City lawyer Hassan Male Mabirizi has asked the High Court to stop Justice Simon Byabakama from carrying out the functions of the office of the chairperson of the Electoral Commission (EC) until the final determination of the suit he filed against him.
In an application lodged before the Civil Division of the High Court on Monday, Mabirizi argued that Byabakama’s continued performance of his duties will render the main suit nugatory.
“There is an imminent danger that Justice Byabakama will continue contravening the Constitution by holding out as EC chairperson in the pendency of the main case which is likely to take longer to be determined given my initiated recusal proceedings and discovery of documents process,” Mabirizi said.
Mabirizi wants a temporary injunction to be issued restraining Justice Byabakama from carrying out the functions of the office of the chairperson of the Electoral Commission until the final determination of the main case.
Civil Division deputy registrar Sarah Langa is yet to fix the application for hearing. On August 12, Mabirizi sued the Attorney General (AG) seeking a declaration that Justice Byabakama’s continued holding of the office of EC without relinquishing the position of judge of the Court of Appeal is illegal.
“Article 60(5) of the Constitution provides that a public officer has to relinquish his or her position in that office on appointment as a member of the commission,” Mabirizi contends.
Mabirizi says the Judiciary portal reflects Byabakama as a Justice of the Court of Appeal on a special assignment which he says compromise the independence of the Judiciary in dealing with electoral matters.
In a similar matter, a group of 13 opposition leaders led by Kampala Lord Mayor Erias Lukwago also wants Byabakama removed from office, saying he is holding it illegally. They also want EC secretary Sam Rwakoojo removed from office on grounds that he is there illegally since his contract expired.
The petitioners further want the court to declare the ongoing registration of voters null and void on grounds that it will disenfranchise Ugandans who will be turning 18 before the elections.
Byabakama, however, says that he no longer performs any functions of a judge of the Court of Appeal and neither attends any workshop or activities related to the Judiciary.
On July 1, 2017, President Yoweri Museveni appointed Justice Byabakama the EC chairperson, replacing Eng. Badru Kiggundu. Last week, the drama unfolded in court when High Court Judge Musa Sekaana dismissed an application for the cross-examination of Byabakama and Rwakoojo.
The petitioners had asked the court to summon Byabakama and Rwakoojo for cross-examination about the contents of their affidavits. However, the trial judge dismissed it on grounds that they made no case for its being granted.
When the judge dismissed their application, they made another application requesting him to withdraw from the case on grounds that he was formerly a lawyer for the Electoral Commission.
They further accuse the judge of expressing bias. The hearing of the main application is pending the judge’s decision on whether or not to disqualify himself from the case.