How court is moving to stop cat and mouse games by MPs frustrating election petitions

A man casts his ballot at a polling station on Luwum Street, Kampala City centre, on January 14, 2021. PHOTO/ FILE

What you need to know:

  • In an unusual move, the Court of Appeal recently ordered its ruling to be circulated to all WhatsApp groups of advocates. Derrick Kiyonga writes about what made the court take such an uncommon directive.

Once the 2021 General Election ended, those who were aggrieved by the outcomes, more so at the parliamentary level, poured into courts but a year later it seems circumvention of court service has stood out as the most sticking issue, putting the Judiciary between a rock and a hard place. 

High Court last year let Mr Muhammad Ssegirinya, the incarcerated Kawempe North Member of Parliament (MP), off the hook when it dismissed a petition filed by Sulaiman Kidandala challenging his election on grounds of “ineffective service”.

Section 62 of the Parliamentary Elections Act states that for effective service, a “notice in writing of the presentation of a petition accompanied by a copy of the petition shall within seven days after the filing of the petition be served by the petitioner on the respondent or respondents as the case may be”.

The interpretation of this section is that complainants must serve the respondents personally, and this means looking for them wherever they are, something that has turned into a cat and mouse game.

Mr Kidandala, who wanted Mr Ssegirinya ousted out of Parliament on the account that he allegedly used phony academic documents, wanted to serve Mr Ssegirinya personally but he couldn’t do it because the legislator was already on remand in Kitalya prison, having been charged and remanded over “holding illegal assembly” and “inciting violence”.

High Court judge Emmanuel Baguma ordered that by way of “substituted service” Kidandala should serve Ssegirinya through the officer in charge (OC) of Kitalya prison.

The OC, it turned out, refused to receive the papers and Kidandala’s electoral petition didn’t see the light of the day as it was later thrown out by Justice Henrietta Wolayo.
“An examination of the affidavit of service of Kato Fred [court process server] shows that his focus was on the respondent in the petition and at no point did he mention any attempt to require the OC to endorse the petition and stamp it with the official stamp as duly served,” Justice Wolayo ruled. 

Service on the OC would have been construed as effective service even if the respondent had declined to accept service. This means that even if the process server did visit the prison, he did not affect service in the manner ordered by the court.

With Ssegirinya facing murder charges, Kidandala withdrew his appeal on sympathy grounds.

“The appellant has decided to withdraw the above election petition having lost interest to prosecute the same for a number of reasons. But most of all the continued incarceration of the first respondent has portrayed the appellant as if he is on the side of the tormentors,” read a letter written by Kidandala’s lawyers of Alaka and Company Advocates addressed to the registrar of the Court of Appeal.

While Kidandala’s petition faced headwinds even before it was substantively heard by High Court, that of James Kyewalabye Sitingo, which was challenging James Kubeketerya’s victory in Bunya East consistency, was heard by Justice Isah Sserunkuuma who dismissed it.

Sitingo’s troubles started when he appealed the decision on November 9, 2021. Sitingo, court records show, was only able to serve the notice of appeal to the Electoral Commission (EC), which he had listed as the second respondent, but he couldn’t serve the main target, the elusive Kubeketerya.

On December 16, 2021, in accordance with court rules, Sitingo filed a memorandum of appeal in the Court of Appeal, but as was the case with the notice of appeal, Kubeketerya evaded service while the EC received the same.

On November 18, 2021, Sitingo filed an application asking the court to allow him more time to serve Kubeketerya the notice of appeal and memorandum of appeal. He also asked the court to allow him serve Kubeketerya through two dailies: Daily Monitor and the State-owned New Vision.

The major grounds of Sitingo’s case were that efforts to effect personal services on his rival had failed as he could not be located at his known residence at Kyaliwajjala, Mbalwa Road, in Kira Municipality. Nor could he be found at his parliamentary office located in Room E534, Kingdom Hall, in Kampala.

Even efforts to serve Kubeketerya, Sitingo said, through the Speaker of Parliament and the advocates who represented him at the lower court – Muzuusa and Company Advocates and Wagabaza and Company Advocates – were futile as all of them declined service.

Specifically, Sitingo said, Kubeketerya’s lawyers rejected service insisting that they had not received such instructions. 

Using Ali Kyambadde, a court process server attached to both High Court and Court of Appeal, Mr Sitingo delivered the documents to the chambers of Muzuusa and Co. Advocates in the eastern city of Jinja.

The receptionist at the law firm, Sitingo told the Court of Appeal, rejected the documents following a phone conversation she had with one of the advocates at the firm. 

Kyambadde on diverse dates delivered the court documents to Wagabaza and Company Advocates but the receptionist, having consulted with an advocate of the law firm, rebuffed service on grounds that they had no instructions.

Kyambadde’s next course of action was to pursue Kubeketerya at his residence and parliamentary offices, but still he proved elusive. The last option, according to court documents, was to get Kubeketerya’s phone number.

With the legislator not picking up calls, Kyambadde dispatched the court documents through social media platform WhatsApp which showed a “blue tick” which, according to the process server, was indicative that Kubeketerya had seen the papers via WhatsApp.

“As we have already stated hereinabove, the first respondent [Kubeketerya] did not file any affidavit to rebut the applicant’s evidence. The applicant’s [Sitingo] evidence in support of his claim that personal service of the notice of appeal and the memorandum of appeal upon the first respondent was frustrated by the first respondent [Kubeketerya] remained unconverted,” ruled justices Elizabeth Musoke, Muzamiru Kibedi, and Monica Mugenyi.

Justice Elizabeth Musoke. PHOTO/FILE

“We find that the deliberate actions on the part of the first respondent [Kubeketerya] to fail or frustrate personal service of court documents on himself, or rejection of service of his counsel, constitutes sufficient reason for the extension of time under Rule 5 of the rules of this court.”

Though lawyers had denied having instructions from Kubeketerya when Sitingo’s applications seeking alternative service and extension of time came up for hearing, they turned up in court, leaving the justices no option but to call them out.

“We have noted that the challenge of service of court documents in the instant matter was aggravated by the refusal of the advocates who represented the first respondent [Kubeketerya] in the High Court and their staff to accept service of the notice of appeal and the memorandum of appeal allegedly because they had no instructions to receive service of court documents are the same advocates who represented the first respondent [Kubeketerya] during the hearing of these applications and the appeal itself,” they ruled.

Service of the notice of appeal, the three justices said, is governed by, among other things, Rule 78(2) of the Court of Appeal rules which states: “Where any person required to be served with a copy of a notice of appeal gave any address for service in or in connection with the proceedings in the High Court and has not subsequently given any other address of service, the copy of the notice of appeal may be served on him or her at that address, notwithstanding that it may be that of an advocate who has not been retained for the purpose of an appeal.”

No specific instructions, the justices ruled, are needed to be given to the advocate, advocate’s partner and clerk by the intended respondent before they are legally competent to receive service of the notice of appeal on behalf of their client.

“Refusal of the advocate or his partner or clerk to accept service on behalf of the intended respondent is inconsequential and cannot stall the wheels of the appellate process for as long as no other service has been filled in this court,” they ruled.

According to the justices, the practice by advocates to refuse service has played a role in increasing the case logjam in the Court of Appeal and other courts are grappling with.

“To permit advocates to refuse service of court documents under the guise of ‘I have received no instructions’ is bound to frustrate the operations of this court. It’s bound to contribute to the increase of the case workload currently being experienced by this court through the filing of unwarranted or otherwise avoidable applications related to service of documents of the appellant process,” the justices ruled.

They added: “The fact that we have had to first deal with two applications about this subject of service of court documents before proceeding to deal with the substantive appeal is a clear testimony of this. Court’s workload would have been reduced and the justice dispensed more expeditiously if it were not for some of these glaring misconceptions on part of counsel and failure to advise their clients appropriately.”

In future, the justices warned, advocates who disregard the rules as to service of court documents will be held personally accountable by ordering them to pay costs resulting from such applications.

“Accordingly, we direct the registrar of this court to serve copies of this ruling onto the Attorney General of Uganda, the director of Law Development Centre, the president of Uganda Law Society, and the secretary of the Law Council so that they can in-turn disseminate it to their respective constituents. The registrar should also post a copy of this ruling onto the WhatsApp groups of the advocates of this court [Court of Appeal] and the High Court,” they ruled.

Though some legal experts welcomed the Court of Appeal ruling in Kubeketerya’s case, they said they await to see how the court will rule on those who are accused of evading services at High Court.

“I had cases where we had to use a lot of resources to pursue a respondent. I think the problem is at  High Court where you are yet to establish even the lawyers of the respondent so they can easily frustrate a petition.

We shall see how the Court of Appeal handles that because going with what we have, people will defeat electoral petitions by just hiding,” said constitutional lawyer Peter Walubiri.

Court of Appeal will soon deliver a ruling in which National Unity Platform (NUP) party’s Fred Nyanzi Ssentamu accuses Kampala Central MP Muhammad Nsereko of dodging service in the bid to defeat his main electoral petition. 

Unlike Kubeketerya who dodged service at the appeal level, Nsereko is accused of eluding service from the very start. 

“We made written submissions sometime back and we are waiting for the ruling,” Mr Nyanzi said.  Nsereko, who has denied any wrongdoing saying he was out of the country, didn’t take our repeated calls.

Ruling ... Posting in WhatsApp groups.  
Accordingly, we direct the registrar of this court to serve copies of this ruling onto the Attorney General of Uganda, the director of Law Development Centre, the president of Uganda Law Society, and the secretary of the Law Council so that they can in-turn disseminate it to their respective constituents.

The registrar should also post a copy of this ruling onto the WhatsApp groups of the advocates of this court [Court of Appeal] and the High Court,’’ ruled justices Elizabeth Musoke, Muzamiru Kibedi, and Monica Mugenyi.

Electoral reforms 
Following concerns that some litigants were using election petitions as a pretext to prolong their stay in Parliament, the Judiciary and Parliament instituted a raft of reforms to expedite the process. 

For instance, once the hearing of an election petition starts, the judge has 30 days to render judgment, all parliamentary election appeals end in the Court of Appeal, not the Supreme Court as the case was before 2011, and the Court of Appeal usually has six months to dispose of all the appeals.

According to court records, while 33 petitions were filed in respect of the 1994 Constituent Assembly elections, 38 were filed in 1996. In 2001, 46 parliamentary petitions were filed while in 2006 the number soared to about 75. 
In 2011, the number rose to 100 parliamentary petitions. In 2016, they surged to 118 petitions but 2021 saw a dip with 92 petitions filed. 
 

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