EC boss Byabakama survives jail, Shs 3bn fine over contempt of court

The Constitutional court has dismissed an application in which Bukimbiri MP, Eddie Kwizera, sought the arrest of Electoral Commission chairperson Simon Byabakama and a fine of Shs 3 billion for contempt of court.

Constitutional court justices comprising deputy chief justice Richard Buteera, Catherine Bamugemereire, Muzamiru Mutangula Kibeedi, Irene Mulyagonja, and Oscar Kihika declared Kwizera’s application as premature, in bad faith, and an abuse of the court process.

This decision stems from an application filed on March 17, 2020, which originated from a December 27, 2019, judgment. In this case, Kwizera had sued the attorney general and the Electoral Commission, seeking a declaration that the creation of Apac, Sheema, Ibanda, Nebbi, Bugiri, and Kotido municipalities as constituencies was null and void.

Kwizera argued that the new six constituencies were illegally created by parliament, demanding they be expunged from government records and the nullification of the election of the area MPs with a refund of taxpayers’ money.

He cited violations of Articles 61(c), 63(2), and 91(1) of the Constitution in the resolutions of parliament creating these contested constituencies. He also sought a permanent injunction to prevent the Electoral Commission from holding elections in the affected municipalities.

The court partially granted his petition, nullifying elections in these constituencies, and ordered the Electoral Commission to provide evidence of the prescription of the number of constituencies in Uganda for the next general elections within a year and demarcation evidence within ten months, in accordance with parliament’s prescription.

The commission was also instructed to pay half of the taxed costs of the case. Unsatisfied with a part of the decision, the EC filed an application for a stay of execution of the orders of the Constitutional court in the Supreme court, which was granted on June 4, 2020.

Both parties appealed, and the cases were consolidated. On January 6, 2022, the Supreme court confirmed the Constitutional court’s decision and dismissed the appeals. However, the application in question was filed on March 17, 2020, before the application for a stay and the consolidated constitutional appeals were heard and determined. It was scheduled for a hearing on March 3, 2023.

In response, Kwizera requested the arrest of Byabakama and a Shs 3 billion fine for contempt of court. He also demanded an immediate halt to all preparations for elections in parliamentary constituencies created after the 2021 elections. The Electoral Commission, represented by lawyer Hamidu Lugoloobi, urged court to dismiss the application, arguing it was overtaken by events as they had already complied with the court’s directives, with evidence of constituency prescription and demarcation for the 2020-2021 general elections already filed.

Lugoloobi further contended that the application was an abuse of court process and vexatious, filed in parallel with the Supreme court’s stay of execution and appeal proceedings. He emphasized that contempt proceedings are unfavourable to appeal and stay of execution proceedings, potentially leading to conflicting judgments at the Supreme court and Court of Appeal, constituting an abuse of court process.

Lugoloobi noted that the application was filed prematurely, as the time frames for the commission to file evidence of prescription and constituency demarcation as directed by the Constitutional court had not elapsed. In their ruling dated October 6, 2023, the justices concurred with Lugoloobi, dismissing Kwizera’s application with costs due to its premature filing.

“It is quite clear that the applicant, in the instant case, improperly used court processes by filing this action for contempt before the alleged act of contempt had occurred. This, in our view, renders the application frivolous and vexatious to the respondents who have had to respond to it at the cost of the commission,” said the justices.

“Indeed, when we look at the notice of motion, the pleadings therein do show that this matter was filed prematurely; there was no contempt committed as of the time of filing the application. In the premises we uphold the second preliminary objection and strike out the application for being an abuse of court process and being frivolous,” added the justices.

They also noted that it was filed prematurely and served upon the respondents only in February 2023, despite being filed in March 2020.

“By that time, the 1st respondent had filed the requisite evidence of prescription by parliament and evidence of demarcation of constituencies. The applicants dispute this. However, had we not struck out the application, we would have taken the view that the 1st respondent/commission had purged the contempt by the time the matter came up for hearing,” they added.