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BIG STORY: Why Supreme Court rejected amendments in Bobi WIne’s Election Petition

BOBI WINE ELECTION PETITION: The Supreme Court on Wednesday dismissed an application filed by former presidential candidate Robert Kyagulanyi Sentamu aka Bobi Wine in which he had sought to amend his original petition challenging the re-election of President Yoweri Museveni.

Nine justices headed by Chief Justice Alfonse Owiny-Dollo on Tuesday unanimously quashed Kyagulanyi’s application on grounds that his intended amendment introduces new grounds yet the time for filing a presidential election petition had since expired.

Under the law, an aggrieved presidential candidate has 15 days within which to petition court detailing grounds of the petition.

Other justices are Stella Arach Amoko, Mike Chibita, Paul Mugamba, Ezekiel Muhanguzi, Percy Night Tuhaise, Rubby Opio Aweri, Faith Mwondha and Dr Esther Kisaakye.

“We have considered submissions of both parties in this matter and court finds that the matters raised in the proposed amendment and the alleged committed electoral offences, are already pleaded for in the original petition filed on February 1. This application is, therefore, disallowed,” Justice Amoko, reading the ruling on behalf of the panel, said.

The justices also noted that the issue of the qualification of the first respondent (President Yoweri Museveni) is a matter, which came outside the time allocated for filing of the petition.

The justices, however, said the costs for the application will abide the outcome of the main petition.

They also said they will give the detailed ruling with more grounds for the dismissal of the application in the final judgment.

In his substantive petition, Kyagulanyi wants the January 14 presidential elections annulled, arguing that it was not held in accordance with the Constitution and the law.

He further wants the court to declare that President Museveni was not validly elected as the president and his election be consequently set aside and a fresh election be conducted in accordance with the law.

The NUP party president also wants court to direct the AG to cause amendment to the relevant electoral laws in compliance with the recommendations of its decisions in Kizza Besigye verses Yoweri Museveni (2001), Besigye v Museveni (2006) and Amama Mbabazi v Museveni (2016) to facilitate ‘free and fair’ elections.

Kyagulanyi wants a permanent injunction issued restraining resident district commissioners and UPDF officers from engaging in partisan politics and election matters.

Why Kyagulanyi wanted the petition to be amended?

In the application, Kyagulanyi’s lead counsel, Medard Sseggona, wanted the Supreme Court to permit them to amend the petition to provide more grounds for the petition, which he said would enable the court reach a fair judgment.

Sseggona said his client was denied an opportunity to gather evidence after he was incarcerated for 10 days, adding that his client filed the petition within five days to the deadline.

The time-line within which to file a presidential election petition commenced on January 16. The deadline was January 31.

Sseggona said the amendment to the petition was necessary because it would allow the court to arrive at a fair and just decision.

He added that the respondents — President Museveni, Electoral Commission and Attorney General — will not be prejudiced if the amendment was allowed.

“There is no prejudice occasioned, the filing of the petition is still ongoing and we shall expedite the filing. How then do you conduct an inquiry if some matters are left out?” Sseggona asked.

Kyagulanyi wanted to amend his petition to include new issues, such as bribery and that Museveni was not qualified to contest.

“The respondent will not be prejudiced at all and it is in the interest of justice that the applicant is granted leave to amend the original petition because it is the only way the court can make an inquiry into the entire electoral process,” Sseggona said. Asked by Owiny-Dollo at what stage they established the new evidence, Sseggona said: “It was after filing the petition.”

Sseggona also wanted Oscar Kihika’s affidavit sworn on behalf of President Museveni opposing Kyagulanyi’s application struck out, saying it is against order 1 rule 12 of the civil procedure Act.

In reply, however, Counsel Ebert Byenkya told court that the rule cited by Sseggona was in regard to physical appearance of the first respondent (President Museveni), but not swearing an affidavit on his behalf.

The President’s legal team arguments

President Museveni’s lawyers opposed Kyagulanyi’s bid to amend the petition, saying it would prejudice their client.

Led by Byenkya, the President’s legal team asked the Supreme Court to dismiss the application on premise that the law governing election petition does not allow such an amendment.

Byenkya, who was being assisted by Kiryowa Kiwanuka, Edwin Karugire, and Usaama Sebuufu from K&K Advocates, told court that an election petition has a strict timelime within which to be heard and concluded.

Byenkya said the amendment sought by Kyagulanyi was filed out of the stipulated 15 days as required by Article 104 of the Constitution.

“It is our submission that the petitioner has no right to amend after the 15 days. We are no longer at 15 days. Election petitions are not ordinary petitions, they are extraordinary matter that have a time frame within which they can be conducted and concluded,” Byenkya said.

He disputed the submission by Sseggona that his client, Kyagulanyi, was under incarceration and he filed the petition in a hurry.

Sseggona had earlier submitted that Kyagulanyi was under detention for 10 days and he was not in position to file all the necessary evidence.

Byenkya told court that the rule under which the Supreme Court can hear an election petition does not provide grounds to extend time within which to file new evidence.

He noted that some of the issues Kyagulanyi wants to include in his petition, such as voter bribery and the claim that Museveni is not qualified to be the president, were new matters, which he asked court to reject.

Byenkya said Kyagulanyi has turned the petition into a ‘fishing’ expedition, hoping that he can find some new evidence to support his petition.

“It is not a general inquiry; it is an inquiry into the petition itself. This court cannot be groping in the dark because the petition is about going on a ‘fishing’ expedition, hoping to find some evidence to support the petition. We thought we knew what the petition was about, but the petitioner is now changing,” Byenkya said.

Electoral Commission’s arguments

Electoral Commission (EC) lead counsel Joseph Matsiko argued that the law does not allow the petitioner in a presidential election to introduce new issues outside the time permissible for filing of the presidential petition.

Citing Article 104 of the Constitution, Matsiko implored court to take into consideration the time-line and urgency as provided by the Constitution, which is the Supreme law of Uganda.

Matsiko further argued that Kyagulanyi’s intended amendment does not have sufficient particulars and ought to be dismissed by court.

“I pray that this application is dismissed with costs,” Matsiko said.

He asked court not to allow the new amendment, saying they raise new cause of action, in addition to being filed past the required 15 days.

“My Lord Chief Justice, Justices of the Supreme Court, these amendment raise fresh grounds of the petition and also new cause of action and it was introduced after 15 days,” Matsiko said.

Attorney General’s arguments

Attorney General (AG) William Byaruhanga also opposed Kyagulanyi’s application, arguing that it would prejudice them since they had already filed their respective answers to the petition.

Byaruhanga, who was being assisted by two commissioners for civil litigation from his office, George Kallemera and Martin Mwambutsya, said his office took the necessary steps to respond to Kyagulanyi’s petition without asking for more time to amend.

“We believe the petitioner’s proposed amendment is meant to defeat our answer to the petition.

We pray that this court finds no sufficient ground for grant of the same because it may cause a constitutional crisis as it may defeat the time frame provided for under Article 104 of the Constitution,” Byaruhanga said.

The AG further argued that it is not permissible to amend an election petition after the expiry date within which a petition is supposed to be filed.

“My Lord Chief Justice, justices of the supreme, we submit that the amendment being sought cannot be brought after expiry of the time specified under the 1995 Constitution, the Presidential Election Act number 16 of 2005 as amended and the rule thereunder.”

“The laws as cited make express provisions for the time frames within which to file presidential and the answer thereto.

“It is our opinion that in the event that the legislators intended to provide for an amendment after expiry of set time-line, they would have done so,” Byaruhanga argued.

He added that under the Presidential Election Act as amended, a petitioner must operate within 15 days as provided by the law.

“Suffice to note that the rules of the Presidential Election (Election petition) as amended under which we are currently operating, provide the applicant with 15 days to file his petition, a period which was extended from 10 days to benefit the petitioners who challenge the presidential election.

“The respondent (AG) on the other hand, is given three days to respond to all issues raised in the petition, which has been done,” Byaruhanga said.

Byaruhanga termed Kyagulanyi’s application as absurd after having been given the ample time within which to file.

“In the third respondent’s (Attorney General) view, it is preposterous for the petitioner to now come to court seeking your indulgence to amend the petition when it had more time than the respondent who has since adhered to the strict time-line of filing the respondent’s answer within three days from service,” Byaruhanga said.

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