By Isaac Imaka, Anthony Wesaka & Ivan Okuda
Posted
Saturday, April 2
2016 at
01:00
In Summary
The issue. Justice Kanyeihamba says The Supreme Court should have made an inquiry into the petition.
Kampala. The Supreme Court’s ruling on Thursday dismissing a petition by former presidential candidate Amama Mbabazi seeking annulment of the February 18 presidential election result has been criticised by retired Justice George Kanyeihamba.
In a unanimous ruling, the nine justices of the Supreme Court upheld the declaration of Mr Yoweri Museveni as the validly elected president. Justice Kanyeihamba says in so doing, they erred in law and in the way they reached their conclusion.
In an interview with this newspaper on Friday, retired Supreme Court judge Kanyeihamba, who dissented in the 2006 presidential petition ruling that also upheld the election of Mr Museveni, said the Bench ought to have inquired into the petition by digging deeper into observer reports and evidence outside court instead of solely relying on what the petition had put before them “as if they were conducting a normal trial.”
“The justices of the Supreme Court deliberately narrowed the grounds of the inquiry and confined it to the evidence supplied to them by the parties whereas they should have dug deeper and wide,” he said.
Asked whether the 2006 Bench which he was part of, inquired past what had been presented before it, Kanyeihamba answered in the affirmative. “That’s why we (in the Constitution) called it an inquiry and not a trial. We based on observer reports and we called in a witness who was an expert in a matter that was being argued in court [Note: The expert statistician was brought in by Dr Besigye in the 2006 petition as his witness to crunch figures for the court – Editor]
“But it’s not about who brought and what we did. It is a statement of fact in the law,” he said.
Justice Kanyeihamba’s argument had earlier been raised by Mr Amama Mbabazi who, in a press conference after the ruling, castigated the court for failing to live to true what the framers of the constitution envisaged when they chose to give Supreme Court powers to inquire into as opposed to simply hearing a presidential election petition.
“What we envisaged in the short run was that court would use its powers to call in experts from outside what was presented, take for example, the Inspector General of Police to come and explain,” he said.
“The Supreme Court is not fettered by the usual use of technical rules in conducting hearings. It has the freedom to go beyond what is presented at the hearing. I thought this was a serious matter that deserved attention,” Mr Mbabazi said.
That argument, however, has elicited mixed reaction from the legal fraternity. Retired Supreme Court Justice John Wilson Tsekooko said court could only rule on what is presented before it and cannot go out digging for evidence.
“It is basically a trial. You hear the two sides and make a ruling,” he said. “You can’t go and look up evidence. You can only check on the law.”
Lawyer Peter Walubiri, however agrees with both Mr Mbabazi and the retired Kanyeihamba saying the Bench ought to have followed the constitution.
Mr Walubiri said the command to the Supreme Court to inquire as stipulated in article 104 of the constitution was narrowed by the Presidential Elections Act, which stipulated that court can only rely on affidavit evidence. “But court should have known that the constitution is supreme. The court had a duty to conduct an inquiry, especially that the 30 days are not enough.
The right way
The intention of the constitution was that you do not only rely on affidavit evidence but you call up election records and also examine people who conducted the election. They could have done a forensic audit of the election computers. That’s the kind of inquiry that could have done justice,” he said.
During his submission, Mr Jude Byamukama, one of Mr Mbabazi’s lawyers, challenged the court not to rush through the petition but take time off to do more inquiry, including calling experts to determine how much time the biometric voter verification machines takes to verify a voter.
There had been an argument over the issue with the Mbabazi legal team saying it takes about two minutes while the Electoral Commission said it takes 30 seconds.
Former Chief Justice, Benjamin Odoki, however disagrees with the notion of inquiry saying inquiries are done “in things like shoddy road constriction, purchase of junk helicopters but not a presidential election petition.”
“The problem here is that the constitution is being read in isolation instead of being read in its entirety. The people are just picking one word that says court must inquire into the petition but there is nowhere in the constitution it says there should be a public inquiry. An inquiry is a hearing, what is the difference? The rules of hearing are set by the body that hears it.”
“But for the future, when the rules are changed into having an inquiry, more time should be created since the 30 days currently mandated to dispose off the presidential petition is such a short period,” the retired chief justice said.
Justice Kanyeihamba further argued that it is unusual for all nine justices of the Supreme Court to think alike and have the same opinion on all the grounds that Mr Mbabazi lodged before court in challenging the victory of President Museveni.
He also expressed suspicion why court did not believe in the petitioner (Mr Mbabazi) and his witnesses but believed in the arguments of the respondents (Museveni, EC and AG) and their witnesses saying, “Such a scenario needs an explanation.”
“Usually, in election petitions, each judge is asked to give their own opinion as to whether what they have found substantially affected the final results. You cannot tell me that all the nine justices were unanimous on every ground,” he said.
In their ruling, the Bench held that although there was some elements of noncompliance with the electoral laws on the part of the Electoral Commission like late delivery of voting materials, the same did not substantially affect the final result to warrant overturning Museveni’s win.
While reading the ruling, Chief Justice Katureebe noted that Mr Mbabazi failed to provide election observers reports and other evidence yet he had said, in his sworn affidavit, that he had attached them.
He also noted that by failing to have sufficient evidence, Mr Mbabazi’s lawyers failed to shift the burden of proof from the petitioner to the respondents yet it was a very important thing to do if they had wanted to have an edge in the case.
Museveni praises judges
In a note to this newspaper after it sought his comment on the ruling, Mr Museveni praised the nine Justices referring to them as reasonable men and women and was therefore not surprised that they came to the conclusion unanimously.
“As the Monitor newspaper, notwithstanding your nature, would realise, judges are ‘reasonable men and women’. That is how they became judges in the first place. I am not surprised … they found that the general elections … reflected the will of the people of Uganda. In fact, the NRM scored more votes but many of them were suppressed as invalid vote – almost 5 per cent of the total votes cast. We did not bother to complain about this because we had enough votes to decisively win. Why inconvenience Ugandans with unnecessary alterations? It also shows how institutions of the state have grown and recovered from the problems of the 1960s, 1970s and early 1980s.”
editorial@ug.nationmedia.com
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