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THE High Court in Kampala is expected to give its ruling on a very tricky election petition No. 004 of 2021 which was filed by Forum for Democratic Change (FDC) young man Musoke Hamis Walusimbi against Nansana Municipality Member of Parliament Wakayima Musoke Hanington Nsereko together with The Electoral commission.
Yesterday, all parties ended their submission and they are now waiting for the ruling which will decide whether Wakayima’s January 14th 2021 election is annuled or not.
Through his lawyers of M/s. Kabega, Bogezi & Bukenya Advocates, Walusimbi who last week was appointed by FDC President to sit on NEC, is challenging Wakayima Musoke’s election as the MP Nansana Municipality saying, he did not possess the requisite academic qualification for his being nominated and for the election.
Referring to the Court of Appeal Election Petition No. 005 and 102 of 2016, which nailed the annulment of Wakayima’s election as MP Nansana Municipality in 2016, Walusimbi’s lawyer submitted on Tuesday that, in that judgement, it was found out that Wakayima was in 2016 nominated in error.
Court of Appeal made it clear that, “Wakayima Hanington Musoke Nsereko was nominated in error for member of Parliament for Nansana Municipality Constituency BECAUSE, he was not a registered voter and did not possess the minimum academic qualification of A level or its equivalent.” That is how he lost his seat.
According to this Court of Appeal ruling, Wakayima Musoke was faulted basing on two factors: ONE is variance in names that did not appear in the voters register and TWO, that his academic certificates were not authentic.
The question High Court is expected to address in its ruling which is expected any time from now, have these academic documents now been proved to be authentic?
For starters, the Petitioner Musoke Hamisi Walusimbi contested for MP Nansana Municipality on FDC ticket while Wakayima is NUP.
Nansana Municipality has 260 polling stations. A total of 9 candidates participated in this election.
Electoral commission declared the following results;
- The 1st respondent had scored 67,862 votes
- Kasule Robert Sebunya 15,367 votes
- Kaweesa Stephen 8,930 votes
- Sekyewa Rashid 3,911 votes
- Katumwa David 2,364 votes
- Kibuuka Edrine 2,253 votes
- Musoke Enoch Kintu 1,761 votes
- The Petitioner had scored 744 votes
- Kaaya Rajab Semalulu 703 votes
The above score election results were duly gazetted in the Uganda Gazette of 17th February 2021.
PETITION
Hamis Walusimbi’ petition is premised on the reason that the 1st respondent did not possess the requisite academic qualification for his being nominated and for the election where he was declared winner and that in the petitioner’s view the presented academic credentials were not valid, were not authentic neither were they his, thus the petition to this court.
WHY PETITIONER BASES ON COURT OF APPEAL JUDGEMENT
Referring to the Court of Appeal Election Petition No. 005 and 102 of 2016, counsel for the petitioner says, the present 1st respondent (Wakayima Musoke) used the same academic documents as in issue in the petition before the High Court. These are:
- Uganda Certificate of Education in names of Musoke Hannington, Index No. UO512/535 year of sitting 1977 Centre name Namagabi Senior Secondary School.
- Uganda Advanced Certificate of Education (UACE) U0023/266.
- Institute of Teacher Education Kyambogo Diploma Award.
- Verification letters from UNEB.
N.B: All the above are mentioned in that judgement and are also now listed as 1st respondent’s documents in the joint scheduling notes.
Counsel for the petitioner told court that, It’s not disputed by the respondents that the above listed documents were in issue in Election Petition Appeal No. 0050 and 102 of 2016 and are the very ones in contest in this petition, since they were the very ones relied on by the 1st respondent at time of his nomination and election, and upon which same documents the (Court of Appeal) had pronounced at page 33 and 43 of the judgment that;
(i) The appellant (now the 1st respondent in the Election Petition 4 of 2021) failed to discharge the burden of proving that the questioned certificate were authentic.
(ii) The appellant (now 1st respondent in the Election Petition 4 of 2021) did not possess the minimum academic qualifications.
“My lord given that the 1st respondent presented to the 2nd respondent the same academic certificates he did also present in the earlier High Court Election Petition 004 of 2016 and in Court of Appeal Election Appeal No. 005 and 102 of 2016 then, following the principle that a finding and holding and/or decision of a Higher Court is manifestly binding on the lower court, since the same documents are in issue and touching their authenticity in this petition/court as was so in the Court of Appeal (High Court) this court’s hands remain tied in regard to the authenticity of the above listed academic documents of the 1st respondent.” Reads submission of counsel for the Petitioner.
It continues to say, “If we are to follow the binding principle i.e doctrine of stares, this court with due respect cannot seat in its exercise of its original jurisdiction and find a divergent view to undo the findings of the Court of Appeal in regard to its holding based on the same academic documents and now find/hold (a contrary view) that the same documents are now authentic!”
“The 1st respondent who did not introduce or present to 2nd respondent any other academic certificates save the ones in issue and as used in the judgement of the Court of Appeal, NOR did he the 1st respondent present any other academic document which are an equivalent minimum formal education of Advanced Level Standard, other than those used in the Court of Appeal Election Petition 50 of 2016.” Insists lawyer of the petitioner.
The law is well settled that a judgement of the Higher Court remains binding whether or not the lower court disagrees with it or not. This is in so under the doctrine of stares decisis.
COUNSEL FOR WAKAYIMA’S SUBMISSION
In his submission, Wakayima’s Counsels Richard Latigo and Kenneth Engoru of Lex Uganda Advocates & Solicitors, recognized that the Court of Appeal Election Petition No. 50 & 102 of 2016 did find that Wakayima Musoke was not qualified for nomination in an election of Member of Parliament then.
According to the Petitioner’s submissions in rejoinder, Hamis Walusimbi’s laywer said, there is no better evidence or judgement than one premised on an admission.
“My Lord, Counsel for respondent seem to suggest that the finding of the Court of Appeal were premised solely on fact that at the time of nomination and election then, Wakayima Hannington Musoke Nsereko wasn’t a registered voter, because his name was not in the voters register.” Reads the Petitioner’s submission in rejoinder.
Walusimbi’s Counsel clarified that, that was not the only or sole reason that court of Appeal advanced to arrive at that decision.
Wakayima’s Counsel in his submission said, “We accept Wakayima’s counsel submission that in Court of Appeal, the burden of proof lay with Wakayima Musoke to prove that his academic credentials were GENUINE”. Reads Walusimbi’s counsel submissions.
He noted that, the duty to produce valid certificates to the Electoral Authorities lies with the intending candidates for elections. Where the their authenticity is questioned, it can only be his or her burden to show that he has authentic certificate.
“We find that, Wakayima Musoke in the court of Appeal failed to discharge the burden of proving that the questioned certificates were authentic.” Petitioner
Walusimbi’s lawyer therefore submitted that, “The holding of the Court of Appeal is very clear. So, the reasoning of counsel for the respondents that it was solely based on variance in names in a misconstruction of the express holding of the judgement. The court was independently resolving the issue in line with Article 80 (1) (b) and (c) of the Constitution.
Shooting down submission of Wakayima’s lawyer, counsel for the Petitioner told High court that, “My lord, in the case before you, the issue for resolution is not whether the 1st respondent’s name (Wakayima Hannington Musoke Nsereko) appear on the register or not, BUT WHETHER HE HAD VALID/AUTHENTIC MINIMUM ACADEMIC QUALIFICATIONS for nomination and election.”
Wakayima Musoke’s lawyer submitted that the police report found out that Musoke Hannington is one and the same person.
However, Walusimbi’s lawyer referred to this as diversionary.
He said, “Under the Parliamentary Elections Act, the UNEB Act 137 (which was operative at the time of nomination), the UNEB Act 2021; verification of academic qualification and certificates is not premised on police reports. The reports have no place in the above cited ststutes and can not be used to out maneuver the requirements of certification or verification provided for under Sections 3 (1) and 3 (2) UNEB Act 2021 or Section 4 (1) to (5) of the Institute of Teacher Education Kyambogo.”
Petitioner Walusimbi’s lawyer told court that a deed poll does not in law authenticate the academic document.
“Article 80 (1) of the Constitution infers genuine/authentic academic documents and not merely presentation or possession of them. The court of Appeal had already declared them unauthentic notwithstanding their alleged verification then.” Lawyers of the Petitioner submitted.
His submission reads, “The issue before court is not whether or not there is another person by those names, but whether the 1st respondent had in possession genuine valid or authentic academic documents. So the contention of counsel for respondents that we have not presented any other person with the same names is a departure from pleadings and from issues framed and is unacceptable.”
In his submission, lawyer for the Wakayima Musoke insisted that his client is in possession of the original UCE and UACE Certificates.
On this, counsel for the Petitioner said, “In Wakayima Musoke’s affidavit in reply or in his counsel’s submission DOES NOT DENY THAT THE ACADEMIC CERTIFICATES UCE, UACE and that of Diploma Award, were the same certificates in the Court of Appeal declared unauthentic and as earlier submitted and with due respect to your Lordship this court cannot under the doctrine of stares decisis draw a contrary position to that of the Court of Appeal whether this court agrees with that finding or not.”
Coming to Annexture H admission/registration form) to the petition to wit Exh.P.E 20 which admission form is also annexed to the supplementary affidavit of the 2nd respondent who declared the 1st respondent as a validly nominated candidate.
The Admission (Registration Form under petitioner’s Annexture “D” has the following details in regard to the 1st respondent.
● Date of birth 24th/12/1974
● Mother is Teddy Wanyana
● Person responsible for paying his fees is Teddy Wanyana
● P.L.E results were 8 aggregates:
English 2, Maths 3, Science 1, SST 2 (Aggregates 8) Under index No. 023
● Admission (registration form signed by Teddy Wanyana (on Sunday).
The said Musoke Hannington also signed – signature.
When you compare the contents above they are distinct from those of another Musoke Hannington appearing under Petitioners Annexture D1 and which is again attached to 2nd respondent’s supplementary affidavit; and indicating that there is another Musoke Hannington; (i) under Index 2450 035 (ii) Who scored in P.L.E the following:
English 8 , Maths 8 , Science 5 , SST 6 (Aggregates 27).
The results in D do not tally, are distinct but on their face it can be easily deduced that they are of two people possessing same name Musoke Hannington which creates a possibility that in the said school were two Musoke Hanningtons with distinct P.L.E results, little wonder that UNEB could not hold itself responsible for the identity of a candidate, as rightly observed by the Court of Appeal. EVEN THE INDEX NUMBERS FOR UPE RESULT CERTIFICATES ARE DIFFERENT AS ABOVE SHOWN. One indicates Index No. is 2415035 and another admission form indicates index No. 023.
The Baptism Card of the 1st respondent at page 14 of his answer to the petition mentions date of birth as being 04-04-1974. His National ID reflects date of birth as 04.04.1974 yet his mother under her hand and signature as appears on the Admission/Registration Form mentions date of birth as 24th December 1974 meaning this is not an error then means two distinct people sharing same names. The mother’s name of the Baptism Card is shown as TEDDY WANYANA distinct from that on admission form which is Tereza Wanyana and this variance was never explained thus making the authenticity or reliability of the later academic documents as pertaining to the present 1st respondent suspicious when it comes to identity.
“That aside my lord looking at the signature of Musoke Hannington on the Admission/Registration form, it is on face of it quite different from that of the 1st respondent signature appearing on his affidavit in answer to the petition, and different from that on his National ID, and distinct from that appearing in his letter of request for a police report as appears on page 25 of answer to the petition, and also distinct from that appearing on the Statutory Declaration at page 28 of his answer to the petition.” Reads submission of the petitioner’s lawyer.
He submitted that, “The only deducible conclusion is that these are two distinct persons to whom it is not easy to attach identity as rightly observed by the court of appeal. In view of all the above ambiguities, uncertainties, unexplained variance acts against the said 1st respondent who time and again brought into picture the said questionable academic certificates.”
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