Takeaways from Bobi failed  poll petition amendment

Can a presidential petition be amended after the expiry of statutory time?

In 2016, Mohamed Mbabazi, a veteran lawyer who was representing Mr Amama Mbabazi, then the petitioner challenging President Museveni’s victory, made an oral application. 

He implored the nine Justices, Bart Katureebe, Jotham Tumwesigye, Esther Kitimbo Kisaakye, Stella Arach-Amoko, Rubby Aweri-Opio, Lilian Tibatemwa-Ekirikubinza, Augustine Nshimye, Eldad Mwangusya and Faith Mwondha to allow him amend the petition out of time.  

Mr Mbabazi, who had been part of the two previous Kizza Besigye presidential petitions, invoked Article 126 (e) of the Constitution, which stipulates that “substantive justice shall be administered without undue regard to technicalities.” 
 
The legal teams that represented Mr Museveni, the Attorney General and the Electoral Commission (EC), put up spirited submissions asking the court to reject Mr Mbabazi’s request, accusing the lawyer, inter-alia, of ambushing them and tabling the application orally. 

But all the nine judges agreed to allow the amendments, giving Mr Mbabazi a lifeline as the initial petition was largely seen as lacking any bite. 

By the time Mr Mbabazi made the application, the Presidential Elections Act (PEA) gave any person who wished to challenge presidential results only 10 days to file a petition from the day the electoral body announces results. 

The petitioner is now allowed 15 days from the date of declaration of results. 
 
Five years later, Mr Kyagulanyi’s team led by Medard Lubega Sseggona asked the Supreme Court to replicate what they had done in 2016. 

Unlike Mr Mbabazi who made an oral application, Mr Sseggona decided to make things formal by filing a separate application.  

Although he cited the Civil Procedure rules and a raft of authorities which he thought would convince the judges to allow him to amend the petition out of time, his ultimate argument was that if the court allowed Mr Mbabazi amend his petition in 2016, then they could allow this one, too. 
  
The respondents’ lawyers stuck to their guns, insisting that there was no law that allows a presidential petition to be amended out of time.  

Mr William Byaruhanga, the Attorney General, threw in a tinge of drama. He warned that allowing amendments to the petition out of time could give Mr Kyagulanyi leeway to continue amending until the current tenure of the Attorney General expires. 

Mr Ebert Byenkya, Mr Museveni’s lead lawyer, tried to distinguish the circumstances under which Mr Mbabazi’s petition was amended and why they couldn’t apply to Mr Kyagulanyi’s. 

“The petitioner now has more days (15) than that time (10),” Mr Byenkya said. “The respondents have just three days to respond.” The respondents that were jointly sued are Mr Museveni, the EC and the Attorney General. 

Although Mr Sseggona wanted the Supreme Court to stick to its position of 2016, the composition of the Bench was drastically different after just five years. While Justices Bart Katureebe, Jotham Tumwesigye Tumwesigye, Augustine Nshimye and Eldard Mwangusya, who sat on the Bench in 2016, have since retired, Justice Lillian Tibatemwa-Ekirikubinza, who was also on the panel in 2016, recused herself from this case, citing poor health. 

New Chief Justice Alfonse Owiny-Dollo is joined by newcomers to presidential election petitions Ezekiel Muhanguzi, Paul Mugamba, Mike Chibita and Percy Night Tuhaise. Justices Stella Arach-Amoko, Esther Kisaakye and the Rubby Opio Aweri, who were in the 2016 case, are also in the current case.

Were the amendments a move to plug holes in a weak petition?
In asking the court to dismiss Mr Kyagulanyi’s pleas to amend his petition out of time, the respondents were in unison: the proposed amendments were introducing completely new issues, something they contended isn’t tolerable in presidential petitions. 

Mr Byaruhanga was more radical, suggesting in his submissions that Mr Kyagulanyi’s legal team only thought about the amendments after reading the defences filed by the Attorney General’s chambers and the EC’s legal team, which is led by Kampala Associated Advocates (KAA). 

“They read the defences,” Mr Byaruhanga said, adding: “And they realised they have no petition at all and that’s why they came up with these amendments to defeat our defence.” 
Mr Sseggona tried to argue that this wasn’t the case, saying they had filed an application seeking to file the amendments last Friday before Mr Museveni’s defence could be filed and served onto them.  

But this explanation didn’t convince some justices, particularly Arach- Amoko, who said having read the new grounds in the amended petition, she came to a conclusion that the amendments were intended to defeat the respondents’ defences. 

“This looks like a new case,’ Justice Arach- Amoko said. 
Indeed, in their brief ruling, the justices specifically pointed to the amendment in which Mr Kyagulanyi insisted that Mr Museveni was illegally nominated as a candidate in the recently concluded elections because he was the head of state, head of government, commander in chief (CIC) and chairperson of the National Security Council. 

In his amendments, Mr Kyagulanyi was of the view that Mr Museveni’s nomination was contrary to Articles 102 (2) (b) and 219 of the Constitution as amended and Section 4 (b) of the Presidential Elections Act as amended. But the justices said such an amendment is a classic example of introducing new grounds which they couldn’t allow.

Lawyer Byenkya comes of age
Out of the six times Mr Museveni has won an election, this is the fourth time his victory has been challenged at the Supreme Court. 

In the previous electoral petitions, Mr Museveni has relied on a battery of law firms which were led by Joseph Byamugisha or Didas Nkuruzinza. 

There has been change this time around. 
Mr Byenkya, who has been a permanent fixture in the legal teams representing Mr Museveni at the Supreme Court, has been given the role to lead a lean team while getting support from Mr Museveni’s legal fixer, Mr Kiryowa Kiwanuka.

The President’s legal team, as things stand, constitutes of two law firms: Byenkya & Kihika Company Advocates, and K & K Advocates (formerly Kiwanuka & Karugire Advocates). 
 
Mr Byenkya’s new role isn’t surprising as he was a star performer in the Mbabazi petition in which Mr Nkurunziza, who is said to be sick, was the lead lawyer. 
 
Back then when he was asking the justices to throw out Mr Mbabazi’s petition, the witty Mr Byenkya said: “On behalf of the first respondent [Museveni], we pray that this petition, completely without merit, unsupported by any evidence, conducted by way of a fishing expedition, premised purely on hope, be dismissed.”   

Asked what he made of his promotion, Mr Byenkya attributed it to longevity.  

“I did well the other time,” he said while laughing. “But I think I have been around for a long time.”

Mr Museveni isn’t the only party to hire a small number of lawyers. The EC, which normally hires about four law firms to handle presidential petitions, this time has hired two law firms: KAA and Okello Oryem & Company Advocates. 

In the 2016 petition, Tumusiime and Company Advocates led the EC’s battery of lawyers, but this time, they haven’t been hired.

Will Mohmed Mbabazi feature? 
Once it became apparent that the Opposition was going to file a petition, Mr Mbabazi’s name was mooted as the one to lead the team. Mr Mohamed Mbabazi was the star in 2016 when he tried to breathe life into Mr Amama Mbabazi’s petition, albeit with limited success. 

“As the saying goes, lies can complete a sprint but cannot complete a marathon,” Mr Mbabazi described the results of the presidential election as announced by the EC.

But it is Mr Sseggona, a partner at Lukwago and Company Advocates, who has been leading the team but sources say Mr Mbabazi will come during the hearing of the petition to lead. 

It had also been expected that Mr Mbabazi would lead Mr Kyagulanyi’s team on Tuesday but for unknown reasons, he didn’t show up.  

Sources within Mr Kyagulanyi’s legal team insist they didn’t need him during Tuesday’s proceedings since he hasn’t been part of the case from the very start. 

“He will submit during the main petition,” a lawyer who is part of Mr Kyagulanyi’s legal team intimated. “We never wanted to crowd court.”

Was Bobi house arrest a major weakness in Museveni’s legal team?

Mr Kyagualnyi’s team, in a bid to convince the judges to allow the amendments, tried to throw everything at the respondents and the judges. 

Mr Sseggona asked the judges to allow the amendments on grounds that when they were preparing the original petition, Mr Kyagulanyi had been put under house arrest and that prohibited him from focusing fully on the petition and perhaps a lot could have been left out because of that, including gathering evidence. 

“The petitioner [Kyagulanyi] at the time was fully focused on regaining his freedom, Mr Sseggona said as he responded to Justice Owiny-Dollo, who was prodding if at all Mr Kyagulanyi wasn’t in touch with his lawyers via phone during the days he was incarcerated in his house. 

Mr Byenkya, who was under probing by Justice Kisaakye, found it hard to explain Mr Kyagulanyi’s incarceration. 

He conceded that this was not something he would love to see happen to anybody, but he insisted that the grounds Mr Kyagulanyi was introducing had nothing to do with his incarceration since he knew them long before.

Mr Byaruhuga, too, found it hard to explain why the security agencies he is representing in this case, incarcerated Mr Kyagulanyi in his home, with Justice Owiny-Dollo putting it to him that the rules of fairness are being violated. 

“So you think it is okay to arrest people after a presidential election and then you think they will be in a position to file a petition,” Justice Owiny- Dollo asked the Attorney General.

Mr Byaruhanga, who clearly had no ready answer, quickly pivoted, and told the justices how amendment of a presidential petition isn’t based on any law and the issues Mr Kyagulanyi was introducing were known to him long before he was imprisoned.