Wakilii

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

High Court · [2021] UGHC 4 · 2021 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition challenging the qualification and election of the 1st Respondent as District Woman Representative for Rakai District on grounds that she was not a registered voter
Decision
Petition dismissed with costs to the 1st and 2nd Respondents

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that an election petition challenging a candidate's qualification on grounds of voter registration must be raised before the Electoral Commission during the nomination stage, not after elections are concluded. The petitioner failed to utilise the available pre-election remedies under Article 61(1)(f) of the Constitution and section 15 of the Electoral Commission Act. Further, addition of names by deed poll does not constitute a change of identity requiring compliance with the Registration of Persons Act; the 1st Respondent was a registered voter. Petition dismissed.

Outcome

Petition dismissed with costs to the 1st and 2nd Respondents

Facts

Nalubega Grace petitioned the High Court challenging the election of Suubi Kyinyamatama Juliet K as Woman Member of Parliament for Rakai District held on 14 January 2021. The 1st Respondent polled 34,291 votes against the petitioner's 19,682 votes and was gazetted on 17 February 2021. The petitioner alleged that the 1st Respondent was not a registered voter because her nomination documents bore the names Suubi Kyinyamatama Juliet K, whereas the voters' register listed Kobusingye Juliet. The petitioner instructed her lawyers on 5 February 2021 to request certified copies of nomination documents from the Electoral Commission, which were provided on 12 February 2021. The petitioner claimed that the 1st Respondent was not qualified to be elected as she was not registered on the voters' roll for Rakai District.

Issues

  1. Whether the Petitioner's cause of action challenging the validity of the 1st Respondent's nomination and election on account of 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.
  3. What remedies are available to the parties.

Orders

  • Petition dismissed with costs to the Respondents.

Rules and key headnotes

Electoral Law — Election Petitions — Timing of Complaints — Pre-election versus Post-election Remedies
Complaints regarding the qualification of a candidate arising from nomination must be raised with the Electoral Commission during the pre-polling stage under Article 61(1)(f) of the Constitution and section 15 of the Electoral Commission Act, and cannot be raised for the first time in an election petition after the election has been concluded.
Electoral Law — Election Petitions — Estoppel — Waiver of Rights by Delay
A petitioner who was aware of alleged ineligibility of a candidate during the nomination period but failed to lodge a timely complaint with the Electoral Commission is estopped from raising such complaints after the electoral process is completed.
Electoral Law — Progressive Electoral Process — Segmentation of Electoral Stages
The electoral process is progressive and moves along a single track; each segment (nomination, campaigning, voting, counting, declaration of results, election petitions) is distinct and self-contained. Once one segment is completed, the process moves to the next and does not move backwards or along dual tracks.
Electoral Law — Voter Registration — Identity of Registered Voter — Addition of Names
The addition of names by deed poll to a person's original registered name does not constitute a change of name requiring compliance with section 36 of the Registration of Persons Act, and does not affect the identity of the person as a registered voter where a statutory declaration or deed poll explains that all names refer to one and the same person.
Electoral Law — Qualification for Election — Registered Voter Requirement
A person is qualified to be a Member of Parliament under Article 80(1)(b) of the Constitution and section 4(1)(b) of the Parliamentary Elections Act if that person is a registered voter, meaning a person whose name is entered on the voters' register.
Statutory Interpretation — Names and Identity — Rights Acquired Under Former Name
A person who assumes additional names or changes the order of names by deed poll does not thereby forfeit rights acquired under the former name, including academic qualifications and voter registration. A deed poll serves to prove to the world that the person using the newly assumed or ordered names is one and the same person who acquired rights under the old names.

Legislation cited (17)

  • Constitution of Uganda 1995 (as amended) Article 61(1)(f)
  • Constitution of Uganda 1995 (as amended) Article 80(1)
  • Constitution of Uganda 1995 (as amended) Article 80(1)(b)
  • Parliamentary Elections Act 2005 (as amended) s.4
  • Parliamentary Elections Act 2005 (as amended) s.4(1)
  • Parliamentary Elections Act 2005 (as amended) s.4(1)(b)
  • Parliamentary Elections Act 2005 (as amended) s.15
  • Parliamentary Elections Act 2005 (as amended) s.15(b)
  • Parliamentary Elections Act 2005 (as amended) s.60(3)
  • Parliamentary Elections Act 2005 (as amended) s.61
  • Parliamentary Elections Act 2005 (as amended) s.61(1)
  • Parliamentary Elections Act 2005 (as amended) s.61(1)(d)
  • Parliamentary Elections (Election Petitions) Rules SI 141-2 (as amended)
  • Electoral Commission Act s.15
  • Electoral Commission Act s.15(1)
  • Registration of Persons Act s.36
  • Registration of Persons Act 2015 s.36

Cases cited (20)

  • 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)
  • 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)
  • 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)
  • National Rainbow Coalition (NARK Kenya) -v- Independent Electoral and Boundaries Commission (I.E.B.C.) & 3 others [2017] eKLR
  • Speaker of National Assembly -v- Ngenga Karume [2008] 1 KLR425
  • Mutembuli Yusuf 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)
  • Ninsiima Grace v Azairwe Dorothy Nshaija Kabaraitsya and Electoral Commission (Election Petition Appeal No. 5 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 Suubi Kyinyamatama and Another (Election Petition No. 6 of 2021) [2021] UGHC 4 (17 September 2021)
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