By Agnes E Nantaba
Differences with 2001, 2006 petitions make this a tough call for CJ Katureebe
Chief Justice Bart Katureebe must have felt a sense that he had been here before as he led eight justices of the Supreme Court in Kampala on March 7 to the pre-hearing conference of a petition against the Feb. 18 presidential election. In the petition,one of the losers; former presidential candidate Amama Mbabazi is seeking nullification of the incumbent, President Yoweri Museveni’s election on 43 grounds which include non-compliance with the law, vote stealing, and intimidation of voters and agents by security forces.
Justice Katureebe is the only one of the nine justices hearing the petition to have been in a similar position before. In 2006, he was on a panel that heard another petition brought before the Supreme Court against the election of the same respondents, including President Yoweri Museveni, the Attorney General, and the Electoral Commission.
As he strode into the jammed courtroom this time, Katureebe who was decked out in red court robes, he could have been asking himself what could be different.
The Supreme Court is mandated under the Constitution to inquire into and determine the petition expeditiously and declare its findings not later than thirty days from the date the petition is filed. The petition was filed on March 01; at the last minute to the expiry of the 10 day window and the clock is ticking.
According to retired former Supreme Court Justice George Kanyeihamba, who was also part of the panel of seven that heard the 2006 petition, Justice Katureebe should find a lot that is different this time.
Kanyeihamba told The Independent in an interview that this petition is a unique one that, unlike the previous ones, presents a need for higher level of analysis.
“I was one of three judges who found that the 2006 presidential election was flawed and should be annulled and another held within 20 days from the date of annulment,” said Kanyeihamba.
He explained that under the law, in the 2006 petition, three questions guided the decision of the judges; whether in the conduct of the presidential elections, the constitution, electoral laws and regulations had been complied with and whether the election was free and fair. The third question was whether the breaches if at all found in the first two instances, were substantial enough to affect the outcome of election. All the judges unanimously found in favour of the petitioner on the first two questions. However, on the third question, three judges found in favour of the petition and four judges found against. The petition was lost by majority vote.
The Supreme Court justices, after agreeing that the election had been riddled with various irregularities, concluded that the irregularities were not sufficient to alter the final results and upheld the election.
Reports indicate that both petitions failed in the same style, with the advantage being swung in Museveni’s favour by then Chief Justice Benjamin Odoki, because there was a tie among the other justices. In 2001, it was a three-to-two decision, and then a four-to-three decision in 2006.
This time it is Katureebe on the spot. In case of a Four-four tie among the justices, Katureebe’s decision could be all that matters.
Kanyeihamba says, however, that “the previous two petitions were not glaring as today”.
“For instance we never had anyone claiming Museveni as a presidential candidate was seen distributing hoes and if proven true, it is a criminal offence that can lead to disqualification of a candidate from standing or becoming president.”
He added: “In the previous elections, there were allegations but as judges including Chief Justice Benjamin Odoki, our ruling proved that there was no sufficient evidence to prove that the person committed such a crime. In this case, there happens to be some evidence.”
Kanyeihamba also noted that never before in the electoral history of Uganda have presidential election results been universally condemned and rejected nationally and internationally.
Other observers have also noted major differences.
A major difference between this petition and the previous ones filed by Dr Kiiza Besigye, who was first runner up against Museveni in 2001 and 2006 respectively is that this time, it is the 2nd runner up and former premier Amama Mbabazi who polled just 1.4% of the total valid votes cast who is petitioning.
On Feb. 20, the Independent Electoral Commission (IEC) led by Chairman Eng Dr Badru Kiggundu announced victory in favour of NRM’s Museveni scooping 60.7% of the valid votes followed by closet contender and FDC candidate, Kizza Besigye, who got 35% of the total vote. Mbabazi came third with 1.4% of the vote. Besigye rejected the result as the “fraud of the century” but failed to petition against the results in court. Besigye who has been under virtual house arrest says the siege frustrated his efforts to petition. And while the panels then comprised five and seven justices respectively, which was the full composition of the Supreme Court at the time, for the 2016 petition, there are nine justices.
Dr Ronald Kakungulu Mayambala, a human rights and law don says having new faces on the panel of judges should be taken as an opportunity for both sides.
“Election comes once in five years and it’s not easy for a judge to handle an election petition for more than once or twice. Having fresh minds for the petition both on the side of judges and Mbabazi’s lawyers presents an opportunity for each to be optimistic for a fair and just outcome,” he said.
Prominent human rights lawyer, Robert Kirunda, appears in agreement with Kanyeihamba’s on the uniqueness in Mbabazi’s petition.
Kirunda said this petition dwells more on electoral offences which, even if one offence is proved beyond reasonable doubt, can lead to the nullification of the election.
What about Mbabazi’s lawyers and their implication
Away from the new faces on the bench, are the equally new faces on the bar for both petioner and respondent.
A leading member of Mbabazi’s team is Severino Twinobusingye, a prominent lawyer of over 13 years of experience, who has numerous wins under his belt. In 2011, he filed a case in the Constitutional Court challenging a parliamentary resolution requiring then-Prime Minister Amama Mbabazi, Ministers Sam Kutesa and Hilary Onek to step aside over allegations of receiving bribes from foreign oil companies. He won and in 2013 was awarded Shs12.9 billion, the highest award ever by a Ugandan court and almost twice the entire Judiciary’s annual wage bill. Meanwhile his clients, whom Parliament has sought to block by attempting to force them to ‘step aside’, stayed in the House.
During the pre-hearing conference on March 7, Twinobusingye showed his knack for springing legal surprises when the Mbabazi team presented an amended petition with fresh grounds to challenge Museveni’s victory.
Dr Ronald Kakungulu Mayambala, a human rights activist and law don, described it as a move that could have been designed to ensure stronger grounds for a petition.
In the petition, the lawyers initiated 15 new grounds adding to the original submission in Presidential election petition No. 1 of 2016. They cite proof of voter bribery, use of public servants in political activities, interference with opposition activities and misuse of government resources.
In one of the new grounds, Mbabazi says that Museveni was involved in voter bribery when, while on his campaign tour in Busoga sub region, he donated 500 hectares of Bukaleba forest reserve land in Bukatuube sub county to over 30,000 families.
Mbabazi is also demanding a fresh recount of votes in 45 districts including Kampala, Wakiso, Jinja, Luweero, Apac, Moroto, Rukungiri, Butambala, Kanungu and Soroti among others many of which the opposition and Mbabazi are said to have a stronghold.
The Supreme Court has set aside March 14 to start hearing the petition. Kanyeihamba says the ghosts of previous presidential election petitions may haunt into the Supreme Court judges inquiring into the Amama Mbabazi petition if they get it wrong.