By Farooq Kasule
The Court of Appeal has ordered former Lubaga South MP Paul Kato Lubwama to pay costs in a 2016 election petition filed against him by voter Habib Buwembo.
Three justices Christopher Madrama, Irene Esther Mulyagonja and Monica Mugenyi yesterday dismissed Kato Lubwama’s appeal with costs after he skipped court despite receiving a hearing notice.
“We have seen an affidavit of service that was sworn by Eunice Nabwire, a process server dated August 30, 2021 in which she states that she effected service on counsel for the appellant who accepted service. In view of that, this appeal is dismissed and the costs shall be borne by the appellant (Kato Lubwama),” Madrama ruled.
This means that Kato Lubwama will pay Buwembo in double cost for that in the High Court and Court of Appeal while the Electoral Commission will pay costs for the lower court.
In 2016, Buwembo petitioned the High Court seeking to unseat Kato Lubwama on grounds that he did not have the requisite minimum academic requirements for him to represent the people of Lubaga South.
Upon hearing the petition, Kato Lubwama sought to throw out Buwembo’s case, saying that he had filed it out of time.
In December 19, 2016, retired High Court judge Margaret Oguli-Oumo, however, granted Buwembo permission to file an election petition against Lubwama within 30 days.
Being dissatisfied with the decision, Kato Lubwama petitioned the Court of Appeal to quash the lower court decision.
Kato Lubwama through his lawyers Caleb Alaka, Samuel Muyizzi and Luyimbaazi Nalukoola argued that the High Court judge erred in law when she held that the court had jurisdiction to extend the 30 –day time frame in which an MP election can be challenged under the doctrine of checks and balances.
“The learned trial judge misconstrued the provisions of Article 86 of the Constitution and Sections 60 and 86 of the Parliamentary Elections Act and arrived at a wrong conclusion allowing extension of time to file an election petition under the aforesaid provisions of the law,” Alaka contended.
Kato Lubwama’s lawyers further claimed the trial judge erred in law when she held that petitioner Habib Buwembo had locus to file the application without being supported by the signatures of not less than 500 voters registered in the constituency.
In rebuttal, Buwembo through his lawyer Isaac Ssemakadde contended that Lubwama had no right to appeal against interlocutory matters, saying he should have waited for the High Court to determine the petition and then appeal.
Interlocutory refers to an order, sentence, decree, or judgment, given in an intermediate stage before the commencement and termination of a cause of action used to provide a temporary or provisional decision on an issue.
Ssemakadde insisted that there was no need to stay high court proceedings since Kato Lubwama was an MP and court had not yet determined the winner of the petition.
In his petition, Buwembo asserted that Kato Lubwama failed English, Mathematics, and Commerce, but got a credit three in Christian Religious Education, a pass eight in history and Geography respectively in senior four.
According to Buwembo, the results did not merit Kato Lubwama a UCE certificate, a prerequisite for taking Uganda Advanced Certificate of Education (UACE) that ordinarily enables a person to pursue a diploma or degree course at a University.
It is alleged that Kato Lubwama used the said documents to sit mature age entry exams to be admitted for a diploma in Music, Dance and Drama at Makerere University.
Court documents indicate that Kato Lubwama joined Makerere University in 1993 after he presented a letter from UNEB, confirming that he sat for his O’ level.
