Wakilii

Tushabe v Electoral Commission (MISC. CAUSE NO. 0089 OF 2008)

High Court · [2010] UGHCCD 5 · 2010 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for judicial review seeking orders of mandamus and certiorari arising from local council electoral disputes
Decision
All applications for judicial review dismissed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court dismissed all applications for judicial review. The Electoral Commission did not act unreasonably in allowing the existing Woman Councillor elected from Rutete Sub-County to continue representing the newly created Kasenda Sub-County as part of the same electoral area. The court declined to issue mandamus for Youth Councillor elections because the Constitutional Court had invalidated the enabling legislation. The court found insufficient evidence of impropriety in the election of an additional Woman Councillor for Kasenda Parish and that an election petition was the proper remedy for such challenges.

Outcome

All applications for judicial review dismissed

Facts

Chris Tushabe, a local leader in Kasenda Sub-County, Kabarole District, applied for judicial review challenging Electoral Commission decisions following the creation of Kasenda Sub-County from Rutete Sub-County in July 2006. Mrs. Mary Baguma Nyakwera had been elected as Woman Councillor for Rutete Sub-County in February 2006. When Kasenda and Katebwa Sub-Counties were created, the Electoral Commission allocated the additional District Woman Councillor position to Katebwa and maintained Mrs. Baguma Nyakwera as councillor for the combined Kasenda-Rutete electoral area. The Electoral Commission also failed to conduct Youth Councillor elections and conducted an election for an additional Woman Councillor for Kasenda Parish, which the applicant alleged was done without proper party endorsement at sub-county level and without adequate public participation. The sub-county was experiencing significant political divisions affecting its operations.

Issues

  1. Whether the Electoral Commission wrongly exercised its discretion in maintaining Mrs. Mary Baguma Nyakwera as Woman Councillor for Kasenda Sub-County after its creation from Rutete Sub-County.
  2. Whether the Electoral Commission should be compelled by mandamus to hold elections for Youth Councillors for Kasenda Sub-County.
  3. Whether the Electoral Commission wrongly conducted elections for a second Woman Councillor for Kasenda Parish.
  4. Whether the Electoral Commission should be compelled to hold fresh elections for Woman Councillor representing Kasenda Sub-County in the Kabarole District Council.

Orders

  • Application for certiorari to quash the decision retaining Mrs. Baguma Nyakwera Mary as Woman Councillor dismissed.
  • Application for mandamus to direct elections for Woman Councillor for Kasenda Sub-County dismissed.
  • Application for mandamus to direct Youth Councillor elections dismissed.
  • Application for certiorari to quash the election of Grace Kabasambu as Woman Councillor for Kasenda Parish dismissed.
  • Application for mandamus to direct fresh elections for Woman Councillor for Kasenda Parish dismissed.
  • Each party to bear their own costs except for costs earlier awarded in the preliminary objections.

Rules and key headnotes

Judicial Review — Electoral Commission Discretion — Creation of New Electoral Areas
Where a new sub-county is created from an existing sub-county and the number of electoral areas for District Women Councillors increases by one, the Electoral Commission acts reasonably in demarcating which new sub-county constitutes the additional electoral area based on objective criteria such as the number of previous sub-counties from which it was carved, and in maintaining existing electoral arrangements for areas that remain substantially unchanged.
Judicial Review — Grounds for Intervention — Exercise of Discretion by Constitutional Bodies
A Constitutional body with quasi-judicial powers is subject to judicial review when cogent evidence shows it has acted unreasonably, unfairly, irrationally, or with impropriety in contravention of law. However, the court will not intervene where the body's exercise of discretion is supported by sound reasons and does not demonstrate impropriety.
Electoral Law — Mandamus — Courts Cannot Order Elections Where Enabling Legislation Invalid
Where the Constitutional Court has invalidated legislation governing a category of elections, a court cannot issue mandamus compelling the Electoral Commission to conduct such elections until Parliament enacts conforming legislation. Courts must not make orders in vain, and the proper recourse is to pursue legislative amendment through the Executive.
Electoral Law — Remedies — Election Petition as Proper Forum
Where a challenge concerns the validity of a specific election result based on alleged procedural irregularities, non-participation of the electorate, or lack of party endorsement at a particular level, an election petition is the proper and more suitable remedy rather than an application for judicial review. Judicial review of administrative action should be resorted to only where no other suitable avenue for judicial redress is available.
Civil Procedure — Costs — Public Interest Litigation
Where an applicant institutes judicial review not for personal benefit but as a voice of the masses pursuing the greater good of society, and where the complaints are neither frivolous nor vexatious, the court may decline to award costs against the applicant even where the application fails. The court will not discourage public-spirited persons from standing up for the people by imposing the burden of litigation costs where they fail to succeed.

Legislation cited (7)

Cases cited (1)

  • Rubaramira Ruranga v Electoral Commission (Constitutional Petition No. 21 of 2006)

Full judgment

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

Tushabe Vs Electoral Commission (MISC. CAUSE NO. 0089 OF 2008) [2010] UGHCCD 5 (10 February 2010)
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.