Supreme Court ruling: Akena’s full statement

Last Updated on: 16th October 2023, 01:39 pm

Kampala I After the recent Supreme Court ruling that Jimmy Akena’s election as UPC party president was illegal, null and void; Akena has spoken for the first time since such a ruling was made.

Addressing a press conference in Kampala on Monday, October 16, here is what he said:

This case relates to a 2015 High Court Ruling which was filed by the late Joseph Bossa who was then the Vice President of UPC during the term of Olara Otunnu. He made an application contesting my 2015 election as Party President requesting for a Judicial Review against the UPC and the UPC Electoral Commission.

The High Court Judge Yasin Nyanzi heard the matter and declared that my election violated the UPC Constitution and ordered for election in compliance with the UPC constitution.

We were dissatisfied and appealed to the Court of Appeal vide Civil Appeal No. 20 of 2016. We then applied for a stay of execution of the orders of the High Court which was granted. In July 2020 Prof.  Kakonge applied to replace Joseph Bossa, after notice to hold a Delegates Conference on 1st August 2020 had been issued and preparations concluded. Court granted the application for Prof. Kakonge to substitute Joseph Bossa and hearing of the case commenced. During the hearing on 29^th July 2020, they prayed for three orders to be issued before the disposal of the main suit.

1. That Court of Appeal to vacate the stay of execution order of the High Court which was granted in my favour.
2. That the Court grants an interim order staying the Delegates Conference which I had convened for 1st August 2020.
3. That the UPC accounts be blocked until the final determination of the Case.

The Court of Appeal only granted the second and third. Meaning that I continued as the Party President. In respect to staying the Delegates Conference, two matters arose, namely;

a) the Party was served with the Order after the Delegates Conference had sat and elected the Party  President for the period 2020-2025.

b) the Party being dissatisfied with the interim orders appealed to the Supreme Court seeking orders to stay  their execution.

Under the rules of court, one is required to first seek leave from the Court of Appeal before appealing directly to the Supreme Court unless there are exceptional circumstances that warrant Supreme Court to waive that rule, in which case one must seek leave from the Supreme Court and be able to prove that there are indeed exceptional circumstances. In our case, we had appealed directly to the Supreme Court arguing that the following exceptional circumstances existed.

1. The roadmap for 2021 General Elections was already out and members of the UPC who were interested in vying for various positions at all levels were supposed to pay nomination fees into the UPC bank account in order to become Party flag bearers. This also had a bearing on their participating in primary elections as flag bearers for the 2021 General Elections.
2. As a Party President, I had the responsibility to seek to have Party members vying for elective positions at all levels.
3. All payments, including donor funding, came through the Party bank account and the order of the Court of Appeal would stifle the operations of the Party and deprive it of the constitutional right to participate in the democratic process of the country.

Implication of the Supreme Court ruling delivered on Friday the 13th October 2023. In determining the issues, we raised, the Supreme Court framed two legal issues:

Whether we had the right to lodge in the Supreme Court the application to seek leave. Secondly, whether we had the right to appeal to the Supreme Court against an interlocutory order from the Court of Appeal.

The Supreme Court while quoting from precedence and jurisprudence clearly stated that:

“I also note that the interim order issued by the Court of Appeal thwarted the 1st Applicants from accessing its bank accounts which were essential in funding the Political party’s elections. At that point, time was of essence because the electioneering period was already underway, and the Applicants had only so much time to produce candidates for the 2021 elections. If these facts still stood, there is likelihood that this Court would have allowed the application without the need of first lodging the same in the lower court. However, the status of this case has since changed and rendered the would-be exceptional circumstances moot.  It is on record that the interim order which prohibited the 1st Applicant from accessing the bank accounts and stayed the party’s delegates’ conference lapsed upon the delivery of the Court of Appeal’s judgment on 7 September 2020 in Civil Appeal Number 20 of 2016.” 

Because the ruling came on Friday the 13th of October 2023 the looming time bound electoral process is no long before us.

Earlier on, Supreme Court by Justice Mike J. Chibita; JSC had ruled on 30th September 2020 in Civil Application 27 of 2020 as follows:

“The Orders that the applicants are seeking to stay were time bound, i.e. until resolution of Court of Appeal Civil Appeal No. 20 of 2016. The condition precedent upon which those orders were tagged has elapsed by delivery of the judgment in that appeal. The Orders sought to be stayed are, in effect, non-existent. 

“Those orders ceased being effective upon delivery of the judgment of the Court of Appeal on 7th September, 2020.” 

Justice Chibita further ruled that:

“The basis for the instant application is no longer pertaining. This means that there is no legal and factual basis for the application. The ground upon which the application was made shifted. The Application has no more legs to stand on. The application has been rendered nugatory. It is moot and academic. That being the case, the application must collapse.”

On the basis of this ruling, the UPC was able to access its Bank account in Housing Finance Bank  and was able to go ahead to participate in the 2021 General Elections returning Members of  Parliament, LCV Chairman, Municipal Mayors, LC3 Chairpersons and Councilors at District,  Municipal and Sub-county levels.

On the 10th of August 2020 there was a Contempt of Court case filed in the Court of Appeal seeking the following declarations:

1. A declaration that the act of the respondents in convening, presiding over and participating  in a purported Delegates Conference of the Uganda Peoples’ Congress (UPC) on the 1st  day of August 2020 was in contempt of the Court Order.
2. A declaration that any resolutions and decisions taken at the said purported Delegates’ Conference including the purported election of the 3rd respondent as UPC Party President is null and void.
3. A declaration that all actions done by the 3rd respondent after the purported Delegates  Conference in the capacity as Party President of UPC including appointment of Party  Cabinet Members is null and void.
4. An order that the 3rd respondent be committed to civil prison for a period of one (1) year  for acting in contempt of the Court Order.
5. An Order that the Respondent pay damages and compensation to the Applicant in the sum of UGX. 300,000,000/= for contempt of the Court Order.
6. An Order that the respondents pay costs of this application.

This case of contempt was dismissed by the Court of Appeal.

In conclusion therefore, the findings of the Supreme Court were based on the preliminary objections of the lawyers of Prof. Kakonge who argued that;

The matters I raised were overtaken by events 

That I had no right to seek leave of the Supreme Court to appeal directly. 

I therefore agree with the court ruling in as far as that there were indeed extenuating circumstances at  the time of lodging the case, warranting us to go directly to the Supreme Court and that those circumstances no longer obtain as UPC was able to participate in the 2021 General Elections.

I am therefore calling on all UPC members to continue with the mobilization for the upcoming elections and also to heighten our preparation and mobilization for the 2026 Elections. We will soon be calling on members of the National Council to prepare to deliberate and set into motion clear activities for the 2026 election.

J. Akena MP, PRESIDENT