Wakayima-Musoke & Anor v Kasule Sebunya (Election Appeal No. 60 &102 of 2016)

Observed later treatment

No later-treatment classification is recorded for this judgment.

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 Court of Appeal dismissed the consolidated appeal, upholding the nullification of the 1st appellant's election. The Court found the 1st appellant was not a registered voter because the name on his nomination papers (Wakayima Musoke Nsereko) differed materially from the name on the Voters' Register and national ID (Musoke Hannington Nsereko), and that he had failed to discharge the burden of proving his academic qualifications were authentic given disparities between his nomination and academic papers. It held the cancellation of results from 24 polling stations (17,239 registered voters) substantially affected the outcome, and that the Electoral Commission could not certify DRFs it had admitted were missing. The respondent was correctly declared duly elected.

Outcome

Appeal dismissed; nullification of the 1st appellant's election upheld and the respondent confirmed as the validly elected Member of Parliament for Nansana Municipality

Facts

Wakayima Musoke Nsereko (1st appellant) was declared winner of the 2016 parliamentary election for Nansana Municipality Constituency with 25,053 votes, ahead of Kasule Robert Sebunya (respondent) with 23,415 votes. During tallying, Declaration of Results Forms for 24 polling stations were found missing from their tamper-proof envelopes and sealed boxes; the Returning Officer cancelled those results and excluded them from the final tally. The respondent petitioned, alleging the 1st appellant was irregularly nominated because he was not a registered voter (his nomination name Wakayima Musoke Nsereko differed from Musoke Hannington Nsereko on the Voters' Register and national ID) and lacked the minimum Advanced Level education, and that his academic papers bore a different name and raised authenticity concerns. The trial Judge nullified the election and declared the respondent duly elected. The appellants appealed to the Court of Appeal.

Issues

1. Whether the 1st appellant was nominated in error, namely whether he was a registered voter and whether he possessed the minimum academic qualifications of Advanced Level or its equivalent.
2. Whether there was non-compliance with the electoral laws when the results of 24 polling stations were not tallied, and whether the cancellation substantially affected the outcome of the election.
3. Whether the trial Judge erred in declaring the respondent as the duly elected Member of Parliament for Nansana Municipality.
4. Whether the trial Judge erred in awarding a certificate of two counsel.

Orders

• The 1st appellant was not a registered voter and did not possess the minimum academic qualifications of A level or its equivalent.
• There was non-compliance with the electoral law when the results of the 24 polling stations were not tallied.
• The respondent is the validly elected Member of Parliament for Nansana Municipality Constituency.
• A certificate of two counsel is granted in respect of the counsel who appeared for the respondent.
• The appellants shall bear the costs of the Appeal and the trial Court.

Rules and key headnotes

Legislation cited (23)

• Constitution of Uganda Article 80(1)
• Constitution of Uganda Article 61
• Constitution of Uganda Article 59(1)
• Constitution of Uganda Article 1(1)
• Parliamentary Elections Act s.1(1)
• Parliamentary Elections Act s.4(1)
• Parliamentary Elections Act s.12(2)(b)
• Parliamentary Elections Act s.39(1)
• Parliamentary Elections Act s.50
• Parliamentary Elections Act s.61(1)
• Parliamentary Elections Act s.63(4)
• Parliamentary Elections Act s.63(6)
• Electoral Commission Act s.12(1)(e)
• Electoral Commission Act s.18(1)
• Registration of Persons Act s.3
• Registration of Persons Act s.36
• Registration of Persons Act s.51
• Registration of Persons Act s.66
• Evidence Act s.75
• Evidence Act s.76
• Judicature Act s.11
• Judicature (Court of Appeal Rules) Directions r.30
• Parliamentary Elections (Interim Provisions) (Election Petitions) Rules r.17

Cases cited (19)

• Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
• Otada Sam Amooti Owor v Taban Idi Amin (Election Petition Appeal No. 93 of 2016)
• Abdul Bangirana Nakendo v Patrick Mwondah (Election Petition Appeal No. 9 of 2006)
• Oboth Markson Jacob v Otiamotaala Emmanuel (Election Petition Appeal No. 38 of 2011)
• Besigye Kiiza v Museveni Kaguta (Presidential Election Petition No. 1 of 2001)
• Commissioner General URA v Meera Investments Ltd (Civil Appeal No. 22 of 2007)
• Mashate Magomu Peter v Electoral Commission (Election Petition Appeal No. 47 of 2016)
• Mwiru Paul v Igeme Nathan Samson Nabeta (Election Petition No. 3 of 2016)
• Sekigozi Stephen v Sematimba Simon Peter (Election Petition No. 10 of 2016)
• Muhindo Rehema v Winfred Kiiza (Election Petition Appeal No. 29 of 2011)
• Yeri Ofwono Apollo v Tanna Sanjay (Election Petition Appeal No. 9 of 2011)
• Ongole James Michael v Electoral Commission (Election Petition No. 8 of 2006)
• Waligo Aisha Naluyati v Sekindi Aisha (Election Petition Appeal No. 29 of 2016)
• Opio Joseph Linos v Electoral Commission (Election Petition Appeal No. 87 of 2016)
• Arumadri John Drazu v Joackino (Election Petition Appeal No. 37 of 2016)
• The Chief Electoral Officer vs. The E.Ctoral Commission, Case No. 4 of 2009 (South Africa)
• Butime Tom v Muhumuza David (Election Petition Appeal No. 11 of 2011)
• Dionizia Cissy v Martin Kizito Sserwanga (Election Petition Appeal No. 62 of 2016)
• Acheng Sarah Opendi & E.C vs. [incomplete]

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