Kaguta, Kutesa case thrown back to NRM

The High Court has overruled the National Resistance Movement (NRM) party decision not to choose a flag bearer for Mawogola North Member of Parliament race and asked the petitioner, Mr Aine Godfrey Kaguta, alias Sodo, to go back to the party leadership to resolve the matter.
In his ruling yesterday by email to all parties, Justice Musa Ssekaana rubbished the decision of the NRM’s Election Disputes Tribunal and secretary general, saying it was illegal and unconstitutional.

“Under judicial review proceedings, once a decision has been proved to be illegal, the resulting effect of certiorari [review process] would, therefore, be to quash the said illegal decision and deprive the said decision of any effect whatsoever,” Justice Ssekaana ruled.
“This court issues an order quashing both decisions of the 1st respondent (NRM Election Disputes Tribunal) and that of the secretary general since it was based on an illegal decision of the Election Disputes Tribunal.” 

He added: “The facts as presented clearly indicate that the person who made the decision as he stated in his affidavit in reply, indeed never heard the parties. This is a total breach of the duty act fairly and thus puts the said decision in question for being illegal and in breach of rules of fairness as enshrined in both the national Constitution as well as the NRM Constitution.”

Mr Kaguta, the younger brother of  President Museveni, is contesting the party’s failure to declare a flag bearer for Mawogola North and allowing both him and his rival Ms Shartsi Nayebare Musherure to stand as independents. 
Ms Musherure is a daughter of Foreign Affairs minister Sam Kutesa who relinquished the parliamentary seat after 30 years.

“The court cannot substitute an alternative decision for that of the decision-maker. In many circumstances, the decision maker will be free to reconsider the matter and make a fresh decision (which may even be the same as the original decision), provided that in doing so he/she does not repeat the error or make any further reviewable errors,” the judge added.

The court ordered NRM and Musherure  to pay costs of the petition to Kaguta.
The judge also scorned the October 15 statement by the NRM’s Elections Disputes Tribunal that it was unable to pronounce a winner of the hotly contested primaries for Mawogola North flag bearer before it sent the matter to the party’s Central Executive Committee (CEC) for further decision.

He quashed the contents of the letter written by the NRM secretary general,  Ms Justine Kasule Lumumba, in which she notified the national Electoral Commission that the NRM would not endorse any candidate to carry its flag for the position of MP for Mawogola North.
When Daily Monitor contacted Mr Ofwono Opondo, the government spokesperson, he said they will abide by the court ruling but added that the party has already decided on the matter-- not to have a flag bearer for Mawogola North.

“NRM party will not have a candidate for Mawogola North constituency and this is not the only constituency where the party does not have a candidate. I think in Isingiro Municipality, we don’t have a flag bearer over similar reasons. You cannot force NRM to have a party candidate,” Mr Opondo explained.
On November 23, Kaguta sued NRM for not endorsing him as the party’s flag bearer for Mawogola North for 2021 general polls yet he had won the primaries.
Kaguta wanted court to declare him as the party flag bearer for Mawogola North.

After the party declared him as winner of Mawogola North primaries, Ms Musherure challenged the results before the party’s Elections Disputes Tribunal. Later, the party leadership failed to declare any of the two as the winner to carry the party flag. Kaguta and Ms Musherure were asked to run as independents.