Wakilii

Onega Robert v Hashim Sulaiman & Electoral Commission (Election Petition 1 of 2018)

High Court · [2019] UGHC 103 · 2019 Election Annulled AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition challenging the validity of a parliamentary by-election outcome
Decision
Election of the 1st Respondent annulled; fresh election ordered for Nebbi Municipality

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the 1st Respondent did not possess the requisite academic qualifications at the time of nomination, having failed to prove that academic documents bearing the name Hashim Suleiman belonged to him when his legal name was Okethwengu Achim and he had never lawfully changed his name. The election was annulled on the ground of lack of qualification, a fresh election was ordered, and costs were awarded to the petitioner. The petitioner was not declared winner as the court could not determine whether he would have won had the 1st Respondent not been a candidate.

Outcome

Election of the 1st Respondent annulled; fresh election ordered for Nebbi Municipality

Facts

On 27 July 2018, a parliamentary by-election was held for Nebbi Municipality. The 1st Respondent emerged winner and was declared by the Electoral Commission as the duly elected Member of Parliament. The Petitioner challenged the election, alleging: (a) the 1st Respondent lacked the requisite academic qualifications, having presented documents in the name Hashim Suleiman at nomination when his true name was Okethwengu Achim, reflected on his PLE and UCE records; (b) the 1st Respondent committed electoral offences including bribery through his agents; and (c) the Electoral Commission conducted the election in a manner that violated electoral laws, including failure to provide lighting at polling stations, failure to ensure biometric voter verification machines were operational, and appointment of a known supporter of the 1st Respondent as a polling assistant. The 1st Respondent maintained that he had used the name Hashim Sulaiman throughout his academic career and that all electoral processes complied with the law. The winning margin was 124 votes.

Issues

  1. Whether at the time of nomination and election the 1st Respondent lacked the requisite academic qualifications of minimum formal education of advanced level standard or its equivalent to stand as Member of Parliament
  2. Whether the election for the position of Member of Parliament for Nebbi Municipality was conducted in compliance with the law
  3. Whether any non-compliance affected the result of the election in a substantial manner
  4. Whether the 1st Respondent personally or with his knowledge, consent or approval committed any illegal practices or electoral offences
  5. What remedies are available to the parties

Orders

  • Election of the 1st Respondent annulled
  • Fresh election ordered for Nebbi Municipality
  • Costs awarded to the petitioner

Rules and key headnotes

Parliamentary Elections — Qualifications of Candidates — Academic Qualifications — Burden of Proof
Where the authenticity of a candidate's academic certificates is questioned in an election petition, the evidential burden shifts to the candidate to prove that at the time of nomination, he possessed valid and authentic academic qualifications meeting the constitutional minimum of Advanced Level standard or its equivalent.
Parliamentary Elections — Qualifications — Change of Name — Legal Requirements
A candidate who seeks election using a name different from the name appearing on his academic documents must prove through statutory declaration or deed poll that both names refer to the same person. Where academic documents presented bear a name substantially different from the candidate's legal name and no statutory declaration or deed poll is produced, the candidate has failed to establish the requisite academic qualifications.
Parliamentary Elections — Qualifications — Inconsistencies in Pleadings and Evidence
Where a candidate states in his affidavit that he has always used one name throughout his academic career but later admits in cross-examination that he used different names in primary and secondary school, such major inconsistencies going to the root of the case cannot be condoned. A party cannot depart from pleadings as and when he wishes without causing injustice to the opposing party.
Election Petitions — Complaints of Electoral Irregularities — Duty to Raise Complaints During Polling
A petitioner who observes an irregularity during the electoral process but chooses not to raise it with the Electoral Commission at the time, waiting instead until after results are declared, raises such complaint in bad faith. Where a petitioner knew or ought to have known of an irregularity but failed to raise it before polling so that it could be rectified, the complaint cannot form the basis for annulling the election.
Election Petitions — Remedies — Declaration of Winner
Where an election is annulled on the ground that the declared winner lacked the requisite qualifications at the time of nomination, the court will not declare the petitioner the duly elected Member of Parliament if it cannot be determined whether the petitioner would have won had the disqualified candidate not participated in the election. The appropriate remedy in such circumstances is an order for a fresh election.

Legislation cited (25)

Cases cited (12)

  • Col (Rtd) Dr. Kiiza Besigye v Yoweri Kaguta Museveni and Electoral Commission (Supreme Court Election Petition No. 1 of 2001)
  • Mukasa Anthony Harris v Dr. Bayiga Micheal Lulume (Supreme Court Civil Appeal No. 18 of 2007)
  • Abdul Bangirana Nakendo v Patrick Mwondah (Supreme Court Election Petition Appeal No. 9 of 2006)
  • Winnie Babihuga v Winnie K. Matsiko and Another (Election Petition No. 54 of 2006)
  • Ongole James Micheal v Electoral Commission and Another (Election Petition No. 8 of 2006)
  • Kabaale Kwagala Olivia v Beatrice Zirabamuzaale Magoola and Electoral Commission (Electoral Petition No. 3 of 2006)
  • Constantino Okwel Alias Magendo v Uganda (Supreme Court Criminal Appeal No. 12 of 1990)
  • Wakayima Musoke Nsereko and Another v Kasule Robert Sebunya (Election Petition Appeal No. 50 of 2016)
  • Toolit Simon Akecha v Oulanyah Jacob and Electoral Commission (Election Petition Appeal No. 19 of 2011)
  • Mbayo Jacob Robert v Electoral Commission and Another (Election Petition No. 7 of 2006)
  • Kabusu Moses Wagaba v Lwanga Timothy and Electoral Commission (Election Petition Appeal No. 53 of 2011)
  • Butagira Versus Deborah Namukasa (1992-1993) H.C.B 98 at 101

Full judgment

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

Onega Robert v Hashim Sulaiman & Electoral Commission (Election Petition 1 of 2018) [2019] UGHC 103 (2 May 2019)
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.