{UAH} OKELLO:The Board had Authority to Decide

George,

I have NEVER talked to Nekyon about wanting to sue the Board!
1. last year the Board made two important decisions: first, reiterating their 2013 decision that Rahim Kabagambe was NOT a valid member of the Council.  The second was that Brian Kwesiga had illegally taken Jude Sempungu's powers as a Treasurer and that Jude should be reinstated. I agreed with BOTH decisions...in fact, the Board's decision and reasoning were similar to my own reasoning about Kabagambe as shown in my email below (written on Sept 29, 2013!!). 

2. I have NEVER said that it is illegal to WRITE illegal by-laws!  I don't think any sensible lawyer would say such a thing! As i explained yesterday (in response to Nekyon!), it was NOT illegal for the CRC to write illegal provisions and it was NOT illegal for the members to vote to approve the 2010 constitution. What is illegal, is the KNOWING USE of the illegal document. In Sept 2014, I informed Brian Kwesiga and other leaders that the 2010 Constitution is illegal.  He refused to act on that information.  From Sept, he can't claim not to KNOW that the document was illegal. That is why I sued him.  Again, I did not sue him because he DRAFTED the Constitution.

 

From: Joseph Musoke <joseph.musoke@ymail.com>
To: "unaalist@unaa.memberclicks.net" <unaalist@unaa.memberclicks.net>
Cc: "UNAANET@yahoogroups.com" <UNAANET@yahoogroups.com>; "ugandans-at-heart@googlegroups.com" <ugandans-at-heart@googlegroups.com>
Sent: Sunday, September 29, 2013 9:53 PM
Subject: The BoT had Authority to Decide

Mr Nekyon and Ms Rukundo,

I'd intended to wait until Tuesday before I wrote about this matter but I have gotten so many msgs asking me for my position...so here it is:

To make it simple, I'll just comment about Liz's main points.

 

1. Ms Rukundo, you write that "From my reading of the communication from the BoT, they seemed to have considered in great detail the side of the petitioners and nothing at all from the person being petitioned against."

I beg to differ. The BoT specifically mentions that they contacted Mr Kabagambe. In addition, the EC was also contacted and the BoT mentions that Mr Sam Mutyaba, the EC Chairman was contacted by the BoT. Since the BoT was reviewing the decision of the EC, I think that it was enough  that the BoT contacted the EC to explain why the EC had included Mr Kabagambe on the list of Council members. The petition was NOT against actions/decisions of Mr Kabagambe (he did not declare himself a candidate and an unopposed winner...it was the EC that did that). 

Rather, the petition was about the actions/decisions of the EC and the EC was allowed to present its side.  However, the BoT went beyond that and contacted Mr Kabagambe too...though the BoT didn't have to contact him. 

 

2. Ms Rukundo, you write that "once they had reached their deliberations, the BoT under Art. 5 (f) can only recommend the suspension of the council member".

Then you correctly predicted that "I know some will argue that since they decided that Mr. Kabagambe was not a 'valid Council Member' then there would be no need for them to exercise their powers under this section."...

Ms Rukundo, I am one of those that think that since the BoT found that Mr Kabagambe was NOT a valid Council Member, the BoT did not have to refer him to the Council for suspension. Article 5 (f) only applies to people who are actually members of the Council. 

3. Ms Rukundo, you relied on Article 9.9 to conclude that the BoT did not have the mandate to nullify Mr Kabagambe's election. Relying on Article 9.9, you argue that the petition should have gone to the EC first before going to the BoT.

I think you are wrong. The petition went to the BoT because the EC had already reached a FINAL decision on the matter.  Indeed, the EC Vice Chairman has been openly defending the EC final position on this forum. He has NEVER said that the EC needs to review the matter!  That should remove any doubt as to whether the EC was going to review its position. What would be the purpose of appealing to a person that has openly told you that he was RIGHT? Keep in mind that the EC Vice Chairman is probably the most influential person on the EC.

Among other reasons, you also give an example of how matters only reach the US Supreme Court only on appeal from lower courts. But that comparison is not necessary since the Federal Judiciary has several layers (District Courts, Circuit Courts and finally Supreme Court).  UNAA has just ONE body that acts as a tribunal (i.e the BoT).  The BoT is therefore the court of first insistence and the court of final appeal.

You may also want to recall similar appeals against EC decisions were made to the BoT before elections...including the EC's decision to extend the registration deadline. 

Therefore, faced with a FINAL decision of the EC, I see no reason that bars the "8 Council Members" from seeking redress from the BoT. It follows that the BoT was right to rule on the matter since it received that petition correctly.

thanks

 

For a faster response please contact me at 415.789.6427

From: Elizabeth Rukundo <liz.rukundo@gmail.com>
To: joseph.musoke@ymail.com 
Sent: Friday, September 27, 2013 1:39 PM
Subject: UNAALIST Liz Rukundo, Benon Mukasa, Stephen Kisambira, Joseph Musoke, Harriet Zaffoni:

Hi Moses,

Wow..."As favorites to become members of a dream team BOT"??? You know what they say...flattery will get you everywhere! Okay, I'll bite and mainly because the UNAA constitution is a wonderful research opportunity in Constitutional Law for me! I will of course defer to the opinion of the others attn'd here and this is MY response to your argument and ruling.

UNAA has three equal BUT separate bodies ( Art.1.2(b) so  what i see is the main issue in contention is that one body ( BoT) has over reached its mandate and is interfering in the affairs of the Council ( another equal but separate body). Do the BoT have the mandate to nullify a Council member? No. I provide my reasoning below;

Dr. Muniini Mulera cited in part Art.5.2(e) as the BoT source of legitimacy for finding that the nomination of the council member was not valid. I have taken time to extract that article for ease of reference below:

ARTICLE FIVE

UNAA BOARD OF TRUSTEES

e) Act as arbiters in conflicts between the Association's organs or among the Association's leaders and members;( emphasis mine)

For my research, an arbitrator ( at least in the legal world) has a specific role. Not to seem subjective, please refer to the definition on ask.com:

The role of an arbitrator is to hear both sides of a conflict and decide the outcome. An arbitrator should be completely impartial to either side to ensure fairness. (http://answers.ask.com/society/government_and_law/what_is_the_role_of_an_arbitrator)

From my reading of the communication from the BoT, they seemed to have considered in great detail the side of the petitioners and nothing at all from the person being petitioned against. I may be wrong seeing that i was not in the meeting nor a member of the BoT. I would of course stand to be corrected on this. Either way, once they had reached their deliberations, the BoT under Art. 5 (f) can only recommend the suspension of the council member. Seee extract of the provision below:

f) Recommend to the UNAA Council the suspension or impeachment with cause any member of the Council, Executive Committee or the Board of Trustees, and to present the decision of the Council to the next Annual General Meeting for review and final disposition; ( emphasis mine)

I know some will argue that since they decided that Mr. Kabagambe was not a 'valid Council Member' then there would be no need for them to exercise their powers under this section. I would beg to differ on this. My basis would be the now famous Art. 9.9 of the UNAA Constitution. The BoT also based the legitimacy of their decision on this article so i will take time to extract it too in full. See below:

ARTICLE NINE

ELECTORAL COMMISSION

9.9: Arbitration: Any electoral complaint that is not resolved by the Electoral Commission shall be referred to UNAA Board of Trustees for arbitration and resolution within four (4) weeks or before the elections, whichever comes first. ( emphasis mine)

The fact that an electoral complaint was made is not in dispute. My first query would be, was it FIRST sent to the EC for resolution failure upon which it was then REFERRED to the BoT? I do not seem to have anyway in my reading of the communication from the BoT that this was the case. As an organ of UNAA that is tasked with maintaining impartiality and resolving any issue that has 'defeated' the other organs, the BoT takes on the equivalent role of the US Supreme Court, And there is a reason why the US Supreme Court only hears cases 'Certiorari' ( ie for review of the record and proceedings in the lower courts) as they wish to look at only the evidence and not have to do fact finding missions.

However, supposing the EC had looked at the matter and failed to resolve it an referred it to the BoT, the role of the BoT in such an instance would be to arbitrate the matter. What does this mean?

"What is ARBITRATION?

In practice. The investigation and determination of a matter or matters of difference between contending parties, by one or more unofficial persons, chosen by the parties, and called "arbitrators," or "referees." Compulsory arbitration is that which takes place when the consent of one of the parties is enforced by statutory provisions. Voluntary arbitration is that which takes place by mutual and free consent of the parties. In a wide sense, this term may embrace the whole method of thus settling controversies, and thus include all the various steps. But in more strict use, the decision is separately spoken of, and called an "award," and the "arbitration" denotes only the submission and hearing. "( Law Dictionary: http://thelawdictionary.org/arbitration/#ixzz2g7cceV81)

Once again, I would be happy to know if they heard from both parties when resolving this issue referred to them by the EC. And in any case, since their role in this case is limited to arbitration and resolution, it would imply that they looked at both sides of the story, accorded them a fair and impartial hearing and THEN made a resolution.

From where i stand, the issue of the time frame is a timing issue for the EC to refer the matter to the BoT. Since this issue was not presented to the EC before the elections, then how can we then  turn around and rely on Art. 9.9 as our basis for the decision of the BoT?

In addition, what resolution can they reach after hearing both sides of the story? It is not to 'nullify Mr. Rahim Kabagambe's election to the UNAA Council as Male Youth Representative.. ( BoT Communication sent to UNAAlist on Mon Sep23rd) ' They do not have that mandate. This is an elected position. So it must go back to the body that is elected by the member ie the UNAA Council by way of a recommendation and not a decision. The UNAA Council will then make a decision that is presented to the members at the next AGM. ( Art. 5(f) cited above).

In doing so, each organ maintains its separate but equal power.

So, Moses, as i seek to 'verify', i would not agree wholly with your rulings, specifically, 1and 3 since the petition from the 8 members was meant to be sent to the EC and it is not the job of the BoT to establish membership of a person but rather this is the job of the Executive Committee as outlined in Art.3 ( below)

"ARTICLE THREE

MEMBERSHIP RIGHTS AND BENEFITS

3.3 Dues: All Members shall be required to pay annual membership dues as designated by the UNAA Executive Committee with the advice and consent of the UNAA Council. Such membership dues, which shall be payable whether or not one attends the Annual General Meeting/Annual Convention of the Association, shall be separate from any convention registration fees and other costs of participating in activities of the Association. 

The amount of membership dues and due date shall be determined by the UNAA Executive Committee with the advice and consent of the UNAA Council. Failure to pay dues shall nullify membership.

Membership shall be reinstated upon payment of the membership dues that shall be determined from time to time by the UNAA Executive with the advice and consent of the UNAA Council. The Association shall neither waive nor pay membership fees for any individual."

I do not see the role of the BoT in them having to prove Mr. Kabagambe's membership.

This is the longest email i have ever written so please excuse any typos. Joseph, Benon, Stephen and Harriet..over to you!

Liz

On Fri, Sep 27, 2013 at 11:20 AM, musanap@gmail.com <musanap@yahoo.com> wrote:

 

As favorites to become members of a dream team BOT, I would like to interest you in a deep and intelligent analysis and dissection of the BOT ruling of September 23^rd 2013. I am hoping we can consider the case and facts as presented. We are only judging the BOT's performance (we can't change their ruling) and fulfilling our responsibility to keep them honest.

 

Here are my arguments

 

1.       According to Article 9.9 neither the UNAA-EC nor the UNAA-BOT had the jurisdiction to address the electoral complaint contained in the petition from the 8 Councilors because the petition was drafted and submitted AFTER the election. Article 9.9 restricts any petition to a period BEFORE the election. At this point the cases was over the BOT should never have soiled their fingers.

2.       Even if we can somehow go back in time to a period before the election, according to the same article 9.9, the UNAA-BOT would only have considered the petition only and only if the UNAAEC had failed to resolve the matter.  The UNAA EC never failed to resolve the matter since it was never petition with an electoral complaint. So still the BOT was outside its jurisdiction

3.       The group of 8 UNAA Councilors petitioned the UNAA-BOT with the request that the Male Youth representative from Canada should be removed from office because he was not physically present in Dallas for the Election. It was very well defined, clean and limited scope.  But the UNAABOT increased the scope and added 5 other questions with the petition from the group of 8 coming in at Question Number 5. By doing so, the UNAA-BOT acted as both the Prosecutor and the Judge. They should have limited themselves to the petition.

4.       There was no constitutional requirement that for either voter or candidate to be physically present in Dallas so under the right circumstances I would have agreed with the ruling of the UNAA-BOT on this point.

5.       According to their ruling the UNAA-BOT developed a  "strong opinion" following a very "careful examination" that Mr. Rahim Kabagambe was not a member in good standing before the candidate registration deadline of August 15^th 2013 because they could not show that his payment was mailed out by that deadline. Now Mr. Rahim Kabagambe said he had mailed out his payment on August 14^th to the UNAA Treasurer. But as luck would have it UNAA changed Treasurers very early on the morning of August 16^th. We all know that the only proof of when the payment was mailed would have been the time stamp on the envelope. Only UNAA had access to the receiving post office box. So who had the burden of proof of when the payment was mailed out? Mr. Kabagambe or the UNAA BOT? Under the circumstances the UNAA-BOT is on fair ground to rule against Mr. Kabgambe but only if it can be established that the envelop is date stamped beyond August 15^th.  If this can be proved, I would agree with the UNAA-BOT that Mr. Kabagambe was not qualified to be a candidate even if that ruling is just an opinion without constitutional and practical efficacy.

6.       The UNAABOT then rules that Mr. Rahim Kabagambe's nomination was irregular and fraudulent in that he claimed recommendation by a person who had not done so. I think fraud is an extremely serious accusation not even the UNAA-BOT (with the best of intentions) is qualified to make after a cursory examination. It crosses from an examination into a legality issue with the potential for serious legal repercussions against Mr. Kabagambe's fortunes on the one hand and against UNAA's officials should Mr. Kabagambe exercise his option to sue. In my opinion this is a ruling only Courts of law should be making with the aid of law enforcement. The BOT should not have gone here.

7.       My last point is to examine where the mind of the UNAA-BOT was as they carried out the "careful examination" of the petition from the group of 8. I am particularly struck by how they note the Mr. Rahim Kabagambe had completed a candidate Agreement form before paying membership dues.  I am glad that the UNAA-BOT did not make this a fatal ruling because when they nominated members of the vital UNAA-EC some of them were yet to become UNAA Members.

8.       The UNAA-BOT had a 6-1 ruling. As a UNAA Member I would like to know who the 6 Trustees were and who the one Trustee was. I do not think UNAA business should be shrouded in darkness especially when Trustees are acting as Judges. This openness is the only guarantee we have for fairness.

9.       According to their 6 - 1ruling, the UNAA-BOT nullifies Mr. Rahim Kabagambe's election to the UNAA Council. The UNAA-BOT does not have this authority at all. There is no provision anywhere in the UNA Constitution to nullify an election. The UNAA-BOT should rather have pursued Article 7.15 and appealed to the Youth UNAA Members in Canada or the UNAA General Assembly to remove Mr. Kabgambe from the UNAA Council.

 

 

My Ruling

 

1.       The Petition from the Council of 8 was correctly constructed and submitted to the UNAA-BOT.

2.       The UNAA-BOT wondered far outside the scope of the petition and their constitutional role.

3.       The UNAA-BOT failed to prove Mr. Rahim Kabagambe was not a UNAA member by August 15^th 2013. This is the single strongest point they have.

4.       The 9/23/2013 ruling of the UNAA-BOT is not supported by the constitution and the arguments contained there in.

 

So my friends I will introduce a term many of you may be familiar with "Trust but verify-Vladimir Lenin"  You folks have chosen to "Trust the UNAA-BOT," I have chosen to "Verify" them. Please keep that in mind going forward.

 

 

Moses Ocen Nekyon-"former" and "new" Member of UNAA in very good standing.

Ugandan North America Association . 1337 Massachusetts Avenue . Suite 153 . Arlington. MA . 02476

Email: info@unaa.org

Ugandan North America Association . 1337 Massachusetts Avenue . Suite 153 . Arlington. MA . 02476

Email: info@unaa.org