OpED

OPINION: By inheriting the petition, is Mayambala trying to betray the cause or shielding Kyagulanyi from paying costs?

Rogers Wadada Musaalo, a Lawyer, human rights activist, researcher, and politician (PHOTO/File).

By Rogers Wadada

MBALE — In a twist of events, a former presidential candidate who emerged “the winner” from behind out in the just concluded Presidential election has sought leave of the Supreme Court to take over the poll petition filed by Robert Kyagulanyi challenging Museveni’s victory.

In doing so, he is invoking the provisions of Section 61(2) of the Presidential Elections Act which allows a former presidential candidate to be substituted as a petitioner in a presidential election petition pending withdrawal from the record of court.

To be precise, Willy Mayambala was the last out of the 11 candidates who participated in the January, 14th Presidential election.

His letter was a notification of his intentions to inherit but was seeking guidance on how best he could take over the petition and what steps he could follow before its withdrawal. Unfortunately, his letter sought to take the Supreme Court around in circles when he asked if there was any chance that new evidence could be entertained.

If it were within my powers, I would have answered Mayambala by saying that the Justices of the Supreme Court cannot turn themselves into a laughing stock. The inquiry whether or not the Justices would permit him to file new evidence has already been answered in an earlier application by Kyagulanyi which was denied. You cannot deny Kyagulanyi a chance to file new affidavits in the same petition and then allow the “heir” to do so. Allowing the same would be to shot themselves in the foot, it could justify Kyagulanyi’s statement that the Justices of the Supreme Court were biased towards him.

Mayambala’s request comes on the whims of an application by Kyagulanyi Lawyers seeking to withdraw the Petition challenging Museveni’s victory in which court directed that the application be gazzeted before a hearing date is given. Indeed the spirit behind the gazetting of the application is to put the public on notice of the intended withdrawal.

How will this play out. Let us recall that Mayambala is one of the aspirants who went into oblivion after the January 14th Presidential election. he never said a word on whether the elections were free and fair and whether or not they were conducted in conformity with the law. So is Mayambala trying to package himself for future prospects, he is a mercenary trying to sanitize Museveni’s victory or he is a conduit through which Kyagulanyi wants to escape costs of withdrawing the petition. .

A story is told of a hyena that moves aimlessly in the wilderness, always around the big cats forest with the hope of finding left over to eat. It said that a hyena can even eat a stone smeared with blood with the hope that it will find some flesh inside it. Such is the behavior of Mayambala who could have filed his own petition as a Presidential candidate and now wants to inherit what Kyagulanyi has abandoned. It could be a stone smeared with blood to kill the hyena.

In his letter dated February 25, 2021, Mayambala told court that he objects to the withdrawal of the petition by Kyagulanyi and that if court agree with him, for him to take over and continue with its prosecution.

When an application like that of Mayambala is filed, it allows the Supreme Court to scrutinize the same before a decision is taken on the first petitioner’s application for withdrawal. Infact the two applications end up being merged such that the granting of Kyagulanyi’s application in effect dismisses Mayambala’s request to take over the petition. You cannot take over what has been withdrawn. It also means that the granting of Mayambala’s application leaves court with no option but to strike out the name of Kyagulanyi and substitute it with the name of Mayambala to take over as petitioner. To allow Mayambala’s application means that the court will have no basis to slap costs on Kyagulanyi since the petition will remain alive and in motion.

However, I do not see the Supreme Court granting Mayambala application in the face of the strict timelines that were given by the Justices. Court cannot bend the rules in terms of time to accommodate the “heir”. To inherit a petition is a preserve of the law but it is one of the most difficult task that require the “heir” if I may say to file his own affidavits which the Supreme Court will not allow given the precedent they set when the dismissed Kyagulanyi application to amend or file more affidavits.

Secondly, it is also not easy to convince those who had deponed Affidavits in Kyagulanyi’s petition to appear before court for cross examination. Most importantly, some affidavits could have been filed with a specific intention which is better explained by the Lawyers who filed the same. Note that Mayambala has not yet filed his application but only notified court of his intention and for guidance on how to inherit the petition.

Lastly, the Lawyers for the first petitioner do not have an obligation to hand over their pleadings to a “heir” in the name of Mayambala that they have not sanctioned. After all, it was a costly process that Mayambala cannot afford unless he is a proxy of the money bags within NRM or a conduit of Kyagulanyi to evade costs arising out f the withdrawal. That not being the case, it means Mayambala has to photocopy the entire voluminous file from Court, study the same with his Lawyers before notifying court of their readiness to commence with the hearing.

Sadly, the Supreme Court has no mandate to extend time within with a Presidential Petition has to be heard and disposed of. My thinking is Mayambala request will not see light of day as time is not his best ally the consequence of which Court will grant the withdrawal with costs to the three Respondents and the battle lines will have been drawn on how to recover costs arising out of the withdrawal of the petition. Already, the response of the respondent is silent on costs but it is also the prerogative of court to order payment of costs. I hope Museveni will not attempt to announce his decision to take over the taxed bill of costs.

That notwithstanding, my evil spirit tells me that Mayambala’s application which I think is diversionary will be denied. That being the case, there is likelihood that the Supreme Court in an attempt to redeem its image that has been tainted with allegations of unfairness and bias, may consider disregarding the prayer for costs.

To be honest, desisting from slapping costs on Kyagulanyi is what will make Ugandans who voted Kyagulanyi to heal. The Justices will argue that they have considered that the Petitioner was not given sufficient time to prepare his case due to the 11 days incarceration which left him with only four days to prepare and file the petition.

Now the, the Justices will castigate and push all the blame on security forces for their actions in keeping Kyagulanyi under house arrest even when he had expressed interest in challenging the Presidential elections. They will agree with the petitioner that indeed he did not have sufficient time to prepare himself and that the decision is taken in the interest of justice.

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