[2016] UGHCEP 36

#### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA HOLDEN AT MASINDI

### **ELECTION PETITION NO. 0001 OF 2016**

MUHONGE GODFREY KASANGA ...................................

#### **VERSUS**

# THE INDEPENDENT ELECTORAL COMMISSION.................................. **BEFORE: HON. JUSTICE RUGADYA ATWOKI**

#### **JUDGMENT**

The petitioner herein was nominated as a candidate for the election of Member of Parliament for the Buyanja constituency in Kibaale district in the recently concluded elections of February 2016. A few days to polling day, the respondent/commission notified him of the cancellation of his nomination for alleged non compliance with provisions of Section $11(1)(c)$ of the Parliamentary Elections Act.

The said section requires that every nomination of a candidate be accompanied by 'names and signatures of a minimum of ten persons who are registered voters in the constituency..'. Non compliance makes the nomination void under Section 13 of the same Act.

He petitioned this court under SI $141 - 1$ The Parliamentary Elections (Appeals to the High Court from Commission) Rules.

The facts from which the petition arose are thus. The petitioner, during nominations and in accordance with the law, accompanied his nomination paper with a list of names and signatures of ten persons, said to be voters in the Buyanja constituency. One of the signatories thereto Byenkya Robert wrote to the respondent/ the commission that his name and signature on the nomination paper presented by the petitioner was forged. The respondent asked the petitioner and said Byenkya Robert to appear before it to ascertain the validity or otherwise of the complaint.

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After the investigations, the respondent wrote to the petitioner cancelling his nomination as a candidate for the Parliamentary constituency of Buyanja, and voting duly took place but without the petitioner, though his name was on the ballot paper. The petitioner comes to this court on appeal from that decision of the commission under the law aforementioned.

The petitioner filed an affidavit in support of the petition. The respondent equally filed a reply. Later the respondent filed a supplementary affidavit deposed by Dr. Badru Kiggundu, to which was annexed the report of the Hand Writing Expert stating that the name and signature of Byenkya Robert on the nomination form which the petitioner presented at his nomination was not written by the said Byenkya Robert. This was the bone of contention in the preliminary objection by the petitioner. I will deal with it presently.

The petitioner deposed that the said Byenkya Robert was one of his campaign officials and he duly signed his nomination papers. There was no forgery. The petitioner deposed in his affidavit that the respondent's communication to him was always late as if it was intended to disorganize him in his bid to represent his people.

The letter informing him of the complaint by Byenkya Robert, and inviting him to appear to the Commission arrived 6 days after the intended meeting. However, he received a phone call, for a meeting on another day which he was able to attend. The letter informing him of the cancellation of his nomination arrived in the night of 16^th February, when polling was to take place on the 18^th February.

When the petition came up for hearing, each side raised preliminary objections on points of law. I decided to handle the objections at the same time as the main petition.

The petitioner raised an objection that the supplementary affidavit by the respondent was time barred as it was filed outside the time set by the law within which the respondent was supposed to file a reply. He argued that under Rule 7 of the Parliamentary Elections (Appeals to the High Court from the Commission) Rules SI 141/1, where the commission was served with a petition it was required within 3 days after the service, to lodge an affidavit in reply with the Registrar. It was argued that the provision is mandatory. The respondent was required to attach to his affidavit all the necessary annextures and any other necessary evidence.

The petition was filed on 22-2-2016. It was duly served on the respondent who, following the above provision of the law filed their reply, deposed to by one Dora Nagirinya the Legal Officer of the respondent. It was submitted that the reply did not give any explanation why the petitioner's nomination was cancelled. In addition, as required by law, the deponent Dora Nagirinya attached a summary of evidence, list of documents and witnesses. Other witnesses would be introduced with leave of court. It was further argued that the Legal Officer did not mention that there was any interaction with Engineer Badru Kiggundu to create a foundation for introducing this witness.

But in contravention of the law, the respondent on 21-3-2016 filed the supplementary affidavit deposed by Dr. Badru Kiggundu. The petitioner's argument was that the said supplementary affidavit of Dr. Badru Kiggundu was filed without leave of court and was therefore illegally on court record and the same ought to be thrown out.

The list of documents attached to the affidavit of Dora Nagirinya showed that the respondent only intended to rely on documents as they were annexed on that affidavit in support of the petition. They did not include annextures 'A' and 'B' in the supplementary affidavit.

The two impugned documents are the application by the respondent to the handwriting expert and the handwriting expert's report in respect of the name and signature of Byenkya Robert on the nomination form presented by the petitioner at his nomination.

The two documents are contested by the petitioner in his affidavit (paragraph 9) in support of the petition. The petitioner deposed that the respondent never availed those documents to him, and these are the documents which the respondent relied on in cancelling his nomination.

In reply, it was submitted by the respondent that the affidavit in reply was filed in time. On 21-3-2016 a supplementary affidavit was filed as is the usual and indeed common practice in election petitions. It was argued that supplementary affidavits have been filed after the answer to petitions and responses and therefore it was not true that the affidavit of Dr. Badru Kiggundu was filed out of time.

It was submitted that in paragraph 3 of that supplementary affidavit, Dr. Kiggundu gives the background for the affidavit, when he deposes that he had read and understood the affidavit of Dora Nagirinya. He was therefore adding to her affidavit. It was argued that the petitioner was not prejudiced by that supplementary affidavit, and in any event, it was availed to him when it was filed. He could have filed an affidavit in rejoinder, but chose not to do so.

That the supplementary affidavit gave the background to the matter and the procedure which the respondent followed in resolving the same. The annextures 'A' and 'B' attached thereon were relevant to the matter at hand, and would help the court to determine it.

The point for determination was the status of the supplementary affidavit deposed by Dr. Badru Kiggundu. Under rule 7 of the Parliamentary Elections (Appeals to the High Court from the Commission) Rules, when the commission has been served with a petition, it is required to file a reply supported by an affidavit within 3 days. The affidavit of Dora Nagirinya was in compliance with that rule. The commission later filed an affidavit by Dr. Badru Kuggundu. This was headed, 'Supplementary Affidavit'.

The word supplementary means 'in addition to, completing or enhancing'. To supplement is to add something to complete what is in existence. Rule 7 quoted above details what the affidavit in reply by the Commission ought to contain. These details are set out as follows.

- (a) a description of the irregularity or irregularities complained of to the Commission; - (b) the orders given by the commission confirming or rejecting the existence of an irregularity or irregularities; - (c) the remedial orders given and the effects of those orders; - (d) a statement whether any earlier complaint was reported to a lower authority and if so, what the complaint was and what orders were given by the lower authority; - (e) a statement of the facts found by the commission on the evidence placed before it; and - (f) any notes of the evidence taken by the commission at the time of its hearing of the complaint made to the commission.

A reading of the affidavit of Dr. Badru Kiggundu shows that this was the commission's attempt to comply with the provisions of rule 7 set out above. It was the evidence of completion of what the affidavit of Dora Nagirinya deposed to. It was not necessary for Dora Nagirinya to mention that there would be an additional or supplementary affidavit.

Paragraph 3 of the affidavit of Dr. Badru Kiggundu states thus;

'That I have read and understood the affidavit of Dora Nagirinya the Legal Officer of the respondent and I affirm this supplementary affidavit in further reply to the affidavit of the petitioner.'

This clearly to me shows that this supplementary affidavit was to be read as part of evidence in reply to the petition, and in addition to the one of Dora Nagirinya, all together in compliance with Rule 7.

I agree with Counsel for the respondent that in election petitions, supplementary affidavits are routinely filed well after the time limit set for the formal affidavit in reply, without first seeking leave of court. This is accepted as long as there is on court record affidavit in reply which complies with the time set for filing a reply.

When this is done, the petitioner is not barred from, and they almost always do, file affidavits in rejoinder. The law does, as in this case in rule 9, provide for parties to appear before a Judge for directions including setting time limits to end the filing of affidavits in support or / and in rejoinder and whether there will be cross examination of deponents. The case of *Col. (Rtd) Dr.* Kiiza Besigye v. Museveni Yoweri & An. [2001-2005] HCB 4, is but one of several election petitions where this has been the accepted practice. In the premises the preliminary objection raised by the petitioner is dismissed.

The respondent on their part also raised a preliminary objection to the effect that the petition was over taken by events, was incompetent and moot.

It was argued that a petition of this nature had to be filed before the election and not after the election. The election which this petition sought to set aside was conduction on 18-2-2016. The petition was filed four days that after the election on 22-2-2016.

It was submitted that this petition was brought by virtue of Article 64 of the Constitution, Section 15 (2) & (5) of the Electoral Commission Act and The Parliamentary Elections (Appeals to High Court from Commission) Rules.

It was argued that there are unique timeframes in the provisions above cited. Rule 7 requires that a decision of the Electoral Commission be appealed within 5 days from the date of the decision. The respondent has 3 days within which to file the response. The court has 7 days within which to determine that appeal.

These are unique timelines are designed purposely to pave way for the High Court to make decision which must be implemented by the Commission before the conduct of the election. Clause 4 of Article 64 of the Constitution stipulates that the decision of the High Court on appeal shall be final. This is further evidence that the reason is to pave way for the High Court to make a decision that must be implemented before the conduct of the elections.

It was submitted that the petition seeks to set aside the election of Member of Parliament for Buyanja Constituency contrary to section 60 & 61 of the Parliamentary Elections Act. Election of a Member of Parliament can only be set aside on the grounds set out sections of 60 & 61 of the Parliamentary Elections Act.

In reply, it was submitted that there are two ways by which such petition can be brought. One is under the Parliamentary Elections (Election Petition) Rules, SI 141-2, and the other is under the Parliamentary Elections (Appeals to the High Court from the Commission) Rules SI 141-1, which was the choice of the petitioner as was his right. It was argued that there is no law which bars a person from choosing either option, and what's more important, the High Court has jurisdiction to grant any or all the prayers under either provision of the law.

The petition was brought to court under Article $64(1)$ and $(4)$ of the constitution. It provides thus;

(1) Any person aggrieved by the decision of the Electoral Commission in respect of any of the complaints referred to in Article $61(1)(f)$ of this constitution may appeal to the High Court.

(4) A decision of the High Court on an appeal under Clause (1) or (3) of this Article shall be final.

Article $61(1)(f)$ of the constitution which is referred to reads thus:

'The Electoral Commission shall have the following functions-

(f) to hear and determine election complaints arising before or during polling.

The commission, according to Section 15 of the Electoral Commission Act is empowered to resolve complaints and appeals in the manner below;

- (1) Any complaint submitted in writing alleging any irregularity with any aspect of the electoral process at any stage, if not satisfactorily resolved at a lower level of authority, shall be examined and decided by the commission; and where the irregularity is confirmed, the commission shall take necessary action to correct the irregularity and any effects it may have caused. - (2) An appeal shall lie to the High Court against a decision of the commission confirming or rejecting the existence of an irregularity.

The petitioner felt aggrieved by the decision of the commission cancelling his nomination. Under the above provisions, he filed a complaint to the commission. The reason for the cancellation was because one Byenkya Robert who appeared as a supporter of the petitioner and was so named on the nomination paper of the petitioner denied so being, and complained so to the commission. If this forgery was proved, it would mean that the petitioner did not have 10 persons supporting his nomination as required under Section $11(1)(c)$ of the Parliamentary Elections Act. His nomination would therefore be void under Section 13 (a) of the same Act.

According to the affidavit of Dr. Badru Kiggundu, and indeed according to the petitioners own affidavit, the petitioner was summoned. He appeared with his Counsel Peter Ssetimba. The complainant Byenkya Robert also appeared. Both sides gave their respective sides of the matter. The commission decided to engage the services of the Government Handwriting Expert.

The expert was availed the impugned signature on the nomination form plus other signatures of Byenkya Robert, and his report was that Byenkya Robert did not write or sign on the nomination form presented by the petitioner. From the evidence obtained from the petitioner, the complainant and the Handwriting Expert, the commission cancelled the nomination of the petitioner.

To my mind, that was all that the commission could do. The kind of complaint which the commission could handle was in respect of irregularities before or during polling. The law envisaged that the commission would act on the complaint concerning irregularities, and a party aggrieved by that decision could appeal to the High Court. The decision of the High Court is final, meaning that the commission had to comply with the order of the High Court concerning the irregularity.

The petition sought prayers including the following;

First a declaration that the forgery of Byenkya Robert's signature was wrongly confirmed to exist, secondly that the order of the commission cancelling the petitioners candidature be set aside, thirdly that the election of the member of parliament for Buyanja be set aside and fresh elections ordered.

The commission is required to comply with and correct or put right the irregularity. The law does not confer on the Electoral Commission power to cancel an election of a member of Parliament. Under Section 60 of the Parliamentary Elections Act petitions to set aside an election of a member of parliament are filed in the High Court. Section 61(1) of the same Act provides thus;

The Election of a candidate as a member of Parliament *shall only be set aside* on any of the following grounds....'. Emphasis added.

The jurisdiction to set aside an election of a member of Parliament lies at first instance with the High Court. The High Court derives that jurisdiction from Sections 60 and of the 61The Parliamentary Elections Act.

That means the court could not make such order of cancellation of elections of Member of Parliament as this petition was not brought under the above provisions, and consequently the commission could not equally comply with the order of this court, if such was made to cancel the election of member of parliament for Buyanja constituency.

Secondly, the prayer if made would affect parties in the election who were not parties to this petition. Court would not indulge in an exercise where rights of parties are determined without giving them a hearing. The principle of *Aud Alteren patem* immediately comes to mind.

Thirdly and maybe most important, the prayers sought from court could not, at this point in time be effected by the commission. The commission could only have effected them if elections had not yet been held. The irregularity complained of was forgery of the signature of Byenkya Robert thus in effect nullifying the nomination of the petitioner. The corrective action, if the forgery allegation was to be found not proved would be to vacate the order of cancellation of the name, and retain the petitioner as a validly nominated candidate for the elections. But there are no such elections any longer, as they were concluded on 18^th February 2016.

In the premises, I agree with learned Counsel for the respondent that the petition coming as it did under the Parliamentary Elections (Appeals to the High Court from the Commission) Rules, well after polling day and announcement of results is overtaken by events.

The petitioner could have had recourse under the Parliamentary Elections (Election Petitions) Rules. The preliminary point of law is accordingly allowed. The petition is dismissed.

Before I take leave of this matter let me say something about the merits of this petition, though it is only of academic interest. Even if I had not allowed the preliminary objection by the respondent, I would still have dismissed this petition.

The petition was premised on the allegation of unfairness by the respondent. The evidence available to the commission was from the petitioner, the complainant and the Government Handwriting Expert. The petitioner was heard on the complaint. He appeared before the commission with his Counsel. They made their case and the complainant was present. He also made his case. That same day, the commission decided to get independent evidence. This was from a Government expert on handwriting. His report was that the complaint by Byenkya Robert was genuine. Upon that evidence as a whole, and not just on that of handwriting expert only, the commission made its decision.

To claim that the commission ought to have availed the report of the handwriting expert before the cancellation, would have been the ideal. But in election times, the situation is far from ideal. However, the petitioner was aware that the signature of Byenkya Robert was questioned. He did not avail any evidence save his own word. This was against the word of the said Byenkya Robert. The allegation was made known to him before he appeared before the commission.

Section 102 of the Evidence Act is relevant. An allegation of forgery was made. This was by the very person whose signature was said to be forged. The petitioner stood to fail in his nomination if he did not prove that indeed there was no such forgery. Even the evidence of two persons who alleged that Byenkya Robert actually signed the nomination form was only brought with the petition, and not before the commission. The petitioner therefore failed to discharge the allegation that he forged the signature of Byenkya Robert. The petition would therefore fail even on its merits.

It was not denied that the decision to cancel the nomination of the petitioner was arrived at on the 12^th February. The decision was communicated to the petitioner in the night of 16^th February, which was only 2 days to poling day. The excuse by the Chairperson of the respondent was that there was lack of quorum as other members of the commission were upcountry on official business. That does not absolve the respondent from lack of diligence when dealing with matters of an urgent nature. After 12^th, one did not need a whole 4 days to communicate with the petitioner. For this lack of diligence on part of the respondent, I will not condemn the petitioner in costs. I order that each party shall bear their own costs. I so order.

My Mil.

Rugadya Atwoki Judge 20/04/2016.

Com! The judgment shall be near to the partnersty<br>He Ass. Deposition - mide 0. 21 r. 20) C. P. R.