The High Court in Kampala has dismissed with costs a case in which a student at Cavendish University in Uganda (CUU) sought to have his indefinite suspension from the Nsambya-based university reversed by the court. 

Shamil Letia Atabua who was pursuing a bachelor's degree in law was on October 5, 2022, indefinitely suspended by the university management over the use of foul language prompting him to file a judicial review suit. 

In his case, Atabua was among others seeking a prerogative order of certiorari quashing the university’s decision to indefinitely suspend him without granting a fair hearing. 

Dismissing the case in a ruling dated January 12, 2024, High Court Judge Musa Ssekaana absolved the university saying its decision was not illegal, irrational or devoid of procedural propriety and neither was it ultra vires. 

“The applicant was issued with a suspension for his breach of the University policies which included use of foul language and issuance of threats to the University officials and staff. 

I am not convinced that the University had made a decision over the matters of the applicant since there was a pending disciplinary hearing for the opportunity for the applicant to be heard. Therefore, this application stands dismissed with costs,” Ssekaana ruled. 

Arriving at the decision, the judge observed that judicial review which was adopted by Atabua in filing his case is not concerned with the decision in issue but with the decision-making process through which the decision was made. 

“For one to succeed under Judicial review it is trite law that he/she must prove that the decision made was tainted either by; illegality, irrationality or procedural impropriety,” he noted. 

Citing the decision, he gave in the now celebrated case of Natukunda Tracy Bamanya versus St. Peter’s Senior Secondary School Naalya Limited (Misc. Cause No.178 of 2022), Ssekaana affirmed that in cases involving indiscipline of students at any learning institution or school, it is only fair that the student is first suspended as the school constitutes a disciplinary hearing. 

Ssekaana said it cannot be a wise idea for the institution to continue hosting such a suspected indiscipline case among the rest of the school community. 

“The circumstances of the present case did not require the applicant being given a hearing before being indefinitely suspended since the university has a wider duty to protect the rest of the students and the university community at large,” Ssekaana said. 

He said Atabua’s suspension was a temporary corrective action as the investigations were being concluded by the administration or management of the university and therefore no hearing would have been expected in such circumstances before the conclusion of the investigations. 

Upholding the university decision, Ssekaana said the pre-decisional stage should not be made after a hearing and it is only in exceptional circumstances that it can be considered. 

While Article 42 of the Constitution emphasises the principle of fair hearing before an administrative action is taken, Ssekaana said the right to a hearing may be excluded if prompt action needs to be taken by the administration in the interest of public safety, public health, or public morality, or broadly in public interest because hearing may delay administrative action, defeating the very purpose of taking action in the specific situation. 

“The applicant was justifiably suspended indefinitely without a hearing due to the nature of the alleged offences of breaching the university rules and regulations and his continued verbal attacks and insults or use of foul language or offensive and vulgar language to fellow students and university staff,” Ssekaana noted. 

Ssekaana said the actions of the university did not only constitute a breach of university rules and regulations but it is also a criminal offence under the Computer Misuse Act. 

“The university management needed to protect the rest of the students from the applicant in the interest of broader public interest to the university community promptly since the applicant had become a nuisance and created a toxic university environment with the several abuses and insults to fellow students and university staff,” the judge noted. 

Ssekaana faulted Atabua over failure to exhaust all the available remedies which included the disciplinary hearing that was to be held by the University. 

He thus ruled that the application was brought prematurely as the University had not made a decision on the matters concerning him and as such, there was no decision-making process for the court to examine under the tenets of judicial review. 

The judge also warned Atabua against further use of abusive language or derogatory language against university officials and scandalising the court saying the court process is not an avenue of defaming, insulting or abusing fellow litigants or judicial officers as he did during the hearing of the case. 

The university’s defence  

In his affidavit, David Mutabanura, the executive director at Cavendish University in Uganda stated that Atabua was enrolled as a student with the university at the faculty of law where he was admitted on an LLB course leading to the award of a bachelor of laws degree. 

Mutabanura disclosed that while pursuing the course, Atabua had challenges with meeting some of the academic requirements and was required to re-sit some course units after not performing satisfactorily. 

Mutabanura said in addition to his poor performance, Atabua allegedly misconducted himself on several occasions and sent offensive emails to the university staff laced with extremely foul language bringing disrepute and he was on October 5, 2022, suspended pending a disciplinary hearing.