advice attached as Annexure E to Mugisha’s affidavit and Annexure AK-3 to Kiwanuka affidavit in which Kiggundu- the chairman of the EC issued a press release explaining that the by-election process is ongoing and calling on the general public and voters of KCCA to participate in all the electoral activities publicized on 6 March 2013.
[68]Reference No. 8 of 2012 in the East African Court of Justice at Arusha 1st Instance Division.
[69]Constitutional Application No. 73 of 2013. pp. 16-20.
[70]Halsbury’s Laws of England 4th Edition, p.284, para 458
[71]Reference No. 8 of 2012 in the East African Court of Justice at Arusha 1st Instance Division.para.35, p.19.
[72]Reference No. 8 of 2012 in the East African Court of Justice at Arusha 1st Instance Division.para.39 p. 21.
[73]Reference No. 8 of 2012 in the East African Court of Justice at Arusha 1st Instance Division.para 40 p.21.
[74](2004) Vol 1 KLR, p.588.
[75] (1990-1994) EALR p.464
[76]Constitutional Petition No. 8 of 2013 consolidated with Misc. App No. 10 of 2013.
[77] The reference to the Minister in this section for contempt is not to imply that he is found in contempt for purposes of the application before me. Rather, it is to lay the background and context for a clear understanding of the contempt in issue in relation to the four respondents before me. It must therefore be seen as such and nothing more.
[78]Ibid. (See footnote immediately preceding).
[79]See affidavits of the different respondents and their submissions in court.
[80] See Annexure EL4 to Lukwago’s affirmation, paragraph 4 (unnumbered).
[81]Supreme Court Civil Appeal No. 8 of 1990.
[82]Constitutional Application No. 7 of 2012.
[83]Constitutional Application No. 3 of 2014.
[84]High Court Civil Revision No. 9 of 2001.
[85]Misc. Application 514 of 2012, arising from Misc. Cause 89 of 2009.
[86] Section 7 of the Civil Procedure Act (Cap 71 of the Laws of Uganda) provides for the doctrine of res judicata and states that: “No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try the subsequent suit or the suit in which the issue has been subsequently raised, and has been heard and finally decided by that court.”
[87]Lord Griffiths in R vs Horseferry Road Magistrates Ex parte Bennet[1993] UKHL 10; [1994] 1 A.C. 42.
[88]Major General David Tinyefuza v. AG Constitutional Petition No. 1 of 1996 p.69.
[89] See E.C.S. Wade and Godfrey Phillips, in Constitutional Law. 8thEdn at p.62.
[90]Lord Griffiths in R vsHorseferry Road Magistrates Ex parte Bennet[1993] UKHL 10; [1994] 1 A.C. 42.
[91] (2003) (3) ALD 83 2003 (5) ALT 86.
[92] See for example the distinction between rule of law and rule of law at: (http://branemrys.blogspot.com.com/2005/08/rule-of-law-v.rule-by-law.html.) (Accessed on 26 March 2014.). Here it was explained that the two chief arguments for rule by law and against rule of law are always used against the natural law theory, these are, a) the question of how one can have authority without any moral basis and b) the claim that rule by law is seminal despotic. Rule by law can be either adhoc or principled. Rule by law and rule of law tend in entirely different directions. Rule of law, on the other hand, is an intrinsically moral notion and one cannot easily have a consistent theory of rule of law without appealing either to natural law theory or to some higher rule.
[93]See Chapter 8 of the Constitution starting at p.104. In particular see Article 128 on independence of the judiciary.
[94]See Constitution of the Republic of Uganda, National Objectives and Directive Principles of State Policy. II. Democratic Principles (1), at p. 22 of the Constitution.
[95] In my observations, it is for this reason in the circumstances before me that, with all due respect, the AG, Mwambutsya and Barishaki – all lawyers and senior officials in the AG office; the ED KCCA, Mugisha and Akena also lawyers and senior officers of the KCCA and/or its legal department; Sabitti and Lugolobi also lawyers and senior legal officials of the EC appear unprofessional and disingenuous in their actions, averments or submissions as the case may be, as presented before me in this application. For failing to professionally advise their offices on the obligation to respect Court Orders as a tenet of respect for the rule of law and independence of the judiciary, in the foregoing circumstances, is being out of order on their part as lawyers that concerned themselves with issues pertaining to this application. I make this observation simply to highlight the lawyer’s duty to uphold and respect rule of law at all times in whatever they do and nothing more/less than that. It must be understood as such.
[96] See annexure to Barishaki affidavit.