Wakilii

Kabagambe Asol and Others v Electoral Commission and Another (Constitutional Petition No. 1 of 2006)

Constitutional Court · [2006] UGCC 12 · 2006 Petition Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under articles 50 and 137 of the Constitution challenging the nomination of a presidential candidate
Decision
Petition dismissed with costs to the respondents

The full judgment

Read the complete, verbatim text of this judgment.

Sign in to read the full judgment
Treatment recorded in citing cases followed in 1 Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The petitioners challenged the Electoral Commission's nomination of Dr Kizza Besigye as a presidential candidate, contending it was unconstitutional because made in absentia and contrary to the Attorney General's advice. The Constitutional Court dismissed the petition. It held that the Electoral Commission is an independent body under article 62 and is not bound by the Attorney General's advice under article 119; such advice is not a binding directive and may be accepted or rejected. It further held that neither article 103(2)(a) nor the Presidential Elections Act 2005 requires a candidate to be physically present at nomination, provided the nomination document is signed by the candidate. Both preliminary objections were also dismissed.

Facts

The Electoral Commission designated 14 and 15 December 2005 as nomination days for candidates contesting the 23 February 2006 presidential election. At the material time, the 2nd respondent, Dr Kizza Besigye, was on remand in Luzira Prison facing alleged capital charges. On 5 December 2005 the Commission's chairman wrote to the Attorney General (the 3rd petitioner) asking whether a candidate could be nominated in absentia. On 7 December 2005 the Attorney General advised that a candidate must be physically present at the nomination venue. On 14 December 2005, despite this advice, the Commission accepted the 2nd respondent's nomination in absentia and declared him a presidential candidate. Because the Commission disregarded the Attorney General's advice, the petitioners filed a constitutional petition seeking declarations that the Commission's conduct contravened the Constitution and an order declaring the nomination null and void. The Attorney General's own letter acknowledged the Commission's independence under article 62 and advised it to consider invoking section 50 of the Electoral Commission Act.

Issues

  1. Whether the petition was fatally defective by reason of section 67 of the Advocates Act because the firm originally filing it had purportedly disowned it (preliminary objection).
  2. Whether the petition was filed prematurely and ought first to have been brought to the Electoral Commission with an appeal to the High Court under articles 61 and 64 of the Constitution (preliminary objection).
  3. Whether the nomination of the 2nd respondent by the 1st respondent contrary to the written advice of the 3rd petitioner contravened article 119 of the Constitution.
  4. Whether the nomination of the 2nd respondent in absentia was inconsistent with and contravened article 103(2)(a) of the Constitution.
  5. Whether the petitioners were entitled to the reliefs sought.

Orders

  • Both preliminary objections dismissed.
  • Petition dismissed.
  • Costs of the petition awarded to the respondents.

Key headnotes

Constitutional Law — Electoral Commission — Independence under Article 62
The Electoral Commission is an independent public institution under article 62 of the Constitution and, in the performance of its functions, is not subject to the direction or control of the Attorney General or any other authority save where the Constitution expressly so provides.
Constitutional Law — Attorney General — Binding effect of advice under Article 119
Although the Attorney General is the principal legal adviser of Government and his opinion is entitled to the highest respect, his advice is not a directive that must be obeyed; an entity such as the Electoral Commission may seek, receive and either accept or reject that advice.
Electoral Law — Presidential nomination — Nomination in absentia under Article 103(2)(a)
Neither article 103(2)(a) of the Constitution nor sections 10 and 11 of the Presidential Elections Act 2005 require a presidential candidate to be physically present at the nomination venue; nomination may be effected on the candidate's behalf provided the nomination document submitted to the Commission is signed by the candidate.
Civil Procedure — Advocates Act s.67 — Validity of pleading prepared by a qualified advocate
Sections 64 to 67 of the Advocates Act apply only to unqualified persons; section 67 does not invalidate a petition prepared by a qualified advocate where the firm's name and address are endorsed on the document, and such a validly filed petition may be validly amended.
Constitutional Law — Jurisdiction — Article 64 appeal versus Article 137 petition
The 'aggrieved person' entitled to appeal to the High Court under article 64 means a candidate or intending candidate; a person complaining of a breach of the Constitution may invoke the Constitutional Court's jurisdiction directly under article 137 without first proceeding before the Electoral Commission.

Legislation cited (16)

  • Constitution of Uganda 1995 art.50
  • Constitution of Uganda 1995 art.137
  • Constitution of Uganda 1995 art.119
  • Constitution of Uganda 1995 art.103(2)(a)
  • Constitution of Uganda 1995 art.98
  • Constitution of Uganda 1995 art.62
  • Constitution of Uganda 1995 art.61
  • Constitution of Uganda 1995 art.64
  • Advocates Act s.64
  • Advocates Act s.65
  • Advocates Act s.66
  • Advocates Act s.67
  • Electoral Commission Act Cap 140 s.50
  • Presidential Elections Act 2005 s.10
  • Presidential Elections Act 2005 s.11
  • Presidential Elections Act 2005 s.4

Cases cited (2)

  • Makula International vs. Cardinal Nsubuga [1982] H.C.B. 16
  • Bank of Uganda v Banco Arabe Espanol (Civil Appeal No. 1 of 2001)
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.