Court: Why Ssegirinya defeated Kidandala [Details]

The High Court on Tuesday dismissed an election petition that was filed against Muhammad Ssegirinya, the Kawempe North MP.  Justice Henrietta Wolayo allowed an application filed by the Electoral Commission to struck out a petition filed by the loser of the Kawempe North Parliamentary election Suleiman Kidandala.

In March, Kidandala who was the runner up in an election that attracted nine other candidates, dragged Ssegirinya to court arguing that his nomination was invalid because he did not have the requisite academic qualifications to contest for a parliamentary seat.

The law requires all persons contesting for a parliamentary seat to have A-level or its equivalent. But according to Kidandala’s petition, the O-level and A-level academic documents that Ssegirinya presented to the Electoral Commission were forged, which constitutes a crime under the Parliamentary Elections Act.

He had also alleged that Ssegirinya’s nomination was not accompanied by the names and signatures of a minimum of ten persons who are registered voters in the Kawempe North constituency, as required by law.

Through his lawyers of Alaka and Company Advocates, Kidandala explained that Ssegirinya’s nomination papers were not signed and countersigned by the Returning Officer per the Parliamentary Elections Act. He also indicated that Ssegirinya was never a registered voter of Kawempe North or anywhere in Uganda.

This was because, by the time he officially changed his name from Richard to Muhammad Ssegirinya, the Electoral Commission had already finished updating the voter register. The records also indicate that Ssegirinya gazetted his deed poll to change his name on October 13, 2020, one year after the closure of the update of the voter register.

Having learnt about the petition in the media filed on March 18, and perhaps well knowing that election petitions have only 10 days to be served on the respondent, four days later on March 22, Ssegirinya staged a demonstration not in Kawempe where he was voted to represent but at Mini Price in Kampala Central from where he was swiftly arrested. Although Ssegirinya was arrested from Mini Price holding placards demanding the freedom of NUP supporters who by then were in jail and facing trial in the Military Court, it appears this was a script written for him by different people which he humbly and carefully studied and implemented.

According to Alex Akena one of the lawyers for Kidandala, they tried reaching Ssegirinya through his known phone number but were informed by the person who had the phone that he had been locked up at the Central Police Station (CPS) in Kampala. According to Akena, he went to CPS to serve Ssegirinya but the investigating officer told him to wait and serve him at Buganda Road court which remanded him to Kitalya prisons for inciting violence. He told the court that he went to Buganda Road court but still failed to access Ssegirinya for service.

Again on April 8 2021 two weeks after Ssegirinya had been on remand at Kitalya, his lawyers Shamim Malende and Abdul Kiryowa told Buganda Road Magistrates Court that they were not ready to proceed with the hearing of the case when the Prosecution revealed that their inquiries were complete.   What even made the trial Magistrate, Gladys Kamasanyu surprised was that Malende told the court that they tried to look for the prosecution from their offices to have the disclosures in the case shared with them but they were not there.

The prosecution said it was not true because they are always in the office up to 7 pm. This according could have been interpreted as buying time until when it was too late to serve Ssegirinya.   The Magistrate even accused Ssegirinya’s lawyers of having been sleeping for three weeks and failed to do anything practical as far as preparation of the trial was concerned.

Having failed to make headways in serving Ssegirinya, Kidandala ran back to the High Court and asked it to allow him to serve him at Kitalya Prison where he had been remanded. The Judge, Emmanuel Baguma allowed Kidandala to serve Ssegirinya through the Officer in charge of Kitalya Prison. The judge also ruled that the petition also be pinned on the High Court Notice Board.

In his affidavit of service, Fred Kato, one of the lawyers attached to Alaka and Company Advocates said when he went to Kitalya Prison Ssegirinya declined to receive the notice of presentation and the petition arguing that he needed to be in the company of his lawyers.

But the affidavit doesn’t indicate that even the deputy officer in charge, Felix Mugiya declined to receive the petition. Before the hearing of the petition would start on August 16, the Electoral Commission which was the second respondent applied for the court to strike out Kidandala’s petition on the ground of non-service.

In an affidavit sworn in by Hamidu Lugoloobi a lawyer for the Electoral Commission, he said the petition was defective because it was never served on the first respondent. Mugirya himself denied ever seeing Kidandala’s lawyer at the prison let alone Ssegirinya declining to receive the petition. Last week, the Judge declined to allow another application by Kidandala to recover the visitors’ books at Kitalya which would have shown that indeed Kato ever visited the prison.

In the ruling read for her by Civil Division Assistant Registrar Agnes Alum, Wolayo agreed with the Electoral Commission that indeed Kidandala failed to serve the petition on Ssegirinya as directed by high court judge Emmanuel Baguma.

“Cognizant that the person to be served was a prisoner, the court directed service through the officer in charge of Kitalya Prison where the person was held and the officer was to witness the service…The fact that the officer in charge Mugiya Felix had denied witnessing service, makes it even more imperative that the only proof of service would have been his signature.

Unfortunately, the evidence of service is the word of the process server against the denial of the officer in charge of Kitalya Prison. Witnessing service meant that the officer in charge had to endorse the petition and if he declined to do so, the process server was to report accordingly in the affidavit of service,” Wolayo’s ruling reads in part.

It adds that an examination of the affidavit of service of Kato Fred shows that his focus was on Ssegirinya and at no point did he mention any attempt to require the OC to endorse the petition and stamp it with the official stamp.

“Serving the officer in charge should have been construed as effective service even if the respondent had declined to accept the service. This means that even if the process server did reach the prison, he didn’t effect service in the manner ordered by the court. I find that the order to serve the respondent personally and the order of putting the petition on the notice board had to be effected concurrently and non-implementation of one meant that the service was ineffective. The petition is rendered redundant for non-service and is struck off the record,” the ruling adds.

When URN asked both Kidandala and his lawyer Kenneth Paul Kakande why they had not indicated in the affidavit of service that the officer in charge had too declined to receive the petition, they insisted that they had indicated it even when the affidavit said otherwise. They instead blamed the Electoral Commission for holding out as lawyers of Ssegirinya who had no representation in court.

“Looking at the way the Electoral Commission is acting, looking at how other actors are acting, I’m not surprised. With time we shall uncover the so many forces behind this. You don’t know how much pressure I’m under; people in government calling you, please pull out this, we have an interest. Everyone is interested in this matter; security organs are interested in this matter,” Kidandala said last month.

Eric Sabiiti who congratulated Ssegirinya and the people of Kawempe having got back their victory denied that the Electoral Commission was defending Ssegirnya.

“Court ordered that he serves the petition through the officer in charge but the person who went to Kitalya was as if he had gone to visit the suspects and was any aware of the court process. I’m not a lawyer for Ssegirinya, I was representing the Commission on a point of law. All of us are Officers of Court, if you have any issue with the case, you have a right to raise it. Even if it was Kindandala’s lawyer, he would have helped court arrive at the truth,” Sabiiti said.

Kidandala’s lawyer, Kakande has indicated that they are going to appeal Wolayo’s ruling in the Court of Appeal, the final appellate court in political petitions.

Ssegirinya defeated nine other candidates when he scored 41,197 votes against his closest challenger Kidandala who had 7512 votes.