Justice Sekaana NUP ruling is illegal, says Male Mabirizi. Whisper Eye Reports
City Lawyer Male H. Mabirizi K. Kiwanuka disagree with Justice Musa Sekaana’s ruling in the National Unity Platform (NUP) Party case.
Mr Mabirizi has wrote a statement reacting on the verdict that has given NUP party current leadership victory after High Court confirms that it was legally registered and dismissed the case with costs.
Lawyer Mabirizi states;
Fellow citizens, I have read the 12-page Ruling of Judge Musa Sssekaana (who is being investigated by Judicial Service Commission over his conduct in our case against Simon Byabakama’s illegal stay at Electoral Commission) in the case of BAILE DIFASI & ORS vs. National Unity Platform & ORS, Uganda High Court Misc. Cause No. 226 of 2020 where the controversy is on the leadership of the NUP Political Party.
As civically active Ugandan and a Champion of Rule of Law in this Pearl of mankind, I point out the following:
- Since filing a case is a choice that comes with consequences, Kibalama & Kagombe chose not to sue but the Ruling came out with them as Applicants who were ordered to pay Electoral Commission (EC), Kyagulanyi Robert Ssentamu and group costs with the Judge recklessly stating at page 7 that; “The 2nd and 9th respondent had been joined as respondent in the matter and later during the proceedings they changed their affidavit evidence and indeed sought to agree with the original applicants.
Secondly, they also appeared now to be aggrieved since they never received what had been promised to them as a consideration for surrendering the party.
Since in the testimony/cross examination, they wanted the promised 5,000,000$.
This court in exercise of its inherent powers, has joined the said respondents to become part of the applicants.”
- For God’s sake, how can a witness be turned into an applicant/party on account of what he testified in the dock?
How will people in future volunteer to give evidence if giving evidence can make you a party and condemned to costs?
This is what I call “Judicial Fraud”; a Judicial officer portraying falsehoods to be the truth.
The truth is the two are not applicants, but Ssekaana is falsely making them to be so.
- When parties go to Court, they decide what is in controversy between them from which they frame issues.
It is commonsense that all decisions must conform to the issues but it seems Ssekaana is too incompetent for the judicial office even to understand this.
At page 7 of his ruling, he lists 4 issues that; Whether or not the Applicants have locus standing to bring the Application; Whether or not the change of the Party name from NURP to NUP was in breach of the Party Constitution and or any other legal provisions regulating political parties;
Whether or not the election and assumption of party offices by the 3rd to 9th Respondents was in breach of the Party Constitution and or any other legal provisions regulating political parties; Available Remedies.”
- In dismissing the case, this unethical Judge relied on his own generated issue “Whether the Application is Competent and properly before this honourable Court?”
which was never agreed upon as an issue, relied on his other decision of mine to which there is a pending appeal and he is being investigated, to claim that the applicants would have filed Judicial Review and that since they did not, then they are out of time.
- Ssekaana, you have no right to tell parties which cases they will file because your duty is to determine disputes before you and not to think what they would have filed and not to ambush parties which decisions on what was not in controversy, for your own egoistic intentions.
How can someone be out of time for Judicial review in an application which is not for Judicial Review?
- In his ruling, he falsely states at page 9 that “The Constitution is silent as to the procedure to be followed or how to access courts to seek redress outside constitutional interpretation and enforcement of human rights”. Had he not been incompetent, he would have known Article 129(3) of the Constitution which provides that “Subject to the provisions of this Constitution, Parliament may make provision for the jurisdiction and procedure of the courts”.
- He would also have known that in 1996, Parliament passed the Judicature Act, which provides under Section 39(2) that “Where in any case no procedure is laid down for the High Court by any written law or by practice, the court may, in its discretion, adopt a procedure justifiable by the circumstances of the case”.
The intention of the framers of this provision was that the administration of Justice should not be bogged down by procedure but almost 25 years since the enactment, an incompetent Ssekaana is here closing out Ugandans on claims that there is no procedure or that they used a wrong one.
- In Gen. David Sejusa V. Uganda, High Court Criminal Division Misc. Application 15 of 2016, Judge Masalu Musene, after outlining the peculiar circumstances of the bail application in the High Court yet the applicant was charged in the General Court Martial but at the same time the trial suspended by High Court Civil Division with a direction that he applies for bail in the criminal division, relied on the above section 39(2) and held that “And why should this court fold its hands and send back the applicant on remand…I shall exercise this court’s powers under…section 39(2) of the Judicature Act to consider the bail application by the applicant… Bearing in mind the law as outlined above and in further consideration of article 126(2)(e) of the constitution which empowers this court to administer substantive justice without undue regard to technicalities, I find and hold that the circumstances of this application warrant meritious consideration… this court cannot fold its hands and chase away the applicant from the temple of justice…”
Did it require rocket science for Ssekaana to read this very good decision? Ssekaana must have been removed from the Judicial office as early as last year.
- Ssekaana’s statement in the Ruling that “This application was made with a view of making some money during the election season and the applicants have no genuine grievance but rather want to be relevant and make some quick cash” leaves out a lot to be answered.
Was he privy to preparatory meetings of the case to discover that the applicant’s needed money especially that among their prayers, the applicants are not asking for specified money.
Ssekaana is indeed incompetent.
- If he was serious of the claimed 90 days, why did he not deal with the applicant’s prayer (d) that “A Declaration that the extra ordinary Delegates Conference allegedly held on 14/7/2020 to elect new political leaders of the NURP/NUP party was illegal and infringement of the Party Constitution, Articles 8A and National Objective II (v) and 29(1)(e) and 71(1)(c) of the National Constitution 1995 and Sections 19, 21 and the 4th Schedule of the Political Parties and Organisations Act 2005.”
Because having filed the suit on 24th August 2004, that was 44 days after the event.
- Failure to determine this aspect which, even according to the incompetent analysis by Ssekaana, was within time shows that he was up to something else and not administration of Justice in the name of the people and in conformity with law and with the values, norms and aspirations of the people, as required by article 126(1) of our Constitution.
- Therefore, this Ruling was another episode of Judicial Fraud by a Judge who is under investigation for misconduct which he repeated in this case, where Electoral Commission, his client as an Advocate from 2001-2018 was the respondent and he sat to determine the case.
This Judge must be removed from office in public interest before the worse comes to the worst.
- Fellow Countrymen/women, it’s time we join hands to fight against Judicial Fraud & Incompetence and do all in our hands to promote Rule of law.
NUP party led by Kyadondo East legislator Kyagulanyi Robert Ssentamu also known as Bobi Wine, members have celebrated High Court victory today across the country.
The controversial ruling has calmed down the situation among NUP party flag bearers that it is clear they will use the Umbrella symbol in the forthcoming elections.