Wakilii

Suuna Mulema and Another v Sekabira (Election Petition Appeal 13 of 2021)

High Court · [2024] UGHCCD 56 · 2024 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from the judgment and decree of the Chief Magistrate's Court at Luwero in Election Petition No. 001 of 2021
Decision
Appeal dismissed and judgment of the Chief Magistrate's Court upholding the election petition maintained; fresh election ordered within 90 days

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the Respondent was a candidate who lost an election under Section 138(3)(a) of the Local Governments Act and had standing to file the election petition. The Electoral Commission failed to follow the legal procedure under Section 2 of the Persons with Disabilities Act 2020 before disqualifying the Respondent, as no proper medical examination by a medical doctor with relevant expertise was conducted and the burden to prove non-disability lay with the complainant, not the Respondent. The disqualification was unlawful and the election of the 1st Appellant as unopposed candidate was accordingly invalid. Appeal dismissed.

Outcome

Appeal dismissed and judgment of the Chief Magistrate's Court upholding the election petition maintained; fresh election ordered within 90 days

Facts

The Respondent and the 1st Appellant were both nominated as candidates for the position of District Councillor representing persons with disabilities in Luwero District. Following a complaint to the Electoral Commission alleging that the Respondent was not a person with disability, the Commission held a hearing under Minute 341/2020 and disqualified the Respondent. The 1st Appellant was then declared unopposed and elected. The Respondent initially appealed to the High Court under Election Appeal No. 10 of 2021, which was struck out on the ground that the proper remedy was to file a petition in the Chief Magistrate's Court under Section 138 of the Local Governments Act. The Respondent then filed Election Petition No. 001 of 2021 in the Chief Magistrate's Court at Luwero, challenging the disqualification and the validity of the 1st Appellant's election. The Chief Magistrate allowed the petition, finding that the disqualification was unlawful and that the Respondent was denied natural justice. The judgment nullified the election and ordered a fresh election. Both Appellants appealed.

Issues

  1. Whether the learned trial Magistrate erred in not addressing the preliminary point of law raised by the Appellants that the Respondent did not have a cause of action as a person not qualified under the Persons with Disabilities Act.
  2. Whether the Respondent complied with the requirements of Section 138 of the Local Governments Act to file an election petition.
  3. Whether the Respondent was a qualified person with disability under the Persons with Disabilities Act and eligible to contest.
  4. Whether the learned trial Magistrate correctly evaluated evidence regarding the Respondent's disability status.
  5. Whether the 1st Appellant was validly elected as District Councillor representing persons with disabilities.
  6. Whether the Electoral Commission had capacity to disqualify the Respondent and whether that disqualification was legally justified.

Orders

  • Appeal dismissed.
  • The judgment and decree of the learned trial Magistrate are upheld and maintained.
  • The 2nd Respondent shall conduct a fresh election for the position of LC 5 Male Councillor representing Persons with Disabilities (PWDs) for Luwero District within 90 days from the date of this judgment.
  • The costs of this appeal shall be borne by both Appellants.
  • The costs of the lower court remain payable by the 2nd Appellant.

Rules and key headnotes

Standing to file election petition — Definition of candidate
Under Section 138(3)(a) of the Local Governments Act, a candidate who loses an election has standing to file an election petition. The term 'candidate' refers to any person nominated as a candidate for election to a particular office and the person remains a candidate until after the election process. Where a person is disqualified by the electoral body after nomination, he is disqualified as a candidate and retains standing to petition the court if the disqualification was unlawful or affected the election results.
Election petitions — Scope of the term 'election'
The term 'election' as used in Section 138(3)(a) of the Local Governments Act encompasses the entire election process and does not refer only to polling day. A candidate who loses an election includes a candidate who is disqualified before polling, rendering the other candidate unopposed.
Persons with disabilities — Determination of disability status
Under Section 2 of the Persons with Disabilities Act 2020, whenever a question arises whether a person has a disability or not, a medical doctor with relevant expertise or an expert appointed by the Council must carry out an examination to confirm the disability. Where a complaint is made to the Electoral Commission that a candidate is not a person with disability, the burden lies on the complainant to prove that assertion and the Commission must cause a proper examination to be conducted in accordance with the statutory procedure before making a determination. The Electoral Commission cannot casually determine disability status without following the procedure laid down by law.
Fair hearing — Natural justice in administrative proceedings
An administrative body such as the Electoral Commission must comply with the principles of natural justice, including the right to a fair hearing, when disqualifying a candidate. A disqualification effected without proper notice, without affording the candidate an opportunity to be heard on clear allegations, and without following statutory procedures is unlawful and will be set aside by the courts.
Burden and standard of proof — Election petitions
Under Section 139 of the Local Governments Act, the standard of proof required in a local council election petition is proof to the satisfaction of the court. The legal burden of proof normally remains on the petitioner throughout the trial and does not shift to the respondent, save in specific instances such as challenges to the authenticity of academic credentials.

Legislation cited (11)

Cases cited (11)

  • Fredrick Zaabwe v Orient Bank Ltd (Court of Appeal Civil Appeal No. 4 of 2006)
  • Kifamunte Henry v Uganda (Supreme Court Criminal Appeal No. 10 of 1997)
  • Baguma Fred v Uganda (Supreme Court Criminal Appeal No. 7 of 2004)
  • Kyakulaga Bwino Fred & Electoral Commission v Waguma Badogi Ismail (Election Petition Appeals No. 15 and 20 of 2016)
  • Akuguzibwe Lawrence v Muhumuza David & 2 Others (Election Petition Appeal No. 22 of 2016)
  • Mutembuli Yusuf v Nagwomu Moses Masamba & Electoral Commission (Election Petition Appeal No. 43 of 2016)
  • Acen Christine Ayo v Abongo Elizabeth (Election Petition Appeal No. 58 of 2016)
  • Abdul Balingira Nakendo v Patrick Mwondha (Supreme Court Election Appeal No. 9 of 2006)
  • William Twakirane v Viola Bamusede (High Court Civil Appeal No. 046 of 2007)
  • Fort Hall Bakery Supply Co. v Fredrick Mugabi (1959) EA 474
  • Nalongo Naziwa Josephine v Uganda [2018] UGSC 27

Full judgment

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

Suuna Mulema and Another v Sekabira (Election Petition Appeal 13 of 2021) [2024] UGHCCD 56 (19 April 2024)
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.