Judge Ssekaana’s injunctive order against ULS puts judiciary on spot

Last Friday, judge Musa Ssekaana made a ruling on the consolidated applications Mugisha Hashim Mugisha vs Uganda Law Society (ULS) & Seven Others, and Pheona Nabasa Gladys Wall vs ULS & Another.

The applications sought for a temporary injunction order restraining ULS from implementing a purported council decision dated November 24, 2024, in which former ULS secretary Phillip Munaabi and ULS council member Geoffrey Turyamusiima were suspended pending a final decision on their removal from office at an extraordinary general meeting that was scheduled for December 17, 2024, until final disposal of Miscellaneous Cause No. 1243 of 2024.

Applicants further sought a temporary injunction barring ULS from holding elections of its representatives to the Judicial Service Commission (JSC). The application was highly contested by all the respondents who filed in their respective affidavits in reply.

Ssekaana acknowledged this in its ruling and gave a summary of the different evidence adduced by both the applicants and the respondents by way of affidavit.

ISSUE FOR DETERMINATION

Court framed one issue for determination in this matter; whether the court should issue a temporary and mandatory injunction in this matter as prayed for in the application.

In its decision dated December 13, 2024, and delivered online at about 10:43 pm or thereafter, the court granted all the orders sought by the applicants in both consolidated applications. The decision raises a number of legal and judicial concerns that warrant discussion;

GRANT OF A MANDATORY INJUNCTIVE ORDER

Court concluded by granting the said mandatory injunction. It is quite unfortunate that the court did not address its mind to the settled principles of granting a mandatory injunction by our apex court in the land.

The Supreme court in Sudhir Ruparelia vs Crane Bank & Anor (delivered on October 04, 2021) was clear on the status to be restored in granting a mandatory temporary injunction; the Supreme court was of the view that the status to restore is one that existed when the suit/main cause was filed and must have been altered during the pendency of the suit.

In total disrespect and defiance of this decision that is binding on the High court, Ssekaana held in the reverse by granting a mandatory temporary injunction on matters that occurred before the main cause was filed. This is very regrettable.

DISRESPECT OF THE DOCTRINE OF PRECEDENTS

As the legal fraternity has always complained, there is total disrespect of the doctrine of precedents by lower courts. A decision of this nature is overturning the reasoning of the apex court in the land.

This is very unfortunate and it retards the rule of law in our country. These, among other decisions, should be parameters used in evaluating performance of judicial officers before promotion. These are among other chains that must be broken in judicial promotions.

PURPOSE OF GRANT OF AN APPLICATION FOR A TEMPORARY INJUNCTION ORDER

It is a settled position of law in numerous decisions that the purpose of grant of a temporary injunction order is to preserve the status quo. (See, James Musinguzi Garuga & Anor vs Chris Baryomunsi & 20rs).

In his ruling, Ssekaana alludes to this. Unfortunately, instead of defining the status quo of the case before him as per the evidence presented, he concentrated on the discussion of restoring the status quo [hitherto he never defined] as per the evidence before him and concluded by mixing it with the grant of a mandatory injunctive order. This is seriously regrettable.

LACK OF CONSISTENCY IN LEGAL REASONING

I am alive to the fact that each case is determined on its own merits. In earlier cases decided by the same court on similar facts intended to injunct either an election process from taking place, or injuncting a statutory body from carrying out its functions under the law, this court has held to the contrary.

There is no justification in this ruling why this court has departed from its earlier reasonings, some of which are as latest as May, 2024.

DECISION CONTRADICTION 1

In CFAO Motors Uganda Ltd vs The Public Procurement and Disposal of Assets Authority (PPDA), this court was of the view that the court’s power can be exercised judiciously and in public interest, no mandatory injunction causing administrative inconvenience or resulting in public mischief should be granted in absence of any special circumstances like in the present application.

This decision was delivered on May 17, 2024. In a gap of only seven months, this court has shifted its goalposts and there is still no clear explanation as to why it has done so.

DECISION CONTRADICTION 2

In Nived Enterprises Ltd vs Uganda Revenue Authority delivered on May 17, 2024), the same court was of the view that courts should be reluctant to restrain a public body from doing what the law allows it to do.

In such circumstances, the grant of an injunction may perpetrate breach of the law which they are mandated to uphold. The main rationale of this is rooted in the fact that courts cannot, as a matter of law, grant an injunction which will affect the effect of suspending the effect of legislation.

The same judge went ahead and observed that courts should consider and take into account a wider public interest. The public bodies should not be prevented from exercising the powers conferred under the statute unless the person seeking an injunction can establish a prima facie case that the public body is acting unlawfully.

The public body is deemed to have taken a decision or adopted a measure in exercise of powers which is meant to use for the public good is deemed to have taken the decision or adopted a measure in exercise of powers which is meant to use for the public good.

In my humble view, this position applies in equal force to statutory bodies like the Uganda Law Society (ULS).

DECISION CONTRADICTION 3

In Ben Muhumuza vs Attorney General, delivered on August 28, 2020, this court was of the view that, an election is a flowing river which cannot be stopped; otherwise it would be recipe for confusion and has dire financial consequences to the government and the parties involved in the electoral process.

The wider public interest should be considered in this case before the court would consider grant of any interim orders. Court went further to note that, the Election Commission should not be prevented from exercising its constitutional mandate of organizing elections in the entire country unless the applicant can establish a prima facie case that they are acting contrary to the law.

The Electoral Commission is the pivotal figure in matters of elections and has the power to act in accordance with the Constitution and other enabling laws. It should not be restrained on flimsy grounds and without sound basis.

It is indeed unfortunate that in the instant application, the court could not appreciate the dire financial consequences ULS and candidates have invested in the campaign whose election was only left with three days to take place.

This is all albeit the overwhelming evidence in form of affidavits concerning this election which the court closed its eyes at and never considered at all in analysis of its decision.

Double standards and shifting goalposts in legal reasoning albeit any justification is a big threat to the rule of law and should strictly be condemned.

FATE OF HIGH COURT MISC. CAUSE NO. 0263 AND JRC 0049 OF 2024

Given Ssekaana’s decision on a temporary injunction order, an interlocutory application, by nature, which has granted restoration orders of two ULS members on the ULS Council by way of this application, can this court be trusted that it has not already determined the main cause?

Isn’t this already a demonstration of bias? These are all questions that ULS members must ponder with moving forward.

LOSS OF PUBLIC CONFIDENCE IN THE JUDICIARY

When the public loses confidence in the judiciary, the rule of law is terribly under attack. On December 12, 2024, one of the members of ULS, who is known for negatively attacking the ULS president, sent a message on most of the lawyers’ forums with the following content;

“Friday: 10:45pm: An injunction will be issued stopping the EAGM. A lovely Christmas to you all. Akuume.”

It is indeed surprising that this happened when the parties had just completed filing their pleadings and yet to file their written submissions in the matter. It is indeed shocking that what he told members of the bar in the respective forums happened as he said, no wander at the same time.

Such conduct takes away public trust and confidence in the judiciary if members of the bar supporting one of the parties to the case already know the court decision before the same is even delivered, moreover, neither a party nor counsel in the matter but pushing the agenda of one of the parties.

TRANSPARENCY IN JUDICIAL DEPLOYMENTS AND TRANSFERS

It is also now a concern among members of the bar why a particular judicial officer should be deployed in one division since appointment on the bench (2018) to date without any transfer.

The contemporaries he was appointed with have received numerous transfers. What special mission is in Civil division not to allow such a judicial officer move elsewhere? Is this a measure of fairness and equal treatment to all judicial officers in terms of deployment and transfer?

CONCLUSION

The decision injuncting the election process that was left with three days to take place and also restoring members on the council by way of an interlocutory application is highly regrettable.

It is an extension of the legal profession outcry on inconsistences in legal reasoning and failure to follow the doctrine of precedents which is a serious judicial threat.

This, among other chains, needs to be broken. The time is now and we should all act to safeguard the sanctity of the legal profession and restoring the public confidence in the judiciary.

We will continue to break the chains of poor choices in judicial appointments and promotions by highlighting these inefficiencies, whether in ULS leadership or not.

The author is a founding partner at Mukiibi & Kyeyune Advocates and Head, Department of Law Reporting, Research and Law Reform, LDC