Justice Kisakye’s dissenting judgment in Bobi petition

This photo taken on March 18, 2021 shows Justice Ester Kisakye of the Supreme Court reading her minority judgment in the petition filed by former presidential candidate Robert Kyagulanyi. PHOTO/ ABUBAKER LUBOWA

What you need to know:

  • "The first respondent is the incumbent president. He has been in power for 35 years with an established party structure which is in place and which has not suffered any disruptions or closures as were suffered by the applicant’s party at the expense of the State organs,” said Kisakye.

Justice Ester Kisakye of the Supreme Court has disagreed with eight Justices in their decision on two applications arising from presidential election petition by former Presidential candidate Robert Kyagulanyi alias Bobi Wine. 
Mr Kyagulanyi petitioned the Supreme Court seeking to overturn President Museveni’s victory in the January 14 presidential poll. At the start of the petition hearing, Mr Kyagulanyi first filed an application seeking to be given more time to amend his petition and introduce new grounds.  He filed another seeking to file additional affidavits and another seeking to withdraw the whole petition.
Mr Kyagulanyi argued that there were unusual circumstances including the fact that his lawyers were operating mobile law firms due to insecurity and fears that state operatives may steal the evidence. He also argued that state operatives seized their political party offices which made it difficult for him to file relevant affidavits and evidence in support of his petition on time. 
On Thursday, the two applications were dismissed by the eight Justices led by Chief Justice Alfonse Owiny-Dollo on grounds that a presidential election petition cannot be amended due to its strict timelines within which it should be determined.
However, in her dissenting judgment read to Kyagulanyi's lawyers, Justice Kisakye said that the reasons advanced by Mr Kyagulanyi were more than unusual circumstances and therefore, all his applications should have been allowed.  She noted that it was not right for the Attorney General to argue the way he did on the strict timelines because the issue of amending petitions has happened before in the Presidential Election Petition of the Amama Mbabazi and therefore, it cannot be unlawful.
"The respondent disputed the evidence that some of the applicant's witnesses were locked up and contended that the applicant should have produced the list of witnesses who are in prison and that since they did not produce it they stated that the evidence should not be believed. With due respect to submissions of counsel for the respondent I found no merit in their contention. The applicant knows his witnesses from whom he needed statements and evidence and where he needed to access them to obtains evidence to bring to court in support of his application....the respondents had no basis to dispute the applicant's claims," she said.

READ: Drama at Supreme Court as judges clash over Bobi case

She added that although the extension to file additional evidence was going to have an impact on the roadmap of court, the respondents who were the majority opted to ignore the fact of when those provisions were enacted and the constitution amended.  

But to Kisakye, whereas the law says that the matter should be determined within 45 days from the date of filing, this requirement didn't impose on the Supreme Court the duty to ignore the unconstitutional and unlawful acts as declared by the High Court to the detriment of the Kyagulanyi.  

"The restrictions on the movements of the applicant as pleaded in his affidavit and as confirmed by High Court more than constituted the special circumstances which were envisaged under rule 17 of the Presidential Election Rules," she said.  

Court also heard that the fact that the evidence was ready by February 14 and the country is under curfew, coupled with the siege of NUP offices, the shutdown of the internet for five days and Kyagulanyi’s house arrest, it was impossible that the time was sufficient for him to do all that was required.
To Justice Kisakye, the rest of the Justices should have allowed the applicant to file additional evidence which was ready on the morning of February 15, 2021 when the deadline was on February 14, 2021.
She added that there is a principle that the mistake made by the lawyers should not be blamed on his client like the majority of the Justices did yet Kyagulanyi had already lost 10 of the 15 days.

"The applicant's Counsel was not able to deliver all the evidence in the time prescribed for a variety of reasons some of which were submitted by Counsel [Medard] Sseggona. By the majority attributing the mistakes of counsel to the client the court was reversing its decisions without giving reasons,” said Kisakye.

On the issue of Kyagulanyi's witnesses being arrested by the State, Justice Kisakye dismissed the arguments by the respondents saying that he should have brought evidence of the list of who was arrested and taken where and by who.
She noted that the argument lacked merit because Mr Kyagulanyi knew who exactly his witnesses was and where they were and that the respondents were talking about matters that they didn't know about.  
"The first respondent is the incumbent president. He has been in power for 35 years with an established party structure which is in place and which has not suffered any disruptions or closures as were suffered by the applicant’s party at the expense of the State organs,” said Kisakye "  

According to her, the Electoral Commission and Attorney General also have nationwide offices throughout the country and it didn't make any sense when they said that Mr Kyagulanyi's witnesses should have been in Kampala for them to file their responses to additional evidence he wanted to file.

Since the application for the withdrawal was consented to, Justice Kisakye said she was not going to say much about it. She noted that what Mr Kyagulanyi went through was unconstitutional and in the interest of justice and fairness Museveni, Electoral Commission and Attorney General shouldn’t have asked for costs.