Justice Kisakye Gives Dissenting Judgement in Kyagulanyi's Case

On the issue of Kyagulanyi's witnesses being arrested by the State, the lady Justice dismissed the arguments by the Respondents saying that he should have brought evidence of the list on who was arrested and taken where and by who.
18 Mar 2021 22:16
Lady Justice Dr Esther kisakye.

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Justice Ester Kisakye of the Supreme Court has disagreed with eight Justices in their decision on two applications arising from Presidential Election Petition by former Presidential Candidate Robert Kyagulanyi Ssentamu. 

Kyagulanyi petitioned the Supreme Court to challenge President Museveni’s victory in the presidential elections. At the start of the petition hearing, Kyagulanyi first filed an application seeking to be given more time to amend his petition and introduce new grounds.  He filed another seeking to file additional affidavits and another seeking to withdraw the whole petition.

Kyagulanyi argued that there were unusual circumstances including the fact that his lawyers were operating mobile law firms due to insecurity and fears that state operatives may steal the evidence. He also argued that state operatives seized their political party offices which made it difficult for him to file relevant affidavits and evidence in support of his petition on time. 

On Thursday, the two applications were dismissed by the eight Justices led by Chief Justice Alfonse Owiny-Dollo on grounds that a presidential election petition cannot be amended due to its strict timelines within which it should be determined.

However, in her dissenting judgement read to Kyagulanyi's lawyers, Justice Kisakye said that the reasons advanced by Kyagulanyi were more than unusual circumstances and therefore his applications should have all been allowed.   She noted that it was not right for the Attorney General to argue the way he did on the strict timelines because the issue of amending petitions has happened before in the Presidential Election Petition of the Amama Mbabazi and therefore it cannot be unlawful.

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She added that although the extension to file additional evidence was going to have an impact on the roadmap of court, the respondents who were the majority opted to ignore the fact that when those provisions were enacted and the constitution amended;  

But to Kisakye, whereas the law says that the matter should be determined within 45 days from the date of filing, this requirement didn't impose on the Supreme Court the duty to ignore the unconstitutional and unlawful acts as declared by the High Court to the detriment of the Kyagulanyi.  

"The restrictions on the movements of the applicant as pleaded in his affidavit and as confirmed by High Court more than constituted the special circumstances which were envisaged under rule 17 of the Presidential Election Rules", she said.   Kisakye added the rest of the Justices should have allowed the applicant to file additional evidence which was ready on the morning of February 15 2021 when the deadline was on February 14th 2021.

Court heard that the fact that the evidence was ready by February 14 and the country is under curfew, coupled with the siege of NUP offices, the shutdown of the internet for five days and Kyagulanyi’s house arrest, it was impossible that the time was sufficient for him to do all that was required.

She added that there is a principle that the mistake made by the lawyers should not be blamed on his client like the majority of the Justices did yet Kyagulanyi had already lost ten of the fifteen days.

"The applicant's Counsel was not able to deliver all the evidence in the time prescribed for a variety of reasons some of which were submitted on by Counsel Sseggona. By the majority attributing the mistakes of counsel to the client the court was reversing its decisions without giving reasons”, said Kisakye.

On the issue of Kyagulanyi's witnesses being arrested by the State, Justice Kisakye dismissed the arguments by the respondents saying that he should have brought evidence of the list on who was arrested and taken where and by who.

She noted that the argument lacked merit because Kyagulanyi knew who exactly was his witnesses and where they were and that the respondents were talking about matters that they didn't know about.  

"The first respondent is the incumbent president He has been in power for 35 years with an established party structure which is in place and which has not suffered any disruptions or closures as were suffered by the applicant’s party at the expense of the State organs,” said Kisakye "  

According to her, the Electoral Commission and Attorney General also have nationwide offices throughout the country and it didn't make any sense when they said that Kyagulanyi's witnesses should have been in Kampala for them to file their responses to additional evidence he wanted to file.

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Since the application for the withdrawal was consented to, Kisakye said she was not going to say much about it. She noted that what Kyagulanyi went through was unconstitutional and in the interest of justice and fairness Museveni, Electoral Commission and Attorney General shouldn’t have asked for costs.

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