Wakilii

Abbot George Ouma v. Electoral Commission & Anor (Election Pet. No 005Of 2011) (Election Pet. No 005of 2011)

High Court · [2011] UGHC 84 · 2011 Petition Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition challenging the validity of parliamentary election results for Bukhooli Island Constituency held 18 February 2011
Decision
Election of 2nd respondent set aside; seat declared vacant; fresh election ordered

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court invalidated the election of the 2nd respondent as Member of Parliament for Bukhooli Island Constituency on the ground that he was not qualified for nomination. The court held that the 2nd respondent's resignation as Headmaster of Sigulu Secondary School was ineffective because he addressed it to the Ministry of Public Service rather than the Education Service Commission, his proper appointing authority under the Education Service Act, and because he did not comply with the Public Service Standing Orders requiring written approval before leaving office. The court declined to find that electoral law violations had been proved on the standard required.

Outcome

Election of 2nd respondent set aside; seat declared vacant; fresh election ordered

Facts

Abbot George Ouma challenged the election of Okeyoh Peter as Member of Parliament for Bukhooli Island Constituency in the February 2011 parliamentary election. Ouma alleged that Okeyoh Peter had not effectively resigned his position as Headmaster of Sigulu Secondary School before nomination as required by the Constitution and that the election was marred by numerous irregularities including pre-ticking of ballots, participation of unregistered voters, partisan presiding officers, and use of Government resources to ferry voters. Okeyoh Peter contended that he resigned on 1 July 2010 by letter addressed to the Ministry of Public Service through the Permanent Secretary and Commissioner for Secondary Education in the Ministry of Education and Sports, which resignation was accepted by letter dated 9 July 2010, and that the election was free and fair. The court heard evidence from multiple polling agents on both sides regarding alleged irregularities at several polling stations.

Issues

  1. Whether the 2nd respondent was duly nominated as a candidate for Bukhooli Island Constituency.
  2. Whether the election for MP in Bukhooli Island Constituency was conducted in compliance with the electoral laws.
  3. If not, whether the non-compliance affected the results in a substantial manner.
  4. Whether or not the 2nd respondent, personally or through his agents with his knowledge, committed any illegal practices.
  5. What remedies are available.

Orders

  • The 2nd respondent was not qualified for nomination and subsequent election as Member of Parliament for Bukhooli Island Constituency, having failed to tender an effective resignation of his job.
  • The election of the 2nd respondent as MP of Bukhooli Island Constituency is hereby set aside.
  • The seat is declared vacant and a fresh election should be held.
  • No order as to costs. Each party shall bear its own costs.

Rules and key headnotes

Electoral Law — Qualification for Election — Resignation from Public Office — Appointing Authority
Under article 80(4) of the Constitution and section 4(4)(a) of the Parliamentary Elections Act, a public officer who wishes to stand for election as a member of Parliament must resign his or her office at least 90 days before nomination day. For the resignation to be effective, it must be addressed to the appointing authority and not to any other body. Where a public officer in the Education Service resigns, the appointing authority is the Education Service Commission under article 167 and section 8(1)(b) of the Education Service Act, not the Ministry of Public Service or the Ministry of Education and Sports.
Electoral Law — Qualification for Election — Resignation from Public Office — Procedure
A public officer cannot remove himself from public service by merely intimating that he wishes to resign his office. Under the Public Service Standing Orders, a public officer who wishes to resign must apply to the Government or the relevant Service Commission by giving notice of 30 days and shall not leave office until his application to resign has been approved in writing indicating the date the officer may leave. A resignation addressed to the wrong authority or person renders the resignation ineffective. A purported hand-over of office undertaken prior to receipt of formal acceptance of resignation cannot be deemed effective.
Administrative Law — Public Officers — Resignation — Appointing Authority
One's employer for purposes of resignation is the appointing authority that initially made an offer of employment, the acceptance of which translated into an employer-employee relationship. The core function of Government Ministries is policy formulation and implementation, not the appointment and resignation of professional staff. Where a person serves as a public officer in a public school in the Education Service within the meaning of the Constitution and the Education Service Act, his appointing authority is the Education Service Commission, not a Government Ministry.
Evidence — Affidavit Evidence — Hearsay — Source of Information
An affidavit that does not distinguish between matters stated on information and belief and matters to which the deponent swears from his own knowledge is defective. Where averments are based on information, the source of information must be clearly disclosed, and where the statement is a statement of belief, the grounds of belief must be stated with sufficient particularity so that court can judge whether it is safe to act on the deponent's affidavit. Failure to disclose the source of information will normally render the affidavit null and void.
Evidence — Standard of Proof — Election Petitions — Satisfaction of Court
Under section 61(3) of the Parliamentary Elections Act, all grounds set forth in an election petition must be proved by balance of probabilities. A court must be 'satisfied' of the facts asserted, which means the court would not be satisfied if it was in a state of reasonable doubt. Election petitions should be determined on a high degree of probability, and in the event of reasonable doubt as to the probability of the allegations presented, a petition or ground thereof should be disallowed. A petitioner has a duty to adduce credible evidence or cogent evidence to prove his or her allegation at the required standard of proof.
Evidence — Election Petitions — Evaluation of Evidence — Documentary Evidence
An election petition is a highly politicised dispute arising out of a highly politicised contest. In such a dispute, details of incidents in question tend to be lost or distorted as the disputing parties trade accusations, each exaggerating the other's wrongs while downplaying their own, because most witnesses are the very people who actively participated in the election contest. There is need for an independent source of evidence to confirm the authenticity of either party's allegations. In the contradiction of oral testimony which occurs in almost every case, documentary evidence must be looked to in order to see on which side the truth lies.
Electoral Law — Election Petitions — Costs
Petitions are matters of national or political importance for which courts should be hesitant to award costs. Where a petition could have been disposed of by resolution of a single issue alone but other issues were also determined, and the petition posed critical governance issues that were not addressed with the diligence required, the court may make no order as to costs, with each party bearing its own costs.

Legislation cited (29)

Cases cited (12)

  • State ex rel Dwyer vs Middletown (1988) Ohio App.3d 87 at 92
  • Davis vs. Marion County Engineer (1991) 60 Ohio St.3d 53
  • Uganda Journalist Safety Commission & Others v Attorney General (Constitutional Petition No. 7 of 1997)
  • Kiiza Besigye v Yoweri Museveni Kaguta & Anor (Election Petition No. 1 of 2001)
  • Kiiza Besigye v Electoral Commission & Yoweri Kaguta Museveni (Presidential Election Petition No. 1 of 2006)
  • Wasike Stephen Mugeni v Aggrey Awori Siryoyi (Election Petition Appeal No. 5 of 2007)
  • Kiiza Besigye v Electoral Commission & Yoweri Kaguta Museveni (Presidential Election Petition No. 1 of 2006)
  • Blythe vs Blythe (1966) AC 643
  • Mbayo Jacob v Electoral Commission & Another (Election Petitions Appeal No. 7 of 2006)
  • Mwiru Paul v Igeme Nabeta (Election Petition No. 3 of 2011)
  • Karokora Katono Zedekia v Electoral Commission & Kagonyera Mondo (Election Petition No. 02 of 2001)
  • Sarah Bireete & Another v Bernadette Bigirwa & the Electoral Commission (Election Petition No. 13 of 2002)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Abbot George Ouma Vs. Electoral Commission & Anor (Election Pet. No 005Of 2011) (Election Pet. No 005of 2011) [2011] UGHC 84 (29 June 2011)
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.