National Unity Platform (NUP) party leader Robert Kyagulanyi, alias Bobi Wine, will in the coming days reach a decision on whether to go all the way with the petition he filed before the Supreme Court challenging President Museveni’s re-election on January 14 or to withdraw it from court, Sunday Monitor has learnt.
The filing of the petition has been a matter of controversy within Mr Kyagulanyi’s camp, and the Opposition leader hinted this week that he could withdraw it if Chief Justice Alfonse Owiny-Dollo and two other Justices of the Supreme Court do not recuse themselves from hearing the matter.
This demand by Mr Kyagulanyi, which he made outside the courtroom – at a press conference at his party’s offices in Kamwokya, Kampala – led to a rebuke of the Opposition activist by the Chief Justice Owiny-Dollo when the Supreme Court sat over the petition on Friday.
Those who want the case withdrawn, sources say, argue that it is not possible to get the Supreme Court to disallow President Museveni’s victory.
One of the reasons they give for this – and Mr Kyagulanyi expounded on it at a press conference on Tuesday – is that a number of the judges to determine the case have associations with President Museveni and members of the ruling party (both past and present), which makes them unable to be impartial in the case.
The concerned Supreme Court justices have rejected this view but the claims persist.
Sources that have attended meetings in which the matter of withdrawing the case have been discussed have told Sunday Monitor that a decision to withdraw the case had been reached by Mr Kyagulanyi, but it was pegged back by his international allies, who have continually urged him to pursue the court processes to their conclusion.
The Supreme Court on Friday threw a spanner in the works when it rejected additional evidence which Mr Kyagulanyi’s lawyers said was contained in more than 200 affidavits to beef up their challenge to Mr Museveni’s re-election.
The affidavits were attached with evidential documents, audio and video compact discs (CDs) in four volumes.
The rejected documents included affidavits by Mr Kyagulanyi’s NUP party lawyer Benjamin Katana and party secretary general David Lewis Rubongoya, Mukono Municipality MP Betty Nambooze, and other sworn statements by jailed singer Ali Bukeni, aka Nubian Li, and veteran journalist Kalundi Serumaga.
On February 11, the court directed Mr Kyagulanyi’s lawyers to file their additional affidavits and evidence by February 14 but the time was overshot.
In a majority decision of 8-1 read by Justice Night Percy Tuhaise, the Supreme Court – which is the court of first instance for presidential petitions and also the final court – disallowed Mr Kyagulanyi’s application in which he had sought to be allowed extra time to file additional affidavits.
“We have given due consideration to the application and submissions of both counsel for the applicant and the respondents. This court disallows this application. Reasons will be contained in the detailed ruling,” Justice Tuhaise ruled.
Other justices who concurred with her include Chief Justice Alfonse Owiny Dollo, Dr Esther Kisakye, Stella Arach Amoko, Rubby Opio Aweri, Ezekiel Muhanguzi, Mike Chibita and Faith Mwondha.
The ninth judge on the panel, Paul Mugamba, disagreed with his colleagues.
The rejected new affidavits were delivered to court on Monday (February 15), a day after the court’s allocated time.
The Friday Supreme Court’s ruling was the third time that Mr Kyagulanyi suffered a setback in his bid to overturn Mr Museveni’s victory.
On February 9, the court unanimously dismissed his application seeking to amend his petition on grounds that the issues the amendment sought to introduce had already been raised in the original petition.
The former NUP flag bearer, who came second in last month’s race after bagging 35 per cent of the valid votes, petitioned the Supreme Court on February 1 to declare that Mr Museveni was not validly elected since the Electoral Commission (EC) did not follow the law in conducting the poll.
The court ruling followed submissions in which Mr Kyagulanyi, through his lawyers led by Mr Medard Sseggona, vainly asked the court to allow his client extra permission to file additional affidavits to support his petition.
In his submissions, Mr Sseggona had asked the court to allow his clients file the new affidavits out of time to enable the court to effectively interrogate the petition.
According to Mr Sseggona, while court gave directives within which to file their additional affidavits, a number of circumstances arose, which failed them to comply with the directives, including, among others, the arrest and detention of their witnesses, the NUP offices being under siege, making it difficult for them to get the required documents, as well as the insecure environment within which they operated.
“This evidence is important and the timelines are important too. It was envisaged and all efforts have been made to have them all commissioned. They are ready and await your (court) permission,” he said.
For President Museveni, lawyer Mr Kiryowa Kiwanuka asked the court to dismiss the application citing the dictates of the Constitution to investigate the matter within 45 days to avoid a possible crisis in the country.
He reasoned that the deadline for filing expired on February 14 and that there was need for parties to follow the court orders, failure of which is not a technicality.
“Counsel (Sseggona) was here when the orders were being made and agreed to follow but bringing 200 affidavits now would negatively impact on our client,” Mr Kiryowa argued.
He said Mr Kyagulanyi’s application presented falsehoods and lies and that the rules relied on to bring the application cannot apply to circumvent a court order.
Mr Kiryowa said Mr Kyagulanyi’s lawyers did not present sufficient explanation to court on why the failed to comply with the court order.
For the EC, Mr Joseph Matsiko argued that Kyagulanyi’s application was incompetent and disclosed no special circumstances and that it depicts falsehoods.
The setbacks that Mr Kyagulanyi’s legal team has suffered, especially with regard to not being able to file additional evidence, has in the opinion of many of his allies left the case rather weak, further arming those who are in favour of having it withdrawn.