Monday March 14 2016

Court to rule today on civil society application to join election petition

Mr Karoli Ssemogerere (L), the lead counsel for

Mr Karoli Ssemogerere (L), the lead counsel for civil society organisations, speaks to some of his clients after court had heard an application in which civil society is seeking to join the presidential election petition as “friends of court. PHOTOs by Eric Dominic Bukenya.  

By Ivan Okuda, Anthony Wesaka and Isaac Imaka

Court clerk: Application No.3 of 2016 arising out of election petition No. 1 of 2016.

Rukutana: I am Mwesigwa Rukutana, representing the third respondent (Attorney General). I am being assisted by the Solicitor General Francis Atoke, Ms Patricia Mutesi (Principal State Attorney). The applicants are present in court and are represented by Mr Mr Karoli Ssemogerere, Mr Nicholas Opiyo, Norah and Ms Winy Matovu.

My lords, the applicants are present in court: Foundation for Human Rights Initiative (FHRI) is represented by Dr Livingstone Sewanyana, The Association of Women Lawyers (Ms Irene Ovonji-Odida), Chapter Four Uganda (Peter Magela), Human Rights Network Uganda (Muhammed Ndifuna), Centre for Constitutional Governance (Sarah Bireete), Kituo Cha Katiba Eastern African (Ms Edith Kibalama) Legal Aid Service Providers Network Uganda (Ms Sylvia Namukasa) and Transparency International – Uganda (…………………….).

The petitioner (Mr Amama Mbabazi)’s side is represented by Mr Mohammad Mbabazi, Mr Michael Akampurira, Elvis Twenda and Mr Severino Twinobusingye. The first respondent (President Museveni) is represented by Mr Didas Nkurunziza, Peter Kabatsi, Ebert Byenkya, and Bruce Musigunzi.

The second respondent (EC) is being represented by McDusman Kabega, Enos Tumusiime, Elson Karuhanga, Eric Sabiiti, and Mr Okello Oryem. My lords, we are ready for the hearing.
CJ: Housekeeping rule, each one should use 15 minutes. I suggest you go straight to the point.
Counsel Karoli Ssemogerere: I want to reply on the list of authorities. My lords, we were served this morning, including tendering in the letter of the first applicant. With your indulgence, I wish to proceed.
CJ: Proceed.
Counsel Karoli Ssemogerere: The grounds of the motion are contained in the application and are supported by the affidavit of Mr Crispy Kaheru, an employee of the first applicant (FHRI). My lords, there is a supplementary affidavit also filed in this honourable court.
CJ: Has the supplementary affidavit been filed?
Counsel Karoli Ssemogerere: Yes my lord.
CJ: When was it filed?
Counsel Karoli Ssemogerere: Yesterday.
CJ: We don’t have it
Counsel Karoli Ssemogerere: The supplementary affidavit was filed on March 10.
CJ: Do others parties have it?
Counsel Byenkya: Yes.
CJ: All other parties have except people who matter (laughter in court)
Rukutana: We also don’t have it.
CJ: You may proceed.
Counsel Karoli Ssemogerere: Briefly, the issue of relevance of election observers in such a petition has been canvassed in the past petitions of Dr Kizza Besigye Vs Yoweri Museveni in (2001 and 2006).
My lords, I refer you to the judgment of Chief Justice Benjamin Odoki as he was then in 2001, where he referred to the observers’ reports and how they were relied upon by the second respondent (EC).
In 2006, this issue came alive again. I refer you to the lead judgment of Odoki, he gave the relevance of the observers reports. How long the observers had stayed in the country, how widespread their coverage was and the standards applied.
My lords, we are here before you but we don’t have specific rules covering amicus curie in the inherit jurisdiction of this court but rule 15 of the Presidential Elections Act directs this court where no express rules apply to consider general rules.
My lords, the applicants are independent of any of the parties to the petition. My lords, the nature of their work is voluntary and the arrangement is not partisan as they cannot belong to any political party. If I may add from the rules of UK, they have also not received any financial support from any of the parties in the petition.
The question will be, why (have we come) at this time and the answer is, there is a specific rule about time. We are also mindful of the main petition that has not yet started. I want to emphasise that they are not a party to the petition, I believe with their expertise, they can help this court come to a just decision.
CJ: I think you should spend a little time telling us about your client’s expertise which is not on court record as you keep your eye on the clock.
Counsel Karoli Ssemogerere: Paragraph 3 of the affidavit in support starting with the word….
CJ: This paragraph that reads, I am a member of the African Union, but this paragraph belongs to an individual.
Counsel Karoli Ssemogerere: He works for an organisation but he also worked for the other applicants but has expertise.
Justice Lillian Tibatemwa: Mr Ssemogerere, your entry point is observers and not legal expertise.
CJ: I am giving you more five minutes extra because of these clarifications.
Justice Lillian Tibatemwa: What is the legal position so that we can see the clear difference?
Counsel Karoli Ssemogerere: The basis is factual based on the definition of amicus curie based on the strong interest. The role of amicus curie is to draw attention to facts, to which attention would otherwise not be drawn. I would draw you to the observations of CJ Odoki as he was then in 2006 petition.
CJ: Your time is up
Counsel Karoli Ssemogerere: Most obliged (as he takes seat)
Counsel Byenkya: My colleagues did not come as experts in the law, meaning…. they bring nothing to the petition. We have one list of authorities given the time factor. We seek your indulgence and we go to case of the ministry [Health] that has just been cited.
At paragraph 8, the issues before this court is about the validity of the presidential election. The issues are not about the quality or scope of the election observers. We are not here to determine observer validity, so they are outside the scope.
Amicus curie will not be allowed to provide new evidence on matters already in court and must be within the scope, so they came as witnesses and want to disguise the same as amicus curie.
The other issue is bias and lack of independence. In that regard, we filed the affidavit of NRM secretary general Justine Kasule Lumumba and she also points out the impartiality which is supported by documentary evidence.
The aforementioned are election observers and they have already passed out the reports about the election, so the evidence they want to bring is to support their reports.
What we have heard also is that they are members of The Democratic Alliance (TDA). These organisations participated heavily in the processes and two candidates emerged from the process and both CEON and CCEDU subscribe to TDA. The petitioner (Mr Mbabazi) throughout the campaign referred to himself as a candidate of TDA, Go forward.
The deponent Mr Kaheru is a relative of one of the losing members of the election and indeed that losing member has accepted this when he posted on his face book (page) of how relatives including Kaheru had visited him at home.
CJ: But the losing member is not part of this petition.
Counsel Byenkya: But the losing member is also a member of TDA. So where a friend of court is a close relative to the other member, we don’t think that is a good friend of the court. Apart from not bringing evidence based on law, they are also biased. I pray that you dismiss the application with costs.
CJ: Your time is up
Counsel McDusman Kabega: My lords, I will be brief since my colleague Byenkya has exhausted it well. I want to draw court to paragraph two of the motion which says the applicants are accredited by the EC. It’s only the first applicant (FHRI) that is accredited by the EC and not all applicants.
CJ: Where are you reading?
Counsel McDosman Kabega: Paragraph two of the motion, annexure A shows that it was only first applicant accredited. Secondly, my lord, looking at the supplementary affidavit if Mr Kaheru, at page two, starting with the fifth line, when he says I swear this affidavit on behalf of the first applicant and other applicants.
The point, is I am doubtful whether one can swear an affidavit on his own and on behalf of others. My lords, my learned friend Byenkya has talked about bias, I also want to add that on the website of the first applicant (FHRI), there is information that is against the second respondent (EC).
Justice Esther Kisaakye: Did you print it?
Counsel MacDusman Kabega: No my lords
Justice Jotham Tumwesigye: Do you want us to go to the website?
Counsel McDusman Kabega: No my lords. In the affidavit of Mr Kaheru, he wants to provide court with comparative evidence with other jurisdictions.
Justice Rubby Aweri Opio: Can you comment on paragraph eight. He has made no demonstration on what quality evidence he possess so to help court in matters of the main petition

Mr Ssemogerere (front) and Nicholas Opiyo

Mr Ssemogerere (front) and Nicholas Opiyo (background), the two main lawyers representing civil society, leave after presenting their application in Kampala last Saturday.


Counsel McDosman Kabega: I would like to reiterate on the prayers of my learned colleague.
Rukutana: My lords, I fully associate myself with the counsel for the first and second respondents not to have the applicants admitted to the petition. To qualify to be added as amicus curiae, one should demonstrate the expertise and general knowledge does not suffice.
In this application, no legal expertise has been adduced. When you look at the affidavits of Mr Kaheru, he only says he participated in election observation and sent out a number of observers. Those facts alone don’t qualify the applicants to be admitted as amicus curiae, as they want to become. They bring no legal expertise to assist court come to reach a just decision. On the contrary, in both the application and affidavits, the applicants intend to bring new evidence from the election observers’ reports and this can’t be allowed by this honorable court.
Allowing this will prejudice the parties to the petition. On those grounds, I pray to court to dismiss the application with costs.
CJ: Do they have money as they do voluntary work?
Severino Busingye: My lords, I will say that we have conceded to the application and we don’t have any objection to the application.
Counsel Nicholas Opiyo: On the issue of bias, the respondents have argued on various forums that the applicants are biased and therefore unable to provide cogent help to the court in order to arrive at a just decision.
I will refer to page two of the list of the authorities. No statements were made in anticipation of this petition. But court must be mindful in dealing with this matter. In our list of authorities, an amicus curiae that goes beyond, risks losing it.
CJ: So you want to be admitted and then go back?
Counsel Nicholas Opiyo: The first applicant has experience since 1991.
CJ: Is that the expertise you want to bring on board?
Justice Lillian Tibatemwa: Attaching a brief would have helped the court to understand better.
Counsel Nicholas Opiyo: It’s our humble submission that even the EC does not deny in the affidavit for accrediting the first applicant (FHRI). The person who accredited has not denied the same. Family relations, with Facebook picture matters, court should disregard such.
If we had no interest in the petition, we would not be in this court. We also don’t have interest in either side but we want to give legal expertise. We have interest and that interest is that we want to help court with facts that they may not have.
CJ: If you have facts, will the other parties cross-examine you?
Counsel Nicholas Opiyo: We shall be useful to the court, we shall be aiding court in exercising its mind to come to a just conclusion. The last issue is about the question of scope. We are not seeking to expand on the scope of the court. But since court has a lot of work, they might need friends.
CJ: But friends must be helpful (laughter). Ruling will be made on Monday (today) March 14.

concern

The NRM lawyers argue that one of the members (Chrispy Kaheru), who swore the main affidavit, could be a biased party because of his blood relations with Dr Kizza Besigye. However, the Chief Justice reminded the lawyers that Dr Besigye is not party to the petition.