Saleh Kamba v Attorney General & 4 Ors (Const. Applic. No.14 of 2013) [2013] UGCC 6 (6 September 2013);

Group

Headnote and flynote

Flynote:

Full judgment

THE REPUBLIC OF UGANDA

IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

RESPONDENTS

CONSTITUTIONAL APPLICATION NO. 14 OF 2015.

(ARISING FROM CONSTITUTIONAL PETITION NO. 16 OF 2013)

HON. LT (RTD)SALEH M.W.KAMBA]::::::::APPLICANTS/PETITIONERS
MS. AGASHA MARY M.

THE ATTORNEY GENERAL
HON. THEODORE SSEKIKUBO

3. HON. WILFRED NIWAGABA :::::::::::::::::::::::::::::::

4. HON. MOHAMMED NSEREKO

HON. BARNABAS TINKASIMIRE

AND

CONSTITUTIONAL APPLICATION NO. 25 OF 2015.

[ARISING FROM CONST. PETITION NO. 21 OF 2013]

NATIONAL RESISTANCE MOVEMENT ::::::::::::::: APPLICANT/PETITIONER

THE ATTORNEY GENERAL
HON. THEODORE SSEKIKUBO

3. HON. WILFRED NIWAGABA :::::::::::::::::::::::::RESPONDENTS

HON. MOHAMMED NSEREKO
HON. BARNABAS TINKASIMIRE

Coram: Hon. Justice S.B.K Kavuma, AG. DCJ/CC
Hon Justice A.S Nshimye, JA/cc
Hon. Remmy Kasule, JA/CC
Hon. Faith Mwondah, JA/CC
Hon. Richard Buteera, JA/CC

RULING

Constitutional Applications Nos. 14 and 23 of 2013 arising from Constitutional Petitions 16 and 21 of 2013 respectively, were consolidated and Court ordered that they be heard together, with the said Constitutional Petitions No. 16, 21, 19 and 25 of 2013 which were also consolidated.

At the end of the hearing lasting about eleven days, counsel for the applicants submitted that the applicants had made out a case is justifying the issuing by Court of a mandatory injunction temporarily restraining the Rt. Hon. Speaker, through the 1^st respondent, from allowing further violation of the Constitution, it was further submitted for the applicants that in the interest of the sanctity and preservation of the supremacy of our constitution, respondents 2, 3, 20 4, and 5 do temporarily step aside from Parliament until this Court delivers its final decision in the consolidated Constitutional Petitions.

Counsel for the 2, 3, 4, and 5, respondents together with counsel for the Petitioner in Constitutional Petition No. 25 of 2013, vigorously opposed the said final prayer of the applicants. They submitted that no case had been made out by the applicants deserving the issuance of the said mandatory injunction and in any case Court can as well wait and hand out its decision in finality.

upon careful perusal of the pleadings and evidence on record and upon hearing and considering the submissions of counsel for all the parties and having considered the law applicable to the matter before us and the authorities referred to court, we are satisfied that a case for the grant of a mandatory injunction has been made out by the applicants. Further reasons for awarding the remedy shall be reflected in the final reasoned judgment in the consolidated constitutional Petitions.

We therefore allow the applications and grant the temporary remedy prayed for in the following terms.

This court doth order that a mandatory injunction be and is hereby granted directing the Rt. Hon. Speaker of Parliament through the 1^st respondent, to temporarily restrain the 2^nd, 3^rd 4^th and 5^th respondents from entering the August house of Parliament, to deny them seats therein and participation in any Parliamentary activities, until the final judgment in the consolidated constitutional petitions is pronounced.
It is further ordered that the costs of the two consolidated applications shall abide the outcome of the consolidated constitutional petitions.

We so order.

This decision is a majority decision of 4 to 1.

Dated at Kampala this 6th day of September 2013

S.B.K Kavuma

Ag. DCJ

A.S. NSIHIMYE

JUSTICE OF APPEAL/CONSTITUTIONAL COURT

FAITH MWONDHA

JUSTICE OF APPEAL/ CONSTITUTIONAL COURT

RICHARD BUTEERA

JUSTICE OF APPEAL/ CONSTITUTIONAL COURT

THE REPUBLIC OF UGANDA

IN THE CONSTITUTIONAL COURT OF UGANDA

AT KAMPALA

CONSTITUTIONAL APPLICATION NO. 14 OF 2013

[Arising from Constitutional Petition No. 16 of 2013]

HON. LT. (RTD) SALEH M.W. KAMBA ::::::::::::APPLICANTS/
MS. AGASHA MARYM. PETITIONERS

. THE ATTORNEY GENERAL

HON.THEODORE SSEKIKUBO
HON. WILFRED NIWAGABA
HON.MOHAMMED NSEREKO
HON.BARNABAS TINKASIMIRE

: RESPONDENTS

AND

CONSTITUTIONAL APPLICATION NO.23 OF 2013

[Arising from Constitutional Petition No.21 of 2013]

NATIONAL RESISTANCE MOVEMENT :::::APPLICANT/PETITIONER

HON. JUSTICE A.S. NSHIMYE, JA/CC

HON. JUSTICE REMMY KASULE, JA/CC

HON. LADY JUSTICE FAITH MWONDAH, JA/CC

HON. JUSTICE RICHARD BUTEERA, JA/CC

RULING BY JUSTICE REMMY KASULE, JUSTICE CONSTITUTIONAL COURT (DISSENTING)

This Constitutional Court has, as of now, handled to completion, pending final judgment, the hearing of consolidated Constitutional Petitions Numbers 16, 19, 21 and 25 of 2013.

At the commencement of hearing the Court also ordered that Constitutional Applications Numbers 14 and 23 of 2013, amongst others, be heard and disposed of together with the stated consolidated constitutional petitions. In making the order Court of course reserved upon itself the power to revert back to the issue of a grant of the temporary injunction, if circumstances warranted so. Court made this order, after coming to the conclusion that too much time was being spent by the parties on the said applications at the expense of the expeditious disposal of the consolidated Constitutional Petitions and yet the issues of the temporary injunction applications were similar to those of Constitutional

Petitions Numbers 16 and 21 of 2013. In the course of hearing that took about eleven days continuously, no circumstances arose necessitating the Court to revert back to the issue of whether or not a temporary injunction should be granted pending completion of the hearing. So the hearing proceeded to conclusion.

The main essence of the prayers in Constitutional Applications 14 and 23 of 2013 is that this Court should grant to the applicants a temporary injunction to restrain the implementation of the Rt. Hon. Speaker of Parliament’s ruling by restraining the 2^nd, 3^rd, 4^th and 5^th respondents to Constitutional Petitions numbers 16 and 21 of 2013 from entering, sitting, participating in any proceedings of the Parliament of Uganda until the disposal of the said Constitutional Petitions.

The above prayers for a temporary injunction also constitute, in the main, the reliefs being sought by the petitioners in Constitutional Petitions Numbers 16 and 21 of 2013, namely that on being expelled from the National Resistance Movement political party, the party on whose ticket each one of the said 2^nd to 5^th respondents stood and won the Parliamentary election in their respective constituencies in 2011, each one of them ceased to be a Member of Parliament and therefore ought to have vacated his seat in Parliament. Accordingly it was unconstitutional of the Honourable Speaker of Parliament to retain them as Members of Parliament. Thus this Constitutional Court is prayed to declare and order that each of the stated respondent’s stay in Parliament, after

his expulsion from the National Resistance Movement political party, is unconstitutional and as such each one ought to vacate Parliament.

In the course of the hearing up to completion, of the stated Constitutional Petitions and applications this Court obtained all the available evidence, submissions and legal authorities from all the parties, both petitioners/applicants and respondents. All that this Court remains to do now is to deliver its final judgement on the basis of the evidence, the submissions of respective counsel and the legal authorities availed to Court for and on behalf of all the parties.

It has however transpired after conclusion of the hearing, but before delivery of the final judgement by this Court, that this Court should pronounce itself on the issue of the temporary injunction pending delivery of its final judgement. In other words if this Court comes to the conclusion that the applicants have made out a case for the interlocutory temporary injunction, then this Court should grant the same by ordering the barring of the 2^nd to 5^th respondents from Parliament pending delivery of the final Judgement of this Court in the Constitutional Petitions.

With the greatest respect, I am in disagreement with the approach being adopted by the Court. My reasons for disagreeing are the following:

The fact that the temporary injunction applications seek prayers that are the same as the main reliefs sought in Constitutional

Petitions Numbers 16 and 21 of 2013, the ends of justice dictate that this Court, which is now in possession of all evidence, submissions and legal authorities necessary to make a final decision, does proceed to give that final decision other than resorting to granting interlocutory temporary reliefs in the nature of a temporary injunction. Otherwise this Court will be using interlocutory reliefs to pre-determine conclusively the substantive issues in the stated Constitutional Petitions.

The approach being adopted by the Court has the danger of undermining the Court’s judicial duty to resolve all the issues before it impartially that is without being, or appearing to be favouring or prejudging the issues in favour of or to the prejudice of any of the parties to the causes, before the Court gives its final Judgement.

This is likely to be so because in order to be able to decide one way or the other as regards the grant or refusal of a temporary injunction, this Court has to resolve, as between the petitioners/applicants and the respondents, whether a prima facie case has been made out or not, whether there is or there is not any irreparable injury being suffered and in whose favour is the balance of convenience. See: SCCA No. 19 of 1990: Robert Kavuma Vs Hotel International and Giella V Cassman Brown & Co. Ltd [1973] EA 358.

In the Court of Appeal Constitutional Application No.29 of 2011: Nasser Kiingi and Another Vs The Attorney General And

“It is, however, no part of the Court’s function at this stage of litigation to try to resolve conflicts of evidence on affidavit as to facts or on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed arguments and mature considerations. These are matters to be dealt with at the trial of the main petition.” [Emphasis is mine].

The learned Justice S.B.K. Kavuma was referring to the state when an application for a temporary injunction is considered by Court before that Court has considered fully the merits of the subject matter giving rise to the application for a temporary injunction. It follows from the above quotation that where the Court has, in the course of the trial, as is the case now, received all the evidence from all the parties on all matters, been availed all the facts on which the claims of either party will ultimately depend, been addressed on all questions of constitutional and other laws relevant to the case and where issues are the same for the temporary injunction and also for the main subject matter from which the application for a temporary injunction arises, as is the case herein, then by this Court holding at this final stage, when only final judgement is pending, that a case for the grant of a mandatory injunction has been made out by the applicants against

the respondents, amounts to pre-judging the main issues in the Constitutional Petitions, particularly numbers 16 and 21 of 2013 in favour of those who are granted the injunction to the prejudice of those targeted by the injunction.

This is so because there are no new matters by way of evidence, submissions and law that are not in possession of the Court now which the Court has not considered at this final stage before reaching the decision on the temporary injunction. In effect the Court is pronouncing itself in advance to those parties who are the target of the temporary injunction that though the final judgement of the Court is still pending, each one of them has not made out a case to the Constitutional Petitions Numbers 16 and 21 of 2013.

With the greatest respect, I find the approach being adopted by my most Honourable brothers and sister justices of this Court, to be prejudicial, pre-judgemental and contrary to the duty imposed upon this Court, not only to act, but also to appear to be acting impartially. The duty of the Court to act impartially is such that a court of law must conduct and handle the matters before it in such a manner that a reasonable person is not made to conclude, taking into account all relevant circumstances, that the decision-making process of the Court is fundamentally unfair. This duty is imposed upon this Court by Article 28 (1) of the Constitution:

“28. Right to a fair hearing

(1) In the determination of civil rights and obligations or any criminal charge, a person shall be entitled to a fair, speedy and public hearing before an independent and impartial court or tribunal established by law.”

[Emphasis is mine].

The effect and import of Article 28 (1), which is non derogable under Article 44 of the Constitution, as to the

essentiality of impartiality of a court of law, is further manifested in the language of the Judicial Oath that every Judicial officer subscribes to before exercising judicial functions:

“......... will do right to all manner of people in

accordance with the Constitution of the Republic of Uganda as by law established and in accordance with the laws and usage of the Republic of Uganda without fear or favour, affection or ill will. So help me God.” [Emphasis is mine].

For the above reasons I decline to entertain the issue of granting or not granting a temporary injunction at this stage of the proceedings, when only what remains to conclusively resolve all the issues before Court is the preparation and delivery of the final judgement of this Court. It is in that final judgement that I shall deal with the said issue of a temporary injunction which also happens to be a substantive issue in Constitutional Petitions Numbers 16 and 21 of 2013.

As to costs, these too shall be addressed in my final Judgement.

Dated at Kampala this 6th. .day of September, 2013.

REMMY KASULE

JUSTICE COURT OF/

CONSTITUTIONAL COURT