The High court in Kampala has quashed the resolutions made by the Uganda Muslim Supreme Council (UMSC) general assembly in 2023, which ousted Mufti Sheikh Shaban Mubajje from office.
The Mufti, Sheikh Ramadhan Mubajje
The court’s decision henceforth renders the election of Sheikh Abdallah Ssemambo as interim Mufti of Uganda null and void. In his judgement last Friday, justice Dr Douglas Singiza, without making any declaration on the merits of the case, said the parties ought to have explored the arbitration option.
“Given a clear arbitral clause embedded in Article 28 of the UMSC constitution, a clear error on the face of the record emerges, which then must be corrected by this court,” ruled Singiza.
Singiza held that “this court hereby reviews and wholly sets aside the judgment and orders in company cause no. 002 of 2023. All the parties concerned should consider exploring the arbitral role of the MAC in terms of section 9 of the Arbitration and Conciliation Act and Article 28 of the UMSC constitution to resolve their disputes.”
Article 28 of the UMSC constitution establishes the Muslim Mediation & Arbitration Council (MAC) chaired by Sheikh Obeid Kamulegeya. The law provides that MAC will have jurisdiction to hear all disputes among Muslims and between Muslims and non-Muslims relating to any issue, including the running of the affairs, management, interest, and rights of the UMSC or its members, contract disputes, and interpersonal relationships except electoral matters of the UMSC.
Singiza justified his decision to set aside the judgment of justice Faridah Bukirwa. He said the petitioners; Yudaya Babirye, Burhan Namanya and Hussein Nsimbwa did not disclose any reason as to why they never referred the dispute to MAC yet the UMSC constitution contains a valid arbitration clause.
“The decision to bypass the MAC and proceed directly to court appears inconsistent with the dispute resolution framework set out in Article 28 of the UMSC constitution,” said Singiza.
According to Singiza, while courts may play a role in ensuring fairness and addressing exceptional circumstances, adherence to the MAC’s jurisdiction is essential in upholding the constitutionally mandated process.
The judge said resolving the matter within the MAC would not only reinforce the institutional integrity of the UMSC, but also promote cohesion and respect for internal mechanisms in the Muslim fraternity in Uganda.
He also noted that the matters in dispute of alleged mismanagement of the Muslim properties by Mubaje conflicts over governance, and resolutions passed at an extraordinary general meeting at Ggangu Muslim primary school fall squarely within the MAC’s defined jurisdiction.
“By taking recourse to the High court instead of exploring the arbitration process, the parties are evidently in breach of the clearly stated arbitral clause in Article 28 of the UMSC constitution.”
“It is also telling that the court orders arising out of the petition for winding up the UMSC resulted in the removal of Mubaje from office when he was not a party to the proceedings. This to my mind was a serious procedural breach that also points to the error apparent on the record.”
Singiza faulted justice Bukirwa over the failure to consider the provisions of Article 28(1) and (2) of the UMSC constitution, which provides for arbitration.
He explained that his ruling is an emerging jurisprudence in Uganda, in which courts invoke the religious question doctrine as the best way to address doctrinal disputes among the faithful.
Justifying his jurisdiction to review the matter handled by a fellow judge, Singiza said there was an apparent error on the face of the record that required to be corrected as provided for under Order 46 Rule 1 of the Civil Procedure Rules.
The crisis within UMSC arose from the sale of Ssembabule Muslim land to businessman Justus Kyabahwa, which was not surrendered as agreed upon.
In December, the Court of Appeal in Kampala temporarily allowed an application by the Uganda Muslim Supreme Council seeking to stop businessman Justus Kyabahwa from auctioning some of their properties to recover Shs 19.2 billion arising from a botched land transaction.