The ruling party, NRM has secured yet two more election victories after the Court of Appeal today overturned two previous High court judgements, which had thrown out of parliament two of its MPs over electoral malpractices.
Vincent Waboyo (Budadiri West) and Isaac Mulindwa Ssozi (Lugazi Municipality) will have another tenure in parliament after two different panels of the Court of Appeal ruled that the High court judges who kicked them out parliament either didn’t “properly evaluate evidence on the record” or they “completely misinterpreted the law”.
On June 15, the High court in Mbale annulled the election of NRM’s Woboya as Budadiri East MP. Justice Andrew Bashaija ruled that Woboya had failed to prove to court that he resigned his job at the Office of the Prime Minister (OPM) before getting nominated. The petition was filed by Forum for Democratic Change’s Isaiah Sasaga.
Justice Bashaija ruled that the Electoral Commission illegally nominated Woboya because he had not retired as the principal disaster management officer at OPM. Bashaija said although documents tendered in court showed that Woboya retired on May 10, 2015, he continued to receive a salary up to December of the same year.
Court records showed that Woboya also received Shs 12 million, Shs 14.5 million, Shs 10.3 million, Shs 1.8 million and Shs 1.98 million in June 2015 from OPM to disseminate disaster management information in Kween, Sironko and Bulambuli districts.
However, justices led by Steven Kavuma who has since retired, Richard Buteera, who has since been promoted to the Supreme court and Geoffrey Kiryabwire faulted Bashaija for failing to evaluate evidence on record thus arriving to a wrong conclusion of dismissing Woboya from parliament.
First, the trio took exception to Bashaija’s ruling which was to the effect that, instead of Woboya resigning from his office as the law envisages, he just retired. But the judges in their unanimous judgement faulted Bashaija for drawing a difference between retiring and resigning saying that they have the same effect.
“We therefore find that our re-evaluation of the evidence presented at the trial shows that indeed the appellant did properly and legally retire from service as required by law,” the three ruled in unison.
They also overturned Justice Bashaija’s findings which were to the effect that Woboyo continued to receive a salary after May 10, 2015, the month in which he claims to have retired, saying that upon securitizing evidence, they found that upon retirement, the legislator only received salary for June.
They agreed with Woboyo’s contention that the June salary accounted for the salary of May since civil servants are paid in arrears.
Minutes later, again Justices Kavuma, Alfonse Owiny-Dollo and Buteera set aside the June 14, 2016, judgement of High court judge Margret Mutonyi in which she nullified the election of Isaac Mulindwa Ssozi as the Lugazi Municipality legislator citing lack of academic qualifications.
In order to come to the conclusion of dismissing Mulindwa from Parliament, Justice Mutonyi had agreed with Nabatazi Lugudde, the loser in the February 18 election that the academic papers that the legislator had used during nomination contained names of one “Mulindwa Hassan” and “Isaac Hassan Mulindwa.”
In 2016, Justice Mutonyi who was sitting at the High court based in Jinja district concluded that “Mulindwa Hassan” and “Isaac Hassan Mulindwa” cannot be one and same person as Isaac Mulindwa Ssozi the names the MP currently uses.
However, Kavuma, Owiny-Dollo and Buteera had different understanding of the case saying changing names doesn’t in any way change the person. They cited how President Museveni and Retired Colonel Dr Kizza Besigye have varied names in the different Supreme court cases and presidential election petitions.
In the Supreme court election petition number one of 2001, they said, the names of the two characters were set out as follows: “Col (RT) Dr Kizza Besigye (petitioner) vs Museveni Yoweri Kaguta (respondent),” they ruled, adding the Supreme court was simply following the order of names which were written by the Electoral Commissions of the two characters during the 2001 presidential elections.
Yet in 2011 presidential elections, they pointed out that both Museveni and Besigye’s names were tweaked as follows, “Kifefe Kizza and Museveni Kaguta.”
Four years later during the 2016 presidential elections, the three justices noted there were again changes in the way the names were assembled. While Besigye went with “Kizza Besigye Kifefe” his eternal rival Museveni said that he will be known as for the purposes of the election as “Yoweri Kaguta Museveni.”
“We know that the order of names of those parties have been changing almost on every election at the instance of the election commission,” the judges said, “ We don’t agree with the preposition that the order of names would have any effect on the candidate’s academic qualifications on their own,” they added.
“More evidence must be adduced to prove to the satisfaction of the court, that a person who sat and obtained certain academic qualification is not the same person who was nominated for parliament.”
The Mulindwa ruling is going to come under serious scrutiny in legal circles since the court seems to have departed from its earlier rulings in cases where it was faced with similar facts.
First, there is the peculiar case of DP’s Nsereko Wakayima Musoke, the ousted Nansana Municipality legislator. On September 15, Justice Kavuma, who was joined by Cheborion Barishaki and Hellen Obura, upheld a High court ruling which had thrown him out of parliament.
The three agreed with High court judge Vincent Okwanga that Musoke did not qualify being an MP since he is not a registered voter and therefore never qualified for nomination and election. The judges ruled that the name Wakayima Musoke Nsereko which was used by the DP politician for his nomination was nowhere on the voter’s register.
“Mr Wakayima was nominated in error as his name is not registered in the constituency’s voter register; it was the name of Musoke Hannington Nsereko which validly appears on the National Identification card. We find that the purported change of names is null and void,” the judgment read in part.
The judges further agreed with justice Okwanga that there should be no by-election, thus declaring Kasule, who came third, as the elected legislator for Nansana.
Ironically, when justices led Kavuma, Barishaki and Paul Mugamba were confronted with a similar scenario in May, they ruled differently.
That appeal rotated around the names of NRM’s Taban Idi Amin, the Kibanda North MP who was challenged by Sam Otada Amooti. The latter argued that Amin was not a registered voter.
In the end, Kavuma, Barishaki and Mugamba agreed with Otada that indeed Amin failed to give a satisfactory explanation for the discrepancies in his name.
For instance, he had Idi Taban Amin Tampo on the national voters register and national ID, Taban Idi Amin on the nomination form and academic documents while his passport indicated he was Idi Taban Amin.
However, unlike in the Wakayima situation where the judges declared his rival the winner, this time round they ordered for a by-election, giving Amin another chance to get his papers in order. And indeed, Amin returned to parliament unopposed.