Expelled students’ appeal to go ahead in Mukono High Court
BY STANDARD TEAM
Uganda Christian University (UCU)’s preliminary objections to the court case brought against it by Yasin Sentumbwe Munagomba and Simon Semuwemba, the law students that were expelled for allegedly spearheading a demonstration on fees increment in May 2016, have been dismissed.
In the ruling by Hon. Justice Eva K. Luswata that took place on June 14, at the Jinja High Court, both objections presented by UCU have been dismissed by court.
Background to the case
In June 2016, two law students were expelled for participating in a demonstration held on April 20, against fees increment put in place by the university administration. According to the letters from the university administration, Sentumbwe and Semuwemba were expelled “for behaving in a manner that damaged the good name of the university by participating in a demonstration without informing the vice chancellor in advance, using abusive language against the vice chancellor, insubordination and being disrespectful, among others”.
This was cited as conflicting with regulation 8(ii) that demands that any public protest or demonstration on university premises may be conducted only after the vice chancellor has been informed one day in advance, and the no demonstration or protest may be held without his approval and police permission.
And regulation 6(v) of the Code of Conduct Handbook, 2015 – 2016, stipulates that no student shall utter words or live in a manner which may damage the good name and image of the university.
In a disciplinary committee that sat on May 5 and 16 2016, it was resolved that the two students be expelled.
In retaliation, the two students, with the help of the Centre for Legal Aid, spearheaded by Counsel Isaac Semakadde, petitioned court seeking to quash the expulsion and all yearly publications of UCU’s Code of Conduct Handbook and the code of conduct 2015/16.
UCU (the respondent) was served a Notice of Motion on May 25. The motion stated that the students were prematurely, unjustly, unfairly and irrationally expelled by the respondent allegedly for violating its code of conduct that is non-existent and unenforceable because it was not gazetted as required by law.
The university, through their Counsel Frederick Mpanga of A.F. Mpanga & Company Advocates, made their case and argued that the application for judicial review was premature and ought to be dismissed because “the respondent is not a public body or a body exercising a public function, and the applicants failed to exhaust available remedies prior to seeking judicial review.”
Private or public
Mpanga, relying on the UCU Charter of 2003, which sets up the university as a private, non-profit making, education institute established by the Church of Uganda, argued that the President is empowered to grant a charter to a private university in the form submitted by the university with the relevant application.
“In fact the respondent is merely a regulated entity governed by the Universities and Other Tertiary Institutions Act, 2001 and being so regulated, it does not amount to the respondent carrying out public function to identify her as a public body. She is not a statutory entity or an agent or servant of the Government of Uganda, neither is she uder government instruction or direction and her instruments of identity … do not have any statutory underpinning,” the objection reads in part.
However, Counsel Semakadde squashed the above objection appealing to the court to refrain from confining the decision of the status of the university to only where it derives its power and its duties from. He called on court to consider the nature of functions performed by it, arguing that UCU exercises a public function as a special agency, which places it in the public arena.
Citing Uganda National Students’ Association vs. Nkumba University case No. 08/2015 that had the same conflict, the judge dismissed this objection explaining that even though the university offers education as a private entity, and admits students privately, it is permitted to do so as long as it complies with the general education policy and maintains national standards.
“Although she admits students privately and ensures their discipline according to her own privately designed instruments, she tutors them for service in both the private and public arena. Thus, although private, her operations, outlook, services and standards serve a public interest and therefore should have a public or national connotation which would place her in the public realm,” Luswata stated, in dismissing the first objection.
The second objection to the appeal by UCU was that the judicial review that the students opted for should have been a final resort after exhausting other internal remedies like the university council, or a tribunal as provided for by the code of conduct.
But this objection was countered by the argument by Counsel Semakadde stating that, “the pleadings show that the validity and enforceability of the respondent’s statute code of conduct and other disciplinary tools and instruments are some of the central issues to be tried in the present case.”
Further, the applicants argued that the domestic remedy mechanism were inadequate and would not fully address their grievances.
The judge agreed with the above argument adding that “unfortunately strikes are becoming a common occurrence and all universities in the country can claim to have fallen victim of the same. In my view it would be a matter of public interest and more effective that the methods used to discipline alleged perpetrators are scrutinised in courts which are perceived neutral.”
“More importantly though, the fact that the same Code of Conduct Handbook and the code of conduct that the respondent used when the concerned officials made their decision to expel the applicants are the very same conducts that the applicants attack with reasons given. I, therefore, choose to exercise my discretion to allow this application to continue,” Justice Luswata concluded.
However, in a phone interview with The Standard on June 23, Mr John Bahemuka Toa, the legal officer of UCU, clarified that not all the objections by the university were dismissed by the judge because the second objection (internal remedies) succeeded in part. The judge was in agreement that the applicants should have first tried the remedies provided by the university, he said.
But he pointed out that the objections of the applicants were also all dismissed apart from their objection to the authenticity of the photos that were taken of the students supposedly leading the strike.
“However regarding where the university will appeal the dismissal, we are yet to receive the legal opinion from our legal team after they have thoroughly reviewed the ruling,” Bahemuka added.
He also explained that the case has been deferred to Mukono High Court. It is here that they will decide the date of the hearing.