HOW COURT EXPOSED EC INEPTNESS IN THE EDDY KWIZERA PETITION
By Mulengera Reporters
Reading from the latest Constitutional Court ruling, especially the 84-page lead judgment by Justice Christopher Madrama, it’s clear this country has a very inept EC.
In their very indicting decision, the five Justices unanimously hold that the Electoral Commission (EC) glaringly failed in its duty to act Constitutionally by organizing elections while negligently misleading Ugandans to compete for MP positions that legally didn’t exist.
On the prompting of former Bufumbira East MP Eddie Gahunga Kwizera, the five Justices (Madrama, Owiny Dollo, Kenneth Kakuru, Engonda Ntende & Cheborion Barishaki) found that the June/July 2018 elections for the 6 Municipality positions was “void ab initio” because the MP positions into which the 6 victorious MP politicians were elected didn’t not legally exist.
That the EC, through its legal department and the private external lawyers on whom billions are expended, ought to have known that under Articles 83 and 84 of the Constitution its duty to organize elections (under Article 61) for Ugandans to exercise their right to determine their representatives (under Article 1) can only be performed where there is a vacant MP position in a manner the Constitution prescribes. In simple terms this means, one can only be elected MP through general elections every after 5 years or byelections preceded by the Speaker declaring any MP seat vacant.
That the elections the EC organized resulting into Asuman Basalirwa becoming Bugiri Municipality MP, Peter Abrahams Loki becoming MP for Kotido Municipality, Patrick Ocan (Apac Municipality), Hashim Suleiman (Nebbi Municipality), Tarsis Rwaburindore (Ibanda Municipality) and Elioda Tumwesigye becoming MP Sheema Municipality are alien to the Constitution and therefore an exercise in futility implying the billions of taxpayers’ money that was spent was lost in vain.
The judges asserted that the EC ought to have realized that the correct position of the law is that creation of new constituencies doesn’t automatically culminate into emergency of vacancy to be filled because those very new areas had already been catered for in 2016 when MPs were elected to represent them. That this obligation to represent people in such an area remains validly imposed on that elected MP for another 5 years. Court states that it’s only after expiry of that five-year period that the obligation to represent an entire Constituency (as of 2016) ceases to exist.
The Judges also say that the affected 6 MPs can’t call the ruling miscarriage of Justice simply because the Kwizera matter has been determined without them being hard because they were elected to legally nonexistent positions in the first place. As innocent 3rd parties, Court advises them to separately pursue EC which led them into this very unlawful enterprise.
In the end, the EC (whose top officials leading city lawyers Daudi Mpanga and Robert Kirunda say should be personally sanctioned at least by Parliament for taking their work so lightly) is directed by Court to pay 50% of the costs petitioner Eddie Kwizera will become entitled to upon taxation. The judges refuse to fault Rebecca Kadaga-led Parliament on anything and instead squarely put all the blame on the EC whose Chairman Simon Byabakama continues to be subject to plenty of social media ridicule with many wondering how a judicial officer of his credentials can fail to guide the EC he leads on such basic things.
Speaking on Capital Gang this Saturday morning, Mpanga and Kirunda demanded that “career-limiting consequences” should be slapped on EC CEO Sam Rwakojo, Byabakama and other top officials as a way of making them pay for the flat-footedness the Constitutional Court petition has exposed at the EC in the Kwizera decision.
The two lawyers submitted that organizing the 6 Elections in the 6 affected towns cost the taxpayer a fortune and some at the EC must be personally made to pay for that anomaly. Government spokesman Ofwono Opondo agreed with them that the EC leadership had indeed let down the people of Uganda. Kirunda also stated that it was unlikely the affected MPs can get any remedy (say a stay of execution) by appealing the decision “because there is nothing to stay at because it’s an illegal position the EC led them into occupying.”
Instead the brilliant Makerere law Don envisages a situation where the affected MPs might decide to separately sue the EC for misrepresenting them into vying for positions which legally didn’t exist. In his lead judgment, Madrama hints on this by imagining there is a lot of opportunities each of the 6 MPs must have foregone in order to vie for the Municipalities. Best example is Elioda Tumwesigye who quit his Sheema County MP seat to run for the Municipality. Already circulating on internet, is a letter indicating the venture condemned him into a Shs850m debt burden out of which President Museveni is being called upon to come and help him.
This Kwizera chaos is coming at a time when the top EC leaders are faced with a court challenge posed by the People’s Government leaders who are challenging the legality of their tenure at the Jinja Road-based electoral body. (For comments, call, text or whatsapp us on 0705579994 or email us at email@example.com).