By Sania Babirye
Police has today arrested a Rubaga South voter Habib Buwembo for holding a hunger strike at the high court headquarters in protest of the failure by the court of appeal to determine an election petition he filed in 2016 challenging the victory of his area MP Kato Lubwama for luck of academic qualifications.
Today, Buwembo stated that he will be under going a hunger strike at the high court headquarters until the chief justice Bart Katureebe intervened in his matter to have his case determined.
He further stated that he was going to hold his hunger strike alone to avoid police arresting him on charges of holding an illegal assembly, however, police arrested him and is currently being held at CPS.
In July 2019 drama ensued in the court of appeal after three justices led by deputy chief chief justice Alfonse Owiny Dolo denied ever making a ruling in an election appeal by Kato Lubwama without hearing the case.
The denial came after the same court of appeal Justice Cheborion Barishaki on the 28th of may announced a judgement date on the matter, but Buwembo objected to the said ruling on grounds that the judgement was illegal because court can not rule on a matter it had never heard
The deputy chief justice denied the said date calling it an error and announced that the case will be heard before a judgement is made.
In the said filed appeal, Kato Lubwama is challenging High court judge Margret Oguli Oumo’s decision to grant a Rubaga south voter Habib Buwembo to file an election petition challenging his victory due to lack of the requisite academic qualification out of time.
The the said appeal was first heard in July 2017 by the now retired former deputy chief justice Steven Kavuma, Helene Obura and Cheborion Barishaki.
However, Buwembo filed an application asking justice Kavuma to be excused from the case due to impartiality and biasness.
Ssemakade had argued that justice Kavuuma will not be partial and objective while hearing and determining the appeal with other two justices.
However in a ruling red by Deo Nzeyimana the court of appeal deputy registrar , justice Kavuma declined to step aside from the case saying litigants do not have a right to determine which judicial officers should hear and determine their cases
Justice Steven Kavuuma then heard the matter until he retired as deputy chief justice and forwarded the file to the now deputy chief justice Dolo.
In the appeal Kato Lubwama is challenging High court judge Margret Oguli Oumo’s decision to grant a Rubaga south voter Habib Buwembo to file an election petition challenging his victory due to lack of the requisite academic qualification out of time.
Through his lawyers led by Asuman Basalirwa, Kato Lubwama wants court of appeal to dismiss the high court ruling and the election petition which Buwembo has since filed against him challenging his victory .
Justice Oumo granted Buwembo’s application on grounds that evidence brought in court proved that Kato Lubwama indeed lied to the Electoral commission when he claimed that he possessed a valid 0’level certificate from Old Kampala SSS well knowing that it was not registered by the Uganda Registration services Bureau.
Buwembo claims that he has since then learnt that Kato Lubwama scored result 7 from UCE which could not be relied on to sit mature age entry exams to be admitted for a diploma in Music Dance and Drama at Makerere University.
Justice Oguli noted that fraud was a serious allegation that cold not be merely exhausted through investigations since these matters pertaining an MPs qualification was of a great national importance.
The judge also ruled that it took Buwembo seven months to discover the said fraud since UNEB clarified on Kato Lubwama’s academic papers on the 10th/October 2016 hence filing this application on the 12th/October 2016 calling for him to have can extention of time for filling the application.
By law an election petition must be filed within 30 days after an MP is gazzated.
In his defense, Lubwama says the judge has no powers to extend time set by Parliament, and allow Habib Buwembo to file an election petition to challenge his academic qualification.
This is Kato’s response to the application his Voter Buwembo filed out of time, seeking for 30 days to hunt for 500 signatures supporting his election petition, intended to throw Lubwama out of the 10th Parliament.
His lawyers led by Asuman Basalirwa informed presiding Judge Magret Oguli Oumo that the law governing Parliamentary elections is good law, because it confirms the principal of separation of powers; therefore enlarging time with no enabling provision permitting court to do so, would be judicial legislation.
He then invited Justice Oguli to be bound by the decisions of her brother justices in the High court, Court of Appeal and the Supreme court, who have extensively considered the same application and all came to one conclusion that time set by parliament cannot be extended.
Buwembo dragged Kato to court claiming that Kato Lubwama lacks the minimum academic qualifications to be a member of parliament having failed his Uganda Certificate of Education examinations.
Buwembo further contends that according to the document signed by Uganda National Examination Board, Kato obtained result 7, and therefore did not qualify for the award of a certificate.
In December 2017, High court Judge Margret Oguli Oumo granted permission to a Rubaga South voter Habib Buwembo to file an election petition against his area MP challenging his academic qualifications in not less than 30 days.
This after Justice Oguli ruled that there is unchallenged evidence on court record showing that Kato Lubwama lied to the Electoral commission that he possesses a valid certificate of O’level from Old Kampala SSS yet the same is not registered by the Uganda Registration services Bureau.
Buwembo says he has since learnt that Kato Lubwama scored result 7 from UCE which could not be relied on to sit mature age entry exams to be admitted for a diploma in Music Dance and Drama at Makerere University.
The judge noted that fraud is a serious allegation that cannot be merely exhausted through investigations since this matters pertaining an MPs qualification is of a great national importance .
The judge’s decision to enlarge time within which Buwembo can file an election petition was based on the fact that Buwombo proved that it took him 7 months to discover the said fraud UNEB having clarified on Kato Lubwama’s academic papers on the 10th/October 2016 hence filing this application on the 12th/October 2016.
Court then ordered that Buwembo has a proper case and that Kato Lubwama and the Electoral commission should pay him costs of this application.
But in the same year, the Court of Appeal issued an interim order staying the hearing of an election petition against Lubaga South MP Paul Kato Lubwama in the Highcourt.
Justice Cheborion Barishaki ruled that there are serious judicial issues that must be first investigated by the Court of Appeal before the lower court can proceed with hearing of the election petition filed by Buwembo.
The judge was in concurrence with Kato Lubwama’s lawyer Caleb Alaka that there are serious inconsistencies on the question of extension of time within which an election petition can be filed in the High court.
Alaka presented to court a number of High court decisions in which four judges declined to enlarge time fixed by parliament (30 days after an election) to file an election petition while 2 other judges have gone a head to extend this time.
It’s against this background that justice Barishaki halted the hearing of Buwembo’s election petition which had been fixed for the 2nd of March 2017 by Justice Margret Oguli Oumo until three justices of the Court of Appeal pronounce themselves on the matter.
Barishaki noted that there might be a miscarriage of justice if the petition proceeds in the High court since Kato Lubwama maintains that the said petition against him is illegal.
Buwembo on the 2nd of January 2017 filed a petition questioning Kato Lubwama’s academic qualification saying he is unfit to be an MP.