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Tuesday,October 20,2020 08:04 AM

Dismissed

By Vision Reporter

Added 17th February 2006 03:00 AM

FORUM for Democratic Change (FDC) candidate Col. Kizza Besigye yesterday jumped another hurdle on his presidential bid, after the Constitutional court dismissed a petition seeking to nullify his nomination.

FORUM for Democratic Change (FDC) candidate Col. Kizza Besigye yesterday jumped another hurdle on his presidential bid, after the Constitutional court dismissed a petition seeking to nullify his nomination.

By Milton Olupot, Hillary Nsambu and Hillary Kiirya

FORUM for Democratic Change (FDC) candidate Col. Kizza Besigye yesterday jumped another hurdle on his presidential bid, after the Constitutional court dismissed a petition seeking to nullify his nomination.

The five-judge coram unanimously said there was no merit in the petition filed by two secondary school teachers, Asol Kabagambe and Faraj Abdullah, and the Attorney General.

The judges dismissed all the three issues that were framed and ordered the petitioners to pay the respondents, the Electoral Commission and Besigye costs.
The judges said they delivered a summary of the full judgement that will come later.

Deputy Chief Justice Laetitia Mukasa-Kikonyogo, who read the judgement, said, “The main petition should be disposed of before the 23rd February, 2006 which is the presidential election date.
“We did not give our reason for the ruling but we promise to give it together with the main judgement.

We are unable to give our full judgement with reasons for the same before the issues, which were framed for determination. The reasons will be given together with the reasons why we overruled the two preliminary objections of the respondents.”
The other judges were Alice Mpagi-Bahigeine, Amos Twinomujuni, Christine Kitumba and Constance Byamugisha.

The issues of contention were whether the nomination of Besigye, despite the Attorney General’s advice to the contrary, contravened Article 119 of the Constitution; whether the nomination of Besigye in absentia was inconsistent and in contravention of Article 103 (2) (a) of the Constitution and whether the petitioners were entitled to the costs of the petition.

The court ruled that the EC, which is established by the Constitution, is an independent institution and it “shall, in the performance of its functions, not be subject to the direction or control of any person or authority.

“Though the AG is the principal legal advisor of Government, the Constitution does not provide anywhere that such advice amounts to a directive that must be obeyed. In case of the EC, it can seek, receive and accept or reject the advice of the AG. It is not bound by it.

On the nomination in absentia, the judges ruled, “The Constitution confers on the EC a monopoly to ensure that regular, free and fair elections are held in Uganda. It is enjoined to organise, conduct and supervise elections and referenda in accordance with the Constitution.

Needless to say, the carrying out of nomination exercise for various candidates falls squarely in the functions of the commission. We do not find anything in these provisions that requires that a presidential candidate must be physically present before he is nominated. We are fortified by the provision of Section 11 of the Presidential Elections Act 2005.

“Physical presence of a candidate is not one of the conditions for valid nomination. All that he is required to do is to submit to the EC, on or before the day appointed as nomination day, a document signed by that person nominating him as a candidate. This can be done by him/her or on their behalf provided the document has been signed by the candidate.”

The petitioners had said the EC made a mistake not to obey the advice of the Attorney General, Khiddu Makubuya, who said Besigye should not be nominated as he was not physically present at the nomination centre.

Besigye was then on remand at Luzira Prison over rape, terrorism and treason charges. The cases are still pending in the High Court.

The petitioners wanted the court to annul Besigye’s nomination because the EC contravened the Constitution when it nominated him.

They wanted the EC not to include Besigye’s name on the ballot paper. Besigye was the first presidential candidate to be nominated on December 14. Before that, the EC sought advice from Makubuya.

Makubuya’s opinion that Besigye should be present in person at the nomination and that as a suspect he was not as innocent as other candidates drew widespread and strong condemnation.

The EC disregarded the advice and nominated Besigye in absentia, prompting the teachers to file the petition.

Musa Ssekaana and Hannan Abdul Kaggwa represented the EC while David Mpanga, John Matovu and Kiyemba Mutale represented Besigye.

The two teachers, who were not present in court yesterday, were represented by Lawrence Tumwesigye and the AG was represented by the Solicitor General Lucian Tibaruha and Acting Director of Civil Litigation Joseph Matsiko.

Dismissed

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