Besigye suffers setback in presidential poll petition
Mar 22, 2006
The Supreme court convenes to hear Col. Kizza Besigye’s presidential election petition against the February 23, re-election of president Yoweri Museveni. <br>Tension rises in the courtroom as seven judges enter and take their seats. The Chief Justice, Benjamin Odoki, is heading the coram of judg
The Supreme court convenes to hear Col. Kizza Besigye’s presidential election petition against the February 23, re-election of president Yoweri Museveni.
Tension rises in the courtroom as seven judges enter and take their seats. The Chief Justice, Benjamin Odoki, is heading the coram of judges. The other judges are Arthur Oder, Wilson Tsekooko, Alfred Karokora, Joseph Mulenga, George William Kanyeihamba and Bert Katureebe.
Senior counsel Wandera Ogalo is heading Besigye’s team of lawyers, while the Solicitor General, Lucian Tibaruha, is leading the team defending the Electoral Commission, the first defendant, while Dr. Joseph Byamugisha is heading the team defending Museveni, the second respondent. Supporters for the various parties fill the courtroom. Besigye is also present. Anne Mugisa, Alfred Wasike, Hillary Nsambu and Hillary Kiirya recorded the proceedings.
Tibaruha: My Lords, I am Lucian Tibaruha for the Attorney general assisted by Kampala Associated Advocates. My lords, the list of counsel for the first respondent was supplied during the last conference. In addition to that list, we have since included Mr. Faisal Mukasa or Faisal Mukasa and co. Advocates.
The first respondent is present. That is the Chairman of the Electoral commission, Eng. Dr. Badru Kiggundu, Commissioner Dr. Okello, Secretary Sam Rwakoojo and the head of the Election Management Department, Mr. Wamala. The list of counsel for the second respondent was supplied to the court on March 16, 2006. In that list, Mr Faisal Mukasa will be deleted.
The petitioner is represented by Hon. Wandera Ogalo as lead counsel and in the team, there are also counsel John Matovu, Yusuf Nsibambi, Caleb Alaka and Medad Lubega.
Tsekooko: Why don’t you say the others and then you give us a written list of their names.
Tibaruha: Much obliged
Wandera: My Lords, the petitioner is in the court.
Oder: Who is this submitting?
Wandera. My name is Wandera Ogalo. On the scheduling conference, we did comply with the order of court and filed affidavits by Sunday 19th. Also as ordered by court, we continued serving throughout the time while filing, but we were not able to serve all the affidavits by Sunday, but we attempted to serve by Monday, but the first and the second respondents declined to receive them.
Oder: Are you sure you served on Friday?
Wandera: Yes, my Lords
(EC and Museveni lawyers try to protest Ogalo’s submission)
Oder: (tells them) You will have your chance.
Wandera: We served some on Friday. Both respondents declined to be served on Monday.
Odoki: Did they give any reason?
Wandera: No, they did not give any reason. My lord, the court also ordered the second respondent to deliver to us a tally sheet and reports of all the returning officers throughout Uganda. The tally sheets were delivered to us on Sunday at 2:00pm.
Kanyeihamba: When were they supposed to have served them?
Wandera: There was no time limit. However, the reports of the returning officers have not been served up to now. My lords, also the affidavits in reply in respect of those we served have not been served to us.
Kanyeihamba: Those include the ones you served on Friday?
Wandera: Yes.
Odoki: Are there any?
Wandera: In the circumstances, I don’t know if….
Tibaruha: About the affidavits, after the last scheduled conference, counsel for the petitioner undertook to serve 70 affidavits to the first respondent and the second respondent. No single affidavit was served on that. On Friday, not a single affidavit was served.
Kanyeihamba: You are contradicting what he is saying? You mean he did not serve the affidavits…
Tibaruha: Not to the first respondent. Counsel for the first respondent wrote to court on Friday, saying up to that time they have not been served. The letter is dated March 18, 2006. It was Saturday. Later on that day, the first respondent was served with 140 affidavits. On Sunday, no affidavit was served. The last day for service was Sunday, but on Monday 20th, the first respondent was served with 67 affidavits.
Odoki: And you accepted?
Tibaruha: Yes. It is me personally who accepted them though it was out of time. Yesterday, counsel for the petitioner brought more affidavits to serve to me. They had been filed on Sunday 19th. I asked him why he did not serve me earlier when he filed on 19th. It was compiled in a book and he said it was one affidavit of Maj. Ruranga, but it looked bulky.
I decided to decline to receive those affidavits. With regard to….at the scheduling conference, the petitioner asked the respondents to get tally sheets and not reports.
Oder: He did.
Tibaruha: I am sorry it was not in my notes.
Katureebe: You did write to the… same not ready yet.
Tibaruha: By yesterday, we had managed to complete 140 affidavits which we tried… this was the deadline. We attempted to serve, counsel for the petitioner avoided service. They locked themselves in the chambers. We didn’t serve them so we have to come and swear an affidavit of service.
Byamugisha: The affidavits of service by Jotham Mugarura who went to serve Matovu and Matovu Advocates on Yusuf Lule Road. They went there and found the door open. They found there a cleaner who ushered them into the boardroom to state what had taken them there. After that, the cleaner said she told them to wait adding that they were in a meeting and that he would call them. (Byamugisha says the cleaner went and knocked at the door where he said the lawyers were and they did not respond. He says that after about 30 minutes, the lawyers who had gone to serve the affidavits decided to knock on the door themselves. He explains that Abdu Katuntu went to the door and said he could not receive them because he was a witness in the petition. He tells court that Katuntu physically pushed them out of the premises and they failed to serve the affidavits.)
(The court then adjourns the case for about 40 minutes to allow the lawyers to serve affidavits on each other. When the court reconvenes, Matovu, one of Besigye’s lawyers, makes an application for the court to refer the petition to the Constitutional Court where they hoped that the law requiring them to prove that the irregularities in the presidential election substantially affected the results, would be scrapped.
He says they want the Constitutional Court to declare that Section 59 (6) (a) contravenes article 104(1) of the Constitution.)
Matovu: The problem with section 59(1) is that if one of the candidates is seeking to nullify an election, he must under subsection (6) (a) of section 59, he has to do it on three grounds. The one we are complaining about is that one must show to the court’s satisfaction that non-compliance with the provision of the presidential Election Act (PEA) affected the results in a substantial manner….It is our submission that the petitioner shall contend that it is sufficient for him to prove that there was non-compliance with the provisions of the PEA… In view of this, we apply that the matter be referred to the Constitutional Court. Only proof of non-compliance should be sufficient to nullify the election.
(The judges ask Matovu why he did not petition the Constitutional Court before going to the Supreme Court.)
Matovu: We could not speculate that we would lose the election.
Kanyeihamba: The Constitution does not speculate that you will win or lose for you to petition or challenge an unconstitutional law. Why didn’t you do it earlier? (he asks Matovu to name the law that says the Supreme Court can’t handle the issue)
Kanyeihamba: Why are you anticipating problems?...Are you saying that in this particular case, the evidence you will give will not be substantial?
Matovu: (insists that it is the petitioner’s right to go to the Constitutional Court and have the interpretation.)
Kanyeihamba: What if the constitutional Court goes beyond the constitutional 30 days within which the petition is supposed to be decided?
Katureebe: You know that the constitutional appeal would have to be heard here?
Matovu: Yes.
Katureebe: And you know that we will take even more time?
Matovu: If you rule that you can hear the constitutional matter, I will be grateful.
Kabatsi: On the question of referral to be canvassed by my learned friend…the question of referral does not arise at this point. The issue itself originates from pleadings of the petition, which clearly means that even before pleadings of the petition were drafted, the petitioner was aware, according to him, that there was a problem that needed the Constitutional Court… that question did not arise out of the proceedings. I submit that no question has arisen… he merely says that there is need for interpretation… (he says this was a special case and only the Supreme Court is mandated to hear it)
(The judges consult among themselves after which Justice Odoki reads out their ruling)
Odoki: This is our short ruling. The application to refer to the Constitutional Court the question raised for interpretation is rejected. We will give our reasons later in our judgement. We direct that hearing of the petition proceeds. We adjourn to tomorrow.
Tension rises in the courtroom as seven judges enter and take their seats. The Chief Justice, Benjamin Odoki, is heading the coram of judges. The other judges are Arthur Oder, Wilson Tsekooko, Alfred Karokora, Joseph Mulenga, George William Kanyeihamba and Bert Katureebe.
Senior counsel Wandera Ogalo is heading Besigye’s team of lawyers, while the Solicitor General, Lucian Tibaruha, is leading the team defending the Electoral Commission, the first defendant, while Dr. Joseph Byamugisha is heading the team defending Museveni, the second respondent. Supporters for the various parties fill the courtroom. Besigye is also present. Anne Mugisa, Alfred Wasike, Hillary Nsambu and Hillary Kiirya recorded the proceedings.
Tibaruha: My Lords, I am Lucian Tibaruha for the Attorney general assisted by Kampala Associated Advocates. My lords, the list of counsel for the first respondent was supplied during the last conference. In addition to that list, we have since included Mr. Faisal Mukasa or Faisal Mukasa and co. Advocates.
The first respondent is present. That is the Chairman of the Electoral commission, Eng. Dr. Badru Kiggundu, Commissioner Dr. Okello, Secretary Sam Rwakoojo and the head of the Election Management Department, Mr. Wamala. The list of counsel for the second respondent was supplied to the court on March 16, 2006. In that list, Mr Faisal Mukasa will be deleted.
The petitioner is represented by Hon. Wandera Ogalo as lead counsel and in the team, there are also counsel John Matovu, Yusuf Nsibambi, Caleb Alaka and Medad Lubega.
Tsekooko: Why don’t you say the others and then you give us a written list of their names.
Tibaruha: Much obliged
Wandera: My Lords, the petitioner is in the court.
Oder: Who is this submitting?
Wandera. My name is Wandera Ogalo. On the scheduling conference, we did comply with the order of court and filed affidavits by Sunday 19th. Also as ordered by court, we continued serving throughout the time while filing, but we were not able to serve all the affidavits by Sunday, but we attempted to serve by Monday, but the first and the second respondents declined to receive them.
Oder: Are you sure you served on Friday?
Wandera: Yes, my Lords
(EC and Museveni lawyers try to protest Ogalo’s submission)
Oder: (tells them) You will have your chance.
Wandera: We served some on Friday. Both respondents declined to be served on Monday.
Odoki: Did they give any reason?
Wandera: No, they did not give any reason. My lord, the court also ordered the second respondent to deliver to us a tally sheet and reports of all the returning officers throughout Uganda. The tally sheets were delivered to us on Sunday at 2:00pm.
Kanyeihamba: When were they supposed to have served them?
Wandera: There was no time limit. However, the reports of the returning officers have not been served up to now. My lords, also the affidavits in reply in respect of those we served have not been served to us.
Kanyeihamba: Those include the ones you served on Friday?
Wandera: Yes.
Odoki: Are there any?
Wandera: In the circumstances, I don’t know if….
Tibaruha: About the affidavits, after the last scheduled conference, counsel for the petitioner undertook to serve 70 affidavits to the first respondent and the second respondent. No single affidavit was served on that. On Friday, not a single affidavit was served.
Kanyeihamba: You are contradicting what he is saying? You mean he did not serve the affidavits…
Tibaruha: Not to the first respondent. Counsel for the first respondent wrote to court on Friday, saying up to that time they have not been served. The letter is dated March 18, 2006. It was Saturday. Later on that day, the first respondent was served with 140 affidavits. On Sunday, no affidavit was served. The last day for service was Sunday, but on Monday 20th, the first respondent was served with 67 affidavits.
Odoki: And you accepted?
Tibaruha: Yes. It is me personally who accepted them though it was out of time. Yesterday, counsel for the petitioner brought more affidavits to serve to me. They had been filed on Sunday 19th. I asked him why he did not serve me earlier when he filed on 19th. It was compiled in a book and he said it was one affidavit of Maj. Ruranga, but it looked bulky.
I decided to decline to receive those affidavits. With regard to….at the scheduling conference, the petitioner asked the respondents to get tally sheets and not reports.
Oder: He did.
Tibaruha: I am sorry it was not in my notes.
Katureebe: You did write to the… same not ready yet.
Tibaruha: By yesterday, we had managed to complete 140 affidavits which we tried… this was the deadline. We attempted to serve, counsel for the petitioner avoided service. They locked themselves in the chambers. We didn’t serve them so we have to come and swear an affidavit of service.
Byamugisha: The affidavits of service by Jotham Mugarura who went to serve Matovu and Matovu Advocates on Yusuf Lule Road. They went there and found the door open. They found there a cleaner who ushered them into the boardroom to state what had taken them there. After that, the cleaner said she told them to wait adding that they were in a meeting and that he would call them. (Byamugisha says the cleaner went and knocked at the door where he said the lawyers were and they did not respond. He says that after about 30 minutes, the lawyers who had gone to serve the affidavits decided to knock on the door themselves. He explains that Abdu Katuntu went to the door and said he could not receive them because he was a witness in the petition. He tells court that Katuntu physically pushed them out of the premises and they failed to serve the affidavits.)
(The court then adjourns the case for about 40 minutes to allow the lawyers to serve affidavits on each other. When the court reconvenes, Matovu, one of Besigye’s lawyers, makes an application for the court to refer the petition to the Constitutional Court where they hoped that the law requiring them to prove that the irregularities in the presidential election substantially affected the results, would be scrapped.
He says they want the Constitutional Court to declare that Section 59 (6) (a) contravenes article 104(1) of the Constitution.)
Matovu: The problem with section 59(1) is that if one of the candidates is seeking to nullify an election, he must under subsection (6) (a) of section 59, he has to do it on three grounds. The one we are complaining about is that one must show to the court’s satisfaction that non-compliance with the provision of the presidential Election Act (PEA) affected the results in a substantial manner….It is our submission that the petitioner shall contend that it is sufficient for him to prove that there was non-compliance with the provisions of the PEA… In view of this, we apply that the matter be referred to the Constitutional Court. Only proof of non-compliance should be sufficient to nullify the election.
(The judges ask Matovu why he did not petition the Constitutional Court before going to the Supreme Court.)
Matovu: We could not speculate that we would lose the election.
Kanyeihamba: The Constitution does not speculate that you will win or lose for you to petition or challenge an unconstitutional law. Why didn’t you do it earlier? (he asks Matovu to name the law that says the Supreme Court can’t handle the issue)
Kanyeihamba: Why are you anticipating problems?...Are you saying that in this particular case, the evidence you will give will not be substantial?
Matovu: (insists that it is the petitioner’s right to go to the Constitutional Court and have the interpretation.)
Kanyeihamba: What if the constitutional Court goes beyond the constitutional 30 days within which the petition is supposed to be decided?
Katureebe: You know that the constitutional appeal would have to be heard here?
Matovu: Yes.
Katureebe: And you know that we will take even more time?
Matovu: If you rule that you can hear the constitutional matter, I will be grateful.
Kabatsi: On the question of referral to be canvassed by my learned friend…the question of referral does not arise at this point. The issue itself originates from pleadings of the petition, which clearly means that even before pleadings of the petition were drafted, the petitioner was aware, according to him, that there was a problem that needed the Constitutional Court… that question did not arise out of the proceedings. I submit that no question has arisen… he merely says that there is need for interpretation… (he says this was a special case and only the Supreme Court is mandated to hear it)
(The judges consult among themselves after which Justice Odoki reads out their ruling)
Odoki: This is our short ruling. The application to refer to the Constitutional Court the question raised for interpretation is rejected. We will give our reasons later in our judgement. We direct that hearing of the petition proceeds. We adjourn to tomorrow.