By Saasi Marvin
It was a manifestation of the David v Goliath battle when the assumed underdogs took on a mighty giant in Uganda’s academic field. The case in which Nkumba University students seek a temporary injunction against the University to prevent it from carrying through on its threat not to allow any day student to do exams unless they have paid a 200k fine irrespective of whether or not they participated in the Nov 2014 strike officially kicked off today at Nakawa High Court
presided over by Judge Elizabeth Nahamya, where Counsel for the Petitioners, Isaac Kimaze from the Centre for Legal Aid appears to have had the better of a seemingly dumb-founded Joseph Luswaata of Sebalu & Lule Advocates, who sat back relaxed and apparently resigned as opposing Counsel unleashed devastating legal artillery on him.
This followed the judge’s over-ruling of the Respondent Counsel’s request for an adjournment with the reasoning that he had not had enough time to prepare for the case. Counsel for the Petitioners trashed the request in a three-pronged rebuttal by, firstly; referring to an earlier consent agreement by which both Counsel had agreed that they would be ready to proceed today 21st Jan 2015, secondly that the fact that Respondent Counsel had even submitted his affidavit to Court proved that he was actually ready to proceed and, lastly, that an adjournment would defeat the case as it would get over-taken by events. Present at the hearing was Ms. Katusabe Semwezi, the Nkumba University Secretary who seemed extremely tense and kept wiping her face with a hanky through out the session.
Counsel Kimaze for the Petitioners submitted that the aim of the petition is to temporarily preventt the respondent before the main suit is disposed of, its officers and agents from imposing the conditions and penalties that it had threatened upon its day students in legally questionable circumstances. He contended that if the prayers are not granted, the day students are likely to be blocked from accessing the campus for exams; that suspension letters issued to the affected students were signed on 9th Dec 2014 yet the University had been earlier officially closed until 19th Jan 2015 which was therefore an impropriety that Court should not allow and that it would be a very serious injustice occasioned on the students if their prayers are not granted.
Counsel cited numerous legal authorities to buttress his submission, such as the case of Daniel Jakisa & 2 Ors v Kyambogo University in which court held that its the duty of Court to grant a temporary injunction to the people whose rights are being violated. Besides, he continued, the University would not be so adversely affected since the penalties could still be imposed if the main suit, HC Misc App No. 8 of 2015, is disposed of by court in the Respondent’s favor.
He prayed to court that the ruling be made expeditiously so as to enable the students access the Campus premises before exams commence.In his submission, Counsel for the Respondent, Joseph Luswaata, argued that the Uganda National Students Association had no locus standi or capacity to sue since it was not an un-incorporated body and therefore prayed to Court to throw out the petition on that technicality but the Judge reminded him of Art.126 (2) (e) of the Uganda Constitution which directs that justice must be served without undue regard to technicalities.
Her Lordship also added that the rights of 8000 students were at stake here. Further in rebuttal of the Respondent’s request, Counsel for the Petitioner argued that UNSAA can actually sue through its court-appointed representatives as laid down in the Civil Procedure Rules. It was during his submission that Counsel for the Respondent made a most unexpected admission by the University: It had eaten humble pie and admitted that: “the decision to issue suspension letters to 8 students had been made in error” and that it had, therefore, rescinded the suspension of these students and they were heretoafter free to return to the University. However when pressed by Counsel for the Petitioner on whether in effect the University had as well reversed its decision to fine all day students, Counsel Luswaata stuck to the Respondent’s guns and insisted in no uncertain term that the day students must pay the fine before they can be allowed back to Campus to do exams. When Counsel Luswaata requested Her Lordship to ignore an earlier Constitutional Court ruling (which is binding on all courts below it, including the High Court) which Counsel Kimaze had cited, the latter countered by saying that inviting court to do so without any comparable authority “was like inviting Her Lordship to tread even where angels can not dare.” He humourously ended by remarking that Counsel Luswaata’s “Objections were a matter of style but not of substance.”
The Judge adjourned the matter to 27th Feb 2015 as the date on which she will give her ruling just a day before the end of Semester exams begin.
