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Wakayima Musoke Nsereko and Another v Kasule Robert Sebunya (Election Petition Appeal No. 50 and 102 of 2016)

Court of Appeal · [2017] UGCA 160 · 2017 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Consolidated first appeal from High Court judgment nullifying parliamentary election and declaring petitioner duly elected
Decision
Appeal dismissed; nullification of 1st appellant's election upheld and respondent confirmed as validly elected Member of Parliament for Nansana Municipality Constituency

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Holding

The Court of Appeal dismissed the consolidated appeals and upheld the nullification of the 1st appellant's election. It held that the 1st appellant was nominated in error because his name (Wakayima Musoke Nsereko) did not appear on the National Voters' Register (which bore Musoke Hannington Nsereko) and he failed to discharge the burden of proving his academic qualifications, the certificates being in a different name. The cancellation of results from 24 polling stations involving 17,239 voters substantially affected the outcome. The trial Judge properly declared the respondent, the runner-up, duly elected once the disqualified candidate was removed, and properly granted a certificate of two counsel based on a filed notice of instructions.

Facts

Wakayima Musoke Nsereko was declared winner of the February 2016 parliamentary election for Nansana Municipality Constituency with 25,053 votes; Kasule Robert Sebunya was runner-up with 23,415 votes. During tallying, Declaration of Results Forms for 24 polling stations (involving 17,239 registered voters) were found missing from sealed boxes and their results were cancelled and excluded. Sebunya petitioned, alleging that Wakayima was nominated irregularly: his name did not appear on the National Voters' Register (which bore the name Musoke Hannington Nsereko) and his academic certificates were in a different name (Mannington/Hannington Musoke). The Head teacher of the school named on the A-level certificate wrote two contradictory letters about the candidate's identity. The trial Judge nullified the election, declared Sebunya validly elected, and granted a certificate of two counsel. The Electoral Commission later certified 22 of the 24 DRFs from a candidate's copies, but those certifications and supporting affidavits were made after cancellation.

Issues

  1. Whether the 1st appellant was nominated in error, specifically whether he was a registered voter and whether he held the minimum academic qualifications of Advanced Level Standard or its equivalent.
  2. Whether there was non-compliance with the electoral law when the results of 24 polling stations were not tallied, and whether the cancellation substantially affected the outcome of the election.
  3. Whether the trial Judge erred in declaring the respondent the duly elected Member of Parliament for Nansana Municipality.
  4. Whether the trial Judge erred in awarding a certificate of two counsel.

Orders

  • The 1st appellant was nominated in error for Member of Parliament for Nansana Municipality Constituency because he was not a registered voter and did not possess the minimum academic qualifications of A level or its equivalent.
  • There was non-compliance with the electoral law when the results of the 24 polling stations were not tallied.
  • The respondent is the validly elected Member of Parliament for Nansana Municipality Constituency.
  • A certificate of two Counsel is granted in respect of the Counsel who appeared for the respondent.
  • The appellants shall bear the costs of the Appeal and the trial Court.

Key headnotes

Electoral Law — Qualification of Candidates — Registered Voter — Voters' Register versus National ID
Conclusive proof of being a registered voter is evidence of a person's name appearing in the National Voters' Register, not mere possession of a National Identity Card; the National ID is used to cross-check particulars in the Register and does not replace it.
Electoral Law — Change of Name — Requirement to Rectify Discrepancy
A candidate whose nominated name differs from the name on the Voters' Register cannot adopt a different set of names without following the statutory requirements for change of name under the Registration of Persons Act, and the absence of any rival claimant to the name does not cure the defect.
Electoral Law — Academic Qualifications — Burden of Proof
The burden of producing valid academic certificates to the electoral authorities lies with the intending candidate, and where the authenticity of those certificates is questioned, the candidate bears the burden of proving they are authentic.
Electoral Law — Returning Officer — Duty to Reject Nomination on Major Variation of Name
A Returning Officer must refuse a nomination paper where there is a major variation between the name on the nomination paper and the voters' roll; a wholesale difference in surname and names constitutes a major variation requiring rejection.
Evidence — Certified Copies of Public Documents — Declaration of Results Forms
The Electoral Commission cannot validly certify Declaration of Results Forms which are admitted to be missing from its custody by relying solely on a candidate's copies without other copies for comparison, and affidavits verifying such forms sworn after certification carry little weight.
Electoral Law — Non-Compliance — Substantial Effect on Result
Non-compliance affects the result of an election in a substantial manner where it would have substantially reduced the winning candidate's majority so as to put the victory in doubt; cancellation of results from polling stations with 17,239 registered voters substantially affected the outcome.
Electoral Law — Remedies — Declaration of Runner-up as Duly Elected
Where the declared winner was nominated in error and is removed, the court may declare under section 63(6)(b) of the Parliamentary Elections Act that the candidate with the next highest number of valid votes is the person entitled to be declared duly elected, and this does not disenfranchise voters.

Legislation cited (27)

  • Parliamentary Elections Act 2005 s.1(1)
  • Parliamentary Elections Act 2005 s.4(1)
  • Parliamentary Elections Act 2005 s.12(2)(b)
  • Parliamentary Elections Act 2005 s.39(1)
  • Parliamentary Elections Act 2005 s.50
  • Parliamentary Elections Act 2005 s.61(1)
  • Parliamentary Elections Act 2005 s.63(4)
  • Parliamentary Elections Act 2005 s.63(6)
  • Electoral Commission Act s.12(1)(e)
  • Electoral Commission Act s.18(1)
  • Registration of Persons Act 2015 s.3
  • Registration of Persons Act 2015 s.36
  • Registration of Persons Act 2015 s.51
  • Registration of Persons Act 2015 s.66
  • Registration of Persons Act 2015 s.68
  • Evidence Act s.75
  • Evidence Act s.76
  • Judicature Act s.11
  • Constitution of Uganda Article 1
  • Constitution of Uganda Article 2(1)
  • Constitution of Uganda Article 59(1)
  • Constitution of Uganda Article 61
  • Constitution of Uganda Article 80(1)
  • Judicature (Court of Appeal Rules) Directions Rule 30
  • Judicature (Court of Appeal Rules) Directions Rule 92
  • Parliamentary Elections (Interim Provisions) (Election Petitions) Rules Rule 17
  • Civil Procedure Rules Order 18

Cases cited (20)

  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Otada Sam Amooti Owor v Tabart Idi Amin (Election Petition Appeal No. 93 of 2016)
  • Abdul Bangirana Nakendo v Patrick Mwondah (Election Petition Appeal No. 9 of 2006)
  • Besigye Kizza v Museveni Kaguta (Presidential Election Petition No. 1 of 2001)
  • Commissioner General URA v Meera Investments Ltd (Civil Appeal No. 22 of 2007)
  • Oboth Markson Jacob v Otiamoi Otaala Emmanuel (Election Petition Appeal No. 38 of 2011)
  • Okabe Patrick v Opio Joseph Linos and Electoral Commission (Election Petition No. 87 of 2016)
  • Yeri Ofwono Apollo v Tanna Sanjay (Election Petition Appeal No. 9 of 2011)
  • Ongole James Michael v Electoral Commission and Ebukalin Sam (Election Petition No. 8 of 2006)
  • Waligo Aisha Naluyati v Sekindi Aisha and Electoral Commission (Election Petition No. 29 of 2016)
  • Mashate Magomu Peter v Electoral Commission and Another (Election Petition Appeal No. 47 of 2016)
  • Sekigozi Stephen v Sematimba Simon Peter (Election Petition No. 10 of 2016)
  • Acheng Sarah Opendi and Electoral Commission v Ochwo Nyaketcho Keziah (Election Petition Appeal No. 39 of 2011)
  • Mbaghadi Freddrick Nkayi and Electoral Commission v Nabwiso Frank Wilberforce (Election Petition Appeal No. 14 and 16 of 2011)
  • Mwiru Paul v Igeme Nathan Samson Nabeta and Electoral Commission (Election Petition No. 3 of 2016)
  • Arumadri John Drazu v Isaac Joackino and Electoral Commission (Election Petition Appeal No. 37 of 2016)
  • The Chief Electoral Officer vs. The Electoral Commission, Case No. 4 of 2009 (South Africa)
  • Muhindo Rehema v Winfred Kiiza and Electoral Commission (Election Petition Appeal No. 29 of 2011)
  • Dionizia Cissy and Another v Martin Kizito Sserwanga (Election Petition Appeal No. 62 of 2016)
  • Butime Tom v Muhumuza David and Electoral Commission (Election Petition Appeal No. 11 of 2011)
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.