[2002] UGHC 138

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### THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT GULU. ELECTION PETITION NO. 06 - 2001.

$A$ $A$ $A$ $A$ $A$ $A$ $A$ $A$ $A$ $A$ MANOHA ACHILE MILA >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>

**VERSUS**

# OLEGA ASHRAF NOAHA **RETURNING OFFICER (YUMBE)** ELECTORAL COMMISSION >>>>>>>>>>>>>>>>>>>>> RESPONDENTS

### BEFORE: HIS LORDSHIP JUSTICE RUBBY AWERI OPIO - JUDGE.

## **JUDGEMENT**

The Petitioner **Rashid Govule Iyaga** and **Manoha Achile Mila** were some of the candidates who contested for the parliamentary seat of ARINGA County Constituency in Yumbe District against the first Respondent, **Olega Ashraf Noaha**. The election was held countrywide on 26^th June 2001. The first Respondent was duly declared the willner of the said county Constituency seat. The petitioners thereafter filed two petitions against the 1^st Respondent, the 2^nd Respondent, the Returning Officer and the third Respondent, the Electoral Commission, challenging the result of the said election. At the commencement of the hearing the two petitions were consolidated by consent order dated 6^th September, 2001. The reasons for the said consolidation were that both election petitions raise similar issues of law and fact and were being represented by the same counsel.

The salient grounds for the petitions were:-

- 1. That the academic qualifications which the first Respondent presented in support of his nomination were forged and therefore his nomination paper was null and void. - 2. That the Returning Officer of Yumbe District nominated the first Respondent when he knew or had reasons to believe that the first respondent was not qualified to stand and / or did not possess 'he necessary qualification to stand as a parliamentary candidate. - 3. That subsequent to the nominations the petitioners lodged a complaint with the said Returning Officer but the said Returning Officer ignored or refused to allow them inspect the first Respondent's nomination papers as required by the law. - 4. That the Petitioners therefore contend that the second respondent failed to comply with the electoral law in that his agent, the Returning Officer, denied the petitioners the opportunity to inspect the first Respondent's nomination papers to enable them challenge his nomination. - 5. That the Returning officer, by his conduct, allowed an ineligible person to masquerade as a candidate, to be voted for and to be declared elected.

The petitioners accordingly praved for:-

- a) A declaration that Ashraf Olega Noaha was not validly elected as a member of parliament for Aringa Constituency; - b) That the petitioner Achile and not the first respondent won the elections and therefore be declared duly elected. - c) Alternatively, that the election of member of parliament for Aringa constituency be set aside and a new election be held; - d) That costs of this petitions be provided for; and - e) Any other relief this court may deem fit.

The affidavits of the petitioners were supported by those of Kamugisha, Delu, Waku and Bukenya.

All the respondents denied the grounds of the Petitions in their answers to the petitions which were accompanied by affidavits.

At the commencement of the hearing of the petitions, the following issues were framed:-

- 1. Whether the first Respondent at the time of the election was qualified for election as a member of parliament by reasons of academic qualifications. - 2. Whether the $2^{nd}$ respondent failed to conduct the election in compliance to the principles and procedures laid down in the parliamentary election Act. - 3. If issue No.2 is in the affirmative whether such non-compliance affected the election in a substantial manner. - 4. Remedies available to the petitioners.

At the commencement of hearing the court adopted a procedure whereby counsel could present his case by way of affidavits followed immediately by submissions. Wandera Ogalo appeared for Manoha Achile Mila hereinafter called first petitioner while Byamugisha appeared for **Rashid Govule Iyaga** (hereinafter called second petitioner) Paul Kiapi appeared for the first respondent while Okello **Oryem** appeared for the second and third respondents. All the evidence relied on was by way of affidavits. The only crossexamination which was done was in respect of the second respondent.

**Mr. Wandera Ogalo** led evidence in respect of the first, Petitioner Mr. Achile. He read paragraphs 4 - 16 of the petitioners affidavit. He contended that the first respondent Olega Ashraf Noaha did not have the minimum academic standards of advanced level as required by law - section 5 of the Parliamentary Election Act, 2001. As such he was not qualified to be nominated and subsequently elected as a member of parliament. That the Uganda Advanced Certificate of Education which was submitted to the Returning Officer was a forgery and secondly that the Diploma in Office Management and administration and qualification from Lutava S. S. from Sudan were not equivalent of Advanced Level nor were they submitted to the UNEB for the purpose of gazetting. Paragraph 5 of the Petitioner's affidavit dated 5^th July 2001 was to the effect that he lodged a complaint with the police because of information he had received that

**Olega Ashraf Noaha** was not qualified to be a Member of Parliament. Annex "A". In that letter Bukenya the Secretary of Uganda National Examination Board wrote to the Director of CID making it clear that the certificate presented by the first respondent was a forgery in that the index number in that Certificate belonged to one Betty Omoda and that the results of the said Betty Omoda were actually different from the Certificate presented to the Returning Officer. The other evidence was the affidavit of M. M. Bukenya where he stated in paragraphs 3,4 and 5 that he received a copy of the certificate of the $1^st$ Respondent which were submitted to the Electoral Commission by the Returning Officer. He carried out a search and ascertained that the index number on that certificate belonged to Omoda Betty. It was therefore a forgery and could not be relied upon by the second respondent for nomination. Even the details for the results were different from those on the Certificate submitted by Hon. Olega.

Mr. Ogalo submitted that the 1^st respondent had failed to challenge the evidence against him on his forged academic qualifications as presented by the Petitioner and Bukenya. Hence a prima facie case had been made against him on his qualification which required him to prove that he infact had the required qualification by Virtue of his 'A' Level Certificate. The learned counsel relied on the case of **Col** (**RTD**) Besigye Kiiza vs. Museveni Yoweri Kaguta, Supreme Court election Petition No. 1/2001 and Hajji Mulunya Mustafa vs. Alupakusadhi Wamulongo and others Election Petition No. 22/96 Byamugisha, J.

On the Diploma in Office Management and Certificate from Lutaya S. S. in Sudan the Petitioner deponed in his affidavit in paragraphs 7,8,9 and 10. He stated that the above qualifications which formed the basis for the nomination of the first Respondent were not gazetted nor issued by UNEB as required by law – section $5(4)$ of the parliamentary election Act 2001.

The first Respondent brought evidence in his affidavit sworn on 10^th August 2001 to the effect that the Certificate from Sudan was equated by UNEB as equivalent to A level by a letter from UNEB dated 17^th June 2001 (Annexture "A"). The second and third respondent adduced the same evidence in respect of the Diploma. However the secretary of UNEB Mr. Bukenya swore an affidavit that the said letter relied upon by the Respondents was not his signature but was a forgery as his signature had been transplanted from other photocopies. It did not bear his file reference number like all letters from his office. And lastly the Returning Officer claimed to have received that letter on 22-5-2001 and yet it was dated 17th June 2001. The learned counsel contended accordingly that the letter appeared to have been received before it was purportedly written by UNEB. Hence that letter was also a forgery. Counsel accordingly concluded that there was no equivalent of 'A' Level as the equivalent was not done by UNEB.

According to counsel, those documents should have been rejected by the Returning Officer by reason of section 5(4) of the

Parliamentary Election Act 2001. Under that section the first respondent should have put notice in Uganda gazette of those qualification and from that UNEB should have issued him with a certificate and it was that certificate which the 2^nd Respondent should have received for the nomination. He concluded that because of the above the Returning Officer should have rejected the nomination of the $1^{st}$ Respondent.

Lastly Mr. Wandera Ogalo doubted whether the first Respondent did attain the qualifications he claimed to have got. He contended that if he had obtained 'O' Level in Uganda, there was no need for him to start from senior one in Sudan and that if Sudan qualification was equivalent to 'A' Level in Uganda, then there was no reason why the 1^st Respondent had to do another A level in Uganda. He also doubted that Diploma qualification by its form and contents that it did not show clearly the duration of studies.

Mr. Byamugisha who appeared for the other petitioner (Mr. Rashid Govule Ivaga) read the affidavit of the petitioner. In paragraph 7 the petitioner attached a copy of nomination papers certified by the electoral commission. In the said nomination papers the first respondent made a statement on oath in which he alleged that he did his O level from Kampala Grammar School from 1976 – 1979 but he failed to attach that O level Certificate. He went further to allege that in 1993 he sat for A level at Kololo S. S. In paragraphs 14 and 15 of the affidavit, the petitioner stated that on 25^th May 2001 the petitioner reported to the Returning Officer that the first Respondent lacked a minimum qualification. But when he went to the Returning Officer on 29^th May 2001 to verify the above qualifications he did not get the Returning officer at the station and the office was locked whereas the Returning officer was obliged to keep the offices open throughout the election period to allow inspection of nomination papers.

Mr. Byamugisha stated that according to Annexture "B" of the petitioner's affidavit Mr. Olega purported to have finished "A' level under index No. U00 36/564 where he got the following grades: General Paper no grade indicated

| $\alpha$ | $\mathbf{I}$ $\mathbf{I}$ $\mathbf{S}$ | |-----------|----------------------------------------| | History | $\overline{ }$ | | Economics | H | | Geography | $\mathbf{I})$ |

$\overline{X}$

However, according to Annexture "C" the copy of the said certificate was taken to UNEB for verification where it was discovered that Mr. Olega was not one of the candidates who sat in Kololo S. S in 1993. It was discovered that the purported index Number belonged to a lady called Omoda Betty.

In paragraphs $7 - 12$ of the petitioner's affidavit further investigations were carried out in Kololo S. S. and the school wrote a letter (Annexture "D") where it was indicated that by 18-7-2001 Omoda's Certificate was still at the school Mr. Byamugisha accordingly submitted that on the above evidence Olega was not

properly nominated for lack of qualification. He referred to section 15 and 5 of the Parliamentary Election Act, 2001.

In paragraph 4 of the Petitioner's additional affidavit, the petitioner stated that he requested UNEB to verify whether Olega attended Kampala Grammar School. A search was duly carried out by UNEB where it was found that Olega was not a candidate at that School in 1979. A copy of UNEB's letter was Annexture "B". Because of the forgeries, a non candidate was nominated and voted for and not Olega.

The rest of the evidence and submissions of counsel were similar to that of **Wandera Ogalo** and since counsel had associated himself with them at the commencement of his presentation it would not serve any useful purpose to repeat them here. Suffice it to say that counsel was of the view that the Returning Officer acted in collusion with the first Respondent and concluded that the first Respondent was not properly nominated for lack of qualifications. He prayed for a fresh elections to be ordered and that both Respondents pay costs of the petitions.

Mr. Alfred Okello Oryem who rehearsed the affidavit of $2^{nd}$ and 3^rd respondent contended that the first respondent was nominated on the basis of his diploma in Management and Administration which was accompanied by a letter from UNEB. That the second respondent also looked at the A level Certificate presented by the first respondent and on the face of it thought that the same was regular, although he did not rely on it for nomination but instead relied on the Diploma Certificate.

The learned counsel contended that during the election no one raised the issue of forgery to the Returning Officer. Since there were no allegation of forgery, the Returning Officer could not reject the nomination papers of the 1^st respondent. The learned counsel concluded that there was nothing wrong with nomination and subsequent voting and declaration of results. He accordingly prayed that the petitions be dismissed with costs against the petitioners.

Lastly **Mr. Paul Kiapi** who presented the case for the first Respondent contended that the petitioners had failed to discharge the burden of proof against the allegations that **Olega's** A level Certificate was forged and that his Diploma from Cambridge International School was not equivalent of A level for the reasons that the petition was based on some paragraphs which were defective. Mr. Kiapi read affidavits of the first respondent which were filed on 5-9-2001 and 10-8-2001 where it was shown that the first respondent holds a Diploma in Office Management and Administration from Cambridge International College. In the same was annexed a transcript from the college at the foot of which it was stated that the course was accredited with 180 study hours. It also showed that the course was academically equivalent to A level. The transcript was attached to a letter addressed to one **Byamugisha** by the principal of the College (which was not signed for reasons given by the author).

From the above transcript Mr. Kiapi contended that Mr. Olega had both "A" level or its equivalent. He lashed at the submission of Mr. Wandera Ogalo that "A" level in Britain was not the same as our "A" level basing on the notorious fact that our education system was brought from the British System and therefore it follows that their system is equivalent to ours and nothing less.

The learned counsel submitted that attached to the affidavit of the first Respondent was a letter from **Mr. Bukenya**, the UNEB boss by which he equated the Diploma as a equivalent to our "A" level. The learned counsel submitted that the affidavit sworn by Bukenya that the said letter was a forgery should be ignored for the two reasons that he does not respect this court and that he is a man who can not be trusted by any court as was held in **Sebagekera's case by Hon**. Justice Katutsi.

Lastly the learned counsel contended that even if the qualification of the first Respondent was not gazetted in contravention of section 5(4) of the Parliamentary Election's Act, that alone could not overturn an election. He concluded that election in a democratic society is the highest expression of the will of the people which should be respected and not set aside on light or trivial grounds. He accordingly prayed that the petitions be dismissed with costs.

The above constitutes a brief summary of evidence and submissions of all the counsel in the petitions. At this juncture it is instructive to observe that in Uganda, government attaches a very high importance to Electoral matters, right from the preparatory stages up to the voting exercises. All citizens who are eligible to vote are required to register in the voters Register. This is a constitutional duty as provided under Article $17(h)$ of the Constitution. Voters Registers are public documents which are subject to inspection and verification. Then the candidates themselves must be eligible. All these are because in a democratic society election is the highest expression of the will of the people which should be respected by everybody. The process must therefore be carried on a level ground.

#### BURDEN OF PROOF

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It is now fairly well settled that the burden of proof in election petition lies with the petitioner because it is him who is seeking the court to have the election anulled This has been the position of the law since the decision in the case of *Mbowe vs. Eliufoo* [1967] EA 240. In that case George, CJ in the Tanzania case said at page 241:

"In my view it is clear that the burden of proof must be on the *Petitioner rather than the Respondent, because it is he who seeks* to have this election declared void".

The decision in **Mbowe vs. Eliufoo (Supra)** has been followed by Uganda Courts in a number of decided cases. Odetta vs. Omeda, Election Petition No.1 of 1996 (Unreported); Margaret Zziwa vs. Naava Nabagesera Civil Application No. 39/1997 (Court of Appeal, Unreported). Ayena Odongo vs. Ben Wacha & another, **Election Petition No.2 of 1996**, Lira Registry before Okello J, (as he then was).

The above position was put beyond doubt by the Supreme Court in Col (Rtd) Dr. Besigye Kiiza vs. Museveni Yoweri Kaguta, **Election Petition No.1/2001** Supreme Court. In that case Odoki C. J. said.

" In my view the burden of proof in election petitions as in other Civil cases is settled. It lies on the petitioner to prove his case to the satisfaction of the court".

As for the standard of proof, the parliamentary Elections Act 2001 has invariably set the law in section $62(1)$ to be to the "satisfaction of the Court". The above phrase was further defined in section 62 (3) of the Act to mean proof on the balance of probabilities. It states,

"62(3) Any ground specified in subsections (1) of this section *(which are the grounds for setting a side an Election Petition)* shall be proved on the basis of a balance of probabilities".

## The above section was applied by **Musoke Kibuuka J, in Turwomwe** Spencer, Patrick vs. Ndahura Richard Patrick and another, Election Petition No.4/2001 Mbarara) and in Gulu Election Petition No.5 of 2001 Aabuka Okullo Jallon Anthony vs. Onek Obaloker Hillary and others. (unreported).

I now turn to the issues for determination. As I do so, I would like to keep in mind a landmark pronouncement of His Lordship, Hon. Justice B. J. Odoki C. J. in the Col. (Rtd) Kiiza Besigye vs. Yoweri Kaguta Museveni Election Petition No.1 of 2001 (Supreme Court), In that judgement it was observed that elections are matters of public interest which concern not only the parties to an election but also the general body of the electorate in the affected area. They are the democratic expression of the will of the people as to by whom they wish to be represented. For those reasons elections should not be set aside on light or trivial grounds.

At the commencement of the hearing four issues were framed for determination. During their submissions however both counsel for the petitioners abandoned the $2^nd$ and third issues dealing with whether the 2^nd respondent did not conduct the election according to the law and whether the same affected substantially, the results of the said election. They were of the views that those issues were not raised in their petitions and also that counsel Kiapi did not touch them in his presentation. There are therefore only two issues left for determination i.e. the first issue on qualification of the candidate and the fourth one on remedies and costs.

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## **QUALIFICATIONS**

In Uganda, a person is qualified to be a member of parliament if that person :-

- a) Is a citizen of Uganda, - b) Is a registered voter; and - c) Has completed a minimum formal education of Advanced Level Standard or its equivalent: Article 80 of the 1995 Constitution.

The above qualifications are also repeated in section $5(1)$ of the Parliamentary Elections Act 2001, Verbatim. Academic qualifications is therefore one of the Constitutional requirements for one to be elected a member of Parliament.

It was the evidence of the petitioners that the first Respondent did not have the minimum academic qualifications of advanced level or its equivalent as required by the law as stated above. The Uganda Advanced Certificate of Education which the first Respondent submitted to the Returning Officer was a forged document in that the index number in that certificate belonged to one Betty Omoda. Both counsel to the petitioners accordingly submitted that a prima facie case had been made against the first Respondent on his academic qualification.

It is trite law that the burden of proof in election petitions is on the petitioner. This burden of proof ordinarily does not shift. When it shifts at all, it prescribes that the petitioner should have prima facie established a case against the respondent that would have entitled him to a judgement. See Shakar's Law of Evidence Volume, 2 14^th Edition from page 1338 – 1340 which states as follows:-

"It appears to me that there can be sufficient evidence to shift the onus from one side to the other if the evidence is sufficient prima facie to establish the case of the party on whom the onus lies. It is not merely a question of weighing feathers on the one side or the other, and saying that if there were two feathers on one side and one on the other that could be sufficient to shift the onus. *What is meant is that in the first instance the party on whom the* onus lies must prove his sufficiency to justify a judgement in his *favour if there is no other evidence".*

The above passage was cited with approval in the election petition No.1 of 2001 Col (Rtd) Besigye Kiiza vs. Yoweri Kaguta (Opcit).

In the instant case, the qualification of Hon. Olega is within his knowledge and therefore the burden is on him to show that the certificate which he presented was his and not that of Betty Omoda. In order to discharge the said burden of proof the first respondent should have done the following:-

- a) To depond an affidavit confirming that the said A level certificate was his. - b) To call any cogent evidence confirming that he did sit for Advanced Level Examinations in Kololo S. S. in 1993. He could have produced results slips, progress report cards, an affidavit from an old boy or Headmaster of the centre school. - c) He could have contradicted Bukenya's affidavit by producing evidence from the school that the said results as indicated in the certificate which he submitted to the returning Officer, were his. - d) He should have also produced his senior four certificate upon which he was admitted to senior five to make him be admitted in Kololo S. S.

All the above factors would destroy the evidence produced by the petitioners and the examination authority. However that has not been the case in the instant case.

The prevailing status quo is that the Advanced level Certificate which the first Respondent purportedly produced for his nomination under index No. U0036/564 belonged to one Betty Omoda. This was confirmed by UNEB when the same was taken for verification. That was further confirmed by Kololo S. S. where the first Respondent purported to have taken the said examinations. The said school confirmed that Omoda's Certificate was still lying at the school with the following grades:

| General Paper | n | |------------------|--------------------------------------------| | History | $( )$ | | <b>Economics</b> | R | | Geography | $\left.\begin{matrix} \end{matrix}\right)$ |

From the above it can be noted that whereas the true candidate. purportedly took the same subject combinations, they scored different grades. Whereas Olega under the same index number scored the following grades:

| General Paper | No grade | |---------------|----------| | History | | | Economics | | | Geography | | | | |

Omoda Betty who also sat under the same index number scored the following grades

| General Paper | | |---------------|-----------| | History | $( )$ | | Economics | B | | Geography | $\bigcup$ |

From the above, it is very clear that the academic document of the $1^st$ petitioner tells lies about itself. It cannot therefore be genuine. It is a forgery. It can not be true that the first Respondent ever studied at

$\overline{0}$

Kololo S. S. It can not also be true that he sat for A level at the same school in view of the evidence above.

$\mathbf{X} = \mathbf{X} \mathbf{X}$

Another problem with the academic qualifications of the first Respondent was his "O" level Certificate. He stated that he attended "O" level at Kampala Grammar school. However a search was carried out by UNEB where it was discovered that he was not a candidate at the school in 1979. There is no doubt about that since the first Respondent never challenged that evidence. Infact he did not even produce any certificate or pass slip to the effect that he had sat for "O" level. I do agree with UNEB that if the first Respondent had really sat for "O" level at the stated school, there could have been absolutely no reasons why he had to restart from senior one when he went to Sudan in 1985. The only plausible conclusion is that he must have left Kampala Grammar School (if at all) before sitting for "O" level.

As far as the Diploma in Office Practice and Management and academic qualifications from Sudan are concerned, it was contended by the first Respondent that the above qualifications were equivalent to "A" level in Uganda. He contended further that the said qualification was equated by the UNEB as equivalent to "A" level standard.

Section $5(1)(c)$ of the Parliamentary Election Act, 2001 provides that a person is qualified to be a member of parliament if that person has completed a minimum formal Education of Advanced Level Standard or its equivalent. Under subsection(4) of that section it is stated that for the purpose of paragraph $(c)$ of subsection(1) of this section a person shall qualify as having the equivalent of the advanced level formal education only if he or she holds a certificate issued to him or her by the Uganda National Examination Board notice of which has been published in the gazette. The importance of the gazetting is to give notice to the whole world that you hold the stated qualifications: See Civil Appeal No. 29 of 1996 Samuel Wamatsembe Muyonga vs. Muloli Mutanje; Court of Appeal (Unreported).

In Muyonga's case (Supra) it was further held that anything so enacted by the legislature must be enforced even though it be absurd or mischievous.

In the instant case, the law required that the first Respondent had to take his Diploma qualifications from Britain and O level from Sudan to UNEB for Certification which was to be gazetted. Instead of submitting a gazetted notice of completion of formal education, the first respondent submitted a formal letter which the purported author later denied as being a forgery. That denial (by Bukenya) was not challenged in any way a part form the submission from the bar that Bukenya was not reliable. That was not evidence in Law.

As I stated earlier, the question of academic qualifications for the purposes of election is a constitutional issue. The legislature went out of its way in providing the procedure under which academic qualifications should be equated. The first Respondent did not only follow that procedure but he attempted to use unlawful means in seeking his nomination to parliament. The likes of **Acelam Ben**,

E. F. H. Babu, Okello J. F. Victoria Kakoko - Sebagereka, Engola Sam, Catherine Akumu Mavenjina and Aciro Beatrice Okeny, to mention but a few followed the law and gazetted their notices of their completion of formal education certified by UNEB. The 1^st respondent should have done likewise. That is the meaning of the Rule of law. All must follow the law. In that respect, I find that the first respondent conducted himself without honesty, intergrity and respectability. Above all he could have also been liable for criminal prosecution for the alleged forgeries.

For the above reasons, I find that the first Respondent was not qualified for nomination as a candidate for Aringa County Constituency parliamentary elections. The Returning Officer should have rejected his academic qualifications for the reasons above stated.

## **REMEDIES AVAILABLE**

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There is a saying that he who faces the law with a sword must bear the consequences. In the instant case it has been established on the balance of probabilities that the first Respondent at the time of his nomination and subsequent election was not possessed of the minimum academic qualifications of Advanced level standard or its equivalent as required not only by the Parliamentary Elections Act, but by the Constitution of the Republic of Uganda. One does not need to be a parliamentary candidate to know that the Constitution is the Supreme Law of Uganda with a binding force on all authorities and all persons throughout Uganda. It was established that the first Respondent forged most if not all the academic qualifications he tendered for his nomination. Further more, the little qualification he purportedly obtained from Cambridge International School was not lawfully equated by UNEB. The courts of law in Uganda have not been soft on the likes of the first respondent who do not appear to recognise the powers of the people of Uganda as expressed in the 1995 Constitution and other relevant Laws. In Hajji Mulunya Mustaphar vs. Alupakusadhi Waiibi Wamulongo and others election Petition No. 22/96, Alupakusadhi Waiibi Wamulongo won an election in Iganga District as MP for Bunya county in 1996. However it later transpired that during his nomination he did not have the minimum standard of Advanced level or its equivalent Hon. Justice **Byamugisha** held that the first Respondent was not validly elected for want of academic qualification.

In yet another case of *Daniel Kiwalabye Musoke vs. the* Electoral Commission and Edward Byaruhanga Katumba, Election Petition No. 10/98, Hon. Lady Justice Arach - Amoko nullified a local government elections for want of academic qualifications. In that case, the petitioner was one of the unsuccessful candidates in the election for LC V Chairperson Kiboga District held in April, 1998. The 2^nd Respondent had based his nomination on Cambridge School Certificate which he purportedly obtained from Kabalega S. S. In 1955. However it turned out that at that time there

was no School by such a name in existence. Kabalega S. S. came into life in 1960's. Above all, other qualifications which he tendered were not equated to A level standard. The court set aside the election for want of academic qualification.

In the instant case, after finding that the petitioners have fully discharged the burden of proof to the required standard that the first respondent was not properly nominated as he did not have the required minimum standard of A level or its equivalent and following the two cases above cited, the only remedy is to cancel the election as the $1^st$ respondent was neither validly nominated nor elected. The election is therefore set aside with costs to the petitioners. A fresh election should be arranged as soon as it is convenient.

It is very unfortunate if I may comment, that the first respondent grossly down-played the powers of the people of Aringa. I think if we are to develop this country democratically people should learn to respect the will of the people and live honestly with integrity and respect. In this respect the will of the people of Aringa was that whoever wanted to represent them must have "A" level Certificate or its equivalent. By purporting to have the said qualification the $1^st$ Respondent undemocratically cheated the people of Aringa and yet there could have been better materials for effective representation. Such kind of corruption by our political leaders must be stopped immediately.

Before I take leave of this case I would like to make further comment on the conduct of the Returning Officer who conducted the election. As has always been said, election is the expression of a democratic governance. As such, those empowered with the conduct of the same should be people with a high sense of duty and integrity. In that regard I dare say that the Returning Officer in the said election did not act scrupulously. He should have verified the academic qualifications of the candidate diligently. He also failed to keep his office open during the verification period. He should have delegated somebody to remain at the station if he knew he was needed in Kampala. Alternatively, he should have delegated one of his officers to go to Kampala instead of himself bogging the electoral process.

All in all I find that the petition must succeed and I so order. The first respondent is to pay costs of the petitions to the petitioners and a fresh elections be arranged as stated earlier above.

Rubby Aweri Opio Judge $25/1/2002.$