The Monday decision by Robert Kyagulanyi Ssentamu to withdraw his Supreme court election petition has raised new legal and political question.
The political question, however, is clear and to the point; what is the next course of action for Kyagulanyi aka Bobi Wine? In the past, Kyagulanyi, the former presidential candidate of the opposition National Unity Platform (NUP) and runner-up in the January 14, 2021 presidential race, has hinted that if he fails to get justice in our courts of law, he will turn to the court of public opinion.
Nudged by journalists to clarify his statement, Kyagulanyi used his press conference on Monday soon after announcing the withdrawal of his petition to shed more light.
“We have said time and gain that Ugandans will have the final say on this matter,” he said.
He said it’s too early to disclose his next course of action but insisted violence is off the table.
“We are not opting for violence and all options are on table and we shall be telling the people of Uganda of the next steps,” Kyagulanyi said.
Before he withdrew the petition last Monday, Kyagulanyi was boxed in the most unenviable of corners. Pressure was piling on him to withdraw his election petition challenging the January 14 victory of President Yoweri Kaguta Tibuhaburwa Museveni. Kyagulanyi faced many hard choices. From the onset, majority of the NUP rank and file didn’t supported the Supreme court petition. They knew trying to cancel Museveni’s victory in court was fait accompli.
Their fears were not farfetched because the Supreme court had dismissed three presidential election petitions. The 2001 and 2006 petitions were dismissed by split decisions – three justices against two and four against three, respectively.
The most recent petition of 2016 filed by former prime minister Amama Mbabazi was unanimously dismissed by a panel of nine justices. Two Kyagulanyi lawyers interviewed anonymously for this story said the debate extended to the legal team.
“There are those who genuinely believed that this petition was dead on arrival but there are also those who saw it as an opportunity to shine. But generally, legal decisions are always controversial,” one lawyer said.
In the NUP politburo, another source close to the ghetto president said the legal option was only backed by a few people albeit very influential people.
“Bobi was alone with his trusted man Rubongoya. But most of us never supported this option of going to court because the only purpose it served was to legitimatize Museveni,” the source said referring to David Lewis Rubongoya, the NUP secretary general.
He said it’s very unlikely that an idea supported by Rubongoya can fail to see the light of the day.
“It doesn’t matter the noise those politicians make, if Lewis is opposed to an idea, it is most unlikely that Bobi will support it,” our source said.
In the end, the principals resolved to go to court but the problem was they didn’t have enough evidence to support many of their allegations, the source said.
“We knew that if we file a case, people will start coming up with evidence. So, we decided to file hoping that we shall have enough evidence,” the source told us.
In fact, according to another person with direct knowledge of what transpired, people started coming forth with evidence that strengthened the NUP case. That’s how another ground that Museveni wasn’t eligible to stand as a candidate unless he relinquished his presidential roles came up, the source said.
He said NUP hoped that the law allowed them to amend their petition without necessarily seeking leave of court. The Supreme court registrar, Harriet Nalukwago Ssali, roundly rejected that proposal. She advised the petitioner to seek leave of court to amend the petition.
Lawyers of President Museveni, the Electoral Commission and the Attorney General, the first, second and third respondents in the petition respectively all objected to the amendment.
They said amending the petition by introducing new grounds amounted to almost filing a fresh petition, which was barred by the Constitution because the mandatory 15 days in which a presidential petition must be filed, had lapsed. All the nine justices of the Supreme court led by Chief Justice Alfonse Owiny-Dollo agreed with the respondents to disallow the amendment.
To Kyagulanyi, the justices’ decision was an early warning that things had started moving south. Then on February 15, court acting on the guidance of Chief Justice Dollo, declined to receive 137 affidavits Kyagulanyi had wanted to file to support the 26 grounds in his petition.
The registrar advised that Kyagulanyi seeks leave of court to file out of time. But the lawyers of the three respondents objected to the filing of evidence out of time. Before court could sit to determine the case on February 19, Kyagulanyi held a press conference and lambasted the Supreme court for being biased.
He leveled his harshest criticism at the Chief Justice Dollo and two other justices; Mike Chibita and Ezekiel Muhanguzi. He said they can’t be fair to him because of their cozy relationship with Museveni. For Muhanguzi, he accused him of bias because he is related to the minister for Security Elly Tumwine. He demanded that the three justices recuse themselves from the case.
If they didn’t recuse themselves and allow his evidence to be submitted, Kyagulanyi said, “He wouldn’t be part of their mockery.”
Meaning he would withdraw his petition. Procedurally, when a petitioner is dissatisfied with any judicial officer hearing his case, he formally writes an application demanding that such a judicial officer recuses himself or herself from the case. Kyagulanyi never gave such instructions to his lawyers led by Medard Lubega Sseggona. Interviewed for this story, Sseggona said he doesn’t act on rumors.
“My instructions were to file an application to allow us to file our evidence,” Sseggona said.
Last Friday that very application was dis-missed by eight judges to one. But before this happened, Dollo first responded to Kyagulanyi’s earlier diatribe. He reminded the NUP leader that they didn’t invite him to the Supreme court.
“We are not opposed to fair criticism and the position we hold expects such criticism but criticize my conduct, criticize my decisions, tear [them] to pieces but when you attack my person when you know I don’t have the opportunity to stand up there and respond to you… When you come before us and you have a good case I will decide in your favour. If indeed the petitioner chooses to take another path, we can’t stop him from proceeding, you don’t need our permission, you can proceed with your Plan B,” Dollo said before he and the other seven justices dismissed the case.
The argument for dismissing the application was the same; NUP was out of time. Without the evidence, Kyagulanyi was left with only 53 affidavits to support his 26 grounds for the annulment of Museveni’s victory.
“Our petition is standing on one leg, the other has been cut off,” one of Kyagulanyi’s lawyers told us before the petition was withdrawn on Monday. The question then was, how would they move forward on one leg. Some court watchers have criticized Kyagulanyi’s legal team for doing a bad job.
“Every time they go before court they are on a weak ground. Kyagulanyi is on record saying the judges are biased. Maybe they are, but his lawyers should have given them an opportunity to show their biasness,” said Male Mabirizi, a city lawyer known for filing multiple petitions in the courts. But on Monday, Kyagulanyi vigorously defended his legal team and accused the Supreme court of outright bias.
“We didn’t lose any case and as much as you want to put the blame on our lawyers, I want to remind you that the court operating on double standards rejected what it accepted with other petitioners so that is clearly bias and lack of independence,” Kyagulanyi said.
Mabirizi said court erred in denying Kyagulanyi an opportunity to first amend his petition and file his evidence.
“These timelines are not cast in stone; I think the law allowed them to amend that petition and also file new evidence because this is a public interest case that touches our democracy,” Mabirizi said.
His view is shared by Ibrahim Kivumbi Kaboggoza, a senior partner at Kivumbi, Madina and Kikomeko Advocates and Solicitors. He said the Supreme court has discretion to change its own timelines.
“Court should have allowed them to file their evidence in order for them to properly evaluate this case. When you stop them from filing, you are curtailing their ability to make their case. I think it wouldn’t have been fatal if court allowed the evidence to be filed after all this is a public interest case,” Kivumbi said.
He said all was not lost. “I have not read through the affidavits that court accepted but I believe if they responded to some of the major grounds they made in their petition, court could have based on them to make a judgement that can actually be in their favor,” Kivumbi said.
The decision to withdraw the case excited the NUP core base that didn’t believed in the court option.
“Many people in our party don’t believe in our court system. It is extremely unfair towards Museveni’s opponents. I still believe we shouldn’t have gone there. I think the best avenue to solve this political puzzle once and for all lies in the hands of Ugandans,” said Derrick Nyeko, the MP-elect for Makindye East constituency in Kampala.
Nyeko is not alone in holding that view. Every time Kyagulanyi has addressed a public gathering and said that if he doesn’t get justice from court, he would go to the court of public opinion, he has received a thunderous applause from the politicians and ordinary supporters.
“We have said time and gain that Ugandans will have the final say on this matter,” Kyagulanyi told the Monday press conference. Asked what he means by the court of public opinion, Kyagulanyi said it was still too early to disclose. “We are not opting for violence and all options are on table and we shall be telling the people of Uganda of the next steps.” Kyagulanyi said.