On November 17, 2014, Nkumba University was engulfed in a student riot that resulted in massive destruction of university property. The students were protesting against an increment in fees payable for tuition, missed papers, retakes and late registration. This increment, the aggrieved students protested, was unwelcome.
In panic mode, the Chairperson of Nkumba’s University Council called for an emergency presser on November 19 during which he declared the university closed so as to avert further damage and stop the student riot that was steadily spiraling out of control.
On December 10, an advert was run by the university in the local dailies setting the re-opening date as January 19, 2015. But there was a catch:
Firstly, all day scholars, whether one participated in the riot or not, were required to pay a penalty of Shs 150,000 as penalty for costs of repairs and replacement of vandalized property, before they could be re-admitted. Secondly, each day student had to pay another Shs 50,000 for a commitment form pledging never to engage in such conduct again.
On hearing about these penalties, the students went straight to court and filed a judicial review application against the university, challenging the said conditions and the procedure through which Nkumba had reached the decision to fine them en masse.
In the lawsuit filed on their behalf by the Uganda National Students’ Association (UNSA), the day students objected to these requirements, stating that they were out rightly unfair and discriminatory in nature. The students faulted the university for collectively punishing them without giving any of them a fair hearing so as to determine who had or who had not taken part in the November strike.
The university’s lawyers led by Mr Joseph Luswaata opposed the lawsuit starting with three preliminary objections:
Firstly, that Brian Tumusiime and Denis Obita who had gotten court clearance to represent UNSA did not have legal capacity to sue the university. Both gentlemen were at the time members of UNSA’s executive committee. In response, the students’ lawyer Mr Ssemakadde Isaac submitted that UNSA’s status as an unincorporated (unregistered) association meant that by law it can only sue through its court-appointed representatives. According to Ssemakadde, Tumusiime and Obita had secured the pre-requisite “representative order” authorizing them to sue on UNSA’s behalf and so they had the required capacity to sue under the law.
Secondly, Mr Luswaata submitted that Nkumba, by virtue of its status as a private body, cannot be sued through the mechanism of “judicial review” which, according to Mr Luswaata, is only applicable to public bodies. This submission was also vehemently rejected by Mr Ssemakadde who argued that since Nkumba was established “by a statutory instrument [using powers derived from an Act of Parliament], and that it is a private body but with a public outlook,” it can be sued through judicial review.
Lastly, that the students had shown no cause of action against the university. Mr Ssemakadde refuted this objection too, stating that it was not only misconceived but also premised on a misunderstanding of the law.
In the alternative to the objections, Mr Luswaata submitted that the students had actually been given a fair hearing since their elected representatives had met with the university administration. This, Mr Ssemakadde disputed.
“The respondent [Nkumba] has not proven to Court that the right to a fair hearing can be legally assigned to one’s elected representative,” stated the students’ lawyer. The right to a fair hearing, added Ssemakadde, requires that each affected student be heard in their individual capacity. But Mr Luswaata responded that it was practically impossible to give an individual hearing to each of the over 1000 students affected. He asserted that the students had been given a fair hearing through their guild representatives.
To bolster the students’ case, Mr Ssemakadde further submitted that the failure by the university to ensure that investigations were conducted during the 60 days the university was closed, and a fair hearing given to those charged prior to the imposition of the conditions, made its decision unlawful. He added that the decision was even discriminatory as it targeted only day students, especially the poor ones who could not afford the total of Shs 200,000 before re-admission.
Now in her ruling, Justice Elizabeth Nahamya of the then Nakawa High court has agreed with Mr Ssemakadde’s submissions and not only dismissed all the objections raised by Nkumba’s lawyers, but also ordered the university to pay costs to the students, besides refunding the money to all those students who had paid it.
“From Article 50(1) [of Uganda’s Constitution], it is implicit that one has to claim that a fundamental right or freedom guaranteed under the Constitution has been infringed or threatened. Art. 50(2) confers locus standi [legal capacity to sue] to any person or organization to bring an action against the violation of another person’s or group’s human rights. I find that UNSA derived its locus standi from Art. 50(2). As submitted by Mr. Ssemakadde, UNSA could not have brought this lawsuit in any other way other than through a representative order,” – ruled Justice Nahamya regarding Nkumba’s first objection.
For Nkumba’s second objection, Justice Nahamya quoted this passage, “…If the source of power is a statute, then clearly the body in question is subject to judicial review…if the body in question is exercising public law functions, or its functions have public law consequences, then that may … be sufficient to bring the body within the reach of judicial review”. The Judge then held that “decisions made by Nkumba University are subject to judicial review” and thus its second objection had to fail.
The third objection was equally dismissed. In Justice Nahamya’s view, this objection was premature and misconceived since it aimed to establish actual factual circumstances of the case as opposed merely pointing out whether a right had been set out and allegations of its violation clearly stated. She made this ruling in reference to the 1971 case of Auto Garage v. Motokov in which the court stated the test that a cause of action is shown if the complainant has stated that he/she enjoyed a right; that that right had been violated; and that the defendant was responsible for that violation. According to justice Nahamya, the students passed this test on a mere look at the documents they had filed in Court.
After disposing of Nkumba’s objections, the Judge went to Mr. Luswaata’s alternative argument, which she also dismissed. “The right to a fair hearing cannot be simply impeded by an artificial shield of impracticality of its application. … To accept an impracticality exception to the rigt to a fair hearing would leave scores of ignored citizens suffering the consequencies of adverse decisions without effective redress on grounds of difficulty of the decision maker to recognize or give effect to their right. The right to a fair hearing is non-derogable.” the Judge held.
Nkumba’s failure “to conduct proper investigations and conduct a fair hearing for those charged prior to the imposition of the conditions and penalties meant that its final decision was procedurally improper and irrational. It was therefore a nullity…By irrational, I mean…a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.”
The Judge faulted the University whose decision she found to have been logically flawed for failing to distinguish between students who participated in the riot from those who had not, such that the conditions and penalties would only apply to those who had participated.
“Accordingly, I grant an order quashing the conditions and penalties imposed by the advert of 10th December. Any attempt by the university to impose these conditions and penalties…is also prohibited. An order directing the university to pay compensation of Shs 150,000 to every student [who paid it] is hereby granted.” Reads the Judge’s final ruling.
