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Nalubega v Kinyamatama and Another (Election Petition Appeal No. 27 of 2021)

Court of Appeal · [2022] UGCA 156 · 2022 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Election petition appeal from the High Court dismissal of a petition challenging an MP's nomination and election
Decision
Appeal dismissed with costs; the First Respondent's election as District Woman Representative for Rakai District stands

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Holding

The Court of Appeal dismissed the appeal, holding that complaints concerning a candidate's voter-registration status and qualifications under section 4(1) of the Parliamentary Elections Act are pre-election nomination issues that must be submitted to the Electoral Commission under section 15 of the Electoral Commission Act and Article 61(1)(f) of the Constitution. A petitioner is estopped from raising such complaints after the election under section 61(1)(d) unless she had no knowledge, and could not with reasonable diligence have known, of the defect at nomination. The appellant identified no such evidence, so the trial court correctly held her estopped. Costs were awarded to the respondents as the challenge constituted an abuse of process.

Facts

Grace Nalubega and Juliet K. Suubi Kinyamatama, among others, contested the 14 January 2021 general election for District Woman Representative for Rakai District. The Electoral Commission declared Kinyamatama elected with 30,253 votes; Nalubega came second with 19,682. Kinyamatama had been nominated under the name Suubi Kinyamatama Juliet K, supporting her nomination with a photograph, academic certificates, National ID and Deed Poll registered under the name Kobusingye Juliet, and a statutory declaration clarifying that the names referred to the same person. The National Voters Register reflected only the name Kobusingye Juliet. After the result was gazetted on 17 February 2021, Nalubega petitioned the High Court at Masaka, contending Kinyamatama was not a registered voter qualified for nomination under Article 80(1)(b) of the Constitution and section 4(1)(b) of the Parliamentary Elections Act. The High Court dismissed the petition, holding Nalubega estopped from raising nomination issues after the election. Nalubega appealed.

Issues

  1. Whether a party's failure to challenge an opponent's nomination before the Electoral Commission under section 15 of the Electoral Commission Act bars it from raising the nomination complaint as an election petition before the High Court under section 61(1)(a) and (d) of the Parliamentary Elections Act.
  2. Whether the First Respondent was a registered voter qualified for nomination and election under Article 80(1)(b) of the Constitution and section 4(1)(b) of the Parliamentary Elections Act.

Orders

  • Appeal dismissed.
  • Costs awarded to the Respondents in this Court and the court below.

Key headnotes

Electoral Law — Nomination Complaints — Forum and Timing — Pre-election versus Post-election Disputes
Complaints concerning a candidate's nomination, including voter-registration status, are pre-polling matters that must be submitted to the Electoral Commission under section 15 of the Electoral Commission Act pursuant to Article 61(1)(f) of the Constitution, and cannot ordinarily be raised in a post-election petition under section 61(1) of the Parliamentary Elections Act.
Electoral Law — Estoppel — Belated Challenge to Candidate Eligibility
A candidate is estopped from raising nomination complaints after losing an election unless she had no knowledge, and could not with reasonable diligence have acquired knowledge, of the alleged defect in the nomination papers at the time of nomination.
Statutory Interpretation — Parliamentary Elections Act s.4 — Qualification versus Disqualification — Scope of s.61(1)(d)
The disqualification ground in section 61(1)(d) of the Parliamentary Elections Act refers to the disqualifying parameters in section 4(2) of the Act, not to the positive qualification parameters in section 4(1), so a failure to meet section 4(1) qualifications such as voter registration is a nomination matter and not a ground for setting aside an election under section 61(1)(d).
Statutory Interpretation — Use of 'may' and 'shall' — Permissive versus Mandatory Construction
The word 'may' in section 15(b) of the Parliamentary Elections Act is permissive in granting voters the right to inspect nomination papers, but the ensuing direction to lodge nomination complaints with the returning officer or Electoral Commission is not optional, so a complainant cannot elect to bypass the Commission in favour of a High Court petition.
Civil Procedure — Costs in Election Petition Appeals — Costs Following the Event and Abuse of Process
Although costs in election petitions are discretionary under Rule 27 of the Parliamentary Elections (Interim Provisions) Rules, costs should follow the event, and belated, unwarranted challenges to the pre-polling eligibility of successful candidates constitute an abuse of court process warranting an award of costs against the challenger.

Legislation cited (17)

  • Constitution of Uganda Article 80(1)(b)
  • Constitution of Uganda Article 61(1)(f)
  • Constitution of Uganda Article 64(1)
  • Constitution of Uganda Article 86(1)
  • Parliamentary Elections Act 2005 s.4(1)
  • Parliamentary Elections Act 2005 s.4(2)
  • Parliamentary Elections Act 2005 s.15(a)
  • Parliamentary Elections Act 2005 s.15(b)
  • Parliamentary Elections Act 2005 s.61(1)
  • Parliamentary Elections Act 2005 s.61(3)
  • Electoral Commission Act Cap 140 s.15(1)
  • Electoral Commission Act Cap 140 s.15(2)
  • Parliamentary Elections (Interim Provisions) Rules SI 141-2 r.36
  • Parliamentary Elections (Interim Provisions) Rules r.27
  • Judicature (Court of Appeal Rules) Directions SI 13-10 r.30(1)
  • Judicature (Court of Appeal Rules) Directions r.2(2)
  • Civil Procedure Act s.27

Cases cited (14)

  • Banco Arab Espanol v Bank of Uganda (Civil Appeal No. 8 of 1998)
  • Achieng Sarah Opendi & Another v Ochwo Nyakecho Keziah (Election Petition Appeal No. 39 of 2011)
  • Father Nasensio Begumisa & Others v Eric Tibebaga (Civil Appeal No. 17 of 2002)
  • Kiiza Besigye v Yoweri Kaguta Museveni & Another (Election Petition No. 1 of 2001)
  • Nanziri Kase Mubanda v Kabanda (Election Petition Appeal No. 38 of 2016)
  • Durga Shankar Mehta v Thakur Raghuraj Singh & Others, 1954 AIR 520
  • Sitenda Sebalu v Sam Njuba & Another (Election Petition Appeal No. 26 of 2007)
  • Fred Zzimula Kasirye v Francis Kibuuka Bazigatirawo (Election Petition Appeal No. 6 of 2020)
  • Akol Hellen Odeke v Okodel Umar (Election Petition Appeal No. 1 of 2019)
  • James Michael Onoole v Electoral Commission & Anor. Election Petition No. 8 of [year unclear]
  • Winnie Byanyima v Ngoma Ngime (Civil Revision No. 9 of 2001)
  • Abdul Balingira Nakendo v Patrick Mwondha (Election Petition Appeal No. 9 of 2007)
  • Jack Odur Lutanywa v Electoral Commission & Another (Election Petition Appeal No. 35 of 2021)
  • Giruli David Livingstone v Mulekwa Herbert & Another (Election Petition Appeal No. 75 of 2016)
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