ANALYSIS: Are Kyagulanyi’s lawyers to blame for aborting his electoral petition?

Kampala, Uganda | THE INDEPENDENT |  The lawyers who are representing Kyagulanyi Ssentamu Robert in the presidential petition currently at the Supreme Court have rejected any blame for the decision to withdraw the case.

Kyagulanyi on February 1, filed a petition in the supreme court challenging the victory of Yoweri Kaguta Tibuhaburwa Museveni in the presidential election that was held on January 14.

In the petition, Kyagulanyi is represented by a group of lawyers from five law firms. These include Medard Lubega Sseggona, Ukasha Ssekanjjako, Abdallah Kiwanuka, all from Lukwago & Co. Advocates. Others are Asuman Basalirwa of Sewankambo & Co. Advocates, Samuel Muyizzi of Alaka & Co. Advocates, Anthony Wameli of Wameli & Co. Advocates and Sulaiman Kakaire among others.

In the petition, Kyagulanyi alleged that there were widespread irregularities that rendered the election neither free nor fair.

However, on Monday this week, while addressing a press conference at his office in Kampala, Kyagulanyi said he had lost interest in the case.

He said he arrived at this conclusion after observing the behavior of the court which he said exhibited traits of being unfair and biased against him. He cited failure by the court to grant him similar treatment that it accorded to other petitioners in previous election petitions. For example, Kyagulanyi said, in the 2016 petition, the then petitioner Amama Mbabazi was allowed to amend his petition even after the 10 days in which a petition must be filed had expired.

He also said that in the 2001 and 2006 petitions where Dr Kizza Besigye was the petitioner, court allowed him to continue giving evidence way into the hearing of the petition.

However, for him, Court declined to grant him leave to first amend his petition and second, to file more affidavits beyond the timeframe set by court. Kyagulanyi also complained about partiality of three judges who he said their previous entanglements with President Museveni who is the first respondent in the petition, make them unfit to determine his case fairly.

The three Judges include the Chief Justice Alfonse Owiny-Dollo who is a former lawyer of President Museveni in the 2006 electoral petition, Mike Chibita who was a private secretary to Museveni for seven years and Ezekiel Muhanguzi who is said to be a relative to Gen Elly Tumwine, the security minister.

For the demand to recuse, Kyagulanyi however never made any formal application to court.

Problems with new evidence

During the hearing of the application seeking to introduce new evidence past the timelines set by court, Museveni’s lawyer, Kiryowa Kiwanuka and the Attorney General William Byaruhanga said Kyagulanyi’s lawyers were not taking court’s timelines seriously. Kiryowa said when lawyers are part of a court decision, they can’t turn around and play victim.

“Orders of court have to be followed. When you meet difficulties you don’t set your own rules, you go back to court for guidance, and failure to follow orders of court is not a technicality, failure to follow orders has consequences,” Kiwanuka said.

Interviewed for this article, two lawyers who have in the past engaged in political litigation equally said Kyagulanyi’s legal team must accept some responsibility for what has befallen his case.

“When you read the application seeking to withdraw the petition, it says that because of the dismissal of the two applications on amendment and filing new evidence, the petitioner can’t proceed with the petition,” said Male Mabirizi, whose own application asking the chief Justice to recuse himself from the case was dismissed. “This is an indictment on the lawyers because they were contracted to do that. Its them who failed to do their work as they should have.”

Another lawyer, Isaac Ssemakadde told URN that he suspects that Kyagualnyi’s lawyers didn’t properly brief him on what he should expect from the court. “We have a principle called Prior full and informed consent, where counsel has to tell everything to his client about what he should expect from court,” Ssemakadde said. “I have a feeling that if Kyagulanyi was properly briefed on the nature of our court, probably he wouldn’t have gone to court in the first place.”

Ssemakadde who has been part of a number of political cases also had issue with having lawyers who were also candidates in the same election that Kyagulanyi participated in.“There was no professional distance between them and the petitioner,” he said. “I don’t see someone who was also candidate giving candid legal advice to his former presidential candidate. They also became echo chambers regurgitating the same issues their candidate is saying without subjecting them to rigorous scrutiny.”

Lawyers who contested for MP slots

Four of Kyagulanyi’s lawyers; Sseggona, Wameli, Kakaire and Kiwanuka were parliamentary candidates in the same January 14 general election.

When asked by this writer during his Monday press conference whether his lawyers bore any responsibility in the dismissal of the petition, Kyagulanyi heaped all the blame on the court.  “We didn’t lose any case and as much as you want to put the blame on our lawyers, I want to remind you that the Court operating on double standards rejected with us what it accepted with other petitioners so that is clearly bias and lack of independence,” Kyagulanyi said.

For his part, Medard Lubega Sseggona who is the lead lawyer in the petition said blaming them for what has befallen the petition is failure to understand the circumstances under which they have been working.  “I will manage my client’s case my way and I think I’m intelligent enough to know what to do, when I’m doing my job, I normally don’t take advise from those who don’t know this job,” Sseggona said moments after court adjourned its hearing yesterday.

Earlier, Sseggona had told URN that the failure to meet timelines was majorly the handiwork of the state that wanted to frustrate their efforts.

“The failure to get affidavits from prisoners, the army occupying our offices where we were keeping some of our evidence, some of our witnesses being kidnapped by the army, all this wasn’t my failure but the criminality of the state that we are dealing with,” Sseggona fumed.

Court has given up to Saturday this week for the parties to file all their affidavits in relation to the withdrawal of the petition as it waits for the application to be published in the Uganda Gazette.

If it is published, then the court will announce a day on which the hearing of the application seeking to withdrawal the petition will be heard and determined.

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URN