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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 388 · 2022 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Appeal from High Court dismissal of an election petition
Decision
Appeal dismissed; trial court's dismissal of the election petition upheld

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Holding

The Court of Appeal dismissed the appeal, holding that complaints concerning a candidate's nomination and voter registration status are pre-polling matters that must be submitted to the Electoral Commission under section 15 of the Electoral Commission Act, read with Article 61(1)(f) of the Constitution. Such complaints cannot found an election petition under section 61(1)(a) and (d) of the Parliamentary Elections Act unless the petitioner had no knowledge, and could not with reasonable diligence have acquired knowledge, of the defect at nomination. As the Appellant did not establish she discovered the alleged non-registration only after the election, she was estopped from raising it, and the trial court rightly dismissed the petition.

Facts

The Appellant, First Respondent and three others contested the District Woman Representative seat for Rakai District in the 14 January 2021 general election. The Electoral Commission declared the First Respondent elected with 30,253 votes; the Appellant came second with 19,682. The First Respondent was nominated under the name Suubi Kinyamatama Juliet K, supported by academic certificates and a National Identity Card registered as Kobusingye Juliet, together with a Deed Poll, Gazette Notice and a statutory declaration explaining that the names referred to the same person. The Appellant petitioned the High Court at Masaka, contending the First Respondent was not qualified because her nomination name did not appear on the National Voters Register, which reflected only Kobusingye Juliet, thus she was not a duly registered voter. The trial court held the Appellant was estopped from raising nomination issues after the election and that the additional names did not render the First Respondent a different person, dismissing the petition with costs. The Appellant appealed.

Issues

  1. Whether a candidate's qualifications, specifically voter registration status, can be challenged after the election by way of an election petition under section 61(1)(a) and (d) of the Parliamentary Elections Act.
  2. Whether the Appellant was estopped from raising a nomination complaint after the election by reason of failing to submit it to the Electoral Commission under section 15 of the Electoral Commission Act.
  3. 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 of Pre-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, read with Article 61(1)(f) of the Constitution, and cannot ordinarily be raised by way of an election petition after the election.
Electoral Law — Estoppel — Belated Challenge to Candidate Eligibility
A candidate who fails to challenge an opponent's nomination before the Electoral Commission is estopped from raising the nomination complaint after the election, unless the petitioner had no knowledge of and could not with reasonable diligence have discovered the defect at the time of nomination.
Statutory Interpretation — Parliamentary Elections Act s.61(1)(d) — Distinction Between Qualification and Disqualification
The term 'not qualified' in section 61(1)(d) of the Parliamentary Elections Act refers to the disqualifying parameters set out in section 4(2), not the positive qualification parameters in section 4(1); the latter are nomination issues for inspection and complaint under section 15, not grounds for setting aside an election.
Statutory Interpretation — Meaning of 'may' in Section 15(b) Parliamentary Elections Act
The word 'may' in section 15(b) of the Parliamentary Elections Act is permissive only as to the right of a registered voter to inspect nomination papers; it does not confer a discretion to elect between submitting a nomination complaint to the Electoral Commission and lodging it as an election petition in the High Court.
Civil Procedure — Costs — Election Petitions — Departure from General Rule
Although electoral dispute procedures should be free of unnecessary cost obstacles, belated and unwarranted challenges to candidate eligibility brought in bad faith constitute an abuse of court process and justify awarding costs against the petitioner following the general rule that costs follow the event.

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 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)(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)
  • Civil Procedure Act s.27
  • Parliamentary Elections (Interim Provisions) Rules r.27
  • Parliamentary Elections (Interim Provisions) Rules r.36
  • Judicature (Court of Appeal Rules) Directions r.2(2)
  • Judicature (Court of Appeal Rules) Directions r.30(1)

Cases cited (14)

  • Banco Arabe 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)
  • Kiiza 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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