Why the court’s UMSC decision changes everything

By Abdul-Wahid Kakande

The High Court has dealt a blow to Muslims aggrieved with the current leadership at Uganda Muslim Supreme Council (UMSC), ruling that courts are not competent to inquire into and resolve religious disputes concerning the election of religious leaders.

In a ruling dated July 1, High Court Judge Bernard Namanya invoking the religious question doctrine ruled that the current religious disputes at UMSC can best be resolved by leaders of the Muslim faith in Uganda, their followers and by Muslim leaders at a global level.

The ruling which has since stirred mixed reactions from the Muslim community arises from a judicial review application filed by Swaibu Nsimbe, Twayibu Byansi, Musa Kalokora and Musa Kasakya.

They were seeking among others, a declaration that the Mufti of Uganda Sheikh Shaban Ramadhan Mubaje was not eligible for re-election for another term after turning 70 years as per the amended Uganda Muslim Supreme Council (UMSC) constitution 2022.

Citing Article 28 (1) of the UMSC Articles of Association 2022 which establishes an arbitration mechanism for UMSC, Justice Namanya said if a dispute between the parties is subject to arbitration, the court has to refer the matter to arbitration.

“The net effect of this is that the applicants are improperly before the court as they should have referred the dispute on the election of His Eminence Sheikh Shaban Ramadhan Mubaje as the Mufti of Uganda to the Muslim Arbitration and Conciliation Council (MAC) established under Article 28 of the UMSC Articles of Association,” Justice Namanya ruled.

Justice Namanya also noted that UMSC is not a public body amenable to judicial review.

The judge said the only way that UMSC, a private body can be subjected to the supervisory power of the court under judicial review is when it is proved that it carries out activities of a public nature with public law consequences combined with proof that the private body exercises some form of governmental power.

“In the case before me, there is no evidence that the activities of UMSC have been interwoven into the fabric of government regulation or control,” Justice Namanya noted.

Although the activities of UMSC impact about nine million Sunni Muslims in the country rendering its functions public in nature, justice Namanya said its functions are not governmental in nature and its activities have not been interwoven into public or government regulation.

“For the reasons given above, UMSC or any of its officials that were listed as co-respondents are not subject to the supervisory power of the court under judicial review,” Justice Namanya said.

In his response to the ruling, Mubaje reaffirmed the UMSC’s commitment to truth, unity, and accountability in a strongly worded statement posted on his official handle on X, formerly Twitter.

“Despite misinformation and negativity, UMSC remains focused on its work, upholding values of knowledge, integrity, truth and striving for Allah’s approval rather than human validation,” the Mufti wrote. He noted that UMSC has grown into a respected institution nationally and internationally, and thanked President Yoweri Kaguta Museveni for his continued support.

“I’m glad to inform you that the UMSC has grown into a respected institution… we’re committed to upholding its values and principles,” he said.

“The court’s decision to recognize UMSC as an independent institution that can handle its affairs internally is a significant step forward,” he posted. “It’s time for us to resolve our issues internally, guided by the Qur’an and Hadith.”

However, city lawyer Farouq Kamulegeya argues that the ruling is very unfortunate. “This ruling is very unfortunate, and we are going to appeal against it,” Kamulegeya said.

Kamulegeya opined that the ruling means that Muslim leadership disputes cannot be taken to courts of law for adjudication, which he argues is totally wrong because the High Court has unlimited original jurisdiction in all matters.

“We are going to appeal against this very unfortunate ruling because we cannot leave it on record as it renders UMSC very useless,” Kamulegeya said.

Kamulegeya also said the Muslim Arbitration and Conciliation Council (MAC), which the judge relied on to dismiss the case, does not exist.

“So, where does the judge want the aggrieved Muslims to take their disputes? The said Muslim Arbitration and Conciliation Council (MAC) does not exist. Is the court telling Muslims to go back and fight and the winner takes it all?” Kamulegeya wondered.

Kamulegeya also criticised the reasoning of the judge that for a private body like UMSC to be subject to judicial review must exercise some form of governmental function saying it is a wrong decision.

Byansi and the group argued that having served for more than 24 years far beyond the 10 years provided for under the new UMSC constitution, Mubaje was disqualified as per articles 5 and 29(12) of the Muslim constitution.

They wanted the court to issue an order directing the college of eminent sheikhs at UMSC known as Majlis al-Ulama to commence the process for electing and vetting the new Mufti of Uganda.

This is the second time in a space of one year, courts are dismissing cases against Mubaje’s leadership.