Wakilii

Kahombo Kakusya v Dr. Asiimwe and Another (Election Petition No. 8 of 2021)

High Court · [2021] UGHCEP 5 · 2021 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition challenging the nomination and election of the 1st respondent as Woman Member of Parliament for Masindi District on grounds of disqualification as a cultural leader
Decision
Petition dismissed; 1st respondent's election as Woman Member of Parliament for Masindi District upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that a Minister appointed on voluntary terms in Bunyoro Kitara Kingdom does not fall within the constitutional definition of a 'traditional leader or cultural leader' under Article 246(6) of the Constitution. A cultural leader must derive allegiance from birth or descent according to custom and tradition, not by appointment. The 1st respondent was therefore not disqualified from standing for Parliament and was validly nominated and elected. Petition dismissed.

Outcome

Petition dismissed; 1st respondent's election as Woman Member of Parliament for Masindi District upheld

Facts

The petitioner and 1st respondent contested the election for Woman Member of Parliament for Masindi District held on 14 January 2021. The 1st respondent won with 44,680 votes; the petitioner received 27,950 votes. The 1st respondent served as Minister of Social Services (Education and Health) in Bunyoro Kitara Kingdom on voluntary terms, a position to which she had been appointed by the Omukama of Bunyoro in October 2018 for five years. The petitioner challenged the 1st respondent's qualification to stand for election, arguing that as a minister in the Kingdom she was a cultural leader who was required under Article 246 of the Constitution and Section 13 of the Institution of Traditional or Cultural Leaders Act 2011 to resign at least 90 days before nomination. The petitioner abandoned allegations of electoral offences and proceeded only on the disqualification issue.

Issues

  1. Whether the 1st respondent was not qualified for nomination and election as a woman member of Parliament for Masindi district on account of being a cultural leader.
  2. What remedies are available to the parties?

Orders

  • Petition dismissed.
  • Costs awarded to the respondents.

Rules and key headnotes

Electoral Law — Disqualification from Parliament — Traditional or Cultural Leader — Definition and Scope
A 'traditional leader or cultural leader' as defined in Article 246(6) of the Constitution means a king or similar traditional leader who derives allegiance from the fact of birth or descent in accordance with customs, traditions, usage or consent of the people led. The definition is restrictive and does not extend to persons appointed by the traditional leader to serve in voluntary or paid positions within a cultural institution.
Constitutional Law — Constitutional Interpretation — Strict Construction of Disqualification Provisions
Constitutional provisions imposing disqualifications for election to Parliament must be strictly construed to give effect to the clear intention of the framers. The court may not broaden a constitutional definition through structural implication where such implication would introduce absurdity and lack textual foundation. A broad interpretation barring all persons in voluntary employment with a cultural institution would have unintended consequences not supported by the constitutional text.
Electoral Law — Institution of Cultural Leader — Requirements for Recognition
Under Sections 3 and 4 of the Institution of Traditional or Cultural Leaders Act 2011, a traditional or cultural leader may be instituted either in accordance with culture, customs and traditions or through a resolution of not less than two-thirds of the relevant district local government council. A position attained through appointment by the king without compliance with these requirements does not constitute the holder as a traditional or cultural leader within the meaning of the Act.
Electoral Law — Election Petitions — Burden and Standard of Proof — 'Satisfaction of the Court'
The burden of proof in an election petition lies on the petitioner who must prove the grounds to the satisfaction of the court. This is a high standard because the subject matter is of critical importance to democratic governance. The standard is proof on a balance of probabilities, but at a very high degree of probability given the grave consequences of setting aside an election.
Electoral Law — Election Petitions — Remedies — Declaration of Petitioner as Winner
A court will not declare a losing candidate as winner of an election where that candidate secured only 35.54% of votes against the winner's 52.02%. The declaration of a runner-up as winner is an exceptional remedy that should only be granted in the rarest of circumstances, not as an automatic remedy. A candidate rejected by more than half of the electorate cannot seek to be imposed on the electorate through the court.

Legislation cited (16)

Cases cited (14)

  • Besigye Kizza v Museveni Yoweri Kaguta and Electoral Commission (Election Petition No. 1 of 2001)
  • Besigye Kizza v Museveni Yoweri Kaguta and Electoral Commission (Election Petition No. 1 of 2006)
  • Blyth v Blyth [1966] AC 643
  • Karokora Katono Zedekia v Electoral Commission and Kagonyera Mondo (HC-05-CV-EP 002 of 2001)
  • Masiko Winfred Komuhangi v Babihuga J. Winnie (Election Petition No. 9 of 2002)
  • Sarah Bireete and Another v Bernadette Bigirwa and Electoral Commission (Election Petition Appeal No. 13 of 2002)
  • Akurut Violet Adome v Emurut Simon Peter (Election Petition Appeal No. 40 of 2016)
  • Paul Mwiru v Igeme Nathan Samson Nabeta and Others (Election Petition Appeal No. 6 of 2011)
  • Odo Tayebwa v Bassajjabalaba Nasser and Electoral Commission (Election Petition Appeal No. 13 of 2021)
  • Jeet Mohinder Singh v Harminder Singh Jassi AIR [2000] SC 256
  • Mashate Magomu Peter v Electoral Commission and Another (Election Petition No. 7 of 2016)
  • Mashate Magomu Peter v Electoral Commission and Another (Election Petition Appeal No. 47 of 2016)
  • David Tusingwire v Attorney General (Constitutional Appeal No. 4 of 2016)
  • Political Advertising Case (1992) 177 CLR 106

Full judgment

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

Kahombo Kakusya v Dr. Asiimwe and Another (Election Petition No. 8 of 2021) [2021] UGHCEP 5 (28 September 2021)
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.