This is a ruling on an application brought by Erias Lukwago against the Attorney General, the Electoral Commission, Kampala Capital City Authority and Badru Kiggundu as the first, second, third and fourth respondents respectively. Lukwago’s application arises out of Miscellaneous Application 451 of 2013 which arises out of Miscellaneous Application 445 of 2013 which arises out of Miscellaneous Cause 362 of 2013.
Mr Lukwago prays for orders that:
A temporary injunction is issued against the respondents restraining them from acting in contempt of a court order by declaring the seat of the Lord Mayor vacant and organising a by-election for the position of Lord Mayor pending the final determination of Miscellaneous Cause 362 of 2013;
Kiggundu, the chairman of EC, be arrested and detained in civil prison for disobeying a court order and; costs.
Lukwago’s application is supported by his own affirmation as well as affidavits of Kiwanuka Abdallah and Sewanyana Allan.
All the respondents oppose the application in affidavits sworn by Cheborion Barishaki for AG, Lugolobi Hamidu for EC and Kiggundu and Caleb Mugisha for KCCA. In sum, the respondents contend:
That the application is without merit.
That they have not defied any court order stopping the by-election set for 17th April 2014.
That Lukwago is no longer Lord Mayor for Kampala.
The EC submits that the vacancy in the office of the Lord Mayor was neither declared by the EC nor Kiggundu. That the process of the by-election started after KCCA in a communication of 26th November 2013 notified the EC of vacancy of the Lord Mayor’s office. That the EC is executing its constitutional mandate. All the respondents want costs for this application.
Summary of events
Miscellaneous Cause 362 of 2013 was filed in the High Court along with Miscellaneous Applications 445 and 451 in November 2013; Miscellaneous Cause 362 was for judicial review of the Catherine Bamugemereire Tribunal report which found Lukwago guilty of abuse of office and other actions.
Miscellaneous Applications 445 and 451 were for interim injunction and temporary injunction respectively;
On 20th November 2013, the AG was served with all three applications with Misc. Application 445 fixed for hearing on Monday 25th November 2013 at 10:00am; On 21st November 2013, the Minister for Kampala, Frank Tumwebaze sent out a notice of meeting for KCCA councillors for 25th November 2013 at 9:00am;
The KCCA meeting and the court hearing of Miscellaneous Application 445 were therefore on the same morning of 25th November 2013.
According to the record of proceedings, by 8:45am on 25th November 2013, Lukwago had filed another Miscellaneous Application 454 for an interim order to stop the KCCA meeting at 9:00am pending hearing of his application fixed at 10:00am that day.
The court hearing and the KCCA meeting were both concerned with the removal of Lukwago from office, so it appears from the record of proceedings that Miscellaneous Application 454 of 2013 was made to avoid making the hearing of Miscellaneous Application 445 at 10:00am nugatory and control this mischief.
The purpose of Miscellaneous Application 454 was for an interim order stopping the KCCA meeting and it was granted; The record of proceedings shows that although it was an exparte application (one sided), Mr Mwambutsya for the AG and KCCA was present for the hearing of Miscellaneous Application 454 on the morning of 25th November 2013 and he was heard before the application was granted;
By the time the interim order was signed Mr Mwambutsya, for AG, had left court; Sewanyana showed the minister a copy of the interim order of 25th November 2013 during the KCCA meeting and the minister said it was unauthentic for it was not signed, stamped or sealed. Following the KCCA meeting, the minister notified the Executive Director KCCA --Jennifer Musisi-- of the removal of Lukwago from the office:
Following this, Musisi notified the EC of the vacancy in the office of Lord Mayor; as a result the EC is in advanced stages of organising a by-election to replace Lukwago as Lord Mayor.
Analysis of evidence
The EC raised a preliminary objection. Counsel for EC Sabitti submitted that Lukwago has no cause of action against Kiggundu who is immune from civil action by virtue of the EC Act.
Mwambutsya concurred with Sabitti’s submissions.
Lukwago’s lawyer Abdu Katuntu countered that Sabitti was jumping the gun as he was submitting on the substantive issues raised by Lukwago in the application.