High court judge Margaret Oumo-Oguli yesterday refused to allow Kato Lubwama to appeal against her ruling that allowed political activist Habib Buwembo to file a petition “out of time” challenging his election.
Justice Oumo-Oguli described Lubwama’s application as “a ploy to delay the hearing of the main petition.” She dismissed it with costs, which are to be paid by the Lubaga South MP and the Electoral Commission, the other respondent.
On December 19, 2016, after the judge ruled that Buwembo could file a petition against Lubwama’s election even if it was out of time, the MP’s lawyers led by Samuel Mulindwa Muyizzi and Asuman Basalirwa asked Justice Oumo-Oguli to stay proceedings in her court so they could appeal.
Muyizzi asserted that Justice Oumo-Oguli had to allow them to appeal since they have a good case to present before the Court of Appeal judges. Muyizzi contended that the High court doesn’t have powers to extend time that has been laid down in the law.
According to section 60 of the Parliamentary Elections Act, a petition challenging an MP’s election must be filed within 30 days after the MP has been gazetted. Justice Oumo-Oguli, however, told Lubwama’s lawyers yesterday, that they have no right of appeal since her December 19 ruling was just “interlocutory” or provisional.
“This is just an interlocutory matter since Buwembo was asking for extension of time,” Justice Oumo-Oguli said. “You can only appeal after a substantive petition has been heard.”
The judge further explained that permitting Lubwama to appeal would go against the judiciary’s policy of expeditious hearing of election petitions. After the ruling, Basalirwa tried to address Justice Oumo-oguli but she wasn’t in the mood.
“I’m not here to listen to any submissions. Counsel, court is functus officio (court has already decided),” the judge said, before abruptly exiting court, leaving a stunned Basalirwa.
With the judge gone, Basalirwa told the press that they are going to take the fight to the Court of Appeal and, if possible, to the Supreme court.
“This is just the beginning,” Basalirwa said. “We are going to go to the Court of Appeal to seek an injunction staying proceedings in the High court, and remember this case can go up to the Supreme court.”
Unlike other times when Lubwama personally addressed the media, this time round he kept his distance, only smiling once for the cameras. Basalirwa also had an explanation for Lubwama’s new-found quietness.
“As his lawyers, we have advised him to stop commenting,” Basalirwa offered. “We told him to stop fighting fire with fire. He has been ridiculed, called all sorts of names, like ‘dikuula’ [clown]; that’s why he won’t talk but we can speak for him.”
Flanked by Lubwama’s other lawyer, Luyimbazi Nalukoola, Basalirwa had no kind words for the press.
“We have seen several reports in the print media; the problem is that they don’t give us a chance to respond to the allegations. I think the press, more so the print [media], should give us a fair hearing,” Basalirwa said.
Isaac Kimaze Ssemakadde, who represents Buwembo, criticised Lubwama’s move to the Court of Appeal.
“Going to the Court of Appeal shows that Lubwama’s legal team leaves a lot to be desired,” Ssemakadde said. “But we are ready for them whether in the High court or Court of Appeal. This means that Kato Lubwama will be condemned to more costs. But he [Lubwama] can change legal representation. It’s allowed.”
Last Friday, through the Centre for Legal Aid (CLA), Buwembo, an FDC youth winger, formally filed the petition challenging Lubwama’s academic qualifications. He said the MP was not validly-elected since he had no O-level certificate or its equivalent.
Lubwama, who has 10 days to respond to the petition, insists that he was nominated by the Electoral Commission on the basis of his O-level results, which he obtained from Old Kampala Secondary School, and the diploma in Music, Dance and Drama (MDD) he got from Makerere University.
However, the complainant points out that Lubwama failed O-level and should never have joined Makerere University in the first place.
dkiyonga@observer.ug