Nsimbe Swaibu and Another v Uganda Muslim Supreme Council and Others (Miscellaneous Cause 65 of 2025) [2025] UGHCCD 88 (1 July 2025)

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA (CIVIL DIVISION)

#### MISCELLANEOUS CAUSE NO. HCT-00-CV-MC-0065-2025

## 1. NSIMBE SWAIBU

#### 2. BYANSI TWAYIBU & 2 OTHERS::::::::::::::::APPLICANTS

#### VERSUS

# 1. UGANDA MUSLIM SUPREME COUNCIL (UMSC) 2. SHEIKH SHABAN RAMADHAN MUBAJJE & 43 OTHERS::::::::::::::::::::::::::::::::::::::::::::: RESPONDENTS

## BEFORE: HON. JUSTICE BERNARD NAMANYA

## RULING

#### Introduction

1. This is an application for judicial review brought under Section 37, Section 40 and Section 42 of the Judicature Act (Cap. 16) and Rules 3, 4, 5 and 6 of the Judicature (Judicial Review) Rules 2009 (as amended). The application seeks the following declarations and orders, among others: (a) a declaration that His Eminence Sheikh Shaban Ramadhan Mubajje is not eligible for another term of office as the Mufti of Uganda; (b) an order of prohibition forbidding His Eminence Sheikh Shaban Ramadhan Mubajje from further serving as the Mufti of Uganda; (c) an order of certiorari quashing the decisions of the respondents re-electing His

Page 1 of 27

Eminence Sheikh Shaban Ramadhan Mubajje as the Mufti of Uganda; (d) an order of injunction restraining the Uganda Muslim Supreme Council (UMSC) and its organs or any other person acting on its behalf from swearing in His Eminence Sheikh Shaban Ramadhan Mubajje as the Mufti of Uganda; and (e) an order of mandamus compelling the respondents who constitute the Joint Session to commence and follow the due process under the Memorandum and Articles of Association of UMSC for electing and vetting the Mufti of Uganda.

2. The application is supported by an affidavit affirmed by Kasakya Musa on the 7th March 2025. The respondents opposed the application through affidavits in reply affirmed by Muhamad Ali Aluma on the 19th March 2025; Sheikh Issa Juma Manghalia on the 15th April 2025; and Hon. Dr. Adam Rajab Makmot Kibwanga on the 15th April 2025. Kasakya Musa affirmed affidavits in rejoinder to the respondents on the 21st March 2025 and 2nd May 2025.

## Background

3. The UMSC was established on the 1st June 1972 as "an unlimited company without share capital and not for profit." It seems that in 1987, the UMSC amended its Memorandum and Articles of Association ("the Constitution"). In 2016, the UMSC General Assembly resolved to establish a Constitutional Review Commission to collect views from the Muslim community and

Page 2 of 27

review its Memorandum and Articles of Association. The constitutional review process culminated in the amendment of the Memorandum and Articles of Association of UMSC which was approved by the UMSC General Assembly on the 13th July 2022.

- 4. Prior to 2022, the UMSC was governed by the 1987 Constitution. His Eminence Sheikh Shaban Ramadhan Mubajje was elected the Mufti of Uganda on the 12th December 2001 under the 1987 Constitution which provided in Article 5 (7) that "…the Mufti and Deputy Mufti shall remain in office until they are 70 years old." His Eminence Sheikh Shaban Ramadhan Mubajje clocked 70 years on the 12th March 2025. Under Article 5 (5) of the amended UMSC Articles of Association (2022), the age limit for the office of the Mufti of Uganda was changed from 70 years to 75 years. His Eminence Sheikh Shaban Ramadhan Mubajje is currently 70 years of age. - 5. Prior to the expiry of the tenure of office of the Mufti of Uganda on the 12th March 2025, UMSC began the process of election of the Mufti of Uganda. On the 6th January 2025, the Hon. Secretary General of the UMSC, Hajji Abbas S. Muluubya wrote to the National Chairman of the UMSC, Prof. Dr. Muhammad Lubega Kisambira informing him that the tenure of His Eminence Sheikh Shaban Ramadhan Mubajje would be ending in March 2025. On the 13th January 2025, the National Chairman of UMSC, wrote to

Page 3 of 27

the Director of Sharia of UMSC, Sheikh Dr. Ziyad Swaleh Lubanga, directing him to call a special meeting of Majlis Al-Ulama "for the sole purpose of selecting and electing a new Mufti of Uganda, as mandated under Article 5 (2) and Article 7 (1) of the UMSC Constitution, as amended in 2022."

- 6. Majlis Al-Ulama is a body established under Article 7 of the Articles of Association whose membership includes the Mufti of Uganda and his two deputies as well as the Secretary for Religious Affairs and 20 Sheikhs from each Muslim region in Uganda. - 7. On the 18th February 2025, Sheikh Ssali Imran Abdunoor, Secretary for Religious Affairs wrote a letter to the members of Majlis Al-Ulama inviting them for a special meeting. On the 13th February 2025, the Hon. Secretary General of UMSC wrote to the members of the Joint Session inviting them for a special meeting. A special meeting of the Majlis Al-Ulama held on the 20th February 2025 elected His Eminence Sheikh Shaban Ramadhan Mubajje as the Mufti of Uganda in accordance with Article 5 (2) and Article 7 (1) of the UMSC Articles of Association. On the same day the 20th February 2025, the joint session of the UMSC approved His Eminence Sheikh Shaban Ramadhan Mubajje as the Mufti of Uganda. - 8. The applicants contend that the selection and election of His Eminence Sheikh Shaban Ramadhan Mubajje as the Mufti of

Page 4 of 27

Uganda by the Majlis Al-Ulama and the Joint Session was marred by procedural irregularities and is contrary to the provisions of Article 5 (2), Article 5 (5), Article 5 (9), Article 5 (15), Article 7 (2), Article 7 (6), Article 9 (6), Article 17 (10) and Article 29 (12) of the UMSC Articles of Association (2022). Hence, the applicants have filed the instant application for judicial review by which they seek the supervisory power of the High Court quash the proceedings that led to the election of the Mufti of Uganda.

# Representation

9. The applicants were represented by the following Advocates: Mr. Kizito Farouk Kamulegeya, Mr. Kamulegeya Rashid, Mr. Nsimbi John Mata and Mr. Mubiru Nasser. The respondents were represented by the following Advocates: Mr. Kabega Moses, Mr. Kugonza Issac and Mr. Balikurungi Faisal.

# Issues for determination by the court

- 10. Issues: - i). Whether the selection and election of His Eminence Sheikh Shaban Ramadhan Mubajje as the Mufti of Uganda by the 2nd to the 45th respondents and members of the Majlis Al Ulama and the Joint Session is illegal, irrational and procedurally improper. - ii). What remedies are available to the parties?

# Scope of judicial review

- 11. Judicial review is 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 (See Rule 2 (1) of the Judicature (Judicial Review) Rules, 2009). Private bodies may be subject to judicial review if it is proved that they are charged with performance of public functions which are governmental in nature. - 12. In judicial review, the court is confined to ensuring that the bodies exercising public functions observe the substantive principles of public law and that the decision-making process itself is lawful. (See Halsbury's Laws of England, Judicial Review, Volume 61A, 2023, para 2). The court does not have power to review the merits of the decision in respect of which the application for judicial review is made (See Halsbury's Laws of England (supra) para 2). Similarly, the court does not have power to substitute the decision of the public body or official in whom power is vested by law with its own decision. See Paulo Kamya v. Kampala District Land Board & Anor, Supreme Court Civil Appeal No. 6 of 2013. This is intended to prevent the court from usurping authority from public bodies or officials who are vested with authority by the law to take decisions.

- 13. There are three grounds upon which administrative action is subject to control by judicial review. The first ground is illegality. The decision-maker must understand correctly the law that regulates his or her decision-making power and must give effect to it. The second ground is irrationality or unreasonableness of the decision maker. The third ground is procedural impropriety by the decision maker (See Halsbury's Laws of England (supra) para 2). - 14. In judicial review, the court is concerned with the decision-making process of the decision by a public body or officials. The court assesses the way the decision was made with a view of ensuring that public powers are exercised with the basic standards of legality, fairness and rationality. See Paul Kihika v. Attorney General & IGG, Misc. Cause No. 120 of 2012.

## Preliminary points of law

15. At the hearing of the application, counsel for the respondents raised several preliminary points of law but I will focus on only three. First, counsel for the respondents argued that UMSC is not a public body and that the other named respondents are not public officials. According to counsel, the lack of public status of the respondents means that they are not subject to the supervisory power of the court under judicial review. In other words, counsel for the respondents contends that the application is not amenable for judicial review. Second, counsel for the respondents argued that the court is not the proper forum for resolution of religious

Page 7 of 27

disputes. Third, counsel for the respondents argued that the aggrieved applicants should have referred the dispute on the election of the Mufti of Uganda to the Muslim Arbitration and Conciliation Council (MAC).

## Is UMSC, private body, amenable for judicial review?

16. Before exercising its supervisory power under judicial review, the court must be satisfied that the power in question relates to a public body or public official. If a private body is in question, there must be evidence that the private body is charged with the performance of public functions (with governmental powers) and that the exercise of such power has public law consequences. Rule 7A of the Judicature (Judicial Review) Rules, 2009 as amended) provides that:

# "7A. Factors to consider in handling applications for judicial review

(1) The court shall, in considering an application for judicial review, satisfy itself of the following—

(a) that the application is amenable for judicial review;

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

(c) that the matter involves an administrative public body or official.

(2) The court shall grant an order for judicial review where it is satisfied that the decision making body or

Page 8 of 27

officer did not follow due process in reaching a decision and that, as a result, there was unfair and unjust treatment."

17. Under Section 2 of the Judicature (Judicial Review) Rules, 2009, a public body includes:

> "(a) the Government, any department, services or undertaking of the Government;

> (b) the East African Community, its institutions and corporations;

(c) the Cabinet, Parliament, any court;

(d) District Administration, a District Council, any district committee of a district council, a local council and any committee of a local council;

(e) any corporation, committee, board, commission or similar body whether corporate or incorporate established by an Act of Parliament for the purposes of any written relating to the public health or public undertakings of public utility, education or for promotion of sports, literature, science, arts or any other purpose for the benefit of the public or any section of the public or any section of the public to administer funds or property belonging to or granted by the Government or the East African Community, its institutions or its corporations or money raised by public subscription or its corporations

Page 9 of 27 or money raised by public subscription, rates, taxes, cess or charges in pursuance of any written law;

(f) a political party, a trade union, a society registered under the Cooperative Societies Act and any council, board, committee or society established by an Act of Parliament for the benefit, regulation and control of any profession and non-governmental organisations."

- 18. Accordingly, the supervisory power of the court under judicial review is concerned mainly with public bodies or officials exercising power of a public nature with public law consequences. This is the reason that courts have ruled that private bodies are not subject to judicial review. For instance, in the case of Abubaker Lubowa & 4 Others v. Uganda Journalist Association & 2 Others, Misc. Cause 31 of 2023, the applicants sought judicial review against Uganda Journalists Association, a private company limited by guarantee incorporated under the Companies Act and the court dismissed the application holding that judicial review proceedings could not be sustained against a private body. - 19. UMSC is a private body registered under company law. Its governing instruments include the Memorandum and Articles of Association (2022). There is no doubt that UMSC is a private body as was held in the case of Sheikh Ali Ssenyonga & 7 Others v.

Page 10 of 27

Sheikh Hussein Rajab Kakooza, Supreme Court of Uganda Civil Appeal No. 9 of 1990, where the court stated that: "In the UMSC, membership is exclusively confined to those eligible by religious criteria. It is thus a private not a public company."

- 20. The only way that UMSC, a private body, can be subjected to the supervisory power of the court under judicial review is, if the applicants can prove that it carries out activities of a public nature with public law consequences, combined with proof that the private body exercises some form of governmental power. Courts have considered this very question on several occasions. - 21. In the case of Rev. Fr. Cyril Adiga Nakari v. Registered Trustees of Arua Diocese & Anor, High Court Civil Suit No. 2 of 2017, it was held (per Hon Justice Stephen Mubiru) that the remedy of judicial review against a religious body:

"…should be available only is so far as it is justified by a compelling public interest or pressing social need…"

22. In the case of R v. Panel on Take-overs and Mergers, ex parte Datafin plc and another [1987] 1 All ER 564, the court discussed the question of whether a private body (panel) without statutory (legislative) power could be subjected to judicial review. In that case, a private body (The Panel on Take-overs and Mergers)

Page 11 of 27

regulated an important part of the United Kingdom financial market. But the private body regulated the financial market without any statutory or common law powers. However, there was evidence that the Government's Department of Trade and Industry had decided not to regulate take-overs by statutory instrument and to rely instead on the panel's enforcement of the City Code on Take-overs and Mergers. Some stakeholders of the financial market applied for judicial review against the decision of the private body (the panel). The court held that:

"In determining whether the decisions of a particular body were subject to judicial review, the court was not confined to considering the source of that body's powers and duties but could also look to their nature. Accordingly, if the duty imposed on a body, whether expressly or by implication, was a public duty and the body was exercising public law functions the court had jurisdiction to entertain an application for judicial review of that body's decisions. Having regard to the wideranging nature and importance of the matters covered by the City Code on Take-overs and Mergers and to the public consequences of non-compliance with the code, the Panel on Take-overs and Mergers was performing a public duty when prescribing and administering the code and its rules and was subject to public law remedies."

Lloyd LJ held that:

"The panel wields enormous power. It has a giant's strength…Nobody suggests that there is any present danger of the panel abusing its power. But it is at least possible to imagine circumstances in which a ruling or decision of the panel might give rise to legitimate complaint. An obvious example would be if it reached a decision in flagrant breach of the rules of natural justice…So long as there is a possibility, however remote, of the panel abusing its great powers, then it would be wrong for the courts to abdicate responsibility. The courts must remain ready, willing and able to hear a legitimate complaint in this as in any other field of our national life…I do not agree that the source of the power is the sole test whether a body is subject to judicial review…Of course the source of the power will often, perhaps usually, be decisive. If the source of power is a statute, or subordinate legislation under a statute, then clearly the body in question will be subject to judicial review. If, at the other end of the scale, the source of power is contractual, as in the case of private arbitration, then clearly the arbitrator is not subject to judicial review But in between these extremes there is an area in which it is helpful to look not just at the source of the power but at the nature of the power. If the body in question is

Page 13 of 27

exercising public law functions, or if the exercise of its functions have public law consequences, then that may…be sufficient to bring the body within the reach of judicial review…So I would reject counsel for the panel's argument that the sole test whether a body is subject to judicial review is the source of its power. So to hold would in my judgment impose an artificial limit on the developing law of judicial review…The distinction must lie in the nature of the duty imposed, whether expressly or by implication. If the duty is a public duty, then the body in question is subject to public law.

23. R v. Disciplinary Committee of the Jockey Club, ex parte Aga Khan [1993] 2 All ER 853 discussed the question of whether, if a private body regulates a significant national activity and exercises powers in the interest of the public, that would necessarily make it susceptible to judicial review. The court held that even when that is the case, in the absence of proof that such powers are governmental in nature, a private body will not be susceptible to judicial review. Sir Thomas Bingham MR held as follows:

> "I have little hesitation in accepting the applicant's contention that the Jockey Club effectively regulates a significant national activity, exercising powers which affect the public and are exercised in the interest of the public. I am willing to accept that if the Jockey Club did

> > Page 14 of 27

not regulate this activity the government would probably be driven to create a public body to do so. But the Jockey Club is not in its origin, its history, its constitution or (least of all) its membership a public body. While the grant of a royal charter was no doubt a mark of official approval, this did not in any way alter its essential nature, functions or standing. Statute provides for its representation on the Horseracing Betting Levy Board, no doubt as a body with an obvious interest in racing, but it has otherwise escaped mention in the statute book. It has not been woven into any system of governmental control of horse racing, perhaps because it has itself controlled horse racing so successfully that there has been no need for any such governmental system and such does not therefore exist. This has the result that while the Jockey Club's powers may be described as, in many ways, public they are in no sense governmental." My emphasis

24. The amenability of private bodies for judicial review was extensively considered in the case of David Warre Hanah v. The Chartered Institute of Taxation [2021] EWHC 1069. The case considers the evolution of principles governing the amenability of private bodies for judicial review since the time of Datafin (supra)

Page 15 of 27

in 1987 to 2021 by reviewing several decided cases. These principles are summarised in the following paragraphs:

- a) A private body may be subject to judicial review if it can be proved that it is exercising public law functions and that the exercise of its functions has public law consequences or that it is established under the authority of the Government. - b) The court must consider the context in which the private body operates with a view of determining the question whether if the private body in question did not exist, its functions would be carried out by an existing authority exercising statutory powers or whether the Government would establish a public body to carry out those functions. - c) The court must be satisfied that the private body regulates a significant national activity so that if the private body did not exist, the Government would probably establish a public body to carry out those functions. - d) Even if it is proved that the private body is carrying out public functions, the court must be satisfied that the functions are governmental in nature. - e) The mere fact that the public derived some benefit from the functions of the private body does not render it amenable for judicial review. - f) Finally, the court must be satisfied that the functions of the private body have been interwoven into the fabric of public regulation or governmental control.

Page 16 of 27

25. According to Halsbury's Laws of England, Judicial Review, Volume 61A, 2023, para 5:

> "The crucial consideration will be whether there is a sufficient public law element to a particular decision. That will involve consideration both of the nature of the decision and the source of the power. It will also be relevant to consider whether the grounds of challenge raise a public law issue."

- 26. I am aware of the decision in Sheikh Shuaib Adam Ntegeka v. Sheikh Irumba Mohammed, High Court Misc. Cause No. 13 of 2020, where the court held that the remedy of judicial review was available against UMSC. However, with the greatest respect to the learned Judge, I am unable to follow the decision because of two reasons. First, the part of decision stating that UMSC is a public body is inconsistent with the Supreme Court of Uganda decision of Sheikh Ali Ssenyonga & 7 Others v. Sheikh Hussein Rajab Kakooza (supra) which categorically held that UMSC is a private body. Second, the decision did not fully appraise the principles applicable before the court can conclude that a private body is amenable for judicial review. - 27. In view of the above court decisions, it is important to critically examine the functions of UMSC, a private body (in its origin, constitution and history); and decide whether UMSC exercises

Page 17 of 27

functions of a public nature with public law consequences, and most importantly, as held in the Jockey Club case (supra), that those functions are governmental in nature.

- 28. Article 1 (1) of the UMSC Articles of Association provides that: "There shall be one perpetual body unifying all Muslims of Uganda to be known as the Uganda Muslim Supreme Council…" - 29. Article 1 (2) of the UMSC Articles of Association provides that: "All Sunni Muslims in Uganda, men and women, shall be members of the UMSC." - 30. By the above provisions, all Sunni Muslims in Uganda are members of the UMSC. The Interreligious Council of Uganda estimates the number of Muslims in Uganda at 9 million. Paragraph 9 of the affidavit in reply by Muhammad Ali Aluma also puts the population of Sunni Muslims at over 9 million. The implication of this, is that the activities of millions of Sunni Muslims in Uganda are regulated by UMSC. - 31. The evidence before me proves that although UMSC is a private body, it carries out public functions and its administrative decisions impacting over 9 million Ugandan Sunni Muslims have public law consequences. As seen in the Hannah case (supra), the

Page 18 of 27 mere fact that the private body exercises public functions does not render it amenable for judicial review. Another important consideration is whether the public functions of UMSC are governmental in nature. In resolving this issue, the court must ask the question: If UMSC did not exist, would the Government have established a public body to carry out its current functions? Is it the business of Government to regulate the religious affairs of Muslims in Uganda? Have the activities of UMSC been interwoven into the fabric of public regulation or Governmental control? In Datafin (supra), where the court concluded that the private body was amenable for judicial review, there was proof that the Government had incorporated the private body into its own public regulatory framework. In Datafin (supra), a Department of Government had ceded some of its powers to the private body.

32. In the case of Abubaker Lubowa (supra), Hon. Justice Ssekaana Musa, Judge of the High Court (as he then was) considered the question as to whether Uganda Journalists Association, a private company limited by guarantee and not having a share capital, registered in 1983 under Companies Act was amenable for judicial review. He held as follows:

> "It is not only surprising but also incredible that the applicants counsel has chosen to 'baptize' this private entity…a public body simply because it brings all journalists together through subscription. A public body

> > Page 19 of 27

is a question of law and is not premised on personal whims or erroneous application of the law… The court has duty to establish whether the matter brought before it involves a public body… The court shall, in considering an application for judicial review, satisfy itself: that the matter involves an administrative public body or official. [Uganda Journalists Association] is not a public body and does not derive their powers from any written law apart from the incorporation under the companies Act. The court cannot open the doors for all manner of bodies to make applications for judicial review…See Ex p. Football League Ltd [1993] 2 All ER 833 at 849. In the circumstances, [Uganda Journalists Association] is not a public body and cannot be susceptible to judicial review. The application would fail on this ground alone. It is dismissed with costs to the respondents."

33. In the case before me, there is no evidence that the activities of UMSC have been interwoven into the fabric of Government regulation or control. First, it is unimaginable that if UMSC did not exist, the Government would establish a public body through an Act of Parliament to regulate the religious affairs of Sunni Muslims in Uganda. Second, although the activities of UMSC impact about 9 million Sunni Muslims in Uganda, rendering its functions public in nature, the functions of UMSC are not governmental in nature

Page 20 of 27

and its activities have not been interwoven into public/ Government regulation.

- 34. The applicants did not adduce evidence of the involvement of Government in the management of the affairs of UMSC. In cases such as Datafin plc (supra), where the court concluded that a private body was amenable to judicial review, there was proof that the private body was discharging public functions that were Governmental in nature and that the Government had ceded some of its powers to a private body. - 35. Accordingly, for the forgoing reasons, UMSC or any of its officials that were listed as co-respondents are not subject to the supervisory power of the court under judicial review and on this ground alone, the application fails.

## The religious question doctrine

36. Under the religious question doctrine, it is argued that courts should have no business in resolving religious disputes. In the case of The Most Reverend Dr. Steven Samuel Kazimba Mugalu v. Mazzi Joyce & 5 Others, Misc. Application No. 36 of 2023, High Court of Uganda at Luwero, a dispute arose on the election of the Bishop of Luwero Diocese, Church of Uganda. The then Principal Judge, Hon. Justice Dr. Flavian Zeija considered the religious question doctrine and stated as follows:

Page 21 of 27

"The general rule is that religious controversies are not the proper subject of civil court inquiry (See Serbian E. Orthodox Diocese v. Milivojevich, 426 U. S.696, 713 (1976). It is therefore, taken as a constitutional gospel in all the commonwealth jurisdictions and also the United States that courts have no business handling religious questions. In other words, courts should not resolve cases that turn on questions of religious doctrine and practice. This is popularly referred to as the "religious question" doctrine. That means that courts cannot resolve "controversies over religious doctrine and practice (See: Presbyterian Church in the U. S. v. Mary Elizabeth Blue Hull Mem'l Presbyterian Church, 393 U. S.440,449 (1969). As a result, courts will dismiss claims that hinge on religious questions even if no other religious institution is waiting in the wings to resolve the religious dispute. In this way, the religious question doctrine prohibits courts from addressing a wide set of claims even though dismissing such claims will leave plaintiffs without any forum that has the authority and ability to provide redress…(see Perry Dane, "Omalous" Autonomy, 2004 B. Y. U. L. REV.1715, 1733034). Religious institutions should be empowered to resolve internal disputes that "involve matters of faith, doctrine, church governance, and polity (See: Bryce V. Episcopal

Page 22 of 27

# Church in the Diocese of Colo, 289 F.3d 648, 655 (10th Cir.2002).

Article 29 of the Constitution of the Republic of Uganda (as amended) provides for freedom of worship. It goes without saying that it provides for religious freedom to subscribe to certain faith and to unsubscribe. Once you subscribe to a certain faith, you must go by its tenets. The respondents subscribe to the Anglican faith. The Anglican Church in Uganda has certain cannons it follows. Without a doubt, the cannons provide for how a bishop is appointed in the church. It also provides for how the disputes relating to election of Bishops are resolved. It is not the business of this Court to entertain disputes relating to consecration of a Bishop. Courts cannot appoint a Bishop for the Church. That is a spiritual matter for which courts cannot claim to be competent. The Anglican Church in Uganda has all the necessary bodies to resolve such a dispute."

37. The dispute before me concerns the election of the Mufti of Uganda who is a spiritual head of Sunni Muslims in Uganda. I am persuaded by the decision in The Most Reverend Dr. Steven Samuel Kazimba Mugalu (supra) that this court is not competent to inquire into and resolve a religious dispute concerning the

Page 23 of 27

election of the spiritual head of Sunni Muslims in Uganda. This religious dispute can best be resolved by leaders of the Muslim faith in Uganda, their followers and by Muslim leaders at a global level. This the second ground upon which this application must fail.

#### Arbitral clause in the UMSC Constitution

38. Article 28 (1) of the UMSC Articles of Association (2022) establishes an arbitration mechanism for UMSC and it provides as follows:

> "There shall be a UMSC Arbitration and Conciliation Council appointed by the Joint Session…hereinafter as "the MAC", which shall have jurisdiction to hear all disputes among Muslims and between Muslims and non-Muslims filed by such non-Muslims relating to any issue, including the running of the affairs, management, interest and rights of the UMSC or its members, contract disputes and interpersonal relationships except electoral matters of the UMSC.

39. Regarding the treatment of an arbitral clause by the courts, the position of the law is as follows: If a dispute between the parties is subject to arbitration, the court shall refer the matter to arbitration. See Section 5 & 9 of the Arbitration and Conciliation Act (Cap. 5). See also the cases of Babcon Uganda Limited v. Mbale Resort Hotel Limited (Civil Appeal No. 87 of 2011) [2015] UGCA 2016,

Page 24 of 27

Court of Appeal of Uganda; and Vantage Mezzanine Fund 11 Partnership v. Simba Properties Investment Company Limited and Anor (Civil Miscellaneous Application No. 201 of 2020) [2021] UGCommC 33, High Court Commercial Division. In Uganda Muslim Supreme Council v. Babirye Yudaya & Others, Misc. Application No. 548 of 2024, Hon. Justice Douglas Karekona Singiza, Judge of the High Court (as then was) considered the UMSC arbitral clause set out in Article 28 of the UMSC Articles of Association (2022) and held as follows:

"…the UMSC constitution contains a valid arbitration clause, and the parties did not disclose any reason as to why they should not have been referred to the MAC. The decision to bypass the MAC and proceed directly to court appears inconsistent with the dispute resolution framework set out in article 28 of the UMSC constitution. While courts may play a role in ensuring fairness and addressing exceptional circumstances, adherence to the MAC's jurisdiction is essential in upholding the constitutionally mandated process. Resolving the matter within the MAC would not only reinforce the institutional integrity of the UMSC but also promote cohesion and respect for internal mechanisms in the Muslim fraternity in Uganda."

Page 25 of 27

40. I am not aware of any successful appeal against the Babirye Yudaya decision (supra), in the absence of which, the holding by the High Court represents an authoritative statement of the law regarding the arbitral clause of the UMSC Constitution, which the applicants ought to have resorted to first, instead of this court. The net effect of this is that the applicants are improperly before the court as they should have referred the dispute on the election of His Eminence Sheikh Shaban Ramadhan Mubajje as the Mufti of Uganda to the Muslim Arbitration and Conciliation Council (MAC) established under Article 28 of the UMSC Articles of Association. This is third ground on which this application must fail.

### Conclusion

- 41. The decision of the court is that the application challenging the election of His Eminence Sheikh Shaban Ramadhan Mubajje as the Mufti of Uganda is dismissed on the following three grounds: - i). UMSC is a private body which exercises public powers affecting millions of Sunni Muslims in Uganda. However, there is no evidence that the public powers exercised by UMSC, are governmental in nature, in the absence of which, UMSC cannot be subjected to the supervisory power of the court under judicial review. The applicants failed to prove that UMSC exercises public powers which are governmental in nature.

Page 26 of 27

- ii). This court is limited by the religious question doctrine to inquire into a religious dispute concerning the election of the Mufti of Uganda, the spiritual leader of Sunni Muslims in Uganda. This dispute can best be addressed by the followers and leaders of the Muslim religious faith in Uganda and Muslim leaders at a global level. - iii). The UMSC Constitution provides for the Muslim Arbitration and Conciliation Council (MAC) which is best suited to handle a religious dispute concerning the election of the Mufti of Uganda. - 42. Accordingly, this application is dismissed. To promote reconciliation within the Muslim community, as provided for by Article 126 (2) (d) of the Constitution of Uganda, each party shall bear its own costs.

## IT IS SO ORDERED

BERNARD NAMANYA JUDGE 1 July 2025

Delivered by E-mail & via ECCMIS Under the Judicature (Electronic Filing, Service and Virtual Proceedings) Rules, 2025