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

Last Saturday, the Supreme Court reconvened to hear and give a verdict on two applications by Makerere University lecturers and civil society organisations seeking to join Amama Mbabazi’s presidential election petition

Monday March 14 2016

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.

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