KAMPALA – High Court Judge Esta Mbayo on Tuesday overturned an order from the Mengo Chief Magistrates’ court through Patrick Ngereza Talisuna that freezed the activities of the Uganda Muslim Supreme Council – UMSC.
Justice Mbayo’s ruling also put an end to a string of applications and orders from the same court relating to the election of the UMSC national chairperson held on December 3, 2022.
The Mengo applications had been filed through Businessman Hassan Bassajjabalaba – following his ejection from the elections where he had planned to compete for the position of UMSC national chairperson. Bassajjabalaba ran to court two days before the elections after receiving a letter from the UMSC secretary-general inviting him to explain why his candidature shouldn’t be can cancelled – yet he had appearance was in violation of the Muslim constitution.
Only hours before the elections exercise, questions emerged how Hajj Basajjabalaba had been nominated as a candidate for the position of national chairman yet he was a chairperson of a political party in Bushenyi – in addition to a history of impeachment from the same office back in 2010. Delegates cited Article 4 of the amended UMSC constitution, which specifically bars active politicians, anybody convicted on any criminal charges under the laws of Uganda and those successfully impeached by the UMSC at any time from running for any office under the council.
Although the chairperson of the UMSC electoral commission summoned the proprietor of Kampala International University to answer queries – regarding his nomination, he disobeyed the invite and instead rushed to court – to securing an bogus order – which among other things directed that the elections he should proceed and participate in the exercise.
However, tables turned against Bassajabalaba after delegates insisted that the electoral commission had irregularly nominated him as a candidate for the position of chairperson since such powers were vested in the Mufti (Ramadhan Shaba Mubajje), who chairs the general assembly during the election of the chairperson.
After failing to force his name onto the exercise’s ballot paper – Bassajjabalaba withdrew the application, which he used to secure the interim orders on December 5, 2022. But reemerged on December 21, 2022, together with three other aggrieved Muslims – petitioning the same court -challenging the decision of the UMSC general assembly to bar him from contesting for the position of national chairperson.
However, before the matter could be heard, on January 4, 2023, the group ran to Mengo Chief Magistrate’s Court – filing another petition accusing UMSC of contempt of court.
On January 10, Bassajabalaba filed another application for an ex-perte interim order, which was heard and granted. The orders restrained the Mufti, his agents, employees of the UMSC, and associates from carrying out any activities of the council until the main case challenging the legality of the election conducted in December was disposed of.
UMSC through its lawyers filed an application challenging the orders, which they said were irregular and illegal. From their view, the order was catastrophic since it put all the activities of UMSC, a purely religious organization, to a halt.
“(UMSC) is a religious body that brings together all the Muslims in Uganda and its duties include organizing daily prayers, coordinating Muslim leadership all over the country, planning for the annual pilgrimage, coordinating the collection of zakat, organizing meetings through its organs for the day to day management and coordination of activities countrywide, among others,” argued the UMSC’s lawyers.
They also argued that the magistrate issued the said orders without hearing from UMSC, which defied the rule of fairness and natural justice. They also argued that the orders were issued based on an application that had been withdrawn from the court system.
In her ruling, Justice Mbayo questioned why the Chief Magistrate had granted Basajjabalaba interim orders when there was no formal application before the court. From her analysis, she concluded that this meant there was no evidence presented to support the granting of the interim orders.
“Counsel for the Applicant only made an oral submission without evidence and the trial Chief Magistrate went ahead to grant orders directing the 1st Applicant (UMSC) to execute the electoral process as earlier slated. The directives would in effect alter the status quo and dispose of the suit before court contrary to the purpose of interim orders, which is to maintain the status quo,” the ruling reads in part.
Based on the submission, Justice Mbayo concluded that the trial magistrate had acted improperly by granting interim orders without formal evidence or an application before him, which altered the status quo. She also questioned why the case, which was filed on January 4, 2023, was heard on January 10 without representation from UMSC.
“There is no evidence on court record to show that the Applicants (UMSC) were served with the application and yet the period of 6 days between filing and hearing of the application was, in my view, enough for the Applicants to be served. All that the Applicants saw were an ex-parte interim order staying all activities of the first Applicant (UMSC). It is a fundamental principle of natural justice to always let the other side be heard as well,” she said.
Justice Mbayo also noted that the court records revealed that several filings by Basajjabalaba, including those seeking interim orders, temporary injunctions, and contempt of court, were not dated or endorsed by the court. She questioned this irregularity and explained that an application only becomes valid when it has been given a date, signed, and sealed by the court.
“…I would find that all the above applications were not valid as they were neither dated, signed nor sealed as required by law when the learned trial Chief Magistrate proceeded ex-parte to hear the application for interim orders,” she noted.
She added;
“The orders that were issued …halting all the activities of the 1st Respondent, arising from an application which is not valid, are a nullity. Therefore, I find that the learned trial Chief Magistrate exercised his jurisdiction illegally and with material irregularity when he entertained and granted ex- parte interim orders … which were not dated, with a signature and the seal of the court.”
The justice also wondered why the trial magistrate entertained an application that was accusing UMSC of contempt of court based on a matter that had already been withdrawn from court. “In this case, there is no existence of a lawful order. The orders that the Applicants are said to have disobeyed…have been established to have been arrived at by the trial Chief Magistrate illegally and in the exercise of his jurisdiction irregularly. They also lapsed on the 5th of December 2022 and the suit from which they arose was withdrawn from court on the same day when they lapsed. So, there are no lawful orders in place for the application of contempt,” the adds.
Based on the issues raised and irregularities noted, Justice Mbayo ruled that the cases related to contempt of court, temporary injunction, and interim orders issued by the Chief Magistrate were not valid applications before the court and should be struck off the court record – adding that Basajjabalaba pays the costs of the application.
