After failing to trace for the file that contained her ruling in the Kyagulanyi electoral petition, Justice Esther Kisakye of the Supreme Court, retrieved her draft copy in a bid to live up to her word of delivering the ruling within the mandatory 45 days.
Kisakye disagreed with her eight colleagues on the Coram in their decision on two applications arising from the presidential election petition by former presidential candidate, Robert Kyagulanyi Ssentamu.
Kyagulanyi petitioned the Supreme Court challenging President Museveni’s victory in the January 14, 2021, presidential elections but later withdrew the petition after accusing the court of being biased and show of lack of independence.
This was after the court rejected his application to amend the petition and its refusal to allow him to file additional affidavits in support of petition.
Kyagulanyi argued that there were unusual circumstances including the fact that his lawyers were operating mobile law firms for safety reasons out of a fear that state operatives would confiscate his the evidence.
This was premised on the fact that the police had already confiscated 7,281 declaration of results forms the party had collected from various polling stations across the country.
He also argued that state operatives besieged his National Unity Platform (NUP) headquarters which made it difficult for him to file relevant affidavits and evidence in support of his petition on time.
Kisakye’s dissenting ruling from that of the eight members of the bench who confirmed Museveni as the validly elected president for the 2021 to 2026 term, became a source of drama at the Supreme Court premises in Kololo on Thursday.
She accused the Chief Justice Alfonse Owiny-Dollo of being behind the confiscation of her file because he was uncomfortable with its contents.
She read her dissenting ruling to Kyagulanyi’s lawyers and journalists but without the public address system and lights because electricity had been switched off.
In her ruling, Justice Kisakye agreed with the petitioner saying that the reasons he advanced were more than unusual circumstances and therefore his applications should have all been allowed.
She noted that it was not right for the Attorney General to argue the way he did on the strict timelines because the issue of amending petitions has happened before in the 2016 presidential election petition of the Amama Mbabazi and therefore it cannot be unlawful.
She added that although the extension to file additional evidence was going to have an impact on the roadmap of court, the respondents who were the majority opted to ignore the fact that when those provisions were enacted and the constitution amended.
She said that whereas the law says that the matter should be determined within 45 days from the date of filing, this requirement didn’t impose on the Supreme Court the duty to ignore the unconstitutional and unlawful acts as declared by the High Court in Kyagulanyi’s petition against being kept under house arrest.
“The restrictions on the movements of the applicant as pleaded in his affidavit and as confirmed by the High Court more than constituted the special circumstances which were envisaged under Rule 17 of the Presidential Election Rules,” she said.
Kisakye added the rest of the Justices should have allowed the applicant to file additional evidence which was ready on the morning of February 15, when the deadline was on February 14.
“Court heard that the fact that the evidence was ready by February 14 and the country is under curfew, coupled with the siege of NUP offices, the shutdown of the internet for five days and Kyagulanyi’s house arrest, it was impossible that the time was sufficient for him to do all that was required,” Justice Kisakye ruled.
She said that there is a principle that a mistake made by the lawyers should not be blamed on their client like the majority of the Justices on the Coram did yet Kyagulanyi had already lost ten of the fifteen days he had to file the petition.
“The applicant’s Counsel was not able to deliver all the evidence in the time prescribed for a variety of reasons some of which were submitted on by Counsel [Medard Lubega] Sseggona. By the majority attributing the mistakes of counsel to the client, the court was reversing its decisions without giving reasons,” said Kisakye.
On the issue of Kyagulanyi’s witnesses being arrested by the state, Kisakye dismissed the arguments by the respondents saying that he should have brought evidence of the list on who was arrested and taken where and by who.
She noted that the argument lacked merit because Kyagulanyi knew who exactly were his witnesses and where they were and that the respondents were talking about matters that they didn’t know about.
“The first respondent [Museveni] is the incumbent president, he has been in power for 35 years with an established party structure which has not suffered any disruptions or closures as were suffered by the applicant’s party at the expense of the state organs,” said Kisakye.
Additionally, she said, the Electoral Commission and Attorney General who were second and third respondents in the case, also have nationwide offices and it didn’t make any sense for them to argue that Kyagulanyi’s witnesses should have been in Kampala for them to file their responses to additional evidence he wanted to file.
She noted that what Kyagulanyi went through was unconstitutional and in the interest of justice and fairness, the respondents shouldn’t have asked for costs.
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