KAMPALA – On January, 14, 2021, Uganda held its general elections for President and members of Parliament followed by local government elections and election of special interest groups.
And like any other activity involving human beings, there arose disputes that required the intervention of courts of law which saw dissatisfied candidates seeking court redress.
Other than the Presidential election dispute that was withdrawn by the petitioner and endorsed by the Supreme Court, disputes arising out of the other elections of are still pending with a fear that they may be a none starter due to limitation period due to expire on or before 17 September, 2021 depending on the date when the petition was lodged but before the expiry of 30 days after gazetting.
It is a cardinal duty of courts to be alive to the ends of justice and must adjudicate upon matters brought before it in a timely manner, they say justice delayed is justice denied.
By hearing and determining Election Petitions, courts of law do no more than engage in the post electoral management process. Because a democratic elections is constituted by a series of legal activities and also because such elections are conducted and engaged in by human beings, with all their perfections and failures, election petitions are invariable in any democratic setting
Upon gazetting the 2021 parliamentary election results, the aggrieved parties were vigilant in filing their petitions and accordingly served the respondents.
Some of the respondents indeed filed their answers which were followed by rejoinders and additional/supplementary affidavits where the need arose. Court records show that there are about 104 parliamentary election petitions that were filed in various High Court circuits in the country grounded mainly on allegations of violence, election fraud, and lack of the requisite academic qualifications. These were filed shortly after February 17th, 2021 when the Uganda gazette published a list of winners.
Many Ugandans below the age of 50 years had never experienced a life of endless restrictions until covid-19 set in. Almost everything has been afflicted with random decisions by the President and the ministry of health to restrain the spread of COVID-19. Uganda experienced its second lock down in June this year when some sectors of the economy were still closed.
The second lockdown saw the closure of courts and its activities restricted to handling matters considered urgent but excluded parliamentary election petitions.
Section 60(3) of the Parliamentary Elections Act (PEA) provides that every election petition shall be filed within 30 days after the day on which the result of the election is published by the Electoral Commission in the Gazette. This is followed by serving the Respondent(s) with a notice of presentation of petition accompanied by a copy of the petition within 7 days after filing.-see S/62 of the PEA and an answer to the petition to be filed within 10 days as provided under the Parliamentary Elections (Interim Provision) (Election Petition) Rules SI 142-2.
The law under Section 63(2) of the PEA has special consideration for election petitions and allows the Courts of law to suspend any other business pending before it to enable judicial officers hear and determine elections petitions expeditious within the time lines set out under S/ 63(9) of the PEA. For avoidance of doubt, the foregoing (Section 63(9) of the PEA provides that the High Court shall determine election petitions before it within 6 months after the petition was lodged in that Court and this is when the time starts running.
The Courts of law are empowered to extend time of service of the petition under rule 19 of the Parliamentary Elections (Interim Provision) (Election Petition) Rules but under exceptional circumstances. Rule 13 (1) expound in expeditious hearing, sitting from day to day, suspending all other business of the court and completing determination not later than 30 days from the date of the commencement of hearing.
For purposes of this article, I wish to remind Ugandans that the Electoral Commission gazetted the 2021 Parliamentary elections on 17th February, 2021 and many of the aggrieve parties filed their petitions within 30 days and served the Respondent(s). In the worst case scenario, the last petition should have been filed before 17th of March, 2021. By simple mathematics, the 6 months envisaged under Section 63(9) PEA will expire before 17th September,2021. Please note that the current 42 days lock down will end on the 29th July, 2021 leaving the parties and the courts of law with about 1 month and a half to hear and determine all the 104 petitions.
Many petitioners, stakeholders and the general public are having mixed reactions and questions like what is the implication of Uganda’s covid-19 restrictions on the pending 2021 parliamentary election petitions. Will the President consider the 2021 parliamentary elections petitions a national priority in the face of an increasing number of covid-19 infections? If the answer is in the negative, what will be the fate of the aggrieved parties and their petitions? What will be the effect of the expiry of the statutory 6 months ending 17th September, 2021?
To be honest, it would be an injustice to a petitioner who filed his petition with a hope of getting justice only to be locked out merely on the basis of time limitations yet everybody is aware that covid-19 has caused global trauma and hindered normal life on the whole globe, it is not business as usual. Even the courts of law had made it clear that judicial officers were on standby waiting for marching orders to attend to election petitions, you cannot blame them for being negligent or slow. It is not their fault.
How about the school of thought that is the very chief justice of Uganda who ordered for the closure of courts for 42 days citing increasing numbers of covid-19 infections and the lock down by the President of Uganda. He cannot turn around and push the blame on the litigants for not being vigilant. Did the Chief Justice’s directive stop the time set out for the hearing and determination of parliamentary election petitions?
How about the argument that the Judiciary delayed to start hearing parliamentary election petitions due to a delay by the Mnistry of Finance to disburse the required money to facilitate the process. On the other hand, the Finance ministry was claiming that they had already sent the money to the judiciary. Who is not telling the truth, is it deliberate?
Surely, it will take a robot to hear a parliamentary election petition like the one against the current Mbale city woman member of parliament where the petitioner filed more than 100 affidavits to back up her claim. How many days does one need to hear such a petition and be able to give a well reasoned judgment within one month and a half? I do not see fairness at the end of the exercise and with all due respect, most of these petitions will be dismissed without going into the merits of the petition just to beat the limitation period of 6 months.
Should Courts of law be tempted to extend the period for hearing and determining the petitions beyond the 6 months citing the covid-19 restrictions, somebody will run to the constitutional court to seek an interpretation of Section 63(9) of the parliamentary elections Act. My guts tell me that courts will interpret the provision saying the period cannot be extended in the absence of a lawful state of emergency which in effect stops time set by statute from running.
Similarly, the courts have set a very high bar on time extension and cannot be seen to treat the parliamentary election petitions with glove hands. In the presidential petition Robert Sentamu Kyagulanyi Vs Yoweri K Museveni Tibaruhaba and others presidential election petition No.1 of 2021, the Supreme Court rejected and or indeed refused to extend time allowing the petitioner to file additional or supplementary affidavits citing time limitation. We cannot say the Supreme Court had forgotten its constitutional duty to resolve such electoral disputes in a fair and transparent manner in regard to principles set out by the law.
Assuming that the President decides to extend the lock down with another additional days due to the increasing number of covid-19 cases, all parliamentary election petitions pending in the courts of law will automatically collapse in what is legally known as to abet. I strongly believe that time set by limitation cannot be extended and covid-19 is not a special circumstance to warrant interfering with a very clear provision of the law.
Getting out of the legal gymnastics, let me look at the matter from a political point of view. If it is true that there are 104 parliamentary election petitions pending in the courts of law and 49 local government election petitions, how many were filed by the opposition against NRM members of parliament. How many were filed by NRM losers against opposition members of Parliament. What would be the benefit of the courts giving judgment against the opposition sitting members of parliament, how about courts delivering judgments against the NRM sitting members of parliament? Do these decisions against NRM in any way threaten the numerical strength of the ruling party in parliament?
Aware that NRM has slim chances of winning any bi-election with the current wave of NUP in certain parts of the country, we all know who would emerge the biggest loser. Under these circumstances, I don’t think it is wise to encourage extending time. Surely with all the fears that Kyagulanyi was planning to contest in case Segirinya Muhammad was thrown out and a bi-election ordered, many election petitions may die a natural death.
Roger Wadada Musaalo is a Lawyer, human rights activist, researcher, and politician