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Emorut v Akurut and Anor (HCT-09-CV-EP 2 of 2016)

High Court · [2016] UGHCEP 34 · 2016 Petition Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition challenging the validity of parliamentary election and nomination of the 1st Respondent as Woman Member of Parliament for Katakwi District
Decision
Election nullified; fresh elections ordered for Woman Member of Parliament for Katakwi District

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that a member of a Constitutional Commission who receives emoluments from the consolidated fund is a public officer required to resign 90 days before nomination day under Article 80(4) of the Constitution. Article 257, which excludes Commission members from the definition of public service, must be harmonised with Article 80(4) to effectuate the constitutional purpose of preventing public officers from using government resources in campaigns. The 1st Respondent, being a Commissioner of the Uganda Human Rights Commission who failed to resign 90 days before nomination, was not validly elected. Election nullified and fresh elections ordered.

Outcome

Election nullified; fresh elections ordered for Woman Member of Parliament for Katakwi District

Facts

The 1st Respondent, Akurut Violet Adome, was declared winner of the parliamentary election for Katakwi District Woman Member of Parliament held on 18 February 2016. At the time of nomination and election, she was employed as a Commissioner of the Uganda Human Rights Commission. She did not resign from this position, relying on legal advice from the Solicitor General that members of Constitutional Commissions were not required to resign under Article 257(2)(b). She had been appointed to the Commission on 8 July 2012 and sought leave of absence from 28 September 2015 for purposes of participating in elections, continuing to receive her salary throughout. The Petitioner, a registered voter in Katakwi District, challenged her election on the ground that she was required to resign 90 days before nomination under Article 80(4) and Section 4(4)(a) of the Parliamentary Elections Act.

Issues

  1. Whether the Assistant Registrar had jurisdiction to entertain Miscellaneous Application No 05 of 2016 and Miscellaneous Application No 19 of 2016.
  2. Whether the said Miscellaneous Application No 05 of 2016 and Miscellaneous Application No 19 of 2016 were filed out of time.
  3. Whether the Petitioner effected service upon the 1st Respondent as required by law.
  4. Whether the petition was properly presented.
  5. Whether the 1st Respondent was at the time of her nomination and election not qualified or was disqualified for election as a Member of Parliament.
  6. What remedies are available to the parties.

Orders

  • The 1st Respondent was not validly elected for nominations as Woman Member of Parliament for Katakwi district.
  • The election of the 1st Respondent as Katakwi Woman Member of Parliament is hereby nullified.
  • Fresh elections be conducted for Woman Member of Parliament for Katakwi district.
  • The Petitioner is awarded costs of this petition against both Respondents.

Rules and key headnotes

Electoral Law — Candidate Qualifications — Public Officers — Requirement to Resign
Under the multiparty political system, a public officer employed in any government department or agency of government who wishes to stand in a general election as a Member of Parliament must resign their office at least 90 days before nomination day as required by Article 80(4) of the Constitution and Section 4(4)(a) of the Parliamentary Elections Act 2005.
Constitutional Law — Interpretation — Harmonisation of Provisions
Where constitutional provisions appear to conflict, they must be read and construed in a manner that harmonises them, giving effect to all provisions as integral parts of the constitution and interpreting them to effectuate the general purpose of the instrument.
Constitutional Law — Public Service — Members of Constitutional Commissions
A member of a Constitutional Commission who receives emoluments from the consolidated fund is a public officer within the meaning of Article 80(4) and Section 4(4) of the Parliamentary Elections Act. Although Article 257(2)(b) provides that a reference to an office in the public service does not include a member of a commission, this provision must be harmonised with Article 80(4), which was enacted in 2005 to eliminate the advantage of public officers using government resources in campaigns under the multiparty system.
Electoral Law — Election Petitions — Presentation — Requirement for Supporting Signatures
An election petition under Section 60(2) of the Parliamentary Elections Act must be supported by the signatures of not less than 500 voters registered in the constituency. The burden of proving that signatories were illiterate and required certificates of translation under the Illiterates Protection Act rests on the respondent challenging the signatures. A literate person is not prohibited from using a thumb print, and thumb printing does not create a presumption of illiteracy requiring formal proof by affidavit.
Civil Procedure — Service of Process — Personal Service — Notification
The object of service of a petition is that the respondent may be informed of the institution of the petition in due time before the date fixed for hearing. Where a process server delivers a petition to a respondent, who reads it and directs the server to deliver it to their advocates, service is effectively accomplished. A respondent who has actual knowledge of the contents of a petition cannot subsequently complain of defective service, particularly where they file a reply within time.
Electoral Law — Election Petitions — Jurisdiction — Registrar versus Judge
Under Rule 24 of the Parliamentary Elections (Election Petition) Rules SI 141-2, all interlocutory questions and matters arising out of the trial of election petitions, save for those relating to leave to withdraw a petition, must be heard and disposed of by a judge. The Registrar has no jurisdiction to hear such interlocutory applications. Although Rule 17 imports the Civil Procedure Rules, it does so subject to the Parliamentary Elections Rules, which specifically remove interlocutory matters from the Registrar's jurisdiction.
Statutory Interpretation — Later Enactment — Constitutional Amendment
In construing constitutional provisions, regard must be had to the state of things existing at the time a provision was enacted and the evils it was designed to remedy. Where an amendment is enacted to address a new situation, earlier provisions must be interpreted to give effect to the purpose of the amendment. Article 80(4), enacted in 2005 to address the multiparty dispensation, must be given effect even where it appears to narrow the scope of the earlier Article 257.

Legislation cited (21)

Cases cited (10)

  • Col. (RTD) Dr Besigye Kizza v Museveni Yoweri Kaguta & the Electoral Commission (Election Petition No. 1 of 2006)
  • Mbowe V Elu Foo [1967] EA 240
  • Margaret Zziwa v Nava Nabagesera (Civil Appeal No. 39 of 1997)
  • Hon Sabila v Maket Latif (Election Petition No. 2 of 2010)
  • Sitenda Sebalu v Sam K Njuba & Electoral Commission (Election Petition Appeal No. 26 of 2007)
  • Sitenda Sebalu v Electoral Commission (Election Petition Appeal No. 6 of 2009)
  • Keates V Lewis Merthyr Consolidated Collieries [1911] AC 641
  • PK Ssemwogerere & Ors v Attorney General (Constitutional Petition No. 1 of 2001)
  • Smith Dakota V North Carolina 192 1940 268
  • Kwezira Eddie v Attorney General (Constitutional Petition No. 14 of 2005)

Full judgment

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Emorut v Akurut and Anor (HCT-09-CV-EP 2 of 2016) [2016] UGHCEP 34 (15 July 2016)
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.