[2019] UGCA 10


THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA

#### AT KAMPALA

## ELECTION PETITION APPEAL NO. 105 OF 2016

(Arising from Election Petition No. 008 of 2016)

**Ikiror Kevin ::::::::::::::::::::::::::::::::::::**

#### **VERSUS**

Orot Ismael ::::::::::::::::::::::::::::::::::::

| <b>Coram:</b> Hon. Justice Alfonse Owiny Dollo, DCJ | |-----------------------------------------------------| | Hon. Justice Remmy K. Kasule, JA | | Hon. Justice Hellen Obura, JA |

# **JUDGMENT OF THE COURT**

This appeal is against the Judgment of the High Court (Batema J.) sitting at Soroti delivered on 23.11.2016 in Election Petition No. 008 of $2016$ .

The appellant is a female registered voter of Kanyum County Constituency, Kumi District. The respondent, also a registered voter, stood, was declared winner, and gazetted on 3^rd March, 2016

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the candidate with the majority of votes cast in the $\overline{as}$ Parliamentary Election of the Constituency held on 18^th February, 2016. The respondent had since taken on his seat in Parliament.

On 22^nd September, 2016 more than six months from the election results gazetting date of 3^rd March, 2016, the appellant filed in the High Court, Soroti, Election Petition No.008 of 2016 challenging the respondent's election on the ground that she, as the petitioner, 35 had discovered that at the time of his nomination and election, the respondent was not qualified for election as a member of Parliament since he did not possess genuine "O" and "A" level certificates or their respective equivalents. According to the petition, the "O" level certificate presented by the respondent at 40 nomination belonged to one Ikadarot Stephen, a relative of the respondent, while the "A" level certificate belonged to one Ikadarot John Stephen, another relative of the respondent.

Further, the appellant asserted in her petition that the respondent while impersonating Ikadarot John Stephen, his relative, also $45$ claimed to have obtained a Diploma in Business Studies at Uganda College of Commerce in Soroti, which academic document was also invalid.

On discovery of the alleged facts, the appellant had demanded in writing of the respondent to resign his seat in Parliament, but the 50 respondent had ignored this demand. The appellant thus resorted to Articles 80 and 86 of the Constitution and Section 86 of the Parliamentary Elections Act (PEA) by herself and 49 other registered voters in Kanyum County Constituency applying to the Attorney General to commence a petition in accordance with the 55

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above stated provisions of the law. At the expiry of the statutory 30 days from the date of receipt of the application without the Attorney General having commenced a petition, the appellant lodged hers in the High Court, Soroti, pursuant to Section 86(4) $PEA$ .

In the petition the appellant prayed that the High Court declares the respondent to have been not validly elected as a Member of Parliament for Kanyum County Constituency for lack of the requisite academic qualifications, the said election be set aside and the Electoral Commission be directed to conduct fresh elections. The Appellant also sought a court order that the respondent refunds to the State all monies illegally drawn while in Parliament and also when he served as Chairman LC V Kumi District, before he stood for Parliament.

In answer to the petition the respondent contended that the 70 appellant's petition was incompetent, as the same was time barred. He also maintained that all the academic certificates he presented for nomination to stand for Parliament were valid, and belonged to He had not impersonated anyone. He had also lawfully him. occupied the office of Chairperson LC V Kumi District. $75$

The Election Petition was determined by the High Court in a ruling delivered on 24^th November, 2016 on the preliminary objection whether or not the said petition was filed in Court under the wrong law and also out of time.

The learned Judge ruled that no election petition should be 80 entertained out of time even if one is making serious allegations of an illegality or non-qualification of the political candidate. He

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elaborated that though a Court of law ought not close its eyes to an illegality there is no illegality, proved at the stage of filing an election petition. Since at this stage it is mere allegations being made. The election petition was thus held to be null and void and was struck out with costs.

Dissatisfied the appellant appealed to this Court.

The Grounds of appeal as per Memorandum of Appeal are:

$\boldsymbol{1}.$ The learned trial Judge erred in law when he held that 90 the Petition brought under Article 86 of the Constitution of Uganda 1995 and Section 86 of the Parliamentary Elections Act is subject to Section 60 of the Parliamentary Elections Act.

The learned trial Judge erred in law and fact when he $2.$ 95 held that a valid Petition must have been filed under Section 60 of the parliamentary Elections Act.

- The learned trial Judge erred in law when he held that $\mathbf{3.}$ an Election Petition filed under Article 86 of the Constitution of Uganda 1995 and Section 86 of the parliamentary Elections Act outside the thirty days is null and void. - 4. The learned trial Judge erred in law in deciding a matter of extension of time which was not before him. - The learned trial Judge erred in law in holding that $$ the petition did not disclose a cause of action, and was time barred. - 6. The learned trial Judge erred in holding that a petition under Article 86 of the Constitution of Uganda 1995

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and Section 86 of the Parliamentary Elections Act is supposed to be filed within 30 days from the date of gazette and supported by 500 signatures.

- 7. The learned trial Judge erred in holding that a petition under Section 86 of the Parliamentary Elections Act is based on the wrong law and cannot stand in law. - 8. That the Ruling and orders of the trial Judge interpreting Article 86 of the Constitution of Uganda 1995 and Section 86 of the Parliamentary Elections Act is generally bad in law. - Counsel Ambrose Tibyasa assisted by Luyimbazi Nalukoola $120$ appeared for the appellant while learned Counsel Richard Okalany was for the respondent.

As to grounds 1,2,3,6 and 7 taken together, appellant's Counsel submitted that the appellant never lodged her petition under Sections 60 and 61 of the PEA that restrict an election petition to 125 be filed by either a losing candidate or a registered voter of the Constituency supported by 500 signatures of registered voters in the constituency and within 30 days from the date of the gazette returning the winning candidate.

This instant petition had been lodged pursuant to Article 86 of the 130 Constitution and Section 86 of the PEA both of which laws allow questions of membership of a sitting Member of Parliament to be heard and determined by the High Court and the one dissatisfied to appeal against that decision. Section 86 PEA operationalizes Article 86 of the Constitution. The petition lodged pursuant to 135 Section 86 PEA is unique in that, unlike in Section 60(3) PEA

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where the petition has to be filed within 30 days from the date of the gazette, under Section 86 PEA the time for filing a petition starts running on the expiry of thirty days from the date of receipt of the application by the Attorney General from not less than 50 registered voters, and the Attorney General has failed to petition the High Court within that period.

In respect to ground 5 Counsel submitted that to the extent that the appellant complied with Articles 80 and 86 of the constitution as well as the procedure laid under Section 86 of the PEA while 145 lodging and prosecuting her election petition, then the learned trial Judge was not justified to hold that the said election petition lacked a cause of action and was thus null and void. The petition aimed at interrogating the validity of the respondent occupying a seat in Parliament when he did not have the requisite academic 150 qualifications to be in Parliament. Counsel invited this Court to, in this regard, rely on **Supreme Court Constitutional Appeal No.** 10 of 2015: Hon Theodore Sekikubo & 4 Others -vs- AG.

Appellant's Counsel contended in respect of ground 4 that the learned trial Judge had no basis to deal with the issue of 155 enlargement of time within which the petition had to be lodged in Court. This issue had not been raised before the trial Judge. At any rate, the petition had been lodged in Court in time since it had been brought under Article 86 of the Constitution and Section 86 of the PEA which provided for the right procedure for the 160 appellant's petition, given its special nature.

In ground 8, appellant's Counsel contended that the interpretation and application by the learned trial Judge of Article 86 of the

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Constitution and Section 86 PEA to be under Section 60 PEA was wrong in law. This is because Article 86 and Section 86 PEA were 165 independent in catering for the lodgement and prosecuting a particular election petition of a special nature, while Section 60 of the PEA also caters for a different election petition. Accordingly the trial Judge was wrong to declare a petition filed under Articles 80 and 86 of the Constitution and Section 86 PEA to be a petition 170 filed under the wrong law. Counsel prayed for the appeal to be allowed by setting aside the ruling of the High Court and to order that the petition be retried by another High Court Judge.

Counsel for the respondent opposed the appeal

With regard to grounds $1,2,3,6,7$ and 8, he supported the findings 175 and conclusions of the trial Judge in striking out the election petition. He maintained that all election petitions had to be lodged in Court under or subject to Section 60 of the PEA. Section 86 PEA applies where a question is framed for determination by the High Court or the Constitutional Court. The circumstances are 180 thus different from those that apply in an election petition under Sections 60 and 61 of the PEA. Further, Sections 60 and 61 of the PEA do not envisage the Attorney General as a party to the petition whereas Section 86 PEA does so.

The appellant ought to have lodged her petition in the High Court 185 under $S.60(2)$ (b) of the PEA and this required her to acquire support of not less than 500 signatures of registered voters. The appellant had not done this. So her election petition was a nullity. Counsel further submitted that the trial Judge was right in the way he handled the matter of enlargement of time and the essence 190

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of time in Election Petitions. The issue had been canvassed at the hearing and it was necessary, for the sake of completeness, for the trial Judge to deal with the said issue.

Counsel supported the trial Judge's holding that the petition did not disclose a cause of action and was time barred. This is because 195 the petition did not disclose any framed question for determination by the Court and as such in terms of Article 86 and Section 86 of the PEA, the petition lacked a cause of action. Counsel prayed for the dismissal of the appeal with costs.

We have carefully considered the pleadings, the submissions and 200 authorities of respective Counsel as regards the grounds of appeal. The resolution of this appeal depends very much on the interpretation as to the meaning and effect of a number of provisions of the Uganda 1995 Constitution and those of the Parliamentary Elections Act No. 170 of 2005 (PEA).

This Court thus recalls the Constitutional principle $\overline{\text{of}}$ interpretation that:

"*The Constitution is to be interpreted contextually as a whole*" and as an ambulatory living instrument for the good *governance, liberties, welfare and protection of all persons in Uganda*".

## See: Supreme Court Constitutional Appeal No. 1 of 1997: Ag V Major General David Tinyefuza (Kanyeyihamba, JSC).

It follows from the above principle that while interpreting the Constitution, the true text of the Constitution must not be $215$ overlooked or ignored. Where the text is imperfect or not clear, the

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Court has to ascertain the meaning of that text of the Constitution by being guided by the overall spirit of the Constitution.

As to interpretation of a statute the principle this Court finds persuasive is that: 220

"..................................... be read in isolation: Their colour and content are derived from their context. So it is that I conceive it to be my right and duty to examine every word of a statute in its context, and I use 'context' in its widest sense, which I have already indicated as including not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statues in pari materia, and the mischief which I can, by those and other legitimate means, discern the statute was intended to remedy." Per viscount Simonds in Attorney General v Prince Ernest Augustus of Hanover: [1957] A. C. 436 at P.461.

This Court will apply those above stated principles while analysing the relevant provisions of the 1995 Constitution and those of the Parliamentary Elections Act No. 17 of 2005 (PEA) relevant to this appeal.

Section 1(1) of the PEA defines an "Election Petition" as being a petition filed in accordance with Section 60 of the PEA. This Section is part X of the PEA, that is Sections 60 to 67, which provides for election petitions.

Section 60 provides that Election Petitions are to be filed in the 240 High Court by a candidate who loses an election or a registered voter in the Constituency supported by at least 500 voters' signatures. The election petition has to be filed in Court within

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thirty days after the day on which the result of the election is published by the Electoral Commission in the Gazette: S.60(3) of $PEA.$

Amongst the grounds for setting aside an election, according to $S.61(1)$ PEA, is one that the candidate was at the time of his/her election not qualified or was disqualified for election as a Member of Parliament. The petition has to be served upon the respondent 250 within 7 days of its being filed and the High Court has to proceed to hear and determine the petition expeditiously, and for that purpose, may suspend any other matter pending before it. At the conclusion of the hearing, the Court may determine and declare the respondent as having been duly elected or that he/she was not 255 duly elected and that some other candidate was the one duly elected or that the respondent was not duly elected and that no other person was duly elected and the seat of the respondent is declared vacant and a re-election is ordered to be held. The High Court has to determine the election petition within six months 260 after its being lodged in Court.

The grounds of the petition are proved on the basis of a balance of probabilities and one aggrieved by the determination of an election petition by the High Court, has a right of appeal to the Court of Appeal through lodgement of a Notice of Appeal within 7 days of The Court of Appeal must determine the appeal the decision. within six months from the date the appeal is filed. The decision

The whole of Part X (SS 60 to 67) of the Parliamentary Elections $\frac{1}{2}$ Act (PEA) is characterized by strictness as to time of lodgement and 270

of the Court of Appeal is final.

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prosecution of an election petition, including an appeal, if any. This strictness has been expressed upon by the High Court of Kenya in a language that equally applies to us in Uganda. The Kenya High Court in Muiya -V- Nyagah and Others: [2003]2 **EA 616 at p.621** remarked:

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"Elections are serious matters of a Sate with its citizens." As elections are held, the outcome announced, the electorate must know their political leader quickly and There must be limited or no uncertainty assuredlu. about this. Roles of elected representatives are many and diverse vis-à-vis their electors. To perform the roles well the elected must be sure of his post and the elector of his leader. And the sooner the better to give that certainty. So either the election is accepted at once or if challenged, that challenge must be moved along to the end swiftly enough to restore certainty. And for that, election petitions are governed by this Act with its Rules in a very strict manner. Election Petition law and the regime in general, is a unique one and only intended for elections. It does not admit to other laws and procedures governing other types of disputes, unless it says so itself"

This Court is satisfied that the necessity for strictness and certainty expressed in the above quotation equally applies to the election petitions lodged and prosecuted under part $X(SS 60$ to 67) of the Parliamentary Elections Act. These provisions must thus be $\mathcal{L}$

interpreted and applied with this aspect of strictness as to time lines being of material significance.

Had the appellant pursued her election petition under the said part X of the PEA, then she would have lodged her petition in the High 300 Court within thirty days as from 3^rd March, 2016 the date of the gazetting of this particular election. Since the appellant was presenting the election petition as a registered voter then she had to have the support of not less than five hundred voters registered in the Constituency, the support being shown by their signatures 305 attached to the petition. The petition had to be filed by the 3^rd April 2016, latest.

The appellant however challenged the election of the respondent to Parliament through a different route. She purported to do so through Articles 80 and 86 of the Constitution and Section 86 PEA. 310 She lodged her petition to the High Court, at Soroti on 22^nd September, 2016. So in terms of Section 60(3) PEA, the appellant's election petition was lodged in Court out of time. Accordingly the same is null and void by reason thereof.

The appellant submits otherwise however. She maintains that her 315 petition is valid in law and was not in any way filed out of time. She relies on Articles 80 and 86 of the Constitution and section 86 PEA.

The crust of the dispute in this appeal is whether or not the applicant is applying the said provisions of the law rightly. The 320 trial Judge found that she was not. This Court has to resolve whether or not the trial Judge was right in the holding that he made. $\mathbb{Z}$

Article 80 of the Constitution provides for the qualifications and disqualifications of Members of Parliament. The provision of the 325 Article relevant to this appeal is $80(1)$ (c) to the effect that:

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$(1)$ A person is qualified to be a Member of Parliament if that person.......

- (a) $\cdots$ - $(b)$ .................................... - (c) has completed a minimum formal education of Advanced Level standard or its equivalent which shall be established in a manner and at a time prescribed by parliament by law."

Article 86 provides:

## "86 Determination of questions of membership.

(1) The High Court shall have jurisdiction to hear and determine any question whether:

- (a)a person has been validly elected a Member of Parliament or the seat of a Member of Parliament has become vacant; or - $(b)$ a person has been validly elected as Speaker or Deputy Speaker or having been so elected, has vacated that office.

$(2)$ A person aggrieved by the determination of the High Court under this article may appeal to the Court of Appeal. (3)Parliament shall by law make provision with respect to:

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- (a) the persons eligible to apply to the High Court for 350 determination of any question under this article; and (b) the circumstances and manner in which and the conditions upon which any such application may be made. - Parliamentary Elections Act No. $17 \quad \text{of} \quad$ $2005 \quad \text{is}$ $\overline{an}$ The 355 operationalisation of Article 86 of the Constitution. Part X (SS 60-67) of the Act deals with Election Petitions, that is challenging in Courts of law of the results of an election conducted by the Electoral Commission starting with lodgement of an election petition, that is a petition filed in accordance with Section 60 of 360 the PEA (See S.1(1) of PEA) its trial and appeals, the Court of Appeal being the last appellate Court.

There is however also part XIII of the PEA dealing with "General" matters. It covers Sections 84 to 101 of the PEA. Section 84 deals with instances where a sitting Member of Parliament shall vacate his/her seat in Parliament.

These instances are where one voluntarily and in writing resigns, where circumstances arise that disqualify one for election, if he/she were not a Member of Parliament, or being absent without permission for fifteen sittings, being guilty of violating the 370 leadership code of conduct, being recalled by the electorate, a Member of Parliament leaves the political party for which he/she was elected to Parliament to join another, or becomes independent, and accepting appointment to be a public officer.

Section 86 of Part XIII of the PEA deals with determination of 375 questions of membership of Parliament. While this Section is, like

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Sections 60 to 67 of Part X of the Constitution, also an operationalisation of Articles 80 and 86 of the Constitution, this Section has in it specific provisions which exclude some of its own very provisions from applying to election petitions whose adjudication is the preserve of part X, (SS 60 to 67) of the PEA. Thus Section $86(3)$ and $(4)$ provide:

$(3)$ Subject to the provisions of this Act in relation to election petitions, and to the provisions of Article 137 of the Constitution, the Attorney General may petition the High Court under Article 86 of the Constitution for the determination of the question referred to in that Article.

(4) If upon application to the Attorney General in writing signed by not less than fifty registered voters stating that a question referred to in subsection $(1)$ has arisen stating the ground for coming to that conclusion, the Attorney General fails to petition to the High Court within thirty days after receipt of the application, any one or more of the persons who made the application may petition the High Court for determination of the question."

The effect of the above quoted provisions is that it is only after there has been compliance with part X (Sections 60 to 67) PEA, $\frac{1}{2}$ that the Attorney General or any petitioners can carry out what is required by S.86 $(3)$ and $(4)$ PEA.

Further, it is of significance that the decision of the High Court determining the question referred to it under the above quoted provisions of Section 86 is appealable to the Court of Appeal, and

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from the Court of Appeal to the Supreme Court under Section $86(5)$ . This is very different from the case of election petitions 405 covered by part X (Sections 60 to 67) PEA where the right of appeal from the High Court decision only stops at the Court of Appeal according to Section $66(3)$ PEA.

On the basis of the above, it is the conclusion and holding of this Court that a petition relating to the determination of whether or 410 not one has been validly elected a Member of Parliament through a general or by-election conducted by the Electoral Commission in accordance with the Constitution and the Parliamentary Elections Act No. 17 of 2005, can only be lodged and determined by the High Court through and pursuant to part X (Sections 60 to 67) of the 415 PEA and an appeal against the decision of the High Court in such election appeal is to the Court of Appeal which is the final Court.

By contrast, under Sections 86(3) and (4) PEA the Attorney General or a petitioner can pursue a petition involving a question as to membership of someone to Parliament on grounds other than 420 those that one has to rely upon by lodging an Election Petition under part X (SS 60 to 67) PEA.

Our so holding is in conformity with the contextual interpretation and application of the Constitution, particularly Articles 80 and 86 of the Constitution and parts X (SS 60 to 67) as well as XIII (SS84 425 to 101) PEA to the effect that an Election Petition challenging an election must be determined with speed so as to establish certainty in governance of the country. This is in contrast to a petition over a set question regarding membership to Parliament of an individual member that may arise when the rest of the whole 430 **Fram M**

Parliament is in place and actually most likely, when that concerned member is also still in Parliament until the question is determined by Court, with a right of appeal up to the Supreme Court. Thus in this latter case covered by Section $86(3)$ and $(4)$ PEA time is less of the essence compared to the determination of Certainty of Parliament is also already an Election Petition. established after the general elections and where thereafter, elections petitions are expeditiously determined.

Accordingly, we are unable to accept the submission of Counsel for the appellant that the appellant's petition was competent, even 440 though filed in the Court more than five months late, contrary to Section 60(3) PEA, because the same had been lodged under "a unique law" of Article 86 of the Constitution and Section 86 of the PEA. We hold so because S.86 (3) PEA mandatorily required the appellant to first comply and to be "subject to the provisions of this" 445 Act in relation to election petitions" in whatever she purported to do under $S.86(3)$ and (4) of the PEA. As we have already noted earlier, the whole of S.86 PEA is an operationalisation of Article 86 and other relevant Articles of the Constitution. Obedience to $S.86(3)$ and (4) is thus obedience to the Constitution. 450

We agree with the reasoning and conclusion of the trial Judge that the petition of the appellant had been filed under the wrong law and thus more than five months out of time. All the eight grounds of appeal which rotated on the principal issue as to whether or not the appellant's petition had been filed in Court under the right law and whether the same had been filed in time therefore fail.

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This appeal stands dismissed with costs to the respondent here and in the Court below.

Both in this Court and also at trial, allegations of criminality have been made with regard to the academic qualifications upon which the respondent was elected to Parliament. Due to the illegality of the petition, the Courts have not been able to establish the authenticity of these allegations.

In our considered view, the best that can be done in the circumstances, is to refer the proceedings of this appeal and those 465 of the trial Court, to the Director of Public Prosecutions to cause appropriate criminal investigations to be made, to enable the said DPP decide whether or not any criminal prosecution of anyone should be carried out.

We so order. 470

$1st$ $\dots$ day. $\dots$ and of 2019. Dated at Kampala this...

**Alfonse Owiny Dollo Deputy Chief Justice**

RemmvKasule **Justice of Appeal**

Hellen Obura **Justice of Appeal**

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