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Judges Asked to Stick to The Law While Deciding Election Petitions

Retired Justice of the Supreme Court Eldad Mwangusya said when you read a number of cases that courts determined, there is no consistency in decisions even on matters that are of a similar nature.
20 Aug 2021 05:45

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High Court judges have been asked to follow only the law while deciding election petitions arising from the 2021 general elections. 

Retired Justice of the Supreme Court Eldad Mwangusya said when you read a number of cases that courts determined, there is no consistency in decisions even on matters that are of a similar nature. 

Speaking at the launch of two publications on how the Court of Appeal decided parliamentary election petitions in 2016, Justice Mwangusya said such cases undermine the integrity of the judiciary. 

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Professor Lillian Tibatemwa Ekirikubinza, a Justice of the Supreme Court and Dr Busingye Kabumba, a lecturer at Makerere University School of Law were the researchers and authors of the two publications which were funded by Kitua Cha Katiba, a nongovernmental organization with a basis in constitutional law.

They are titled; ‘The 2016 Parliamentary Election Case Digest, A focus on the Court of Appeal of Uganda’ and the other Enhancing Electoral Justice in Uganda’s Parliamentary Elections: The Search for Dependable Precedent. 

In his keynote address, Kabumba said that while carrying out research for the books, he was stunned to find similar cases sometimes by the same judges decided differently. Kabumba said in such cases it leaves questions as to whether such judges were not influenced to make the decisions that they made.

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Kabumba added that such cases not only degrade the confidence of the court but also send a wrong signal to students. He gave cases where one of his students who was on clerkship told him that the lesson he had learnt was that cases can only be won through bribery. 

“The student took it as a lesson that that is how we practice law and it's very unfortunate. I think it’s a point of further research of whether we can get dependable precedent from problematic cases such as this,” Kabumba said.

In 2016, the Court of Appeal upheld the election of Mulindwa Ssozi, the MP of Lugazi Municipality whose names on his national voter’s register were different from those on his national identity card and academic documents. Justice Owiny-Dollo, Steven Kavuma and Richard Buteera held that where a candidate had changed his or her names, it was not enough for a petitioner to show a the discrepancy between those names and the names on their academic certificates. 

“The petitioner had to adduce more evidence to prove to the satisfaction of the court that the person who sat and obtained certain academic qualifications was not the same person who was nominated for an election,” the ruling read.

On the other hand, in another petition by Wakayima Musoke whose election as Nansana Municipality MP was also challenged on discrepancies in his names. The court presided over by Justices Steven Kavuma, Cheborion Barishaki and Hellen Obura held that the names on the National Identity Card must be the same name that should appear in the National Voter’s register for Nansana Municipality Constituency.

“He was nominated as ‘Wakayima’ as surname and ‘Musoke Nsereko’ being other names. In the circumstances, he was not a registered voter and as such was not qualified for nomination and election as MP for that constituency,” the court ruled.