In 2023, aggrieved members of the Uganda Muslim Supreme Council (UMSC) petitioned court for the mismanagement of the affairs of the UMSC at High court.
In the suit [Babirye Yudaya & Others v UMSC], court restrained the National Executive Committee and/or any other organs of UMSC from further dealing and disposing of the properties and funds without the approval of two thirds (2/3) of the general assembly. It also ordered that UMSC, registered as unlimited company, be wound up in public interest or in the interest of its members generally.
However, the same court last week reversed the said trial court’s decision on grounds that parties had to first exhaust internal arbitration processes provided for by the UMSC constitution.
THE ARBITRATION CLAUSE
Article 28 of the UMSC constitution provides for Muslim Arbitration and Conciliation Council (MACC) to be chaired by a person qualified to be a judge of the High court. The said MACC is supposed to be appointed by the joint session to hear all disputes among Muslims and non-Muslims relating to any issue, including the running of the affairs, management, interests and rights of the UMSC.
From the above provision, mismanagement of the affairs of UMSC by any sitting administration are breaches and or misconduct committed by the sitting administration against the members and or UMSC and, therefore, not disputes between Muslims covered under the defined jurisdiction of MACC.
The cause of action in Babirye Yudaya & Others v UMSC was between the aggrieved members and Administration of UMSC or UMSC as a body corporate and not between Muslims.
The rationale is valid to the extent that; where mismanagement or misconduct is committed by a superior organ of the organisation like prejudicial resolutions passed by the supreme organ, a subordinate organ cannot then adjudicate or arbitrate on matters committed or arising from such supreme organ/body of the organisation.
In the absence of a defined, due process and fairness protection provisions, policy, and or any operational manual expressly according powers to a subordinate organ to arbitrate or adjudicate on an issue arising from the superior organ, such a subordinate organ like MACC cannot assume jurisdiction to arbitrate or adjudicate on matters arising from the General Assembly which is the supreme organ of UMSC.
In the instant case, the only guiding and governing document is the constitution of the UMSC and in particular Article 28 which does not explicitly and procedurally confer such powers to MACC and sadly the said MACC is even currently a non-existent organ!
The new ruling further defeats principles of natural justice. In this case, members of the supreme body, literally the General Assembly through a Joint Session, appoints the arbitrator (MACC) to arbitrate matters concerning mismanagement and misconduct where the same appointing organ and or members are the perpetrators of the mismanagement and misconduct!
From the setting/hierarchy and composition of the key organs, the general assembly constitutes the supreme organ of the UMSC followed by other organs including; executive committee, Majlis Al Ulama, joint session and MACC.
MACC being an organ meant to be appointed by the above two organs constituted by members of the General Assembly which is the supreme body of the UMSC, it cannot have jurisdiction to arbitrate or adjudicate over matters constituting mismanagement or misconduct committed by the General Assembly which is the supreme organ unless when such jurisdiction is expressly provided for, which is not the case.
Regardless of its lack of jurisdiction in the instant case, the same MACC is not in existence and subsequently there are no such; regulations, rules, due process protections, policy, or any operational manual for reference on the same to conduct business or to enable an aggrieved member(s) pursue their rights even in matters where it may have jurisdiction!
Therefore, even if MACC had jurisdiction to arbitrate misconduct or mismanagements committed by the sitting administration at UMSC raised in Jinja Company Cause No. 002 of 2023, court referring aggrieved members to the said non-existent forum MACC, tantamount to a polite way of locking out such vulnerable aggrieved members from the mainstream doors of justice.
This leaves such aggrieved and vulnerable members at the mercy of the sitting administration and or perpetrators who are at the same time mandated to appoint the said MACC which they have deliberately refused to appoint and operationalise.
With the current court ruling, the perpetrators have been granted a “get out of accountability free” card for all potential transgressions and now they are at liberty to appoint the said MACC even after their tenure!
Therefore, from the above naked and uncouth abuse of powers by those at the helm of UMSC administration which is mandated to establish, empower and facilitate the functioning of the UMSC organs and systems including MACC which they have deliberately failed to do to date, and now that courts of law have closed the mainstream doors of justice to vulnerable aggrieved parties, where should the vulnerable and aggrieved Muslim seek justice from.!?
This further confirms the legal fraternity’s concern about the diminishing quality of judicial decisions and a call for judicial accountability. An appeal mechanism, though available under the law, shouldn’t be used as a shield to protect obviously poor decisions. We are glad and hopeful about the new Uganda Law Society leadership that has started a radical approach in demanding judicial accountability.
The author is a practicing advocate and member of Uganda Law Society