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Justice Kasule’s dissenting ruling

CONSTITUTIONAL APPLICATIONS NO. 16 AND 23 OF 2013
1. HON.LT. (RTD) SALEH M.W KAMBA
2. MS. AGASHA MARYM
3. NRM

VS

1. THE ATTORNEY GENERAL
2. HON THEODORE SSEKIKUBO
3. HON WILFRED NIWAGABA
4. HON. MOHAMMAD NSEREKO
5. HON BARNABAS TINKASIiMIRE

CORAM: HON. JUSTICE S.B.K KAVUMA,
HON. JUSTICE A.S NSHIMYE, JA/CC
HON. JUSTICE REMMY KASULE, JA/CC
HON. 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 2nd, 3rd, 4th and 5th 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 2nd to 5th 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, 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 2nd to 5th 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  that final decision other than resorting to granting 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 in favour of the or to the prejudice of any of the parties to the causes, before the court gives its final Judgement.

This is likely to be because in order to be able to decide one way or the other as regards the grant or refusal of 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 No.19 of 1990: Robert Kavuma Vs Hotel International and Cassamn 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 2 Others, unreported, this Court (Kavuma, S.B.K, JA as he was then was). In my view correctly stated the law on the point when he stated that.

“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 h 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-judgmental 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 to fair hearing.

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 175 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 the costs, these too shall be addressed in my final judgment.

Dated at Kampala this 6th day of September 2013

Remmy Kasule
Justice, Court of Appeal / Constitutional Court

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