COURT, KAMPALA | UGANDA: The Constitutional Court has dismissed with costs a petition that was filed against Nansana Municipality Member of Parliament Robert Kasule Ssebunya.
The Judgement arises from a petition filed by eight political agents and supporters of the then-Democratic Party Candidate Wakayima Musoke Nsereko led by National Action for Awakening Uganda (SISIMUKA Uganda) which is owned by Kampala businessman Frank Gashumba.
Others are; Margaret Namiro, Ritah Nalunkuma, Annet Nakiyingu, Fred Mugerwa Lwanga, John Nakabaale, Kuraish Ntale Kalema and Isaac Ssali.
In 2016, the National Resistance Movement Candidate Robert Kasule Ssebunya filed a petition in the High Court against the Electoral Commission challenging the election of Wakayima on grounds that he was illegally nominated as a candidate and yet he was reportedly not a registered voter in Nansana and that he lacked requisite academic qualifications.
High Court Judge Vincent Okwanga found that Wakayima was indeed not a registered voter and lacked academic qualifications. Justice Okwanga accordingly declared that Ssebunya who had scored the second highest votes was a validly elected MP for Nansana Municipality.
Evidence before the court shows that Wakayima obtained 25,053 votes, Ssebunya 23, 415 votes while other candidates who were in the race such as Rajab Kaaya Semalalu obtained 17, 052 votes, Samuel Kibanga obtained 6, 183 votes. Others were Samuel Ssebowa Kagulire who obtained 3,062 votes and Adams Frank Mubiru polled 781 votes.
Following Justice Okwanga’s decision, Wakayima appealed to the Court of Appeal, but it was dismissed.
However, supporters of Wakayima later in 2018 filed a Constitutional Petition in which among others argued that the Judgement of the Court of Appeal was unconstitutional as it usurps the mandate of the people. They referred to article one of the Constitution and other enabling laws that give people the right to decide on who is supposed to lead them.
They asked the court to nullify section 63 of the Parliamentary Elections Act which gives the High Court powers to take over the declaration, gazetting and appointing of representatives of parliament as an arm of government after a petition has been decided.
But Ssebunya’s lawyers led by Ssekaana Associates Advocates and Consultants argued that the case lacked merit as the law provides that all election petitions end at the Court of Appeal. They added that the petitioners had petitioned the Constitutional Court by way of appeal disguising it as a petition.
However, in their Judgement, the panel of five Constitutional Court Justices led by Deputy Chief Justice Richard Buteera agreed with the respondents and dismissed the case on grounds that it was a disguised appeal and that there was nothing constitutional for them to interpret. Other Justices are; Kenneth Kakuru, Christopher Izama Madrama, Catherine Bamugemereire and Irene Esther Mulyagonja.
They said that the Court of Appeal delivered a Judgement and that the act of delivering a judgement cannot be inconsistent with the Constitution. The Justices added that a judgement can always be the subject matter of an appeal, where a right of appeal is available and that for it to be challenged on grounds that its contents were erroneous in law, one can always appeal against it.
“In the circumstances of this petition, the only option available to the petitioner’s whatever the merits were to apply to the court of appeal to set aside the judgement on the ground that it was issued contrary to the provisions of the Statute or the Constitution” reads the judgement in part.
In the Judgement read by the Constitutional Court Registrar Susan Kanyange on behalf of the Justices, the petitioners have been directed to pay costs to the respondents on grounds that the matter lacked merit and was causing annoyance.
Ssebunya’s lawyer Steven Kalali who was representing said he is to talk to his client to draft a bill of costs.
Gashumba one of the applicants said that they will consult their lawyers for the next course of action.