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Kalemba & Anor v Lubega (Election Petition Appeal No. 76 of 2016)

Court of Appeal · [2018] UGCA 6 · 2018 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Appeal from High Court decision nullifying a parliamentary election
Decision
Appeal allowed; 1st appellant reinstated as Member of Parliament for Kakuuto County Constituency

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Holding

The Court of Appeal allowed the appeal and reinstated the 1st appellant's election as Member of Parliament. It held that section 4(1)(c) of the Parliamentary Elections Act requires only an Advanced Level standard qualification or its equivalent and prescribes no pass mark; an election court cannot impeach validly awarded academic qualifications, which is the preserve of UNEB/NCHE through an ordinary suit. Allegations of voter bribery were not proved to the required standard of slightly above the balance of probabilities. The 1st appellant had validly resigned his office as Resident District Commissioner, the resignation having been accepted in writing; the absence of a receiving stamp was a minor irregularity.

Facts

The 1st appellant contested and won the seat of Member of Parliament for Kakuuto County Constituency in the February 2016 parliamentary elections. The respondent, a losing candidate, filed an election petition in the High Court at Masaka challenging the result. The High Court nullified the election and ordered a fresh one, finding that the 1st appellant lacked the requisite academic qualifications, had not validly resigned his office as Resident District Commissioner of Lwengo District before nomination, and had committed voter bribery by giving voters UGX 200,000 and iron sheets to build a boda boda stage. The 1st appellant held a certificate, diploma and degree from Kampala University and contended he had five passes at UCE. He had tendered a resignation letter dated 28 May 2015, accepted by the Secretary, Office of the President, on 15 July 2015. The appellants appealed on grounds relating to qualifications, jurisdiction, resignation and the evaluation of evidence.

Issues

  1. Whether the trial judge was right to hold that the 1st appellant lacked the minimum academic qualifications of Advanced Level standard or its equivalent to be a Member of Parliament.
  2. Whether the trial judge was right to find that the 1st appellant committed the illegal practice of voter bribery contrary to section 68(1) of the Parliamentary Elections Act.
  3. Whether the 1st appellant validly resigned his office as Resident District Commissioner within the statutory period before nomination.
  4. Whether the trial judge had jurisdiction in an election petition to nullify the 1st appellant's academic qualifications without the awarding institutions being parties.
  5. Whether the trial judge properly evaluated the evidence on record.

Orders

  • Appeal allowed.
  • Judgment and orders of the trial court set aside.
  • 1st appellant duly declared Member of Parliament for Kakuuto County Constituency.
  • Respondent to pay costs in this Court and in the court below.

Key headnotes

Electoral Law — Qualifications of Members of Parliament — Academic Qualifications — No Pass Mark Required
Section 4(1)(c) of the Parliamentary Elections Act requires only completion of a minimum formal education of Advanced Level standard or its equivalent and prescribes no pass mark; presentation of a valid UACE certificate or its equivalent suffices to qualify a person to be a Member of Parliament.
Electoral Law — Jurisdiction — Impeachment of Academic Qualifications — Role of UNEB and NCHE
Where a candidate's academic qualifications were awarded by the lawfully mandated body, an election court cannot cancel or impeach those qualifications; that must be done through an ordinary suit against the awarding body, courts not being entitled to usurp powers explicitly vested by statute in such institutions.
Electoral Law — Illegal Practices — Voter Bribery — Standard of Proof
An election cannot be annulled on alleged voter bribery and non-compliance without cogent evidence proving the allegations to a standard slightly above the balance of probabilities; mere allegation and speculation are insufficient.
Constitutional Law — Resignation of Public Officer — Effective Date — Article 252 of the Constitution
Under Article 252(2) of the Constitution a resignation from a constitutional office takes effect when received by the person or authority to whom it is addressed; written acceptance of a resignation evidences receipt, and the absence of a receiving stamp on the resignation letter is a minor irregularity that does not negate the fact of resignation.
Civil Procedure — First Appellate Court — Duty to Reappraise Evidence
A first appellate court has a duty to review and reappraise the evidence and all materials before the trial court and arrive at its own conclusions, while bearing in mind that it neither saw nor heard the witnesses and being guided by the trial court's observations on demeanour.

Legislation cited (17)

  • Constitution of Uganda 1995 art.80(1)(c)
  • Constitution of Uganda 1995 art.203(1)
  • Constitution of Uganda 1995 art.252(1)
  • Constitution of Uganda 1995 art.252(2)
  • Constitution of Uganda 1995 art.252(3)(g)
  • Constitution of Uganda 1995 art.61(1)(f)
  • Constitution of Uganda 1995 art.64
  • Parliamentary Elections Act No. 17 of 2005 s.4(1)(c)
  • Parliamentary Elections Act s.4(4)
  • Parliamentary Elections Act s.4(6)
  • Parliamentary Elections Act s.61
  • Parliamentary Elections Act s.68(1)
  • Electoral Commission Act s.15
  • Universities and Other Tertiary Institutions Act s.45(3)
  • Universities and Other Tertiary Institutions (Minimum Entry Requirements for Admission to the Universities or Other Tertiary Institutions) Regulations 63 of 2007 Part II
  • Universities and Other Tertiary Institutions (Minimum Entry Requirements for Admission to the Universities or Other Tertiary Institutions) Regulations 63 of 2007 Part III
  • Judicature (Court of Appeal Rules) Directions rule 30

Cases cited (16)

  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Pandya v R [1957] EA 336
  • Bogere Moses and Another v Uganda (Criminal Appeal No. 1 of 1997)
  • Mugema Peter v Mudiabole Abedi Nasser (Election Petition Appeal No. 30 of 2011)
  • Dr. Kiiza Besigye v Y.K. Museveni & Anor (Presidential Election Petition No. 1 of 2001)
  • Matsiko Winfred Kyomuhangi v J. Babihuga (Election Petition No. 9 of 2002)
  • National Council of Higher Education v Anifa Kawooya Bangirana (Constitutional Petition Appeal No. 4 of 2011)
  • Amama Mbabazi v Yoweri Kaguta Museveni (Presidential Election Petition No. 1 of 2016)
  • Birekerawo Mathias Nsubuga v Muyanja Mbabali (Election Petition No. 6 of 2011)
  • Gole Nicholas Davis v Loi Kageni Kiryapawo (Election Petition Appeal No. 19 of 2007)
  • Aggrey Awori Siryoyi V Mugenyi Stephen Wokise & Anor
  • Odo Tayebwa v Bassajjabalaba Nasser & Another (Election Petition No. 13 of 2011)
  • Joy Kabatsi v Hanifa Kawooya (Election Petition Appeal No. 25 of 2007)
  • Hon. Kipoi Tony Nsubuga v Ronny Waluku Wataka & Others (Election Petition Appeal No. 7 of 2011)
  • Davis v Marion County Engineer (1991) 60 Ohio St.3d 53
  • Darlington Sakwa and Another v The Electoral Commission and 44 Others (Constitutional Petition No. 8 of 2006)
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