Centre for Constitutional Governance (CCG) and 2 Others v Uganda Communications Commission and 2 Others (Miscellaneous Cause 152 of 2019) [2024] UGHCCD 128 (22 January 2024)

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

(CIVIL DIVISION)

# **MISCELLANEOUS CAUSE NO.152 OF 2019**

1. CENTRE FOR CONSTITUTIONAL GOVERNANCE (CCG)

#### 2. STRATEGIC RESPONSE INTERNATIONAL (SRI) $10$

3. ABONEKA MICHAEL ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

- 1. UGANDA COMMUNICATIONS COMMISSION - 2. GODFREY MUTABAZI - ATTORNEY GENERAL :::::::::::::::::::::::::::::::::::: 15

# **BEFORE: HON. JUSTICE ESTA NAMBAYO**

#### **RULING**

The Applicants, Centre for Constitutional Governance (CCG), Strategic Response International (SRI), Aboneka Michael (hereinafter referred to as the 1<sup>st</sup>, 2<sup>nd</sup> and 3<sup>rd</sup> Applicants respectively) brought this application under **Articles 20, 28, 29, 40, 41, 42, 44,** $20$ 50 (2) of the 1995 Constitution of Uganda, Sections 14, 33, 36 of the Judicature Act, Cap.13 as amended, Section 98 of the Civil Procedure Act, Cap. 71 and Rules 3, 6, 7, 8 of the Judicature (Judicial Review) Rules, 2009 against Uganda Communications Commission, Godfrey Mutabazi and the Attorney General (hereinafter referred to as the $1<sup>st</sup>$ , $2<sup>nd</sup>$ and $3<sup>rd</sup>$ Respondents respectively), seeking for: -

- $\overline{25}$ - 1. A declaration that the directives of the 1<sup>st</sup> Respondent (UCC) in its letter dated 30<sup>th</sup> April, 2019 under reference number OED/181 to thirteen media houses; Akaboozi FM, BBS TV, Beat FM, Bukedde TV, Capital FM, CBS FM, Kingdom TV, NBS TV, NTV, Pearl FM, Salt TV, Sapeintia FM and Simba FM directing suspension of their staff is ultra vires, illegal, arbitrary, unfair and a breach of

**the fundamental right to be heard and that the same is an abuse of law and null and void.**

- **2. A declaration that the acts of the 2nd Respondent are abuse of statutory powers as he is acting beyond his mandate contrary to the law (sections 16 & 17 of the** 35 **Uganda Communications Act, 2013).** - **3. A declaration that the 2nd Respondent's acts of directing suspension of Journalists, demanding for their qualifications and calling for their disciplinary actions against them are unfounded in law and are a usurpation of the powers of the Board of the Commission and that of the Media Council as opposed to** 40 **the law (section 15 of the Uganda Communications Act and Section 8 of the Press and Journalist act cap 105) respectively.** - **4. A declaration that the 2nd Respondent's acts of probing, sanctioning and taking lead of investigations by himself against the Journalists without following due process of law that requires a committee or person to be appointed to make** 45 **inquiries into any issues is an abuse of statutory power contrary to the law. (Part VIII of the Uganda Communications Act, 2013)** - **5. An order for certiorari quashing all the directives of the 1st Respondent issued by the 2nd Respondent contained in letters of suspension and investigation respectively above as they are ultra vires and violate the fundamental right to** 50 **a fair hearing and right to practice one's profession.** - **6. A declaration that the continuous arbitrary switching off of various radio stations under the watch of the 1st Respondent without due process across the country, whenever some members of the Public appeared for talk shows, is neglect of its sole duty as a regulator and an abuse of process of law and** 55 **violation of fundamental rights to freedom of expression, opinion, information, fair hearing and right to practice one's profession** - **7. An order of mandamus compelling the 1st respondent and the President and Minister for Information Communication and Technology represented by the 3rd Respondent (Attorney General) to Constitute a TRIBUNAL as enjoined by the** 60 **law. (Section 60 of the Uganda Communications Act,2013)**

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- **8. An order for mandamus compelling the Minister for Information, Communication and Technology (ICT) represented by the 3rd Respondent to appoint members of the Media Council to wit; two (2) distinguished scholars in Mass Communication and Nominate two (2) members of the Public as mandated** 65 **by the law under sections 8(b), 8(e) and (i) of the Press and Journalist Act Cap 105 respectively.** - **9. A declaration that the continuous acts of the 2nd Respondent above are an abuse of law and usurpation of powers of the Media Council contrary to the law and amount to an abuse of office by the 2nd Respondent and that he should be held personally liable for all the violations and abuse of due process by the 1st** 70 **Respondent.** - **10. An order of prohibition and/or permanent injunction restraining the 1st and 2nd Respondent from suspending staff of media houses, allowing arbitrary switching off radio stations under its watch without following due process of law and** 75 **according them a fair hearing.**

### **11. Costs of the Application.**

The grounds for this application are premised on the affidavit of Bwowe Ivan but briefly are that: -

- **1. This application is brought in public interest to defend freedoms of expression,** 80 **opinion, media and information and a right to practice one's profession.** - **2. The 1st Respondent's Acts are ultra vires and an abuse of office and statutory powers by the 2nd Respondent as they are outside their legal mandate.** - **3. The failure by the President and the Minister of Information, Communication and Technology to appoint and constitute members of the Uganda Communications Tribunal to handle matters arising from the acts of the 1st** 85 **and 2 nd Respondents is neglect of law and due process.** - **4. The failure by the Minister of Information, Communication and Technology represented by the 3rd Respondent to fully constitute the Media Council by appointing and nominating the members as prescribed by the law is an abuse** 90 **of law and due process.**

- **5. The acts of the 2nd Respondent amount to usurpation of powers of the board and that of the Media Council as obliged by the law and are therefore illegal and a nullity.** - **6. The 1st Respondent's acts of neglecting its sole mandate and duty as a regulator** 95 **while the arbitrary switching off of radio stations across the country happened without any due process of law and fair hearing is an abuse and neglect of mandate of law and principles of natural justice.**

# **7. It is just and equitable that orders sought are granted.**

The Respondents filed affidavits in reply opposing this application.

## 100 **Brief background to the application.**

The brief background to this case is that on the 30th April, 2019, the 1 st Respondent issued a letter to the Managing Director, NBS TV titled **"REPEATED BREACH OF THE MINIMUM BROADCASTING STANDARDS".** The Applicants have now filed this application seeking for declarations that this directive is illegal, ultra vires and abuse of the law.

### 105 **Representation**

Learned counsel Michael Aboneka represents the Applicants while Learned Counsel Rita Ssekadde Zaramba was for the 1st & 2nd Respondents and Learned State Attorney Brian Musota was for the 3 rd Respondent. Written submissions were filed as directed by Court. Issues for determination are as follows: -

# 110 **1. Whether or not the Applicants have sufficient grounds for Judicial Review**

- **2. Whether or not the failure by the President and the Minister of Information Communication Technology to appoint and constitute the Media Council by appointing and nominating the members as prescribed by the law is an abuse of law and due process.** - 115 **3. Whether or not the failure by the Minister of Information Communication and Technology to fully constitute members of the Uganda Communications Tribunal to handle matters arising from the acts of the 1st and 2nd Respondents is a neglect of law and due process.** - **4. Whether or not the Applicants are entitled to the remedies prayed in the** 120 **application.**

In their submissions, Counsel for the Respondents raised 5 preliminary objections on grounds that;

i. The applicants have no locus standi to make this application.

- ii. The applicants brought this application on behalf of NBS TV, Akaboozi FM, BBS TV, 125 Beat FM, Bukedde TV, Capital FM, CBS FM, Kingdom TV, NBS TV, NTV, Pearl FM, Salt TV, Sapeintia FM and Simba FM without obtaining a representative order. - iii. There is no decision in this case. - iv. The application is stale and the time for rendering a decision has since lapsed. - v. The applicants have contrary to Rule 7A (1) (b) not exhausted alternative remedies

130 available under the law before lodging this application.

## **Determination of the preliminary objections**

**Preliminary objection No.1: The applicants have no locus standi to make this application.**

#### **Submissions for the Respondents**

Counsel for the 1 st & 2nd Respondents agreed with the submissions of Counsel for the 3rd 135 Respondent that the applicants have not demonstrated sufficient interest in the decision which is the subject of this application as required by Rule 3A of the Judicature (Judicial Review) Rules, 2009 (Statutory Instrument 11 of 2009). That according to Osborn's concise law dictionary, 11th Edition, Sweet & Maxwell, locus standi means a place of standing, the 140 right to be heard in court proceedings.

Counsel explained that a person found to have no locus standi will ordinarily not have standing to bring an action and the courts cannot hear his/her complaint and therefore, no application for Judicial review should be made unless the applicant has sufficient interest in the matter to which the application relates. He relied on Article 42 of the Constitution 145 which, according to Counsel gives the right to apply to court to only those persons whose right to be treated fairly by an administrative body has been violated. He also referred this court to the case of **Hon. Abdul Katuntu & Anor –v- MTN (U) Limited & Ors, HCCS No. 248 of 2012.**

- 150 Counsel contended that locus standi may be considered as applicable to two groups of applicants; the individuals & pressure groups. That where interest or pressure groups such as the Applicants are concerned, the issue of locus standi is more complicated especially where the group has been formed simply to challenge a decision which does not directly concern its members. That in such a situation, the group will not have sufficient standing, - 155 but if a group can demonstrate that some or all its members are personally interested in the decision, locus standi will be found. He referred court to the case of **R –v- Secretary of State for Environment Exparte Rose Theatre Trust [1990] 1 QB 504** and **R –v- HM Inspectorate of Pollution exparte Greenpeace Ltd No. 2 [1944] 4 ALL ER 329**. - Counsel submitted that in the instant application, none of these aspects have been 160 demonstrated by any of the Applicants. That there is no explanation of any connection between the Applicants and the request for information which the ED UCC made to the Managing Director, NBSTV. That the applicants are mere busy bodies who do not deserve to be heard. He prayed that this Court finds that the Applicants have no locus standi to file this application and this court be pleased to strike out this application with costs.

# 165 **Applicant's submissions in reply**

In reply, the Applicants submitted that the 1st and 2nd Applicants are organizations working to promote the rule of law, human rights and good governance and not pressure groups as referred to by the 3rd Respondent. That the two were founded in 2011 and incorporated in 2017 respectively and their work is anchored under Article 38 (2) and Objective II of the

170 **National Objectives and Directive Principles of State Policy** and as such, they are rightly before this court.

That the 3 rd Applicant is a citizen of Uganda, a lawyer by profession, an advocate practicing in the areas of rule of law, democracy and human rights and has the firm belief that it is his right to defend the Constitution of Uganda and therefore comes to this court because

175 he believes that the matters before court are of great public interest and therefore possesses sufficient interest. Counsel relied on **Article 29 (1) (a) & 50** of the 1995 Constitution of Uganda.

Counsel explained that the Applicants brought this Application under **Article 50(1) (2)** 0f

- 180 the Constitution of Uganda whose framing/wording gives any person or organization leeway to bring an action against violation of another person's human right. That it is the claim of the Applicants that the Respondents violated the right to fair hearing, the decision process was tainted with illegality and the right to expression thereby causing a threat to the media and information contrary to **Articles 29, 41, 42** of the constitution and therefore - 185 the Applicants possess sufficient interest in this matter. Counsel prayed that this objection be overruled so that the matter is heard on its merits for Judicial Review.

### **Analysis**

**Rule 7A (1) of the Judicature (Judicial Review) (Amendment) Rules, 2019,** enjoins Courts in considering applications for judicial review to satisfy themselves that: -

190 (a) the application is amenable for judicial review,

(b) the aggrieved person has exhausted the existing remedies available within the public body or under the law and;

#### (c) the matter involves an administrative public body or official among others

Counsel for the Respondents submitted that the Applicants have no locus standi to file 195 this application because the Applicants have not demonstrated sufficient interest in the decision which is the subject of this application as required by Rule 3A of the Judicature (Judicial Review) Rules, 2009 (Statutory Instrument 11 of 2009).

Rule 3A of the Judicature (Judicial Review) (Amendment) Rules, 2019, provides that any person who has a direct or sufficient interest in a matter may apply for judicial review. 200 The question regarding what amounts to direct or sufficient interest in judicial review has not been defined by the rules but a number of court decisions have come up with a test as to what amounts to "direct or sufficient interest". In the case of **Advocates for the People (AFP) & Musa Muhamad Kigongo -v- National Drug Authority & Jena Herbals HCMA No.209 of 2021**, it was stated that; -

205 "it is the duty of courts to protect the scarce state resources and the overburdened court system by ensuring that litigants who appear in court in matters of judicial Review have direct or sufficient interest to come to court. Precious resources would be wasted on adjudication and defence of claims if mere busy bodies could challenge every minor or alleged minor infraction by the state or public officials. Without sufficient interest threshold

210 for standing the flood gates will open, inundating the courts with vexatious litigation and unnecessary court disputes."

Similarly, in the case of **Community Justice and Anti-Corruption Forum -v- Law Council and Ssebalu Lule Advocates HCMA No.338 of 2020**, Court noted that; -

- "In particular, a citizen's concern with legality of government action is not regarded as 215 interest that is worth protecting itself. The complainant must be able to point out to something beyond mere concern with legality; either a right to factual interest. Judicial review applications should be more restrictive to persons with direct and sufficient interest and should not be turned into class actions or actions popularis which allow any person to bring an action to defend someone else's interest under Article 50 of the Constitution." - 220 In **Ben Muhumuza -v- Attorney General & Others, HCMC No.212 of 2020**, it was held that the interest required by law is not a subjective one; the court is not concerned with the intensity of the applicant's feelings of indignation at the alleged illegal action, but with objectively defined interest. Strong feelings will not suffice on their own although any interest may be accompanied by sentimental considerations. Every litigant who approaches - 225 the Court, must come forward not only with clean hands but with a clean mind, clean heart and with clean objective. The learned judge further stated that in order to sustain an action on account of public interest in judicial Review application, the applicant must fulfill either of the two elements namely; that the matter before court has such a real public significance that it involves a public right and an injury to the public interest; or that he/she has 230 sufficient interest of his or her own over and above the general interest of other members of the public.

In this case, counsel for the Applicants submitted that the 1st and 2nd Applicants are organizations working to promote the rule of law, human rights and good governance while the 3rd Applicant is a citizen of Uganda, a lawyer by profession, an advocate of rule

235 of law, democracy and human rights and has a firm belief that it is his right to defend the Constitution of Uganda.

It is my view that it is not enough for the Applicant to say that he is a Human Rights Advocate and he therefore seeks to challenge the legality of the Respondents actions. Being a Human Rights practitioner per se does not demonstrate sufficient interest within 240 the meaning of Rule 3A of the Judicature (Judicial Review) (Amendment) Rules, 2019. It is

my understanding that the direct or sufficient interest referred to under the above provision

of the Amendment Rules must be objective. I'm fortified by the holding in the case of **Ben**

**Muhumuza -v- Attorney General & Others, (supra),** that; "court is not concerned with the intensity of the applicant's feelings of indignation at the

- 245 alleged illegal action, but with objectively defined interest. Strong feelings will not suffice on their own**." (underlining is mine for emphasis).** In view of the above, I find merit in this preliminary objection, which I do hereby uphold and dismiss this application from court with costs. I so order. - **Dated, signed and delivered by mail at Kampala this 22nd** 250 **day of January, 2024.**

**Esta Nambayo JUDGE**

**22nd /1/2024.**