Why over 50 MP election petitions were thrown out
What you need to know:
The likelihood of having many by-elections in the post-2021 General Election is becoming unlikely after judges have thrown out one petition after another.
After every general election cycle in Uganda, there is always expectation that months down the road, the country would be plunged into a flurry of election activities after the courts have overturned a number of parliamentary and local council election results.
Although the Supreme Court has never overturned a presidential election, parliamentary by-elections have become a permanent fixture in Uganda’s electoral calendar.
But two months after High Court stations across the country started hearing the 2021 parliamentary election petitions, it has become apparent that many of them have been summarily dismissed.
The Electoral Commission claims these are apparent signs that it has organised a free, fair and credible 2021 elections.
Malpractices such as electoral fraud, voter bribery, lack of requisite academic papers, and disenfranchising of voters, among other claims, have always left both the High Court and the Court of Appeal with no option but to throw out several MPs, triggering a sustained period of electioneering that always shapes events of the next general election.
But following the recent January 14 General Election, which was marred by violence and suppression, anticipation was that the High Court would throw out a big number of MPs whose election had been challenged.
However, this expectation has been dashed, with most of the judges so far throwing out at least 57 of the petitions by Thursday as the losers decide to take the battle to the Court of Appeal – which according to Section 66(3) of the Parliamentary Elections (Amendment) Act, 2015, has the final say on appeals.
The parliamentary petitions were supposed to be heard earlier in the year, but the Judiciary then instituted Covid-19 restrictions on court hearings.
Again in June, President Museveni imposed a 42-day lockdown following a surge in Covid-19 infections. This meant that the parliamentary petitions that normally attract emotive crowds had to wait until August after the infections had gone down.
A total of 92 parliamentary petitions were served. Kampala was one of the areas that had excited particular interest. The elections were swept by the National Unity Platform (NUP) party in the famous “umbrella wave.”
But Mr Muhammad Nsereko, the only incumbent, who survived “the umbrella wave” wasn’t comfortable anymore as his election was being challenged by NUP’s Fred Nyanzi, the brother of Mr Robert Kyagulanyi Ssentamu, aka Bobi Wine, whose presidential bid had failed earlier in the year.
Another petition that drew a lot of emotion and social media comments was that in which Mr Muhammad Ssegirinya’s victory in Kampala’s Kawempe North was being challenged by Mr Sulaiman Kidandala, who just like Mr Ssegirinya, subscribes to NUP party.
Similarly, NUP’s Aloysius Mukasa, who won the Lubaga South seat, was also on the defensive in court after his victory was challenged by Democratic Party’s (DP) Eugenia Nassolo, while NUP’s publicist Joel Ssenyonyi had defended himself after Independent candidate Shukla Mukesh, alias Shumuk, challenged his victory in Nakawa West.
In neighbouring Wakiso, which with the exception of Forum for Democratic Change (FDC) candidate Ibrahim Ssemujju Nganda, who retained his Kira Municipality seat, was swept by NUP party and on the face of it, had captivating petitions. In Wakiso’s Makindye-Ssabagabo Municipality, the winner, Mr David Serukenya, was facing a petition lodged by Kigozi Sempala, who had been beaten in the election.
In Nansana Municipality, Mr Hamis Musoke Walusimbi challenged NUP party’s Hannington Musoke Nsereko Wakayima’s victory – meaning he faced a prospect of losing his seat just like he did in 2016 when the court ruled in favour of NRM’s Robert Kasule Ssebunya.
Mr Paul Nsubuga’s victory in Busiro North, Wakiso, was being contested by Mr Edgar Lubadde, who accused him of identity theft.
In Busoga, there was a tantalising battle for the Kamuli District Woman MP seat when FDC’s Proscovia Salaamu Musumba challenged former speaker Rebecca Kadaga’s victory. Still in Busoga, Mr Julius Galisonga of the FDC challenged former FDC stalwart Abdu Katuntu’s victory in Bugweri County.
Further East, Ms Lydia Wanyoto, the NRM candidate for Mbale District Woman slot, dared to challenge Ms Connie Galiwango’s victory.
In the Acholi Sub-region, Mr Samuel Odonga Otto, who had been in Parliament since 2001, didn’t take his defeat easily as he decided to challenge the victory of Mr Christopher Komakech, an Independent candidate.
With the EC prone to making mistakes in such petitions previously, the electorate braced itself for several by-elections.
The manner in which the 2016 elections were handled led courts to announce several by-elections in Jinja East, Rukungiri, Kibanda North, Igara East, and Kyadondo East, which birthed Mr Kyagulanyi and his People Power Movement, which later morphed into NUP party.
The by-elections organised in urban areas have tended to swing towards the Opposition and have given a number of Opposition politicians the chance to jump-start their careers.
For instance, the by-elections that resulted from the 2011 elections led to the emergence of Mr Muhammad Muwanga-Kivumbi, who has since made the Butambala seat his own.
In like manner, Luweero District Woman MP Brenda Nabukenya, then of the DP, became the first Opposition member to win a seat in Luweero District since the NRM party shot its way to power in 1986. And as if that wasn’t enough, the Opposition struck into Mr Museveni’s backyard of western Uganda when FDC’s Oddo Tayebwa took the Ishaka-Bushenyi Municipality, only to lose it during the 2016 parliamentary elections. Nevertheless, not all the by-elections after 2016 polls were a result of contested elections. As an example, the chaotic Arua Municipality by-election was a result of the killing of then-incumbent Ibrahim Abiriga.
As well, the Bugiri Municipality by-election that aided Mr Asuman Basalirwa to make his debut in Parliament after years of trying, was as a result of gerrymandering of Bukooli North, just as the division of Sheema North led to two by-elections in Sheema Municipality and Sheema North. This was after Dr Elioda Tumwesigye, who had been the incumbent in Sheema North, decided to stand in the newly created municipality, opening a slot in his former constituency.
Both of these constituencies were taken by NRM candidates after shoving off challenges from FDC parliamentary candidates.
Now, the likelihood of having such many by-elections in the post-2021 General Election is becoming unlikely after judges have thrown out one petition after another. In other instances, the petitioners have decided to withdraw their pleadings on their own volition.
In Kampala Metropolitan, the last petition in Nakawa West, the petition pitted Independent candidate Shukla Mukesh, alias Shumuk, against NUP’s publicist Joel Ssenyonyi, but was thrown out by the High Court on Thursday.
For this matter, there won’t be any showdown between Ms Kadaga and Ms Musumba as the latter chose to withdraw the petition, citing the need to reconcile their voters.
Besides, Mbale District won’t have a by-election since Ms Wanyoto’s petition was trashed by the High Court for lack of evidence to support the claims therein and it’s not yet clear whether she has the energy to take on the fight to the Court of Appeal.
In Nebbi Municipality, NRM’s Hashim Suleiman got a breather after FDC’s Robert Onege’s petition in which he alleged his rival had no academic papers was thrown out.
EC defends polls
By the EC’s count, the High Court by the time of writing this article had dismissed 46 petitions while 13 had been withdrawn by the litigants, leaving the poll body to claim it had organised a free, fair and credible 2021 elections.
“Most of these petitions had no evidence because the Election Day was peaceful and over time, the Electoral Commission has invested into having free and fair elections,” Mr Eric Sabiiti, who heads EC’s litigation department, said in an interview.
“Unlike in the past when most of the cases were about the alteration of Results Declaration Forms and bribery, this time the complaints were few and you can see most of them have been thrown out because they have no evidence. So, the EC did a good job in organising a free and fair elections,” Mr Sabiiti said.
The EC also attributes its legal success, so far, to relying on its internal lawyers. “Our litigation team has been beefed up because previously we used to rely on lawyers from the Ministry of Justice and then sourced private lawyers but now we have 14 lawyers here who have been representing the Electoral Commission because they understand these cases more than other people,” Mr Sabiiti said.
Lawyers, who have had some of their petitions thrown out, dispute the suggestion that the elections were free and fair. They insist the petitions have been dismissed due to judges who are either in a hurry to see that petitions get out of the way or are amateurs in handling electoral petitions.
“One; the judges employed have no experience in electoral disputes,” Mr Caleb Alaka, a lawyer who has been involved in electoral petitions for more than 20 years, said.
“Second, they don’t follow precedents; they are behaving as if it’s the first time we have had electoral petitions. They have taken us to 1996 and you know that’s the first we had elections under the current  Constitution,” he added.
Judiciary weighs in
But the Judiciary denies that its judges lack the experience, and also denies that they are in a hurry to see that the petitions are quickly disposed of to meet Section 63(9) of the Parliamentary Elections Act, which stipulates that the High Court shall determine an electoral petition within six months after the petition has been lodged in court. “There are petitions, which are still being heard, which show that the complaint has no merit,” Mr Jameson Karemani, the Judiciary spokesperson, said.
“These petitions are being given the attention they deserve. If they have been thrown out, it shows they lacked evidence, and if they are not satisfied they can go to the Court of Appeal,” he added.
The Court of Appeal has already received two appeals that have so far proven divisive: One against Mr Ssegirinya, and another, against Mr Nsereko. While the petition against Mr Ssegirinya was thrown out by Justice Henrietta Wolayo, that against Mr Nsereko was dismissed by Justice Margaret Apiny, but they had similar reasoning, namely that the petitioners never served the first respondents.
Rule 6(3) of the Parliamentary Elections Rules specifies that service of the petition shall be personal and this is the rule that both Mr Nsereko and Mr Ssegirinya exploited as they could have dodged being served.
The petitioners, Mr Kidandala and Mr Nyanzi, insist they did everything possible to serve the elusive respondents, but the courts still dismissed their petitions leaving their lawyers livid.
“This is the first time the High Court is doing a very big disservice to litigants by setting bad precedents. I want to assure you in 2026, and quote me on this: If the Court of Appeal doesn’t overturn these decisions, there won’t be petitions because all people are going to run away and hide such that they aren’t served. And that will be the end [of election petitions],” he added.
The Court of Appeal could change the tide, but so far, only three parliamentary petitions have been successful. One is for Mr Odonga Otto in Aruu South, because Mr Komakech, his rival, addressed his resignation from Butabika Hospital to the executive director of the facility instead of the Permanent Secretary at the Ministry of Health as required by the Public Service Standing Orders.
The other successful petition was of Mr Herbert Edmond Ariko in Soroti East, who convinced the court to annul the victory of FDC’s Moses Attan Okia on grounds that the constituency’s boundaries had been fraudulently altered, thus eliminating some voters.
The third successful petition was against NUP’s Christine Nandagire Ndiwalana, whose victory in Bukomansimbi North was canceled after Ms Ruth Katushabe, her rival, persuaded Justice Ketra Katunguka that she had no minimum academic qualification of Senior Six or its equivalent.
Should the by-elections turn out to be fewer, it could be welcome news to the ministry of Finance, which struggled to foot the budget of the EC during the General Election, which was at the tune of Shs868.14b, a huge jump from the Shs419.9b for the 2016 elections.
“The cost of organising constitutional petitions depends on how big constituencies are. But we know they are quiet costly and that’s why we as the litigation team are trying to win the petitions such that the taxpayers don’t have to incur all of that cost,” Mr Sabiiti said.
Petitions thrown out by High Court
Kampala Central Fred Nyanzi Vs Muhammad Nsereko
Kawempe North Sulaiman Kidandala Vs Muhammad Ssegirinya
Kawempe South Eugenia Nassolo Vs Aloysius Mukasa
Nansana Municipality Hamis Musoke Walusimbi Vs Musoke Nsereko Wakayima
Busiro North Edgar Lubadde vs Paul Nsubuga
Makindye Ssabagabo Ssempala Kigozi Vs David Sserukenya
Kamuli District Woman Salaamu Musumba Vs Rebbeca Kadaga (withdrawn)
Lira District Woman Bony Aliro Vs Linda Agnes Auma
Nebbi Municipality Robert Onegi Vs Hashim Suleiman
Bukooli Central Rogers Ngiya Vs Solomon Silwany
Erute South Jonathan Odur Vs Sam Engola
Kagoma County Moses Walyomu Muwanika Vs Fredrick Munyirwa
Soroti West Anne Ameco and another Vs Jonathan Ebwalu.
Toroma County Joseph Andrew Koluo Vs Solomon Ossiya Alemu
Terego East Apama Amato Boroa Vs Obiga Kania
Sironko Woman Aisha Nabulo Vs Florence Nambozo
Mbale Woman Lydia Wanyoto Vs Connie Galiwango
Agule County David Ochwa Vs Polycarp Ogwari
Tororo County Annette Nyakecho Vs Geoffrey Ekanya.
Kayunga Woman Jacqueline K Birungi Vs Idah Nantaba /
Kilak North Anthony Akol Vs Christopher Ojera
Lamwo Woman Molly Lanyero Vs Nancy Acora
Bukanga North Jeremiah Kamurari vs Nathan Byanyima
Bushenyi- Ishaka Mun. Oddo Tayebwa Vs Derrick Kabuura
Lutseshe County Godfrey Watenga Vs Isaac Madoi
Bamunanika County Robert Sekitoleko Vs Christopher Matabi
Buruli Constituency Jalia Bintu Lukumu Vs Ronald Akugizibwe
Jinja North Muhammad B Bismarck Vs David Isabirye Aga (Withdrawn)
Kashongi County Genensio Tumuramye Vs Herbert Tayebwa Musasizi
Gomba Woman Betty Ssentamu Vs Sylvia Nayebare
Bukanga County Dr Moses Mpeirirwe Kisheija Vs Stephen Kangwagye
Mwenge North Lawrence Akugizibwe Vs David Muhumuza
Busongora South Jackson Mbaju Vs Thembo Gideon Mujungu