The Attorney General (AG) yesterday asked the High Court to dismiss with costs the application lodged by five herbalists to challenge the government’s decision of deregistering their herbal clinics and suspend them as alternative medicine practitioners.
The herbalists includes Mwaka Juma Mwaka alias ‘Dr Mwaka,’ Abdullah Mandai, Simon Risigwa, Fadhir Kabujanja and John Lupimo. Through legal services of Dr Lucas Charles Kamanija, the herbalists have, however, opposed to the invitation by the AG.
They have filed the application against three respondents, the Traditional and Alternative Health Practices Council, Permanent Secretary Minister for Health, Community Development, Gender, Elderly and Children and Attorney General, seeking for leave to sue the government on the matter.
Nevertheless, the AG, through Senior State Attorneys Tuli Mwakihesya and Sylivester Mwakitalu, has raised a two set of grounds of objections for the dismissal of the case, alleging that the herbalists, the applicants, have not exhausted all other remedies available before resorting to the court action.
In addition, the two senior state attorneys, assisted by State Attorney Grace Lukondo, content that the affidavit lodged by the applicants to support the application in question was incurably defective, thus rendering the application in question incompetent.
Expounding the grounds of objections, the state attorneys told Judge Ama Munisi, who jeard the matter that according to the Traditional and Alternative Medicine Act, Dr Mwaka in his part ought to have appealed to the minister responsible to the sector first before going to court.
They submitted that in respect of other applicants who were suspended and others de-registered were required to seek the court’s intervention by way of appeal and not filing an application for judicial review as they had done.
In his brief reply submissions, however, Dr. Lucas Charles Kamanija, who is appearing for the applicants, asked the court to dismiss all the grounds of objections raised for lacking merits. He told the judge that his clients were challenging the decision given by the ministry’s Permanent Secretary.
Therefore, the advocate submitted, his clients were not challenging the merits of the said decision to deregister and suspend or cancel the applicants’ licenses as well as their licences of their clinics, respectively. “We are not appealing the decision by (permanent secretary of the ministry) because he has no power under section 23 and 24 of the Act,” he submitted.
Thus, according to him, the only remedy for the applicant that remained was to apply for judicial review. On the question of affidavits, the advocate told the court that all of them contained facts and not legal arguments, opinions and conclusions as suggested by counsel for the respondents.
He submitted that the respondents had failed to show specifically which facts offended the law. After hearing the arguments from both parties, the judge said she would deliver her ruling on the matter on August 19.
In the cases, the applicants have advanced several grounds to fault the government’s decision, notably acting under utra vires (exceed limits) or illegality, being biased or discrimination, irrational or unreasonableness and violation of the right to a fair hearing.
According to the statement filed to support the application, the applicants were seeking for orders of certiorari to remove into the court and quash the purported decision of the Council’s allegations against them contained in summons dated June 14 and 20, this year.
They were applying for orders of certiorari (to remove into the court and quash) the allegations and purported decisions by the Ministry against them, which cancelled their registrations, their aids and herbal clinics.
The applicants were further seeking for orders of mandamus (to compel and direct) the respondents to act in accordance with the law and that an order for prohibition, restraining them from illegally harassing the applicants and interfering with their alternative medicineherbology practices.
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