Validity Foundation v FIDA Uganda & 3 Others (Civil Application 264 of 2022) [2024] UGHCCD 68 (25 March 2024)

### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT KAMPALA

## [CIVIL DIVISION]

#### **CIVIL APPLICATION NO. 264 OF 2022**

[Arising from Miscellaneous Cause No. 222 of 2021]

# IN THE MATTER OF AN APPLICATION FOR LEAVE TO INTERVENE AS AMICUS CURIE IN MISC. CAUSE NO. 222 OF 2021

VALIDITY FOUNDATION ======================== APPLICANT

#### BETWEEN

- 1. FIDA UGANDA - 2. ANNET NABWIRE =========================== RESPONDENT

#### AND

- 1. BUTABIKA NATIONAL REFERRAL MENTAL HOSPITAL - 2. THE ATTORNEY GENERAL ===== RESPONDENTS

#### **BEFORE: HON. JUSTICE EMMANUEL BAGUMA**

#### **RULING**

This application is by notice of motion under section 98 of the CPA and order 52 of the CPR seeking for orders that; -

- **a) The applicant be admitted as amicus curie in Misc. Cause No. 222 of 2021.** - **b) The applicant be granted leave to file an amicus brief in this court.** - **c) Any other orders the court may deem appropriate.**

The application is supported by the affidavit of **Mr. Steven Allen** Co-Executive Director of the applicant whose details are on record but briefly states that; -

1. The Applicants are recognized experts regionally and internationally committed to the protection of rights of persons with disabilities, especially persons with mental health issues, and persons with psychiatric diagnoses and or addiction.

- 2. The Applicants possess expertise and knowledge on legal strategies to promote, protect and defend the human rights of people with disabilities worldwide. - 3. The Applicants have interest in the determination of the Main Cause as human rights organizations promoting equity and inclusion and this constitutes fidelity to the law. - 4. The Applicants are neutral and impartial of the dispute between the parties in the Main Cause. - 5. The Applicants further state that the submissions made by them on various points of law regarding the subject matter are novel and shall aid the development of jurisprudence in Uganda. The submissions draw attention to relevant matters of law that are useful, focused, and principled. - 6. The Applicants have previously submitted amicus briefs, expert opinions, legal analyses, intervener and inter-party submissions to various international, regional and national courts like Kenya, Zambia etc, tribunals and Human Rights Commissions on points of law of key importance to human rights protection of the right of people with mental disability. - 7. The Applicants are aware of the current system in Uganda having carried out different research and fact finding missions at Butabika Hospital. - 8. There are questions that have not been dealt with by the pleadings of the parties before the Court and yet are important in the Court's determination of the Main Cause and the need to balance access to Mental health facilities. - 9. The positive benefits of the intervention of the Applicants as Amici Curiae outweigh any possible opposition from the parties to the main cause. - 10. It is in public interest, interests of justice, the promotion and protection of human rights that the application is granted.

The Application was opposed by the 1st and 2nd Respondents through an affidavit in reply deposed by **Oburu Odoi Jimmy,** the Principal State Attorney in the Attorney General's Chambers whose details are on record but briefly states that;-

- 1. The, the application is incompetent and incurably defective since it is neither endorsed by the Registrar of Court nor does it bear the Seal of Court or Stamp duty. - 2. The Applicants are biased, hostile to the 1st and 2nd the Respondents and only seek to support the applicants' case in the main cause.

- 3. the Applicants have not adduced sufficient evidence of expertise on which their application is based. - 4. There is nothing novel that the Applicants are bringing to this case as to warrant their admission as amicus Curie since this application seeks enforcement of Human Rights.

## **Representation.**

At the hearing, the Applicant was represented by Counsel Kwagala Primah, Annet Nabwire represented FIDA Uganda while Ojiambo Richard represented Butabika Hospital.

Counsel agreed that the hearing would proceed by way of written submissions which were duly filed and have been adopted and considered in the determination of the matter before court.

## **Submissions by counsel for the Applicant.**

Briefly submitted and relied on the principles laid down in the case of **SCCA No. 02 of 2016 Prof. J. Oloka Onyango and 8 others Vs Amama Mbabazi, Yoweri Kaguta Museveni and others** and submitted that the said principles were taken into account by the Applicant.

Counsel further referred to the **Kenyan case of Trusted Society of Human Rights Alliance Vs Mumo Matemo & 5 others SCP No. 12 of 2013** where court held that;-

*"while an interested party has a 'stake/interest' directly in the case, an amicus's interest is its 'fidelity' to the law: that an informed decision is reached by the Court, having taken into account all relevant laws, and entertained legal arguments and principles brought to light in the Courtroom.*

*'Consequently, an interested party is one who has a stake in the proceedings, though he or she was not party to the cause ab initio. He or she is one who will be affected by the decision of the Court when it is made, either way. Such a person feels that his or her interest will not be well articulated unless he himself or she herself appears in the proceedings, and champions his or her cause. On the other hand, an amicus is only interested in the Court making a decision of professional integrity. An amicus has no interest in the decision being made either way, but seeks that it be legal, well informed, and in the interest of justice and the public*

# *expectation. As a 'friend' of the Court, his [or her] cause is to ensure that a legal and legitimate decision is achieved."*

Counsel submitted that their intervention in this matter will solely be on the matters earlier highlighted and to aid the Court in the determination of the matter before it. Counsel referred to several authorities which court has put into consideration.

## **Submissions by Counsel for the Respondent.**

Counsel for the Respondent submitted that he was guided by the principles in the amicus application by Prof Oloka Onyango referred to by the Applicant.

Counsel submitted that the Applicant in this case is not impartial since the core foundation and mission of the Applicant which is a foreign NGO is to; -

- i) Act on the instructions of people with mental disabilities - ii) Serve as a watchdog, monitoring Governments, exposing abuses and advocating for change and - iii) Contribute to the broader disability rights movement by offering legal expertise

And hence, it should not be admitted as an amicus in this particular case.

Counsel contended that there is overwhelming evidence to show that the Applicant which is a foreign NGO is into litigation and has represented persons with mental disabilities in courts of law to wit; **Natalia Sitova, from Moldova, at the Chisinua Court of Appeal of Moldova** and thus her approach on issues of mental health and right is biased into litigation.

Counsel further stated that the applicant submitted two Interventions in the European Court of Human Rights one on the right to inclusive education of children with disabilities and a second one on how the denial of reasonable accommodation can amount to torture and ill treatment under the United Nations Convent in the matter of Stefan Stoian against Romania and when the court rejected the intervention, the applicant criticized the decision of Court as confused, disappointing and erroneous in interpretation of the concepts of reasonable accommodation and accessibility.

Counsel referred to the case of **Attorney General of Uganda Vs Silver Springs Hotel Ltd & others CA No. 1 of 1989** where court held that; -

# *"one of the fundamental considerations for any amicus curiae to be admitted is that such a Party must be independent of the dispute between the Parties".*

Counsel submitted that in the instant case the matter before court is contentious and adversarial yet the evidence shows that the applicant lacks neutrality, biased and not impartial as she claims.

In rejoinder counsel for the applicant reiterated his submissions in chief and added that publications on the applicant's websites do not necessarily relate to the applicant's views on the matters before court and that their expertise is necessary in the determination of the main cause. He referred to the case of *Secretariat of the Joint United Nations Programme on HIV/AIDS Vs Human Rights Awareness and Promotion Forum (HRAPF) and Attorney General of Uganda.*

Counsel submitted that of the applicant desires to interpret a provision of The Persons with Disability Act 2016 that is section 32, 43 and 42 visa vis articles 21, 23 and 24 of the constitution as pleaded by the applicant, he should file a constitutional petition and file an application of this nature.

## **Determination of court.**

Amicus curie is an [impartial](https://www.google.com/search?client=firefox-b-d&sca_esv=45fcdbf0a5c834da&sxsrf=ACQVn0_0Bhs3zzSVCPev5wsVzBcfPDdyTg:1710151609760&q=impartial&si=AKbGX_rLPMdHnrrwkrRo4VZlSHiJ--DVrzMlxFv_f6SyH-lTezKqdhDq9catAgFaETERZZAVkR-f_zC8lb4ZIYh0_j-5DAe8LW2l7WVrerseNOVuy9gW8Hw%3D&expnd=1) [adviser](https://www.google.com/search?client=firefox-b-d&sca_esv=45fcdbf0a5c834da&sxsrf=ACQVn0_0Bhs3zzSVCPev5wsVzBcfPDdyTg:1710151609760&q=adviser&si=AKbGX_r0zqXEeLlZhGfi3fbO0QSWdThzFwnD-4zpThOnkcQLAGfcMblL-7olXr6yojzflthMBxDKOyk_t9h4MXZugp70tiU2Ug%3D%3D&expnd=1) to a court of law in a particular case, is an individual or organization that is not a [party](https://en.wikipedia.org/wiki/Party_(law)) to a legal case, but that is permitted to assist a [court](https://en.wikipedia.org/wiki/Court) by offering information, expertise, or insight that has a bearing on the issues in the case. Whether an *amicus* brief will be considered is typically under the court's discretion.

### In the case of **Prof. Joe Oloka-Onyango & Others Vs Amama Mbabazi & Others, SC Civil Application No. 2 of 2016** court noted that; -

In the absence of legislative provisions on Uganda's statute books, we will be guided by Section 39 (2) of the Judicature Act as well as by principles developed by courts in various jurisdictions in determining the admission of amicus curiae. The following are some of the accepted principles; -

## *1. Participation of amici is purely at the discretion of the court.*

- *2. Amicus curiae can be important and relevant in matters where Court is of the opinion that the matter before it requires some kind of expertise which is in the possession of a specific individual* - *3. The ultimate control over what the amicus can do lies exclusively with the Court.* - *4. The amicus must be neutral and impartial.* - *5. The submissions must be intended to give assistance to the court it would not otherwise enjoy.* - *6. Limited to engagement with matters of the law.* - *7. Submissions draw attention to relevant matters of law- useful, focused and principled legal submissions not favouring any of the parties.* - *8. The amici must have valuable expertise in the relevant area of law and general expertise in law does not suffice.* - *9. The points of law to be canvassed should be novel to aid development of jurisprudence* - *10. The participation must be in the wider interest of public justice.* - *11. The interest of the amicus is its 'fidelity' to the law.* - *12. An amicus should address court on points of law not raised by the parties but is of concern to the court.* - *13. Remind the court of legal matters which have escaped the court that may cause a wrong interpretation of law.* - *14. An amicus shall not introduce new/ fresh evidence*

For the interest of justice, and for this court to reach a fair and just decision in this application, court had to peruse **Miscellaneous Cause No. 222 of 2021 vide FIDA UGANDA & Annet Nabwire Versus Butabika National Referral Mental Hospital & Attorney General** where the applicant wishes to be admitted as amicus curie.

On the face of it, the main cause is simply an application for enforcement of human rights particularly freedom from torture, right to health and protection from inhuman and degrading treatment. There is nothing novel about this case, it is based on clear articles in the constitution and as to what transpired are facts which this court will have to investigate.

The applicant has not demonstrated novelty in this matter which requires expertise to warrant its participation as amicus curie. This is a straight forward matter which only requires evidence to prove. "novel" means the quality of being new, original, unfamiliar, unusual or unique. In this case there is nothing new in the miscellaneous cause for enforcement of human rights.

Basing on the facts of this application, the main mission and objectives of the applicant is to advocate and fight for the rights of people with mental disabilities. This prima facie shows that the applicant is not neutral against the rules governing amicus curie and her intervention may influence the decision of court against one party.

The **Black's Law Dictionary, 5th Edition, page 939,** defines the term

*"neutral" as being indifferent; unbiased; impartial; not engaged on either side; not taking an active part with either of the contending sides.*

In addition, **black's law dictionary 5th edition at page 147**, defines bias as an "*inclination, bend, prepossession, a pre- conceived opinion, a predisposition to decide a cause or an issue in a certain way which does not leave the mind perfectly open to conviction."*

According to the case of **Trusted Society of Human Rights Alliance Vs Mumo Matemo & 5 others, SC Civil Application No. 12 of 2013 (Kenya)** an interested party is one who will be affected by the decision when it is made one way or the other.

I have perused the pleadings in the main cause and the amicus brief in support of this application and found nothing missing in the main cause that the applicant seeks to add on. one of the factors to be established by an applicant before admission as amicus curiae is that the submissions of the person or organization draw attention to relevant matters of law that are useful, focused and principled.

**In Prof. Joe Oloka- Onyango & Others vs Amama Mbabazi & Others (supra),** one of the principles laid down by the Supreme Court is that the amicus curiae should address the court on points of law not raised by the parties but is of concern to the court.

In the final analysis, it is the finding of this court that the Applicant has not provided cogent evidence and helpful submissions to warrant admission of the applicant as amicus curie.

# **Conclusion.**

This application fails with the following orders; -

1. The application is hereby dismissed

2. Considering the nature and circumstances of this case, court makes no order as to cost.

Dated, signed, sealed and delivered by email this **25th** day of **March 2024.**

Emmanuel Baguma

Judge.