Lawyers have warned of the looming dangerous precedent that courts are currently setting by dismissing election petitions merely on technicality of non-personal service.
At least two election petitions in the past two weeks have been dismissed on the technicality of non-service.
These include the petitions that saw Kawempe North MP Muhammad Ssegirinya and Muhammad Nsereko of Kampala Central, retaining their seats without going into the merits of the petitions against them.
Mr Jude Byamukama, a lawyer, warns that there are already decided cases by superior courts (Supreme Court and other courts involving Sitenda Sebalu Vs Sam Njuba and Rehema Muhindo Vs Winnie Kiiza), that election petitions shouldn’t be dismissed on merely condition of non-service.
“With such superior decisions that have already guided on the issue of non-service, the high courts, which are subordinate, shouldn’t be doing this.” Mr Byamukama warned yesterday.
His counterpart, Mr John Nsabirye, warned that if a petitioner demonstrated to court that they have failed to find the respondent within the given time to serve them personally, court should allow them serve through substituted service of media or the court’s notice board.
“As a legal practitioner, if you fail to serve somebody within the particular time and you demonstrate to court that you have failed to serve, they should give you an alternative of a substituted service,” Mr Nsabirye said yesterday.
He faulted Justice Philip Odoki in the Nsereko petition who rejected to grant Mr Fred Nyanzi Ssentamu a chance for a substituted service after he reported back to court that he had failed to trace Mr Nsereko at Parliament and at his home.
Mr Nsabirye also said Justice Odoki instead added Mr Nyanzi more seven days to look for Mr Nsereko for purposes of serving him in person, a move he said was a big toll on his side.
He warned that if this trend is not checked now, then it will open flood gates in the subsequent elections with parties whose victories are being contested, going into hiding to elude being service.
“For Nsereko, Justice Odoki instead of giving him a substituted service after they failed to locate Mr Nsereko, he just added him more time which was not right according to me,” Mr Nsabirye said.
“But courts should be liberal because this issue of personal service, the defendant may decide to stay in their house for the period they are supposed to be served and frustrate the other party and yet the intention of the law is not to frustrate the petitioner,” he added.
Another lawyer in private practice, who preferred anonymity, lashed out at the Judiciary for appointing junior judges to handle the election petitions.
“I think the blame should go to the Judiciary for picking recently appointed judges to handle election petitions who might not have enough experience to fairly handle them. Haven’t you realised that more than half of the judges appointed to handle the petitions are new?” the lawyer said.
Mr Nyanzi has since vowed to appeal to Court of Appeal, saying he effected service on his political rival.
Likewise, Mr Suleiman Kidandala Serwadda, who had sought to have Mr Ssegirinya’s victory overturned over academic qualifications, has since also vowed to appeal.
Mr Jamson Karemani, the Judiciary spokesperson, yesterday said courts allow substituted service as long as there are convincing reasons.
“It is not true, if substituted service is allowed, it must be fulfilled as ordered not doing contrary things as we saw in many of the cases. Substituted service is an exception which is applied as a last resort. The primary is personal service.”
Highlights in dismissed election petitions
Nyanzi Vs Nsereko
Justice Margaret Apiny dismissed a petition against Mr Nsereko, reasoning that the alleged service of him at Parliament, Chief Magistrates Court of Mengo, his Bugolobi residence without success and on his WhatsApp did not amount to personal service envisioned under Rule 6 (3) of the Parliamentary Elections Rules. Documents show that Jackline Mirembe, a court process server, was chased away from Mr Nsereko’s home as a trespasser. She added that Mr Nsereko declined to pick a copy of the petition at Parliament when called.
Kidandala Vs Ssegirinya
Presiding judge Henrietta Wolayo while dismissing Kidandala’s petition over non service said the court process server only focused on serving Mr Ssegirinya in prison and yet the earlier orders were clear to serve him through the officer in-charge. “An examination of the affidavit of service of Fred Kato shows that his focus was on the respondent (Mr Ssegirinya) in the petition and that at no point did he mention an attempt to require the officer-in-charge (OC) to endorse the petition and stamp it with the official stamp as duly served,” Justice Wolayo said. “Service on the OC would have been construed as effective service even if the respondent (Mr Ssegirinya) 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. I find that the order to serve the respondent personally and the order to pin the petition on the notice board of court had to be effected concurrently and non-implementation of one meant the service was ineffective,” she added. But Mr Kidandala had argued that a court official had served Mr Ssegirinya twice.