Who is fooling who? NRM picks another legal battle with Mbabazi

KAMPALA.

The National Resistance Movement party and former prime minister Amama Mbabazi are at it again. We are back to square one, boxed in legalese, legalese and more legalese.
The legal circus continues, ringing in the minds of literature lovers of legendary writer Charles Dickens’1838 play Oliver Twist wherein Mr Bumble, the dejected spouse of a bossy wife, is told in court, “…the law supposes that your wife acts under your direction.” Pressing his hat in both hands and gnashing his teeth, Bumble retorts, “If the law supposes that, the law is a ass- a idiot.”

An ass is the rather colloquial reference for a donkey which has a character for being stupid and the inflexibility in application of the law is the mother of this phrase.

In an internal memo seen by this newspaper, NRM legal officer Mr Mubarak Kalungi argues that Mr Mbabazi must first completely strip himself of NRM membership, by among other things, returning the party card. Short of that, the deposed NRM secretary general, who last week picked nomination forms to run for President, according to the memo, cannot consult as an independent presidential candidate when he still subscribes membership to the ruling party.

Kalungi does not cite any law save for his party rules with very loose interpretations such as an implied requirement to pay allegiance to the party and support the official candidate.
Mr Kalungi argues, “Mbabazi cannot consult any party member on his presidential bid as he plans to do simply because the party on July 31 officially got a sole candidate implying that he is now the party’s sole candidate who can interact with the party members over his candidature and not any other party member.”

For Mbabazi to enjoy his right to consult as provided for under section three of the Presidential Elections Act, he must, according to NRM’s legal office, do two things: One is to return the NRM membership card so, “he ceases being NRM to ably go independent. By returning the card, Mbabazi would lose his seat and going independent automatically makes him lose the seat.”

This is grounded in the party’s belief that any attempt by Mbabazi to consult while still a member of the party will, “put him in breach of the party code of conduct specifically rule four which bars any member or leader of NRM from campaigning against the official candidate of NRM.”

Local Government minister Adolf Mwesigye, one of NRM’s legal minds, has already indicated an intention to challenge Mr Mbabazi in court on similar grounds although there does not seem to be unanimity on this course of action.

NRM deputy spokesman Ofwono Opondo when contacted for a comment said, “My political opinion doesn’t matter when somebody has gone to court. Talk to Adolf.” Appearing on NBS TV last week, Mr Ofwono passionately discussed the futility of picking on the next legal battle. He actually saw no reason for a legal battle, arguing the impasse, if any, should be finished on the political turf.

Opondo’s take seems to resonate with other top legal minds in the NRM who when contacted, preferred not to be quoted, for fear of being misunderstood.

Upon perusing Mr Kalungi’s legal opinion, our sources in and out of NRM wondered what law he was reading and ridiculed their peer. One of them said, “I don’t see any legal dispute. If Mbabazi wants to leave he can do so, there is no contradiction.
He can’t be forced to remain if he has left the party.” According to the source, Mr Mbabazi’s de facto legal status accruing from his actions, are nothing short of a man who has clearly disembarked from the ‘Yellow Bus’, the NRM party symbol.

In Islamic family law for instance, one of the ways a man can divorce his wife is by simply saying, three times, “talak! talak! talak!”. That is Arabic for “I divorce you, I divorce you, I divorce you.” Those words are tantamount to a divorce and to demand that such a man play to and by the rules of a marriage he has let himself loose from, would be legally unsustainable.

In the 2010 case of Julius Maganda Vs NRM, Justice Stephen Musota held, “In the instant case, the applicant unequivocally opted out of the NRM party on his own volition and opted to move on as an independent, adding, “…the applicant cannot be an independent and at the same time be a member of the NRM party. The applicant’s decision to opt out of the NRM and stand as an independent drove the applicant’s case into the silent limbo of legal mootness. This immediately erased his membership of the NRM party.”

Of course the other argument is why Mr Mbabazi continues to hold his Kinkizi west MP seat yet he has lost his NRM membership but that is debate for the parties that feel aggrieved and which remains unresolved in the Supreme Court matter between the four ‘rebel MPs’ expelled by their party and NRM.

Another insider who spoke on condition of anonymity also laughed at the assertion that Mbabazi must return his party card before he can enjoy his rights as an independent candidate.

“There is no requirement that demands him to return his party card. Kizza Besigye and others who walked out were never asked to first return those cards. Clearly, he has left NRM and should not be pursued and forced to comply to NRM rules,” he said.

Mr Mbabazi’s lawyer Fred Muwema in an interview with Daily Monitor said, “the law governing nomination of presidential candidates is found outside the NRM rules. Section 10 of the Presidential Elections Act requires one to pick nomination papers and spells out how he intends to be a candidate. Once that is satisfied he is given nomination forms.”

Mr Muwema’s argument revives the debate, a disgraceful debate to have really, in which Mbabazi became a subject only recently when police and Electoral Commission functionaries demanded that he first harmonise his presidential aspiration with the party rules before he can consult. This demand, his team argued persuasively, was out of touch with the law as it contravened an act of Parliament and the Constitution which take precedence over the party rules.

Kalungi and Mr Mwesige’s insistence that Mbabazi play by the NRM rules when his actions are in consonance with the national laws, their own colleagues in the NRM’s legal circles say, “is most outrageous and a reading of the law upside down with a political rather than legal lense.”

“If you were previously engaged with a party is not a fact that you are required to inquire into because ultimately picking the nomination forms culminates into presidential candidature. The party has no power to strip you of independent candidature,” Muwema says.

The ruling party, Muwema argues, is however free to privately sanction him and take disciplinary action but not over step its mandate and interfere with a national body because presidential nomination is outside the party.

Throughout our interview, Muwema, just like Mbabazi’s other legal mind, Mr Severino Twinobusingye kept saying, the legal battle NRM has picked, “is a non starter. It is a very small issue which doesn’t worry us. Actually our client is now busy soliciting signatures for his presidential bid across the country in preparation for the journey to State House. He has no time for non-issues at this juncture.”

It appears, the legal view within the NRM that Mr Mbabazi be challenged in the courts of law, is the handiwork of a few individuals whom sources in the secretariat, preferring to speak off record, claim is, “a move to … tap into campaign monies …. There is clearly no legal dispute to give us sleepless nights.”

Whichever way the legal see-saw goes, whether the matter comes up in courts of law which set a precedent in the Maganda matter to the effect that he who goes independent automatically quits the party, and therefore cannot be bound by party rules, the divided opinion even in the fringe NRM legal circles points to an uncoordinated movement of troops, divergence of interests and puts on the spot a party that continues to grapple with harmony in its top echelons.