Withdrawing a presidential poll petition
On February 22, Former Presidential candidate Robert Kyagulanyi informed the general public that he had instructed his lawyers to withdraw the election petition he had filed against Yoweri Museveni, Electoral Commission and the Attorney General.
The gist of his petition is that the January 14 presidential elections were rigged. The merits and demerits of his decision have been debated widely.
Of great importance are the reasons he advanced to withdraw the petition.
According to Mr Kyagulanyi, he will not get a fair hearing and has advanced different reasons to substantiate his claim.
The most important one, in my opinion, is that the court has not followed its precedent(s) on the issues of amending the petition and filing additional evidence.
Some of us who are familiar with the jurisprudence of the Ugandan courts of record, including the Supreme Court, can confirm that there are many contradicting decisions/judgments on some important issues.
One gets the impression that some judges/justices do not even read the relevant previous judgments before they decide cases.
There are also cases where judges/justices refer to questionable sources such as Wikipedia to substantiate their findings. This makes the jurisprudence unpredictable and of poor quality.
Section 61 of the Presidential Elections Act governs the withdrawal of a presidential petition. Unlike the other sections of the Act which were debated by the legislators during the making of the Act, section 61 was not debated (Hansard of Seventh Parliament, 26 October 1995, page 16185).
Therefore, there is no drafting history for the court to refer to. Section 61 provides that “an election petition shall not be withdrawn except with leave of the court and after such notice has been given as the court may direct.”
Thus, the Supreme Court has the final say on whether the petition should be withdrawn. However, continuing with the petition without the consent of the petitioner would raise many questions about the credibility of the court – irrespective of the outcome.
The section adds that “on the hearing of the application for withdrawal, any candidate who might have been a petitioner in respect of the election to which the petition refers may apply to the court to be substituted as a petitioner for the petitioner who desires to withdraw.” Therefore, apart from Mr Museveni, any of the other candidates may apply to replace Mr Kyagulanyi.
Allowing such an application means, inter alia, that the court may have to give the “new” candidate more time to file his/her evidence unless he/she decides to rely on the evidence before the court already.
This extension inevitably delays the whole process by a few days yet the court has limited time within which to finalise the petition.
Section 61 adds that apart from substituting the original petitioner with a new one, the court, if it is of the opinion that “the proposed withdrawal has been…induced by any corrupt bargain or consideration, by order, direct that any security given on behalf of the original petitioner shall remain as security for any costs that may become payable by the substituted petitioner and that the original petitioner shall be liable to pay the costs.”
This provision is only applicable if the court is convinced that decision to withdraw was “induced by any corrupt bargain or consideration.” The Act does not define these terms. They are open to several interpretations.
However, such interpretations exclude cases where a petitioner has withdrawn a petition in circumstances where it is clear that his apprehension that he might not get a fair hearing cannot be dismissed easily, for example, where the court’s decision dismissing his application to file more evidence was not unanimous.
Mujuzi is a professor of Law, University of the Western Cape, South Africa
