The Constitutional Court has dismissed a petition by one Kawesa Richard challenging President Yoweri Museveni’s acts of asserting that he was immune from legal proceedings by virtue of being the President of Uganda, as a defence to a suit filed against him.
The coram of five Judges; Fredrick Egonda-Ntende, Elizabeth Musoke, Christopher Madrama, Monica K. Mugenyi, and Christopher Gashirabake unanimously agreed to dismiss the petition saying that allegations in the petition do not fall within the scope of the Court’s jurisdiction but should be presented for enforcement of rights in the High Court.
In his ruling Justice Gashirabake who was the lead judge said “In counsel’s view, the Petition alleges infringement of the petitioner’s right to property and fair hearing contrary to Article 20, 26 and, 40 of the 1995 Constitution. Such allegations do not fall within the scope of this Court’s jurisdiction but should be presented for enforcement of rights in the High Court.”
He added that the jurisdiction of the Constitutional Court is set out under Article 137 of the 1995 Constitution, which in the relevant part, provides as follows: The constitutional court. 137. Questions as to the interpretation of the Constitution. (1) Any question as to the interpretation of this Constitution shall be determined by the Court of Appeal sitting as the constitutional court. (2) When sitting as a constitutional court, the Court of Appeal shall consist of a bench of five members of that court. (3) Any person who alleges that the act of Parliament or any other law or anything in or done under the authority of any law.
“Therefore, the allegations in the Petition that certain rights of the petitioner were violated by acts of the respondent (President Museveni) need not be considered. All in all, I consider that the Petition raises no question for constitutional interpretation. Accordingly, I would dismiss this Petition since it raises no question for constitutional interpretation. I would make no order as to costs as it is the practice of this Court not to award costs in constitutional Petitions,” he ruled.
Case background
On 6th March 2019, Mr Kawesa filed a suit against President Museveni in the High Court at Kampala (Commercial Division, viz. Civil Suit No. 160 of 2019). In his suit Mr Kawesa claimed that President Museveni had infringed upon his copyright in a song titled “Another rap,” by the latter singing the song and also claiming it as his own.
The petitioner sought, interalia, for the following reliefs: 1) that he is the author, producer and owner of the copyrights in the song that Gen Museveni used and registration of the copyright in the song without his knowledge, consent and without paying adequate compensation amounted to infringement of the petitioner’s copyright in the song.
He also asked the court to issue a permanent injunction to restrain Gen Museveni from further infringement of his (Petitioner’s) copyright.
In retaliation to the petition, President Museveni filed a written statement of defence in which he asserted that he was, by virtue of being the President of Uganda, immune from legal proceedings and sought the dismissal of the petitioner’s suit.
According to Justice Gashirabake, it is not clear from reading the Petition, whether the relevant suit has been disposed of. However, in their respective answers to the Petition, the first respondent (Attorney General) and President Museveni claimed that the suit was dismissed.
When President Museveni wrote to the High Court, Mr Kawesa went ahead to the Constitutional Court urging that he sued President Museveni for a private act which was not committed in the exercise of his powers as the President and that therefore, he could not assert presidential immunity as a defence, in those circumstances.
He, therefore, contended that it was permissible to sue and hold a sitting President liable, especially where he/she did the act constituting the cause of action in his private capacity. The petitioner also asserted that the acts of President Museveni were the subject of the relevant suit and were done in his private capacity and therefore were not protected by presidential immunity.
He, therefore, prayed that Constitutional Court finds that President Museveni acted unconstitutionally by raising the defence of presidential immunity to the relevant suit and to grant the following declarations and orders.
However, the constitutional court has ruled in favour of President Museveni.
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