On Monday, February 24, the National Unity Platform President Robert Kyagulanyi announced that he had instructed his lawyers to withdraw his court case challenging the presidential election results that handed Victory to Incumbent President Kaguta Museveni.
Bobi Wine rejected the results of the January, 14 election and said he believed victory was stolen from him. He filed to the Supreme Court asking it to overturn the results on several grounds including widespread use of violence.
“We have decided to remove our case from Owiny Dollo’s court, we shall now take the matter to the court of public opinion but we are not opting for violence. Just like Museveni sought to challenge the victory of Obote in 1980 and later withdrew the case and chose to go to the bush, we have also sought the same since the circumstances are not any different,” Kyagulanyi told
Journalists on Monday at the NUP headquarters in Kamwokya.
His announcement came a few days after the Supreme Court dismissed an application in which he wanted to file additional evidence in the petition after the elapse of the February14 deadline.
Kyagulanyi’s announcement came a few days after the Supreme Court dismissed an application in which he wanted to file additional evidence in the petition after the elapse of the February14 deadline.
On Sunday, lawyer representing the three respondents including Yoweri Kaguta Tibuhaburwa Museveni, Electoral Commission and the Attorney General filed affidavits in response to the 53 affidavits filed earlier by Kyagulanyi’s lawyers.
However the NUP principal publicly announced that he had withdrawn his petition from the Supreme Court, his lawyers will now have to follow the matter up to make it formal with the court’s registry.
Indeed on Wednesday, 24 Kyagulanyi’s Lawyers applied to court to withdraw his petition challenging the presidential elections.
Kyagulanyi says he has been forced to withdraw the petition because he thinks the courts are not favourable to him.
“The petitioner’s witnesses are being abducted, tortured, harassed and intimidated by security operatives at the behest of the first (Museveni) and third Respondent (Attorney General) agents,” he states in the petition.
He adds “the petitioner lost time during the illegal house detention buy this honourable court is more inclined towards the strict timelines which has disadvantaged the petitioner to the advantage of the respondents.
Kyagulanyi says after deeply reflecting on the circumstances, he reached a decision to do so since court is not handling the petition with the independence, impartiality and equality it’s expected of.
Court is expected any time from the time of filling of the petition withdraw to hear the application and decide its fate.
If successful, Kyagulanyi’s withdrawal will be the first time a petitioner withdraws a presidential election petition after being filed in the Supreme Court.
According to Ahmed Kalule of Crane Chambers, section 59(4) of the Presidential Elections Act, 2005, states that a petition having been filed, is withdrawn by the person who filed it, the candidate declared elected shall conclusively be taken to have been duly elected as President.
He says the Act in section 61 also stipulates that a petition shall not be withdrawn except with leave of court and after such notice has been given as the court may direct.
“On the hearing of the application for withdrawal, any candidate who might have been a petitioner in respect of the election to which the petition refers may apply to the court to be substituted as a petitioner for the petitioner who desires to withdraw,” the law says.
The law states that if a petition is withdrawn the petitioner shall be liable to pay the costs of the respondent and if Successful, Kyagulanyi will be the first to withdraw a presidential petition from the Supreme Court.
The National Resistance Movement Director Legal, Oscar Kihika, says Kyagulanyi Can only withdraw the petition with the permission of Court but should be ready for the resultant costs, however he says it won’t be easy to withdraw a petition of such magnitude.
“You need permission of the High court to withdraw a petition in order to do so you have o file an application which is supposed to be supported by an affidavit and this application has got to be served to lawyers of the respondent, you need to convince court with good reasons as to why your withdrawing the petition because it can refuse to give this permission”
He added “Once the Court has given him permission, the law is very clear that the Court shall charge the party for withdrawing the petition with cost”
Section 61 of the presidential elections ACT, 2005 stipulates that a petition shall not be withdrawn except with leave of court and after such notice has been given as the court may direct.
“On the hearing of any application withdraw; any candidate who might have been a petitioner in respect of the election to which the petition refers may apply to court to be substituted as petitioner for the petitioner who desires to withdraw,” the law states.
It further adds” the Court may further if the proposed withdraw has been in the opinion of court induced by any corrupt bargain by order direct that any security given on behalf of the original petitioner shall remain as security for any costs that may become payable by the substituted petition and that the original petitioner shall be liable to pay costs.”
The law says if a petition is withdrawn, the petitioner shall be liable to pay the Costs of the respondents.
Lawyer Jude Byabakama says Uganda has a very young democracy, and these are some of the issues the country is expected to go through.
However Byabakama says Kyagulanyi withdrawing his petition was ill-advised.” Definitely, there are many concerns with how the court has handled his petition; Kyagulanyi was denied the opportunity to amend his petition. The reasons were not very convincing to me, especially considering in 2016, we were allowed to file similar amendments, but this\s couldn’t amount to the withdraw of the case.”
Emmanuel Dombo the Director of Communications at the NRM says the statements of Kyagulanyi about the intention to withdraw are still speculative to the NRM.
“The Constitution spells out how an election petition may be withdrawn. Our lawyers haven’t been served by the petitioner, indicating their intention to withdraw the petition, we are still planning for the petition as is until the new circumstances become available,” he said.
Lawyer Isaac Mpanga says if the Supreme Court had followed the constitution on conducting an inquiry into the conduct of a presidential election, the petition wouldn’t have been withdrawn legally.
“But once you allow your selves to conduct a presidential elections petition like an ordinary trial suit you get embarrassed by NUP’s snub, you will soon hear judges of the supreme court attempting to block the withdraw of the petition, I hope they recall what constitutional scholars have been telling them from the beginning of this petition business.”
The Kira Municipality Member of Parliament and Forum for Democratic Change Party Spokesperson Ssemuju Nganda, said matters that involve peoples lives must be handled very careful when making decisions and had already warned them about going to Court.
“So they went to court to sleek justice now they’re saying it’s not there, I told them not to go to court but they went, they will reach to the same conclusion I told everybody that if they go to court they will come to the same conclusion the FDC made that you cannot take Museveni to court today in Uganda and You get Justice,” he said.
Solomon Muyita the Judiciary Communications officer said that People still have confidence in the courts as they continue to receive more and more cases every year.
“People know it is the only place to find justice. We aren’t very bothered about statements coming from politicians,” he said.
Kyagulanyi’s decision has broken the hearts of a number of people especially those that still believe despite the broken system there was something that could be salvaged.
Sylvia Mukasa, the Executive Director of LAPSNET said his withdrawal was a blow to democracy as the court could have used his petition to give directives to government on how to conduct elections the way they did with the Amama Mbabazi petition.
But NRM director of communication Emmanuel Dombo said Kyagulanyi exhibited arrogance by snubbing the court system that made him, when they allowed his NUP to operate.