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WHAT EXACTLY DID JUSTICE MUSA SEKANA SAY IN THE KIBALAMA-NUP RULING?

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By Mulengera Reporters

It’s clear from the vey conspicuous mistakes and typos therein that Justice Musa Sekana’s judgment into the Moses Nkonge Kibalama claim or application (seeking to oust Robert Kyagulanyi Sentamu as the party President for NUP) was most likely written in a haste (without adequate preparation and proof-reading going into the same). In his 12 page judgment, Justice Sekana sought to resolve three issues which were agreed upon by the parties namely: whether the applicants (originally) Basil Difali and Hassan Twala, (later joined by) Moses Nkonge Kibalama and Paul Ssimbwa Kagombe had the locus standi to be the ones legally qualified to be aggrieved to bring up the complaint.

The other dispute for resolution before court was whether the circumstances or manner in which the party name was changed from NURP to NUP breached provisions of the party constitution or any other national laws relating to management of political parties. And finally, the judge had to make a finding on whether the current NUP/party President Kyagulanyi had properly assumed leadership of the party along with other top executive committee members (Flavia Kalule Nabagabe, David Lewis Rubongoya, Aisha Kabanda, Joel Senyonyi, Treasurer Benjamin Katana, Fred Nyanzi etc). The respondents as ineptly sued by the Kibalamas were the most unlikely allies (on any day) namely Kyagulanyi & Co, the much-bashed Simon Byabakama EC (represented by Principal Election Officer Samuel Kiyingi’s affidavit evidence) and the Attorney General (represented by Wanyama Kodoli’s affidavit evidence).

 

Justice Musa Sekana meets Museveni on the day of his inauguration as a Justice of the High Court. It’s a picture that trended as the Kyagulanyi diehards anxiously waited for the ruling in the now settled Kibalama case.

The same being a very unprecedented case or dispute, many legal scholars expected a richly-written judgment that could potentially enrich the country’s jurisprudence around the issue of political party management; change of leadership, name and symbol. Perhaps because of the ineptness with which the applicants’ lawyers prosecuted their case, Justice Sekana avoided going into many substantive things and instead dismissed the application largely on technicalities including failure to comply with procedural rules of bringing such a matter to court. The Judge from Butambala faulted the applicants for being vague regarding the procedure under which their claim was brought to court.  Agreeing with the respondents’ lawyers, Justice Sekana majorly faulted the applicants for failing to bring their complaint within the stipulated time.

 

Referencing on the remedies sought (injunctions, declarations & other orders), the judge concluded this was a matter that should ordinarily have come to court under of judicial review which one must bring to temple of justice within 3 months of aggrievement and not after a whole year as the Kibalamas did (things complained of happened in June 2019 yet they waited up to 24th August 2020). Justice Sekana concluded that such “inordinate delay” would only result from lack of “genuine grievances” against Kyagulanyi’s alleged wrongful actions and omissions. The judge, subsequently makes no finding about the Kibalamas’ wild claims regarding the circumstances under which the party name or even symbol changed and the 14th July 2020 delegates’ conference (whose authenticity the applicants had disputed).

 

Justice Sekana, formerly a very successful lawyer in private practice and LDC lecturer, concludes that the applicants could only have been motivated by desire to make “money during the election season” on top of merely seeking publicity and relevancy. The judgment, which many expected to guide and even form precedent on future resolution of similar intra-party disputes, doesn’t elaborate much on this finding. The judge, who says it was hard to tell whether the matter was about Constitutional interpretation or seeking enforcement of rights therein, further holds that the Kibalamas lacked the “clean hands, clean mind, clean heart and clean objective” as expected of any litigant coming to court under the famous maxims of equity. Instead the judge rebukes the applicants for seeking to take advantage of the permissive constitutional and other legal provisions before reflecting on the respondent lawyers’ submissions that the Kibalamas only came to court “in exploration of [cashing] on a remedy.”

The judge also likens the Kibalamas’ claim to a mere “amorphous document” into which the applicants didn’t put much thought or even preparation. For trivializing what otherwise should have been a serious matter casually like that, the judge condemned them to costs too whose realization or recovery Kyagulanyi’s spokesman Joel Senyonyi says will boost NUP’s fundraising efforts. Dismissing the entire application as “misconceived and frivolous,” the judge asserted that not to rule or find against such applicants would be to have courts work against “social interest and the public good.”

(For comments on this story, call, text or whatsapp us on 0705579994, 0779411734, 0200900416 or email us at mulengera2040@gmail.com).

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