In the Supreme court yesterday, the nine justices rejected a request for a presidential vote recount by lawyers representing Amama Mbabazi in the petition challenging the results of the February 18 presidential election.
The request, which can still be entertained in the course of the main hearing, sought to compel the Electoral Commission to recount votes in 45 districts, before the petition is heard.
“The law doesn’t give vote recount as a preliminary relief...” said Bart Katureebe, the chief justice and head of the nine-panel judge.
Some of the districts where Mbabazi demanded a recount citing widespread electoral fraud include: Kampala, Wakiso, Jinja, Kiruhura, Sembabule, Bundibugyo, Bukomansimbi, Sheema, Arua, Amuria, Kasese, Gulu, Lamwo, Lira, Kisoro, Arua, Apac, Moroto, Mpigi, Ntungamo, Pallisa, Rukungiri, Nakasongola, Kabale, Kamwenge, Kyenjojo, Sironko, Kanungu, Kalungu, Isingiro, Rakai, Kaabong, Nakaseke, Amuru, Gomba, Kyankwanizi, Butambala, Rubirizi, Buhweju, Kween, Soroti, Luweero, Mubende and Serere.
The ruling was a psychological boost and a major relief for lawyers representing the Electoral Commission and President Museveni, who had vehemently opposed the request. For Mbabazi’s lawyers, the ruling peaked a bad day at office, considering that earlier they had come under sharp criticism from Katureebe over the way they had handled some of the aspects of the petition.
Katureebe was incensed that Mbabazi’s lawyers had “messed up” the case after they failed to file affidavits in support of their petition by close of business on Wednesday as had been agreed.
“What’s clear is that the conduct of counsel in this case especially the conduct of counsel for the petitioner [Mbabazi’s] raises concern to this court. Without affidavits we have nothing as of now,” Katureebe said.
The former prime minister is being presented by lawyers led by Mohmed Mbabazi. Others are Michael Akampurira, Medard Lubega Sseggona, Asuman Basalirwa and Severino Twinobusingye. Katureebe’s comments came after Museveni’s lawyers led by Didas Nkurunziza, protested that they had not been served with affidavits and annexures by the petitioner.
Akampurira tried to offer a defence, saying their work had been hampered by a break-in at two of their law firms but Katureebe was not convinced.
“Some of you want to divert this court from investigating this petition but you should be more serious than this when handling such serious petitions,” Katureebe said.
Eventually, Mbabazi’s legal team was ordered by court to serve their colleagues with the affidavits before the close of yesterday’s business [Thursday]. Earlier, the deputy attorney general Mwesigwa Rukutana had accused Mbabazi lawyers of telling court lies on Monday that some of the petitioner’s witnesses had been arrested by police.
During yesterday’s proceedings, Rukutana labeled Basalirwa’s claims as “unfounded and false”.
He said the Attorney General Fred Ruhindi had carried out investigations and discovered that none of the witnesses were being held at the Special Investigations Division [SID] in Kireka.
In response, Basalirwa, who raised the matter on Monday, told court that the witnesses had been released, having been transferred from Kireka to Nalufenya police station in Jinja. Basalirwa attributed the release of the witnesses to the intervention of Ruhindi.
“We have had an opportunity to interact with these witnesses and they have sworn affidavits and they have described the ordeal they have gone through, in the affidavits,” Basalirwa said.
In the end, six issues were agreed upon by all parties and will form the basis for the hearing of the petition.
They are: (1) whether there was non-compliance with the provisions of the Presidential Elections Act and Electoral Commission Act in the conduct of the 2016 presidential elections;(2) whether the said election was not conducted in compliance with the principles laid down in the provisions of Presidential Elections Act and Electoral Commission Act;
(3) if issue one and/or two above are answered in the affirmative, whether such non-compliance affected the results of the presidential election in a substantial manner; (4) whether the offence under the Presidential Elections Act was committed in connection with the election by the first respondent [President Museveni] personally or with his knowledge and consent or approval;(5) whether the third respondent [electoral commission] is properly joined as a party to this petition; (6) whether the petitioner is entitled to the reliefs sought.
We have been told that Mbabazi’s lawyers had sought for the inclusion of three more issues but court said these could be incorporated within the six key issues.
The three issues are: (1) whether the second respondent [electoral commission] relied on any result from the polling stations and district tally centre as a basis to declare the first respondent [President Museveni] as the winner of the 2016 presidential election; (2)whether the petitioner is entitled to the preliminary relief of vote recount in the areas specified in the petition; (3) whether there was a national voters register compiled, maintained and updated by the second respondent [electoral commission] for the 2016 presidential election.
In an interview with The Observer yesterday, Mohmed, the head of Mbabazi’s legal team, said that the refusal by court not to include some of their issues is not fatal to their case.
“We shall argue them in the [six] issues as decided by court. But it was also strategic to put court on notice that these are important and fundamental issues that will be argued,” Mbabazi said.
MORE PARTIES JOIN
Tomorrow (Saturday) the court will convene to hear two applications filed by members of the civil society and academia wherein they request to be invited as friends of court in the inquiry.
Makerere University law dons argue that their input in the matter is of importance since they have the requisite knowledge on constitutional law and human rights, which form the substance of the inquiry by he court.
They argue that their application is not to support or prejudice any of the parties but simply to give legal submissions for the benefit of court.
“In pursuance of this goal, the emphasis in this brief has been placed in reforms directed towards improving the independence of the electoral commission,” reads their legal brief.
They argue that there are twelve issues that the Supreme court has previously recommended to the attorney general but the same have not been complied with.
They include facilitation of Electoral Commission; two, Nature of evidence; three, Time for filing and determining a petition; four, Time for holding re-election; five, Timely enactment of election laws; six, Partiality of election officials, seven, Deletion of voters from register without due process; eight, Failure or refusal by returning officers to avail reports on time; nine, Contradictory and inadequate legal standards; ten, Level ground for candidates; eleven, Role of security forces; and twelve, Historical contest of inadequate electoral law.
On its part, the civil society organizations want to be invited because they observed elections and as such have information which is out of the reach of the parties and court. The applicants were members of the civil society coalition that was accredited as election observers in the 2o16 election under the framework of the Citizens’ Election Observers Network Uganda (CEON-U).
“They tracked and compiled several reports of pre-election, polling day and the post-election period and therefore possess valuable, credible and verifiable information about the elections that will enrich the court’s consideration of the presidential election petition,” Irene Ovonji-Odida, the leader of the group, said.
The organizations are Foundation for Human Rights Initiative, the Uganda AssociationofWomenLawyers (FIDA Uganda), Chapter Four Uganda, Human Rights Network Uganda, Center for Constitutional Governance, Kituo Cha Katiba, Legal Aid Services Providers Network Uganda, and Transparency International.