DOES JUDICIAL REVIEW APPLY TO PRIVATE BODIES?

"...although UCU admits students privately and ensures their discipline as according to UCU’s privately designed instruments and policies, UCU tutors them for service in both the private and public arena. Thus although private, UCU’s operations, outlook, services and standards serve a public interest and therefore should have a public or national connotation which would place UCU in the Public realm..."

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CASE REVIEW: YASIN SENTUMBWE M. & SIMON SEMUWEMBA V UGANDA CHRISTIAN UNIVERSITY (UCU) MIS. CAUSE NO.22/2016

On 14th June 2017, High Court Judge at Jinja penned down an interesting scathing- bold ruling that is part of the few decisions shaping the jurisprudence of Judicial Review and Public law; Administrative law.

Background.

In May 2016, two Law students, Yasin Sentumbwe Munagomba, and Simon Semuwemba, were expelled from the Uganda Christian University (UCU) for violating the University’s policy on demonstrations.

The expulsion was meted out after the duo allegedly masterminded a demonstration against a 12.5% increment in tuition fees by the University. It is alleged that they did not inform the University prior to the demonstration as per the dictates of the University’s policy on demonstration. The policy states that students intending to demonstrate should notify it to ensure that they are guided and that their activities do not interrupt other business.

Sentumbwe and Semuwemba, subsequently dragged UCU to Court by applying for judicial review and the remedies thereunder, vide Misc. Cause No. 22 of 2006 as per Court record, in High Court at Jinja. The applicants moved court by way of certiorari to call for and quash the decision of UCU for purporting to expel them. They sought prohibition barring UCU from enforcing the impugned decisions of the UCU Code of conduct, and asked for general, damages aggravated damages, punitive damages and costs.

It is the applicants’ case that as law students they were prematurely arbitrarily, unlawfully, unjustly, unfairly and irrationally expelled from UCU, by UCU exercising her statutory authority.

The Kampala Law Monthly Magazine has learnt that as per the pleadings, the applicants are equally challenging the impugned University Code of Conduct on grounds that it is non-existent and unenforceable as is not Gazetted as required by law and that the same is inconsistent not only with the Constitutional and statutory prescribed human rights norms and standards, but also the decided cases of the Supreme Court.

The Case:

At the hearing, on 5th/10/2016, several preliminary objections were raised by both parties, however two major objections were considered first by the learned judge as follows;

UCU through their counsel Mr. Fredrick Mpanga made their case and argued that the application for judicial review was premature and ought to be dismissed because;

  • UCU is not a Public Body
  • Applicants failed to exhaust available remedies prior to seeking judicial review.

Invoking public law principles, UCU’s counsel argued that judicial review is only available against a public body in respect to a public matter and thus one must satisfy that;

  • The body under challenge must be a public body whose activities can be controlled by judicial review
  • The subject matter of the challenge must involve the claims on public principles.

What are the Parameters in qualifying a Public or Private body?

It was a maintained view by the Respondent that the traditional method of determining whether a body is subject to judicial review is the source of its power and that if the source power is a Statute, the body in question would be amenable to judicial review.

Secondly that judicial review is available only as a last resort that is when all other alternatives and avenues like appeal have been exhausted, the exception being where the alternative remedy is no where convenient, beneficial or where there is no other effective and convenient remedy. It was his argument that the Statute provides for an appeal to the University Council and it is mandatory, which alternative was not exhausted by the applicants.

In reply Counsel Isaac Semakadde for the applicants argued that although UCU was created by the University Charter Legal Notice No.2/2005 which is a statutory instrument, it is a separate and distinguishable legal personality from its proprietors. That UCU derives its validity from National laws and this gives it a public outlook since it is offering a public service and thus it is subject to judicial review. He further argued that in any case even where it is purely a private body but where a private body is exercising a public function, then its operation is governed by public law. That court should not be only concerned with the source of the body’s power but the nature of the functions performed by that body. That more so such a body is virtually performing a delegated function of government to give essential services and thus will ordinarily be subjected to judicial review.

Decision Overview:

In her judgment at page 11, the learned Judge concurred with counsel Semakadde for the applicants and ruled that;

UCU although is a private entity and offers tertiary level education by virtue of a Presidential Charter. UCU is permitted to do so for as long as she (UCU)  complies with the general educational policy of the country and maintains national standards.

It was further the learned view of the learned Judge that UCU is another way performing her duties as one delegated by the State to fulfill her mandate under Article 30 and paragraph 18 (III) of the National Objectives and Directive Principles of State Policy under the 1995 Constitution.

The Kampala Law Monthly Magazine further learnt according to the judgment, Justice Eva Luswata extensively and exhaustively held that Judicial Review is applicable to Private bodies like UCU, and she overruled the preliminary objection which was raised by UCU Lawyers.

The learned judge was of the view that although UCU admits students privately and ensures their discipline as according to UCU’s privately designed instruments and policies, UCU tutors them for service in both the private and public arena. Thus although private, UCU’s operations, outlook, services and standards serve a public interest and therefore should have a public or national connotation which would place UCU in the Public realm, the learned judge ruled.

Must you always exhaust all the alternative Remedies before seeking Judicial Review?

At the trial, counsel for the applicants argued that, the rule against non-exhortation of alternative remedies and exceptions to judicial review is neither absolute nor qualified nor dispositive of the High Court, which is wholly discretionary. That the existence of an appeal provision in the relevant legislation is not a conclusive ground to refuse judicial review. It was the applicants’ case that the domestic remedy mechanism is inadequate, and will not fully or impartially, effectively or conveniently address their grievances raised in their case. They fronted the following reasons to buttress the above assertions;

  • That the redress sought supersedes the jurisdictional scope of any of the UCU’s disciplinary tribunals.
  • The UCU’s internal appeal processes and procedures are vague, contradictory and infected by illegality and institutional bias complained of.
  • That rules and regulations being un-gazetted, are inconsistent with the Constitution.
  • That the alternative remedies lack minimum safe guards of due process and presumption of innocence.
  • That through various actions, UCU deliberately obstructed the applicants from accessing the internal appeal processes and procedures.

The learned judge reasoned that, the rule requiring the exhaustion of alternative remedies is a common law rule, which should not override the clear provisions of S.33 of the Judicature Act, entreating the High Court to resolve any dispute. The learned Hon. Judge was persuaded by the decision of Uganda Court Reporters Association v AG, where the court chose to allow judicial review even where an appeal was present to avoid delay in the interests of delivering substantial justice without regard to technicalities in line with Art. 126 (2) (4).

Court overruled both objections.

Emerging and Comparative Jurisprudence;

There are several practical considerations to be addressed;

  1. Are judges taking a modern pro-active approach towards judicial decisions and widening legislative interpretation? For example this is not the first case of its kind, in a related case the High Court took a similar approach in the case of Uganda National Students’ Association v Nkumba University Misc. Cause No. 0/2015 where Justice Elizabeth Nahamya relied on the decision of R v Takeover Panel and held that “Of course the source of power will often, perhaps be decisive. If the source of power is a Statute, or a subordinate legislation under a statute, then clearly the body in question will be subject to judicial review. If at the other end of the scale, the source of power is contractual, as in the case of a private arbitration, then clearly the arbitrator is not subject to judicial review…”
  2. Does this ruling offend the celebrated principles of Judicial Review irrespective the loopholes in our domestic laws?
  3. Are judges trying to address the grey areas and inherent lacunas in our laws?
  4. What mischief is Judicial Review trying to address and protect? Where there is a need to determine private rights and the existence of a public institution which one prevails? Court seems to have settled this.
  5. Is the court expanding the law on public law and giving the generous interpretation or it is a question of practice?
  6. The Kampala Law Monthly Magazine team will not discuss the substantive merits of the main case because of the subjudice rule; we reserve our comments and analysis for the final judgment.

©THE KAMPALA LAW MONTHLY MAGAZINE

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