The Constitutional Court has denied an appeal filed by Eddie Kwizera, a member of parliament from Bukimbiri, seeking the arrest of Justice Simon Byabakama, the chairperson of the Electoral Commission, and a punishment of Shillings 3 billion for contempt of court.
Kwizera’s motion has been deemed premature, in bad faith, and an abuse of the court process by the panel of Constitutional Court Justices, which also includes Deputy Chief Justice Richard Buteera, Catherine Bamugemereire, Muzamiru Mutangula Kibeedi, Irene Mulyagonja, and Oscar Kihika.
This ruling is based on an application that was submitted on March 17, 2020, and that was based on a judgment that was rendered on December 27, 2019.
Kwizera filed a lawsuit against the Attorney General and the Electoral Commission in this issue, requesting a ruling declaring that the municipalities of Apac, Sheema, Ibanda, Nebbi, Bugiri, and Kotido were never established as constituencies.
Kwizera demanded that the new six seats be removed from government records, that the election of local MPs be void, and that taxpayer funds be returned, claiming that the new constituencies were illegally constituted by parliament.
He pointed to the resolutions of parliament that created these contested constituencies as violations of Articles 61(c), 63(2), and 91(1) of the Constitution.
In order to stop the Electoral Commission from conducting elections in the impacted municipalities, he also requested a permanent injunction.
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.
Additionally, the commission was directed to cover half of the case’s taxed expenses. Dissatisfied with a portion of the ruling, the Commission applied to the Supreme Court on June 4, 2020, seeking a stay of the Constitutional Court’s decisions.
The application was granted. After an appeal by each party, the cases were combined. The Supreme Court rejected the appeals and upheld the Constitutional Court’s ruling on January 6, 2022.
On March 17, 2020, the aforementioned application was submitted, nevertheless, before the hearing and resolution of the consolidated constitutional appeals and the stay application.
A hearing was slated for March 3rd, 2023. Kwizera responded by asking that Byabakama be placed under custody and that he be fined Sh3 billion for contempt of court.
In addition, he called for an immediate end to all electoral preparations for parliamentary constituencies established following the 2021 elections.
Under the counsel of Hamidu Lugoloobi, the Electoral Commission urged the court to reject the application, claiming that the court’s orders had already been followed and that they had already filed proof of constituency prescription and demarcation for the 2020–2021 general elections.
Lugoloobi further argued that the application, which was filed concurrently with the Supreme Court’s stay of execution and appeal processes, was vexatious and a misuse of the legal system.
He underlined that contempt proceedings are detrimental to appeals and stays of execution, which could result in contradictory rulings from the Supreme Court and Court of Appeal and amount to judicial abuse.
Lugoloobi pointed out that the application was submitted too soon because the Commission was still within the time limit set by the Constitutional Court to submit proof of prescription and constituency demarcation.
The Justices agreed with Lugoloobi in their judgment of October 6, 2023, dismissing Kwizera’s motion with costs because it was filed too soon.
“It is abundantly evident that the applicant in this instance abused the court system by bringing this contempt action before the purported act of contempt had taken place. The Justices stated,
“We believe that this makes the application pointless and burdensome for the respondents, who had to pay for the Commission to respond to it.
They underlined that since the motion was filed prior to any act of contempt, it was baseless and vexatious.
The pleadings in the Notice of Motion do, in fact, demonstrate that this case was filed prematurely; no contempt was committed at the time the application was filed. The Justices declared,
“In the premises, we uphold the second preliminary objection and strike out the application on the grounds of frivolousness and abuse of court process.”
Additionally, they pointed out that, although it was filed in March 2020, it was filed prematurely and served to the respondents only in February 2023.
“By that time, the 1st Respondent had filed the requisite evidence of prescription by Parliament and evidence of demarcation of constituencies.
This is refuted by the applicants. But if we hadn’t rejected the application, we would have assumed that, by the time the case came before the hearing, the first respondent or commission had cleared the contempt,” they said.
