Wakilii

Nalubega v Kinyamatama and Another (Election Petition No. 6 of 2021)

High Court · [2021] UGHCEP 38 · 2021 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition challenging the validity of the 1st Respondent's election as District Woman Representative to Parliament for Rakai District on the ground that she was not qualified at the time of election
Decision
Petition dismissed with costs to the Respondents

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that challenges to a candidate's qualification based on alleged ineligibility must be raised before the Electoral Commission under Article 61(1)(f) of the Constitution before polling, not after elections through a petition. The electoral process is progressive and segmented; once nomination is complete, that segment cannot be revisited through post-election litigation. The petitioner failed to inspect nomination documents or lodge a pre-election complaint despite having knowledge of the alleged disqualification. The Court further held that the addition of names to one's original registered name, when properly explained by deed poll and statutory declaration, does not constitute a change of identity requiring compliance with the Registration of Persons Act, and does not disqualify a registered voter.

Outcome

Petition dismissed with costs to the Respondents

Facts

Nalubega Grace, the Petitioner, and Suubi Kyinyamatama Juliet K, the 1st Respondent, were among candidates in the election for District Woman Representative to Parliament for Rakai District held on 14 January 2021. The Electoral Commission declared the 1st Respondent the winner with 34,291 votes to the Petitioner's 19,682 votes. The 1st Respondent was gazetted on 17 February 2021 and sworn in. On 5 February 2021, after the elections, the Petitioner instructed lawyers to obtain certified copies of the 1st Respondent's nomination documents. The Petitioner alleged that the 1st Respondent was not qualified because she was not a registered voter. The 1st Respondent had presented nomination papers in the name Suubi Kyinyamatama Juliet K, but the National Voters Register showed only Kobusingye Juliet at the polling station. The 1st Respondent had submitted a deed poll, gazette notice, and statutory declaration to the Returning Officer explaining that she had added the names Suubi Kyinyamatama to her original name Kobusingye Juliet, with the 'K' standing for Kobusingye. Her academic certificates, National Identity Card, and voter registration were all in the name Kobusingye Juliet. The Returning Officer verified that the photographs on all documents matched and accepted that all names referred to the same person.

Issues

  1. Whether the Petitioner's cause of action challenging the validity of the 1st Respondent's nomination and election on account of the alleged want of qualification is maintainable in law, after conclusion of elections.
  2. Whether the 1st Respondent was not qualified for nomination and election as a Woman Member of Parliament for Rakai District.

Orders

  • Petition dismissed.
  • Costs awarded to the Respondents.

Rules and key headnotes

Electoral Law — Election Petitions — Timing of Complaints — Pre-Election Complaints Regarding Candidate Qualification
Challenges to a candidate's qualification for nomination based on alleged ineligibility must be raised with the Electoral Commission under Article 61(1)(f) of the Constitution and Section 15 of the Electoral Commission Act before the election is held, not after the election through an election petition. The electoral process is progressive and segmented, moving in a single direction along a single track; once a segment such as nomination is completed, the process moves forward and does not permit revisiting earlier stages through post-election litigation.
Electoral Law — Voter Registration — Addition of Names — Effect on Registered Voter Status
The addition of names to a person's original registered name, where the original name remains intact and the addition is explained by a registered deed poll and statutory declaration, does not constitute a change of name requiring compliance with Section 36 of the Registration of Persons Act, and does not affect the person's identity as a registered voter. A person who adds names to their maiden name does not forfeit rights acquired under the original name, including the right to vote as a registered voter under that original name.
Electoral Law — Candidate Qualification — Registration as Voter — Identity Verification
Where a candidate presents nomination documents in names different from those on the voters' register, but provides a deed poll, statutory declaration, and identity documents showing that the names all refer to the same person, and the photographs on all documents correspond, the Returning Officer is entitled to be satisfied that the candidate is a registered voter. The burden is on the petitioner challenging the candidate's qualification to prove that the different names do not refer to the same person.
Administrative Law — Primary Jurisdiction — Electoral Commission — Pre-Election Disputes
The Electoral Commission has primary jurisdiction under Article 61(1)(f) of the Constitution to hear and determine election complaints arising from the electoral process before and during polling. Where a statutory remedy is available through the Electoral Commission for pre-election complaints, that remedy should be pursued first before invoking the court's jurisdiction. A party who fails to utilise the available statutory remedy within the stipulated period is estopped from raising the same complaint after the election.

Legislation cited (13)

Cases cited (19)

  • Ongole James Michael v Electoral Commission and Another (Election Petition No. 8 of 2006)
  • Akol Hellen Odeke v Okodel Umar (Election Petition Appeal No. 6 of 2020)
  • Kasirye Zzimula Fred v Bazigatirawo Kibuuka Francis Amooti and Another (Election Petition Appeal No. 1 of 2018)
  • Ninsiima Grace -v- Azairwe Dorothy Nshaija Kabaraitsya & EC
  • Charles Nsubuga v Eng. Badru Kiggundu and 3 Others (Miscellaneous Cause No. 148 of 2015)
  • Byanyima Winnie v Ngoma Ngime (Constitutional Reference No. 9 of 2001)
  • Bernard Mulage v Fineserve Africa Limited and 3 Others (Petition No. 503 of 2014)
  • [2017] eKLR
  • [2008] 1 KLR 425
  • Hon. Otada Sam Amooti Owor v Taban Idi Amin and Another (Election Petition Appeal No. 93 of 2016)
  • Simon Peter Kinyera v Electoral Commission and Another (Election Petition No. 3 of 2018)
  • Mutembuli Yususf v Nagwomu Musamba Moses (Election Petition Appeal No. 43 of 2016)
  • Baleke Peter v Electoral Commission and Kakooza Joseph (Election Petition Appeal No. 4 of 2016)
  • Mandera Amos v Bwowe Ivan (Election Petition Appeal No. 91 of 2016)
  • Okello P. Charles Engola Macodwongo and Electoral Commission v Ayena Odongo Krispus Charles (Election Petition Appeal No. 26 of 2016)
  • Hashim Sulaiman v Onega Robert (Election Petition Appeal No. 1 of 2021)
  • Dr. Kizito Deo Lukyamuzi v Kasamba Mathias and Electoral Commission (Election Petition No. 3 of 2011)
  • Tinka v Bigirwenkya and Another (Election Petition Appeal No. 7 of 2011)
  • Wakayima Musoke Nsereko and Electoral Commission v Kasule Robert Ssebunya (Election Petition Appeal Nos. 50 and 102 of 2016)

Full judgment

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Nalubega v Kinyamatama and Another (Election Petition No. 6 of 2021) [2021] UGHCEP 38 (17 September 2021)
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