Although the 14th January 2021 Presidential Election was conducted under a multiparty political system, the eleven individuals who offered themselves to compete for the highest office in the land included both independents and those sponsored by political parties. On 16th January 2021 the Electoral Commission declared the results of the elections, returning Yoweri Museveni Tibuhaburwa Kaguta of the National Resistance Movement Party as the validly elected President of the Republic of Uganda.
Hon. Robert Kyagulanyi having been dissatisfied with the results declared, on 1st February 2021 filed a Presidential Election Petition seeking its nullification.
Article 1(4) of the Constitution endows Ugandans with the inherent right to express their will and consent on who shall be their President. Hon. Kyagulanyi’s petition would therefore have to allege that, there were violations of the provisions of the Constitution, Presidential Elections Act, and the Election Commission Act, which would lead Court to hold that the alleged violations affected the results in a substantial manner.
In a Presidential Election Petition all evidence at the hearing are required by law to be by way of affidavit and read in open Court. Such evidence must conform to the general rule of evidence that whoever desires any Court to give Judgment as to any legal right or liability depending on the existence of facts which he or she asserts, must prove that those facts exist.
Hon. Kyagulanyi’s petition was filed on 8th February 2021. He however quickly realised that the pleadings lacked merit in material particulars and was compelled to seek the indulgence of Court to amend the petition. He however had to do this according to the law through a judicial process.
The Supreme Court in declining to allow the amendment considered that by its own nature, a Presidential Petition was Unique and therefore is accorded special treatment which envisaged strict timelines within which specific events were supposed to be performed. It must be devoid of any procedural clogs that would cause delay in the disposition of the substantive dispute.
ourt considered Hon. Kyagulanyi’s application through a judicious process and came to the conclusion that what the application was asking for was not provided for either in the Constitution, the Presidential Election Act or the Rules made thereunder. It was an application which was misconceived and had no merit. Consequently it was disallowed.
As if filing an inadequate petition was not tragic enough, Hon. Kyagulanyi discovered that the affidavit evidence he had filed was not up to the level of upholding the allegations of misconduct set out in his petition. The Court session of 11th February 2021 had issued specific directives and timetable regarding the filing of affidavits by the parties and the parties agreed to adhere by them. In addition the Court had taken an extra-ordinary measure of putting an arrangement in place for instantaneous service to the opposite parties.
Despite the arrangement put in place by Court and to which Hon. Kyagulanyi’s Counsel were party, Hon. Kyagulanyi knew that he could only salvage whatever was left of his petition by applying to Court for extension of time to enable him have extra affidavits.
Hon. Kyagulanyi’s application was considered through a judicious process. Court observed that all parties agreed to the time-lines of filing the affidavits, and therefore each party had a duty to ensure compliance with the time-lines agreed just as Court indeed had also adhered to its own. There had to be a fair and level playing field so that no party or the Court loses the time that he or she is entitled to.
The Court further observed that it is not judicious for an extra burden to be imposed on any party or on the Court as a result of omissions, or inadvertences which Hon. Kyagulanyi would have foreseen or which he would have been able to avoid. It was clear that the conduct of the applicant Hon. Kyagulanyi was dilatory, and the application was disallowed.
With the petition itself and the affidavit evidence having been reduced to a state of mere empties drifting by, Hon. Kyagulanyi applied to Court to withdrawal the Presidential Election Petition no. 1 of 2021. Court considered the application through a judicious process and by unanimous decision of 18th March 2021 ordered that the Hon. Kyagulanyi Presidential Election Petition No. 1 of 2021 stood withdrawn and that the candidate elected by the Electoral Commission Yoweri Museveni Tibuhaburwa Kaguta, was duly elected as President of the Republic of Uganda.
It was a regrettable spectra, seeing a petition challenging the Election to the highest office of the President of Uganda to have been prepared and filed in the fashion as cavalier as the one that characterised the Hon. Kyagulanyi Presidential Election Petition No. 1 of 2021.
Shakespeare, that icon of the English language and British culture, could easily fit this scheme of things in his character whose legendary tale, was stated to have been full of sound and fury, but regrettably signifying nothing.
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Sam is a founding partner of the Firm and heads the Banking and Finance Department. He has been practicing as a lawyer for almost 45 years and is recognised as a leading authority on land law and in the Ugandan banking and financial services sector. His main areas of practice include banking and finance, real estate, agriculture and litigation.
