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Dismissed MP Wants Election Appeal Referred to Constitutional Court

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When the matter came up for hearing on Thursday in the Court of Appeal, Attan through his lawyers led by Julius Galisonga said that a careful study of their client’s appeal shows that there are serious questions that warrant constitutional interpretation of his case if it is to be heard and determined on its merits.
Moses Okia Attan talking to Journalists after court ruling.
Moses Okia Attan, the Soroti City East MP who was thrown out of Parliament on allegations of disenfranchising voters has asked the Court of Appeal to halt the hearing of his election appeal.  He wants the matter referred to the Constitutional Court to first determine constitutional questions related to the demarcation of boundaries in the constituency. 

He was appearing before a panel of three Court of Appeal Justices comprising Cheborion Barishaki, Stephen Musota and Christopher Gashirabake. In September 2021, Soroti High Court Judge, Anne Mugenyi nullified Attan's victory on grounds that his election was conducted in the non-existent wards of Aloet and Opiyai.

It followed a successful petition by the former MP, Herbert Edmund Ariko who argued that the January 14th 2021 elections that saw Attan being elected were not free and fair due to disenfranchisement of voters and taking Aloet and Opiyai wards, which were his stronghold to Soroti West Division. 

As a result, Justice Mugenyi nullified Attan’s victory based on the March 10, 2021, decision, in which Justice Wilson Masalu Musene reverted Opiyai and Aloet wards to Soroti City East Division.  The two wards had previously been annexed to Soroti City West  Division by the same judge in November 2020.  

Justice Musene said that he had not received documents for the creation of Soroti City from Parliament and a declaration of the cabinet on the same. In her ruling, Mugenyi noted that there was gross non-compliance with the electoral laws, which substantially affected the results because there was the disenfranchisement of 5,233 voters from both Aloet and Opiyai.

Mugenyi ordered the Electoral Commission to conduct fresh elections before condemning them together with Attan to pay costs to Ariko. Dissatisfied with Mugenyi’s decision, the Electoral Commission together with Attan through his lawyers of Galisonga and Company Advocates and Alliance Advocates filed an appeal in which he raised six major grounds.

According to the appeal, Attan states that Justice Mugenyi erred in law in entertaining Ariko's petition because she didn't have jurisdiction to hear it while relying on the decisions made by the same court, which lacked jurisdiction. 

When the matter came up for hearing on Thursday in the Court of Appeal, Attan through his lawyers led by Julius Galisonga said that a careful study of their client’s appeal shows that there are serious questions that warrant constitutional interpretation of his case if it is to be heard and determined on its merits.

He argues that for instance, the Constitutional Court needs to determine whether the Proceedings in the Soroti High Court placing Opiyai and Aloet Wards in Soroti East Constituency was unconstitutional. He also wants the Court to determine whether the action by the Local Government Minister purporting to direct the Chairperson of the Electoral Committee on the demarcation of boundaries through his September 19th 2020 letter was in contravention of the constitution.

"Whether election petition number 5 of 2021 essentially predicated on the ground that the election of the Appellant was conducted on an illegally constituted constituency falls outside the ambit of article 86 of the Constitution and therefore Unconstitutional”, the court has heard.

The said article talks about the determination of questions of membership to parliament and the jurisdiction the High Court has to hear such. Attan also wants the Constitutional Court to define for him what amounts to a properly constituted constituency as far as the constitution is concerned and determine whether the decision to annul his victory infringes on the doctrine of rule of law.

Ariko’s lawyer Robert Kirunda objected to the request to refer the case to the Constitutional Court, arguing that there was nothing that raises matters for constitutional interpretation. The Justices promised to look through the appeal and see if it raises constitutional questions such that it's forwarded to the Constitutional Court and if it doesn’t, they will go ahead to determine the appeal on its merits.