THE REPUBLIC OF UGANDA
IN THE CONSTITUTIONAL COURT OF UGANDA
AT KAMPALA
CORAM: Mpagi-Bahigeine DCJ, Byamugisha &Arach-Amoko JJA.
CONSTITUTIONAL APPLICATION NO.08/2011
[Arising out of Constitutional Petition No.08/2011]
BETWEEN
Prof. SEMAKULA KIWANUKA MATIA MULUMBA::::::::::APPLICANT
AND
ELECTORAL COMMISSION
ATTORNEY GENERAL::::::::::::::::::::::::::::::::::::::::RESPONDENTS
Civil procedure – injunction – application for an injunction – injunction – grounds for grant of an injunction –irreparable damage - high probability of success
The applicant herein brought this application seeking an order restraining the respondents from nullifying his nomination to contest in the race as a member of parliament. The applicant was dismissed with casts for want of merit.
RULING OF THE COURT
This is an application by Notice of Motion filed under Article 137 of the Constitution, rule 23(1) of the Constitutional Court (Petition and References) Rules, S.I No 91/05, Rules 2(2), 43 and 44 of The Judicature (Court of Appeal Rules) Directions. It is seeking two orders namely
That a temporary injunction doth issue restraining the 1st respondent from implementing and enforcing the decision canceling the nomination of the applicant as a candidate for the position of Member of Parliament of Mityana North Constituency and barring /preventing the applicant from participating in the pending Parliamentary Elections as a nominated candidate pending the determination of the petition pending before this court.
That the costs of the application be provided for.
The application is based on 4 grounds.
The respondent’s decision canceling the applicant’s nomination as a candidate for the position of Member of Parliament of Mityana North Constituency is the subject of Constitutional Petition No.08/2011 pending before this court.
That the decision of the 1st respondent canceling the applicant’s nomination has already been found to have been based on a vague letter by the High Court in Election Petition No.3/2011 Prof Semakula Kiwanuka v Electoral Commission.
That if the 1st respondent is allowed to implement the said decision by preventing the applicant from participating in the pending Parliamentary elections, which are held once every five years, the applicant will suffer irreparable injury and his pending petition in this court will be rendered nugatory, despite its high chances of success.
It is in the interest of justice that the respondent be prevented from implementing the decision canceling the applicant as a nominated candidate and preventing him from participating in the pending elections.
The application was supported by the affidavit of the applicant. The first respondent opposed the application by deponing an affidavit of Jennifer Angeyo, the Ag. Head legal. The second respondent filed no affidavit.
When the matter came before us, Mr Kyazze learned counsel for the applicant gave a brief background to the dispute. He stated that the applicant was nominated as a candidate by the first respondent to contest in the forthcoming Parliamentary elections. The nomination was challenged on the ground that the applicant had not resigned his job as Uganda’s ambassador to the United Arab Emirates. The first respondent heard the complaint and cancelled the applicant’s nomination. He filed an appeal against the said decision in the High Court to quash the decision. When the appeal came up for hearing the learned judge ruled that the letter which the first respondent relied on to cancel the nomination was vague and ordered for fresh evidence. The appeal is still pending.
Apparently the applicant was aggrieved by the proceedings in the High Court and he decided to file a constitutional petition in this court challenging the constitutionality of the proceedings in the High Court as well as the proceedings before the first respondent.
On the law applicable to applications seeking a temporary injunction Mr Kyazze submitted that the applicant has a prima facie case with the probability of success in the petition. He cited the case of Anifa Kawooya v Attorney General & another- Constitutional Petition No.42/2010 to support his argument. He claimed that the proceedings before the first respondent and the High Court violated the right to be heard. He relied on the case of Mayanja v Mugerwa- Constitutional Petition No.16/06 for that contention. He asserted that it is not within the mandate of the first respondent to hear and determine a complaint without credible evidence. He wondered whether the High Court on appeal can call for further evidence in order to justify the decision of the first respondent. He claimed that these are serious questions which have to be investigated by the Constitutional Court.
On irreparable injury which the applicant is likely to suffer if the first respondent is not restrained learned counsel submitted that elections are held once every five years and if he does not participate, this will lead to serious injury if he wins the petition.
He further stated that the balance of convenience is in favour of the applicant and it is in the interest of justice that the first respondent be restrained from implementing its decision.
In reply, Mr Mwasa learned counsel for the first respondent, submitted that the application has no merit and it ought to be dismissed with costs. He stated that courts over the years have pronounced themselves on the law governing the issuance of a temporary injunction. He stated that the applicant has not made out a prima facie case.
On balance of convenience, learned counsel submitted that the first respondent has already cancelled the applicant’s nomination and the court cannot grant an injunction in vain. It would cause greater inconvenience to the first respondent in terms of resources and tax payers’ money would be put to waste. He concluded that the applicant has failed to prove that he has a prima facie case with a probability of success and he prayed for the dismissal of the application with costs.
Mr Mwaka Senior State Attorney for the second respondent associated himself with the submission of counsel for the first respondent.
We accept the statement of the law stated by counsel for both parties as it applies to applications for a temporary injunction. The question to resolve is whether the applicant has made out a case on which this court can exercise its discretion and grant the orders sought.
There is no dispute on the facts before us that the applicant filed an appeal in the High Court against the decision of the first respondent canceling his nomination as a candidate for Mityana North Constituency and the appeal is still pending. The constitutional petition which the applicant filed in this court is challenging the acts of the first respondent and the High Court and the manner the two bodies handled the matter before them. He is claiming that the acts complained of violated the right to be heard. This, in our considered opinion does not raise serious issues for consideration by the Constitutional Court. On a full consideration of the facts, the law and the authorities that have been cited to us, we are not satisfied that the applicant has made out a case on which this court can exercise its discretion to grant the orders being sought.
The application lacks merit and is accordingly dismissed with costs to the respondents.
Dated at Kampala this…16th ...day of…February….2011
A.E.N.Mpagi-Bahigeine
Deputy Chief Justice
C.K.Byamugisha
Justice of Appeal
M.S.Arach-Amoko
Justice of Appeal