hon. eddie kwizera vs nsaba buturo, national resistance movement.pdf

8/18/2019 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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hon. eddie kwizera vs nsaba buturo, national resistance movement.pdf

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