[2015] UGHCCD 444

### **THE REPUBLIC Or UGANDA**

# **IN THE HIGH COURT OF UGANDA AT KAMPALA**

## **CIVIL DIVISION**

### **MISCELLANEOUS CAUSE No. 102 OF 2015**

**HON. ODONGA OTTO APPLICANT**

#### **VERSUS**

**RESPONDENT ELECTORAL COMMISSION BEFORE HON JUSTICE NYANZI YASIN**

#### **RULING:**

### **BACKGROUND:**

- Miscellaneous Application No.. 269 of 2015 which was an exparte Notice of Motion for certification of urgency which this court granted upon being convinced that his application was of urgent nature. 1. On the 18th 'July 2015 the applicant filed in this court - 2. The applicant had earlier filed Miscellaneous Cause No. 102' of as amended brought under Article 139 of the Constitution, Section 98 of the Civil Procedure Act and Order 51 and Section -52 of the Civil Procedure Rules. -2015) against the Electoral Commission. That application/was

3. It initially sought three orders from this court namely:

- *i) That time be extended to insert the applicant into the Voters' Register.* - *ii) That the applicant's name be inserted in the Voters' Register.* - *Hi) That costs of the application be provided for.*

'z

- 4. At the start of the hearing learned counsel Juliet Oyulu Otto who represented the applicant indicated to court that she had talked to learned counsel Hamid Lugolobi who appeared for Electoral Commission (which hereinafter I will refer to as E. C) and the two learned advocates agreed that prayers one and three be abandoned. So it was. - 5. The remaining prayer of the application that Hon. Odonga ( . Otto's name be inserted in the Voters' Register is supported by •his own affidavit detailing the reasons why he believed it should be granted. - 6. The EC did not agree with the applicant, it opposed this application in its affidavit in reply sworn by ERIC SABIITI. This affidavit Annexure "A", "B" and "C" were attached. They

detailed how the EC had since April 2015 given and extended time frameworks within which to complete Voters' Register.

7. For purposes of clarity I will reproduce some of the paragraphs of Hon. Odonga Otto's affidavit upon which his application was based.

"Paragraph (3):

That I duly registered sometime in 2001 and participated in elections of 2001, 2006 and 2011 as a voter and candidate.

- $(4)$ that the respondent together with the Ministry of Internal Affairs embarked on the process to collect data and issue citizens with National Identity Cards $(IDs).$ - $(5)$ I had already registered for the National ID from Parliament sometime back in or about 2012 and was issued with Card No. 000000205 expiring on 20^th March 2015, (attached as "A"). - $(6)$ I was informed by Hon. Ruth Nankabirwa that I needed to re-register in spite of

$\mathbf{3}$

being in possession of a valid National ID.

- I later went to Kololo Independence $(7)$ Ground and I got re-registered for National ID. - After a few days I met Hon. Lokodo again $(9)$ at Parliament Canteen and he showed to me a copy of his new National ID issued by the Ministry of Internal Affairs. - $(10)$ That Hon. Lokodo informed me that Hon. Peter Lokeris and Hon. Asuman Kiyingi did not have National IDs we needed to work together. - $(11)$ That I immediately went to the Ministry of Internal Affairs to pick my ID and they told me to sort out the issue of Data transfer with the respondent before issuing me with a National ID that I wrote. - $(12)$ On the $16^{th}$ June 2015 the Electoral Commission Eng. Badru Kiggundu and explained to him the issue of data transfer.

- That on the same day I wrote to the $(14)$ chairperson and delivered the letter in person. The letter is marked "B". - That on 19^th June 2015 the chairperson $(16)$ of the Electoral Commission replied my letter declining to resolve my issue (letter Annexure "C"). - $(18)$ a plenary session **That** during in . Parliament, I asked Hon. Asuman Kiyingi how he would overcome the challenge of re-registration, he replied to me that ",,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, NRM party he would solve it." - $(19)$ **That** know that the respondent $\boldsymbol{\mathcal{I}}$ accepted and entered data of other Members of Parliament in the same condition namely; Hon. Simon Lokodo, Hon. Peter Lokeris and Hon. Asuman Kiyingi.

$\left( \right)$

- That I know that Voters' Register is not $(22)$ Already yet displayed to the public. - That it is unfair to remove me from the $(23)$ Voters' Register. - That I know that the process of Voter (24). Registration and update is a continuous

is $not$ fatal for the and it respondent into the insert $me$ to Register.

$cut$ $ext$

$\mathbf{6}$

- 8. The affidavit in reply filed on 22/07/2015 sworn by Eric Sabiiti makes a blanket reply to the contents of paragraph 4-24 of Odonga Otto's affidavit the relevant paragraphs are 5,6,7 and 8. - 9. Additionally Eric Sabiiti's affidavit provides Annexure "A", "B" and "C" which detail how the E. C has handled the issue of voter registration time limits. The applicant is blamed for having ignored those time limits. - Notably however, the affidavit in reply does not deny the 10. contents of many of the relevant averments on oath by the applicant. - Nevertheless, whether to handle or terminate this application Rocean 11. at this level would depend on my finding on the procedure the applicant adopted to pursue it as I have found the same disturbing.

12. This so called application by Notice of-Motion under Section 98 of the Civil Procedure Act is actually supposed to be an appeal to the High Court from the decision of the EC by way of petition supported by affidavit.

13. Section 15 of the Electoral Commission Act provides in part as follows:

# *. "Section 15-*

*'■A*

*Any complaint submitted in writing alleging any irregularity with any aspect of the electoral process at any stage. .... shall be examined and decided by the Commission and where the irregularity is confirmed. The Commissioner shall take necessary action to correct the irregularity and any effect it may have caused. '^z*

, |4. In my view the failure of the applicant's particulars of National ^I ID Reqjstration to be transferred to the E. C was an omission that amounted t^o an irregularity. By annexure "B" to the ⁱ applicant's affidavit, he submitted his complaint to the E. C in writing as Section 15 (1) above requires. After that the subsequent procedure is laid down by section 15 (2).

15. Section 15 (2) provides as below:

*"(2) An appeal shall lie to the High Court against a decision of the Commission confirming or rejecting the existence of the irregularity.*

, J \*

*My view is that by annexure "C" from the chairperson of the E. C needed "Appeal to /) have your Citizenship particulars in the Voters' Register" was a decision rejecting to confirm an irregularity under Section 15 (2) of the Act."*

- 16. Having got Annexure "C" as the decision of the EC the applicant had to follow the procedure laid down under section 15 (3),(4) and (5) which for purposes of clarity I will reproduce. - **"(3)** *' The appeal shall be made by way of a petition supported by affidavits of evidence which shall clearly specify the declaration that the High Court is being required to make.* - *(4) On hearing the petition under subsection (2) the High Court may make*

*such orders as it thinks fit and its decision shall be final.*

*(5) The High court shall proceed to hear and determine an appeal under this section as expeditiously as possible and may for that purpose suspend any other matter pending before it/'*

17. The above procedure is what the applicant must have adopted. He however elected to adopt general and inapplicable procedure in an electoral complaint.

Caught in such a situation litigants have always resorted to Article 126 (2) (e) of the Constitution which requires ignoring technicality and emphasis for resolution of the substance of deposits before court. However, all the jurisprudence today indicate that Article 126 (2) (e) is subject to the law applicable to the matter, and cannot avail a remedy to such litigants.

18. In such circumstances as above, this application ought to have failed save that it concerned Constitutional Rights. To that

• extent I will seek guidance from the authority which cannot be equated in abuse of procedure in Constitutional cases.

19. In *UGANDA VS COMMISSIONER OF PRISONS EX PARTE MATOVU 1966 EA 514* which was ^a Constitutional Case it ought to have been brought under the obtaining procedure at the time by originating motion. Instead learned Counsel Abubaker Mayanja drafted two affidavits, one by Matovu, the **/)** Prisoner and another one by Abubaker Mayanja himself. There was no motion before court stating the orders sought and or grounds upon which the orders were sought.

**<**

- 20. Additionally the learned Justices of the EACA found that even the affidavits themselves were'both defective. They faulted even the parties to the action as the respondent seemed not to [ ' be ^a party and it was not known in whose favor the orcjers would be made. - 21. Nevertheless, after making all those criticisms of the application they concluded at page 521 paragraphs G-H.that since the matter among other reasons concerned liberty of an

io

individual, they would entertain the matter. To use their words, they stated:

**:• i' ⁱ •-**

**I '**

**"We** *decided in the interest ofjustice to jettison formalism to the minds and overlooked the several deficiencies in the application and thereupon proceeded to the determination of the issues referred to us."*

*22.* For the above reasons, I will treat the-application motion as an ¹ appeal to the High Court for purposes of Section 15 of the Electoral Commission's Act against-the decision of the chairperson of the EC contained in annexure "C" to the affidavit of the applicant and proceed with it.

23. I have had to say ^a lot about correct procedure for the reason that we expect many more electoral related complaints in the period soon to come, for this court to be able to resolve their complaints they must present them as electoral complaints.

I believe that is what Counsel Lugolobi meant when he said that Article 61 of the Constitution ought to have been pleaded.

24. Now turning to the merits of the application, I have already cited Section 15 of the Electoral Commission Act which

ii

requires it to take necessary action to correct the irregularity brought to its notice and any effect such irregularity could have cause.

*y. -r- J"*

I I said in my view the omission of the applicant's name was Z\_\_an irregularity that the E. C had to correct.

- 25. The E. C ought to have considered the effect of applicant having two National IDs to its data correctness. It is not the applicant who issued that National IDs to himself but authorities that were working in conjunction with the E. C. That fact would place the applicant in ^a position to be. **r------ -- - ——— -----•------------------------------------** emphasized\_with. He was a victim of experiments of policy and was treated as ^a test material b/^being issued with National IDs which were later invalidated but also not ----------------- clearly. • - - 26. If the E. C had resolved the applicant's complaint it would have executed its Constitutional mandate under Article 61 (1) (e) of the Constitution which stated that among others it is the function of the EC.

- (e) To compile, maintain, revise and up-date the Voters' Register. - 27. In rejecting to up-date its Register, when the applicant gave them jnformation with valid reason for delay, they failed in execution of their mandate. .- -------;----------------------- - - 28. Secondly I am persuaded to believe the applicant's" unchallenged and undeemed evidence showing that he was treated differently from his equals who has a similar problem. That kind of conduct was in violation of Article 21 (1) of the Constitution of Uganda.

*•/)*

- 29. The applicant deponed in many paragraphs and referred to his fellow M. Ps who had a similar problem. He talked to them himself and he learnt from them that the EC ( . entertained and resolved their problem. - 30. In hi^s affidavit m reply **ERIC SABIITI** does not deny\_the applicant's information nor does the adduced evidence iⁿ verbatim to establish that Hon. Lokodo, Hon. Lokeris and Hon. Asuman Kiyingi never received any preferential

treatment for the E. C as the applicant alleged or that they never had such cases.

- 31. In abuse of any evidence to the contrary or an express denial, I remain with no option but to hold that the applicant was discriminated against by the EC in violation of Article 21 (1) and (2) of the Constitution which requires that all . .persons are equal before and under the law in all spheres of political economic, social and cultural life. - 32. I must mention that given the nature of E. C mandate, it should be the last organ of the public machinery to commit an act of discrimination. I also add that except where it is probably not possible E. C should try as much as possible to execute its mandate other than finding reasons to fail it. The public musUalso-ob.sep/e time limits in order to frustrate EC work.

Time schedule and their management is the first input in E. C work minus time limits E. C cannot hold any elections.,

I finally allow his application. I order the Electoral Commission enters the applicant's National ID particulars in its Voters' Register. **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_4**

Secondly that should there be any delay in executing an order it is declared that the applicant be deemed ^a registered voter for purposes of 2016 elections. For all purposes and intents the above decisions are made under section 15 (2), (3), (4) and (5).

I will not make any order as to costs.

## **NYANZIYASIN**

**JUDGE**

**24/7/2015.**

## **>.4/7/2015:-**

Juliet Oyulu Otto for applicant.

Applicant present.

Hermid Lugolobi for respondent.

No representative of respondent.

Liz Court Clerk.

#### **Court:-**

Ruling read in chambers in presence of the above.

# **NYANZIYASIN**

## **JUDGE**

**24/7/2015.**