Few months ago Mabirizi petitioned the High Court seeking orders for Byabakama to vacate the office of Chairperson of the Electoral Commission which he assumed without resigning his duties as justice of the Court of Appeal.
Mabiriizi has made a name as a public interest lawyer, who pursues cases seen as being in public interest. He was the lead petitioner in the famous 2016 Age-limit case in the constitutional court case that challenged legality of Parliament’s decision to remove the two term limit from the constitution.
In his application Mabirizi contends that it is unlawful for justice Byabakama to continue holding two government offices at the same time.Mabirizi said this compromises the independence of the judiciary in deciding over electoral petitions since it is one of their own who heads the institution which would have sanctioned the illegality being challenged.
He said the judiciary still maintains Byabakama on its official website as a justice of the court of Appeal, meaning that he is still employed as a judge.
Although the hearing has been ongoing before justice Musa Sekana ,Mabirizi on Monday Dec 23, went to High court to apply for a miscellaneous application seeking interim injunction restraining Byabakama from carrying out duties at the Electoral body until the main application is disposed off.
“I am praying for a mandatory or temporary injunction to restrain justice Simon Byabakama Mugenyi from performing the functions of the chairperson electoral commission until our case is determined, so it is so clear that actually application is going to take long to be determined ,”he said.
He further noted :”And actually after the Judge’s failure to summon Byabakama we have embarked to the discovery process where we want all those documents which want to ask justice Byabakama to avail that may take so long,”
He justified the necessity of his prayer for temporary injunction claiming that it’s proper for the contested personnel to step aside to allow main case proceed expeditiously .
He also citing the similar cases where the same has been applied by the courts of law.
“This is not a new trend, it has been here, court has ordered people to step aside, according to temporary in conjunction we want this court to direct him to step aside until the case is determined,” he said.
He said Byabakama’s participation in electoral process come 2021 may cause it’s nullification because he is conducting the work illegally.
“We shall get a worse scenario when after conducting elections and declaring a winner and the court says actually he was holding elections illegally, so what will happen to the president who has been declared? we are just saving the situation because we are saying this man is conducting the work illegally,”he said.