Nyanzi case against Muhammad Nsereko is a non-starter, should be dismissed- EC asks court

The Electoral Commission has raised a preliminary objection in which it wants the High Court in Kampala to dismiss before hearing, the petition in which Fred Nyanzi Ssentamu challenged the election of Muhammad Nsereko as Kampala Central MP.

Nyanzi, an elder brother to former presidential candidate and National Unity Platform(NUP) leader Robert Kyagulanyi challenged Nsereko’s  January 14 victory citing ballot stuffing among other grounds and in the suit, the Electoral Commission and the returning officer were listed as respondents.

On Monday, when the case came up for hearing, a set of three lawyers led by Robert Bautu, Bernard Mutyaba and Saudah Nsereko told court that they had on Friday got instructions from Nsereko to represent them in the case but insisted their client has never been informed of any petition challenging his election.

“I was given a brief of Friday to appear before you my Lord but we were never served(with petition). We have appeared here because our client was mentioned in the case but has never been served,”Bautu told court.

“We only came to court to see what is going on but we can’t participate in proceedings since we were not served.”

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Electoral Commission lawyers led by Eric Sabiiti consequently raised a preliminary objection asking court not to waste time to hear the petition since it is a non-starter.

“There cannot be proceedings where there is no third respondent (Nsereko). He is an eventual winner of an election and was declared as such. You can’t have proceedings where he is not a party. We can’t proceed for trial in a matter where the beneficiary is not in court,”Sabiiti said.

Raising the principle of natural justice, the Electoral Commission lawyer insisted that a party can’t be condemned unheard.

However, Justice Margaret Apiny asked the lawyers to present written submissions before she delivers her ruling on the matter on notice.

The case

In his petition Fred Nyanzi Ssentamu cites alleged electoral malpractices committed by both the Electoral Commission and Muhammad Nsereko to deny him victory in the January 14 polls.

He says that at 50 polling stations, there were arithmetical errors that the Electoral Commission failed to explain that he says was not compliant with electoral laws.

“Presiding officers and the returning officer deliberately made a wrong entry on the final tally sheet by posting wrong votes at the respective polling station and this affected the final results in the return form for transmission of results to the electoral commission,”Nyanzi says.

According to Nyanzi, there were grave errors in the tallying exercise which he says affected the outcome of the results.