I have seen, watched and read reactions to the nullification by Court of the election that made Elias Luyimbazi Nalukoola of the National Unity Platform, the member of parliament for Kawempe.
Some reactions are extremely vicious personal attacks against the judge, branding him an “activist of the National Resistance Movement,” the ruling party; and alleging the Court ruling is not grounded in law and evidence.
My own personal experience has taught me to give a benefit of doubt to Court rulings, until they have been subject to judicial review, on appeal and otherwise.
Now, as it is reported in the media, Court based its decision on two counts to nullify the by-election:
- Nalukoola broke the law by campaigning on election day.
- Electoral Commission did not tally votes for 14 polling stations affecting 16,640 registered votes.
- An informed, objective opinion on whether the judge erred in law can only be arrived at following a thorough examination of what evidence was adduced in court by both parties; as well as the content of the pleadings of both parties.
- What evidence did the flag bearer of the National Resistance Movement, Faridah Nambi, adduce to Court as proof that Nalukoola broke the law and campaigned on election day?
- What evidence did Nambi adduce to Court to prove the Electoral Commission did not tally votes for 14 polling stations, and if it had she had a chance to win?
- What evidence did Nalukoola adduce to Court to refute the allegations made against him by Nambi, that he campaigned on election day?
- What evidence did Nalukoola adduce to Court to support his claim that even though the Electoral Commission did not count and tally votes from 14 polling stations he would still have won?
- Anything else outside of these four questions, my experience as a litigant tells me, does not count. I learnt so, when I was in a similar predicament as Nalukoola, albeit very different circumstances.
- In my case, a judicial officer, a Deputy Registrar, ruled against me and declined to grant me Court ordered protection; and went further to dismiss my main suit, without hearing it.
- My legal team, Okalang Law Chambers, with Counsel Allan Ogoi in the lead, were swift in calling me in, briefing me, and filing an appeal.
- And it is from reading the Court ruling on my appeal that my appreciation was further enhanced of the absolute importance of having good legal representation from legitimate members of the Bar.
- In my appeal case, Court found the Deputy Registrar had erred in law when he ignored the evidence contained in the case pleadings. The appellant judge ruled:
- “In my view a judicial officer should study the pleadings before him or her to enable him or her to formulate an opinion.”
- So, on appeal, the pleadings of both Nambi and Nalukoola will be studied, in order to determine if the presiding judge based his ruling on them. And that he did not smuggle in evidence not presented to him in the pleadings of litigants.
- It is possible, as it was in my case, for a judicial officer to base a Court ruling on evidence not in the pleadings of litigants.
- It is my conviction, indeed, that in my case the presiding judicial officer attempted to legalize this illegality by conducting a locus in quo last minute.
- The appellant judge ruled:
- “In the considered view of this Court, the decision by the learned Deputy Registrar to conduct the locus in quo after parties had filed their submissions was appalling to say the least, more so where the matter was reserved for a ruling as indicated on the record of proceedings.”
- As in, both sides had rested and the Deputy Registrar had given us a date and time for the legal teams to receive the Court ruling. When the time came, the Deputy Registrar instead threw us a curve and ordered for a locus in quo.
- At this point, I believe the spirits of my ancestors, whose graves the Deputy Registrar and his team drove past and walked past were angry and activated.
- For how else may I explain how come the Deputy Registrar messed up his seeming ‘evidence smuggling session’? In the words of the appellant judge, in her ruling:
- “My careful examination of the lower Court’s record of proceedings at the locus in quo confirms that the respective witnesses proceeded with their testimonies without any oath being administered to them, which in my opinion was irregular and therefore renders the proceedings at the locus to have been a nullity. As such, it was improper to use the locus proceedings as a basis of any finding on the part of Court.”
- You see, my younger brother, James Ezron Okoit, had the presence of mind to bring in his high-tech video accessories and captured the entire proceedings of the locus in quo on camera.
- When the time came, the entire footage captured by Okoit, multiple hours of it and unedited, was tendered in to Court, as evidence in support of my appeal. Leaving no room for zig-zaga for the Deputy Registrar.
- Basically, all am saying is that, at the end of the day, Nalukoola’s appeal can only be won on the basis of unimpeachable evidence and his legal team’s abilities to craft sound pleadings.
- Social media outrage will have absolutely no bearing on if he wins on appeal and Nambi losses. (For comments on this story, get back to us on 0705579994 [WhatsApp line], 0779411734 & 041 4674611 or email us at mulengeranews@gmail.com).
