Wakilii

Asio v Electoral Commission Another (ELECTION PETITION NO 11 OF 2020)

High Court · [2020] UGHCCD 220 · 2020 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal by way of petition from Electoral Commission decision denominating petitioner as candidate for Member of Parliament
Decision
Petition dismissed as remedies sought rendered untenable by declaration and gazetting of winner during pendency of proceedings

Observed later treatment

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Holding

The Electoral Commission has original jurisdiction under Article 61(f) of the Constitution to hear and determine election complaints arising before and during polling. Once a candidate has been declared and gazetted as winner following the filing of a petition challenging nomination, the appropriate remedy is an election petition under sections 60-61 of the Parliamentary Elections Act challenging the validity of the election, not an appeal from the Electoral Commission's decision. A court cannot in such an appeal grant orders affecting the rights of the declared winner without that person being joined as a party.

Outcome

Petition dismissed as remedies sought rendered untenable by declaration and gazetting of winner during pendency of proceedings

Facts

The petitioner Asio Jesca was denominated by the Electoral Commission as a candidate for Bukedea Woman Member of Parliament following a complaint by the 2nd respondent Epillo Isaac alleging that the petitioner's proposer and seconder denied signing her nomination papers and that her academic papers were forged. The Electoral Commission upheld the complaint and denominated the petitioner on 26 October 2020. The petitioner filed this appeal by way of petition on 2 November 2020. On 3 November 2020, one day after the petition was filed, the Electoral Commission declared and gazetted Hon. Among Anita Annet as the unopposed candidate and winner for Bukedea Woman Member of Parliament. The petitioner sought orders reversing the Electoral Commission's decision and reinstating her nomination. Hon. Among was not joined as a party to the proceedings.

Issues

  1. Whether the petition is competently before this court?
  2. Whether the 1st respondent had jurisdiction to entertain the matter?
  3. Whether the denomination of the petitioner was lawful?
  4. Whether the Orders sought under the petition are tenable?
  5. What remedies are available?

Orders

  • Petition dismissed.
  • No order as to costs.

Rules and key headnotes

Electoral Law — Jurisdiction of Electoral Commission — Original vs Appellate Jurisdiction — Power to Hear Complaints
The Electoral Commission has original jurisdiction under Article 61(f) of the Constitution to hear and determine election complaints arising before and during polling. This constitutional jurisdiction cannot be removed by an Act of Parliament. The Electoral Commission Act does not restrict the Commission to appellate jurisdiction only, but rather creates an additional forum for resolving complaints at the level of the Returning Officer before escalation to the Commission.
Electoral Law — Appeals from Electoral Commission — Remedies Available — Effect of Declaration and Gazetting of Winner
Where the Electoral Commission has declared and gazetted a winner after an appeal challenging nomination has been filed, the remedies sought in the appeal become untenable. Once a candidate has been declared and gazetted, that person ceases to be a candidate and becomes an elected person. The appropriate remedy at that stage is an election petition under sections 60-61 of the Parliamentary Elections Act challenging the validity of the election, not an appeal from the Electoral Commission's nomination decision.
Electoral Law — Election Petitions — Necessary Parties — Effect of Non-Joinder of Declared Winner
A court hearing an appeal from the Electoral Commission cannot grant orders that would nullify the election of a declared and gazetted candidate where that person has not been joined as a party to the proceedings. To do so would violate the principles of natural justice enshrined in Articles 28(1) and 44(c) of the Constitution, which protect against condemnation unheard.
Electoral Law — Stages of Electoral Process — Distinct Remedies at Each Stage
The electoral laws provide distinct remedies at every stage of the electoral process from nomination to campaigns, voting, counting, and declaration of results. The remedy of appeal to challenge nomination is only available before the Electoral Commission has gazetted a winner. Once the gazette has been issued, the available remedy is to file an election petition under section 61 of the Parliamentary Elections Act.
Constitutional Law — Statutory Interpretation — Supremacy of Constitutional Provisions over Acts of Parliament
The Constitution as the supreme law of the land vests jurisdiction to handle election complaints in the Electoral Commission. This jurisdiction cannot be removed by an Act of Parliament. The construction of electoral legislation should commend itself to justice and reason, giving broad interpretation to further the object of the Constitution and not to dilute it.
Civil Procedure — Competency of Petition — Effect of Non-Joinder on Competency vs Remedies
The failure to add all necessary parties does not render a petition incompetent or improperly before the court. Rather, it affects the remedies or final orders the court may give based on the facts and circumstances of the case. A petition may be competent but the remedies sought may be untenable due to non-joinder of affected parties.
Administrative Law — Judicial Powers — Limits on Court's Power to Legislate or Fill Legislative Gaps
The court cannot rewrite the law, recast, or reframe legislation because it has no power to legislate. Where there is a lacuna in the law, the court cannot create law and seek to enforce it. A judge is not authorised to legislate law. While interpreting a special statute like electoral laws, the court must consider the intention of the legislature and apply the statute strictly construed.

Legislation cited (15)

Cases cited (3)

  • Carolyne Turyatemba & 4 Others v Attorney General (Constitutional Petition No. 15 of 2006)
  • Byanyima Winnie v Ngoma Ngime (HCCR No. 9 of 2009)
  • Kafeero Ssekitoleko Robert v Mugambe Joseph Kifomusana & Electoral Commission (HC-EP No. 006 of 2011)

Full judgment

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

Asio v Electoral Commission Another (ELECTION PETITION NO 11 OF 2020) 2020 UGHCCD 220 (1 December 2020)
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.