On the issue of Kyagulanyi's witnesses being arrested by the State, the lady Justice dismissed the arguments by the Respondents saying that he should have brought evidence of the list on who was arrested and taken where and by who.
Ester Kisakye of the Supreme Court has disagreed with eight Justices in
their decision on two applications arising from Presidential Election Petition
by former Presidential Candidate Robert Kyagulanyi Ssentamu.
Kyagulanyi petitioned the Supreme Court to challenge President Museveni’s
victory in the presidential elections.
the start of the petition hearing, Kyagulanyi first filed an application
seeking to be given more time to amend his petition and introduce new grounds. He filed another seeking to file additional affidavits
and another seeking to withdraw the whole petition.
Kyagulanyi argued that there were unusual circumstances including the fact
that his lawyers were operating mobile law firms due to insecurity and
fears that state operatives may steal the evidence. He
also argued that state operatives seized their political party offices which made it
difficult for him to file relevant affidavits and evidence in support of his
petition on time.
On Thursday, the two applications were dismissed by the eight Justices led by Chief Justice Alfonse Owiny-Dollo on grounds that a
presidential election petition cannot be amended due to its strict timelines
within which it should be determined.
in her dissenting judgement read to Kyagulanyi's lawyers, Justice Kisakye said that the
reasons advanced by Kyagulanyi were more than unusual circumstances and
therefore his applications should have all been allowed.
noted that it was not right for the Attorney General to argue the way he did on
the strict timelines because the issue of amending petitions has happened
before in the Presidential Election Petition of the Amama Mbabazi and therefore
it cannot be unlawful.
//Cue in: “The respondents disputed…
out: ..up in prison”.//
She added that although the extension to file additional evidence was going to
have an impact on the roadmap of court, the respondents who were the
majority opted to ignore the fact that when those provisions were enacted and
the constitution amended;
But to Kisakye, whereas the law says that the matter should be determined
within 45 days from the date of filing, this requirement didn't impose on the
Supreme Court the duty to ignore the unconstitutional and unlawful acts as
declared by the High Court to the detriment of the Kyagulanyi.
"The restrictions on the movements of the applicant as pleaded in his
affidavit and as confirmed by High Court more than constituted the special
circumstances which were envisaged under rule 17 of the Presidential Election
Rules", she said.
added the rest of the Justices should have allowed the applicant to file additional
evidence which was ready on the morning of February 15 2021 when the deadline
was on February 14th 2021.
Court heard that the fact that the evidence was ready by February 14 and the
country is under
coupled with the siege of NUP offices, the shutdown of the internet for five
days and Kyagulanyi’s house arrest, it was impossible that the time was
sufficient for him to do all that was required.
She added that there is a principle that the mistake made by the lawyers should
not be blamed on his client like the majority of the Justices did yet
Kyagulanyi had already lost ten of the fifteen days.
"The applicant's Counsel was not able to deliver all the evidence in the
time prescribed for a variety of reasons some of which were submitted on by
Counsel Sseggona. By the majority attributing the mistakes of counsel to the
client the court was reversing its decisions without giving reasons”, said
On the issue of Kyagulanyi's witnesses being arrested by the State, Justice
the arguments by the respondents saying that he should have
brought evidence of the list on who was arrested and taken where and by who.
noted that the argument lacked merit because Kyagulanyi knew who exactly was
his witnesses and where they were and that the respondents were talking
about matters that they didn't know about.
"The first respondent is the incumbent president He has been in power for
35 years with an established party structure which is in place and which has
not suffered any disruptions or closures as were suffered by the applicant’s
party at the expense of the State organs,” said Kisakye "
According to her, the Electoral Commission and Attorney General also have
nationwide offices throughout the country and it didn't make any sense when
they said that Kyagulanyi's witnesses should have been in Kampala
for them to file their responses to additional evidence he wanted to file.
Cue in: ‘The first respondent….
Cue out: … as they did”. //
the application for the withdrawal was consented to, Kisakye said she was not
going to say much about it. She noted that what Kyagulanyi went through was
unconstitutional and in the interest of justice and fairness Museveni,
Electoral Commission and Attorney General shouldn’t have asked for costs.