THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

CIVIL DIVISION

MISCELLANEOUS CAUSE NO.143 OF 2022

1. NIWABIINE JOSSY
2. MAGANDA JULIUS
3. MIVULE RONALD MUSOKE
4. RUTH KARUNGI TUKAHIRWA
5. ISA KATO
6. NUWAGABA HERBERT
7. DR. ISAAC LWANGA BYANGIRE
8. SAMUEL MUGENYI
9. KYASIIMIRE SHEILAH
10. AMANYA GERMAN
11. KYAGUBA ROBERT
12. ABIGABA ADONIA
13. NAMPWERA AMBROSE--------------------------------- APPLICANTS
14. RWEBISENGYE L.B
15. KIZITO RICHARD
16. ATEGEKA MOSES
17. WEBALE ROBERT
18. KAWOOYA KIGONGO SAMUEL
19. AGABA GILBERT
20. ASIIMWE MICHEAL
21. DR. KISEMBO EMMANUEL
22. MUTSIKA IVAN
23. BWENGYE LAUBEN
VERSUS

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 1. NATIONAL RESISTANCE MOVEMENT
2. THE NRM ELECTORAL COMMISSION-------- RESPONDENTS

BEFORE HON. JUSTICE SSEKAANA MUSA

RULING

The Applicant filed an application for Judicial Review under Article 28

(1),42 and 44(c) of the Constitution and Section 33,36 & 38 of the Judicature
Act as amended, Articles 9(1)(e), 13(1), 39 (10)(a-e) of the Constitution of the
National Resistance Movement (2015) as amended and Rules 3,6, 7 and 8 of
the Judicature (Judicial Review) Rules, 2009 for;

1. A declaration that the resolution by the Central Executive Committee (CEC)

a top organ of the 1st respondent to endorse/nominate the incumbent (NRM)
Representatives to the East African Legislative Assembly (EALA) as party
candidates Flag Bearers for the 2022-2027 EALA term of office without
holding valid elections, is tainted with illegality, irrationality,
unreasonableness, procedural impropriety, discriminative of the other
aspiring contestants and is null and void.

2. An Order of certiorari doth issue quashing the impugned CEC resolution

ring-fencing EALA (NRM) POSITIONS exclusive to the incumbent NRM
EALA Representatives for the 2022-2027 term of office on account of the said
illegality, irrationality, unreasonableness, procedural impropriety and
discrimination.

3. An order of prohibition and or injunction doth issue restraining the

respondents from implementing further the impugned CEC resolution,
unless the same is amended to allow the nomination and election of the
applicants as NRM flag bearers for the positions of members of Parliament of
the East African Legislative Assembly.

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 4. An order doth issue directing the 2nd respondent to nominate the applicants
as candidates to NRM Parliamentary Caucus for consideration and election
as party flag bearers for the positions of Member of Parliament of the East
African Legislative Assembly(EALA)

5. An order against the respondents to pay damages to the applicants.

6. An order that the respondents pay the costs of the application.

The grounds in support of this application were stated briefly in the Notice
of Motion and in the affidavit in support of the application by Mivule
Ronald Musoke but generally and briefly state that;

1. The Applicants are aspiring candidates for the office of Member of

Parliament of East African Legislative Assembly in the on-going
primary elections process organized and coordinated by the 2 nd
respondent to elect party flag bearers.

2. That on the 28th June 2022 the 2nd respondent invited interested and
qualified persons to express interest (to participate in the primary
election) for the position of NRM Flag Bearer for Member of
Parliament to the East African Legislative Assembly (EALA) 2022-
2027 term of office.

3. That in response to the said invitation, the applicants tendered in

their written expression of interest to contest for the positions.

4. That on the 8th July 2022, the applicants among others were invited
to State House at Entebbe to participate in the vetting process and
interface with Central Executive Committee of the party.

5. That while at State House Entebbe the applicants were addressed by

His Excellency the President of Uganda/Chairman of the 1 st
respondent and the Chairperson of the 2nd respondent.

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6. That the applicants’ saw the document circulating:
“…the 4th Central Executive Committee of the National Resistance
Movement, at its 10th Meeting sitting at Entebbe today 8th July 2022,
hereby resolves;…that the incumbent EALA members be
maintained….to continue their tenure for another term of office as
Members of the East African Legislative Assembly (EALA). CEC
therefore endorses (incumbents) to the NRM Parliamentary Caucus as
NRM Candidates for the position of Member of Parliament of the East
African Legislative Assembly (EALA)..”

7. That the resolution and the decision by the respondents ring-fence

positions of Member of Parliament of EALA is not only reasonable,
but also biased, selfish, malicious, illegal and discriminative in
nature, yet with no just cause whatsoever.

8. That by reason of the respondents’ illegal, unreasonable, biased,

selfish resolution and decisions, the applicants have been
disenfranchised and denied his right to participate in the NRM
party electoral process, and which has caused them to suffer mental
anguish and injury for which they claim damages.

9. That the applicants have incurred a lot of expenses in electoral

process basing on the political roadmap issued by the 2nd
respondent, traversing the whole country conversing for support,
and were looking forward to successfully participate in this election
as party flag bearers, until the respondents passed a resolution to
lock them out of the electoral process, for which they shall claim
damages.

10. That the applicants have no alternative remedy other than

challenging the respondent’s resolution.

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The respondents opposed this application and the 1 st respondent filed an
affidavit in reply through Oscar John Kihika-Director Legal and the 2nd
respondent filed an affidavit in reply Dr. Tanga Odoi the Chairman of the
Electoral Commission.

1. The 2nd respondent is not an entity capable of being sued and as such
has been wrongly added as a party to this application.

2. That the applicants have not exhausted all the available remedies
within the 1st respondent’s party structures under the Constitution of
the National Resistance Movement-Reprint 2020, The National
Resistance Movement Election Regulations 2020, and National
Resistance Movement Parliamentary Caucus Rules of Procedure,
2014.

3. That the 1st respondent’s Election Regulations provide for an election

disputes tribunal that is responsible for all disputes arising from the
parties electoral processes.

4. That the application is premature as the 2nd respondent is yet to hold

nominations and election of candidates of East African Legislative
Assembly.

5. That the procedure for nominations and elections of candidates for

the 1st respondent is well documented in the internal documents of
the 1st respondent and no nominations have yet taken place.

6. That the date for nominations, campaigns and election of candidates

of East African Legislative Assembly and is yet to be communicated
by the 2nd respondent.

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 7. That the Central Executive Committee of the 1 st respondent exercised
its’ authority in accordance with the Constitution of the National
Resistance Movement-Reprint 2020, the National Resistance
Movement Election Regulations 2020,and National Resistance
Movement Parliamentary Caucus Rules of Procedure, 2014.

8. That no member of the 1st respondent has been barred from

participating in primary elections for the election of members of the
East African Legislative Assembly.

9. That the Central Executive Committee of the 1 st respondent has

mandate and power to recommend members to the Parliamentary
caucus for the election of East African Legislative Assembly.

10. That the resolution of the 4th Central Executive Committee of the 1st
respondent is not final within the party structures.

11. That the applicants are not yet candidates within the meaning of the
rules of Procedure for the Election of Members of the East African
Legislative Assembly.

At the hearing of this application the parties were heard on oral

submissions although the applicants’ counsel was able to file their written
submissions which I have read and considered in the determination of this
application.

Three issues were proposed for court’s resolution;

1. Whether the application raises any valid grounds for Judicial
Review?
2. Whether the applicants were accorded a fair hearing?

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 3. Whether applicants are entitled to the remedies sought?

The applicant was represented by Mr. Robert Rutaroh Muhairwe and Ms

Talibba Tracy whereas the respondents were represented by Mr. Ssebuufu
Usaama, Mr. Bazira Anthony and Mr. Achiba Micheal Edwin.

The 7th applicant withdrew his name from the list of applicants contending
that he was never consulted before he was included on the list of
applicants. This court accordingly allowed his withdraw from the
proceedings.

After hearing the submissions of the parties I realised the first issue ought
to have been: Whether the application is competently before the court?

The respondents’ submission that the applicant has no merit and it is not a
fit and proper application to be brought by way of Judicial Review. Firstly,
the NRM Electoral Commission is not a proper party, which should be
brought before court in these proceedings and doesn’t have a legal
personality before the courts of law. The proper person to be sued is the
NRM as the political party but not it’s departments or organs. The
provision of the law is in Section 6 sub section 3 of the Political Parties and
Organization Act. That is the law under which a political party can be sued.
My lord the provision only grants corporate personality to a political party
and not it’s departments. See Uwimbabazi Beatrice versus The NRM
Election District Tribunal and Honorable Busingye Harriet Mugenyi
Miscellaneous Cause No. 15 of 2020. we pray that the application against
the NRM EC should be struck out as such my lord.

The second ground of opposition to this application is that the applicants

have not exhausted the internal party remedies available. The NRM has
regulations, which govern their internal party electoral processes. The
regulations are called the National Resistance Movement Election
Regulations 2020. They provide that there shall be an Election Disputes
Tribunal at National level and at lower levels of authority. Regulation

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20(b)(b) provides for tribunals at national level. The applicants were
supposed to exhaust the internal remedies and the internal dispute
resolution mechanism within the NRM Constitution, therefore there action
before this court was premature. See Miscellaneous Cause No. 59 of 2020,
Semwanga Godfrey and 31others versus Democratic Party.

The application is an abuse of court process, the applicants want to eat

there cake and have it at the same time. That in law the applicants are
approbating and reprobating since they expressed the interests to contest
for these positions and it set out the procedure to be followed and they
were clearly told that their names shall be submitted to CEC for vetting
after which they will go to the Parliamentary caucus. The applicants choose
not to object to this at that stage but after the process and procedure they
are challenging the very system that invited them to take part. It is
undisputed these are party members. Membership to a political party is not
forceful, it is contractual, so you agree to be bound by the rules of the party
to which you subscribe. Therefore for them to complain after not going
through CEC is having their cake and eating it. It is approbation and
reprobation, which is not allowed before this honorable court. See Male H.
Mabirizi Kiwanuka versus Attorney General.

Counsel further submitted that vetting is not new to political party

processes, in fact it is a difficult arena for the court to descend into, political
parties should be allowed to vet, aspirants for different positions. When
they are doing it they are carrying out a political act, what they consider is
just political expediency and political strategy on how to win an election.

There were 130 NRM members expressed interest for these 6 positons, it is
not in the interest of the party to forward the 130 to Parliament for the
election. The CEC sat and considered 63, because 67 withdraw their
expression of interest. On the 63 as you will see in paragraph 11 of Oscar
Kihika’s affidavit and Dr. Tanga Odoi, the CEC performed it’s duty and
only recommended 6 and the names are listed. Judicial Review is not about
the decision, but the decision making process. The CEC carried out it’s

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mandate, vetted 63 members and it’s wisdom and discretion passed only 6.
The CEC didn’t elect, vetted and recommended 6 for the available
positions.

This court should take Judicial Notice that this happens elsewhere in other
political parties, there are those vetting organs of those political parties,
NUP, DP,FDC they do it differently so we pray that the court doesn’t
interfere in the exercise of the political mandate or political strategy of the
political parties.

The respondents’ counsel submitted that applicants did not file the
authorization to swear the affidavits in support of the suit. Mr. Mivule
doesn’t have the authorization to depone this affidavit on behalf of the rest
of the applicants. There are 23 applicants in number but the letter of
authorisation only has 18 names. It has not been explained why someone
that is purporting to swear an affidavit on behalf of the rest no explanation
is given to this court as to why the rest of the members have not a penned
their signatures. The new Civil Procedure Rules under Order 1 Rule
8(1),(2),(3)(b) and (4). In these new Civil Procedural Rules of 2019, before a
person institutes a suit in the courts of law, they are supposed to get an
authorization from every intended party. Counsel submitted that this
authorization that was served on the respondents is an afterthought, made
to hoodwink court that the applicants there in authorized the deponent
herein Mr. Mivule to swear an affidavit on their behalf.

Counsel further submitted that that this court should expunge some of the
paragraphs that have been referred to in the affidavit in support. Order 19
Rule 3 of the Civil Procedure Rules, a party is supposed to depone only
facts that are within their knowledge. But under this paragraph the
deponent herein is cross-examining court, he poses a question, what was
the purpose of the 2nd respondent to invite the applicants to express interest
to participate in primary elections for the positions of members of
Parliament of the East African Legislative Assembly. Affidavits are based
on facts and evidence, a party has no chance of cross-examining court.

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Paragraphs 6 and 10 of the affidavit in support the said paragraphs are very
argumentative, they are too length. It is as if the deponent was submitting
in an affidavit in support.

The applicants’ counsel submitted that the applicants were intending

candidates and the 2nd respondent being the NRM Electoral Commission
has the duty under the party Constitution to organize and conduct
elections. Therefore, bringing this matter concerning election to court
without the 2nd respondent would leave a gap so that is how the 2nd
respondent is here.

The respondents’ submission that the application is premature or that, the

applicants didn’t exhaust all available remedies internally is baseless. The
nature of the claim by the applicants is that, there are no readily available
remedies under the law governing the NRM. The Central Executive
Committee which passed the resolution is the highest organ of the party. It
only compares to the Supreme Court in the hierarchy of Courts of
Judicature that when the decision is taken by the Central Executive
Committee of the NRM, you can’t challenge it anywhere within the party. It
can only be the court, which have the long arm of the law that can now
touch and investigate the decision of the Central Executive Committee. But
with the NRM nobody, it is the submission of the applicants unless the
respondents to prove me otherwise that the Central Executive Committee
decision is final in NRM Matter. So the applicants had nowhere to go
because the decisions are taken at the top. They had no remedies to exhaust
in the party.

The NRM Electoral tribunal has no jurisdiction in this matter, this is a

decision of the Central Executive Committee effectively stopping the
applicants from taking part in the election and so the applicants could not
again start going to the election tribunal.
The tribunal has no jurisdiction in this matter where CEC has taken a
decision, stopping the applicants from participating. Otherwise the tribunal
would have jurisdiction if the applicants had taken part in an election and

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they are disgruntled with the results of the election, then they would run to
the tribunal.
Analysis

The respondents counsel submitted that the 2 nd respondent was wrongly

joined as a party to proceedings and that it is not a body corporate to be
sued in its name. The 2nd respondent is The NRM Electoral Commission
and is only part of the structures of NRM party to manage and conduct
elections within the party.

This court agrees entirely with counsel for the respondents that the 2nd
respondent is not a body corporate and cannot be sued in its name. Section
6(3) of the Political Parties and Organisations Act 2005 provides that;
A political party or organisation registered under this Act shall be a body corporate
and shall have perpetual succession and may sue or be sued in its corporate name.

Therefore, a political party in the eyes of the law and under the
Constitution is a corporate legal entity represented by its National Officers
not sectional branches or segments or ad-hoc committees which do not
qualify as a political party. Therefore a cursory reading of section 6 of
Political Parties and Organisations Act recognizes one political party
registered as one corporate entity. See Wembabazi Beatrice v The NRM
Election Disputes Tribunal & Hon. Busingye Harriet Mugenyi High Court
Miscellaneous Cause No. 15 of 2020(Masindi).

The 2nd respondent was wrongly sued and is accordingly struck off with
costs

Secondly, the Application is challenged for being an abuse of court process

on account of the Applicants’ failure to exhaust the existing remedies
available within the party or under the Political Parties and organisations
Act.

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It is a well-established proposition that where a right or liability is created
by statute or instruments which gives a special remedy for enforcing the
same, the remedy provided by statute or instrument must be availed of in
the first instance.

Rule 5 of the Judicature Judicial Review (Amendment) Rules 2019 which

introduces Rule 7A (1) (b) is couched in the following terms;
“The court shall in handling applications 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;”

This court has pronounced itself in matters where applications where filed
without exhausting available remedies. In Sewanyana Jimmy v Kampala
International University HCMC No. 207 of 2016. The court dismissing a
similar application for failure to exhaust existing remedies within the body
held that;
Where there exists an alternative remedy through statutory law then it is
desirable that such statutory remedy should be pursued first. A court’s
inherent jurisdiction should not be invoked where there is a specific statutory
provision which would meet the necessities of the case. This is the only way
institutions and there structures will be strengthened and respected.
See also the case of Okello v Kyambogo University & Anor
(Miscellaneous Cause No.23 of 2017).

The present application seems to be avoiding the existing remedy or

procedures set out under the NRM Party constitution. The party NRM has
regulations, which govern their internal party electoral processes. The
regulations are called the National Resistance Movement Election
Regulations 2020. They provide that there shall be an Election Disputes
Tribunal at National level and at lower levels of authority. Regulation
20(b)(b) provides for tribunals at national level. The applicants were
supposed to exhaust the internal remedies and the internal dispute

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resolution mechanism within the NRM Constitution, therefore there action
before this court was premature and baseless. The Constitutional court has
upheld the NRM Primary Elections regulations and the systems available to
challenge the decisions or elections in the case of Fox Odoi-Oywelowo v
NRM & AG Constitutional Petition No. 0037 of 2015(27th April 2021) as
being constitutional.

Every litigant who approaches the court, must come forward not only with
clean hands but with clean mind, clean heart and with clean objective. It is a
settled principle that where there is an effective alternative remedy under
the statute, the High Court does not exercise its jurisdiction as a self-
imposed restriction.

In judicial review proceedings, it is important to remember that the remedy

is not intended to detract properly constituted authorities the discretionary
powers vested in them. In simple terms, it is not permitted to substitute the
courts as the bodies making decisions. It is intended however, that the
relevant authorities use their powers in a proper manner.
In the case of R v Secretary of State for the Home Department ex parte
Doody [1994] 1 AC 531 Lord Mustill noted;
“The court must constantly bear in mind that it is the decision maker not the court
that Parliament has entrusted not only the making of the decision but also the
choice of how the decision is made”
Therefore, the question of jurisdiction of this court in judicial review
matters under political parties and organisations is predicated on the
reading of the Political Parties and Organisations Act and party’s
constitutions.

It is now trite that the issue of selection/nomination and or sponsorship of a

candidate for an election fall squarely within the ambit of domestic affairs
and decision of a political party. This court agrees with submissions of
counsel Ssebuufu Usaama for the respondents “that vetting is not new to
political party processes, in fact it is a difficult arena for the court to descend into,
political parties should be allowed to vet, aspirants for different positions. When

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they are doing it they are carrying out a political act, what they consider is just
political expediency and political strategy on how to win an election”

It is settled in a plethora of decisions of this court that the issue of

nomination of candidates for election is exclusive preserve or jurisdiction of
political parties concerned. The courts are loathed to interfere and decide
for a political party who to nominate and who not to nominate for an
election. A step leading to the conduct of election is through party decisions
which may include party primaries or ring-fencing positions or any other
mode that may appear strategic for their party. It is in this area that the
courts have very limited jurisdiction in the area of nomination of
candidates by their political parties.

The NRM party Central Executive Committee has vetted and

recommended certain candidates for the East African Legislative Assembly,
the applicants are at liberty to present their names to the NRM
Parliamentary Caucus rather than rushing to court to stop the top organ
from vetting candidates whom they think are better candidates to take the
party forward. There is no individual merit in political party politics and
the party using its structures can choose a candidate in political position for
strategic reasons and in the best interests of the party and they may refuse
to nominate candidates for any position. This court agrees that there is need
for some form of balanced regulation in activities of political parties in
order not to stifle their growth or weakening the democratic culture.

The NRM party has a Constitution which sets out the mechanism for
resolving electoral disputes. The internal processes must be explored in
order to avoid court interference in internal politics. The law should not
leave the political parties unregulated or unmonitored since this may
eventually make democratic system unmanageable as to become a
hindrance to progress, national unity, good government and growth of a
healthy democratic culture. Such interference should be with caution and
circumspection depending on the nature of decision made by a political
party.

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Matters relating to nomination of a candidate of a political party are
regarded as domestic affairs and are generally treated as not justiciable. The
courts have no power to compel a political party to sponsor a candidate
outside the thin and limited powers conferred under the Political Parties
and Organisations Act. The question of nomination of candidates for
elective offices from members of a political party is governed by the rules
guidelines and constitution of the political party concerned. Therefore it is a
question which is not justiciable in a court of law because it is a domestic
(that is internal) affair of the party. It is a political question. A member who
is aggrieved has no cause of action which can raise any question as to the
rights and obligations of the member determinable by a court of law. See
Emenike v P.D.P (2012) 12 NWLR (pt 1315) p. 556(SC): Onouha v Okafor
(1983) SCNLR 244: Dalhatu v Turaki (2003) 15 NWLR (pt 843) 310

The vetting of candidates was necessary and it is not in the interest of the
NRM party to forward the 130 names to Parliament for the election. The
CEC sat and considered 63 contestants, after 67 contestants withdrew their
expression of interest. Out of the 63 as stated in paragraph 11 of Oscar
Kihika’s affidavit and Dr. Tanga Odoi, the CEC performed it’s duty by
vetting and only recommending 6 Contestants and the names are listed.
The applicants accepted to take part in the electoral process through the
party guidelines which required vetting by Central Executive Committee,
they cannot approbate and reprobate by challenging the same system they
allowed to be part of at this later stage.

It would not be appropriate under judicial review to determine whether the

decision of the party-CEC is illegal. The NRM party Central Executive
Committee in exercise of their constitutional mandate or discretion took a
decision in the best interests of the party. The available alternative
procedure to challenge their decision is the most appropriate since it is an
election complaint with the party structures. If the applicants are aggrieved
by the decision of CEC and they feel that they cannot politically ‘breathe’,
then they are at liberty to leave the party in order to breathe freely.

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The application fails and the preliminary points of law and objections are
upheld. The application is dismissed with costs to the respondents.

I so order

SSEKAANA MUSA
JUDGE
02nd August 2022

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