Mbale City Petition: Zoom Fails Cross Examination of Ambassador Galiwango

Justice Andrew Bashaija has declined to expunge the affidavit of Dr. Hassan Waswa Galiwango in Mbale City Woman parliamentary election petition hearing. Dr. Galiwango swore an affidavit in support of his wife and Mbale City Woman Member of parliament, Connie Nakayenze Galiwango who is defending her victory and his rival, Lydia Wanyoto Mutende.  

Wanyoto ran to Mbale High court accusing Nakayenze of electoral malpractices including among others intimidating presiding officers and tampering with the result declaration forms. On Tuesday, several people including Charles Robero, the Mbale City Returning Officer, Frida Katengeke and Nakayenze appeared in the court presided over by Justice Andrew Bashaija for cross-examination.   

Nakayenze’s lawyer, Yusuf Mutembuli told the court that Dr. Galiwango, who is Uganda’s ambassador to Kenya had failed to make it to court. However, Justice Bashaija ordered that the witness appears in court via zoom. He adjourned court for 10 minutes to allow Nakayenze’s team to prepare Dr. Galiwango to appear via zoom for cross-examination. 

When the court resume, Dr. Galiwango appeared in the court via zoom but his cross examination didn’t last for 10 minutes because of poor network. This prompted Wanyoto’s lawyers led by Swabur Marzuk to ask the court to expunge his affidavits and the partial evidence he had given in the ten minutes from the court record.  

Marzuk argued that the witness was given enough time to prepare for the cross examination but he decided to stay away. His colleague Peter Musoke told that court that the problem with cross-examinations on zoom is that the witnesses are open to consultations, saying that there are limitations with such technologies. 

“My lord we object to accept the affidavits of the witness as evidence since the list of witnesses was provided to this court and they were given enough time to prepare, summons were given to them including the ambassador,” he argued. They also claimed that the witness received a cheat in the middle of the proceedings.    

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However, Nakayenze’s lawyer, Yusuf Mutembuli asked the court to retain the affidavits and the partial evidence that was given by Dr. Galiwango, adding that the law allows the court to proceed with or without the evidence from the cross-examinations. He said that the witness had volunteered to appear in court through technological means, which by law are allowed but was only disappointed by the technology.  

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In his ruling, Justice Bashaija declined to expunge Galiwango’s affidavits and partial testimony from the court records, saying that the witness appeared in court but was let down by the technology. “Court will not expunge the evidence of this witness regardless of the reasons. The witness never failed or refused to appear in court, if anything, he appeared but he was let down by circumstances beyond possible,” he ruled.  

 

He directed the parties to file written submissions. Justice Bashaija directed the petitioner’s lawyers to file their submissions not exceeding 15 pages by September 14th, 2021. The respondents are expected to respond by September 20th. 

Both parties will file rejoinders by 23rd, 2021. He set September 30, 2021 as the date for delivering his judgement on the petition.