Kyagulanyi v Museveni & 2 Others (Miscellaneous Application 5 of 2021)

Supreme Court · [2021] UGSC 36 · 2021 Application Granted ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Application for leave to withdraw a presidential election petition; reasons for ruling and determination of costs

Decision

Leave to withdraw granted and petition withdrawn; 1st respondent declared duly elected President; each party to bear its own costs.

The full judgment

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Holding

The Court granted the petitioner leave to withdraw his presidential election petition, the statutory conditions in section 61 and rule 20 having been met and the respondents not objecting. Under section 59(4) of the Presidential Elections Act, withdrawal meant the candidate declared elected was conclusively taken to be duly elected, and the Court so declared the 1st respondent. On costs, the Court held that "shall" in section 61(4) is directory, not mandatory, so the discretionary costs regime under section 27 of the Civil Procedure Act applied. Because access to justice in presidential election petitions outweighed the costs-follow-the-event rule, and as costs are compensatory not punitive, each party was ordered to bear its own costs.

Facts

On 14 January 2021 the Electoral Commission held a presidential election in Uganda contested by 11 candidates. Yoweri Museveni Tibuhaburwa Kaguta obtained 5,851,037 votes (58.64%) and was declared the winner; the applicant, Kyagulanyi Ssentamu Robert, was the runner-up with 3,475,298 votes (34.83%). Dissatisfied, the applicant petitioned the Supreme Court challenging the result and alleging non-compliance with electoral laws and commission of electoral offences. During the proceedings his application to amend the petition (Misc. Application No. 1 of 2021) and his application to extend time to file additional affidavits (Misc. Application No. 4 of 2021) were both dismissed. He then applied for leave to withdraw the petition (Misc. Application No. 5 of 2021), asserting that his witnesses had been harassed, that his movements and party offices had been restricted, and that procedural rules had been applied to his disadvantage, while affirming that the decision was not influenced by any corrupt bargain. The respondents did not oppose withdrawal but sought costs and a declaration that the 1st respondent was duly elected.

Issues

Whether leave to withdraw the presidential election petition should be granted.
Whether, following withdrawal of the petition, the Court should declare the candidate validly elected as President.
Whether the word "shall" in section 61(4) of the Presidential Elections Act renders an award of costs against a withdrawing petitioner mandatory or directory.
Whether the applicant should be condemned in costs or each party should bear its own costs.

Orders

The Petition stands withdrawn.
The candidate declared elected by the Electoral Commission, Yoweri Museveni Tibuhaburwa Kaguta, is duly elected as President.
Each party will bear its own costs.

Key headnotes

Electoral Law — Presidential Election Petitions — Leave to Withdraw — Statutory Conditions

An election petition may be withdrawn only with leave of the court; leave will be granted where the petitioner and his advocate depose by affidavit that the decision to withdraw was not influenced by any corrupt motive or undertaking, notice of the application is published on the court notice board and in the gazette, and the respondents raise no objection.

Electoral Law — Presidential Election Petitions — Effect of Withdrawal — Conclusive Election of Declared Candidate

Under section 59(4) of the Presidential Elections Act, where a filed petition is withdrawn, the candidate declared elected by the Electoral Commission is conclusively taken to have been duly elected as President; this effect operates as a fait accompli independent of any court declaration, though the court may, for avoidance of doubt, expressly declare the candidate validly elected.

Statutory Interpretation — Meaning of "shall" — Mandatory or Directory

The word "shall" in a statutory provision is not invariably mandatory; whether it is mandatory or directory depends on the intention of Parliament, and the presence of a sanction for non-compliance is not a conclusive litmus test. "Shall" in section 61(4) of the Presidential Elections Act and rule 20(7) of the Rules is directory, so an award of costs against a withdrawing petitioner is not mandatory.

Civil Procedure — Costs — Discretion — Costs Follow the Event — Special Circumstances

Under section 27 of the Civil Procedure Act costs are in the discretion of the court and ordinarily follow the event unless the court for good reason otherwise orders; the court may depart from that rule where special circumstances and the interests of justice require, deciding the matter on a case-by-case basis. The need to promote access to justice in presidential election petitions constitutes a special circumstance justifying departure, and as costs are compensatory rather than punitive, alleged bad conduct does not warrant a punitive costs order.

Constitutional Law — Judicial Independence — Article 128 — Strict Constitutional Timelines

Judicial independence under Article 128 of the Constitution protects judicial decision-making from interference. The refusal of a litigant's applications to amend pleadings or extend time, where dictated by the strict constitutional timelines governing presidential election petitions under Article 104, is not evidence of lack of independence or impartiality; the failure of counsel to comply with an agreed roadmap cannot be visited on the court.

Legislation cited (16)

Presidential Elections Act 2005 s.61(1)
Presidential Elections Act 2005 s.61(4)
Presidential Elections Act 2005 s.59(4)
Presidential Elections Act 2005 s.59(5)
Civil Procedure Act Cap 71 s.27
Civil Procedure Act Cap 71 s.27(2)
Civil Procedure Act Cap 71 s.98
Civil Procedure Act Cap 71 s.100
Presidential Elections (Election Petitions) Rules 2001 r.20
Judicature (Supreme Court) Rules S.I 13-11 r.2(2)
Constitution of Uganda 1995 Article 128
Constitution of Uganda 1995 Article 104 (as amended by Constitution (Amendment) Act No. 1 of 2018)
Constitution of Uganda 1995 Article 28
Parliamentary Elections Act s.62
Civil Procedure (Miscellaneous Provisions) Act s.2
Civil Procedure Rules Order 5 rule 1(3)

Cases cited (13)

Besigye Kizza v Museveni Yoweri Kaguta and Electoral Commission (Presidential Election Petition No. 1 of 2001)
Presidential Election Petition No. 1 of 2006
Attorney General and Hon. Peter Nyombi v Uganda Law Society (High Court Miscellaneous Cause No. 321 of 2013)
Raila Amolo Odinga and another v Independent Electoral and Boundaries Commission and others (Presidential Petition No. 1 of 2017)
Sitenda Sebalu v Sam K. Njuba and the Electoral Commission (Election Petition Appeal No. 26 of 2007)
Kampala City Council Authority v Kabandize and 10 others (Civil Appeal No. 13 of 2014)
Bitamisi Namuddu v Rwabuganda Godfrey (Civil Appeal No. 16 of 2014)
Donald Campbell v Pollak [1927] AC 732
Dunne v Minister for the Environment [2007] IESC 60; (2008) 2 IR 775
Sinba (K) Ltd and others v Uganda Broadcasting Corporation (Civil Appeal No. 14 of 2014)
Pulliam v Allen, 466 US 522 (1984)
The Queen v Beauregard (1987) LRC (Const) 180
Attorney General v Gladys Nakibuule Kisekka (Constitutional Appeal No. 02 of 2016)

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