Court of Appeal quashes decision to nullify Museveni’s victory

Kampala, Uganda | THE INDEPENDENT | The Court of Appeal in Kampala has set aside the decision by the High Court to nullify the victory of William Museveni Ndooli, as Buwekula South County Member of Parliament in Mubende district.

In a majority decision of two Justices against one, Lady Justices Elizabeth Musoke and Monica Mugenyi have set aside the decision of the then Mubende High Court Judge Eva Luswata and held that Museveni is the duly elected MP for Buwekula South Constituency.

The Electoral Commission declared Museveni winner of the January 14th 2021 elections in Buwekula South County with 8,185 votes against Fred Tumwesigye’s 7,479 votes.

Dissatisfied with the results, Tumwesigye decided to petition the High Court in Mubende accusing Museveni of conniving with the Electoral Commission to steal his victory.

He said there was multiple voting in several polling stations and that the Electoral Commission had failed in its duty to ensure that they organize a free and fair election.

Museveni was also accused of threatening and intimidating voters using security personnel as well as bribing voters.

As a result in October 2021, Lady Justice Eva Luswata who was at that time a High Court Judge and has since been elevated to the Court of Appeal, allowed Tumwesigye’s petition saying that he had sufficient evidence of multiple voting in the area which was enough ground to nullify Museveni’s victory.

Luswata consequently threw Museveni out of Parliament and ordered the Electoral Commission to organize fresh elections.

But the Electoral Commission through it’s lawyers Godfrey Musinguzi and Eric Sabiiti together with Museveni were aggrieved with the decision and they decided to challenge it in the Court of Appeal.

They argued that the learned trial Judge erred in law and fact when she misapplied the law relating to ballot stuffing thereby arriving at a wrong conclusion that Tumwesigye had proved that there was multiple voting and ballot stuffing.

According to the Commission, the learned trial Judge also erred when she held that there were wrong entries in 19 out of 61 declaration of result forms and that this pointed to deliberate manipulation or reckless negligence which  had an impact on the final tally.

They asked Court of Appeal to overturn Luswata’s decision and restore Museveni’s victory.

In their Judgement on Wednesday, the Court of Appeal Justices have set aside Luswata’s decision arguing that she misapplied the law regarding the admission of evidence and allowed the burden of proof  to be born by Electoral Commission and Museveni which was wrong.

“The evidential burden could not have shifted to the appellants in the absence of clear and concise pleadings of the nature of the claims against them. To that extent, the Respondent/Museveni failed to discharge the burden of proof upon him to prove his case as pleaded to the required standard, and cannot be permitted to succeed in a case that he did not plead,” said the Justices.

They have however ordered each party to bear its own costs.

Museveni has welcomed this decision and appreciated whoever stood with him to claim his victory adding that he is just going to start his role as a legislator since he has been occupied with this case.

In a related development, the Court of Appeal has confirmed National Resistance Movement’s Stephen Kangwangye Rwakanuma as the duly elected MP for Bukanga County in Isingiro district.

Court of Appeal Justices Geoffrey Kiryabwire, Stephen Musota and Christopher Gashirabake on Wednesday upheld Kangwangye’s victory after dismissing an appeal filed against him, Electoral Commission and the Returning Officer for Isingiro District by his rival Moses Mpeirwe Kashaija.

The appeal which raised 33 grounds including pre-ticked ballot papers, defacing his campaign posters among others and seeking nullification of Kangwangye’s victory. The case has been dismissed with costs for lack of sufficient evidence to support the allegations.

Speaking to Uganda Radio Network after the decision, Kangwangye said it’s now time to work for the electorates since the legal battle that has been occupying his time has come to an end.

On his part, the Electoral Commission’s head of litigation Eric Sabiiti said he will seek 800 million shillings in costs from Kashaija because of the time and resources spent from the High Court up to to the Court of Appeal.

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