Should Courts Dismiss Election Petitions On The Ground Of Nonservice?

But these two petitions were dismissed on the ground that the MPs were never served with the petitions. In the case of Ssegirinya, the presiding judge Henrietta Wolayo held that Kidandala disregarded the directives of the court in regards to serving the petition on Ssegirinya who was then on remand at Kitalya Prisons.
17 Sep 2021 07:57

Audio 4

The High Court in Kampala a week ago dismissed a petition filed against the Kawempe North Member of Parliament Muhammad Ssegirinya.

Sulaiman Kidandala, a former contestant had wanted the court to declare the position vacant accusing Ssegirinya of lack of academic qualifications. Kidandala had also alleged that the Electoral Commission did not follow the law when nominating Ssegirinya to contest for the seat that he eventually won.

Similarly, this week, the High Court also dismissed a petition filed by the loser of the Kampala Central parliamentary race Fred Nyanzi, the brother of National Unity Platform-NUP president Robert Kyagulanyi. Nyanzi had accused Muhammad Nsereko of conspiring with the Electoral Commission to commit electoral offences.

But these two petitions were dismissed on the ground that the MPs were never served with the petitions. In the case of Ssegirinya, the presiding judge Henrietta Wolayo held that Kidandala disregarded the directives of the court in regards to serving the petition on Ssegirinya who was then on remand at Kitalya Prisons.

“Cognizant that the person to be served was a prisoner, the court directed service through the officer in charge of Kitalya Prison where the person was held and the officer was to witness the service... unfortunately, the evidence of service is the word of the process server against the denial of the officer in charge of Kitalya Prison. Witnessing service meant that the officer in charge had to endorse the petition and if he declined to do so, the process server was to report accordingly in the affidavit of service,” Wolayo’s ruling reads

It adds that an examination of the affidavit of service of Kidandala’s lawyer, Kato Fred shows that his focus was on Ssegirinya and at no point did he mention any attempt to require the OC to endorse the petition and stamp it, yet, according to the judge, serving the officer in charge should have been construed as effective service even if the respondent had declined to accept the service.

"This means that even if the process server did reach the prison, he didn’t effect service in the manner ordered by the court. I find that the order to serve the respondent personally and the order of putting the petition on the notice board had to be effected concurrently and non-implementation of one meant that the service was ineffective."

In the case of Nsereko, the presiding judge Margret Apinyi held that Nyanzi failed to serve his petition as spelt out in the law. “The attempts to serve the 3rd respondent at Parliament, Chief Magistrates Court of Mengo, his residence without success as pointed out in the affidavits of service and the transmission of the documents on WhatsApp did not amount to personal service,” Apinyi held before dismissing the petition.

But Dr Busingye Kabumba, a law don at Makerere University said the court dismissing election petitions on the ground of nonservice is a travesty of justice.

“You want to determine whether the law was properly applied when conducting an election; the court is purely interested in finding out who won. Therefore, the court should be doing an inquiry that is premised on the sovereignty of the people and their right to vote. So, to say that you didn’t serve someone and use that to keep someone who should not be in office is a travesty of justice,” Kabumba said.

He added that while he studied the 2016 election petition, he realized that many of the decisions at both the High Court and the Court of Appeal which is the final appellate court in electoral matters, may not necessarily have been decided on the strict observance of the law. Kabumba, together with Professor Lilian Ekirikubinza authored a book on 2016 Court of Appeal decisions in parliamentary election petitions.

"There is no law or principles in those court decisions; everything is a mess it really boils down to the fact that at that moment, the judge was powerful and he/ she got calls from the state or parties so that the case gets to be decided on grounds other than the good faith application of the law. That’s why you will find four cases with similar facts in the Court of Appeal and the High Court decided differently,” Kabumba said.

Like Kabumba, city lawyer Male Mabirizi who probably can scoop the prize of having filed the most cases against the government, says that the courts of law must not be used to commit illegalities against Ugandans.

“A person is raising serious grounds that the person elected is not qualified to represent people and then he uses a technicality to defeat a petition and remain in parliament. I think the High Court abdicated its powers given to it under the constitution,” Mabirizi said.

He wondered whether if Nsereko never knew he had been sued why then was he instructing lawyers to represent him. Mabirizi also had an issue with the Electoral Commission arguing to the satisfaction of the court that they alone cannot be sued without the eventual winner of an election they have organized.

“I have not seen any law that says when another respondent to a petition doesn’t respondent, the case is dismissed. Why doesn’t the judge listen to the case and also invite the person concerned to also put in their defence? But in these two cases, there is even evidence that these people had been served although they had been hiding. So to me, even if one person doesn’t appear, the court has the competency to determine the case because each and every person goes to court independently,” Mabirizi said.

Joel Ssenyonyi, the spokesperson of the National Unity Platform, the party that sponsored Ssegirinya and Nyanzi said there is a need to amend the law to make it easy for petitioners to serve those they have sued. Ssenyonyi himself battling a challenge to his own election in Nakawa West said if no solution is got, in future, it might be very hard to successfully lodge a petition against anyone.

//Cue in…serving of election

Cue out…did not happen."//

Moses Bugirwa, who contested and lost the Kamuli municipality parliamentary election says that if the court continues with this trend, it might force those who participate in elections to look for other means of settling electoral disagreements. If this happens, Bigirwa adds, the blood will be on the hands of the court.

//cue in…it’s a bad

Cue out… even at other levels

But as some NUP supporters condemned the court for declining to entertain Nyanzi’s petition, they celebrated when the same court declined to allow Kidandala file his against Ssegirinya. Ssenyonyi, in fact tried to explain them as though they were different cases despite the difference in circumstance of failure to serve.

//cue in…there is a...

Cue out…he has refused."//

For Nyanzi what makes his case different is that in Ssegirinya’s case, both him [Ssegirinya] and Kidandala were members of NUP although one contested as an independent. Therefore, it makes no difference whether Kidandala or Ssegirinya is the MP.

//Cue in…let me inform...

Cue out…fearing by-elections."//

What is left to be seen is what the Court of Appeal will eventually decide as both Nyanzi and Kidandala have vowed to appeal their judgements respectfully.