Electoral Commission (EC) officials have dismissed as baseless, bad in law and an abuse of court process an application for judicial review by members of the ‘peoples government’ seeking orders to, among others, remove EC chairperson Simon Byabakama from office.
The 14 applicants led by Kampala Lord Mayor Erias Lukwago have also petitioned court arguing that EC secretary Sam Rwakoojo is illegally in office since his final term expired in September.
The other applicants include Forum for Democratic Change (FDC) party president Patrick Oboi Amuriat, former legislators Proscovia Salaamu-Musumba, Wafula Oguttu, Jack Sabitti, Oduman Okello, Mukono Municipality MP Betty Nambooze, Ingrid Turinawe, Nakawa MP Michael Kabaziguruka and KCCA councillor Doreen Nyanjura, among others.
The applicants jointly sued the EC, Mr Rwakoojo and Mr Byabakama.
In their sworn reply, the respondents through their lawyers K&K Advocates formerly Kiwanuka & Karugire Advocates argue, among other things, that the application by Lord Mayor Lukwago and others is time-barred and thus barred by law, that the applicants have not exhausted the existing remedies.
They state that the application was filed on November 29 about two years from the January 7, 2017, when Mr Byabakama was appointed chairman of the EC.
They further state that the orders sought by the applicants would stifle the operations and management of the commission, render it unmanageable and affect the organisation of a national election in time as required by law.
“The application is misconceived in as far as it is disguised move to cause the removal of the chairperson of the Electoral Commission without following the statutory process laid down in the Constitution and the Electoral Commission Act,” the respondents contend
They add that the application is misconceived in as far as the applicants seek the inclusion of prospective voters as speculated on the National Voters Register contrary to the provisions of the law and the existing legal regime, an illegality which the court of judicial review cannot condone.
What they say...
Mr Rwakoojo states that the applicants’ challenge of his position is not a decision making process challengeable by way of judicial review and that it is disguised as a matter for constitutional interpretation or statutory interpretation which is not a matter of judicial review.
Mr Byabakama says that he was duly appointed on January 7, 2017, as chairman of Electoral Commission and that his personal file was moved from the Judiciary to the EC.
He also contends that immediately upon his appointment, he ceased performing the functions of a Justice of the Court of Appeal and stopped earning salary from theJudiciary.
On his part, Mr Rwakoojo contends that an amendment was made in 2010 to the Electoral Commissions Act which introduced a provision that the secretary shall hold office for a term of five years, renewable once.
He argues that on August 12, that he wrote and indicated his willingness to have his contract renewed for the second and last term.
On August 20, he says, the EC sought the opinion of the Attorney General on whether his contract was renewable in view of the amendment of Section 5 of the Electoral Commissions Act.
Attorney General's position
In Deputy Attorney General Mwesigwa Rukutana’s opinion, Mr Rwakoojo’s contract, which run from 2009 to 2014, was not affected by the amendment as the law did not act retrospectively. Mr Rukutana argued that Rwakoojo’s contract was renewable once from 2019.
Mr Rwakoojo’s contract was consequently renewed from November 6 for a period of five years starting next week on December 18. In a letter renewing Mr Rwakoojo’s appointment, Mr Byabakama indicates that he will receive an annual salary of Shs300m or a basic monthly salary of 25m, and Shs2.7m housing allowance. Other perks include body and home guards and a chauffeur- driven vehicle.
Mr Rwakoojo has been at the helm of Uganda’s elections for close to two decades despite, previously, being declared unfit for the position.
In 2002 a select committee of Parliament found that Mr Rwakoojo “did not have the relevant qualifications” to hold that position. Similarly, the Public Service Commission had in 2001 raised queries questioning his suitability to lead EC’s daily operations with Mr Patrick Muzaale, the Public Service Commission chairperson, arguing that Mr Rwakoojo not only lacked the relevant experience but had been fronting a foreign company that did business with EC.
He has since served under three respective commissions including that of Mr Aziz Kasujja, Dr Badru Kiggundu, and now Mr Byabakama.