IN THE HIGH COURT OF UGANDA

HOLDEN AT MBARARA

HIGH COURT-05-CV-EPA-0003 OF 2001

MUSINGUZI GARUGA JAMES PETITIONER

VERSUS

AMAMA MBABAZI RESPONDENT NO. 1
ELECTORAL COMMISSION RESPONDENT NO. 2

BEFORE: THE HONOURABLE MR. JUSTICE FMS EGONDA-NTENDE

RULING (3)

1. Dr. Byamugisha, learned Counsel for the Respondent No. 1, applied to this court, to the schedule the appearance of witnesses coming for cross-examination, so as to minimize the expense of maintaining those witnesses in Mbarara while at the same time saving time they have to be kept away from their ordinary activities. This would allow the witnesses to go away and return when they are needed, thereby staving off frustration not to come back. Dr. Byamugisha stated that it was not possible to reach agreement with the Petitioner’s Counsel in light of the way things are going.
2. Dr. Byamugisha further submitted that Counsel for Petitioner may indicate how much time they will require for each witness, and whether it is two or more days, the Respondent would bring that witness for those days, while the other witnesses stay away. Mr. Deus Byamugisha, learned Counsel for the Respondent No. 2, supported this application.
3. Mr. Walubiri, learned Counsel for the Petitioner, submitted that this was a simple matter that could have been ironed out by counsel sitting together. He left the matter in the hands of the court.
4. I called out in open court for the witnesses who were present in court to stand up and thirteen persons stood up, and provided their names to court. I inquired of Petitioner’s Counsel how much time was required for cross-examination of each of those witnesses. Mr. Walubiri responded that they would need six hours for the Respondent No. 1, five hours each for Kamara Bayaye, Captain Ndahura, Nakunda Edward and James Kamwesiga. He further stated that they would need an additional three hours to complete the cross-examination of Mrs Mbabazi and for the other eleven the witnesses, they would need about three hours each. The said time estimates did not include allowances for interruptions and objections.
5. Dr. Byamugisha then stated that because of the manner in which they conduct their cross-examination they would be interrupted. An hour should be added for each witness for interruptions. An extra hour should be added for re-examination of the Respondent No. 1 and the other four witnesses. For the rest of the witnesses he stated that an extra-forty five minutes be added for re-examination. Mr. Deus Byamugisha stated that in respect of his witness I should add on extra hour for interruptions and an additional two hours for re-examination.
6. I indicated to the parties that on average five hours were available each day. Dr. Byamugisha then suggested that would work out to two days for each of the five witnesses and one day for the rest of the eleven witnesses. We broke off at that point for a lunch break. On resumption of the proceedings in the afternoon I started off by stating, “I propose then that I shall be available on the following dates. Tomorrow the 8^th February 2002. I suppose we shall have five hours. We shall then resume on the 11^th February 2002.”
7. Dr. Byamugisha at that stage applied that I determine whether the time proposed by counsel is reasonable under circumstances of this petition. And even if it is reasonable whether it is sufficient reason for this court to extend time within which to determine the petition. He referred to Rule 13 of the Parliamentary Elections (Elections Petitions) Rules, (hereinafter referred to as the Rules), and submitted that court must comply with this rule. He stated that he accepted instructions on the basis of this rule. If court was disposed to extend time for reasons of this cross-examination and re-examination, Dr. Byamugisha stated that they have discussed this matter with his learned fried for Respondent No. 2, and they shall require time to do more urgent and pressing matters.
8. Mr. Wandera Ogalo, appearing with Dr. Byamugisha for the Respondent No. 1, on his part, in light of my intimation that I would sit on 11^th February 2002, applied for an adjournment of the hearing of this case as he was to be in Arusha between 11^th and 13^th February 2002, attending to East African Legislative Assembly business. He applied that the hearing be fixed to commence the afternoon of 14^th February 2002. He explained that in accepting the instructions, and taking on other engagements, it had been his estimation that this matter would be finished within one week.
9. Mr. Deus Byamugisha confirmed what Dr. Byamugisha had said about their agreement. He submitted that the availability of witnesses be staggered. He referred both to Section 64 (9) of the Parliamentary Elections Act and Rule 13 of the Rules. He submitted that though a petition must be determined one year from date of filing, once the hearing of the same commences it must be completed within 30 days including determination of the same. And the hearing must be from day to day. Their fear now, Mr. Byamugisha stated, is that it will now take more than 30 days. Time limits are provided for because a petition is a public right and not a private right.
10. In scheduling witnesses, Mr. D. Byamugisha urged me to take into account several factors including the gravity and importance of an election petition; that counsel have got more important matters both within in the country and outside the country; the witnesses include public officers in charge of security both in local and central government, big businessmen who can not afford 3 or more days outside their businesses, and peasants who can’t stay here until there are called.
11. Mr. Mohamed Mbabazi, appearing with Mr. Walubiri for the Petitioner, agreed with Mr. Deus