[2024] UGHC 417

### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE

### MISC. CAUSE NO. 29 OF 2023

# MALE H. MABIRIZI K. KIWANUKA ::::::::::::::::::::::::::::::::::::

### **VERSUS**

### 1. INSPECTOR GENERAL OF POLICE

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

# 1. Introduction:

2. This application was brought under Paragraph 1, 26, 29(a) & (f) of the National Objectives & Directives Principles of State Policy, Articles 8A, $17(1)(i)$ , 20(1), 29(1)(a), (b), (d) & (e), 29 (2)(a), 38(1), 43(2), 139(1), 212, 213(4) & 221 of the Constitution, section 33, 36(1) & (2) & 39 of the Judicature Act, section 3 of the Judicature (Amendment) Act, 2002, Rules 1A(b), 3(a) & (c), 3A & 6 of Judicial Review Rules, 2009, as amended 2019 for orders and declarations-

## **Declarations-**

- (a) That the 7^th September, 2023 directive by Nuwagira John, for Inspector General of Police halting civic and political countrywide mobilization activities of National Unity Platform political party, a political party in opposition; - (b) That the $12^{th}$ September, 2023 directive by Nuwagira John, for Inspector General of Police that Uganda Police would not provide security to the delegates conference of Forum for Democratic Change Political Party, a political party in opposition; - (c) That the 13^th September, 2023 directive by Katsigazi Tumusiime for Inspector General of Police stopping civic and political countrywide activities of National Unity Platform Political Party, a political party in

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opposition; were illegal, procedurally improper, irrational and ultra vires to the functions of Uganda Police Force.

# Orders-

(a) An order of Certiorari quashing

- The 7^th September, 2023 directive by Nuwagira John, for $(i)$ Inspector General of Police halting civic and political countrywide mobilization activities of National Unity platform political party, a political party in opposition; - $(ii)$ The 12^th September, 2023 directive by Nuwagira John, for Inspector General of Police that Uganda Police would not provide security to the delegates conference of Forum for Democratic Change political party, a political party in opposition; - $(iii)$ The 13^th September, 2023 directive by Katsigazi Tumusiime for Inspector General of Police stopping civic and political countrywide activities of National Unity Platform political party, a political party in opposition; - (b) An order of prohibition prohibiting Inspector General of Police or his or her subordinates from any further interference with citizens' political and civic activities and or prohibiting the same; - (c) A permanent injunction prohibiting the Inspector General of Police or his or her subordinates from any further interference with citizens' political and civic activities and or prohibiting the same; - (d) General, aggravated and exemplary damages to be paid to applicant for inconveniences caused. - 3. This application is supported by the affidavit sworn by the Applicant where he averred that- - (a) He is a male adult indigenous Ugandan citizen of sound mind, a lawyer by profession with sufficient interest in good governance of Uganda, rule of law and free political space in Uganda; - (b) On 7^th September, 2023, Nuwagira John, for Inspector General of Police wrote to the Secretary General National Unity Platform, a political party

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in opposition, halting civic political countrywide mobilization activities of National Unity Platform political party;

- (c) On the 12^th September, 2023, Nuwagira John, for inspector General of Police wrote to National Chairman, Forum for Democratic change informing him that Uganda Police would not provide security to the delegates conference of Forum for Democratic Change political party, a political party in opposition; - (d) On 13^th September, 2023, Katsigazi Tumusiime, for Inspector General of Police issued a press release stopping civic and political countrywide activities of National Unity Platform political party, a party in the opposition; - (e) The above directives were illegal, procedurally improper, irrational and ultra vires to the function of Uganda Police Force; - (f) The Applicant has sufficient interest in good governance of Uganda, rule of Law and free political space in Uganda; - (g) It is fair, equitable and in the interest of protecting the rule of law in Uganda that this application be allowed; - (h) He affirms to this affidavit in support of my application for the declaration and orders of certiorari, prohibition as well as a permanent injunction. - 4. In reply Topacho Juliet for the Attorney General's Chambers opposed the application and averred as follows- - (a) That the Applicant has not demonstrated having any direct and sufficient interest in the civic and political country wide mobilization activities of the National Unity Platform; - (b) That the Applicant has not demonstrated having any direct and sufficient interest in the delegates conference of Forum for Democratic Change; - (c) That the Applicant has failed to demonstrate that he is a member of either National Unity Platform or Forum for Democratic Change and he has failed to demonstrate direct and sufficient interest in the matter;

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- (d) That the Uganda Police Force is mandated by law to maintain law and order and all the directives issued by Uganda Police Force to regulate the political activities of National Unity Platform and Forum for Democratic Change are well within its mandate; - (e) That this judicial review application is an abuse of court process which an attempt by the Applicant to file a public interest litigation suit disguised as a judicial review application and it ought to be dismissed with costs; - (f) That the Applicant has failed to show that he was directly aggrieved by the legal directives issued by the Uganda Police Force to regulate the political activities of National Unity Platform and Forum for Democratic Change. - 5. In rejoinder, the Applicant averred that- - (a) He has sufficient interest in the matter since he is a Ugandan citizen interested in good governance of Uganda, democracy, rule of law and free political space in Uganda; - (b) He need not prove a direct governance or sufficient interest for him to file the instant Application; - (c) He need not be a member of National Unity Platform or Forum for Democratic Change to file the instant Application; - (d) The impugned decisions and actions were illegal, procedurally improper, irrational and ultra vires to the functions and powers of Uganda Police and not demonstrably justifiable in a free and democratic society and not allowed under Uganda law; - (e) The instant application is properly before court.

# 6. Legal Representation

7. The Applicant represented himself whereas the Respondents were represented by Sserugendo Joshua, State Attorney from the Attorney General's office.

# 8. Submissions

9. This matter proceeded by way of written submission and both parties complied and their respective submissions are on the court record.

### 10. Submissions of the Applicant

- 11. The Applicant in his submissions raised two issues for this court's resolution and these include- - (a) Whether the impugned police directives halting and banning civic and political countrywide mobilization activities of National Unity Platform political party and the Delegates Conference of the Forum for Democratic Change political party in opposition were illegal, procedurally improper, irrational and ultra vires to the functions of the Uganda Police Force? - (b) What remedies are available to the parties? - 12. Issue No.1: Whether the impugned police directives halting and banning civic and political countrywide mobilization activities of National Unity Platform political party and the delegates conference of the Forum for Democratic Change political party in opposition were illegal, procedurally improper, irrational and ultra vires beyond the functions of the Uganda Police Force? - 13. While arguing the first issue, the Applicant discussed the principles which are considered to determine whether the Uganda Police Force as a body in the exercise of its powers acted illegally with procedural impropriety or irrational. - 14. The Applicant submitted that his duty is to show how the actions of the Respondents complained against were illegal and procedurally improper. He cited the following constitutional provisions in support of his submission-Articles 213(4), 221, 29(1) (a) & (d), 38, 72(1)

He also cited the case of Agello Muwanga V. The Commissioner for Land Registration & Anor Miscellaneous Cause No. 17 of 2013 where court held that- "... the High Court may upon application for judicial review, grant among other orders an order of certiorari... an order of prohibition... a declaration or an injunction... in order to succeed..., the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety."

15. The Applicant further cited the case of Barugahare V. The Board of Directors of Uganda Printing and Publishing Corporation & Anor, High

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**Court Misce Cause No. 65 of 2016**, the court held that; "illegality is when the decision making authority commits an error of law in the process 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... 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... it may also 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."

- 16. In the view of the above provisions of the law and authorities, the Applicant argued that the Constitution requires Uganda Police to act in accordance with the law and none of the letter or directives was anchored on any valid and applicable law but instead what was done was illegal and procedurally improper. - 17. The Applicant submitted that it is not hard to discern the irrationality of any of the decisions; that Uganda Police which is mandated to provide security states that it will not do so because of purported wrangles yet even if there were wrangles, that was the very reason why such protection was needed but instead of providing security so that a leader is not assassinated as claimed, police just banned constitutionally permitted interactions and assemblies and secondly, instead of dealing with alleged accidents pursuant to Traffic and Road Safety Act or alleged crimes under the Penal Code Act, Police just banned civic activities. He cited the case of **Uganda National** Diary Traders Association V. The Diary Development Authority & Anor Misc. Cause No. 113 of 2015. - 18. He prayed that the first issue be answered in the affirmative - 19. Submissions of counsel for the Respondent - 20. Counsel for the Respondent in his submissions framed 4 issues and these include- - (a) Whether the Applicant has sufficient interest to institute the Application?

- (b) Whether the Application is disguised application to enforce human rights brought by way of judicial review? - (c) Whether the police actions are amenable for judicial review and or whether the application is properly before court? - (d) Whether the Applicant is entitled to the remedies prayed for? - $21.$ Issue No.1: Whether the Applicant has sufficient interest to *institute the Application?* - 22. Counsel submitted that the Applicant does not have direct or sufficient interest to file the present application. He cited Rule 3A of the Judicature (Judicial Review) (Amendment) Rules, 2019 which provides that any person who has direct or sufficient interest in a matter may apply for judicial review. He argued that the reasons why the rules require direct or sufficient interest were stated in the case of **Muhumuza Ben V.** Attorney of Uganda & 2 others HCT Miscellaneous Cause No. 212 of **2020,** where court noted that- "...... any citizen who is no more than a wayfarer or officious intervener without any interest or concern beyond what belongs to any one of the citizen in this country, the door of the court will not be ajar for him. But if he or she belongs to an organization which has special interest in the subject matter, if he has some concern deeper than that of a busy body, he could be locked out of the gates of the temple of justice." - 23. Counsel argued that from the facts, the Applicant only states that he has sufficient interest in the good governance of Uganda, the rule of law and free political space in Uganda which in the words of the presiding judge in the above case, the Applicant is no more than "a Wayfarer of officious" intervener without any interest beyond what belongs to anyone of the citizens in this country hence, the Applicant has no sufficient interest to institute this Application. - 24. Counsel submitted that the matter is not one that can strictly be considered public interest because, first, the applicant claims to be protecting his own rights and secondly, because the institutions whose rights the Applicant seek to protect; the National Unity Platform and the Forum for Democratic Change are capable of suing on their own behalf to protect their interests. Counsel cited the case of Male H. Mabirizi Kiwanuka V. Uganda Revenue Authority, Misc Cause No. 84 of 2021, the same Applicant filed an Application for judicial review where among other reliefs sought, he sought a declarations that the decision by the Respondent's Commissioner General to compromise High Court Civil Appeal No. 31 of 2020 by entering a consent withdrawal in which a sum of Ugx: 5, 108, 848, 944/= was acknowledged as due from the taxpayer thereby vacating the total award of Ugx: 20, 053, 441, $670/$ = that had been awarded by the Tax Appeal Tribunal to the Respondent, was illegal, ultra vires to the powers of the Respondent, procedurally improper, irrational an unreasonable.

25. Court in rejecting the Applicant's claim as for not showing sufficient interest, **Justice Mubiru Stephen** held that; "... In the instant case, the Applicant does not claim to represent any interest other than his own. Moreover, it is not and could not be said that there are no challengers directly affected by the policy who could realistically be expected to litigate. In a case such as this, where the Applicant does not purport to represent any interests but his own, the court is required to focus on the relief sought and to consider, in light of the Applicant's position whether that relief is capable of conferring a benefit (not necessarily a pecuniary one) on him. The answer to that question is currently "No". It follows that, as matters presently stand, the Applicant lacks standing to challenge the decision of the Respondent. Although the strict rule of locus standi applicable to private litigation is relaxed in public interest litigation, the Applicant is not espousing a cause of the downtrodden and the poor who have access to justice. The Applicant instead seeks to pursue the cause of persons who are able to seek redress on their own. He therefore cannot, in a representative capacity as a public spirited citizen, be a person aggrieved when his or her own interests are not in issue. He intends to question something with which he has no legitimate concern at all, and worse still, the basis for the application is suspicion only. He has also not

shown that he is capable of litigating neither has direct nor sufficient interest in the subject of the decision he seeks to impeach..."

- 26. Counsel further submitted that one of the reasons for preventing people with direct or sufficient interest in bringing a suit is because they are likely to bring week suits and thus bar the real victims from bringing substantive suits by operation of the doctrine of lis pendens. He cited the case of Community Justice and Anti- Corruption Forum V. Law Council & Sebalu and Lule Advocates HCT Misc. Cause No. 338 of 2020, where it was held that; "The unqualified litigants or persons without direct and sufficient interest (meddlers) are more likely to bring flimsy or weak or half-baked actions/cases and that these are likely to create bad or precedents. It may be a bar for other genuine persons with sufficient interest from challenging the actions or decisions affecting directly. The courts should be satisfied that a party has sufficient interest and ensure that they are presented with concrete dispute, rather than abstract or hypothetical cases. - 27. Following the above authority counsel submitted that, the Application before court is weak and poorly pleaded since the affidavit in support does not state whether the two political parties agreed with the security concerns raised by Police in the letters. - 28. Counsel added that the authorities cited by the Applicant like Attorney General V. Tinkasiimire and 12 Others CACA 208 of 2013 and National Drug Authority and Anor V. Nakachwa CACA 281 and 286 of 2017 in support of his claim are no longer good law since they were decided before the enactment of the Judicature (Judicial Review) (Amendment) Rules 2019 wherein rule 3A expressly introduced the requirement of sufficient cause. - $29.$ Issue No.2: Whether the Application is a disguised application to enforce human rights by way of judicial review? - 30. Counsel submitted that the Application before court is essentially an application to enforce human rights that has been wrongfully brought by way of judicial review. He referred to all the Constitutional rights provided

for under the Articles of the Constitution of the Republic of Uganda relied upon by the Applicant in the notice of motion.

- 31. Counsel cited Editors Guild Uganda Limited & Anor V. Attorney **General HCMC No. 400 of 2020**, where court held that the constitutional Articles relied on by counsel for the Applicant would require a proper and specific application on violation of human rights under Article 50 of the Constitution of the Republic of Uganda and thus could not be brought as an issue under judicial review. - 32. The court added that; "case of violation of rights and fundamental freedoms should be filed as provided for under the constitution or the relevant law distinctly without joining them with administrative applications like it has been done in this case." - 33. Counsel further cited Lukwago Erias V. Electoral Commission Misc **Cause No. 393 of 2020** where it was held that; "The right to apply to the High Court for redress under the Constitution when any human right or fundamental freedom is or is likely to be contravened, is an important safe guard of those rights and freedoms; but its value will be diminished if it is allowed to be misused as a general substitute for normal procedures for invoking judicial control of administrative action." - 34. Issue No.3: Whether Police acted illegally in stopping the assemblies? - 35. Counsel submitted that while police may not prevent persons from assembling, the police still has power to regulate assemblies like annexure "A" to the affidavit in support indicates that there was a terror threat against the National Unity Platform and similarly the letter dated 12^th September, 2023 in the affidavit in support shows that the Police was concerned about the confusion in the party leadership of Forum for Democratic change. He contended that the acts of Police were lawful and not ultra vires. - 36. In rejoinder counsel for the Applicant submitted that the claim that he needs sufficient interest is not rooted in any provision of the Judicature Act which sets up Judicial Review. He cited **Attorney General V.**

**Tinkasiimire & 12 others (Supra)**, where court stated that; "The purpose of Judicial Review is ... to ensure that public powers are exercised in accordance with the basic standard of legality, fairness and rationality. He stated that the purpose cannot be achieved if a restrictive approach is adopted.

- 37. The Applicant contended that section 3 of the Judicature (Amendment) Act, 2019 places no restrictions whatsoever as there is no word by a person with sufficient interest. He cited **National Drug Authority & Anor** V. Nakachwa CACA No. 281 & 286 of 2017, Aids Health Foundation V. Mirembe Kizito CACA No.147 of 2014 and Male H. Mabirizi K. Kiwanuka V. Attorney General HCT Misc. Cause No. 194 of 2021 to support his submissions. - 38. The Applicant argued that in affidavit in support he averred that he is a male adult Ugandan citizen of sound mind with sufficient interest in good governance, rule of law and free political space in Uganda and that the same was strengthened by the decision in the Mabirizi K. Kiwanuka V. Attorney General above which are clear indications that he has sufficient interest. - 39. The Applicant further submitted that neither the Judicature Act nor the Rules thereunder have a requirement that an Applicant need to be aggrieved as the Respondents put it. - 40. Analysis of Court - 41. The Respondents having raised points of law in their submissions and the general rule is that where points of law are raised, courts ought to determine them first. I will follow the same principle and handle the preliminary objections or points of law first as below- - 42. Issue No.1: Whether the Applicant has sufficient interest to *institute the Application?* - 43. Rule 3A of the Judicature (Judicial Review) (Amendment) Rules, **2019** provides that-

"Any person who has a direct or sufficient interest in a matter may *apply for judicial review.*" (The outlined emphasis mine)

- 44. In Halsbury's Law of England/ Judicial Review Volume 61A (2023) it was stated that; "claimants must show that they have sufficient interest (also referred to as standing or locus standi) to which the Application *relates, in order to bring proceedings for judicial review.*" - 45. In R.v. Inland Revenue Commissioner Ex. Parte National Federation of Self -Employed and Small Business Ltd [1982] A. C. 617 it was stated that-

"the general trust of the decision has two elements to it, first, the applicant must show his or her relationship; what the matter is and establish an argument. Secondly, the applicant must show his or her *relationship to that matter, thus the test is a mixture of the fact and* law which merits to show a prima facie case".

46. Also in **Vony Kumar V. State of U. P and Others Supreme Court of India Case No. 1253 of 2001**. In that case, the Supreme Court upheld the High Court decision when it held that-

> "Generally speaking a person shall not have locus standi to file a writ petition if he is not personally affected by the impugned order or his *fundamental right have neither been directly or substantially invaded* nor is there any imminent danger of such rights being invaded or his acquired interests have been violated ignoring the applicable rules. The petitioner has not filed the petition in public interest and did not disclose the circumstances which prevented the affected persons from approaching the court...... no circumstance was mentioned in the petition which allegedly incapacitated the affected persons from filing

- the writ petition. The High Court was therefore right in dismissing the *writ petition holding that the petitioner had no locus standi*" 47. In the present case, the Applicant in his averments did not show whether - he is a member of the National Unity Platform political party or a member of Forum for Democratic Change political party to make him a party affected by the actions of the Uganda Police Force. - 48. Rule 3A of the Judicature (Amendment) Rule, 2019 clearly states that a party proceeding by way of judicial review must have sufficient interest in

the matter. The term sufficient interest has been interpreted by different authorities as cited in the body of this ruling.

- 49. Following the guidance of the above authorities, a person seeking remedies under judicial review must therefore have direct and substantial interest in the matter beyond what belongs to any one of the citizen in the country. - 50. The Applicant averred under paragraph 2 of the affidavit in support that he has sufficient interest in good governance of Uganda, rule of law and free political space. - 51. The above literally means that the interest the Applicant has in the matter is like what any other Ugandan would have which is contrary to the meaning of the term sufficient cause. - 52. The term sufficient cause means that a person must be directly and substantially affected by the order. For example, in the present case, the Applicant ought to be directed or substantially affected by the letters which were written by the Uganda Police Force. In other words, he ought to at least prove that he is a member of the aforementioned political parties. - 53. Secondly, if the Applicant was not directly or substantially affected, he ought to have indicated in his application that the circumstances that incapacitated political parties which were directly affected by the impugned orders from instituting the same application but he did not. - 54. Before I take leave of this matter, the Applicant should know that there is a difference between judicial review and public interest litigation. In judicial review the applicant must have been directly, sufficiently or personally affected by the actions or decisions of a public body while public interest litigation it must be a legal action that is taken on a human rights or equality issue of broad public concern. - 55. I am therefore in agreement with counsel for the Respondent that the Applicant ought to have brought this application by way of public interest litigation on behalf of the said political parties since he doesn't have direct, sufficient or personal interest in this matter. - 56. In the circumstance, the Applicant failed to show that he has locus standi to institute this application.

- 57. Having found that the Applicant does not have sufficient interest to institute this application, this finding by implication has disposed off the entire application. - 58. This application is accordingly dismissed with costs to the Respondents.

I so order


Delivered via email on this $31^{st}$ May 2024