The Commission says the fact that the petitioners did not serve Segirinya and Nsereko should be used to dismiss the petitions seeking to overturn the results of the January 2021 parliamentary elections for the two constituencies.
The Electoral Commission wants Court to dismiss election petitions against Kawempe North MP, Muhammad Segigirinya and his Kampala Central counterpart, Muhammad Nsereko on account that they were not served with the petitions.
The Commission says it would be unjust for court to hear and rule on the petitions when some of the parties sued were not duly served s required.
The petitioners like Sulaiman Kidandala who lost the Kawempe North MP bid to Muhammad Ssegirinya and Fred Nyanzi who lost to Muhammad Nsereko of Kampala Central sued both the electoral commission and the election winners.
The petitioners ably served the electoral commission and it responded to the petition but they did not serve the winners.
Section 62 of the Parliamentary Elections Act 2005 provides for a notice of service that a Petitioner is required to give to respondents.
"Notice in writing of the presentation of 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," reads the section.
Electoral Commission lawyer Eric Sabiiti says court cannot continue to try a case in which another party, a respondent wasn't served and hence didn't get an opportunity to defend themselves.
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According to Rule 5 of the Parliamentary Election Petitions a petitioner is supposed to serve the respondent in person or through their advocate within thirty days after the declaration of the election result. However, both Kidandala and Nyanzi say the challenged MPs have declined to receive service of the notice of the petition.
Kidandala filed his petition in March, at a time when Segirinya had been arrested and remanded to Kitalya for holding an unlawful assembly. Court permitted him to serve Ssegirinya while in prison but Kidandala says Ssegirinya refused to receive the service.
His lawyer, Fred Kato swore an affidavit indicating that he went to Kitalya prison to serve Ssegirinya but he declined saying that he couldn’t receive such a document while in prison and in absence of his lawyer. Mugirya Felix, the deputy officer in charge of Kitalya Prisons swore a contrary affidavit saying that Segirinya was never served.
Fred Nyanzi faces the same challenge. He says MP Nsereko has declined to receive service making himself unavailable at his private office, parliament and home and that when they chanced on him, Nsereko tore documents served to him.
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When a Petitioner fails to make effective service to the respondent within three days after filing the petition, Rule 6 of the Parliamentary Elections Petitions gives them or their lawyer leeway to apply to serve the respondent through other means. The application is supported by an affidavit which states reasonable efforts taken to effect personal service on the respondent but without success.
Court can grant alternative service through newspapers and the court notice board. Nyanzi through his lawyer Justin Semuyaba applied before court to serve Nsereko through newspapers but High Court Judge Phillip Odoki declined the request saying he was not satisfied that Nyanzi made reasonable efforts to look for Nsereko and failed.
He opined that if the process server had indeed gone to parliament, to 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 whereabouts of the MP.
Counsel Nalukoola Luyimbazi who is also representing clients with election petitions says that when court doesn't grant an application to serve a respondent through newspapers, one can ask court to make service through the respondent’s known lawyers. Nsereko's lawyers often come to court saying that their client instructed them to attend court proceedings having heard his name being mentioned in the court case.
Luyimbazi says lawyers of the petitioner can seek leave of court to serve the respondent through his lawyers even after time for service elapsed.
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Luyimbazi says that if a petitioner doesn’t convince court that they have failed to serve the respondent personally and are not allowed to make alternative service, there is a risk of the case being dismissed.
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Nyanzi and Kidandala say the Electoral Commission conniving with the sued MPs to use failure of being served as a ground to challenge the petition. Nyanzi says they are now waiting for court to decide.
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Nyanzi, a candidate of the opposition National Unity Platform lost the bid to join Parliament to Nsereko in polls held on January 14. According to results released by the Electoral Commission, Nsereko, an independent candidate, polled 16,998 Votes, against Nyanzi’s 15,975 votes.
But Nyanzi challenged the outcome of the polls on grounds that the process was marred by irregularities. He cited the failure by the Electoral Commission to ensure that the tallying is done in accordance with Electoral laws, the failure by the presiding officers to submit results from seven polling stations, and inconsistencies in the number of votes presented on the declaration of result forms, among others.
On his side, Ssegirinya from NUP defeated nine other candidates when he scored 41,197 votes against his closest challenger Sulaiman Kidandala who had 7,512 votes in polls held on January 14, 2021. Kidandala challenged his victory alleging that Ssegirinya didn’t have the requisite academic qualifications to contest for a parliamentary seat.