Kamurali Jeremiah Birungi & Another v Attorney General & Another (National Assembly Election Petition No. 2 of 2012)
High Court
· [2013] UGHC 253
· 2013
Petition Dismissed
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Holding
The High Court held that it has jurisdiction under Article 52(1) of the EAC Treaty to determine questions relating to EALA elections and may apply the Parliamentary Elections Act mutatis mutandis in the absence of specific EALA election petition procedures. However, the petition was struck out because the petitioners lacked locus standi (having failed to qualify as candidates in the actual election) and filed the petition outside the 30-day statutory time limit prescribed by the Parliamentary Elections Act. The preliminary objection that there was no cause of action against the 2nd respondent was dismissed.
Outcome
Petition struck off for lack of locus standi and being time-barred
Facts
The petitioners challenged the 2012 election by Uganda's National Assembly of nine members to the East African Legislative Assembly (EALA), alleging the elections violated Article 50 of the EAC Treaty by failing to ensure representation of special interest groups (youths and persons with disabilities). The petitioners participated in the vetting process but were not shortlisted. They filed a petition on 31 July 2012, two months after the election results were gazetted on 31 May 2012. Both respondents raised preliminary objections challenging the competence of the petition, the petitioners' locus standi, and whether the petition was time-barred.
Issues
- Whether there is a cause of action against the 2nd respondent (Secretary General of the East African Community) in an election petition challenging Uganda's EALA elections.
- Whether the petition challenging EALA elections is supported by any provision in law and whether the procedure adopted is known to Ugandan judicial process.
- Whether the petitioners have locus standi to challenge the EALA elections when they were not candidates in the final election.
- Whether the petition was filed within the prescribed time limits.
Orders
- The first preliminary objection raised by the 1st respondent (that the petition is not supported by law) is disallowed.
- The second preliminary objection raised by the 1st respondent (relating to locus standi and time bar) is upheld.
- The preliminary objection raised by the 2nd respondent (no cause of action against him) is disallowed.
- The petition is struck off as incompetent.
- No order as to costs.
Rules and key headnotes
Electoral Law — EALA Elections — Jurisdiction — High Court jurisdiction under EAC Treaty Article 52(1)
Article 52(1) of the Treaty for the Establishment of the East African Community vests jurisdiction to determine questions relating to the election of EALA members in the institution of the Partner State that determines questions of election of members of the National Assembly. In Uganda, this jurisdiction is vested in the High Court, which has original jurisdiction to determine questions relating to the election of members of Parliament.
Statutory Interpretation — Treaty Implementation — Procedure — Application of domestic law
Where the EAC Treaty creates a cause of action but the National Assembly has not enacted specific procedural rules for EALA election petitions, the High Court may apply the Parliamentary Elections Act and Civil Procedure Rules mutatis mutandis to determine such petitions. The Treaty, having been domesticated through the East African Community Act 2002, has the force of law in Uganda and must be implemented.
Electoral Law — Election Petitions — Locus Standi — Who may challenge an election
Under section 60(2)(a) of the Parliamentary Elections Act 2005, only a candidate who loses an election has standing to challenge the election results. A person who participated in the vetting process but was not shortlisted and did not contest in the actual election is neither a loser nor a winner and therefore lacks locus standi to file an election petition.
Civil Procedure — Time Limits — Election Petitions — Computation of time
An election petition must be filed within 30 days from the date on which the result of the election is published in the Gazette, in accordance with section 60(3) of the Parliamentary Elections Act. This time limit applies to EALA election petitions where the Parliamentary Elections Act is applied mutatis mutandis.
Administrative Law — Preliminary Objections — Secretary General's Role — Cause of Action
Where a petition alleges that the Secretary General of the East African Community erred by allowing persons not duly elected to take oath as EALA members, and the Secretary General had obligations under the Treaty to verify compliance with election procedures, a cause of action is disclosed against the Secretary General. The question of whether the Secretary General properly discharged those obligations is a matter for determination on the merits, not on preliminary objection.
Civil Procedure — Preliminary Objections — Scope — Points of Law versus Facts
A preliminary objection must consist of a point of law which has been pleaded or which arises by implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. A preliminary objection cannot be based on contested facts or matters requiring evidence, which must be resolved at the main trial.
Legislation cited (30)
- Treaty for the Establishment of the East African Community Article 1
- Treaty for the Establishment of the East African Community Article 8(4)
- Treaty for the Establishment of the East African Community Article 29(1)
- Treaty for the Establishment of the East African Community Article 30(2)
- Treaty for the Establishment of the East African Community Article 50
- Treaty for the Establishment of the East African Community Article 50(1)
- Treaty for the Establishment of the East African Community Article 51(1)
- Treaty for the Establishment of the East African Community Article 51(3)(b)
- Treaty for the Establishment of the East African Community Article 52
- Treaty for the Establishment of the East African Community Article 52(1)
- Treaty for the Establishment of the East African Community Article 52(2)
- Treaty for the Establishment of the East African Community Article 71(1)(d)
- Treaty for the Establishment of the East African Community Article 71(1)(h)
- Treaty for the Establishment of the East African Community Article 71(2)
- Constitution of the Republic of Uganda Article 1
- Constitution of the Republic of Uganda Article 21
- Constitution of the Republic of Uganda Article 50
- Constitution of the Republic of Uganda Article 119
- Constitution of the Republic of Uganda Article 250
- East African Community Act 2002 s.3(1)
- Parliamentary Elections Act 2005 s.60
- Parliamentary Elections Act 2005 s.60(1)
- Parliamentary Elections Act 2005 s.60(2)
- Parliamentary Elections Act 2005 s.60(2)(a)
- Parliamentary Elections Act 2005 s.60(3)
- Judicature Act s.33
- Civil Procedure Rules Order 1 rule 13
- Civil Procedure Act s.98
- National Assembly Rules Appendix B Rule 13(1)
- Vienna Convention on the Law of Treaties 1969
Cases cited (17)
- Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors [1960] EA 696
- Auto Garage v Motokov [1971] EA 514
- Auto Garage v Motokov (No. 3) [1971] EA 514
- James Katabazi & 21 Others v Secretary General of the East African Community & Attorney General of Uganda (EACJ Reference No. 1 of 2007)
- Sitenda Sebalu v Secretary General of the East African Community & Others (EACJ Reference No. 1 of 2010)
- Anderson Kambela Masoka & Ors Vs Levy Patrick Mwanawasa & Anor, PEP No. SC. 2/EP/01/02/03 of 2002
- Dr (Rtd) Kiiza Besigye v Yoweri Kaguta Museveni (Supreme Court Election Petition No. 1 of 2006)
- Jacob Oulanya v Attorney General (Constitutional Petition No. 28 of 2008)
- Alcon International Ltd v Standard Bank (U) Ltd and Others (EACJ Reference No. 2 of 2011)
- Ngoma Ngime v Hon. Winnie Byanyima (Election Petition No. 11 of 2002)
- Ssali Godfrey v Uganda Electoral Commission and Kabaale Simon (Election Petition No. 35 of 2011)
- Christopher Mtikila v Attorney General of the United Republic of Tanzania (EACJ Reference No. 2 of 2007)
- Christopher Mutikila v Attorney General of United Republic of Tanzania (EACJ Reference No. 2 of 2007)
- Prof. Anyang Nyong & 10 Others v Attorney General of Kenya & 2 Others (EACJ Reference No. 1 of 2006)
- Democratic Party and Mukasa Mbidde v Secretary General of East African Community and Attorney General of Uganda (EACJ Reference No. 6 of 2011)
- Ndaula Ronald v Hajji Nadduli (Election Petition No. 20 of 2006)
- Makula International Vs Cardinal Wamala Nsubuga
Full judgment
The original judgment as reported. Read the original PDF before relying on any passage.
Kamurali Jeremiah Birungi & Another v Attorney General & Another (National Assembly Election Petition No. 2 of 2012) [2013] UGHC 253 (5 April 2013)
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