By KAMPALA; The Electoral Commission (EC) in Kampala has asked the High Court to dismiss a case where Mr Ronald Katushabe sued them for not being nominated to contest in next year’s polls.
The Commission through its lawyers led by Hamid Lugolobi informed Justice Bernard Namanya that the High Court should not entertain an application which contravenes with the provisions of the Constitution.
“Proceedings [are] unconstitutional in as far as it offends the Article 139 of the Constitution and Article 64(1) and 61 of the Constitution and Section 15 of EC Act,” Mr Lugolobi said last Friday.
Article 64 states that any person aggrieved by decision of the Commission in respect to any problem appeals to High Court. In [this] electoral matter, Court has Appellate jurisdiction not original.” Section 15 of the Electoral Commission Act mandates anyone who is dissatisfied with the decision of the Commission to appeal to High Court and the decision of High Court shall be final. “Proceedings before you are challenging a decision of the Commission. This is [a] cause which is appealable to the Court of Appeal,” he said.
Mr Katushabe’s lawyers led by Sentumbwe Yasin Muna Gomba of Ecala Associated Advocates, and Kumbuga Bak Richard of Kumbuga & Co Advocate objected to the plea and asked the judge to go on with hearing the petition.
“Application before you is not an Appeal it is an Application seeking this Honorable Court to invoke its supervisory power over subordinates to judicial bodies,” Mr sentumbwe submitted.
He added: “It is our submission that this is not an appeal that this Court invokes it’s supervisory power because our client is aggrieved on how the respondent exercise the Constitutional power we are challenging the procedure through which the decision was made it’s a unique application.”
Mr Katushabe through his lawyers M/S Kambuga & Co Advocates sued the Electoral Comission after it it refused to nominate him despite allegedly fulfilling the requirements.
The Commission throughout Katushabe and more than 100 other members after they failed to raise the required 9,800 minimum supporter signatures in accordance with the law. Since September, the EC filed it’s affidavit on December 26 through a one Samuel Kiyingi who said is an employee.
Mr Kiyingi said he had sworn it [affidavit] on behalf of the second respondent who does not exist on the petition. But Katushabe’s lawyers asked the Court to dismiss the affidavit and rule the case in their favour, which the judge denied.
“I reject the prayer of the applicant. Grant us leave to cross examine the deponent of the considered affidavits. We may not be able to proceed with the hearing of the application,” Justice Namanya ruled amid opposition from Katushabe’s lawyers. The lawyers said it’s unconstitutional for the judge to entertain an affidavit which was sworn on behalf of a non-existent respondent. A plea by Katushabe’s lawyers to cross examine Mr Kiyingi also proved futile after EC lawyers objected.
“Cross examination is not an automatic right. The party seeking to cross examine must put clearly the areas to cross examination, short of that you cannot merely wish to cross examine without first identifying those areas,” the EC lawyers indicated.
