The Court of Appeal in Kampala has ordered for the fresh hearing of an election petition challenging the election of Forum for Democratic Change’s Geoffrey Ekanya as the Member of Parliament for Tororo North County.
Ekanya with 9,674 votes trounced independent candidate Annet Nyakecho who polled 9,563 votes in the January 14 election, prompting the latter to challenge the election before High Court.
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In the High Court, the petition was thrown out by Justice Andrew Bashaija on technicalities when he ruled that Nyakecho’s lawyer didn’t have a valid practicing certificate.
Unsatisfied, Nyakecho ran to the Court of Appeal to challenge the decision.
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On Wednesday, a panel of three justices of the Court of Appeal including Eva Luswata, Fredrick Egonda Ntende and Cheborion Barishaki ruled that it was wrong for the case to be dismissed on technicalities and therefore ought to be heard again.
In a lead judgment by Justice Eva Luswata, the appellant court explained that it was wrong for the lower court to rule that Nyakecho’s petition was incompetent on grounds that the affidavit, which was the only piece of evidence in support of the petition had been commissioned by an advocate who had no practicing certificate at the time.
The court noted that an advocate that not cease to practice law simply because they have not obtained a practicing certificate for a new year, adding that there is always a grace period of two months after the expiry.
“By no stretch of imagination and in practice, an advocate does not cease to practice simply because they have not obtained a practicing certificate for a new term/year. Indeed, the grace period of two months after December, was meant to allow time for Advocates to fulfil all requirements pre requisite to renewal of their certificates,” Justice Luwasta argued.
The judge, citing the Commissioner of Oaths(Advocates) Act and the Advocates Act explained that an advocate is deemed not to have the right to practice only if they have been removed or struck off the roll, where they are on suspension, or where they have applied to the registrar for their name to be removed from the roll under Section 1O Advocates Act.
“In all three instances, the registrar proceeds to cancel the practising certificate and such advocate must return it to the registrar in line with Section 14(1) and (2) of the same act. The first two scenarios are possible only if such advocate has been the subject of disciplinary proceedings before the Law Council.”
She noted that no such evidence was placed before the court to suggest that Nyakecho’s law Owakukiroru fell under any of those three categories.
Justice Luswata therefore noted that the advocate was still practicing the law and therefore the affidavit he commissioned was valid and that Justice Bashaija of the High Court made an error by throwing out the appeal on grounds that Nyakecho’s evidence in form of an affidavit was incompetent.
“I have found that the trial Judge erred when he relied on the evidence wrongly adduced to allow the objection and to ultimately expunge the petition and its principle affidavit. There was no justification for the award of costs to the respondents. Accordingly, the award is set aside, and ground 1O succeeds.”
The court consequently directed that the case be sent back to the High Court and another judge be appointed to hear it.
“Election petition number 14 of 2021 shall be heard afresh before another judge of the High Court,” the appellant court directed.