Wakilii

Nyabwana & Anor v Electoral Commission (Election Petition Appeal No. 49 & 101 of 2016)

Court of Appeal · [2017] UGCA 61 · 2017 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Consolidated appeal from a High Court decision setting aside an interim order and upholding the validity of KCCA professional bodies' elections
Decision
Appeal dismissed; trial Judge's findings upheld that the appellants' term had expired and the elections were validly conducted.

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Cited — treatment unverified cited in 1 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Court of Appeal dismissed the appeal, holding that the five-year tenure under section 76(1) of the KCCA Act attaches to the office and the council collectively, not to the individual office bearer. The term runs from the date the Electoral Commission declares the general election date until the next general election. Article 61(2) and (4) of the Constitution apply to KCCA elections because, by section 5(4) and 13(2) of the KCCA Act, the Local Governments Act applies to KCCA elections with necessary modifications. The contention that section 76(1) prevails over Article 61 was untenable because, under Article 2, the Constitution is supreme. The respondent validly conducted the elections and the appellants' term had expired.

Facts

The appellants participated in elections conducted by the respondent on 19 November 2013 and were elected to represent the Uganda Medical Association on the KCCA council as professional councilors. As that council's term neared its end, the respondent conducted elections for new councilors on 5 May 2016, in which the first appellant participated and lost to Dr. Willington Amutuheire, who was gazetted as duly elected on 16 May 2016. The first appellant obtained an interim order restraining the respondent and KCCA from interfering with his position during his asserted five-year tenure, and the new professional representatives were not sworn in. Dr. Amutuheire applied for mandamus and prohibition. The High Court set aside the interim order, held that tenure under section 76 of the KCCA Act is bestowed on the office rather than the office bearer, and found the elections validly conducted. The appellants appealed, arguing their five-year individual terms had not expired and that section 76(1) of the KCCA Act prevailed over Article 61 of the Constitution.

Issues

  1. Whether the five-year tenure of office under section 76(1) of the KCCA Act attaches to the individual office bearer or to the office and council collectively.
  2. Whether the appellants' five-year term of office had expired such that the respondent validly conducted elections for new professional representatives on the KCCA council.
  3. Whether Article 61(2) and (4) of the Constitution applied to elections of KCCA councilors.
  4. Whether section 76(1) of the KCCA Act prevails over Article 61 of the Constitution.

Orders

  • Appeal dismissed.
  • Each party to bear its own costs.

Key headnotes

Statutory Interpretation — Purposive Construction — Tenure of Public Office
The five-year tenure of office under section 76(1) of the KCCA Act attaches to the office and the council collectively, not to the individual office bearer; construing it otherwise would create disorder in election cycles, and section 76(2) confirms this by limiting a person filling a vacancy to the remainder of the predecessor's term.
Electoral Law — KCCA Council — Computation of Term of Office
The term of office under section 76 of the KCCA Act runs from the date the Electoral Commission declares the date for general elections until the date the Commission organizes the next general election, and it is immaterial at what time individual representatives assume office within that five-year period.
Electoral Law — Application of Local Governments Act to KCCA Elections
Although the KCCA Act was enacted for administrative and development purposes of Kampala as a Capital City, on the issue of elections the Local Governments Act and Article 61(2) and (4) of the Constitution apply to KCCA with the necessary modifications by virtue of sections 5(4) and 13(2) of the KCCA Act.
Constitutional Law — Supremacy of the Constitution — Article 2
An Act of Parliament cannot prevail over the Constitution; by Article 2 the Constitution is the supreme law of Uganda and any other law inconsistent with it is void to the extent of the inconsistency, so the contention that section 76(1) of the KCCA Act prevails over Article 61 of the Constitution is untenable.
Civil Procedure — First Appellate Court — Duty to Re-evaluate Evidence
A first appellate court has a duty to re-evaluate all the evidence on record and arrive at its own conclusions.

Legislation cited (15)

  • Kampala Capital City Authority Act 2010 s.76(1)
  • Kampala Capital City Authority Act 2010 s.76(2)
  • Kampala Capital City Authority Act 2010 s.5(4)
  • Kampala Capital City Authority Act 2010 s.6(1)(g)
  • Kampala Capital City Authority Act 2010 s.13(2)
  • Kampala Capital City Authority Act 2010 s.13(3)
  • Constitution of Uganda Article 61(2)
  • Constitution of Uganda Article 61(4)
  • Constitution of Uganda Article 61(3)
  • Constitution of Uganda Article 5(6)
  • Constitution of Uganda Article 2(1)
  • Constitution of Uganda Article 2(2)
  • Local Governments Act s.116
  • Kampala Capital City (Election of Representatives of Professional Bodies) Regulations 2012 reg.5(b)
  • Kampala Capital City (Election of Representatives of Professional Bodies) Regulations 2012 reg.6

Cases cited (6)

  • Ssekikubo and Others v Attorney General and Others (Constitutional Petition No. 1 of 2015)
  • Byanyima Winnie v Ngoma Ngime (Civil Revision No. 9 of 2001)
  • Mutonyi Margaret Wakyala vs Tito Wakyala HCT-04-CV-CR-0007-2011
  • Oryem Richard v Uganda (Criminal Appeal No. 22 of 2014)
  • Sitenda Sebalu v Sam K. Njuba and Another (Election Petition Appeal No. 26 of 2007)
  • Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
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.