Onega v Electoral Commission (Constitutional Petition No. 6 of 2016)

Observed later treatment

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

The Constitutional Court, by majority, held that the Electoral Commission's failure to maintain the existing National Voters' Register and its omission of the Petitioner's registered name when adopting NIRA's National Identification Enrolment Register was inconsistent with its mandate under Article 61(1)(e) and violated the Petitioner's right to vote under Article 59(3). The duty to compile, maintain, revise and update the register is non-delegable; NIRA data could be used to update but not substitute the register. The Petitioner's disqualification from nomination under Article 80(1)(b) flowed from that breach. The petition was allowed with costs and the issue of appropriate redress remitted to the High Court. Buteera DCJ dissented, finding no question of constitutional interpretation.

Outcome

Petition allowed by majority; the issue of appropriate redress remitted to the High Court for trial, with costs to the Petitioner

Facts

On 2 December 2015 the Petitioner presented himself for nomination as a Member of Parliament candidate for Padyere County on the Forum for Democratic Change ticket. The Electoral Commission declined to nominate him because his name did not appear on the National Voters' Register. The Petitioner had been a registered voter holding a voter's card since 2011 and had participated in previous elections. In July 2015 the Commission retired the 2011 Voters' Register and adopted the National Identification Enrolment Register compiled by NIRA as the National Voters' Register for the 2016 general elections, displaying it from 22 July to 11 August 2015. The Petitioner had registered under the NIRA national identification project on 22 April 2015 but later found that another person's name was registered under his application identification number. He complained to NIRA in October 2015 and to the Commission in November 2015, but the error was not rectified. His name was omitted from the new register, disqualifying him from nomination.

Issues

1. Whether the retirement of the Voters' Register as it stood in 2015 and the adoption of the National Identification Enrolment Register of NIRA was inconsistent with Articles 17(1)(h), 59(3) and 61(e) of the Constitution.
2. Whether the omission of the Petitioner's name from the new Voters' Register and his resultant disqualification as a voter and candidate was inconsistent with Articles 20(2), 21, 59 and 80(1)(b) of the Constitution.
3. Whether the Petitioner is entitled to any recompense in damages.

Orders

• The petition is allowed.
• The Electoral Commission's omission of the Petitioner's name and failure to maintain its existing Voters' Register declared inconsistent with Articles 59(3) and 61(1)(e) of the Constitution.
• The issue of appropriate redress remitted to the High Court for trial.
• Costs of the petition awarded to the Petitioner.

Rules and key headnotes

Legislation cited (23)

• Constitution of Uganda 1995 Article 137(3)(b)
• Constitution of Uganda 1995 Article 137(4)
• Constitution of Uganda 1995 Article 17(1)(h)
• Constitution of Uganda 1995 Article 20(2)
• Constitution of Uganda 1995 Article 21
• Constitution of Uganda 1995 Article 59
• Constitution of Uganda 1995 Article 61(e)
• Constitution of Uganda 1995 Article 62
• Constitution of Uganda 1995 Article 80(1)(b)
• Constitution of Uganda 1995 Article 50
• Constitution of Uganda 1995 Article 126(2)(e)
• Electoral Commission Act Cap 140 s.13
• Electoral Commission Act Cap 140 s.15
• Electoral Commission Act Cap 140 s.18
• Electoral Commission Act Cap 140 s.19
• Electoral Commission Act Cap 140 s.21
• Electoral Commission Act Cap 140 s.64
• Registration of Persons Act 2015 s.9(2)(ii)
• Registration of Persons Act 2015 s.65(2)
• Registration of Persons Act 2015 s.66(2)(b)
• Civil Procedure Act s.7
• Presidential Election Petitions Act 2005 s.59
• Births and Deaths Registration Act Cap 309

Cases cited (17)

• Nobert Mao and Chapter Four v Attorney General and Electoral Commission (Constitutional Petition No. 4 of 2016)
• Paul Ssemwogerere v Attorney General (Constitutional Appeal No. 1 of 2000)
• Dr. Rwanyarare & Anor v Attorney General (Constitutional Petition No. 5 of 1999)
• Dimanche Sharon & 2 Others v Makerere University (Constitutional Appeal No. 2 of 2004)
• Paul Kawanga Ssemwogerere & Another v Attorney General (Constitutional Petition No. 3 of 1999)
• Amama Mbabazi v Y.K. Museveni & 2 Ors (Presidential Election Petition No. 1 of 2016)
• Mansukhlal Ramji Karia and Crane Finance Co. Ltd v Attorney General & 2 Others (Civil Appeal No. 20 of 2002)
• Baku Raphael Obudra & Anor v Attorney General (Constitutional Appeal No. 1 of 2003)
• Kabagambe Asol & Others v The Electoral Commission (Constitutional Petition No. 1 of 2006)
• Brigadier Henry Tumukunde v Attorney General & the Electoral Commission (Constitutional Appeal No. 2 of 2006)
• Speaker of the National Assembly v De Luke (1999) (4) S.A 863 (SCA)
• Dharamshi vs. Karsan [1974] 1 EA 41
• Obongo and another v Municipal Council of Kisumu [1971] 1 EA 91
• Rookes vs Barnard [1964] A.C. 1129
• Attorney General v Major General David Tinyefuza (Constitutional Appeal No. 1 of 1997)
• Ismail Serugo v Kampala City Council and Attorney General (Constitutional Appeal No. 2 of 1998)
• Mbabali Jude v Edward Kiwanuka Sekandi (Constitutional Petition No. 28 of 2012)

Cases citing this judgment (1)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

• Human Rights Awareness Promotion Forum Uganda & Others v Attorney General (Constitutional Petitions 25 & 10 of 2017)

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