{UAH} MP SSEGGONA & OTHERS THROWN OUT AS NORBERT MAO FLOORS RIVAL DP MEMBERS IN COURT

By Mulengera Reporter 

Democratic Party (DP) President Norbert Mao has had the last laugh in the leadership squabble at the political institution after Justice Musa Ssekaana of the High Court nullified an order that had led to the 'controversial' election of members of the National Executive Committee (NEC).

Last year, Ssenkubuge had dragged 'Democratic Party Uganda' under judicial review seeking prerogative orders to compel 'Democratic Party Uganda' to hold a meeting of National Delegates Conference, National Executive Committee and National Council to fill four vacant NEC positions: Chairman, Secretary General, Finance Secretary and Vice Chairperson Women League; declare that the continued performance of these roles by unelected people was null and void; and issue an order restraining any person from performing these roles until the relevant organs had filled them.

On March 09, 2020, Justice Andrew Bashaija of the High Court issued an order allowing a section of aggrieved DP members led by Rajab Ssenkubuge to convene a National Council and the Delegates Conference to fill the positions. Four days later, rival DP members elected Wakiso District LC V Chairperson Matia Lwanga Bwanika as Chairperson, Busiro East MP  Medard Lubega Sseggona as Secretary General, Mary Babirye Kabanda as National Treasurer, Patrick Katuramu as deputy National Treasurer, Racheal Kagoya as Women's Legue Vice Chairperson and Alex Kiwanuka as Busoga Region representative.

But Mao, Justin Semuyaba of Semuyaba, Iga and Company Advocates, challenged Justice Bashaija's order and the March 13 election. Mao also wanted court to restrain suspended DP legal adviser Samuel Muyizi of Alaka & Co. Advocates and organising secretary Sulaiman Kidandala from representing the party without authorisation as they did by signing the order, claiming to represent the party.

Mao challenged the March 09 order as having been "entered into and/or obtained by fraud, collusion, misrepresentation, contrary to Court policy and without sufficient material facts and based on an illegality which has now caused the applicant an injustice and has adversely affected the legal interests of The Democratic Party (DP) the Applicant."

"The matters over which The High Court registered a Consent Judgment/Order were overtaken by events as the appropriate bodies in the Democratic Party duly convened and decided on a Party Road Map to resolve all the issues raised by SSENKUBUGE RAJAB were resolved are to be performed and done in The National Executive Committee and The National Council of the Democratic Party in a Resolution issued Over the 2019/2020 Party Road Map which caters for the Applicant's issues raised in his Application as issues of holding the National Council Delegates Conference, amending the Party Constitution and holding elections for party structures are progressively being performed," Mao further argued.

During the hearings, Ssenkubuge and other respondents argued that Mao's lawyer Semuyaba and DP Vice President  Mukasa Mbidde had not been authorised to represent DP. They had asserted that "the President of the party has no mandate to unilaterally instruct lawyers to represent the applicant in courts of law."

But Justice Ssekaana ruled that "the President's power in directing the appointment of the lawyers M/s Semuyaba, Iga & Co Advocates was within his mandate and the same would have been subject to approval or ratification by the National Executive Committee," adding that Mao, in his capacity as DP President "is the best person to act as an agent of the party as a Chief Executive" according to the party's constitution. Besides, Mbidde "was just assisting Counsel Justine Semuyaba the lead counsel."

Ssenkubuge and his team had also contended that Mao had referred to himself as the President General in the application yet "Democratic Party does not have a President General," that the affidavit in rejoinder was "defective for being commissioned with Photocopy signature," and that the suit was "incompetent for having been overtaken by events." But Ssekaana rejected these objections.

Mao had also challenged the order as having been issued against "DEMOCRATIC PARTY UGANDA a non-existent party and totally different from DEMOCRATIC PARTY a corporate organ duly registered under The Political Parties and Organisation Act and Regulations."

But the respondents argued that "the characterization of the applicant as Democratic Party Uganda instead of Democratic Party is a misnomer or misdescription that would not vitiate or invalidate the purpose served by the impugned consent."

On this matter, Ssekaana ruled that while "court may exercise its discretion to allow errors in naming of parties in pleading if commenced by a person who may not be conversant with internal workings and operations of the body corporate, "the court should be very reluctant to allow a person who claims to be trying to correct wrongs within a political party to mis-describe the party since this would be interpreted to have been deliberate to cause confusion or mislead a specific group of society."

"Indeed, this is not a simple matter that would be equated to a misnomer, it has dire consequences and may create obligations which may not be performed due to such mis-naming and a party may rightly refuse to be bound. An improperly named defendant or respondent will not be substituted after judgment. Such error if it existed should be addressed before the conclusion of a matter," read part of Ssekaana's ruling.

"It would be wrong and would create an injustice if court corrected wrongly described defendant/respondent after judgment. The final orders of court should reflect the proper names of the parties against whom the orders have been made at least for execution purposes otherwise the order will remain unexecuted for wrongful description of a party. In the circumstances of this case, a wrong party was sued and therefore the entire application was a nullity."

Justice Ssekaana further ruled that that there was no evidence that Counsel Muyizi nor his law firm of M/s Alaka & Co. Advocates was instructed to act on behalf of DP. He added that it was not enough for Muyizi to purport to represent the party simply because he held the position of Legal Adviser  since "the powers of National Executive Committee should be only exercisable by the organ with clear resolutions and any person who purports to be an agent of the National Executive Committee should be other than the President of the party (who is the Chief Executive) should be personally responsible for their actions."  Ssekaana also shredded Kidandala for purporting to consent on behalf of DP.

"The party should legally be bound by actions of an advocate duly instructed but not members who assume the unassigned responsibilities. The party is bigger than any individual and this is the justification of the Constitution vesting the decision making powers not in any individual but the National Executive Committee in the day to day activities of the party. Otherwise it will be chaos in party administration if any office bearer takes decisions on behalf of the party as its agent," Ssekaana's judgement further read.

"Similarly, the actions of the Sulaiman Kidandala to execute a consent that binds the entire Democratic Party as the Organising Secretary was illegal, since his role under the Constitution did not include signing documents or binding the party in court matters. It could have been done in good faith and in the best interest of the party, but the final decision in such circumstances should have been made by the National Executive Committee."

In the end, emphasizing that "individual party members should never hijack that mandate otherwise there will be 'organizational disarray' which would be sowing seeds of confusion in the Party," Justice Ssekaana set aside the consent judgment and order because it had been "executed by persons not authorized by the party and or without authority" and that the order had been "brought against a non-existing party, (Democratic Party Uganda)."

This means that Bwanika, Sseggona, Babirye Kabanda, Katuramu, Kagoya and Kiwanuka were illegally elected to the positions they have held since March. No costs were awarded because Democratic Party Uganda is "a non-existing party."

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"When a man is stung by a bee, he doesn't set off to destroy all beehives"

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