Saturday April 5 2014

How Justice Mugambe overruled EC on Lord Mayor by-election

Embattled Lord Mayor Erias Lukwago (in suit)

Embattled Lord Mayor Erias Lukwago (in suit) and his jubilant supporters after the ruling by Justice Lydia Mugambe. PHOTO BY faiswal kasirye 

By Anthony Wesaka

This is a ruling on an application brought by Erias Lukwago against the Attorney General, the Electoral Commission, Kampala Capital City Authority and Badru Kiggundu as the first, second, third and fourth respondents respectively. Lukwago’s application arises out of Miscellaneous Application 451 of 2013 which arises out of Miscellaneous Application 445 of 2013 which arises out of Miscellaneous Cause 362 of 2013.
Mr Lukwago prays for orders that:

A temporary injunction is issued against the respondents restraining them from acting in contempt of a court order by declaring the seat of the Lord Mayor vacant and organising a by-election for the position of Lord Mayor pending the final determination of Miscellaneous Cause 362 of 2013;
Kiggundu, the chairman of EC, be arrested and detained in civil prison for disobeying a court order and; costs.

Lukwago’s application is supported by his own affirmation as well as affidavits of Kiwanuka Abdallah and Sewanyana Allan.
All the respondents oppose the application in affidavits sworn by Cheborion Barishaki for AG, Lugolobi Hamidu for EC and Kiggundu and Caleb Mugisha for KCCA. In sum, the respondents contend:

That the application is without merit.
That they have not defied any court order stopping the by-election set for 17th April 2014.

That Lukwago is no longer Lord Mayor for Kampala.
The EC submits that the vacancy in the office of the Lord Mayor was neither declared by the EC nor Kiggundu. That the process of the by-election started after KCCA in a communication of 26th November 2013 notified the EC of vacancy of the Lord Mayor’s office. That the EC is executing its constitutional mandate. All the respondents want costs for this application.

Summary of events
Miscellaneous Cause 362 of 2013 was filed in the High Court along with Miscellaneous Applications 445 and 451 in November 2013; Miscellaneous Cause 362 was for judicial review of the Catherine Bamugemereire Tribunal report which found Lukwago guilty of abuse of office and other actions.
Miscellaneous Applications 445 and 451 were for interim injunction and temporary injunction respectively;

On 20th November 2013, the AG was served with all three applications with Misc. Application 445 fixed for hearing on Monday 25th November 2013 at 10:00am; On 21st November 2013, the Minister for Kampala, Frank Tumwebaze sent out a notice of meeting for KCCA councillors for 25th November 2013 at 9:00am;

The KCCA meeting and the court hearing of Miscellaneous Application 445 were therefore on the same morning of 25th November 2013.

According to the record of proceedings, by 8:45am on 25th November 2013, Lukwago had filed another Miscellaneous Application 454 for an interim order to stop the KCCA meeting at 9:00am pending hearing of his application fixed at 10:00am that day.

The court hearing and the KCCA meeting were both concerned with the removal of Lukwago from office, so it appears from the record of proceedings that Miscellaneous Application 454 of 2013 was made to avoid making the hearing of Miscellaneous Application 445 at 10:00am nugatory and control this mischief.

The purpose of Miscellaneous Application 454 was for an interim order stopping the KCCA meeting and it was granted; The record of proceedings shows that although it was an exparte application (one sided), Mr Mwambutsya for the AG and KCCA was present for the hearing of Miscellaneous Application 454 on the morning of 25th November 2013 and he was heard before the application was granted;

By the time the interim order was signed Mr Mwambutsya, for AG, had left court; Sewanyana showed the minister a copy of the interim order of 25th November 2013 during the KCCA meeting and the minister said it was unauthentic for it was not signed, stamped or sealed. Following the KCCA meeting, the minister notified the Executive Director KCCA --Jennifer Musisi-- of the removal of Lukwago from the office:

Following this, Musisi notified the EC of the vacancy in the office of Lord Mayor; as a result the EC is in advanced stages of organising a by-election to replace Lukwago as Lord Mayor.

Analysis of evidence
The EC raised a preliminary objection. Counsel for EC Sabitti submitted that Lukwago has no cause of action against Kiggundu who is immune from civil action by virtue of the EC Act.

Mwambutsya concurred with Sabitti’s submissions.
Lukwago’s lawyer Abdu Katuntu countered that Sabitti was jumping the gun as he was submitting on the substantive issues raised by Lukwago in the application.

He said the burden is on the Lukwago team to prove to court’s satisfaction that Kiggundu disobeyed the court order and they were ready to do so. Katuntu argued that by willfully disobeying a court order Kiggundu was not acting in good faith.

In sum Katuntu prayed that Sabitti’s application be disallowed and the urgent main application proceeded with.

I have carefully looked at all the submissions of the parties. It is demonstrated from the above that Lukwago has a right to remain in office as Lord Mayor until Miscellaneous Cause 362 is disposed of.

Therefore, Kiggundu’s activities of organising a by-election to replace Lukwago before the disposal of Miscellaneous Cause 362 of 2013 appears a violation of Lukwago’s right to remain Lord Mayor as required of the court order.

Kiggundu brings himself in the ambit of the violator of Lukwago’s said right at this preliminary stage of determining a cause of action.
Kiggundu’s planned by-election programme depicts him as not acting in good faith within the meaning of Section 49 of the EC Act.

At this preliminary stage, Lukwago’s chamber summons discloses a cause of action against Kiggundu.

It is not disputed that the court order of 25th November was to be served on the AG and this was done at 10:05 am on 25th November 2013. Barishaki averred that the AG has never defied any court order. That the said court order was only served on the AG at 10:05 am on 25th November 2013 and it was signed in acknowledgement of receipt.

What is contested is whether the interim order of 25th November 2013 was effectively served for purposes of stopping the KCCA meeting on the same day.

On 25 November 2013 the registrar in the Civil Division of the High Court issued an interim order halting the KCCA meeting. Justice Nyanzi’s ruling of 28 November 2013 upheld the temporary injunctive order of 25 November 2013.

In my view, the targeted person for purposes of enforcing the court order of 25 thNovember was the minister who was chairing the KCCA meeting. Akena and Mwambutsya also submitted as much.

Mwambutsya in his submissions adopted Barishaki’s affidavit in reply to Lukwago’s application. Barishaki averred that the KCCA meeting on 25th November 2013 was convened at 9:00am and the resolution to remove Lukwago from office was passed at 9:30am.

He averred that by 10:05am when the AG was served with an interim order there was nothing left to prevent as the KCCA meeting had already taken place and the councillors had already passed the resolution to remove Lukwago from office at 9:30am.

Lukwago submitted that this court issued an interim injunctive order on 25th November 2013 restraining and stopping the AG, the minister responsible for KCCA from convening the KCCA meeting on the same day to discuss the report of the tribunal constituted to investigate allegations against the Lord Mayor until final determination of Misc. Cause No. 362 of 2013.

Lukwago submitted that the respondents disobeyed and or defied the said interim order by declaring the position of Lord Mayor KCCA vacant and organising a by-election slated for 17th April, 2014 and that the office of Lord Mayor has never fallen vacant to warrant the said by-election.
That the AG and KCCA were represented by Mwambutsya during the hearing of the application for injunctive orders. Kiwanuka attaches a letter from the registrar of court explaining Mwambutsya’s presence in court from start to finish.

Kiwanuka also submitted that on the same day at around 8:58am, the application was granted and shortly thereafter he received signed and sealed copies to be served on the concerned parties including the minister for Kampala and councillors of KCCA.

Kiwanuka immediately left for KCCA City Hall to serve the order in the purported KCCA meeting. On getting there, he introduced himself to the police officers at the main gate and explained the purpose of his visit.
They allowed him to enter the KCCA compound and on getting in, Kiwanuka saw councillor Sewanyana, whom he served two copies of the order and Sewanyana received them. Kiwanuka then proceeded to the second checkpoint in the premises of City Hall for purposes of serving the minster and KCCA Executive Director with the order.

On getting to the second security check point, he found police officers Kaheeru, Mugume, Okello, Ociru and a one Emmanuel Peace Opolo- an operative in President’s office.

Kiwanuka affirmed that he knew all these officers well. They denied him entry, saying they had received orders from the minister, the KCCA ED, Andrew Felix Kaweesi, James Ruhweeza and Kale Kayihura not to allow any advocate for Lukwago- the Lord Mayor or court process server to access the offices of the minister, the ED and the KCCA Chambers.

When Kiwanuka insisted on serving the court order on the Minister, police officers Kaheeru and Emmanuel Peace Opolo grabbed the court order from him. Kaheeru, Mugume, Okello, Ociru and Emmanuel Opolo forced him to the ground, kicked, slapped and undressed Kiwanuka and tried to strangle him using his necktie. They tore his shirt and ordered police officers and others to drag Kiwanuka on the tarmac.

Sewanyana on the other hand, also accused Mugisha of material falsehoods in his affidavit. He averred that on 25th November 2013 he arrived at the Town Hall at 8:00am for the KCCA meeting scheduled at 9:00am.

On the same day at around 8:59pm, he received a call from Deo Mbabazi informing him that the High court had issued an order stopping the KCCA meeting at 9:00am. Mbabazi requested Sewanyana to get out of the Authority chambers in order to receive a copy of the said order and bring it to the attention of the minister who was scheduled to chair the meeting.

Sewanyana left the chambers immediately for the said order and this was before the minister arrived at the chambers for the meeting or the meeting commenced. As Sewanyana approached the KCCA main gate, he saw Kiwanuka who served him with two copies of the said order and Sewanyana received them and immediately rushed back to the chambers.

It appears Kiwanuka and Sewanyana are best placed to inform court about the movement of the interim court order after it was issued because they were in physical possession of it after it was issued by court. From their evidence, this order was at City Hall before the KCCA meeting started.
Sewanyana left the chambers where the meeting was about to start; he received it from Kiwanuka and returned to the chambers to effect service on the minister. From Sewanyana’s affidavit, after struggling to bring it to the attention of the minister in vain, he walked up to him and presented the order calling for a point of order and requesting the minister that the meeting be called off since there is a court order to that effect. Instead the minister ordered him out of the meeting.

Barishaki, Mugisha, Mwambutsya and Akena give the time of the resolution removing Lukwago as 9:30am. The minister’s communication to the ED places it at 9am and also says Lukwago ceased being Lord Mayor at 9:30am. Lukwago, Sewanyana, and Kiwanuka place the issuing of the court order before the resolution was passed. Sewanyana insists service of the order on the minister was before 9:30am.

Annexure B to Mugisha’s affidavit is the record of the minutes of the KCCA meeting. Minutes 3.2 to 6.1 show the sequence of events in the meeting.
In minute 3.2, councillor Baker Serwamba moved a motion and was seconded by Ndege Hawa seeking the removal of the Lord Mayor from the office based on findings of the tribunal. In minute 3.3, this motion was seconded by five councillors.

In minute 3.4, Sewanyana insisted that the motion should not be carried forward because there was a court order issued to stop the proceedings. Sewanyana then moved from his seat towards the minister, waving a purported court order.

In minutes 4.2 to 6.2, the said voting was done by a show of hands. After minute 6.6, the minister, basing on the voting results, declared the office of Lord Mayor vacant.

First, none of the respondents controverted Kiwanuka and Sewanyana’s affidavits during their submissions in court. Yet Sewanyana and Kiwanuka attribute falsehoods in Mugisha’s affidavit.

Having made that observation, the minutes of the KCCA meeting attached support the evidence that the court order was issued and presented to the minister before the resolution to remove Lukwago from the office of mayor was voted on or passed.

Mr Katuntu submitted that the claim that the order Sewanyana served on the minister was not authentic is not true.
I am inclined to agree with Mr Katuntu that the issue of the order served on the minister not being authentic is not true.

I have no reason to disbelieve Sewanyana’s affidavit evidence that the order he presented to the minister was the order served on him in two copies by Kiwanuka. I also have no reason to disbelieve Kiwanuka’s evidence that the order he served copies to Sewanyana was the court order he obtained from court on 25th November 2013 at about 8:58am and he proceeded to City Hall to effect service on the targeted persons in time.

From minute 3.4, it is clearly demonstrated that Sewanyana effected service on the minister well before the resolution to vote Lukwago out of office at the KCCA meeting. I don’t understand why the honourable minister chose to disregard the order of court and chase Sewanyana out.

Basing on the above, in particular, minute 3.4 of the KCCA meeting, I am left in no doubt that the minister may not have wanted to be served with the 25th November 2013 court order but, in any event, he was served with the same by Sewanyana well before the resolution to remove Lukwago was passed by the KCCA meeting.

I therefore remain unconvinced by Barishaki’s and Mugisha’s affidavit evidence and Mwambutsya’s and Akena’s submissions that the court order was made in vain, or that it was served on the minister after Lukwago had been removed from office in the KCCA meeting.

By fixing the meeting at 9.00 am when the court application had been fixed at 10.00 am and where the minister’s notice of the meeting was issued after the court summons were out and received by the AG, who represented the minister, may be suggestive of the minister’s unstoppable resolve to remove the Lord Mayor from office.

Most glaring is the AG’s abysmal failure as principal legal adviser of government, to give the requisite professional legal advice to all government officers and agents involved in the abuse of court process demonstrated in the subject matter before me.

I find the AG disingenuous in his legal advice attached to Mugisha’s affidavit which appears to distort the chronology of events in the KCCA meeting to suit his conclusions. This is grossly unprofessional conduct of the head of the bar.

The manhandling of a court officer, Kiwanuka, in the course of his work, to the extent of dragging him like a chicken thief was uncalled for and the perpetrators should be investigated.

KCCA, its ED, the minister, the EC, Kiggundu and all those government agents or servants associated with the continued violation of the court order of 25th November 2013 by making the by-election for Lord Mayor happen are in violation of the Constitution.

Specific finding
From the evidence before me, the minister was effectively served with the 25 November 2013 court order by Sewanyana. This was well before the resolution to remove Lukwago from the office of Lord Mayor was passed by the KCCA meeting on the same day. In all events, the minister was aware of the court order before the resolution, but went ahead with the meeting to remove Lukwago from the office.

I have checked with the record of proceedings for 25 November 2013. It confirms that the registrar’s order of 25thNovember 2013 was and is a valid and authentic order of the High Court.

By continuing with the said meeting after the order was brought to their attention and eventually voting the Lord Mayor out of office, the minister and all those in the said KCCA meeting were in flagrant violation of an order of court. The resultant resolution removing Lukwago from the office of Lord Mayor was therefore illegal.

The minister’s communication to the ED was in violation of the same court order.

The persons at the meeting included Jennifer Musisi. Musisi should have known better than to acquiesce in this violation of a court order through her continued presence after the Sewanyana incident. It is also deplorable that Musisi went on to notify the EC of a vacancy in the Lord Mayor’s office.

Both Sabiiti from the bar and Lugolobi averred that it was this letter that kick-started the process of the by-election.
Because this by-election is premised on an illegality, it is also illegal and must stop forthwith until the conclusion of the application for judicial review in Miscellaneous Cause 362 of 2013.

In the minister’s communication that Lukwago ceased being Lord Mayor at 9:30, the minister is in agreement with Barishaki’s and Mugisha’s evidence in their affidavits as well as Mwambutsya and Akena in their submissions in court.

I find the statement of the minister that the resolution to remove the Lord Mayor was passed at 9:00am to be erroneous. At best it is confusing.
From this communication, clearly the meeting was to begin at 9:00am and I take it began at 9:00am or there about. So when the minister communicates to Musisi saying the resolution was passed at 9:00am, I can’t make out what he is talking about.

Contempt of court order
Lukwago requests that the parties be held liable for acting in contempt of a court order. The respondents object to this. I have carefully and cautiously analysed the submissions of all the parties on this issue.
From the evidence before me, the four respondents were in contempt of court by virtue of their disobeying or disregarding the court order of 25 November 2013.

Temporary injunctive order
I find it highly persuasive for stopping the action of the EC in the same way as it is based on an illegality. It also follows that any action by any of the respondents or others intended to remove Lukwago from the office of Lord Mayor is an illegality and must be avoided.

Therefore, the temporary injunction stopping the by-election for Lord Mayor as requested by Lukwago is hereby granted.
I also find irrelevant the suggestion by the respondents that Lukwago should have sought redress under the KCCA Act by way of appeal of the resolution of the KCCA meeting.

In the same way the EC cannot invoke its constitutional mandate under Article 61 of the Constitution when it is based on a violation of the Constitution in the first place.

By disobeying the court orders, the respondents are attacking the very independence of the Judiciary enshrined in Article 128 of the Constitution. This is outrageous.

It is not the court to bring its orders in line with the actions of the AG, EC or their agents and staff as some of the respondents appear to suggest. Rather, rule of law requires, as a must, that all these parties and their agents must bring themselves in line with the orders of court.

Finally, the proverbial big elephant called rule by law, should not be allowed to suffocate or kill respect for the rule of law just because of its size. It should have no place in the room if the constitutional principles of good governance, democracy and respect for human rights are adhered to.

I also order that until Miscellaneous Cause 362 of 2013 is disposed of conclusively and in finality, no organ, employee or agent of government, the EC, the KCCA or any other such organ make any attempts to remove Lukwago from the office of the Lord Mayor for KCCA. Costs for Lukwago are also granted. I so order.

Lydia Mugambe
28th March 2014