At the beginning of September, the High Court in Kampala invalidated the appointment of Prof Damalie Nakanjako as the Principal for Makerere College of Health Sciences (CHS). This was after a number of disgruntled dons at the same CHS ganged up and hired city lawyer Isaac Ssemakadde to file a suit inviting court to inquire into the circumstances of the entire recruitment process.
However, convinced that the University Council and the Appointments Board had acted prudently throughout the recruitment process, Makerere University officials (led by Chairperson Lorna Magara and University Secretary Yusuf Kiranda) insisted on appealing against Justice Esta Nambayo’s decision. As the notice of appeal went out, the University lawyers were also instructed to file an application for stay of execution (they call it arresting the judgment) so that the successful litigants (Dr. Hawa Nalwoga & 40 others) don’t proceed to get Prof Nakanjako out of office. The consideration was that the resultant vacuum would fatally hurt service delivery at the College of Health Sciences whose previous Principal Prof Charles Ibingira was already out of office.
Prof Nakanjako’s rivals tried to object to the stay of execution application on grounds there was nothing to be stayed and also that Kiranda and Magara didn’t have power to spearhead the appeal and the application for stay of execution since no governing Council meeting had been held for members to collectively make that decision. Principal Judge, Flavian Zeija himself a former lecturer at Makerere-affiliated Mubs who heard the application because all judges were at that time out of station hearing election petitions, disallowed these objections and went ahead to hear the stay of execution application on its merit.
In the end, Zeija agreed with Makerere lawyers’ argument that the leadership vacuum resulting from Prof Nakanjako (whose recruitment was preceded by a very expensive and rigorous process) being forced out of office, in execution of Justice Nambayo’s judgment, would fatally hurt service delivery and conduct of business at the College of Health Sciences (CHS) whose medical students and staff continue to play pivotal roles in the country’s overall anti-Covid19 response. The PJ also reflected on the fact that absence of someone in the office of the Principal would complicate the processes leading to the full reopening of the College which is being anticipated. It would equally hurt the coordination of the anti-Covid19 contribution Makerere University is mandated to make through the CHS.
The Principal Judge was also satisfied that the notice of appeal had dully been lodged/exhibited; that the applicants (Makerere & Prof Nakanjako) risked substantial qualitative loss if execution was not stayed and the fact that the aggrieved applicants had lodged their application for stay promptly and without any unreasonable delay (which the law and practice abhor in matters of this nature). To the PJ’s satisfaction, Makerere also demonstrated that the order of stay, once granted, could be enforced so that the Court doesn’t decide/rule in vain.
The applicants also demonstrated, to the satisfaction of Court, that there was “imminent danger of execution” of the orders contained in Justice Nambayo’s ruling and that the applicants’ appeal in the Court of Appeal would be rendered nugatory if execution wasn’t stayed. The PJ agreed with the illustration made by the applicants’ lawyers (Jovason Kamugisha & Barnabas Tumusingize of S&L) that the fact that the lawyers of the respondents (Prof Hawa Nalwoga & 40 others) had already “extracted an order of court” was indicative that “execution [against Prof Damalie Nakanjako] was eminent” as clear demonstrable steps were being taken in that direction.
The PJ also observed that there are clear wrongful omissions and commissions which the trial Judge (Nambayo) committed that merit being inquired into and be determined afresh by the appellate court before which the applicants (Makerere and Prof Damalie Nakanjako) have filed an appeal pending hearing. The latest grant of stay of execution by the PJ implies many things including the fact that Prof Nakanjako will continue presiding over business at the CHS and this could take much longer than many of her detractors anticipate.
It simply will take as long as the Court of Appeal will take (could be years) to dispose of the appeal seeking to overturn Justice Nambayo’s September ruling. Top officials at Makerere also see the appeal as an opportunity for the governing Council to assert its authority against powerful CHS dons who Lorna Magara and Yusuf Kiranda see as trying to use Court to constrain them from freely exercising their mandate as the top most organ at the country’s premier University. They are fearful that disregarding the PhD requirement for the position of Principal will open the door for business-minded dons/medical practitioners to ascend the top office (of Principal) and mess up things at the Mulago-based CHS.