[2016] UGHCEP 335

# **THE REPUBLIC OF UGANDA**

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

#### **ELECTION PETITION No. 83 OF 2015**

- 1. SENTARO BYAMUGISHA - 2. TUMWESIGYE LEOPOLD - 3. TURYEBWA JULIUS :::::::::::: PETITIONERS

4. MONDAY EVARIST

5. KYAMUNZIRE MOREEN

### **VERSUS**

- 1. FORUM FOR DEMOCRATIC CHANGE - 2. DR. PIUS RUHEMURANA - 3. KABAZIGURUKA MICHAEL ::::::::::: RESPONDNETS

4. LYDIA TURYAHUMURA

### **BEFORE HON. MR. JUSTICE MICHAEL ELUBU**

This is an Election petition brought by the petitioners herein.

It is the case for the petitioners that they are members of the Forum for Democratic Change (FDC) party and petitioners 1, 3, 4 and 5 sought different political positions on the FDC ticket. The 6th petitioner was aspiring for the position of LC V Councillor.

The 2nd Respondent was declared flag bearer for the election of Mayor on the 1st respondent's ticket, the 3rd respondent is the Vice Chairman of the FDC National Election Commission. The 4th respondent is the FDC Chairperson for Kabale district.

The 1st respondent held elections for party flag bearers on the 8th of June 2015 and the 11th of November 2015.

The petitioners challenge these elections and aver that they were marred by bribery, intimidation, assaults and other irregularities and pray for:

- a) A declaration that the impugned primaries were unfree (sic), unfair, null and void. - b) A declaration that the impugned primaries were marred by bribery, intimidation, assaults, disenfranchisement and other irregularities - c) An order restraining the 1st respondent and all the beneficiaries of the said fraudulent elections as its flag bearers for purposes of the 2016 elections to the national electoral commission or any other purpose. - d) An order setting aside the said elections and conduct of fresh primaries in a free and fair manner - e) An order compelling the respondents to pay general and exemplary damages to the petitioners. - f) Costs of the petition

The petition is supported by the affidavits of the 1st and 2nd Petitioners. The content of both affidavits is substantially the same and they depose that respondents organized the electoral process for flag bearers but that that process was full of irregularities. For example, in Mwanjari and Kirigime the presiding officers were also contestants which was contrary to the party Electoral guidelines.

It is averred that the 4th respondent ran radio announcements calling for a meeting at different venues, without cancelling earlier announcements, which was aimed at misleading the contestants/contenders. It is averred farther that these irregularities infringed on the party Constitution and guidelines. As a result, the petitioners filed this election petition for the nullification of the nomination process.

The respondents all put in replies opposing the petition.

Before I delve into the merits of the petition I shall dispose of two points of law.

Firstly it is alleged that the 1st, 3rd and 5th applicants have since been nominated as independent candidates by The Independent Electoral Commission for the positions that they are vying for. This evidence in uncontroverted.

I have perused the FDC party Constitution. Art 12 (d) thereof provides,

#### **12. Cessation**

*Membership shall cease on occurrence of any of the following;*

**a ... b .... c ...**

**d)** *If a member joins another party or in an election stands as an independent.*

This provision is clear and unambiguous. Any member who chooses to stand as an independent candidate in an election ceases to be a member of the FDC.

**The Constitution of the Republic of Uganda**, which is the Supreme law of the land, in Article 72 (4) of **The Constitution of the Republic of Uganda** provides that,

*Any person is free to stand for an election as a candidate, independent of a political organization or political party.*

Section 10 of **The Parliamentary Election Act, 2005** which operationalises Art 72(4) of the Constitution states,

*'... nomination of candidates may be made ... by a candidate standing for election as an independent candidate without being sponsored by a political party.*'

Art 12 (d) of the Constitution of The FDC party clearly follows the provisions of these two laws. Members of the party who stand as independents cease to be members of FDC because they choose to stand without the party's sponsorship and at that point are not members of the FDC.

It follows that a non-member cannot challenge a party's internal mechanisms or decisions. He is stranger.

The question here therefore is one of locus standi, whether an Independent candidate has the locus standi to challenge FDC on an election.

**Black's Law Dictionary, 8th Edition,** defines Locus standi as the right to bring an action or to be heard.

A party who has ceased holding membership of a political party, by contesting as an independent candidate in an election, has no right to challenge the party's internal electoral processes such as the election of flag bearers, meaning they have no right to bring an action against the party. This is the position with Petitioners No. 1, 3 and 5.

On this premise Applicants 1, 3 and 5 have no locus to sustain this action. The application of:

- a. Sentaro Byamugisha - b. Tituryeba Julius - c. Byomuhangi Pius

is dismissed for want of *locus standi.*

Petitioners No 4, Monday Evarist and 6, Kyakunzire Moreen have adduced no evidence whatsoever to sustain their claim. The petition has two affidavits in support sworn by Sentaro Byamugisha and Leopold Twesigye. These affidavits make no mention of Petitioners 4 and 6. In the result there is absolutely no evidence to prove the claims or the Cause of Action of Monday Evarist or Kyakunzire Moreen.

The action of Petitioners No 4, Monday Evarist and 6, Kyakunzire Moreen is accordingly dismissed.

This leaves Petitioner No 2, Leoplod Twesigye.

Paragraph 1 of the Petition describes the petitioners. It omits **Petitioner No. 2 Leopold Twesigye.** With the exception of the heading, **Leopold Twesigye** is not mentioned anywhere in the petition. That said, Leopold Twesigye swore an affidavit in support of the Petition. The respondents have not objected in any way to the receipt of Leopold Twesigye's affidavit and would appear, by their actions, to have waived any intention to object.

I have also studied the affidavits in reply, from their content and the rest of the pleadings, there is no indication that the respondents have been prejudiced by the omission, in the Petition, to mention the case petitioner No. 2 **Leopold Twesigye** brings against the respondents. The error in the petition would never the less have been easily cured by an amendment. I shall therefore consider any objection abandoned.

There are however two other matters that have been touched on by the respondents in their submissions.

Firstly the petitioners are seeking an order for fresh party primaries. The submission of the respondent is that this prayer has been overtaken by events as the process of election by primaries has since closed and the Independent Electoral Commission has completed the nomination process. In essence the submission is that the application has been rendered moot and academic. The respondents rely on the case of **Eddie Kwizera Wa Gahungu Vs NRM &** **Anor HCCS 47/2015** where it was held citing the case of **Prof Ephraim Kamuntu Vs NRM Electoral Commission COA Election Petition No 45/2012** that where proceedings which were viable when instituted have by reason of subsequent events become inescapably doomed to fail, a Court of law may decline to determine the issues arising therefrom as they would have become lifeless, academic, speculative and moot.

The petitioners did not respond to this issue.

As it stands the Independent Electoral Commission has completed the nomination process for candidates. The 1st respondent already has its flag bearers nominated. This would render the petition moot at this stage.

Lastly it is the submission that the petitioners have not followed the procedure laid out for the challenge of Elections of the 1st respondent's office or flag bearers. Art 27G of the FDC Constitution provides for a National Election Tribunal. Parties aggrieved by the conduct of elections in the party should submit disputes to this organ for resolution.

I am aware of the unlimited jurisdiction of the High Court under Art 139 of **The Constitution of the Republic of Uganda**. In this country however, one is free to join any political party of one's choice or to remain independent. By joining a party, one signifies one's acceptance of its constitution, regulations and practices (see **Fox Odoi-Oywelowo Vs National Resistance Movement & Anor Constitutional Appln No 32/2015).** The 2nd petitioner is therefore bound by the legal regime of the 1st respondent and ought to have followed it. This meant submitting to the election dispute resolution mechanism set out in the FDC legal regime.

For this reason I am not persuaded by the petitioner's submission that it would not be prudent to file a petition with the same body that had conducted the elections of the FDC. The National Election Tribunal created under Art 27G of the FDC Constitution is a totally different body from the FDC election commission. As a member of the party the 2nd Petitioner has not followed the party procedure to resolve election disputes. He ought to have submitted his grievance to said tribunal.

For these reasons the 2nd Petitioners electoral claim is dismissed.

There shall be no order as to costs.

**.............................................**

**Michael Elubu Judge 12 Jan 2016**