Muhwezi & 3 Others v Makerere University Council & 2 Others (Miscellaneous Cause 198 of 2022) [2024] UGHCCD 61 (19 April 2024)

Full Case Text

#### THE REPUBLIC OF UGANDA

#### IN THE HIGH COURT OF UGANDA AT KAMPALA

# (CIVIL DIVISION)

#### MISCELLANEOUS CAUSE NO. 198 OF 2022

- 1. MUHWEZI JOSHUA - 2. NAMBASSA SHAMIM $10$ - 3. LUYOMBYA KELVIN JOSHUA - 4. KABUULWA MUZAFALUH::::::::::::::::::::::::::::::::::::

#### **VERSUS**

- 1. MAKERERE UNIVERSITY COUNCIL - 2. LORNA MAGARA $15$

# 3. PROF BARNABAS NAWANGWE :::::::::::::::::::::::::::::::::::: **BEFORE: HON. JUSTICE ESTA NAMBAYO**

#### **RULING**

Muhwezi Joshua, Nambassa Shamim, Luyombya Kelvin Joshua and Kabuulwa Muzafaluh (hereinafter referred to as the 1st, 2nd, 3rd and 4th Applicants respectively) $20$ filed this application under Article 42 of the 1995 Constitution, S. 36 (1), 37 and 38 of the Judicature Act, Rule 3 (1) (a), 6 (1) of the Judicature (Judicial Review) **Rules, 2009 and the schedule thereto, against Makerere University Council, Lorna** Magara and Prof. Barnabas Nawangwe (hereinafter referred to as the 1st, 2nd and 3rd

- Respondents respectively), seeking for: - $25$ - 1. A Declaration that the Suspension of the 88th Students Guild elections, Student's Guild, Caretaker Government and Senior Common Room by the 1st Respondents' agents and the 2nd Respondent is/was unfair, illegal and contrary to the 1995 Constitution, the Universities and Other Tertiary Institutions Act, 2001 and the Makerere University Student's Guild Constitution as amended. - 2. A Declaration that the actions of the $1st$ Respondent's agents and the $3rd$ Respondent to suspend a one Namwoza Sulaiman- the speaker for Lumumba Hall from the University is/was unfair, illegal and contrary to the 1995

- 35 **Constitution, the Universities and Other Tertiary Institutions Act, 2001 and the Makerere University Student's Guild Constitution as amended.** - **3. A Declaration that the actions and processes of reviewing and amending the Makerere University Student's Guild Constitution by the Respondents and/or their agents 'without involving the student's community is/was unfair, illegal** 40 **and contrary to the 1995 Constitution, the Universities and Other Tertiary Institutions Act 2001 and the Makerere University Student's Guild Constitution as amended.** - **4. A Declaration that the proceedings, reports, recommendations and/or resolutions by the Respondents to amend the Makerere University Students'** 45 **Guild Constitution is unfair, illegal and contrary to the 1995 Constitution, the Universities and Other Tertiary Institutions Act, 2001 and Makerere University Student's Guild constitution as amended** - **5. A Declaration that the act of calling, holding emergency meetings, meetings, passing resolutions and implementing them by the Respondents and/or their** 50 **agents without involving the students' leadership or community is unfair, illegal and contrary to the 1995 Constitution, the Universities and Other Tertiary Institutions Act, 2001 and Makerere University Student's Guild constitution as amended.** - **6. An Order of Certiorari quashing the suspension of the of the 88th Students** 55 **Guild elections, Student 's Guild, caretaker government and senior common room by the 1st Respondents' agents and the 2nd Respondent.** - **7. An Order of Certiorari quashing the suspension of a one Namwoza Sulaimanthe speaker for Lumumba Hall from the University by the 1st Respondents' agents and the 3rd Respondent.** - 60 **8. An Order of Mandamus directing the Respondents, its agents or persons acting under them to commence, conduct and conclude the process of the guild elections.** - **9. A Permanent Injunction restraining the Respondents from enforcing the impugned suspension orders.** - 65 **10. An Order for general, exemplary and punitive damages for the inconvenience, anxiety, embarrassment and mental stress.** - **11. An Order that the Respondents, jointly and severally pay the Applicants the costs of this Cause.**

- 70 The grounds of this application are set out in the affidavit in support of the application sworn by Muhwezi Joshua but briefly are that: - - **1. The 1st Respondent is the employer of the 2nd and 3rd Respondents and is mandated under the Universities and Other Tertiary Institutions Act, 2001, to represent the university in all legal suits against the University.** - **2. The 2nd Respondent is the current Chairperson of the 1st** 75 **Respondent.** - **3. The 3rd Respondent is the current vice Chancellor of the 1st Respondent.** - **4. The Applicants are currently students of Makerere University and/or of the 1 st Respondent.** - **5. On the 14th of July 2022, while all students at Makerere University were engaging in last-minute campaigns ahead of their 88** 80 **th Guild Leadership Elections, a UCU student by the name of Betungura Bewatte lost his life after an unidentified assailant cut his throat with what is believed to have been a piece of broken glass.**

**6. The same evening on the 14th of July 2022, the 2nd Respondent issued a communication to the 3rd** 85 **Respondent by which she immediately and purportedly acting on behalf of the 1st Respondent suspended indefinitely the 88th Students Guild elections and also suspended immediately the Students Guild, Caretaker Government, and Senior Common Room.**

- **7. On the 15th July 2022, the 1st Respondent held an emergency meeting at** 90 **which, amongst others, the following resolutions were made:** - **i. The electoral process for the 88th Students Guild Leadership was terminated;** - **ii. The Students Guild, Senior Common Room, Caretaker Government, and all Guild Leadership Structures were suspended;** - 95 **iii. A Select Committee on Students' Guild Operations ("the Council Select Committee") was appointed to review the Students (Guild operations and in particular:** - **a) To conduct a complete review of the Guild Constitution;** - **b) To evaluate the internal processes of conducting Guild elections at the** 100 **University; and to address other incidental matters.** - **iv) The members of the Select Committee do not include any students.**

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- **v) The Select Committee was tasked with presenting to the University Council an interim report within one month.** - **vi) All physical guild elections at the University were banned and all future** 105 **elections will thus be virtual.** - **8. The Council Select Committee commenced its work and issued a public announcement in which it called for the views and advice of all stakeholders including staff and students.** - **9. Aggrieved and without leadership, students organized a virtual meeting to** 110 **discuss their predicament. It appears the meeting was organized by a student leader called Namwoza Sulaiman. Mr. Namwoza reported being intimidated by the 3rd Respondent's Personal Assistant for his role in organizing this meeting.**

**10. On the 29th July 2022, the students' virtual meeting was held and the** 115 **following resolutions were made amongst others:**

- **i) That the University Council should lift the suspension of the Guild and the electoral process;** - **ii) That elections should be purely physical;** - **iii) That the Vice Chancellor's Personal Assistant should cease intimidating** 120 **students; and** - **iv) That a Student Select Committee comprising amongst others, Namwoza Sulaiman (Speaker, Lumumba Hall), be appointed to follow up on the resolutions.** - **11. In seeming retaliation for his actions, Namwoza Sulaiman has since been suspended from the University by the 3rd** 125 **Respondent.** - **12. In any event, the Students Select Committee commenced the process of petitioning the 1st Respondent to reinstate the Guild Leadership and purposed to collect over 10,000 signatures.** - **13. The Petition was duly submitted to the 1st Respondent which in turn referred** - 130 **it to the Council Select Committee for consideration. In turn, the Council Select Committee invited the Students Select Committee for an interaction and promised to table their concerns before the Council. The Students Select Committee had also independently requested to meet the Council Select Committee.**

- **14. On the 19th August 2022, the 1st** 135 **Respondent held another special meeting whereat it resolved as follows:** - **i) To approve the Makerere University Students Guild Statute subject to the amendments proposed by Council;** - **ii) That the Students Guild Constitution be reviewed and the students shall** 140 **vote for a Constitutional Review Commission through universal suffrage in every college and hall of residence by the 27th August 2022;** - **iii) the intended Constitutional Review Commission shall comprise the following:** - **a. 2 representatives for each college (gender balanced);** - 145 **b. I representative for each male hall of residence;** - **c. 2 representatives for each female hall of residence;** - **d. 2 representatives from the Jinja campus (gender balanced); and** - **e. 2representatives of students with disabilities (gender balanced).** - **iv) The Constitutional Review Commission will commence work on the 5 th September 2022 and complete it by the 5** 150 **th October 2022. Thereafter, the election process for the Guild Leadership will start.** - **v) Once appointed, the Constitutional Review Commission will be the students' interim leadership.** - **vi) University Management will develop guidelines to streamline** 155 **accountability in Guild Finances for the Council to consider and will also develop a proposal for managing security at the University for the Council to consider.** - **vii) Council committed to investing in robust student leadership development.** - 160 **viii) Council accordingly approved a roadmap for the restoration of the students' leadership under which the electoral process for the 88th students' leadership will commence on the 6 th October 2022.** - **15. The Colleges and Halls are already inviting students for the nomination and voting of their representatives to the Guild Constitutional Review** 165 **Commission.**

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- **16. On several occasions, prior to the above events, the University Management attempted to cause amendments to the Guild Constitution through the internal student-led mechanisms but was not successful** - **17. As a result of the actions and/or omissions of the Respondents or their** 170 **Officials, the Applicants' leadership has been unfairly, unduly and illegally jeopardized.** - **18. The Applicants have suffered and continue to suffer mental stress, inconvenience, embarrassment and anxiety due to the actions and/or omissions of the Respondents or their Officials.** - 175 **19. It is in the interest of fairness, justice, democracy and good administrative practice that the suspension orders are quashed and set aside and a clear legal process of elections be commenced.**

The Respondents filed an affidavit in reply opposing this application.

# **Back ground to the application.**

The brief background to this application is that on the 11 th 180 July, 2022, while Makerere University students engaged in last minute campaigns ahead of their 88th Guild Leadership Elections, a student from Uganda Christian University was cut in the throat by an unidentified assailant and he died.

Following the incident, the 2nd Respondent being the Chairperson of the 1 st Respondent, 185 issued a communication suspending the elections, the students Guild, Caretaker Government and Senior Common Room indefinitely. The 1st Respondent then held an emergency meeting on the 15th July, 2022 and came up with several resolutions and also constituted a select Committee which was tasked carry out some duties and report back to the 1st Respondent. As the select Committee of the 1st Respondent carried on with its designated tasks, the 3rd 190 Respondent suspended Namwoza Sulaiman, the Speaker for Lumumba Hall, for alleged continued engaged in electoral activities and yet the 2nd Respondent had suspended them. The Applicants now claim to be aggrieved by the procedure that the Respondents used to arrive at the decision made by the 2nd Respondent in her capacity as chairperson of the 1st Respondent and the suspension of 195 Mr. Namwoza Sulaiman, hence this application.

# **Legal representation**

Learned Counsel Turyamusiime Geofrey represents the Applicants while Learned Counsel 200 Hudson Musoke together with Christine Anyango are for the Respondents. Counsel for the parties have filed written submissions as directed by court.

# **Issues set out for determination are as follows: -**

- a) Whether the suspension of the 88th Students' Guild Elections, Students' Guild, Caretaker Government and Senior Common Room by the 1st Respondent's agents and the 2nd 205 Respondent was lawful. - b) Whether the actions of the 1st Respondent's agents and the 3rd Respondent to suspend a one Namwoza Sulaiman, the speaker Lumumba Hall from the University was lawful. - c) Whether the actions and process of reviewing and amending the Makerere 210 University student's guild constitution by the Respondent's and/or their agents without involving the student's community was lawful. - d) Whether the proceedings, reports, recommendations and/or resolutions by the Respondents to amend the Makerere University Student's Guild Constitution were lawful. - 215 e) Whether the act of calling, holding emergency meetings, meetings, passing resolutions and implementing them by the Respondents and/or their agents without involving the students' leadership or community was lawful. - f) What remedies are available to the parties.

I will first establish whether this application is a proper case for Judicial Review under

220 **Rule 7A (1) of the Judicature (Judicial Review) (Amendment) Rules, 2019. Applicant's submission.**

Counsel for the Applicant submitted that Judicial Review is not concerned with the decision in issue but with the decision making process. That Judicial Review orders are discretionary in nature and that court is at liberty to grant them where there has been

225 violation of the principles of natural justice. He relied on the cases of **John Jet Tumwebaze –v- Makerere University Council & 2 Ors, MC No. 353 of 2005, DOTT Services Ltd –v- Attorney General, MC No. 125 of 2009, Balondemu David –v- the Law Development Centre, MC No. 61 of 2016**.

Counsel contended that for one to succeed under Judicial Review, he must prove that 230 the decision made was tainted either by illegality, irrationality or procedural impropriety.

That in this case, the Respondents being a public body and/or officers are subject to judicial review and the purpose is to test the legality of their decisions since they affect the public. He relied on the case of **Commissioner of Land –v- Kunste Hotel Ltd [1995- 1998] 1 EA (CAK)** where Court noted that: -

- 235 "Judicial review is concerned not with the private rights or the merits of the decision being challenged but with the decision making process. Its purpose is to ensure that an individual is given fair treatment by an authority to which he is being subjected." He further explained that the entire processes undertaken by the Respondents from the - suspension of the 88th Students Guild Elections, Students' Guild, Caretaker Government and Senior Common Room by the 1st Respondents' agents and the 2nd 240 Respondent, reviewing and amending the Makerere University Student's Guild Constitution by the Respondents and/or their agents without involving the student's community, the calling, holding emergency meetings, passing resolutions and implementing them by the Respondents were all unlawful and therefore null and void.

# 245 **Submissions for the Respondent.**

In reply, Counsel for the Respondent, while relying on the case of **Catherine Kanabahita –v- Makerere University & 2 Ors, MC No. 92 of 2014** submitted that the Applicants in this application complain about the decisions/actions of the Respondents that took place at various intervals. That the remedy of Judicial Review, under which this application is 250 grounded, can only be granted on three grounds namely; illegality, irrationality and procedural impropriety. That none of the grounds has been proved and as such, this court should find no merit in this application and dismiss it from court with costs.

#### **Analysis**

# **Under Rule 3 of the Judicature (Judicial Review) (Amendment) Rules 2019,** Judicial

255 Review means;

"…the process by which the High Court exercises its supervisory jurisdiction over the proceedings and decisions of subordinate courts, tribunals and other bodies or persons who carry out quasi-judicial functions or who are charged with the performance of public acts and duties;"

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

(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;

265 (c) the matter involves an administrative public body or official among others". In this case, the 1st Respondent is Makerere University Council.

**S. 23(1) of the Universities and Other Tertiary Institutions Act, (UOTIA), 2001 (as amended) provides that;**

"a University established under section 22 shall be a body corporate with perpetual

270 succession and a common seal and may sue or be sued in its corporate name and subject to this Act, may do all such things as bodies corporate may lawfully do." **(underlining is mine for emphasis)**

**S. 38. (1) UOTIA,** establishes a University Council for every Public University.

**Under S. 40(1) UOTIA,** the University Council is the supreme organ of the Public 275 University and is responsible for the overall administration of the objects and functions of the University.

S. 41. Provides for the powers of the University Council and under paragraph (a), the Council represents the University in all legal suits by and against the Public University.

My understanding of the above provisions of the law is that the powers given to the

- 280 University Council are majorly administrative within the Public University. This does not give the University Council Corporate Status under S. 23 of the UOTIA to sue and/or to be sued. I don't think that it was the intention of the law makers to give corporate status to both the University and the University Council. It would defeat logic to give corporate status to both the principal and the subordinate. Therefore, I find that the 1st Respondent - 285 was wrongly sued by the Applicants. The right body to sue or be sued is the body assigned corporate status by law, which is Makerere University and not Makerere University Council.

Be that as it may, I will still look at evidence presented against the 2nd and 3rd Respondents since in Judicial Review, the supervisory jurisdiction of the High Court also 290 covers proceedings and decisions of persons who are charged with the performance of public acts and duties (see rule 3 of the Judicature Act, 2019) (supra).

In **Kassibo Joshua –v- the Commissioner of Customs Uganda Revenue Authority HCMC No. 44 of 2002,** court noted that;

"Judicial review is concerned not with the decision but the decision making process. It 295 involves an assessment of the manner in which the decision was made. It ensures that the Public Powers are exercised in accordance with basic standards of legality fairness and rationality." In this case, the Applicants claim that the 2 nd Respondent exercised her powers wrongly when she suspended the 88th Students Guild Elections, the Students' Guild, Caretaker 300 Government and Senior Common Room, that the procedure undertaken by the Respondents to review and amend the Makerere University Student's Guild Constitution without involving the student's community was unlawful, null and void and that the 3rd Respondent unlawfully suspended Namwoza Sulaiman, the Speaker for Lumumba Hall. I would find, in view of the above, that this case is amenable to Judicial Review.

305 What this court has to establish now, is whether the Respondents' actions were unlawful, irregular and procedurally improper as claimed by the Applicants.

## **Applicants' submissions**

Counsel for the Applicants submitted on issues a, b, c, d and e jointly. He stated that the suspension of Makerere University Students' Guild, Guild Elections, Guild Caretaker Government and Common Room by the 2nd Respondent on the 14th 310 July, 2022 was high handed, biased and unlawful. That the 2nd Respondent did not have the power and mandate to suspend the guild structures and the student representatives on the 1st Respondent as she did as the law mandates her to only implement resolutions made by the 1st Respondent. Counsel relied on Sections 38, 39, 40 and 69 of the Universities and

- 315 Other Tertiary Institutions Act, 2001 (as amended) and emphasized that the actions to suspend guild structures and the student representatives (caretaker government) on the 1 st Respondent disregarded principles of natural justice as there was no fair hearing accorded to the suspended students. - Counsel further submitted that the 1 st Respondent held a meeting on the 15/07/2022 320 and constituted a select committee which was tasked to present an interim report to the 1 st Respondent without quorum as required under Section 42 (3) of the Universities and Other Tertiary Institutions Act, 2001. He explained that implementation of the said report's recommendations, the passing of the Makerere University Guild Statute, 2022, nomination of candidates to the Students Constitutional Review Committee and holding - 325 of Guild Elections were also unlawful. He averred that whereas the Respondents claim that the election was successfully held under paragraph 26 of their affidavit in reply, the procedure and eligibility of the successful candidates was questionable as the election was not consistent with the 2018 election guidelines given that majority of the members were never eligible to run for 330 office at the University. - Page **10** of **18**

On procedural impropriety, Counsel submitted that the 1st Respondent's resolution to set up the select committee was marred with procedural impropriety because the 1st Respondent was not properly constituted given that there were no student 335 representatives on it and whereas absence of a member wouldn't ordinarily affect the Council's resolutions, the absence of students' representatives in this case was due to the suspension of students by the 2nd Respondent.

Counsel submitted that the procedure for constituting the constitutional review commission was also not proper in that the constitutional review commission was 340 constituted and it commenced work before the guidelines were published in the Uganda Gazette-(see 'The Makerere students' guild statute 2022') as compared to the elections for the constitutional review commission held between 26th – 30th August, 2022. (annexure "C") to the Respondents affidavit in reply.

That since there was outright procedural impropriety in the constitution of the 345 constitutional review commission, performing its said tasks under a questionable mandate invalidates the outcomes/products.

That during election, the University management convened itself as the electoral commission where the principals of colleges and wardens of halls of residence were the returning officers. That there is no list of successful nominations on record that was 350 published by the alleged electoral commission in as far as the alleged elections was concerned, there were no guidelines, regulations and eligibility criteria that are on record on how the alleged election was to be carried out and even principles of fairness, democracy and transparency in as far as elections are concerned were not adhered to.

Counsel further submitted that whereas the terms of reference for the constitutional 355 review commission provided that the commission was to revise the current Makerere students' guild constitution, the contents of the Makerere guild statute, 2022 rendered the constitution under review non-existent, it creates an overhaul of the guild structures, guild constitution amendment procedures and the election of student leaders. That with such provisions, the current constitutional review commission is just a face to the impunity with which the 1st 360 Respondent has acted to amend and/or destroy the old constitutional order. Counsel emphasized that following the above procedural impropriety, the 1 st Respondent wrongfully exercised powers conferred by the Universities and Other Tertiary Institutions Act and wrongful exercise of power makes the resulting decision ultra vires, null and void.

## **Respondent's submission.**

In reply, Counsel for the Respondents relied on the case of **Catherine Kanabahita (supra)** where Court noted that: -

"Illegality is when the decision-making authority commits an error of Law in the process

370 of taking the decision or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires or contrary to the provisions of the law or its principles are instances of illegality."

He explained that illegally entails that the decision-making body knew the laws it was operating under and had the obligation to give it effect, but, that instead it acts contrary

- to the legal provisions or outside the legal parameters. That in the instant case, the 1st 375 Respondent who happens to be the University Council of Makerere University is responsible for, inter alia; - a) The direction of the administrative, financial and academic affairs of the University - b) Formulate the general policy of the University - 380 c) Does any other thing and takes all necessary decisions conducive to the fulfilment of the objects and functions of the University - d) ……………………. - e) ……………………. - f) Provide for the welfare and discipline of the students. - 385 He relied on Sections 40 (1), (2) and 41 (f) of the Universities and Other Tertiary Institutions Act.

That the 1st Respondent in exercise of the above functions, put in place a student guild government to facilitate and enable Makerere University students govern themselves and articulate their issues with the University Management, the University Council and the general public. That in fulfilment of that, the 1st 390 Respondent organizes regular annual student guild elections where students periodically vote to change their leaders. That at the end of the students' guild government the same is dissolved, a caretaker government headed by the Dean of Students is then put in place to organise elections to the students' guild election commission. Counsel explained that the commission then organizes 395 elections for the various vacant guild positions and the successful parties then form the next students' guild government and the student guild elections commission is then dissolved.

Counsel submitted that in this case, when the term of the 87 th guild government expired, it was dissolved and a caretaker government headed by the Dean of Students was put

- 400 in place and this put in place the students' guild election commission. That the commission then organized campaigns for elections of the 88th guild leadership. That during the students' campaign rallies, a student of the Uganda Christian University, who was a supporter of one of the candidates, was killed by a supporter of a rival candidate. Counsel explained that in order to eliminate or avoid further bloodshed and violence that was bound to occur from revenge counter-attacks, the 2nd 405 Respondent, in her - capacity as the Chairperson of the 1st Respondent suspended the student guild activities, the senior common room and the caretaker government and called an emergency meeting of the 1 st Respondent. That the 2nd Respondent was fortified by Section 42 of the Makerere University Council Charter, 2019 which provides for "Decisions in Extra - 410 Ordinary Circumstances and states that; "For reasons of decisive exigency, Management may seek the authorization or approval of the Council Chairperson on behalf of Council on a matter, where there is insufficient time to arrange a meeting or reach agreement on an alternative forum provided that the ratification of Council is sought for such authorization at the earliest opportunity. - 415 The Chairperson may prior to giving such authorization or approval, consult with the Chairperson of the relevant Council Committee and Other Council Members." - Counsel explained that the emergency meeting of the 1st Respondent Council was duly convened on the 15th July, 2022, and it, inter alia, ratified the decision of the 2nd Respondent and resolved to set up a select committee to review the student guild 420 election operations. That the committee carried out its task and presented its report and recommendations to the 1st Respondent Council. That the Council on the 19th August, 2022, at a Special meeting resolved to set up a student constitutional review commission which was to be elected by the student community and the constitutional review commission mandate was to collect views from the University students and propose 425 amendments to the student guild constitution. - Counsel further submitted that during the process the Applicants carried out various atrocious actions aimed at preventing the elections but all the same, the elections were successfully conducted and the commission was put in place. That the student review commission collected views from the student community including the Applicants and 430 presented recommendations for amendment of the students' guild constitution to the 1 st Respondent and the recommendations were approved. That the amendments were effected and the amended students' guild constitution, 2022 was gazetted and the 1 st Respondent is now preparing to hold the 88th student guild elections.

435 Counsel emphasized that the actions of the Respondents were all carried out in accordance with and within the Law, rules and regulations cited above. That the measures taken to stem violence was carried out within the Law and the suspension of Namwoza Sulaiman was lawful because he was engaging into acts of the student guild which had been suspended. Counsel prayed that this court finds that this ground of illegality fails as the 1 st 440 Respondent acted within the law.

In regards to irrationality, counsel submitted that in the case of Catherine Kanabahita (supra), irrationality is: -

"When there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the Law before it, would have

445 made such a decision, such a decision is usually in defiance of logic and acceptable moral standards"

He submitted that in this case, the situation that obtained was that there was a charged electoral period and a student was killed during campaigns. That the whole student community was in shock, traumatized and finger-pointing among the rival opponents.

- 450 That the atmosphere was tense and a revenge/counter-attack was very likely Counsel explained that the only rational, reasonable and logical decision for anyone vested with authority would be the suspension of the student guild activities to allow the students mourn their colleague and heal wounds and at the same time Management had organize peaceful elections. - 455 Counsel averred that the allowance of giving the students an opportunity to amend their own constitution, was rational and as such, the acts of the Respondents were rational in the circumstances.

In regards to procedural impropriety, Counsel while still relying on the case of **Catherine Kanabahita (supra) where the case of Twinomuhangi –v- Kabale District & Ors (2006)**

460 **HCB Vol. 1 page 131** was cited stating that: -

"Procedural impropriety is when there is failure to act fairly on the part of the decision making authority in the process of taking a decision. The unfairness may be in the nonobservance of the rules of natural justice or to act with procedural unfairness towards one to be affected by the decision. It may also involve failure to adhere and observe

465 procedural rules expressly laid down in a statute or legislative instrument by which such authority exercises jurisdiction to make a decision."

Counsel submitted that for the Applicant to succeed on this ground, he must show that he had a right that was violated by the decision of the authority or body. That in the instant case, the Applicants have not shown what were their rights that were violated.

470 That the acts complained of affected the student guild electoral process. That, however, the Applicants have not shown anywhere in their application that they were candidates in the elections, campaign agents, sponsors of any candidates or representing the students' community of Makerere University. That there is no right of the Applicants shown to have been violated. Counsel contended that the Applicants therefore have 475 failed to prove disenfranchisement on this ground. He prayed that this case be dismissed with costs.

## **Analysis.**

In the case of **Pastoli -v- Kabale District Local Government Council and Others [2008] 2 EA 300** court noted that: -

480 "In order to succeed in an application for judicial review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety... Illegality is when the decision-making authority commits an error of law in the process of taking or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are 485 instances of illegality. It is, for example, illegality, where a Chief Administrative Officer of a District interdicts a public servant on the direction of the District Executive Committee, when the powers to do so are vested by law in the District Service Commission... Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the 490 law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards... Procedural Impropriety is when there is a failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also 495 involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision."

In the case of **Ojangole Patricia & 4 Others -v- Attorney General MC No.303 of 2013,** court noted that illegality is when the decision making authority commits an error of law 500 in the process of taking the decision or making the act, the subject of the complaint.

S. 40 (1) of the Universities and Other Tertiary Institutions Act, 2001 (as amended), provides that subject to the provisions of this Act, the University Council shall be the supreme organ of the Public University and as such shall be responsible for the overall administration of the objects and functions of the University.

Under S. 40 (2) (c), the 1st 505 Respondent is mandated to give general guidelines to the administration and academic staff of the University on matters relating to the operations of the University;

In this case, Yusuf Kiranda, the University Secretary states in paragraph 5 of his affidavit in reply that the 1st Respondent is responsible for, among others, the direction of the 510 administration of the University, welfare and discipline of students. That it also formulates the general policies of the University and does any other thing and takes all necessary decisions conducive to the fulfilment of the objects and functions of the University.

Under paragraph 7 of his affidavit in reply, Mr. Kiranda states that it is upon its above mandate that the 1st Respondent put in place the Students Guild Government to enable students govern themselves and articulate their issues with Management, the 1st 515 Respondent and the general Public and that students' guild elections are held periodically on an annual basis.

Under paragraph 8, Kiranda states that at the end of each term, leadership is dissolved and a caretaker government, headed by the Dean of Students is put in place and that in this case, when the term of the 87th 520 guild government expired, it was dissolved and a caretaker government was put in place in accordance with the Student Guild Constitution; and the 88th guild leadership elections were organized. That unfortunately, during the students' campaign rallies, a student of Uganda Christian University, who was a supporter of one of the candidates, was killed by someone perceived to be a supporter 525 of a rival candidate. That in order to eliminate and avoid further bloodshed and violence that was bound to arise from revenge counter-attacks, the 2nd Respondent, in her capacity as the Chairperson of the 1st Respondent, suspended all student guild activities and called an emergency meeting of the 1st Respondent. The meeting ratified her decision to suspend all student guild activities and went ahead to put in place a select 530 committee to review the students' guild election operations (see annexure 'A' to the affidavit in reply).

Under paragraph 19 of the affidavit in reply, Kiranda states that the select committee reported its findings to the 1st Respondent which convened a meeting and put in place a student's Constitutional Review Commission with set guidelines which were gazetted

- 535 (annexure 'C' and 'D' to the affidavit in reply) and that following the setup of the Student Guild Constitutional Review Commission, elections were held at different colleges and halls of residence between the 26th and 30th of August, 2022. This is not in dispute (see paragraphs 5, 6, 7, 13 and 14 of the affidavit in support of the application by Muhwezi Joahua). - 540 **S. 40. (1) of the Universities and other tertiary Institutions Act, 2001 (as amended)** provides that;

"subject to the provisions of this Act, the University Council shall be the supreme organ of the Public University and as such shall be responsible for the overall administration of the objects and functions of the University."

545 **Under S. 40 (2) of the Act,** it is provided that without prejudice to the generality of subsection (1), the University Council shall ⎯ (a) Be responsible for the direction of the administrative, financial and academic affairs of the University.

(b) Formulate the general policy of the Public University;

550 (c) Give general guidelines to the administration and academic staff of the University on matters relating to the operations of the University; (d) Do any other thing and take all necessary decisions conducive to the fulfillment of the objects and functions of the University.

Upon application of the law to the facts of this case, I find that the 2nd Respondent's 555 actions were within her legal mandate. I also note that there is substantial evidence in annexures i and j to the affidavit in support of the application and annexure 'E' to the affidavit in reply, to show that students participated in the review of the Students' Guild Constitution.

Much as Counsel for the Applicants submitted that the contents of the Makerere guild 560 statute, 2022 rendered the constitution under review non-existent and that it creates an overhaul of the guild structures, the guild constitution amendment procedures and the election of student leaders, he did not demonstrate how he arrives at such a conclusion. My understanding is that the Statute that Counsel for the Applicants is referring to was enacted by the 1st Respondent under S.69 of the UOTIA and the students Constitution is to conform to the provisions of this Statute (see the 4th 565 line under the preambleof the statute).

Annexure "F" to the affidavit in reply shows that the list of members to the Makerere Guild Constitutional Review Commission, 2022 was forwarded to the Ag. Director Legal Affairs on the 16th September, 2022, the same date that the Statute was gazeted. It is

- 570 not possible that the Students Constitutional Review Commission could have commenced the review process before the 16th September, 2022 when their names were submitted to the Ag. Director Legal Affairs. There must be a mix up in the appreciation of the facts by Counsel for the Applicant and/or he deliberately misrepresented the facts so as to mislead court. - On the issue of the 3rd 575 Respondent suspending Namwoza Sulaiman, the Speaker for Lumumba Hall, I agree with the submissions of Counsel for the Respondents that the 3rd Respondent was justified in his actions because the 2nd Respondent had suspended all Guild related activities and as such, the Speaker, Mr. Namwoza Sulaiman's actions were unlawful as they contravened the 2nd Respondent's directive and yet she was acting on - behalf of the 1st 580 Respondent which is responsible for the over all administration of the University under S.40 (2) of the UOTIA.

Therefore, I find that the Respondents actions were within their mandate under S. 40(2) (a) (supra) of the Universities and other Tertiary Institutions Act, 2001(as amended) and as such, there is no merit in this application which I do hereby dismiss from court with 585 costs.

I so order

**Dated, signed and delivered by mail at Kampala on this 19th day of April, 2024.**

**Esta Nambayo**

590 **JUDGE**

**19th /4/2024.**