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Court Dismisses Petition Against Katikamu South MP, Hassan Kirumira

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In her ruling, Justice Apiny found that the petitioner did not serve EC as ordered and that in Kamba’s affidavit of service, he did not indicate whether he later served any of the Commission lawyers or sought other means to implement the service.
Hassan Kirumira (right) with Katikamu North MP Denes Sekabira

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Justice Margaret Apiny has dismissed a petition by Patricia Magara challenging the victory of Hassan Kirumira as the Katikamu South Constituency Member of Parliament. Magara, who contested on the National Resistance Movement-NRM ticket, sued the Electoral Commission and Kirumira who ran on the National Unity Platform-NUP party ticket citing electoral irregularities including the commission making errors in data entry, which saw them introduce a new person on the declaration of results.

However, Justice Margaret Apiny dismissed the petition on Tuesday on grounds that the applicant did not accompany it with affidavits as provided for under the rules governing Elections Petitions. This was after Justice Apiny expunged Maraga's affidavits from the court record for failure to serve the Electoral Commission and making changes to the affidavits contrary to the court orders.  

On Monday last week, Justice Apiny directed Magara to have her affidavits and those of her witnesses recommissioned before a licensed commissioner of oaths after the court learned that earlier affidavits were commissioned by an unlicensed commissioner.

She directed the petitioner not to change the content of the affidavits and that recommissioned affidavits be filed before the court and served to Kirumira and Electoral Commission by close of business on September 7, 2021.

The matter was up for scheduling on September 9, 2021. However, the lawyers of Kirumira and EC objected to the recommissioned affidavits. Kirumira’s lawyers led by Ronald Ruhinda told court that the petitioner had served them the recommissioned affidavits at 4 pm on September 8.

EC lawyer Twaha Kabuye told the court that the petitioner had amended some of the affidavits including that of Mugumba Lubowa, which had been signed and thumb printed yet in the original affidavit, the witness only used a thumbprint.

  The counsel told the court that a different person having realized that the original affidavit had a thumbprint and not a signature could have added the thumbprint in the recommissioned affidavit. Other affidavits included that of Sulaiman Sande and Hussein Iga, which were not part of the original affidavits while the affidavits of Willy Sebulanyi and Harriet Nalunkuma were not recommissioned.     Kabuye argued that this amounted to amending the content of the affidavits contrary to the court orders. On Saturday, the petitioner’s lawyer Julius Turinawe told the court how difficult it was to gather witnesses and have their affidavits recommissioned on time because they live in different areas in Luweero.

  He said that they were only able to complete the recommissioning process after 4 pm on September 7, 2021 and filed the affidavits before court but failed to serve the respondent. He also said that when they went to serve Kirumira’s lawyers on September 8, Counsel Ronald Ruhinda kept in a meeting with clients and when he was ready to be served, he took more time to read the affidavits.

  Court heard that Counsel Kasim Kamba who had gone to serve Ruhinda waited for 30 minutes because he was still in the court. Turinawe also told the court that Kamba went to EC offices and asked to serve one of the commission lawyers, Eric Sabiiti but he declined to receive the affidavits, saying he was not the one handling the matter.  

Regarding Iga’s affidavit, Turinawe said that the affidavit had been filed before court on April 28th, 2021. As for Sulaiman Sande’s affidavit, Turinawe admitted that it was a new affidavit and that they did not need leave of court to file it since the case had not been scheduled yet. Regarding the two affidavits that were not recommissioned, Turinawe said that the petitioner had called and even went to the homes of the two witnesses but to no avail.

To counter Turinawe’s submission,  Kirumira’s lawyer, Tonny Okwenye said that had it been a question of time, then the petitioner should have served them with the recommissioned affidavits in the morning of Wednesday, September 8th having failed to do so the previous day as ordered by the court. He also argued that the petitioner should have asked the court to extend time.

As regards the two affidavits that were never recommissioned, Okwenye told the court that the petitioner should have sought leave of court to remove them because whatever is filed before the court becomes part of the court, record which cannot be eliminated without court permission.     Regarding the new affidavit, Okwenye disputed the argument that the matter had not been set for scheduling. He said the process of scheduling had started and parties were ordered to file their joint scheduling memorandum by September 8.

He asked court to dismiss the affidavits with cost. In her ruling, Justice Apiny found that the petitioner did not serve EC as ordered and that in Kamba’s affidavit of service, he did not indicate whether he later served any of the Commission lawyers or sought other means to implement the service.

She also found that the petitioner filed a new affidavit and altered some of the affidavits including that of the petitioner contrary to specific orders by the court that the content of the affidavits not be changed. She therefore expunged all the affidavits from the court record and dismissed the petition too since it could not stand without affidavits.     He directed the petitioner to pay costs to the Electoral Commission and Kirumira. As Magara flee from the media, Kirumira celebrated his victory, saying justice has been served.  

//Cue in: “Today I have…

Cue out: …National Unity Platform”//  

Luganda  

//Cue in: “Olunaku lwaleero ne…       Cue out: …Katikamu South Constituency”//  

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