Mabirizi Kiwanuka v Deputy Speaker of Parliament and Another (Misc Cause 33 of 2023) [2024] UGHC 416 (31 May 2024)

Full Case Text

#### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT MBALE

#### MISCELLANEOUS CAUSE NO.033 OF 2023

### **MALE H. MABIRIZI K. KIWANUKA** ....................................

#### **VERSUS**

## 1. DEPUTY SPEAKER OF PARLIAMENT

# 2. ATTORNEY GENERAL OF UGANDA ::::::::::::::::::::::::::::::::::: **BEFORE: HON. JUSTICE LUBEGA FAROUQ**

### **RULING**

#### 1. Introduction

- 2. This application was brought under Paragraph 1, 26, 29(a) & (f) of the National Objectives & Directives Principles of State Policy, Articles 8A, $17(1)(i)$ , $20(1)$ , $29(1)$ (a), (b), (d) & (e), $29(2)(a)$ , $38(1)$ , $43(2)$ , $139(1)$ , $212$ , 213(4) & 221 of the Constitution, section 33, 36(1) & (2) & 39 of the Judicature Act, section 3 of the Judicature (Amendment) Act, 2002, Rules 1A(b), 3(a) & (c), 3A & 6, Judicial Review Rules, 2009, as amended 2019 for orders and declarations that- - (a) A declaration doth issue that on 12th October 2023, the decision of the Deputy Speaker and/or Parliament of Uganda to refer Hon. Zaake Francis Butebi to the Committee on Rules, Privileges and Discipline over alleged vulgar/defamatory abuses against Hon. Juliet Kinyamatama was illegal, procedurally improper, irrational and ultra vires beyond the functions and powers of the Deputy Speaker and or Parliament of Uganda; - (b) An order of Certiorari quashing the decision of Deputy Speaker and/or Parliament of Uganda to refer Hon. Zaake Francis Butebi to the Committee on Rules, Privileges and Discipline over alleged Vulgar/defamatory abuses against Hon. Juliet Kinyamatama; - (c) An order of Prohibition, prohibiting Parliamentary Committee on Rules, privileges and Discipline or any other Committee of Parliament from carrying out any investigations against Hon. Zaake Francis

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Butebi over alleged vulgar abuses against Hon. Juliet Kinyamatama on the basis of the decision of Deputy Speaker and/or Parliament of Uganda;

- (d) A permanent injunction restraining Parliamentary Committee on Rules, Privileges and Discipline, entire Parliament or any other Committee from carrying out any investigations against Hon. Zaake Francis Butebi on the basis the decision of Deputy Speaker and/or Parliament of Uganda; - (e) General, aggravated and exemplary damages to be paid to the Applicant for inconveniences caused. - 3. This application is supported by the affidavit sworn by the Applicant and the grounds are briefly that- - (a) On 12th October 2023, the Deputy Speaker and/or Parliament of Uganda referred Hon. Zaake Francis Butebi to the Committee on Rules, Privileges and Discipline over alleged vulgar abuses against Hon. Juliet Kinyamatama; - (b) The Deputy Speaker came and proceeded with a pre-meditated mind that the video in which Hon. Zaake Francis Butebi allegedly made vulgar abuses against Hon. Juliet Kinyamatama was very bad; - (c) Hon. Zaake Francis Butebi was not heard before making the decision to refer him to Parliamentary Committee in Rules, Privileges and Discipline; - (d) The said decision was illegal, procedurally improper, irrational and ultra vires beyond the functions and powers of Parliament and/or Deputy Speaker; - (e) The Applicant has sufficient interest in good governance of Uganda, Democracy, rule of law and free Political Space in Uganda - (f) It is fair and equitable that the Application is allowed. - 4. The Application was opposed by James Mukaga, Principal Assistant Clerk to Parliament. In his affidavit in reply briefly averred that- - (a) The application as presented and filed against the $1st$ Respondent is incompetent;

- (b) The Applicant does not possess sufficient interest to institute this matter; - (c) This application is premature, misconceived devoid of any merit, frivolous, and the same ought to be dismissed with costs; - (d) The application is brought in bad faith and is only intended to curtail the on-going proceedings of the Parliamentary Committee on Rules, Privileges and discipline from executing its mandate under Rule 175 of the Rules of Procedure of Parliament; - (e) It is within the interest of natural justice that the allegations made against Hon. Zaake by Hon. Kinyamatama are investigated by the Committee on Rules up to their logical conclusion; - (f) The Rules of Procedure of Parliament enjoins the speaker or Deputy Speaker of Parliament to manage the internal proceedings of Parliament with a wide latitude or discretion on the application of the Rules of Procedure including deciding the questions of order and procedure that arise on the floor of the House; - (g) That during the $3^{rd}$ session of the $2^{nd}$ meeting of the $11^{th}$ Parliament on $12^{th}$ October 2023, while reacting to the Deputy Speaker's communication, Hon Juliet Kinyamatama rose on the point of procedure and informed the House that there was a video recording of Hon. Zaake Francis using defamatory and demeaning words to describe her; - (h) The speaker thereafter put a question to the House on whether the video should be played in the House which was agreed to; - (i) The Speaker thereafter directed that video recording be played in the House; - (j) After the video was played, the speaker referred the matter to the committee on Rules, Privileges and Discipline under Rule 175 of the Rules of Procedure of Parliament; - (k) The matter which was being considered was a matter of discipline and under the Rules of Procedure of Parliament, the Speaker has the

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power to refer a matter of discipline to the Committee on Rules, Privileges and Discipline;

- (1) Whenever a matter is referred to a Committee for investigation, the Committee conducts its proceedings in a quasi-judicial manner and affords all persons appearing before it ample opportunity to present their cases; - The Committee on Rules has already issued letters of invitation to $(m)$ Hon. Francis Zaake to appear before it in relation to the complaint raised by Hon. Ssuubi Juliet Kinyamatama; - (n) The Committee on Rules will accord Hon. Zaake sufficient time to be heard and his right to a fair hearing will be observed by the Committee; - (o) After the investigations, the Committee on Rules will report its findings to the House for debate and final decision by the House.

# 5. Legal Representation

6. The Applicant represented himself. The 1st Respondent was represented by Counsel Simon Peter Waiswa and the 2nd Respondent was represented by Counsel Joshua Sserugendo.

# 7. Submissions

- 8. This application proceeded by way of written submissions. Court gave parties directions and they both complied. - 9. However, before I delve into the merits of this application, the Respondents raised preliminary objections in their submissions and affidavit in reply. I will handle the preliminary objections first as below-

## Whether the Applicant has locus standi or sufficient interest to 10. bring this application?

Counsel for the Respondents cited Rule 3A of the Judicature (Judicial 11. Review) (Amendment) Rules, 2019 to submit that the affidavit in support does not show that the Applicant has a direct or sufficient interest in the matter. He referred to paragraph 2 of the affidavit in support where the Applicant deponed that he has sufficient interest in good governance of Uganda, rule of law and free political space in Uganda

- Counsel submitted that the test for determining whether a person has a 12. direct or sufficient interest is a subjective one. He argued that concern of the citizen on the legality of government action is not sufficient. He cited Muhumuza Ben V. Attorney of Uganda & 2 Others High Court **Miscellaneous Cause No. 212 of 2020**, where court held that "any citizen who is no more than a wayfarer or officious intervener without any interest or concern beyond what belongs to anyone of the citizen in this country; the door of the court will not be ajar for him. But if he or she belongs to an organization which has special interest in the subject matter, if he has some concern deeper than that of a busy body, he cannot be locked out at the gates of the temple of justice". - 13. Following the above authority, counsel submitted that the Applicant only states that he has sufficient interest in the good governance of Uganda, the rule of law and free political space in Uganda and under paragraph 3 of the affidavit in support of the application, the Applicant stated that; "he was at parliament where he had gone to among others, serve upon the Parliamentary Commission his Notice of Appeal in the High Court Vide Civil Division Misc. Cause No. 216 of 2021 Male H. Mabirizi Kiwanuka V. Attorney General and the Parliamentary Commission". - In the view of the above quoted averment, counsel argued that the $14.$ Applicant was just a passerby whose attention was not on the proceedings in the House. He submitted that the Applicant does not therefore prove that he has interest over and beyond the general interest of other members of the public. - 15. Counsel further submitted that according to the averments, the Applicant's claim is seeking to protect his own interest and yet Hon. Zaake Francis whose rights the Applicant seeks to protect is capable of suing on his own behalf to protect his rights. He cited **Male H. Mabirizi Kiwanuka** V. Uganda Revenue Authority, Misc Cause No. 84 of 2021. - 16. In rejoinder the Applicant cited the case of Male Mabirizi V. Attorney General, High Court Civil Division Misc. Application No. 194 of 2021 to submit that he has sufficient interest in the matter.

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#### 17. **Analysis of court**

18. 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." (the outlined emphasis is mine)

- 19. In Halsbury's Law of England/ Judicial Review Volume 61A (2023) it was stated that- "claimants must show that they have sufficient interest (also referred to as standing or locus standi) to which the Application relates, in order to bring proceedings for judicial review." - In Judicial Review of Administrative Action by De Smith, Woolf and 20. **Jowell at p 111** it is indicated that "sufficient interest is given a generous" $\mathbf{J}$ interpretation by the courts so that they assess the extent of the applicant's interest against all the factual and legal circumstances of his application". - In R v State President & Anor. (None) [2015] MWHC 439 (11 January 21. **2015**), It was stated that- "An applicant in a judicial review proceeding must have "sufficient interest" in the matter. The purpose is to exclude the so called *busy bodies*. There must be a direct or personal interest" - In the present case the Applicant under paragraph 2 of the affidavit in 22. support stated that; "I have sufficient interest in good governance of Uganda, democracy, rule of law and free political space in Uganda." - As it is already showed in the authorities above cited, a party who does 23. not have any direct or personal interest in an action for judicial review, will not be allowed to commence the same in court in the absence of such direct or personal interest. The purpose of this principle is to ensure that the gates of justice remain open to parties who are directly and substantially affected and to save courts from being overloaded with unwarranted cases. - The Applicant has therefore not shown sufficient or direct interest to 24. enable him bring this action against the Respondents, since he not a member of parliament neither has he adduced any evidence to prove he is a voter in the constituency of Hon. Zaake Francis. - Be the above as it may, it is also important to note that the grounds of 25. this application arose in Parliament situate in Kampala. This would

therefore imply that High Court of Uganda at Kampala, Civil Division would have been the most appropriate forum to handle this matter.

In the circumstance, the preliminary objection raised herein disposes off 26. the entire application and it is dismissed with costs to the Respondents.

I so order.

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Delivered via e-mail on 31st day of May 2024