Lawyers have said that some grounds raised by former presidential candidate Robert Kyagulanyi including failure to amend his petition is a strong reason to withdraw a case.
Kyagulanyi the former National Unity Platform (NUP) presidential candidate instructed his lawyers on Monday to withdraw the petition he filled before the Supreme Court challenging the outcome of the January 14 presidential election.
The National Resistance Movement (NRM) candidate Yoweri Tibuhaburwa Museveni was declared winner of the election with 58.38 percent while Kyagulanyi got 35.08 percent of the vote.
Kyagulanyi announced the withdrawal of the petition at a press conference held at his party headquarters at Kamwokya near Kampala where he accused the Supreme Court of bias and lack of independence.
This followed the court’s refusal to receive to receive some 137 affidavits backing up his case. The court also threw out an application by his lawyers for a leave of court to file the affidavits which Kyagulanyi claims had crucial pieces of evidence to prove allegations of irregularities that characterised the elections.
The court had earlier rejected his application to amend the petition which Kyagulanyi said is shocking given precedents set by the same court in previous presidential election petitions.
Kyagulanyi’s decision has received the backing of some lawyers who argue that if one cannot present crucial evidence to the court, then the case is as good as done, and one can decide to withdraw the case.
Constitutional lawyer, Dan Wandera Ogalo who was part of Dr. Kizza Besigye’s 2006 presidential election petition says that it can be frustrating if evidence gets denied.
Drawing from his experience, Ogalo said, such a petition begins with filing general affidavits as other pieces of evidence come in “since gathering evidence takes time, including translating the evidence if need be with a professional body like Makerere University, and so, if Kyagulanyi’s pictures, video recordings were not accepted, I can understand why he is distressed.”
The rejected evidence, Ogalo argues, could be Kyagulanyi’s best evidence, and not allowing it would kill the case.
“In my case, I had an expert witness, an excellent person at working with statistics from a University, it had to take time for the lecturer to go through statistics of all the polling stations in all parts of the country,” he said.
Fred Muwema who was part of Amama Mbabazi’s legal team in the 2016 election petition holds a similar view saying that “when one is not able to give evidence that he thinks can make his case, he would have no reason to proceed.”
“You cannot force a party to proceed, whatever reasons he gives whether right or wrong, the case is like personal property, and you may have a say but not influence it,” he said.
“Usually an amendment is allowed if it will assist the court to receive all important evidence. If the purpose is to submit more grounds and he feels that he has not been given this opportunity to give new evidence, then it may not work well with him,” Muwema added.
He reasoned that Kyagulanyi’s move to withdraw the petition could be seen as a vote of no confidence against the judiciary which has to ensure that the public maintains trust in the courts.
On Kyagulanyi’s a statement that the court is biased for meeting with the President and giving the incumbent an upper hand, Ogalo reasoned that this should not be a ground because it is the President with the mandate to appoints judges, and so they are bound to be biased.
Nonetheless, Ogalo argued, many judges such as John Wilson Tsekoko, Justice Arthur Oder made judgments that were not favorable to the president.
Oder’s judgment in the 2006 petition accused the Electoral Commission of flaunting the election laws and shoddy organization of the presidential polls.
In 2001 and 2006, Justice Tsekooko ruled in favor of Besigye.
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