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Parliament: NRM scores highly in court petitions

Twenty months since the February 2016 presidential and parliamentary elections, there are still a number of undecided petitions at the Court of Appeal.Of those decided, the ruling NRM candidates have greatly triumphed at the expense of those from the opposition, even when the facts are similar. DERRICK KIYONGA looks at some of the cases.NRM CEC members cutting their 2016 general elections victory The NRM MPs ejected for various reasons included: Peter Sematimba (Busiro South), Hajat Rehema Watongola (Kamuli municipality), Annet Nyaketcho (Tororo North), Edward Ssembatya (Katikamu South) and Col Charles Okello Engola (Oyam North). Others are Peter ‘Panadol’ Mugema [Iganga municipality), Lillian Nakatte (Luweero Woman MP), Charles Engora Macodwongo (Oyam North), Andrew Martial (Igara East) and Cissy Namujju (Lwengo Woman).However, one year down the road at the Court of Appeal, the tide has turned for the opposition with the justices either canceling their earlier opposition victories or simply rejecting their appeals in instances where they had lost.Section 66(3) of the Parliamentary Elections (Amended) Act provides that the decisions of the Court of Appeal pertaining to parliamentary election petition shall be final.Therefore, the right of appeal to Supreme court previously accorded to dissatisfied litigants was removed. The most intriguing thing about this trend is the influence of Justice Steven Kavuma, the recently departed deputy chief justice.On Tuesday last week, Court of Appeal overturned a High court decision and reinstated Charles Engora Macodwongo, the state minister for Defence, as Oyam North MP.High court judge Jessica Naiga Ayebazibwe had thrown him out for lacking requisite academic qualification after a petition from his rival, UPC’s Ayena Odongo.The judge agreed with Ayena’s claim that Engora used someone else’s master’s degree in Arts and Public Administration to obtain nomination but Court of Appeal justices Kavuma, Elizabeth Musoke and Barishaki faulted Naiga for wrongly applying the law when she placed the burden of proof on Engora.Earlier on October 2, the Court of Appeal threw out Igara East MP Andrew Martial, the NRM candidate, on grounds that he had bribed voters and also made defamatory statements about his opponent Michael Mawanda during the campaigns. Muwanda is an NRM-leaning independent.  Justices Frederick Egonda-Ntende, Richard Buteera and new deputy chief justice Alfonse Owiny-Dollo kicked out  Martial who has been opposed to the lifting of the presidential age limit having found him guilty of bribing voters with Shs 1.5m.At the High court, Justice Winfred Nabasinde had dismissed Mawanda’s petition on grounds that he failed to adduce evidence to prove the allegations.Meanwhile, NRM’s Daniel Ibaale failed to prove defamation when he petitioned court to annul the victory of FDC stalwart Abdu Katuntu in Bugweri.He alleged that Katuntu uttered false statements against him during the campaigns.Justices Kavuma, Remmy Kasule and Richard Buteera upheld a High court decision to retain FDC stalwart Abdu Katuntu as MP for Bugweri. High court judge Margaret Muntonyi had earlier dismissed a petition by NRM’s Daniel Ibaale for lack of merit.Another of these judgments against the opposition came on September 18 when Kavuma together with Justices Cheborion Barishaki and Catherine Bamugemereire declared NRM’s Peter Sematimba as the duly elected MP for Busiro South.The judgment dealt final blow to DP’s Stephen Sekigozi who had won at the High court last year. In June 2016, High court judge Lydia Ssali Mugambe threw Sematimba out of parliament after finding out that the National Council for Higher Education (NCHE) didn’t independently verify the authenticity and validity of his diploma in Electrical and Computer Technology, which Sematimba claims to have been obtained from the Pacific Coast Technical Institute in the USA. Peter SematimbaBut in their judgment, Kavuma, Barishaki and Bamugemereire cited the Evidence Act and noted there was no requirement for Sematimba to produce certified copies of his diploma, in evidence before court.The three judges said all Sematimba needed to do was to produce a certificate that bore a signature and seal of office of a foreign service officer in Uganda or British Counsel or diplomatic agent in such a foreign place, among others.     “It is not in dispute that first appellant’s [Sematimba] certificate did not comply with section 84 of the Evidence Act and the trial judge could have rejected the certificate and other documents therein, but she opted not to, for the justice of the case. The implication was that she presumed the documents to be authentic under section 84 of the Evidence Act,” they wrote.Then there is the peculiar case of DP’s Nsereko Wakayima Musoke, the ousted Nansana municipality legislator.On September 15, Justice Kavuma, who was joined by Barishaki and Hellen Obura, upheld a High court ruling which had thrown him out of parliament.The three agreed with High court judge Vincent Okwanga that Musoke did not qualify being an MP since he is not a registered voter and therefore never qualified for nomination and election.The judges ruled that the name Wakayima Musoke Nsereko which was used by the DP politician for his nomination was nowhere on the voter’s register.“Mr Wakayima was nominated in error as his name is not registered in the constituency’s voter register; it was the name of Musoke Hannington Nsereko which validly appears on the National Identification card. We find that the purported change of names is null and void,” the judgment read in part.The judges further agreed with justice Okwanga that there should be no by-election, thus declaring Kasule, who came second, as the elected legislator for Nansana.   Ironically, when justices led Kavuma, Barishaki and Paul Mugamba were confronted with a similar scenario in May, they ruled differently.That appeal rotated around the names of NRM’s Taban Idi Amin, the Kibanda North MP who was challenged by Sam Otada Amooti. The latter argued that Amin was not a registered voter. Taban Amin with President MuseveniIn the end, Kavuma, Barishaki and Mugamba agreed with Otada that indeed Amin failed to give a satisfactory explanation to the discrepancies in the name.For instance, he had Idi Taban Amin Tampo in the national voters register and national ID, Taban Idi Amin on the nomination form and academic documents while his passport indicated he was Idi Taban Amin.However, unlike in the Wakayima situation where the judges declared his rival the winner, this time round they ordered for a by-election, giving Amin another chance to get his papers in order. And indeed, Amin returned to parliament unopposed.   On February 10, Justice Kavuma, Barishaki and Mugamba overturned a High court judgment which was in favor of FDC’s Alice Alaso Asianut in respect of Serere Woman MP.NRM’s Hellen Adoa had petitioned the Court of Appeal seeking to overturn High court judge Justice David Wangutusi’s July 2016 ruling which had overturned her victory. Justice Wangutusi nullified Adoa’s victory, citing Electoral Commission’s (EC) non-compliance with the electoral laws.     However, Kavuma, Barishaki and Mugamba disagreed with Wangutusi, ruling that court  cannot interfere with the democratic choice of the voters where  Adoa polled 48,762 votes against Alaso’s 32,651.“…unless it was established to the required standard of proof that there were such irregularities and electoral malpractices that would render the said election null and void and therefore subject to a nullification. It was not sufficient for the respondent (Alaso) to only establish that irregularities or electoral malpractices did occur. She had a duty to establish that the said electoral malpractices were of such magnitude that they substantially and materially affected the outcome of the electoral process,” the judges ruled thus ending Alaso’s hopes.In June 2016, High court judge David Batema annulled the election of NRM’s Lillian Nakatte as Luweero Woman MP. In the petition filed by DP’s Brenda Nabukenya, Justice Batema called for fresh elections after faulting Nakatte for not complying with the electoral laws and also bribing voters.Nakatte was declared winner with 56,573 votes, beating Nabukenya by about 3,015 votes. But the judge noted that evidence before court showed that EC let hooligans chase presiding officers and usurp their powers at various polling stations.The judge further found Nakatte guilty of bribing voters at Vvumba village in Butuntumula sub-county.But on June 2017, Kavuma, Mugamba and new deputy chief justice Alfonse Owiny-Dollo overturned Batema’s judgment. According to the trio, Nabukenya failed to prove beyond reasonable doubt that there was voter bribery and election malpractices.      The trio rubbished Nabukenya’s claims of ballot-stuffing at St Kizito and Galikwoleka stations, adding that even if there was voter ballot paper stuffing, Nakatte won with a larger margin elsewhere. They said even if Nabukenya had won all votes at the said two polling stations, it couldn’t change the final result.  
Kavuma, Barishaki and Bamugemereire also offered a lifeline to NRM’s Cissy Namujju Dionizia when they overturned a High court judgment that had nullified her election last year.The three quashed the ruling by High court judge Margaret Tibulya on grounds she arrived at the wrong conclusion that Namujju had no requisite academic qualifications to stand as Lwengo Woman MP.Namujju’s election had been challenged by Martin Sserwanga, a voter, who asserted that while the legislator calls herself Cissy Namujju Dionizia, both her O and A-level certificates indicate Dionizia Namujju.Sserwanga further insisted that Namujju did not pass her Primary Leaving Examinations which she sat from Kyazanga primary school, thus she illegally joined secondary school.But Kavuma, Barishaki and Bamugemereire overruled Tibulya. They said Sserwanga shouldn’t have read much into discrepancies in Namujju’s names since the passport photos on both the said O and A-level certificates were Namujju’s and, according to them,  that was enough to prove that she was qualified to be an MP.So far, the single victory that the opposition obtained at the Court of Appeal came early this year when the court agreed with FDC’s Proscovia Salaamu Musumba to throw out NRM’s Rehema Watongola as Kamuli municipality MP.Justices Richard Buteera, Barishaki and Mugamba agreed with High court judge Geoffrey Namundi that Watongola didn’t possess the required minimum academic equivalent of senior six at the time she was nominated.However, Musumba’s victory was shortlived since Watongola won the subsequent by-election. As the opposition continues to lick its wounds, there are several pending judgments from the Court of Appeal.For instance, High court at Jinja threw out NRM’s Nathan Igeme Nabeta and declared FDC’s Paul Mwiru as the new Jinja Municipality East MP. Nabeta’s appeal is yet to be determined.In the same vein, Justice Margaret Mutonyi removed Mugema from parliament and declared FDC’s Abed Nasser Mudiobole as the rightful MP for Iganga municipality. Mugema’s appeal is also yet to be determined 15 months on.Ironically, the only constant in all these petitions is that Justice Kavuma headed all the corams of judges delivered the judgments.