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Ssasaga v Woboya and Anor (Election Petition No. 9 of 2016)

High Court · [2016] UGHCEP 49 · 2016 Petition Granted — Election Nullified AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition challenging the result of parliamentary elections held on 18 February 2016 for Budadiri County East Constituency
Decision
Election of 1st Respondent nullified; fresh elections ordered for Budadiri County East Constituency

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The election of the 1st Respondent as Member of Parliament for Budadiri County East Constituency was nullified on the ground that he was not validly nominated. The court held that the 1st Respondent did not properly resign or retire from the Public Service as required by Article 80(4) of the Constitution and Section 4(4) of the Parliamentary Elections Act. He gave only two days' notice instead of the required six months for early retirement, and continued receiving salary and performing official duties after the purported retirement date. An illegality once brought to court's attention supersedes all matters including admissions.

Outcome

Election of 1st Respondent nullified; fresh elections ordered for Budadiri County East Constituency

Facts

Ssasaga Isaias Jonny and Woboya Vincent contested for Member of Parliament for Budadiri County East Constituency in the 18 February 2016 general elections. The 1st Respondent, Woboya Vincent, was declared winner and sworn in. The Petitioner challenged the election on three grounds: non-compliance with electoral laws, illegal practices, and that the 1st Respondent was not validly nominated. The 1st Respondent was a Principal Disaster Management Officer in the Office of the Prime Minister. He applied for early retirement on 4 May 2015 and received acceptance on 7 May 2015 with effect from 10 May 2015. The Petitioner produced account statements showing that the 1st Respondent continued to receive salary and facilitation payments for official duties in the Prime Minister's Office from May through December 2015, after the purported retirement date.

Issues

  1. Whether the 1st Respondent was duly nominated for elections as Member of Parliament for Budadiri County East Constituency
  2. Whether the 1st Respondent personally or through his agents with his knowledge, consent or approval committed illegal practices or electoral offences
  3. Whether the elections in Budadiri County East Constituency were conducted in compliance with the electoral laws
  4. If not, whether the non-compliance affected the result in a substantial manner
  5. What are the remedies available to the parties

Orders

  • The 1st Respondent was not validly nominated for elections as MP for Budadiri County East Constituency.
  • The election of the 1st Respondent as MP for Budadiri County East Constituency is hereby nullified.
  • Fresh elections shall be conducted for MP for Budadiri County East Constituency.
  • Costs of the petition awarded to the Petitioner.

Rules and key headnotes

Electoral Law — Qualifications and Disqualifications — Nomination — Requirement to Resign from Public Service
Under Article 80(4) of the Constitution and Section 4(4) of the Parliamentary Elections Act 2005, a public officer who wishes to stand in a general election as a member of parliament must resign from the Public Service at least ninety days before nomination day. Resignation from office is distinct from retirement, both in form and substance, and has different legal and practical implications.
Electoral Law — Nomination — Validity — Compliance with Retirement Procedure
For a person seeking to leave the Public Service by way of early retirement rather than resignation for purposes of contesting elections, the early retirement must comply with the Uganda Government Public Service Standing Orders 2010. An officer seeking early retirement must give not less than six months' notice before the expected retirement date. Where the required notice period is not observed, the purported retirement is unlawful and void ab initio.
Electoral Law — Nomination — Validity — Continued Performance of Official Duties
A person cannot be said to have retired from the Public Service where evidence demonstrates that he continued to receive salary and financial facilitation payments for performing official duties of his office after the purported retirement date. Such continued employment renders the purported retirement invalid and the person remains a serving public officer.
Electoral Law — Nullification of Election — Invalid Nomination
Under Section 61(1)(d) of the Parliamentary Elections Act 2005, the election of a candidate as a member of Parliament shall be set aside if the candidate was at the time of election not qualified or was disqualified for election as a member of Parliament. For a person to qualify for election as MP, he must first be duly nominated in accordance with the law. Where a candidate's nomination is based on an illegality, the nomination is null and void ab initio and the subsequent election must be nullified.
Administrative Law — Illegality — Court Cannot Sanction What is Illegal
A court cannot sanction what is illegal, and an illegality once brought to the attention of the court supersedes all matters of pleadings including admissions. This principle applies where a candidate's nomination for election is based on non-compliance with mandatory statutory requirements.

Legislation cited (21)

Cases cited (5)

  • Besigye Kiiza v Museveni Yoweri Kaguta and Anor (Election Petition No. 1 of 2001)
  • Mbowe v Elu Foo [1967] EA 240
  • Margaret Zziwa v Nava Nabagesera (Civil Appeal No. 39 of 1997)
  • Ngoma Ngime v Electoral Commission and Anor (Election Petition Appeal No. 11 of 2002)
  • Makula International v Cardinal Emmanuel Nsubuga and Anor [1982] HCB 12

Full judgment

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

Ssasaga v Woboya and Anor (Election Petition No. 9 of 2016) [2016] UGHCEP 49 (15 June 2016)
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.