On February 1, former presidential candidate Robert Kyagulanyi Ssentamu aka Bobi Wine petitioned the Supreme court to cancel the January 16 election victory of President Yoweri Kaguta Tibuhaburwa Museveni.
In his petition, the leader of the opposition National Unity Platform (NUP) and runner-up in the January 14 presidential election cited 26 reasons for the cancellation of Museveni’s victory.
Kyagulanyi insists Museveni was not elected in accordance with the electoral laws of Uganda. Kyagulanyi also cites the arbitrary arrest of his campaign agents and supporters, harassment by security forces, being refused to campaign in selected districts, bribery of his supporters by Museveni, ballot stuffing, irregularities in vote tallying and transmission of results, and verbal abuse by Museveni, among other grounds.
This week, Kyagulanyi also sought to amend his petition and introduced other grounds. He contends that as an incum-bent, Museveni was not supposed to take part in the January 14 presidential election.
“Contrary to Articles 102 (2) (b) and 219 of the Constitution of the Republic of Uganda as amended and S. 4 (b) of the Presidential Elections Act as amended, the 1st Respondent [Museveni] was not qualified for election as president while in the office of head of state, head of government, commander in chief and chairperson of the National Security Council,” Kyagulanyi contends.
He says Museveni abused the presidency by commanding or directing forces under his command, control and authority such as the Special Forces Command, Uganda People’s Defence Forces, Uganda Police Force, Internal Security Organisation, Resident District Commissioners, Local Defense Unit and Special Police Constables to brutalize, torture, maim and assault him, his agents and supporters; as well as interfere with the electoral process to his [Museveni] benefit.
Kyagulanyi also alleges that Museveni used his office to disburse state resources during the election period. He says the president launched the ‘Emyooga’ poverty eradication initiative solely to influence and win support of the beneficiaries.
“Cumulatively, the above acts… created insecurity and seriously compromised freedom, fairness and voter turnout in the 2021 presidential elections particularly in the petitioner’s stronghold districts/cities of Kampala, Wakiso, Mukono, Mpigi, Gulu, Masaka, among others where the elector-ate was greatly intimidated, terrified and horrified thereby affecting the percentage of voter turnout…,” Kyagulanyi’s petition partly reads.
Save for the grounds contained in the amended petition, Museveni, the Electoral Commission and the Attorney General who are the first, second and third respondents respectively, have roundly denied the accusations.
In their responses to the petition, all respondents asked court to dismiss the petition beforehand because it was filed out of the mandatory 15 days allowed by the Constitution after the declaration of results.
Museveni was declared president-elect on January 16 and Kyagulanyi had up to January 31 to file his challenge to the petition. Since January 31 was a Sunday, Kyagulanyi sought to file his petition on Saturday but the Supreme court declined to receive it.
The chief justice Alphonse Owinyi-Dollo advised them to file it on Monday, February 1, which they did.
THE FIRST HURDLE
The first hurdle Kyagulanyi’s lawyers have to navigate started yesterday with their application to amend their petition. The Supreme court dismissed the amendments, saying they were already covered in the original. The judges asked Kyagulanyi to instead adduce more evidence before the judges during the trial.
One of Kyagulanyi’s lawyers, Geofrey Turyamusiima, in an affidavit sworn in support of the application, said the law allows them to amend their petition before the start of hearings.
“The intended amendment to the petition is necessary in order to enable this Honor-able Court effectively determine all questions in the petition… Well knowing that he was within time to amend his petition without leave of court, the petitioner attempted to file his amended petition…,” Turyamusiima said.
But NRM and Museveni’s lawyers led by Oscar Kihika vehemently opposed the amendment. Earlier on, Kihika told journalists at the NRM secretariat in Kampala that Kyagulanyi should desist from abusing the court process by introducing grounds that are afterthoughts.
“We are going to challenge that application for amendment,” Kihika said.
WAS THE APPLICATION FILED OUT OF TIME?
The other hurdle is the contention by team Museveni, Electoral Commission and the Attorney General that the petition was bad and barred in law because it was filed out of the 15-day window provided by the Constitution.
According to the three respondents, the Supreme Court should dismiss the petition despite the fact that it was at the urging of the chief justice that NUP filed a day after the expiry of the 15-day constitutional period.
Speaking to The Observer, Male Mabirizi, a lawyer, who has interacted with the judicial system closely, said the three respondents are in order to raise preliminary objections to the petition.
“It is true that the Interpretation Act allows you to file a petition a day after the expiry of the deadline if that deadline fell on a weekend or a public holiday. However, this Act only interprets parliamentary Acts not the Constitution. So I think the objection from the respondents is really valid,” Mabirizi said.
He said however, it was weak for NUP to lean on the argument that the chief justice allowed them to file outside the constitutionally required time.
“The chief justice is not above the Constitution. Actually, court can vote to dismiss that petition on that ground regardless of the objection of the chief justice because he has one vote like the other eight justices,” Mabirizi said.
But speaking to The Observer, Sulaiman Kakaire, a lawyer on Kyagulanyi’s team, said their decision to file a day after the deadline is not only guided by the decision of the judiciary but also supported by law.
“Every lawyer will always first look at a technicality on which a case should be dismissed and I’m not surprised by the responses of the respondents. But what I can tell you is that we looked at the law, and then consulted with the judiciary and they allowed us to file on Monday. Therefore, I really don’t see how this petition can be dismissed on that ground,” Kakaire said.
THE SUBSTANTIALITY TEST
If the petition proceeds to full hearing, Kyagulanyi will have to prove to court that the irregularities he enumerates in his petition were substantial enough to affect the final results.
Apart from the 2016 Amama Mbabazi petition that was unanimously dismissed on almost all the grounds raised, the Supreme court in the 2001 and 2006 unanimously agreed that the election was not held according to the law.
However, the only point that split the judges 2:3 and 3:4 in the 2001 and 2006 petition respectively was whether the irregularities and the noncompliance to electoral laws affected the outcome in a substantial manner so as to invalidate the outcome.
In 2009, Besigye petitioned the Constitutional court challenging the legality of Section 59(6)(a) of the Presidential Elections Act that says the Supreme court can only annul an election if the noncompliance to the law is such that it affected the outcome in a substantial manner.
All five justices; Augustine Sebuturo Nshimye, Eldad Mwangusya, Rubby Aweri Opio, Geoffrey Kiryabwire and Prof Lillian Tibatemwa-Ekirikubinza, dismissed the petition. In their findings, the justices said the substantiality test was not inconsistent with the Constitution because parliament was allowed to make laws that determine circumstances under which an election can be annulled.
“Doing away with Section 59(6) (a) would mean lowering the standard of proof of presidential election petitions and any slight form of non-compliance would be argued to be sufficient to annul presidential elections. Not forgetting that this is the highest office in the country, every presidential contestant would run to court for redress which would seriously impact on the political and economic stability of our country,” the ruling, issued in 2016, read in part.
Speaking to journalists last week, Col Kizza Besigye said this ruling almost made it impossible for anyone to successfully challenge a presidential petition.
“If you find that the election was neither free nor fair, then it would be a contradiction not to annul it,” Besigye said.
Now that is the hill that Kyagulanyi has to climb to prove that the irregularities eroded the outcome in a substantial manner.
The other hurdle Kyagulanyi has to clear is rewiring the mindsets of the justices who are going to decide his case. Chief justice Alphonse Owinyi-Dollo has already indicated that other than Justice Prof Lilian Tibatemwa-Ekirikubinza, the rest of the nine justices of the Supreme court will be part of the panel to determine the petition.
On top of Owinyi-Dollo who is the head of the panel, the other panelists are; Dr Esther Kisakye, Arach Amoko, Rubby Opio Aweri, Faith Mwondha, Paul Mu-gamba, Mike Chibita, Ezekiel Muhagunzi and Percy Tuhaise. Other than Chibita, Muhanguzi, Mwondha, Mugamba, Tuhaise, and Dollo, the other three justices were part of the 2016 panel that dismissed Amama Mbabazi’s petition. The other 2016 panelists; Bart Katureebe, Jotham Tumwesigye, Eldad Mwangusya and Augustine Nshimye have since retired.
And some of the justices on the panel have in the past shied away from ruling against Museveni’s continued stay in office. In 2007 and 2019 the Constitutional court and the Supreme court respectively dismissed a petition that sought to invalidate an amendment to the Constitution that allowed President Museveni to contest beyond 75 years of age, the constitutional upper age limit for a presidential candidate.
Owinyi-Dollo then at the Constitutional court voted to allow the amendment while Arach-Amoko and Opio-Aweri voted to uphold the amendment at the Supreme court.
Therefore, what is left to be seen is how the other justices who have not presided over a contentious matter where Museveni’s political future is on the line are going to rule. Court has set tomorrow, January 11, as the day for the parties to conference on the issues to be determined.