MP winners dodge losers to stop court petitions

For months, it has been a game of cat and mouse between litigants challenging results of the recent parliamentary elections and those they want to evict from the House.  

Before the cases are heard by judges across the county, the most contentious issue has been tracing the parliamentary seat winners to serve them with court papers – a critical step if the case is to be set in motion.   

For example, National Unity Platform (NUP) party’s Fred Nyanzi Ssentamu, who wants to oust incumbent Muhammad Nsereko from the Kampala Central seat, has cried foul the most. 

“We have tried to look for him everywhere [to no avail],” Mr Nyanzi, who lost to Mr Nsereko by a difference of 1,023 votes in the January 14 vote, told Sunday Monitor. 

“What you should know is he has been hiding. Once we filed, we were told he had gone to New York [US] and we saw him on Skype. The problem is that you journalists and lawyers [Nsereko is a lawyer] don’t want to see things for what they are. You are just hiding in technicalities. Court told us to look for evidence that Nsereko is out of the country. We went to Immigration [offices] looking for that evidence but they refused to give us the information. So we concluded that there is connivance,” Mr Nyanzi lamented.

Respondents or defendants in parliamentary petitions, it is said, take advantage of Section 62 of the Parliamentary Elections Act, which 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 meaning of this section is that complainants must serve the respondents personally, and this means looking for them wherever they are.  

“It is very hard,” Mr Chrysostom Katumba, a managing partner at Lukwago & Co. Advocates, who for years has been involved in chasing evasive respondents in parliamentary petitions, says. “You have to use a lot of resources to look for these people because some do not have offices and even if they do, they normally hide since the law says you have to serve them personally.” 

The law, however, gets flexible when it becomes impossible to access the respondents. It provides that if the complainant unsuccessfully looks for the respondent for three days, then they can return to court and ask for what they call substituted service, so that they may serve the respondents using alternative means instead of having to do so personally.  

The rules provide: “Where a defendant cannot be found after proper search for that defendant has been done or where the defendant is acting in a manner intended to frustrate the process, Order 5 allows for one to apply for and effect service using means other than personal service.”  

Some of the common forms of substituted service, according to the rules, include advertising in newspapers of wide circulation, putting summonses in a conspicuous place at court or the house/residence of the defendant or where the defendant is last known to have resided/carried out business.  

Mr Nyanzi’s application to serve Mr Nsereko by way of substituted service, however, was turned down by Justice Phillip Odoki of the High Court. 

Mr Nyanzi, a brother of the National Unity Platform (NUP) leader Robert Kyagulanyi, alias Bobi Wine, had claimed in his application that in a bid to serve Mr Nsereko, they had gone to the Parliament building, his home in Old Kampala and at his private office at William Street in Kampala but they failed to find the legislator. 

Mr Nyanzi, who is NUP chief mobiliser, further claimed that he had learnt via social media that Mr Nsereko had travelled to Nairobi, Kenya, yet on March 13, he claimed, Mr Nsereko was seen participating in a Television discussion via Zoom supposedly from New York. 

Mr Nyanzi felt he had made all judicious efforts to effect personal service to Mr Nsereko without success. He, consequently, asked the court for substituted service such that a copy of the petition could be pinned on the court’s notice board and for an extension of time to effect service.  

Justice Odoki, however, had different ideas. He said Mr Nyanzi had not made sensible efforts to look for Mr Nsereko and failed. Justice Odoki noted that if the process server had indeed gone to Parliament, to Mr Nsereko’s home or his private office, he should have stated when he was there, which office he went to at Parliament, who he found there, and what exactly he was told about the location of the legislator, who has so far represented Kampala Central Division for two terms.  

“… the process server should have sought Nsereko’s telephone number to enable him to locate Nsereko but this was not the case,” Justice Odoki ruled. “I find that the affidavit of service in this case falls far short of the required standard that all reasonable efforts were made to effect personal service on the respondent but without success.”

Justice Odoki, however, granted Mr Nyanzi seven more days to look for Mr Nsereko and serve him personally.

“We have failed to get Mr Nsereko,” Mr Nyanzi told Sunday Monitor. “But we left a copy of the petition at Parliament, at his home and we also served him electronically through WhatsApp. He cannot claim that he doesn’t know that we sued him and I have heard he has prepared his defence.”

It remains to be seen if that would amount to what the court would call effective service.   

Musumba Vs Kadaga

Elsewhere, at the High Court in Jinja, Forum for Democratic Change (FDC)’s Salaamu Musumba has been tussling it out with Kamuli Woman MP and Speaker of Parliament Rebecca Kadaga, still over how to effect service. 

Ms Kadaga, who has represented Kamuli since 1989, appeared to have reclaimed her seat with a landslide, according to the official results, but Ms Musumba has alleged a litany of abuses which she wants the court to base on to annul the Speaker’s victory. 

On Friday, Justice Eve Luswata of the Jinja High Court allowed Ms Musumba to serve the court papers to the Speaker’s lawyers, who have been appearing in court over the matter. Ms Musumba’s lawyer, Mr John Isabirye, had asked the court for substituted service, saying the Speaker was dodging their process server.  

On the other hand, Ms Kadaga, through her battery of lawyers led by Mr John Mary Mugisha and Mr Caleb Alaka, insisted that they had got the petition from court and they already filed the Speaker’s defence, and so there was no need for the substituted service.   

Mr Isabirye insisted that it is unknown in Ugandan laws that lawyers of respondents or defendants can serve themselves. 

“Our laws are very clear how service can be done,” Mr Isabirye said in a phone interview. “It is the plaintiff to serve and the judge agreed to that.” 

Mr Alaka, however, saw things differently, saying the reason Ms Musumba’s lawyers wanted to serve the petition to Ms Kadaga personally or through other means is that they wanted to serve a different one from the one they filed. 

“The petition they initially filed had a lot of technical problems,” Mr Alaka said. “It had a lot of errors, which we took advantage of in our defence. Now they want to serve us a different petition from the one they filed.” 

When we put this to him, Mr Isabirye neither denied nor confirmed Mr Alaka’s allegation. “That’s up to him,” Mr Isabirye said, referring to Mr Alaka. “We shall see in court.”

Mwiru Vs Nabeta

The Jinja High Court is also the theatre for another pre-trial game of service.  The Alliance for National Transformation (ANT)’s Paul Mwiru, who is challenging the National Resistance Movement (NRM)’s Nathan Igeme Nabeta’s victory for the Jinja South East constituency seat, also had to serve him through newspapers after the court was told the respondent had proved elusive. 

“We looked for the man everywhere,” Mr Mwiru’s lawyer, Mr Peter Walubiri, said.  “We looked for him in Jinja and Kampala. We could not get him. So we decided to go for substituted service.”  

The order to serve Mr Nabeta using alterative means was given by Jinja High Court registrar Fred Waninda, and Mr Mwiru’s legal team fears this could be a loophole that Mr Nabeta might try to take advantage of once the case comes up for hearing. 

“We heard some people saying it is only a judge who can give orders for substituted service,” Mr Walubiri, who again represented Mr Mwiru in 2016 when he successfully overturned Mr Nabeta’s victory, said. “But we don’t mind. We want him [Mr Nabeta] to come to court and say ‘I saw the advert in the newspapers but it was given by a wrong judicial officer.’ We shall take it from there. But for us, we have done our job.”

Kidandala Vs Ssegirinya 

In Kampala, the clash between NUP stalwarts Sulaiman Kidandala and Muhammad Ssegirinya over the Kawempe North seat had set the ball rolling. By the time Mr Kidandala wanted to serve Mr Ssegirinya, who was announced winner in the January polls, Mr Ssegirinya was already on remand in Kitalya prison, having been charged and remanded over “holding illegal assembly” and inciting violence.  

Mr Kidandala’s lawyers asked the court to allow them to serve Mr Ssegirinya either via newspapers or in Kitalya prison. 

Justice Emmanuel Baguma, the deputy head of the High Court Civil Division, allowed Mr Kidandala’s lawyer to serve Mr Ssegirinya through the officer-in-charge of Kitalya prison, and also ordered the High Court Civil Division registrar, Mr Jameson Karemani, to place another copy of the petition on the court notice board.

Mr Kidandala, who competed for the Kawempe North seat for the second time but this time as an Independent having lost the battle for the NUP flag to Mr Ssegirinya, wants the court to overturn his nemesis’s victory on grounds that he lacks the requisite academic qualifications to stand as an MP.  

One of Mr Kidandala’s claims is that Mr Ssegirinya used the academic documents of Ms Sarah Nampiima for O-Level and then others belonging to Ms Maureen Nabadda for the A-Level.