Wakilii

Ariko v Omara and Another (Election Petition No. 7 of 2021)

High Court · [2023] UGHCEP 5 · 2023 Petition Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition challenging nomination and election of first respondent as district chairperson, following remittal by Court of Appeal after earlier dismissal on preliminary objection
Decision
First respondent's election as district chairperson nullified; seat declared vacant; fresh election ordered

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held: election of first respondent as district chairperson for Abim district nullified. First respondent was unlawfully nominated because he had not effectively resigned from Uganda Peoples' Defence Forces before nomination on 28 September 2020, having failed to obtain written approval from the Commission Board as required by UPDF Act s.66. Resignation letter addressed to Chief of Defence Forces was ineffective; continued receipt of monthly salaries until October 2020 evidenced that resignation was incomplete. Electoral Commission also failed to determine petitioner's pre-polling complaints. Fresh election ordered.

Outcome

First respondent's election as district chairperson nullified; seat declared vacant; fresh election ordered

Facts

Petitioner and first respondent contested for district chairperson of Abim in local council elections on 20 January 2021. First respondent was declared winner with 14,417 votes against petitioner's 4,809. Petitioner challenged the election on grounds that first respondent, a serving UPDF Captain at rank of Captain, had not lawfully resigned before nomination on 28 September 2020. First respondent wrote resignation letter to Chief of Defence Forces on 18 June 2020 requesting early retirement by 25 June 2020. Military Assistant to CDF issued internal memorandum on 20 June 2020 stating CDF allowed discharge, but no formal written approval from Commission Board was issued. First respondent continued receiving full monthly salaries for July, August and September 2020. Service Personnel Particulars Report indicated end date of service as 6 October 2020. Petitioner filed two pre-polling complaints with Electoral Commission, which were received but no written decision was issued despite hearing scheduled for 16 November 2020. Petition was initially dismissed by trial judge on preliminary objection that wrong law was cited; Court of Appeal set aside dismissal and remitted matter for hearing on merits.

Issues

  1. Whether the first respondent was lawfully nominated to contest for the position of District Chairperson, Abim.
  2. Whether the second respondent determined the petitioner's pre-polling complaints regarding the validity of the first respondent's nomination.
  3. Whether the petitioner is entitled to the remedies sought.

Orders

  • Election petition allowed.
  • Election of first respondent, Omara Yuventine, as district chairperson for Abim district is nullified.
  • District chairperson seat for Abim district declared vacant.
  • Electoral Commission directed to conduct fresh elections for Abim district chairperson as soon as possible.
  • Costs of the petition awarded to the petitioner, to be met jointly and severally by the respondents.

Rules and key headnotes

Electoral Law — Nomination Qualifications — UPDF Officers — Requirement to Resign Before Seeking Political Office
A serving officer of the Uganda Peoples' Defence Forces who desires to seek political office must first resign or retire from the UPDF according to regulations made by the Minister, pursuant to section 99 of the UPDF Act 2005, and the resignation must be effective by the time of nomination.
Employment & Labour — UPDF Resignations — Procedure for Resignation — Authority to Accept Resignation
Under section 66 of the UPDF Act and regulation 28(1) of the Uganda Peoples' Defence Forces (Conditions of Service) (Officers) Regulations, resignation from the UPDF must be made in writing to the Commission Board, and an officer shall not be relieved of duties until he has received notification in writing of the approval of his resignation by the Board; the Chief of Defence Forces, even as Chairperson of the Commission Board, does not have independent authority to discharge officers without Board approval.
Employment & Labour — Resignation Procedure — Effective Date of Resignation — Addressing Application to Wrong Authority
Resignation is effective and deemed complete only if the application was made to the authorized person or body using the prescribed form, and the application has been accepted or approved in writing in accordance with the prescribed procedure; addressing a resignation letter to a wrong authority renders the resignation ineffective at the time of nomination.
Electoral Law — Nomination Qualifications — Timeline for Resignation — Local Government Elections
Section 116(5) of the Local Government Act requires any person employed in any government agency who wishes to stand for election to a local government office to resign at least 30 days before nomination day in accordance with the procedure of the service to which he belongs; the provision prescribes resignation before nomination, not merely application to resign.
Electoral Law — Evidence of Resignation — Continued Receipt of Salary as Indicator of Ongoing Employment
Continued receipt of monthly salaries after alleged resignation or discharge is evidence that an officer had not effectively resigned, and distinguishes from terminal benefits which support the fact of resignation; where a candidate continues to receive salary for months after alleged discharge, this indicates resignation was incomplete.
Electoral Law — Pre-Polling Complaints — Electoral Commission's Duty to Determine Complaints — Failure to Issue Written Decision
The Electoral Commission has a statutory duty under section 15(1) of the Electoral Commission Act to hear and determine pre-polling complaints; where the Commission hears complaints but fails to deliver a written decision, it has not fulfilled its statutory duty, and there is no decision capable of being appealed.
Electoral Law — Nullification of Elections — Unqualified Candidate — Remedy of Fresh Election
Under section 139(1)(d) of the Local Government Act, the election of a candidate as chairperson shall be set aside if proved that the candidate was at the time of election not qualified for election; where a candidate was unlawfully nominated due to failure to properly resign from UPDF service before nomination, the appropriate remedy is nullification of the election and an order for fresh elections.

Legislation cited (21)

Cases cited (28)

  • Ariko Johnny De West v Omara Yuventine and Electoral Commission (Election Petition Appeal No. 41 of 2021)
  • Magombe Vincent v Electoral Commission and Namugali Wamatabu Cassim (Election Petition No. 19 of 2021)
  • Mwiru Paul v Hon. Igeme Nabeta and Others (Election Petition Appeal No. 6 of 2011)
  • Mukasa Anthony Harris v Dr. Michael Lulume Bayiga (Election Petition Appeal No. 18 of 2007)
  • Matsiko Winifred Komuhangi v Babihuga J. Winnie (Election Petition Appeal No. 9 of 2002)
  • Eddie Kwizera v Attorney General (Constitutional Petition No. 14 of 2005)
  • Emorut Simon Peter v Akurut Violet Adome and Electoral Commission (Election Petition No. 2 of 2016)
  • Darlington Sakwa and Another v Electoral Commission and 44 Others (Constitutional Petition No. 8 of 2006)
  • Attorney General v Major General David Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Wasike Stephen Mugeni v Aggrey Awori Siryoyi (Supreme Court Election Petition Appeal No. 5 of 2007)
  • Abbot George Ouma v Electoral Commission and Another (Election Petition No. 5 of 2011)
  • Woboya Vincent v Ssasaga Isaiah Johnny (Election Petition Appeal No. 11 of 2016)
  • Makula International v His Eminence Cardinal Emmanuel Nsubuga and Another [1982] HCB 12
  • Kamo Enterprises Limited v Krystalline Salt Limited (Supreme Court Civil Appeal No. 8 of 2018)
  • Karokora Katono Zedekia v Electoral Commission and Kagonyera Mondo (Election Petition No. 2 of 2001)
  • Akol Ellen Odeke v Okodel Umar (Election Petition Appeal No. 6 of 2020)
  • Komakech Christopher and Electoral Commission v Odonga Otto (Consolidated Election Petition No. 2 and 6 of 2021)
  • Kasirye Zimula Fred v Bazigatirawo (Election Petition Appeal No. 6 of 2020)
  • Kahumbu v National Bank of Kenya (2003) 2 EA 475
  • Housing Finance Bank Ltd v Edward Musisi (Court of Appeal Miscellaneous Application No. 158 of 2020)
  • Grace Nalubega v Juliet K Suubi Kinyamatama (Election Petition Appeal No. 27 of 2021)
  • Kasibo Jose v Mbogo Kezekia and Electoral Commission (Election Petition No. 4 of 2011)
  • Mugema Peter v Mudiobole Abed Nasser (Election Petition Appeal No. 30 of 2011)
  • Kubeketerya James v Waira Kyewalabye and Electoral Commission (Election Petition Appeal No. 97 of 2016)
  • Kasirye Fred v Bazigatirawo Francis Amooti and Another (Election Petition Appeal No. 1 of 2018)
  • Wakayima Musoke Nsereko and Oral Commission v Sebunya Robert (Election Petition Appeal No. 50 and 102 of 2016)
  • Asha Ram Suryavanshi v Chhattisgarh Gramin Bank (Chhattisgarh High Court) Appeal No. WPS 1692 of 2011
  • UCO Bank and others v Sanwar Mal (2004) 4 SCC 412

Full judgment

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Ariko v Omara and Another (Election Petition No. 7 of 2021) [2023] UGHCEP 5 (9 March 2023)
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.