Uganda’s highest court is on the spot following the deadline-day filing of a petition at the Supreme Court by former prime minister Amama Mbabazi to challenge the results of the February 18 presidential polls that handed President Yoweri Museveni another five-year term.

Mr Mbabazi, who was also a presidential candidate, filed an election petition, seeking to annul President Museveni’s victory.

President Museveni polled 60.9 per cent, a decline from the 68.38 per cent he garnered in 2011 against Dr Kizza Besigye’s 26.01 per cent.

President Museveni’s performance improved after a hotly contested race in 2006 when he garnered 59 per cent against Besigye’s 37.36 per cent, and survived an annulment of that outcome with a four against three decision of the Supreme Court judges.

Mr Mbabazi, who was the newcomer to the presidential race, and was once billed as the man to give his former boss a run for his money, only polled 1.4 per cent of the vote.

On March 7, the judges of the court will meet the petitioner’s lawyers and defence team for respondents — President Museveni, the Electoral Commission and the Attorney General.

Four-time contender Dr Besigye of the Forum for Democratic Change is currently under house arrest. He has called for an international audit of the results.

READ: Mbabazi challenges Museveni win in court, Besigye blocked

His 300 agents, FDC claims, are languishing in unknown detention centres. FDC said the agents are being accused of transmitting unofficial results to the party’s headquarters.

On March 2, FDC president Mugisha Muntu demanded a withdrawal of troops from Dr Besigye’s residence and party offices, charging that “the candidate who lost the election was announced the winner.”

The Supreme Court in 2001 and 2006 dismissed Dr Besigye’s petition on the grounds that the irregularities did not affect the outcome of the election “in a substantial manner.” 

That reasoning of the courts is grounded, at least on the face of it, in section 59 of the country’s Presidential Elections Act, which requires the court to be satisfied that non-compliance with the law affected the “outcome substantially.”

In 2009, Dr Besigye through his lawyer Wandera Ogalo challenged the constitutionality of this provision. Last month, the Constitutional Court unanimously upheld it.

Makerere University law lecturer Fredrick Jjuko told The EastAfrican that the court can dispense justice if its convinced by the evidence Mr Mbabazi’s team will adduce.

“There is a precedent in which the test was applied but there is no precedent in facts. The facts of 2001 and 2006 are different from those of 2016.  I understand the misgivings about the test an innovative judge can go around it,” said Prof Jjuko.

After the 2001 and 2006 petitions failed, Dr Besigye vowed never to return to the courts, and instead opted to seek the “verdict from the people.”

Dr Besigye’s lawyer complained that the arrest of their client made it impossible to file a joint petition with Mr Mbabazi.

Prof Jjuko said the Supreme Court can evoke its discretionary power and lift the time limitation of 10 days, which expired on Tuesday last week, should Dr Besigye’s team pray for the same.

To insist on the 10-day deadline, he said, would be a miscarriage of justice right the highest temple of justice in light of what has played out at Dr Besigye’s residence and across the country.  

FDC argues that the actions of the police and military are indicative of “orders from above” to foil Dr Besigye’s attempts to challenge the results in court.

“The court has that discretion to extend the deadline because what police are doing is arbitrarily blocking him from filing a petition,” Prof Jjuko added.

This, however, is premised on the assumption that the FDC is still interested in challenging the results in court if Dr Besigye is allowed to move freely. The headache for the judges — is in the gist of Mbabazi’s petition, coming exactly 10 years after the same court threw out a similar petition after another disputed election. The only constant respondents since 2001 are President Museveni and the Electoral Commission.

The law, Prof Jjuko said, “doesn’t operate in isolation from politics. There are many considerations; it is a legal matter but also political. That will depend on the bench,” he said.

READ: CJ KATUREEBE: All poll petitions need same burden of proof

In his book: The blessings and joy of being who you are, former Supreme Court judge Prof George Kanyeihamba, who in 2006 alongside justices Arthur Oder (deceased) and John Tsekoko (retired) held that the election be annulled, takes the reader through the manoeuvres that transpired the night that preceded the judgement.

He claims that President Museveni was in a frenzied mood, personally making telephone calls to the judges whom he claims had in a four against three decision agreed the election be overturned. But one judge bowed to the pressure, tilting the scale in President Museveni’s favour. The courts, it appears, are yet to insulate themselves from interference from the executive.

A member of Mr Mbabazi’s legal team, Severino Twinobusingye, said: “We don’t have reservations. By the time we petition, as legal experts, we have gone through the 2001 and 2006 judgements and appreciated what informed the justices to arrive at the decision.”

He added: “We are confident that we have a strong case. It is true some institutions of the state have been hijacked but judicial officers take an oath. One judge cannot be a standard for the entire judiciary, a formidable and vibrant institution.”

There are questions over the EC’s fairness, its compliance with the law, the role of police and the greater security apparatus.

Tough decisions that await the bench

Legal scholar Joe Oloka Onyango has summed up the political question that Uganda’s Supreme Court will grapple with in the next 30 days.

Prof Oloka recounts how Micheal Ssebwaga Matovu from the Buganda aristocracy was detained in Luzira maximum security prison after a Kingdom meeting that resolved that Obote moves office from Buganda soil.

He was detained under emergency regulations for Buganda. His lawyer challenged the validity of the constitution under which the regulations had been made.

Justice Udo Udoma held that “any decision by the judiciary as to the legality of the government would be far-reaching, disastrous and wrong because the question was a political one to be resolved by the executive and the legislature, which are accountable to the constitution…”

In 1980, Prof Oloka wrote in a paper entitled Ghosts and the law: “Yusuf Lule’s removal was challenged after 68 days to succeed Idi Amin in 1979 but the court declined to rule that actions of the National Consultative Council were unconstitutional holding that they had been overtaken by events and the declaration would be grave indeed.”

This test, faced by the courts as early as the 1960s is what the Uganda Supreme Court has on the table.

Partly because the stakes are higher, it is intriguing that an election for a parliamentary seat in Uganda can be annulled on the grounds of voter bribery but the threshold is higher for the presidential petition.

Annulling an election, law don Dr Busingye Kabumba says, is a fear that led to parliament establishing the substantiality test, which will play out in the courts too.

“Any government is going to struggle to appoint judges, President Museveni complained about Uganda People’s Congress judges. For the first time we have the entire supreme court appointed by the president who is now a respondent,” he said.