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Musoke-Kibuuka, the judge NRM politicians didn’t want near their petitions

Vincent Ferrer Musoke-Kibuuka (RIP)
Vincent Ferrer Musoke-Kibuuka (RIP)

The last action on the National Unity Platform (NUP) party calendar for the year 2021 was to vow to petition the courts of law over the conduct of the Kayunga District by-election.

The Electoral Commission controversially declared Andrew Muwonge, the candidate of the ruling National Resistance Movement (NRM) party, winner of the December 16 election, beating NUP’s Harriet Nakwedde Kafeero with the difference of 450 votes. The opposition party bitterly protested the process and result, charging that the results were falsified, voters were bribed, its members were intimidated, roughed up and detained, among other complaints.

Petitioning the courts over a contested election result in Uganda is tough. Talking to politicians and lawyers who have participated in such exercises in the past, you get the sense that the process gets lonely (when the parties that sponsor the petitioning candidates sometimes abandon their members along the way), and expensive, especially in cases where one loses the petition and is required to pay costs to their adversary.

Against that background, intense discussions go on in the background before a decision to petition against an election is lodged in the courts. One of the key considerations petitioners pay close attention to, multiple sources say, is which judge is likely to handle the petition.

Such conversations, in the minds of many that have been involved in election petitions over the years, bring to mind Justice Vincent Musoke-Kibuuka, a former High Court judge who passed away on January 7, 2021.

Talking of NUP, the party’s presidential candidate in the January 2021 election, Robert Kyagulanyi aka Bobi Wine, filed a petition against President Museveni’s victory but then withdrew it before his substantive complaints were heard, claiming that the Supreme Court had demonstrated partiality in the conduct of the preliminary phases of the petition, making him lose faith in its ability to deliver a fair verdict.

We consider this a befitting time to pay tribute to the late Justice Musoke-Kibuuka at this point in time, because very few judges during his time gained as much renown for annulling elections once noncompliance with the electoral laws or malpractice was proved.

The judge, whose death at Nsambya Hospital in Kampala doctors said was occasioned by kidney complications, seemed to have an unspeakable aversion for election theft. He gained notoriety for annulling parliamentary elections to the extent that ruling NRM party members accused him of being an opposition judge.

Winnie Byanyima and Ngoma Ngime

Winnie Byanyima and Ngoma Ngime

Byanyima vs Ngoma-Ngime

Whereas the 2001 general elections were organised under what was termed as the Movement system, which purported to be all-inclusive, it was clear that there was the Movement side (which was in power) and the opposition, which had picked up new momentum following a presidential challenge mounted by President Museveni’s former physician, Dr Kizza Besigye. Dr Besigye had formed a pressure group known as the Reform Agenda, which would later in 2004/5 join up with other formations to morph into the Forum for Democratic Change (FDC).

In the lead-up to the 2001 elections, Winnie Byanyima, Dr Besigye’s wife who had also been a participant in the Bush War alongside Dr Besigye and President Museveni, was the Member of Parliament (MP) for Mbarara Municipality and sought to retain it under the Reform Agenda banner, having switched sides from the Movement. Byanyima, the daughter of the now deceased Democratic Party (DP) strongman Boniface Byanyima, was a tricky customer in the Mbarara race, a fact that was made the more complicated by President Museveni having spent some of his childhood days in Mzee Byanyima’s home and later having developed a close relationship with Winnie herself.

But Museveni had to do what had to be done. His hold on the country was under challenge by Besigye, a man he knew to be of inestimable ability, and Winnie had teamed up with her husband to uproot an administration that had at the time been in place for 15 years. Museveni shopped around for a suitable candidate to uproot from Mbarara Municipality a woman whose influential father who had also represented the area in parliament was also still alive.

It would appear that getting a suitable candidate proved difficult, and the ruling group under Museveni settled for Ngoma Ngime, then the resident district commissioner of Mbabara District. Ngoma Ngime had gained some renown within Mbarara and had the money and force to prop him up, but in the end still didn’t measure up to the challenge. Not least of the factors that militated against his candidature was the fact that he hailed from Busoga and not Ankole.

On June 26, 2001, after all manner of dirt had gone down, the EC announced that Winnie Byanyima had beaten Ngoma Ngime with the tiniest of margins, polling 9,980 votes against her rival’s 9,816 votes. The two rivals were separated by a difference of only.

Ngoma Ngime engaged current Attorney General Kiryowa Kiwanuka to petition the courts of law seeking a recount of then votes. To him, the difference of just 164 votes looked bridgeable through a recount. The Chief Magistrate’s court in Mbarara granted the application on July 3, 2001, ordering that the recount would commence on July 5, 2001.

On the appointed day of the recount, Byanyima petitioned the High Court seeking a revisional order setting aside the Chief Magistrate’s order for the recount. The judge upon whom the responsibility fell was Musoke-Kibuuka.

Byanyima, though constitutional law giant Peter Walubiri, had two misgivings about this particular recount. In the first place, she argued, the Chief Magistrate’s Court exercised jurisdiction not vested in it as far as the court ordered a recount after Byanyima’s name had been gazetted by the EC as the winner and the applicant had already taken up her seat in Parliament. The second issue was that 21 of the 66 ballot boxes that were supposed to be a subject of the recount had been found to be without seals, which was contrary to the law.

The vote recount proceeded on day one as Byanyima’s petition was being filed and, luckily for her, recount exercise went into the second day on which Justice Musoke-Kibuuka issued an interim order staying it until the main application would be heard.

The judge’s intervention rubbed Kiryowa and Dr James Akampumuza, who were representing Ngoma Ngime, the wrong the way. On July 10, 2001 they informed the judge how Ngoma Ngime had dumped them. Ngoma Ngime said he would represent himself going forward, insisting that before anything else, the judge first entertains an application they had filed seeking leave to appeal the interim order that had stayed the vote recount process.

The judge declined the invitation, saying it would be procedurally wrong for him to hear the application, which had not been cause-listed for the day and had been filed that very morning. He ordered that the hearing of this application, in which Byanyima was challenging the recount, proceeds. Ngoma Ngime made a statement at the beginning of the hearing of the application and raised what he called issues of objectivity regarding the hearing of the case.

The objection was overruled, prompting Ngoma Ngime to storm out of the court. He said he did not submit to the jurisdiction of this court.

Commenting on Ngoma Ngime’s action in his ruling, Justice Musoke-Kibuuka said: “During all the years that I have been a judge on the bench of this honorable court, I had never witnessed so much disrespect to it.”

Justice Musoke Kibuuka further observed: “That conduct by the respondent was highly contemptuous of this honorable court. Surprisingly, however, the two advocates [Kiryowa Kiwanuka and Dr Akampumuza] for the respondent who had informed the court that they had no instructions to appear in the matter remained sitting in court at the bar throughout the hearing and were busy all
the time taking notes.”

The judge eventually agreed with Byanyima that was wrong for the magistrate to order for a recount yet the respondent had already been sworn in as an MP.

“By looking at the [Parliamentary elections] Act as a whole, it becomes crystal clear that once a candidate takes up his or her seat in Parliament, the only valid question which arises at that point, in relation to his or her election, and which may require determination is, “was this member of Parliament validly elected?” The question, at that stage of the process, is no longer “who is the winning candidate?

The judge ruled that since Byanyima had already been sworn in as an MP, the question of recount would no longer arise at the level of the magistrate’s court and could only be ordered by the High Court. And, he added, the question of whether she had been validly elected would also only be determined by the High Court.

In deciding as he did under the circumstances that obtained and the profile of the case, Justice Musoke-Kibuuka won rave reviews and admiration as a judge with an independent mind. It was only the beginning.

Katuntu vs Kivejinja

The 2001 election had had its troubles and points of controversy. And the election of 2006 wasn’t much better. Justice Musoke-Kibuuka had his opportunity to have his say about the 2006 election through handling the election petition filed against

Ali Kirunda Kivenjinja, a former NRM luminary who also passed away at the end of 2020.

Kivejinja had been declared winner of the Bugweri County MP seat, having polled 17,554 votes against 16,496 votes for Abdu Katuntu, who represented the then newly founded Forum for Democratic Change (FDC) party.

In his petition, Katuntu wanted the election annulled, citing disenfranchising of voters and electoral violence which he said had been meted out on his supporters by those who backed Kivenjinja.

One Jafari Waiswa, in his affidavit, related how he was recruited by an L.C.1 chairperson into a group code-named “Yellow Members” (yellow is the color of the NRM). He named a security operative who he said had trained them at Buwaabe and Ibulenku, with each member of the group paid Shs3,000 every day of the training. When they were done with then training, Waiswa wrote, they were deployed with instructions to beat up Katuntu’s supporters.

The LC1 chairman, in his affidavit, denied recruiting the witness into the ““Yellow Members” group and said he didn’t know the witness in person.

In his ruling, Justice Musoke-Kibuuka refused to believe the LC1 chairman, saying, His denial of the existence of the “Yellow Members” group cannot be believed in light of the overwhelming evidence on record pointing to the existence of that group.”

Justice Musoke-Kibuuka threw Kivejinja out of Parliament and ordered a by-election, which Katuntu won.

Kasibante vs Singh

Then came the 2011 elections. Lubaga North constituency hogged the limelight after the EC announced opposition-leaning candidate Moses Kasibante as the winner, only to turn around later and declare NRM’s Singh Marwaha Katongole the winner following a controversial vote recount. Singh went on to serve as the MP for a number of months.

Kasibante petitioned the High Court, and the job of resolving the impasse again fell on Justice Musoke-Kibuuka.  Singh had secured an order of recount at Chief Magistrate’s Court in Mengo, and the exercise had proceeded under heavy military guard, with Kasibante and his lawyers thrown off the scene at some point.

Having heard and analysed what transpired, Justice Musoke-Kibuuka finally had his say.  “That application (for recount) was filed in the chief magistrate’s court on behalf of the first respondent (Singh), by Messrs Kahumaa and Khaheeru Advocates.  They could well have been handling this kind of application for the first time, or it might have been deliberate … Whereas section 55(1), of the PEA vests a chief magistrate’s court with jurisdiction to conduct a vote recount, the
order that was sought, in Miscellaneous Application No.29 of 2011 [Singh’s application], was an order requiring the second respondent [EC] to conduct a recount of all the votes cast during the Parliamentary Elections in Lubaga North Constituency.  It is a fact that the petitioner was not a party to this application.  It is on record that the learned counsel who represented the second respondent (EC), Mr. Sabiiti, told the chief magistrate’s court at the hearing of the application, that the application was acceptable to the second respondent.  The learned chief magistrate, thus, misdirected himself, fatally, by granting that order in the form in which the prayer had been made.  He ordered the second respondent to recount all the votes cast during the Parliamentary Elections in Lubaga North Constituency.”

The issue in the petition was that the recount proceeded in disregard of a High Court interim injunction that had stopped it.

Both Singh and the EC denied that the interim order was ever effectively served upon any of them, but the chief magistrate of Mengo at the time, Phillip Odoki, who granted the recount order and is now a High Court judge, did not file an affidavit denying service.

Justice Musoke-Kibuuka ruled that he was satisfied that the that the order was effectively served upon everyone who had to be served and, in his conclusion, the service was ignored and the recount went ahead in disobedience of that order.

Justice Musoke-Kibuuka, having annulled the recount, declared Kasibante the winner without going back for a by-election.

The judge wrote: “The illegal recount conducted by the returning officer, Kampala, at Mengo Court on 28th February, 2011, did not affect the declaration of the winner of the parliamentary election in Lubaga North, which was made by the returning officer on 20th February, 2011. It did not do so because the recount was illegal ab-initio.  It had no force of law.”

In the same year, Mohammed Muwanga Kivumbi, then of the Democratic Party (DP), had been declared to have lost the Butambala MP election to NRM’s Faisal Kikulukunyu by a difference of 735. Muwanga filed a petition against Kikulukunyu’s victory, mainly on grounds that Kikulukunyu had bribed voters.

In one of the affidavits, a witness accused Kikulukunyu of giving Shs100,000 to voters at a mosque around Christmas time in 2010. Another witness corroborated the claim, saying she was present at the mosque at Gombe when Kikulukunyu gave the money and that she was a beneficiary of that money; getting Shs1,000 out of it.  She said Kikulukunyu told them that he was giving them the money as a Christmas gift so that they vote for him.

In defence of Kikulukunyu, a witness claimed that Kikulukunyu never donated the alleged Shs100,000, and that he never stepped in Gombe ward during the entire month of December 2010.

To Justice Musoke-Kibuuka, that was enough ground to annul the election. And annul it he did.

This is how he assessed the evidence and reached his conclusion: “Nalongo Nabulya Afuwa was subjected to cross-examination.  Her claim that the second respondent [Kikulukunya] never campaigned in Gombe Ward during the month of December 2011 was proved to be a lie when she was shown the second respondent’s approved campaign programme; indicating that on 22nd and 23rd December 2010, the second respondent [Kikulukunyu] had to campaign in Gombe Ward in Gombe Town Council … Court did not consider Nalongo Afuwa to be a truthful witness.  The court preferred to believe the evidence of Ssegirinya Muhabuba, on this matter, in preference to Nalongo Hafuwa. She confessed to having been a campaign agent of the second respondent in Gombe Ward.  The reason for motive to lie is thus understood.”

The price he paid

Justice Musoke-Kibuuka, a colleague who knew him well has told us, routinely said he did not expect to be promoted to the Court of Appeal of Supreme Court, just like he didn’t expect to be assigned top positions within the High Court.

The reason for that, his former colleague says, is that the judge considered himself marked and not exactly liked by the establishment due to the manner of dispensation of justice.

In 2014, when he had about two years to retire and was the resident High Court judge in Masaka, Justice Musoke-Kibuuka applied for early retirement on account of ill health.

He spent the final years of his life in his native area in Masaka. He died aged 71.

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