Kawempe North: Nalukoola lists 14 grounds of appeal

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Kawempe North MP Elias Luyimbazi Nalukoola has filed a memorandum of appeal listing fourteen grounds on which he wants the appellate court to set aside the High Court verdict.

In a memorandum of appeal filed at the Court of Appeal’s civil registry through nine law firms, including his firm of Nalukoola Advocates and Solicitors, Nalukoola wants the Court of Appeal to either reinstate him as the validly elected Kawempe North MP or order a retrial of the case before another judge.

Citing the Supreme Court decision in the 2001 and 2006 presidential election petitions between Dr Kizza Besigye and President Yoweri Museveni, Nalukoola argues that the verdict of High Court judge Bernard Namanya is per incuriam, as it was made without due regard to relevant laws and binding precedent of the superior court.

The expelled lawmaker argues that this not only occasioned a miscarriage of justice but also offends Article 134 of the Constitution relating to the hierarchy of courts in the country.

In the two Besigye cases, the Supreme Court applied the substantiality test to dismiss the petition, which Nalukoola argues was ignored by Justice Namanya, yet he was bound to follow it, as the hierarchy of courts dictates that a lower court is bound by the decisions of the superior court.

The substantiality test/doctrine is the statutory judicial test for setting aside an election. It provides that the election of a Member of Parliament shall be set aside where failure to comply with the electoral laws affected the results in a substantial manner.

Nalukoola argues that Justice Namanya erred in law and fact when he found that 16,640 registered voters in the affected 14 polling stations out of 197 were disenfranchised, contrary to the evidence of voter turnout on record.

He further argues that Justice Namanya erred in law and fact when he held that the non-compliance affected the results of the election in a substantial manner, contrary to the evidence on record, thereby reaching a wrong conclusion and decision.

Nalukoola contends that Justice Namanya engaged in conjecture and speculation in reaching the decision and thus based his conclusions on erroneous assumptions not supported by the evidence on record.

He also argues that Justice Namanya erred in law and fact when he shifted the burden of proof from Faridah Nambi, the petitioner, to him, finding that there were illegal practices which he had committed, thereby reaching a wrong conclusion and decision.

The expelled lawmaker further argues that Justice Namanya failed to properly interpret and apply the law to the evidence on record, thereby reaching a wrong decision.

Nalukoola also faults Justice Namanya for denying him the opportunity to cross-examine the nineteen witnesses adduced by Nambi, thereby occasioning a miscarriage of justice.

He also accuses Justice Namanya of relying on hearsay evidence in reaching his decision, thereby causing a miscarriage of justice.

In regard to campaigning on election day, Nalukoola argues that Justice Namanya erred in law and fact when he found that he campaigned at Mbogo Primary School playground and Kazo-Angola, as no credible evidence was adduced.

After filing the memorandum of appeal, Nalukoola must now serve it to Nambi, who is expected to file a reply before the appeal is set down for hearing and determination.

Given that it is less than seven months to the 2026 general elections, if the Court of Appeal, which has the final say on parliamentary election petitions, upholds the High Court verdict, the seat will remain vacant.

Background

Following the death of Muhammad Ssegirinya in January this year, the Electoral Commission organised a by-election as required by law to replace him.

The by-election, which was characterised by violence, attracted ten candidates. Nalukoola was declared the winner with 17,939 votes, while Nambi, the first runner-up, garnered 9,058 votes.

Dissatisfied with the results, Nambi filed an election petition seeking nullification of Nalukoola’s victory on the grounds of disenfranchisement of voters and campaigning on election day, in addition to voter bribery.

In a judgment delivered on May 26, Justice Namanya ejected Nalukoola from Parliament, saying the by-election was marred by irregularities that affected the results in a substantial manner. He also found that Nalukoola campaigned on polling day.

Dissatisfied with the verdict, Nalukoola lodged a notice of appeal.