On Monday morning, the High Court dismissed Fred Nyanzi’s election petition against Kampala Central legislator Muhammad Nsereko.
The Court dismissed the petition on several grounds such as failure to adduce evidence to the satisfaction of the court following Nyanzi’s claim that the election was not conducted in accordance with the principles as laid down in the provisions of the electoral laws that ensure free and fair elections.
Nyanzi Fred Ssentamu (the Petitioner) from National Unity Platform and Nsereko Muhammad (Independent) with 3 others contested for the vacancy of Member of Parliament for Kampala Central Constituency in the elections held on the 14th day of January 2021.
At the end of the election, the Electoral Commission announced Nsereko as the duly elected Member of Parliament. However, Nyanzi was dissatisfied with the result and the general conduct of the elections upon which he petitioned the High Court Civil Division challenging the conduct of the elections.
In his petition through his lawyer Mr. Justine Semuyaba, Nyanzi urged that there was non-compliance with electoral laws in the conduct of the election. He also urged that there were offences committed by the Nsereko. Nyanzi also affirmed that Nsereko’s offences substantially affected the results of the elections.
According to the court, Nyanzi had the burden of proof to prove the assertions in the election petition to the satisfaction of the court on the basis of a balance of probabilities.
However, according to the ruling on whether there was non-compliance with the election laws in the conduct of the election for member of parliament Kampala central constituency, the court found out that Nyanzi failed to adduce evidence to the satisfaction of the court that there was a failure to conduct the election in accordance with the principles as laid down in the provisions of the electoral laws.
On whether there were any electoral offences committed by the Electoral Commission and Nsereko, the court also ruled that there is no evidence that the said Lubega Hamza a joker and self-confessed criminal participated in the ballot stuffing.
“He is merely a stage-managed witness whose evidence cannot be safely relied on. There is therefore no evidence of ballot stuffing. The source and the authenticity of the allegedly left out unstuffed ballot papers (P. Exh.7) remain unverified,” the Court ruled.
On whether there were electoral offences committed by the Nsereko, the court asserted that the Petitioner (Nsereko relied heavily on a flash disk (P. Exh. 13) purportedly recorded by a one Nuwamanya Herbert using a smartphone at Nakitende garage. The flash disk content was found not in the language of the court, English and no translation accompanying it was filed. It was therefore unusable since the local language of the disk content could not be comprehended by the court.
The court also alluded that besides, the said Nuwamanya Herbert who purported to have recorded the contents in the flash disk did not testify in court. The other claims of bribery at Kamwokya stage, Kiira Rd playground, were not proved since no witness testified in court regarding those stations.
The court, therefore, ruled on this particular issue that there is no evidence adduced to the satisfaction of the court of any electoral offence committed by the Nsereko (3rd Respondent). “All in all, the 1st, 2nd & 3rd issues are resolved in favour of the Respondents whereby their determination also disposes of the 4th issue i.e., no evidence was adduced by the Petitioner to the satisfaction of court but there was non-compliance with electoral roles or commission of electoral offences and that such substantially affected results of the election.”
It was from the above observations that the court ruled that Nsereko was validly elected as a member of Parliament Kampala Central constituency. “There is no valid basis presented by the Petitioner for a recount of votes under Section 54 PEA. Costs are in favour of the Respondents as the successful parties.”
It must be recalled that this is the second ruling in this case, the first was made by High Court Margaret Apiny who dismissed it on the grounds that Nyanzi failed to serve Nsereko as required by the law.
However, in June last year, the Court of Appeal ordered a fresh hearing of the said petition noting that Nyanzi made all required efforts to serve Nsereko but Nsereko also made all efforts to dodge it.
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