hon. eddie kwizera vs nsaba buturo, national resistance movement.pdf
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THE REPUBLIC OF UGANDA
I THE HIGH COURT OF UGANDA AT KAMPALA
(CIVIL DIVISIO )
MISCELLANEOUS CAUSE NO 25
2016
1. HON. EDDIE KWIZERA WA GAHUNGU
2. BARIHIMA HAHAKWIHA MATHIAS:::::::::::::::::::::::::::::::: APPLICANTS.
VERSUS
1. ELECTORAL COMMISSION
2. ENG. DR. BADRU KIGUNDU
3. NATIONAL RESISTANCE MOVEMENT
4. NSABA BUTURO::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENTS.
BEFORE: LADY JUSTICE LYDIA MUGAMBE
RULING
a) Introduction and Background
1. This is a ruling on an application by notice of motion for a multitude of judicial review
remedies under the Judicature Act Cap 13, the Civil Procedure Act Cap 71, the Judicature
(Judicial Review) Rules S.I o. 1112009 and the Civil Procedure Rules, for violations of
the Parliamentary Electoral laws and the Constitution. The Applicants brought this
application against the 1
st
and 2
nd
Respondents. The 3
rd
and
4th
Respondents applied to be
added as Respondents vide Miscellaneous Application No. 83 of 2016 and were added
as such.
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2. The Applicants seek:
a) An order of certiorari calling for and quashing the 2
nd
Respondent s decision in
Kampala on
is
February 2016 and communicated on 22
nd
February 2016 purporting
to suspend an already concluded electoral exercise for Member of Parliament for
Bufumbira East Constituency.
b) An order of mandamus compelling the 1st Respondent to announce and gazette the
results for the said Bufumbira East Constituency Member of Parliament elections of
18
th
February 2016.
c) An order of prohibition restraining the 1
st
Respondent from conducting any other
elections for Bufumbira East Constituency Member of Parliament unless the elections
of February
is
2016 are first set aside by a competent Court oflaw.
d) A declaratory order to the effect that the impugned decision of the 1
st
and 2
nd
Respondents dated 18
th
February 2016 could not have had the effect of setting aside
and/or causing the suspension of the electoral exercise of Bufumbira East
Constituency that had already taken place on 18
th
February 2016 to finality.
e) A declaratory order to the effect that the second Respondent usurped the powers of
the first Respondent and as a consequence, the impugned decision of the 1
st
Respondent is in fact the decision of the 2
nd
Respondent in his personal stead and is to
that extent illegal, irregular, full of malafide and void ab initio.
f) A declaratory order to the effect that the purported decision to suspend elections of
Bufumbira East Constituency was premised on a fake, shady, corrupt and fraudulent
excuse, to wit; that the party symbol of one of the candidates had not been included
during the printing of ballot papers, whereas not.
g) A declaratory order to the effect that the impugned decision is arbitrary,
unreasonable, illegal and ultra vires the powers of the 1st and 2
nd
Respondents in so
far as no pre-polling complaint had been made to the 1
st
Respondent to warrant the
hearing and determination of the same in accordance with Article 61 of the
Constitution and Section 15 of the Electoral Commission Act Cap 140.
h) A declaratory order that the only circumstance under which the 1
st
Respondent can
issue a decision such as the impugned one is only as provided for under Article 61 of
the Constitution and Section 15 of the Electoral Commission Act.
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i) A declaratory order that the 2
nd
Respondent is not legally authorized to exercise any
power affecting the road map of an electoral exercise and or suspending it except only
subject to the 1
51
Respondent holding a meeting and reaching a consensus to the
effect, which ritual was not adhered to in this particular case.
j) A declaratory order to the effect that in the conduct of a parliamentary election there
can only be a second nomination in a by-election.
k) An injunctive order restraining the 1
51
Respondent from carrying out the threatened
arbitrary electoral exercise communicated in its impugned decision.
1) An order of mandamus compelling the
15t
Respondent to announce the winner in the
parliamentary election for Bufumbira East Constituency of February 18
th
2016.
m) General damages.
3. The application is supported by affidavits of Eddie Kwizera Wa-Gahungu, the
I Applicant who contested as a Member of Parliament in Bufumbira East Constituency
in Kisoro Electoral district and Sibomana Ivan who was a polling assistant at Kabami
Primary School polling station, in the same electoral district during the presidential and
parliamentary elections of
is
February 2016.
4. The Respondents oppose the application through the affidavits of James. S. Mukasa, the
3
rd
Respondent s Director for Legal Services and the 2
nd
Respondent who is the
Chairperson of the 1
51
Respondent. The Applicants are represented by Mr. Kanduho
Frank of
is
Kanduho and Company Advocates. The 1
51
and 2
nd
Respondents are
represented by Mr. Lugolobi Hamidu of the Legal Department of the 1
5t
Respondent
while the 3
rd
and
4t h
Respondents are represented by Mr. Idoot Augustine of Kampala
Associated Advocates.
5. The background of this application is that sometime in 2015, the 1
51
Applicant and the
4t h
Respondent contested in the NRM primaries for NRM flag bearer. The 1
5t
Applicant lost.
The 4th Respondent won and was presented by the 3
rd
Respondent to the 15t Respondent
as its party sponsored candidatelflag bearer for Bufumbira East Constituency for the
position of Member of Parliament in the 2016 general elections.
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6
Vide Civil Suit
47
of
2015
in the High Court of Uganda at Kabale, the
1st
Applicant
challenged the results of these primaries. On 2
nd
December, 2015 through Miscellaneous
Application No. 79 of 2015 the 1st Respondent obtained an interim order barring the 4th
Respondent from being nominated as the 3rd Respondent s flag bearer till the disposal of
Civil Suit No.
47
of
2015
On
21 st
December
2015
in final disposal of Civil Suit No.
47
of
2015
the
1 st
Applicant s suit was dismissed and the interim order vacated. The 3
rd
and
4th Respondents subsequently obtained a consequential order vide Kabale High Court
Miscellaneous Cause No 1 of 2 16 on 14th January 2016 wherein the 1
st
Respondent
was compelled to nominate the
4th
Respondent as NRM flag bearer for Bufumbira East
Constituency Member of Parliament.
7 The elections took place as scheduled on February is 2016 for Bufumbira East
Constituency as part of the country wide presidential and parliamentary elections.
However, the I Respondent suspended the electoral process in Bufumbira East
Constituency because of the non-inclusion of the yellow Bus symbol for the 4th
Respondent the party sponsored candidate on the ballot papers. For clarity, the yellow
Bus symbol was the 3
rd
Respondent s symbol in the elections.
8. Following this suspension, the Applicants brought this judicial review application. They
contend that the 1st Respondent received no complaint whether before or during the
polling exercise on which it based its decision to suspend the parliamentary elections of
February is 2016 in Bufumbira East Constituency. The Applicants also contend that the
2
nd
Respondent by himself usurped the powers of the 1
st
Respondent and purported to
bind the latter in his decision of February 18
th
2016 in which the l Respondent had no
input, permissible in law and thus arbitrarily suspended the electoral exercise of
Bufumbira East Constituency when the same had already been concluded with the excuse
that an unknown candidate s party symbol was missing on the ballot paper whereas in
fact it was the 2
nd
Applicant who was the only party sponsored candidate for FDC and
whose symbol featured on the ballot paper. The Applicants contend that the impugned
decision is arbitrary, illegal, irregular, skewed and ultra vires.
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b) Resolution
9. Counsel raised several preliminary objections. Mr. Kanduho for the Applicants raised a
preliminary point of law on the admissibility of the affidavit of the 2
nd
Respondent in
particular when and where it was commissioned. He asserted that the affidavit is dated
March 2016 yet was handed over to him at 11:30 am on 8
th
March 2016 with an apology
from Mr. Lugolobi that he was unable to file and serve by 10:00 am as Court had
directed, implying that the affidavit was never deponed on
March but on 8
th
March.
He therefore asserted that it couldn t be true that the 2
nd
Respondent appeared before a
Commissioner for Oaths on 7
th
March to administer the oath. He prayed that the affidavit
be expunged from the record. In his submissions, Mr. Kanduho also took issue with the
reference to the 1
st
Respondent as the independent Electoral Commission in Kabale
Court.
10. The second preliminary objection from Mr. Kanduho was in regard to the affidavit of the
3
rd
and 4th Respondents. He contended that Mr. Sebugenyi the deponent of the affidavit in
issue deponed as Director of Legal Services of the 3rd Respondent and asserted that the
4th Respondent could not rely on the affidavit of the Attorney of the 3
rd
Respondent. He
therefore prayed that the affidavit be treated as that of the 3
rd
Respondent only and the 4th
Respondent s right of audience be dispensed with as he had no affidavit.
11. Mr. Idoot for the 3
rd
and th Respondents also raised a preliminary objection that this
application for judicial review had been brought prematurely. He contended that judicial
review cannot stand if there are other alternative remedies citing Section 15 of the
Electoral Commission Act and Article 61 (f) of the Constitution which provide for
alternative remedies for an aggrieved party like the Applicants. He also raised another
preliminary objection contending that the procedure adopted to come before Court in
relation to an electoral matter arising out of the electoral process is not available to the
Applicant. He submitted that our laws provide for specific procedures for an aggrieved
party during the electoral process and not judicial review.
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12. I have read all the pleadings and submissions of Counsel. I will address the preliminary
objections first starting with the one whether judicial review is the right procedure in this
case.
13. It is not in dispute that the Electoral Commission Act, the Parliamentary Elections Act
and the Constitution are the applicable laws in this application. All parties rely on them.
14. It is also clearly demonstrated that when the Electoral Commission or the 2
nd
Respondent
took the decision suspending polling activities in Bufumbira East Constituency, the
Applicants were disgruntled. The Applicants were not convinced, I take it, with the
reasoning that the suspension was for non inclusion of the NRM party symbol for the
NRM candidate-the
4th
Respondent on the ballot papers. The
4th
Respondent appeared on
the ballot papers with the bicycle symbol, which is different from the NRM yellow bus
symbol.
15. Article 61 (1) f of the Constitution empowers the Electoral Commission to hear and
determine election complaints before and during polling. Section 15 (1) of the Electoral
Commission Act derives from Article 61 of the Constitution and is more specific. It
provides that a complaint regarding any aspect of the electoral process at any stage if not
satisfactorily determined at a lower level of authority, shall be examined and decided by
the Commission.
16. Section 15 (2) provides that an appeal against the decision of the Electoral Commission
shall lie to the High Court. Under Section 15 (3), such appeal shall be by way of a
petition. In the circumstances of this case, no winner of the election had been announced
yet, the polling or election process was still ongoing when the suspension was effected.
The Applicants therefore had the remedy of lodging in writing their complaint with the 1
5t
Respondent.
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17. I am persuaded by the Kenyan case of Bernard Mulage v Fineserve Africa Limited
3 ors Petition No 5 3 of 2 14 where it was held
int r li
that:
There is now a chain of authorities from the High Court and the Court of
Appeal that where a Statute has provided a remedy to a party, this court
must exercise restraint and first give an opportunity to the relevant bodies
or state organs to deal with the dispute as provided in the relevant statute.
This principle was well articulated by the Court of Appeal in Speaker of
National Assembly v Ngenga Karume [2 8] 1 KLR 425 where it was
held that: In our view there is merit. ..... that where there is clear
procedure for the redress of any particular grievance prescribed by the
constitution or an Act of Parliament, that procedure should be strictly
followed .
18. Not only did the Applicants not lodge the complaint under Section 15(1) of the Electoral
Commission Act or file a petition under Section 15 (2), they also failed, in their
application before me, to demonstrate any exceptional circumstances to warrant their
resort to the High Court directly.
19. I have, in the interest of justice, considered as exceptional circumstances the fact that the
Electoral Commission to which the complaint is to be lodged under Section 15 (1) has
already taken the decision to suspend the election as a basis to warrant the consideration
of this application by this Court.
20. To this end, the existence of Annexures B, C and D to Mr. Sebugenyi s affidavit as the
ruling and orders of the High Court in Kabale is not disputed by the parties and more
important by the Kabale High Court which issued them. I have no reason to disbelieve
that they are true ruling and orders of the Court.
21. Having heard explanations from Mr. Idoot that the reference to the Independent
Electoral Commission in Annexure D is in fact an erroneous reference to the 1
st
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Respondent who was served and competently attended Court and the l Respondent also
confirms this to me, I am satisfied that the erroneous inclusion of independent in the
name did not prejudice any party. Secondly and more important, I am satisfied that the
suspension in issue on polling day was rational, reasonable and justified to the extent that
Mr. Nsaba Buturo who the Electoral Commission had been directed by Court to nominate
as flag bearer of NRM was not included in the ballot paper as such. The bicycle symbol
which he was included with was not representative of the NRM party that he stood for in
the said election.
22. This suspension was particularly relevant because the inclusion of Mr. Nsaba Buturo as
an independent candidate as earlier nominated was in contravention of the Court order in
Annexure D and also would discriminate and prejudice him when compared to other
NRM candidates who had benefited from the NRM symbol of the yellow bus in the
parliamentary and other elections.
23. Moreover, the suspension by the Electoral Commission was well within the wide ambit
of Section 50 (l) of the Electoral Commission Act. It was therefore legal.
24. In the circumstances of this case, I find that judicial review was not the correct procedure
because the substance of the application is addressing more the basis or lack there of the
suspension of the election than the process leading to the suspension decision. In Kuluo
Joseph Andrew Ors v Attorney General Ors Misc Cause No 106 of 2010
Section 50(1) of the Electoral Commission Act provides that; Where, during the course of an election, it appears
to the commission that by reason of any mistake, miscalculation, emergency or unusual or unforeseen circumstances
any of the provisions of this Act or any law relating to the election, other than the Constitution, does not accord with
the exigencies of the situation, the commission may, by particular or general instructions, extend the time for doing
any act, increase the number of election officers or polling stations or otherwise adapt any of those provisions as
may be required to achieve the purposes of this Act or that law to such extent as the commission considers necessary
to meet the exigencies of the situation.
(2) For the avoidance of doubt, this section applies to the whole electoral process, including all steps taken for the
purposes of the election and includes nomination.
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Court explained that judicial review is concerned not with the decision p r s but the
decision making process. It involves an assessment of the manner in which a decision is
made. It is not an appeal and the jurisdiction is exercised in a supervisory manner, not to
vindicate rights as such, but to ensure that public powers are exercised in accordance with
basic standards of legality, fairness and rationality.
25. It is also not the right procedure for addressing challenges arising out of the electoral
process where specific, detailed and well laid out procedures for challenging the same are
provided. I agree with the Court in Kones v. Republic
x p rt
Kimani wa Wanyoike
[2006] 2 EA 158 where regarding the election process, it explained that:
The procedure of judicial review, like that of a plaint or any such like
procedure is and was not available to the parties aggrieved by the acts or
omissions of the commission. The only valid way of challenging the
outcome of the electoral process, and for that purpose nominating
members of the National Assembly, as part of the electoral process, is
through an election petition as provided in the Constitution and the
National Assembly and Presidential Elections Act
26. It is apparent to me that the Applicants are trying to file an election petition disguised as a
judicial review application. Probably, their purpose is to obtain interim orders halting the
parliamentary elections rescheduled for tomorrow in Bufumbira East Constituency. This
short gun approach is unacceptable in my view.
27. Based on all the above, I am disinclined to allow the application, nor consider any other
issues raised in the substantive judicial review application or the other preliminary
objections. The application is dismissed.
28. To avoid acrimony between the Applicants and Respondents each party shall bear its own
costs.
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I so order
L~AMBE
JUDGE
Judgment delivered in the presence of:
Eddie Kwizera, the 1
st
Applicant
Frank Kanduho, Counsel for the Applicants
Lugolobi Hamidu, Counsel for the 1
st
and 2
nd
Respondents
Idoot Augustine, Counsel for the 3
rd
and 4th Respondents
Nabatanzi Florence, Court clerk
LYDIA MUGAMBE
JUDGE
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