Monday March 14 2016

Museveni lawyers cite bias, ask court to block Makerere dons from polls petition

Makerere University law dons, who seek to join

Makerere University law dons, who seek to join presidential election petition as “friends of court, chat during a break in proceedings at the Supreme Court in Kampala last Saturday. Court today will rule on their application. PHOTO by Eric Dominic Bukenya.  

By Ivan Okuda, Anthony Wesaka and Isaac Imaka

Court starts at 10.14am with the Deputy Attorney General Mwesigwa Rukutana, addressing the judges and reiterating that he is representing the Attorney General, who is the third respondent. He also introduces lawyers representing the lecturers as Mr Mulema Mukasa, Mr David Ssempala and Mr Robert Kirunda.

My lords, that’s for application Number Two. But my lords, for the respondents in the main petition, we are seeking your indulgence if it may please the court, to combine application Number Two and Three to save time. It is our considered view that the issues in the application are the same and it will save time.

Chief Justice (CJ): The issues will be the same but the grounds different, so we proceed with application Number Two.
Rukutana: Much obliged. My lords, for respondent Number One, we have Didas Nkurunziza, Peter Kabatsi, Mr Herbet Byenka and Mr Bruce Musinguzi. For the second respondent in the main application, Mr McDusman Kabega, Mr Enos Tumusiime, Mr Elison Karuhanga and Mr Oryem Okello. My lords, I am assisted by Mr Francis Atoke, the solicitor general, and Ms Patricia Mutesi, the principal state attorney.

CJ: The petitioner?
Rukutana: He is represented by Mr Mohammed Mbabazi, Mr Asuman Basalirwa, Michael Akampurira, Mr Elvis Twenda and Twinobusingye Severino. My lords, we are ready to proceed.

Didas Nkurunziza: My lords, we filed our authorities in court, I seek leave of this court to have our authorities availed to your lordships so they can be referred to in this application.

CJ: Of course, court would also like to refer to the authorities, so leave is granted. Each of the parties will be allowed 15 minutes to respond and then you will make a rejoinder. I hope everybody recognises the element of time. Normally, we give you 20 minutes.
Mulema Mukasa: My lord, for the record, all the nine applicants are in court. This is an application for leave of amicus curiea (request to join the petition as a third party), it is brought by notice of motion, supported by nine affidavits, two of which are the main ones.

This motion seeks two orders in the interest of time I won’t go into. The prayer is for the applicants to be admitted as amicus curiae in the petition, the grounds are also contained in the motion. There are a number of them from page two of the motion to page three, they are 11.

The affidavits mainly supporting the motion, the two I referred to, are sworn by Prof Oloka Onyango and Associate Prof Christopher Mbazira. At this juncture with leave of court, I pray to have the affidavit in the rejoinder which was filed this morning, for the fact that we were served at 8pm yesterday and we didn’t have time to rejoin.

That affidavit is sworn by Associate Prof Mbazira. My lords, as well there is a bound copy of additional authorities for the constraint of time we filed this morning and I pray this bound copy be admitted as part of the supporting evidence.

CJ: Go straight to the point.

Mukasa: I will go straight to the law that enables this application. Rule 15 of the presidential election petition 2001, we think is the one that enables us come before this court and make the application before you. Your lordships, we quoted section 98 of the Civil Procedure Act, Order 52 of the civil procedure rules, to evoke powers of this court to consider the orders the applicants are applying for.

We have sought help of the inherent powers of the Supreme Court, Rule 2, sub-rule 2, for invocation of the inherent powers of this court. There are no express rules governing amicus curiae.
When you look at the affidavits, it fleshes out the applicants’ expertise more so in paragraph one of the first and third applicants; affidavits but also additionally the affidavit in rejoinder by Prof Mbazira that has a more descriptive detail of their expertise in paragraph 5 and 6.

The thread that runs through the affidavits is that their expertise in human rights, good governance and constitutional law are concerned and this being a petition of a presidential election it has a nexus with those broad areas of law mentioned.

We also need to emphasise that these are Ugandans. I will go into the merits but I need to emphasise that this petition was brought under Article 104 of the Constitution. The mandate of this court is to make a due inquiry; we think the applicants and their expertise being Ugandans, we think these people can make a positive contribution in so far as due inquiry is concerned.

CJ: I must remind you that you have five minutes.
Mukasa: I will ask that my learned friend takes over.
Robert Kirunda: My lord the CJ, I am Robert Kirunda for the record. Amicus curiea as defined by Blacks Law Dictionary requires that one demonstrates a sufficient interest in the case. Your lordships, that is supported by Prof Oloka’s affidavit.

CJ: Go straight to validity of your amicus curiae application.
Kirunda: The authorities require one to be in position to make a cogent submission in court for the sole purpose of aiding court make a due inquiry. A number of questions have arisen in their minds not presently in the record.

They are pleading in paragraph eight of Prof Oloka and Mbazira’s affidavit; it is their contention that neither party brought these questions to court.

CJ: Are those questions of fact and law?
Kirunda: Both fact and law. The authorities allow the applicants to submit in fact and law. The questions of law in so far as they apply to lack of action by State actors in the last petition. They contend it is important for two reasons, first if non-action by State agencies on the observations of court in the last two petitions had in any way a bearing on the election now disputed as free and fair.

What remedial steps can this court take and improve democratic governance of this beautiful nation? We submit that those questions are not present in the record by either of the parties. The authorities we have supplied demonstrate the applicants be independent of either parties and they must be able to guide the court and the applicants.

Not biased must be determined on the basis of the intended submission before the court but also as experts contend the requirement of bias is out-dated and this is a requirement for the court to take a progressive stand. It is our contention that the intended application will help the court.

Herbert Byenkya: My Lord, the applicants want to join a special proceeding. It is the only proceeding where the Supreme Court is given original jurisdiction but also under our Constitution, it is limited in extension and time.

I want to rely on Raila Odinga Vs Independent Electoral and Boundaries Commission of Kenya. In that decision where the Kenya Supreme Court reminded itself that its jurisdiction is not boundless, it is subscribed in extent and time.

My lords, this answers all these matters my learned friend Kirunda said they want to introduce. Their desire to include is to take you from your jurisdiction under the Presidential Elections Act and the Constitution.

My next point: We filed an affidavit in reply to the secretary general of the NRM. In that affidavit responded to but not refuted, she supplies evidence of long-standing bias by some of the applicants and we have attached articles of Prof Joe Oloka Onyango, they make interesting read but even the titles speak for themselves.

Another article of Dr [Busingye] Kabumba refers to the first respondent [Museveni] as a dictator in a suit. He cannot be friendly to the first respondent. Court should not entertain partisan people to come under the guise of friends, the court must choose its friends carefully.
Thirdly is that it will be premature, this is because amicus [curiea] only comes to assist the court on matters overlooked by the parties and on fact and the law. It is presumptuous of these ladies and men that all these lawyers and justices of the Supreme Court will overlook facts and the law. My lords, I believe the Supreme Court will not overlook any authorities.

I am supported by the brief. It is revealing because the brief is nothing but a regurgitation of some of the statements made by judges of this court in previous cases, there is nothing new, not an iota of new law. They want to tell your lordships what you already know.

That is not consistent with amicus curiae. Amici are supposed to be confined to the law, not adduce evidence and in particular they will not be allowed to adduce evidence in situations of dispute of facts. (Cites a South African case)

My learned friends said they are Ugandans, they are free to swear affidavits if they want to adduce evidence. Lastly, my lords, to say that whatever they purport to address court on should never expand the scope of litigation, never go beyond what the court is here to do, this court is here to decide the validity of a presidential election not to make constitutional pronouncements or the state of governance, recommend electoral reforms; it is not here to legislate. We have many organs of government that can deal with that.

Expedition is a cardinal requirement of the petition. In the short period of time we are granted by law the court is required to inquire into the election. It is a task for court and the counsel. For us to be dragged into principles of governance, electoral reforms, we can’t do that.

That is not what we are required by law. My Lord, we pray you dismiss the application. When the applicants come in uninvited and have nothing useful to add, they should be condemned to costs.

McDusman Kabega: We only wish to add for purpose of clarity. First, I make reference to authority by the applicants on page 15 where they say one of the considerations is that the amicus [curiea] be made and presented within reasonable time. My lord, the petition was filed on March 1, this application was filed on March 9.
The court has gone a long way in preparing for dealing with trial issues, they have already been agreed upon, court has given timelines for filing submissions. For the court to be diverted into amicus [curiea] would be at a cost, bearing in mind the timelines within which the case should be completed.

The applicants also say this is in benefit of the citizenry, my submission is that this is really an individual interest by the applicants and not in public interest.

Reading the affidavits in support by Prof Oloka and Mbazira they clearly show they have an interest in the matter; that the court has made decisions but nothing appears to have be done. This shows they have biased interest in the matter and cannot be allowed in the petition.

Deputy Attorney General: My lords, I fully associate myself to the submissions of counsel for the first and second respondents and wish to add that the relationship between amici curiae and parties ought to been governed by neutrality. It is my submission that the applicant is not neutral.

The applicants are biased against the third respondent to the petition. If you look at the intended brief of the amicus curiae, they fault the third respondent for alleged failure to give guidance to the legislature and executive to take comprehensive reform in electoral reforms. They have an axe to grind with the AG. In Paragraph 3 they even go a long way proposing remedies for what they call a structural directive and demand the said respondent reports back to court within six months on the matter.

They are clearly seeking remedies against the third respondent in the petition. That shows they are partisan. It doesn’t matter whether the concerns are legitimate or not but this is not the correct forum; there are other ways they would have sought the remedies.

This court is seeking to address the legality of the elections that took place on February 18, 2016. Secondly the affidavit in rejoinder sworn by Prof Mbazira doesn’t demonstrate expertise on issues pending before the court, it is on human rights, democratisation and governance, this is so wide but those are not necessarily relevant to issues before court, the issues are election malpractices.

CJ: Isn’t that part of the democratisation? (Court bursts into laughter)

Rukutana: The expertise goes beyond what the court is seeking to address. For that matter, having demonstrated that the applicants are clearly biased against the AG, they don’t qualify under the principles set out in the cases we have shown that demand the amicus [curiae] must be impartial.

CJ: Counsel for the petitioner?
Mbabazi: The petitioner has no objection for the court to have friends.
CJ: As you pointed out I happened to have been one of the judges in the last petition where recommendations were made and never followed up.

We don’t have them in our statutes. Now how does this help where I will be making a decision in 18 days? How does the recommendations of what should have been done relate to the decision we shall make?
Kirunda: Just two simple points. Your lordship, asked how would this aid court in reaching a determination of the election. The affidavit in rejoinder, what the applicants are asking the court to intervene and ask is, did lack of action in anyway affect whether the current election was free and fair?

That is because we construe the election as a process not an event and lack of action over 15 years has a bearing on the election. We look to posterity not the past, did the past come to haunt us in 2016 and how do we avoid that? (audience stamps in approval provoking the Chief Justice into prompt warning)

CJ: This is a courtroom, not a theatre. (turns to applicants’ lawyers) Are those novel points of law you want to submit on? Help us understand how the past helps….

Kirunda: To consider how the past came to bear on the present today, the fact the learned AG considers that question hostile to him suggests that is the very essence why it must be examined.
The law on amicus [curiae] is such that court retains the power and jurisdiction. So court can guard against bias and boundaries that stretch beyond. The parties have misunderstood the rule of amicus [curiae] to be adversarial, that they have to file affidavits. That is not the law. I pray that this application be granted as the question it raises will be crucial in determining if the election was free and fair.
CJ: We will rule on this first thing Monday (today) morning.

Dismiss application
The argument: Last Saturday, lawyers representing Mr Museveni, the Attorney General and the Electoral Commission asked court to dismiss an application in which Makerere University law dons and Civil society organisations are seeking to join the presidential election petition as “friends of court”. Lawyers for the respondents argue that some of the composition of the members of the two applications have previously issued partisan statements that casts doubt on their role and participation in the petition.