Justice Michael Elubu has ruled that Gen. Yoweri Kaguta Museveni cannot be sued in his capacity as National Resistance Movement (NRM) chairperson because he enjoys unlimited immunity, while holding the office of President.
Lawyer Jackson Ntwatwa, who lost in NRM primaries in Nakifuma constituency, Mukono, had sued Museveni, challenging his directive to allow non-registered members to vote in the NRM primaries, arguing that it amounts to abuse of office and an abduction of the powers vested in the NRM electoral commission.
"There is no provision in the NRM constitution, which allows the President to be sued. If it exists, then it would be inconsistent with the Constitution," the Civil Division of the High Court boss ruled.
The judge delivered his ruling on Thursday, in the presence of Museveni's lawyer, Usaama Sebuufu from K&K Advocates and petitioner Ntwatwa, who represented himself.
Citing Article 98 of the Constitution, Elubu said the President shall not be liable to proceedings in any court while holding office.
"Court has no jurisdiction on the matter. Museveni is, therefore, struck out of all other applications, with costs," he ruled.
This implies that the case will proceed with NRM and the NRM electoral commission as respondents.
At the commencement of the hearing, Ntwatwa contended that Museveni can be sued in his capacity as party chairman and not as President.
He had requested the court to proceed under the constitution of NRM.
On the other hand, lawyer Sebuufu argued that the President is immune to any court litigation, adding that he can appear in courts of law during presidential petitions.
"You can only sue the President when he has left office. You can also sue NRM, which has so many chairpersons in villages," he submitted. Sebuufu also raised a preliminary objection, arguing that NRM electoral commission is a non-existent party in law and not a body corporate with the capacity to sue and be sued under the Political Parties and Organisations Act, 2005.
"The electoral commission is a branch within NRM and cannot be sued on its own. The proper person to be sued is the political party. I, therefore, pray that the suit against it be struck out with costs," he requested.
Petitioner Ntwatwa had also asked court to issue an order, restraining the respondents from conducting elections that had been scheduled yesterday (Friday), pending determination of his case.
NRM held its primaries yesterday, to choose candidates to carry its flag to contest for the positions of LC5 chairperson, sub-county chairperson and councillors in next year's general election.
Ntwatwa had submitted that if the actions of the respondents had not stopped, it would render his main suit nugatory.
Sebuufu opposed the application, arguing that the President did not direct non-party members to vote as alleged by the plaintiff, but he was guiding his NRM team.
"The plaintiff (Ntwatwa) lost in NRM primaries and decided to come to court to block all the elections, where he is not contesting. He is aggrieved because of what happened to him during the elections," Sebuufu said.
Justice Elubu said he would deliver his ruling on the interim application on Monday, a move the petitioner protested, saying it would have been overtaken by events.
In the main suit, Ntwatwa had sought orders that the election of NRM party flag-bearers conducted on Friday last week was illegal, irregular and of no consequence.
He also seeks a declaration that the elections were conducted outside the party roadmap. The petitioner also contends that NRM electoral commission failed to organise a free and fair election.