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COURT: JUSTICE MUSENE HAD NO POWER TO BLOCK AMONG BUKEDEA RIVAL HELLEN AKOL

By Mulengera Reporters 

On 18th October last year, Soroti Resident Judge Justice Wilson Masalu Musene overlooked clear provisions of the Constitution [namely Articles 61(1)(f) & 64(1)] and proclaimed a judgment which resulted into a miscarriage of justice with Hellen Akol Odeke, a formidable contender for the position of Bukedea Woman MP Seat, getting blocked from competing. Justice Musene acted at the instigation of Umar Okodel, a community leader, whose litigation resulted into incumbent Bukedea Woman Anita Annet Among sailing through unopposed.

Gratefully, the strange circumstances under which Among ended up being unopposed is something we comprehensively reported about in our story of 30th October 2020 as can be accessed here https://mulengeranews.com/bukedea-women-cry-in-byabakamas-office-as-ec-declares-anita-among-unopposed-for-woman-mp-position/. Perhaps to cow and intimidate the EC, Okodel’s lawyers took his matter straight to the High Court contrary to the provisions of Article 61(1)(f) of the Constitution which makes it mandatory for all elections-related grievances occurring before polling day to be referred to the Electoral Commission (a quasi-judicial body) in such a case acting as a court of first instance. Article 64(1) fortifies the law in Article 61(1)((f) by providing that its only after being dissatisfied with the decision of the EC that an aggrieved party can proceed to the High Court by way of appeal.

VICTIMIZING AKOL

Acting at the instigation by Okodel, Justice Musene directed the Electoral Commission to disallow Akol’s application seeking to be nominated to compete against Among. The Musene order was initially served on the Soroti Returning Officer who declined to nominate Akol prompting her to appeal to EC Chairman Simon Byabakama in Kampala who ineptly denied her audience and upheld the RO’s decision locking her out of the Bukedea competition which inadvertently favored Among.

The EC, curiously acting very swiftly, caused Among’s name to be published in the gazette as the unopposed Woman MP for Bukdea (2021-2026). Frustrated but not totally broken, Akol protested the entire injustice by appealing to Court of Appeal in Kampala whose latest ruling (as unanimously proclaimed by Justices Muzamir Kibeedi, Catherine Bamugemereire and Stephen Musota) agrees with her lawyer Jude Byamukama and overturns Musene’s October ruling. Akol’s case was cleverly argued by the youthful city lawyer Jude Byamukama who prevailed notwithstanding that fact that he faced a very formidable legal team Okodel unexpectedly assembled comprising of very expensive lawyers namely Joseph Kyazze, Okello Oryem, Caleb Alaka and Elisha Bafirawala.

To his credit, Jude Byamukama argued that the original jurisdiction of the High Court can’t be applicable in instances where the Constitution mandates Constitutional bodies like the EC to have original jurisdiction over certain matters as is provided for under Articles 61(1)((f) and 64(1) of the Constitution. That in all matters relating to electoral transgressions committed before polling day, the aggrieved party (as Okodel was) must primarily lodge their complaints with the EC and can only refer to the High Court upon being dissatisfied with the administrative decision of the EC.

All this means that when Okodel considered Akol ineligible for nomination to compete for Bukedea Woman MP, simply because her husband Okede’s name doesn’t appear on her O & A’level certificates, he should have complained to the EC and not the Soroti High Court whose Masalu Musene exceeded his powers and presided over matters which the three CoA Justices unanimously say are only exercisable by the EC under the Constitution.

Akol had proceeded to undertake deed poll which was even published in the gazette duly clarifying that, much as she was married to Odeke even at the time of doing her UNEB examinations, she used only her maiden names (Hellen Akol) and never found it necessary to include her husband Mr. Odeke’s name. Nevertheless, she had on her NIN with NIRA and for purposes of registration as a voter to be on the voters’ register, used Hellen Akol Odeke and the deed poll was supposed to certify that, despite all this apparent discrepancy in her names, she was the same person. Justice Musene, at the instigation of the applicant Okodel, overlooked all this honesty exhibited by Akol and found that these were two different persons and agreed with Okodel’s assertion that she technically wasn’t a registered voter and therefore wasn’t qualified to be nominated to compete with powerful lady Anita Among.

And this is what the three CoA Justices unanimously found, clearly putting the elderly Masalu Musene to total shame while overturning his insistence to entertain a matter over which he didn’t have jurisdiction: “[Masalu Musene] had no jurisdiction to entertain Miscellaneous Cause No. 0022 of 2020 as a court of first instance. The effect of this finding is that the orders made by the High Court were a nullity…[and] where the court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing.”

Remarking about what she calls very “bizarre circumstances” under which Akol was locked out, a clearly very sympathetic Justice Catherine Bamugemereire (going feminist) observes that Hellen Akol Odeke was treated very unfairly as if she had any fraudulent motive in opting to omit her husband Mr. Odeke’s name when registering for her UNEB certificates. She looks forward to a day when a public-spirited litigant will come to the same court by way of Constitutional Reference to cause the invalidation of some sections of the Registration of Persons Act which are the reason innocent women like Akol have had to go through so much torment merely because of mere order of names. That in a country like Uganda where women are naturally apprehensive towards competing for political positions, some of these legal provisions are unnecessarily prohibitive.

The three CoA Justice’s ruling also exposes the EC Chairman Simon Byabakama, a whole Justice of Court of Appeal, as inept if he can’t appreciate, detect and appropriately respond to such anomalous decisions similar to what Justice Musene proclaimed in his ruling of 18th October 2020 (which by the way was a Sunday) in total contravention of very clear Constitutional provisions relating to the primary mandate of the EC.

SAVING AMONG

However, in what one senior Kampala lawyer described as “skirting around the issue,” Justice Kibeedi (author of the lead judgment) curiously became timid when it came to granting the appellant Akol’s prayer to direct the EC to cause the degazettement of Among as the unopposed Bukedea Woman whose easy win obviously resulted from the anomalous Soroti High Court ruling for which the same court (ironically) castigates Justice Musene (it’s author).

Instead of granting the prayer degazeting Among and ordering fresh nominations exercise, as was eloquently prayed for by Byamukama, Justice Kibeedi finds refugee under Article 28 of the Constitution which requires that a party (in this case Anita Among) shouldn’t be condemned unheard. That granting these two prayers (degazettement and ordering fresh nominations) would fatally injure the interests of Anita Among who was declared Bukedea Woman MP unopposed yet she wasn’t party to court proceedings between Hellen Akol Odeke and Umar Okodel. That, to properly and appropriately have her prayer of degazettement granted, Akol ought to have added Among as a party to her litigation so as to accord her chance to be heard.

To further fortify his timidity, Justice Kibeedi also makes reference to earlier Court decisions by citing (in approval) the decision in the Constitutional Petition No. 15 of 2006 with the parties being Caroline Turyatemba & Others vs. AG & Electoral Commission. The two colleagues, Bamugemereire and Musota choosing to avoid the hard things, equally concur with Justice Kibeedi leaving poor Akol in the middle of nowhere. She is also given costs which Umar Okodel will have to pay regarding proceedings in the Court of Appeal and not in Musene’s High Court where her lawyers clearly didn’t do a very good job.

Otherwise, it’s by and large a great well-reasoned judgment (written with extreme clarity) in which the lead judgment writer (Kibeedi) appropriately relied on the decision in the 2004 case of Raboo Enterprises vs. URA to find or hold that the High Court can’t exercise its powers under original jurisdiction (as provided under Article 139) in circumstances where the same Constitution bestows such original jurisdictional powers to Constitutional bodies like the EC (as is the case under Articles 61(1(f) and 64(1). (For comments on this story, call, text or whatsapp us on 0705579994, 0779411734, 0200900416 or email us at mulengera2040@gmail.com).

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