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Grace Nalubega v Juliet K. Suubi Kinyamatama and Another (Election Petition Appeal No. 27 of 2021)

Court of Appeal · [2022] UGCA 387 · 2022 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Election petition appeal from a High Court decision dismissing an election petition
Decision
Appeal dismissed; First Respondent's election as District Woman Representative for Rakai District stands

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Holding

The Court of Appeal held that complaints concerning a candidate's nomination, including voter registration status, are pre-polling issues that must be submitted to the Electoral Commission under Article 61(1)(f) of the Constitution and section 15 of the Electoral Commission Act. Section 61(1)(a) and (d) of the Parliamentary Elections Act does not provide an alternative avenue except where the petitioner had no knowledge, and could not with reasonable diligence have known, of the defect at nomination. As the appellant offered no evidence of late discovery, she was estopped from raising the complaint after losing the election. The appeal was dismissed with costs.

Facts

The appellant, first respondent and three others contested the 14 January 2021 general election for District Woman Representative of Rakai District. The Electoral Commission declared the first respondent the winner with 30,253 votes; the appellant was runner-up with 19,682 votes. The first respondent was nominated under the name Suubi Kinyamatama Juliet K, supporting her nomination with academic certificates and a National Identity Card in the name Kobusingye Juliet, together with a deed poll, gazette notice and statutory declaration explaining the names referred to one and the same person. After the result was gazetted, the appellant filed an election petition challenging the first respondent's nomination and election, arguing she was not a registered voter because the name Suubi Kinyamatama Juliet K did not appear on the National Voters Register (which only reflected Kobusingye Juliet). The High Court dismissed the petition with costs, holding the appellant was estopped from raising nomination issues after the election. The appellant 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 challenging the nomination by way of an election petition under section 61(1)(a) and (d) of the Parliamentary Elections Act.
  2. Whether the word 'may' in section 15(b) of the Parliamentary Elections Act confers a discretion on a complainant to bring a nomination complaint either to the Electoral Commission or directly to the High Court.
  3. Whether the First Respondent was a duly registered voter and therefore qualified for nomination and election.

Orders

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

Key headnotes

Electoral Law — Nomination Complaints — Forum and Estoppel After Election
Complaints concerning a candidate's nomination, including voter registration status, are pre-polling issues that must be submitted to the Electoral Commission under Article 61(1)(f) of the Constitution and section 15 of the Electoral Commission Act, and a candidate is estopped from raising such complaints in an election petition after losing the election unless the petitioner neither knew nor could with reasonable diligence have known of the defect at the time of nomination.
Statutory Interpretation — Word 'may' in section 15(b) of the Parliamentary Elections Act
The word 'may' in section 15(b) of the Parliamentary Elections Act is permissive only as to a registered voter's right to inspect nomination papers; it does not confer a discretion to elect whether to lodge a nomination complaint with the Electoral Commission or directly with the High Court, and irregularities found on inspection must as a matter of course be submitted to the returning officer or Commission.
Electoral Law — Setting Aside Election — Scope of section 61(1)(a) and (d)
Section 61(1)(a) of the Parliamentary Elections Act addresses polling-related non-compliance that disenfranchises voters, while section 61(1)(d) relates to the disqualifying parameters in section 4(2), not the positive qualification parameters in section 4(1); accordingly a challenge to a candidate's qualification under section 4(1), such as voter registration, cannot ordinarily ground the setting aside of an election under section 61(1).
Electoral Law — Standard of Proof — Parliamentary Election Petitions
The standard of proof in parliamentary election petitions under section 61(3) of the Parliamentary Elections Act is satisfaction on the balance of probabilities, distinct from the higher standard applicable to presidential election petitions.
Electoral Law — Costs — Abuse of Process in Belated Eligibility Challenges
Belated and unwarranted challenges to the pre-polling eligibility of candidates who have emerged successful, brought after defeat where binding case law exists, may be treated as an abuse of court process and the court may exercise its discretion to award costs against the losing party.

Legislation cited (18)

  • Constitution of Uganda Article 61(1)(f)
  • Constitution of Uganda Article 64(1)
  • Constitution of Uganda Article 80(1)(b)
  • Constitution of Uganda Article 86(1)
  • Parliamentary Elements 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)(a)
  • Parliamentary Elections Act 2005 s.61(1)(d)
  • 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.27
  • Parliamentary Elections (Interim Provisions) Rules SI 141-2 r.36
  • Judicature (Court of Appeal Rules) Directions SI 13-10 r.30(1)
  • Judicature (Court of Appeal Rules) Directions SI 13-10 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 Nyakacho Keziah (Election Petition Appeal No. 39 of 2011)
  • Father Nasensio Begumisa & Others v Eric Tibebaga (Civil Appeal No. 17 of 2002)
  • Rtd Colonel Dr. Kizza Besigye v Yoweri Kaguta Museveni & Another (Election Petition No. 1 of 2001)
  • Nanziri Kase Mubanda v Mary Babirye Kabanda (Election Petition Appeal No. 38 of 2016)
  • Durqa Shankar Mehta v Thakur Raqhuraj 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 Amooti (Election Petition Appeal No. 6 of 2020)
  • Akol Hellen Odeke v Okodel Umar (Election Petition Appeal No. 1 of 2018)
  • James Michael Ongole v Electoral Commission & Another (Election Petition No. 8 of 2006)
  • 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. 76 of 2016)
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