Tuesday March 8 2016

Legal minds flex in court as Mbabazi seeks to quash Museveni victory

Attorney General Freddie Ruhindi (in striped necktie) i

Attorney General Freddie Ruhindi (in striped necktie) in a conference with defence lawyers outside the Supreme Court in Kampala yesterday. 

By Anthony Wesaka, Isaac Imaka & Ivan Okuda

Time check: 10:20am, the nine justices of the Supreme Court walk into the fully-parked courtroom.

Deputy Attorney General Mwesigwa Rukutana: My lords, I am Mwesigwa Rukutana, the Deputy Attorney General, and I am appearing on behalf of the 3rd respondent (AG Fred Ruhindi) who is in court.

I am being assisted by the Solicitor General, Mr Francis Atooke; Phillip Mwaka, Martin Mwambutsya, George Kalemera, Elisha Fafirawala, Richard Batanda, and Jackie Amusugut.

For the petitioner, we have Mohammed Mbabazi as lead counsel, assisted by Micheal Akampurira, Asuman Basalirwa, Severino Twinobusingye, and Jude Byabakama.

For the first respondent (Yoweri Museveni), we have Didas Nkurunziza, Bernabus Tumusigisa, Herbert Byenkya, Joseph Matsiko, Kiryowa Kiwanuka and a team of other 30 lawyers (they stand up for the justices to see them).

Chief Justice Bart Katureebe: I think let’s go with the counsel you have mentioned.

Mwesigwa Rukutana: My lords, for the second respondents (EC), we have Enos Tumusiime, MacDusman Kabega, Enock Barata, Tom Magezi, Elson Karuhanga, Ivan Kyateeka, Okello Oryem and Eric Sabiiti.

My lords, I don’t see the petitioner (Amama Mbabazi) in court and for the first respondent (Yoweri Museveni), he is being represented by Edwin Karugire (Museveni’s son in law).

My lords, we are here for pre-conferencing, however, about three minutes ago, we were served with an amended petition which substantially alters the petition before you. We have not had time to peruse through it.

Chief Justice: Even court has not seen it, who filed it and when?

Counsel Mohammed Mbabazi: We filed it this morning.

Chief Justice: Under what rule?

Counsel Mohammed Mbabazi: The civil procedure rule allows us.

Chief Justice: The filing in of the pleadings stopped yesterday. Why can’t we look at the presidential rules, we don’t have time.

Counsel Mohammed Mbabazi: We apply for leave under rule 6 of the civil procedure rules and with permission of the court, we can make oral submissions.
Counsel Enos Tumusiime: They (Mbabazi’s lawyers) might have served the AG but the second respondent (EC) has not been served.
Counsel Didas Nkurunziza: For the first respondent (Yoweri Museveni), this is the first time we are hearing about the amended petition.

Chief Justice: How are you going to make oral application and yet other parties have not been served? We are dealing with a presidential petition and it has timelines which this court has no control over, court does not have that time.

Counsel Mohammed Mbabazi: My understanding is that we still have time in which to file affidavits and I thought in that same time, court would accommodate us.

Chief Justice: Yes, but if you have filed a new petition.

Counsel Mohammed Mbabazi: We have not filed a new petition.

Chief Justice: But it’s rumoured that you have filed one.

Counsel Mohammed Mbabazi: Whereas we have vigorous rules, we can’t deal away with rights.

Chief Justice: Mr Mbabazi, I don’t want to go into arguments, if the law says we have 30 days to dispose off this petition, we shall go into a short recess and let counsel consult your colleagues. How much time do you need?

Mwesigwa Rukutana: 30 minutes.
Chief Justice: In the meantime, you also look at the new petition.

[Court adjourns with the justices making their way out of the court room. After a wait of about 40 minutes, the court reconvened.]

Mwesigwa Rukutana: My lords, the appearance is as before.

Counsel Enos Tumusiime: My lords, we hard interparty consultations, we now want to know from the lawyers of the petitioner whether they are withdrawing the amended petition or they are continuing with it.

Counsel Akampurira: It’s true that we had consultations with fellow counsel of the opposite side but we didn’t agree on the question of withdrawing the amended petition.

We have also consulted with our colleagues and the petitioner (Mbabazi) and we have agreed that if they (respondents Museveni, EC and AG) want to make an objection, they should make it formally and we reply to it and court makes its ruling.

Chief Justice: Mr Akampurira, go ahead and make your application.

Counsel Mohammed Mbabazi: The Presidential Elections Act gives the petitioner (Mr Mbabazi) the right to amend without seeking leave.

Chief Justice: Is there time given in that rule?

Counsel Mohammed Mbabazi: Yes, 14 days and we have filed this amendment within 12 hours after the first respondent (Yoweri Museveni) responded to it.

Chief Justice : Let me get it right, do you mean you filed an amended petition after seeing someone’s answer?

Counsel Mohammed Mbabazi: Yes, some of the answers.

Chief Justice: You, Mr Mbabazi, go ahead and make your application.

Counsel Mohammed Mbabazi: We now seek to argue the amended petition on the file so that the issues can be sorted out by the court.

Chief Justice: What are those special circumstances involved in this?

Counsel Mohammed Mbabazi: Justice of the case requires that you allow this application. Even rule 6 (20), the key words are for purpose of determining the controversy. We pray that you allow this amended petition that is already on record of court so that we can proceed.

Counsel Enos Tumusiime: Counsel for the petitioner has concluded that there is an amended petition on the record, the copy we have is not even signed by the registrar of the court and even the court fees are not paid. Putting that aside, we are dealing with a serious civil matter.

Let me take you to Article 104 of the Constitution and specifically, Section 3 that demands an inquiry into the petition within 30 days from the date of filing the petition.

My lords, I need to add that we have strict timelines that are in the Constitution.
There is no provision for the amendment in article 104, (2) (3) or anywhere in the Constitution.

Secondly, there is no provision for the extension of time. The Constitution has set time limits and any attempt to go outside these time lines is unconstitutional and we submit that you don’t allow it.

For the time to be enlarged, it has to be in the Constitution and can’t be set by the court. Court can only extend when there are exceptional circumstances. They had earlier said they had made general statements, can these be exceptional circumstances? You mean the petitioner and his lawyers didn’t know about this at the time of filing before making these wild allegations?

Chief Justice: Even the Constitution provides that even if the time enlargement is given, the determination of the matter has to be within 30 days.

Counsel Enos Tumusiime: Further, the petition they are seeking to amend is not a simple amendment but a new petition with new prayers.

They have even asked for a vote recount. Our client, especially the first respondent (Yoweri Museveni), may not be got within two days to respond to this amended petition and yet time is ticking.

My lords, we have also been given an additional amended affidavit, meaning that the original affidavit of the petitioner (Amama Mbabazi) has been abandoned.
They are also looking for evidence and all this is prejudice to the extension of the trial. My lords, I will ask my colleague to supplement.

Counsel Didas Nkurunziza: My lords, It is incumbent on the petitioner to supply the particulars and this is not a license for the petitioner to amend his petition.

These rules are very strict, they don’t even provide for the petitioner to make a rejoinder. More importantly, this court has the powers to evoke the civil procedure rules but in the interest of justice and expedition of the proceedings, the application should not be allowed and it should be dismissed.

Mwesigwa Rukutana: My lords, I listened to the counsel of the petitioner that he is bringing in new evidence but I want to submit that it’s not necessary to amend the petition, they can do so by way of affidavits.

This application, my lords, is time-bound and it’s governed by the Constitution, we pray that you disallow the application and dismiss it with costs.

Counsel Mohammed Mbabazi: I have not heard them (respondent lawyers) quoting any rule barring the petitioner (Amama Mbabazi) from amending the petition. We are looking for substantive justice in this court. We need to present our case very well. There is no law that bars amendment of the petition, we are just on day seven and we are here to clean our house as we get ready for the trial.

Chief Justice: The court will deliver its ruling at 2:30pm.

After a second break of close to two hours, the justices returned, with the Chief Justice asking justice Eldad Mwangusya to read the ruling of the court.

Justice Eldad Mwangusya: The application to amend the petition was raised by Mohammed Mbabazi, counsel for the petitioner.

The proposed amendments were lodged into the court at 10am this morning but the lawyers for the respondents Enos Tumusiime, Mwesigwa Rukutana, Joseph Matisko, opposed the application to amend the petition, saying there is no law supporting this and that besides, this petition is time-bound.

We have considered the Constitution that requires us to inquire into this petition and have it determined within 30 days. The inquiry is important and we shall allow the filing in of the amended petition on grounds that the amended petition be served onto respondent parties before close of business today.

The respondents should have filed their responses by close of business on March 9.

Chief Justice: The hearing of the petition shall start on Monday March 14 and the Registrar will issue the necessary notices.

Arising from the ruling, we need to meet here again on Thursday at 10am to follow up on the agreed facts which we had hoped to cover today. In the meantime, the parties must continue to file the affidavits, if any. The petitioner has up to close of business on Wednesday and the petitioner should have filed the affidavits supporting the amended petition.

The respondents will have Thursday, Friday and Saturday to file in responses and if there are any rejoinders, they should be filed on Sunday so that the hearing can start on Monday.
Otherwise, the hearing should start on Monday with the merits of this petition.

Counsel Asuman Basalirwa: We want to bring to the attention of this court about the difficulties we are facing in getting evidence from our witnesses. Today, 13 of the petitioner’s witnesses were arrested as they went to the petitioner’s home. They include; Robert Ngobi, Betty Shefuko, Samuel Kiyaga, William Waiswa, Umar Kitimbo, Ronald Wasswa, Ben Kabii, among others. My lords, we are still compiling the list and the information we get is that they are now being detained at Kireka.
I know there is no witness protection scheme but since the learned Attorney General (Fred Ruhindi) is here in court, he should prevail upon security agencies to stop arresting and harassing our witnesses. That is our concern.

Chief Justice: Though I cannot establish the truthfulness of these allegations, court expresses concern that if anybody is being arrested without a just cause, the AG should advise them. I think that is it for today, we meet on Thursday. Our hands are tied as we have to make a decision by March 31.
Court adjourns.

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