Kampala, Uganda | THE INDEPENDENT | Barely a week ago, Robert Kyagulanyi Ssentamu, the president of the National Unity Platform indicated that he was headed to the Supreme Court to challenge the outcome of the 2021 presidential election.
Yoweri Kaguta Tibuhaburwa Museveni, of the National Resistance Movement candidate was on January 17 declared winner of the presidential election with 5,851,037 votes representing 58.64 percent against Kyagulanyi’s 3,475,298 votes representing 34.85 percent. Kyagulanyi, a former musician declared that the vote was rigged even before the final tally was announced by the Electoral Commission chairman Justice Byabakama Mugenyi Simon.
Although Kyagulanyi indicated his willingness to challenge the results, party officials in an interview with Uganda Radio Network said they are not enthusiastic about it. Joel Ssenyonyi who speaks for NUP said going to court is just one of the many options available to them. He however said that the challenge they have met with this option is that the police is arresting their agents who are gathering evidence that will be used in the court.
“We are still gathering evidence, as soon as we are ready, we shall let Ugandans know our next plan of action. But the regime doesn’t want us to have this evidence. They are arresting people with the correct Declaration of Results Forms like anybody who has something to hide will do,” Ssenyonyi said.
According to the 2017 Constitutional Amendment of Article 104 (2), a presidential candidate aggrieved with the results of an election has up to 15 days from the date of declaration of results to file a petition to the Supreme Court. The amendment also gives the Supreme Court up to 45 days to determine the petition.
In the last six elections that have been held under President Museveni, three of them have so far been challenged in the court. However, none of them has ever been set aside by the court. In 2001, in a decision of 3:2, Supreme Court justices noted that although there were widespread irregularities, they were not substantive enough to warrant an annulment of the election.
Justices Benjamin Odoki, Alfred Karokora and Joseph Mulenga voted against annulling the elections while John Wilson Tsekooko and Arthur Oder voted in favour of annulling the election. In the 2006 election petition that was heard by seven justices, three voted for and four voted against annulling that election.
Oder and Tsekooko were joined by Justice George Kanyeihamba while Odoki, Mulenga and Karokora were joined by Justice Bart Katureebe. In both occasions, the petition was allowed on most of the grounds but the contention was whether the irregularities were substantive enough to affect the final outcome.
In 2016, Amama Mbabazi also filed a petition in the Supreme Court challenging the victory of President Museveni. Besigye who came second in that election was under house arrest.
The Supreme Court coram that was made up of nine Justices unanimously dismissed the petition for lack of merit. Just days to filing the petition, unknown people broke into the offices of Fred Muwema who was the lead counsel of the petitioner and ran away with all the affidavits that were supporting the petition.
The nine Justices who dismissed Mbabazi’s petition included; Bart Katureebe, Lilian Tibatemwa Ekirikubinza, Esther Kisakye, Jotham Tumwesigye, Arach Amoko, Augustine Nshimye Ssebuturo, Eldad Mwangusya, Rubby Opio Aweri and Faith Mwondha.
“Having made a due inquiry into the petition, and on the basis of our findings…we hereby declare that the 1st respondent [Museveni] was validly elected as President in accordance with Article 104 of the constitution and section 59 of the Presidential Elections Act. Accordingly, this petition is dismissed with no orders as to cost,” the 2016 judgment reads in part.
That coram that heard Mbabazi’s petition has since lost Justices; Katureebe, Tumwesigye and Mwangusya who have since retired from the judiciary. In their positions is now Justices; Alphonso Owinyi-Dollo, Paul Mugamba, Mike Chibita, Ezekiel Muhagunzi and Percy Tuhaise.
Can they overturn a presidential election?
Most people we spoke to for this article believe that it’s an uphill task to overturn a presidential election in Uganda. In his memoir titled ‘Blessing and Joy of Who You Are,’ Justice Kanyeihamba who was part of the panel which decided the 2006 election says before the judgement was finally read by the then Chief Justice Benjamin Odoki, four out of seven Justices had decided to overturn the election.
But on the last minute, Kanyeihamba writes that Mulenga who had actually brought to Kanyeihamba’s attention affidavits that eventually swayed him to vote to annul the election changed his mind and upheld the results.
Ssenyonyi bases on such revelations to say that although going to court is one of their options, they already know how the courts will decide the matter. “Regardless of the evidence that you take to these courts, they can never rule against their master. It’s not an option we have removed from the table but it’s not one we are working enthusiastically about. Besigye collected overwhelming evidence but it was thrown out of the window,” Ssenyonyi said.
His argument is buttressed by Ibrahim Ssemujju Nganda, the spokesperson of the Forum for Democratic Change. “Going to court is not an option for us because it has the effect of validating Museveni’s rigged election. There can be some good recommendations by the court but Museveni will celebrate that he’s being taken to court. We can only take him to the court of the people because this is their country,” Ssemujju said.
FDC has already stated that they will not be challenging these results in the courts. Patrick Amuriat Oboi who was their presidential candidate even called upon Kyagulanyi not to take that course-of-action because it will end in the same way previous petitions have ended.
What do the legal minds say?
Ibrahim Kivumbi Kaboggoza, a senior partner at Kivumbi, Madina and Kikomeko Advocates and Solicitors agrees that the current configuration of the judicial system is not the best that anyone aggrieved with the results of presidential elections should go to. However, not doing so, Kivumbi says, denies the country the opportunity to taste some actions and in actions of the Electoral Commission and other players.
“Court works on evidence. But as you already know, security is arresting people who are gathering Declaration Forms which are needed to show the impact that the irregularities had on the final outcome. So such things make it hard to challenge presidential results. But otherwise, we would have loved to hear the court pronounce itself on issues like the torture of candidates and their agents, going with cameras at polling stations among others,” Kivumbi said.
Asked about why it is hard for the court to annul a presidential election in Uganda, Kivumbi pointed to the appointment of judges. “It’s an uphill task to overturn an election in Uganda because of the way the judges are appointed. They pay allegiance to Museveni who appointed them. So it doesn’t surprise that every time his political survival is on the line, they rule in his favour,” Kivumbi said.
According to the law, judges are appointed by the President in consultation with the Judicial Service Commission. But in the past, cases of judges being appointed without ever applying or even being interviewed by the Judicial Service Commission have surfaced.
Another lawyer who has litigated in all levels of courts of judicature and sometimes won and other times lost, Male Mabirizi Kiwanuka said although he agrees that the appointment of judges sometimes hinders their capacity to execute their duties without bias, he nevertheless believes that they have the capacity to annul an election.
“If you are organized, you can actually successfully challenge a presidential election. If it was automatic that Museveni always wins in the court, he wouldn’t then be scared of these petitions,” Mabirizi said. He adds that disrupting NUP from gathering evidence to present it to court is testimony enough to show that the state is also not sure of how the courts can decide a matter.
“Any court can annul an election and Museveni knows that, that’s why he doesn’t trust them. But that capacity depends on how prepared the petitioner is and how the election was organized. So it’s so easy to overturn elections if you are prepared as a petitioner,” Mabirizi said.
For now, Kyagulanyi who is currently under a joint military and police siege at his home has nine days to file his petition in the Supreme Court. What is left to be seen is whether if indeed he goes ahead and files his petition, the Supreme Court can disappoint the naysays and rule against Museveni and the Electoral Commission who will be the respondents.
‘Even in Kenya, they thought it can never happen until Justice Maraga did it,” Mabirizi said referring to the now retired Chief Justice of Kenya David Maraga who in 2017 annulled President Uhuru Kenyatta’s re-election after a successful petition by his political nemesis then, Raila Omollo Odinga.