By Anne Mugisa
The Kampala City Executive Director, Jennifer Musisi has won the power struggle case in which the Lord Mayor, Erias Lukwago, was seeking to reduce her powers.
High Court Judge Eldad Mwangusya also castigated Lukwago for engaging court wrongly by filing a notice for review seeking several orders instead of using other available ways of resolving the issues in question.
He dismissed the case and ordered Lukwago to pay costs to Musisi.
The ruling was read to the lawyers of the two by Court Registrar Eudes J. Keitirima at the Civil Division of the High Court.
Lukwago dragged Musisi to the Court last year seeking several orders, including prohibiting and restraining Musisi from portraying herself as the head of KCCA and portraying the Lord Mayor as being ceremonial.
He also wanted the Court to quash Musisi’s decision of August 31, 2011 in a meeting of KCCA to deliberate issues of trade order in Kampala. He asked the Court to stop Musisi from “frustrating his efforts to develop strategies and programmes for the development of Kampala.”
The Kampala mayor also sought the Court orders compelling Musisi to release the report regarding “the fraudulent disposal of the KCCA dispensary on plot 71 Nkrumah Road” and force her to prosecute the culprits involved in the fraudulent disposal.
His complaint was that Musisi does not have the powers to fix her own salary, his and that of other employees of the Authority.
City lawyer Andrew Kasirye defended the Executive Director in the case and said that she should be protected from harassment.
Musisi’s lawyer said that Parliament intended that protection when it enacted the KCCA Act, which gave the Executive Director immunity against civil action for actions done in pursuit of her legal duties.
He said that Lukwago never pleaded that Musisi did anything in bad faith. He said that the Lord Mayor should have exhausted all other available avenues to resolve the issues.
In his ruling, the Judge said that the Executive Director’s immunity provided under the law does not extend to matters where the Court is required to exercise its supervisory role, which is what judicial review is about.
“Judicial review is concerned not with the decision but with the decision making process. It involves an assessment of the manner in which a decision is made and is not an appeal…,” the Judge ruled.
He said that the Court is supposed to ensure that the public powers are exercised in accordance with the basic standards of legality, fairness and rationality, which he said are the key words here. He also said the other key word here is ‘exercise of jurisdiction’.
The Judge explained that prerogative orders asked for in Lukwago’s application do not apply in the case at hand and besides there are alternative ways he could have gone about it.
Borrowing from an earlier judgment in a different case by Justice Yorokamu Bamwine, the Judge said that “It is becoming increasingly fashionable these days to seek judicial review when there are alternative procedures that are more convenient.”
He said that the issues that Lukwago asked the Court to resolve which include who is the head of KCCA and whether the Lord Mayor is a ceremonial position, who plans developments and who fixes salaries are aspects of interpretation of the Act.
The Council was tasked to determine where the powers of the Executive Director and those of the Lord Mayor stop.