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Butime Tom v Muhumuza David & Anor (Election Petition Appeal No. 11 of 2011)

Court of Appeal · [2012] UGCA 12 · 2012 Appeal Dismissed; Cross-Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Election petition appeal and cross-appeal from a High Court judgment dismissing a parliamentary election petition
Decision
Appeal dismissed and cross-appeal allowed; Muhumuza David confirmed as the elected Member of Parliament for Mwenge North

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Holding

The Court of Appeal dismissed the appeal and allowed the cross-appeal. It held that at the material time (1997) no law required a person to complete primary education or pass PLE before pursuing O-level and A-level, and the Education Act 13 of 2008 defining formal education could not be applied retrospectively; the 1st respondent was therefore qualified to be a Member of Parliament. The petition disclosed no cause of action against the Electoral Commission. Interpreting the Oaths Act in conformity with the Constitution's guarantee of religious freedom, the court held the 1st respondent could swear competent affidavits notwithstanding his non-mainstream faith, so his answer to the petition was wrongly struck out. Costs to both respondents were upheld.

Facts

Parliamentary elections were held in Uganda on 18 February 2011. In Mwenge North Constituency, five candidates contested, including the appellant and the 1st respondent. The 2nd respondent (Electoral Commission) declared and gazetted the 1st respondent as the duly elected Member of Parliament with 26,701 votes; the appellant was runner-up with 23,274 votes. The appellant petitioned the High Court to annul the 1st respondent's election, contending the 1st respondent lacked the minimum academic qualifications required by law, specifically that he had not completed primary education or sat Primary Leaving Examinations before pursuing O-level and A-level. The 1st respondent admitted not having sat PLE but held a General Certificate of Education obtained in 1997 and an Advanced Certificate. The High Court dismissed the petition, finding no law at the material time required prior primary qualifications. The trial judge also struck out the 1st respondent's answer and affidavits on the ground that, being neither Christian, Jew nor Muslim, the 1st respondent could not validly swear them. The appellant appealed and the 1st respondent cross-appealed.

Issues

  1. Whether the trial judge reached the right conclusion that the 1st respondent had the requisite minimum academic qualifications to be elected a Member of Parliament.
  2. Whether the election petition disclosed a cause of action against the 2nd respondent, the Electoral Commission.
  3. Whether the 1st respondent, being neither a Christian, a Muslim nor a Jew, could swear a competent affidavit.
  4. Whether the trial judge was right to strike out the 1st respondent's answer to the petition with its supporting affidavits.
  5. Whether the trial judge was right to condemn the appellant to pay costs.

Orders

  • Appeal dismissed.
  • Cross-appeal allowed.
  • Declared that the 1st respondent's answer to the petition was valid.
  • Both respondents awarded the costs of the appeal.
  • 1st respondent awarded the costs of the cross-appeal.
  • Both respondents awarded costs of the trial of the petition in the court below.
  • Declared that Muhumuza David is the elected Member of Parliament for Mwenge North.

Key headnotes

Electoral Law — Qualification of Members of Parliament — Minimum Academic Qualifications under Article 80(1)(c)
A person qualifies for election as a Member of Parliament on proof of having completed Advanced level education or its equivalent as the minimum, and need not prove a string of prior qualifications leading to A-level; absent a specific legal requirement, completion of primary education or PLE is not a precondition.
Statutory Interpretation — Retrospectivity — Education (Pre-Primary, Primary and Post-Primary) Act 13 of 2008
A court will not ascribe retrospective force to new legislation affecting rights unless by express words or necessary implication; the definition of formal education in the Education Act 13 of 2008 cannot be applied against qualifications obtained before its enactment.
Civil Procedure — Cause of Action — Pleadings against the Electoral Commission
A cause of action is disclosed where the pleadings show the existence of the plaintiff's right, its violation, and the defendant's liability; where an election petition contains no such averments against the Electoral Commission, the petition discloses no cause of action against it and should be struck out before trial.
Human Rights — Freedom of Religion — Taking of Oaths and Affirmations under the Oaths Act
Section 5(1)(a) of the Oaths Act must be read consistently with the constitutional right to practise and manifest one's religion (Article 29(1)(b) and (c)), so the holy books listed are not exhaustive and a deponent may take an oath or affirmation in a manner appropriate to his faith.
Evidence — Affidavits Supporting an Election Petition Answer — Validity of Supporting Affidavits
An answer to an election petition need not be supported by the respondent's own personal affidavit; competent affidavits of other deponents with knowledge of the relevant facts can independently support the answer, and rejection of the respondent's affidavit does not automatically invalidate the others.
Civil Procedure — Costs — Costs Follow the Event under Section 27(2) Civil Procedure Act
Costs follow the event unless the court for good reason orders otherwise; where respondents share counsel and successfully defend, both are entitled to costs notwithstanding the striking out of one respondent's answer.

Legislation cited (17)

  • Parliamentary Elections Act 17 of 2005 s.4(1)(c)
  • Constitution of Uganda 1995 Article 80(1)(c)
  • Constitution of Uganda 1995 Article 29(1)(b)
  • Constitution of Uganda 1995 Article 29(1)(c)
  • Constitution of Uganda 1995 Article 43
  • Constitution of Uganda 1995 Article 274
  • Education (Pre-Primary, Primary and Post-Primary) Act 13 of 2008 s.2
  • Education (Pre-Primary, Primary and Post-Primary) Act 13 of 2008 s.10
  • Education Act Cap.127 of 1970
  • Uganda National Examinations Board Act Cap.137 s.4(1)(a)
  • Uganda National Examinations Board Act Cap.137 s.4(1)(l)
  • Oaths Act Cap.19 s.5(1)(a)
  • Oaths Act Cap.19 s.5(1)(b)
  • Oaths Act Cap.19 s.8
  • Civil Procedure Act s.27(2)
  • Parliamentary Elections (Election Petitions) Rules r.8(1)
  • Parliamentary Elections (Election Petitions) Rules r.8(3)(a)

Cases cited (6)

  • Adonia Nakudi v Chrisant K. Mukasa (Civil Application No. 2 of 1988)
  • Phillips v Eyre (1870) LR 6 QB 1
  • Ismail Serugo v Kampala City Council & Another (Constitutional Appeal No. 2 of 1998)
  • Wycliffe Kiggundu v Attorney General (Civil Appeal No. 27 of 1992)
  • Attorney General v Osotraco Ltd (Civil Appeal No. 32 of 2002)
  • Amama Mbabazi & Another v Musinguzi Garuga James (Election Petition Appeal No. 12 of 2002)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.