Sunday August 24 2014

Exploring Lukwago’s options after Supreme Court ruling

Mr Lukwago

Mr Lukwago leaves the tribunal hearing session laster year after police forced him to the venue. The politician said he was sick and was unable to attend the hearing. PHOTOs BY Faiswal Kasirye. 

By ANTHONY WESAKA & NELSON WESONGA

The last three years have, for Erias Lukwago, been more like his time sheet before he joined elective politics in 2001.

Then, Lukwago spent most of his time in courts only that he was defending clients in the courts of law. These days, he is common in the courts –High Court, Court of Appeal, Supreme Court – but the difference is that he is a client, not a lawyer as he used to be.

The cases range from contesting the imposing of what Mr Lukwago would call higher taxes on public service vans, to his being kicked out of office because of incompetence, which he is contesting. It is not clear when his appearances in the courts will end, especially after the Supreme Court on Thursday referred him back to the Court of Appeal.

Mr Lukwago had on April 1, this year asked the Supreme Court to overturn a March 31 decision by Justice Steven Kavuma of the Court of Appeal to stay Mr Lukwago’s impeachment.

Kampala Capital City Authority (KCCA) councillors had on November 25, 2013 voted to impeach the Lord Mayor over alleged incompetence. Now observers are asking what his options are after the run a rounds in court. He is going back to the Court of Appeal, which he had tried avoiding because he believed he would not get justice there.

“I have prepared myself for a long overhaul and I am prepared to go the full length to battle with you (Museveni) in whatever legal forum there is. So let’s go back to Court of Appeal for a showdown. Whatever comes out, I am ready for the consequences,” Mr Lukwago told the media in Kampala on Thursday, August 21 just minutes after the Supreme Court had ruled on the matter.

So why does Lukwago keep referring to the President?
Mr Ofwono Opondo, the deputy spokesperson of the National Resistance Movement (NRM), says Lukwago has made it a habit to keep referring to President Museveni because that way, he attracts media attention. “The President does not have any interest in Lukwago’s job,” explains Mr Opondo. “There are many opposition politicians; how come we haven’t an effort to remove them? Lukwago made his bed, whether [it] is of thorns or sand, he should sleep in it.” Mr Tamale Mirundi, the President’s press secretary, says Mr Lukwago is “misguided”. “They [Lukwagos]are not principled; when they lose cases, they claim that they lost because the judges are ‘Museveni judges’. But the President has nothing to do with it; he is already in charge of Kampala,” says Mr Mirundi.

What is the significance of the Supreme Court ruling?
When he was commissioning the Wandegeya Market earlier this year, President Museveni said Lukwago should ask him – the President – for forgiveness, something Lukwago said he would not do. What Mr Museveni tacitly meant is that his woes would end if Lukwago ‘repented of his sins’.

Dr Frederick Kisekka–Ntale, a political analyst, says the ruling implies the principle of the separation of powers could be on the wane.
“It means you cannot turn to the Judiciary or to Parliament for recourse,” says Dr Kisekka–Ntale. “What the President is telling Lukwago is that ‘you cannot settle political matters except through me, the President’.” That would mean the Executive in a way has influence over the Judiciary.
When Mr Lukwago rushed to the Supreme Court, and the Attorney General, Mr Peter Nyombi, said the Supreme Court did not have jurisdiction over the case, the court said it had jurisdiction. However, on Thursday, five justices of the court ruled that it does not have the jurisdiction to entertain an appeal arising from orders made by a single judge of the Court of Appeal.

Mr Peter Walubiri, a constitutional lawyer, says it is not Lukwago on trial but the Judiciary, the KCCA, and generally “all Ugandans”. Mr Walubiri says though these are stressing moments for Mr Lukwago; he should continue pursuing the legal option even if it takes long so that the country knows who has faulted the law. Dr Kisekka–Ntale says Mr Lukwago’s “tormentors have sanitised their actions, by making them less rudimentary”. “His tormentors can say ‘the courts are independent. And, since he went to court, let him respect the decisions of the court’. We follow the rule of law,” says Dr Kisekka–Ntale.

Of all Opposition politicians, why is it Lukwago?
It is because he was the face of the Opposition in the capital city.
Ideally, it should be political parties, civil society organisations or trade unions articulating the interests of the citizens since not everybody can on the streets or in the few forums where the many ideas are exchanged. These interest groups are dead – says Dr Kisekka- Ntale – because the government killed them for its own survival. To weaken the Opposition, it follows; the government’s plan was to have Lukwago expend his energy and time in lengthy litigation.

“Keeping him in lengthy litigation disables his capacity to perform political oversight functions, it disables his capacity to preside over development that he would have been associated with, it keeps him away from the electorate and makes him inconsequential,” argues Dr Kisekka–Ntale
While Lukwago is away from City Hall, the city authority, led by Ms Jennifer Musisi, would focus on, among other projects, the tarmacking the city’s streets and the collection of garbage – that is, on delivery services.

By the time the courts dispense with Lukwago’s cases, the next general election will be due (in February 2016, other variables remaining constant).
By then, Lukwago would not have a claim to the development in the capital city, adds Dr Kisekka–Ntale. Lukwago cannot even find time to solicit for support for himself and yet he should because the next general election, which he is widely expected to participate in, is hardly two years away.

Will his tribulations earn him sympathy votes?
It remains to be seen if it will win him more support. But one has to recognise that the government has changed tact. It has been long since the police bundled Lukwago into one of its vehicles and sped off with him to an undisclosed destination. Instead, the regime has chosen the legal battle.

What next for Lukwago?
At the look of things, a long protracted legal battle lies ahead of Mr Lukwago. Even if he wins at the Court of Appeal, the Attorney General could appeal before the Supreme Court. It would, of course, take time to be resolved. But there is nothing to pause the hands of the 2016 general elections clock.

Besides, there is a substantive application of Mr Lukwago pending before the High Court in which he is challenging the recommendations of the Justice Bamugemereire Tribunal Report.

In the ruling, the Supreme Court directed the Court of Appeal to prioritise Lukwago’s appeal. Mr Lukwago hopes that this will take a shorter time than expected to determine his return to office. The assistant spokesperson of the Judiciary, Mr Araali Muhirwa, says once there is an order to have a matter heard “expeditiously”, it would mean the matter has to be heard as soon as possible.

Mr Muhirwa declines to specifically say how much time this could be. But he says it should be heard immediately. Mr Lukwago says since the Supreme Court has ordered that the Court of Appeal gives his appeal priority, he hopes that this will take a shorter time than expected to determine his return to office.

On the tribunal
The Court of Appeal case aside, Mr Lukwago had earlier lodged an application in the High Court in Kampala to challenge the recommendations of the Justice Bamugemereire Tribunal Report that recommended his sacking for incompetence and abuse of office.
Mr Opondo says though the KCCA council impeached Mr Lukwago, the NRM does not have a problem engaging in a fight with the Lord Mayor.
“We are in a political struggle. Political struggles are constant. We don’t mind getting into a fight with him as long as we use legitimate means,” he says. The legal battles constant, Mr Lukwago’s financially remains disadvantaged over non-payment of salary.

How politician was impeached

In a record 20 minutes, the special KCCA meeting chaired by the minister for Kampala, Frank Tumwebaze, impeached Lord Mayor Erias Lukwago, last November. Within another 10 minutes, the minutes of the meeting had been typed and signed by the minister and two councillors. Siraje Lubwama covered the events as they unfolded in the council chambers.

Mr Tumwebaze arrived at 8:55am after all councillors, save Bumaali Mpindi, had taken their seats. On May 17, 3013, a petition was presented to the office of the minister for Kampala and the Presidency by KCCA councillors, seeking the removal of the lord mayor on grounds of misconduct, abuse of office and incompetence.

On June 5, 2013, the tribunal was constituted with the terms of reference which were: to establish its procedure, rules for its own guidance and management of the proceedings; to investigate the allegations against the Lord Mayor as contained in the petition; to determine whether there is a prima facie case for the removal of the Lord Mayor and to submit a report to the minister responsible for Kampala.

Twenty-nine councillors voted in favour of removing Mr Lukwago. Only three councilors were against. According to Section 12 of KCCA Act, the Authority can remove the lord mayor from office if the tribunal finds a prima facie case against him

Flow of events

2011:
March 14: Lukwago is elected as Kampala City Lord Mayor
May 20: Mr Lukwago officially assumes office
2013:
May 14 - Majority of KCCA councillors lodge a petition to the Minister of Kampala Frank Tumwebaze, seeking the removal of Mr Lukwago from office on grounds of abuse of office, incompetence and misconduct.
June 20 - Justice Catherine Bamugemereire Tribunal starts hearing the complaints of the councillors.
November 14 - Justice Catherine Bamugemereire Tribunal hands over the report recommending the removal of Mr Lukwago in office.
November 25 - Deputy Registrar of the High Court Fred Waninda issues an interim injunction stopping Mr Tumwabaze from proceeding to impeach Mr Lukwago from office until his application for judicial review challenging the Bamugemereire Tribunal report was heard and determined.
November 25 - At 9:30am, by a majority vote of 29 councillors against three resolve to vote Mr Lukwago out of office.
November 28: Justice Yasin Nyanzi of the High Court rules that Mr Lukwago is still the Lord Mayor.

2014:
February 4 - High Court Judge Yasiin Nyanzi declines to disqualify himself from hearing Lukwago’s case saying there was no evidence that he would be biased as claimed by the attorney general.
March 28 - High Court Judge Lydia Mugambe reinstates Lukwago back into office, saying the controversial impeachment was done illegally.
March 31 - Justice Steven Kavuma of Court of Appeal kicks Mr Lukwago out of office following justice Mugambe’s ruling. The move follows a successful appeal by the Attorney General and KCCA lawyers.
April 1 - Lukwago runs to the Supreme Court to appeal the orders of Justice Kavuma.
April 21 - Supreme Court rules that Lukwago’s appeal was properly before them and ordered that it should be heard.
April 24 - Supreme Court justices hear out Lukwago’s appeal and reserve the ruling on notice.
August 5 - Makerere University KCCA councillor Bernard Luyiga petitions Leader of Opposition in Parliament Wafula Oggutu to intervene in the delayed Supreme Court ruling, saying the Kampala electorate was being denied representation at City Hall.

editorial@ug.nationmedia.com

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