Justice Esther Kisakye, who read a dissenting ruling from that of the other eight justices has said the Supreme Court was unfair for not allowing Robert Kyagulanyi , alias Bobi Wine to amend his petition and also file more evidence in form of affidavits.
On Thursday, there was drama at the Supreme Court as Justice Kisakye accused the Chief Justice, Alfonse Owiny Dollo of confiscating the file containing her dissenting ruling.
However, she later used a duplicate copy to read her ruling.
In her ruling, Justice Kisakye disagreed with the other eight members of the quorum when they dismissed Kyagulanyi’s application to amend his petition on grounds that it was barred in time.
Kisakye reasoned with the petitioner that there were special circumstances to be considered since the runner-up in the January 14 polls had been kept under house arrest for 10 out of the 15 days in which he was supposed to look for evidence and file a case.
“I don’t agree with my colleagues that the petition could not be amended. They ignored the fact of a precedent in the 2016 Mbabazi election petition where the court allowed the petition to be amended. It is therefore not true that the court has no power to allow amendment of a presidential election,”Kisakye ruled.
“This court has the discretion to allow or not for amendment of an election petition.”
She noted that she was convinced that Kyagulanyi’s house arrest prevented him from filing the petition on time and that he could have been allowed to amend his petition.
Filing more evidence
The judge said it was wrong for the court to refuse to allow Kyagulanyi file additional evidence for fear of having an impact on the already set roadmap of disposing of the case.
Kisakye said in the past and on numerous occasions, lawyers have failed to adhere to the set timelines by the court but the court has always allowed to extend the time for filing proceedings.
“Even on the day of hearing, the court can allow adjourning to another date to render substantive justice to parties. In rare circumstances, closed gates can be opened to allow entourage and the instant application was one of the rare circumstances,”Kisakye said.
The judge insisted that whereas it was a presidential election petition where it is stipulated that it ought to be done in time, court should have considered rare circumstances like restriction of Kyaguanyi’s movements to extend the timelines but not dismissing Kyagulanyi’s application.
“The restrictions on the movements of the applicant as pleaded in his affidavit and as confirmed by the High Court more than constituted the special circumstances which were envisaged under Rule 17 of the Presidential Election Rules,” she said.
The judge said that President Museveni as the incumbent and commander in chief of the armed forces was well aware of the restriction of Kyagulanyi’s movements and that such a circumstance was enough to allow for extension of time for filing of additional affidavits by the petitioner despite being caught by time.
“I am saddened by the Attorney General to say that a candidate who was left with only five days was not affected by the restriction for his movements. It is true the extension of time would have had an impact on the timelines but the majority justice ignored the fact that no one envisaged the situation that security would incapacitate an aggrieved candidate by restricting their movement,”Kisakye said.
“Kyagulanyi proved special circumstances and the court should have allowed the application to file more evidence.”
The judge argued that what was at stake in Kyagulanyi’s petition were not individual rights but rather a matter of national importance touching on democratic governance and the rule of law in the country.
She insisted that all applications filed by Kyagulanyi should have been allowed to proceed so he could amend his petition but also file additional evidence in form of affidavits to support his case.
However, Kisakye’s ruling is not binding since the majority justices had already made their pronouncements in the matter.