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THE REPUBLIC

OF UGANDA

THE HIGH COURT OF UGANDA AT KAMPALA


(CIVIL DIVISIO

MISCELLANEOUS

1. HON. EDDIE KWIZERA


2. BARIHIMA

CAUSE NO 25 Of 2016

WA GAHUNGU

HAHAKWIHA

MATHIAS::::::::::::::::::::::::::::::::

APPLICANTS.

VERSUS
1. ELECTORAL

COMMISSION

2. ENG. DR. BADRU KIGUNDU


3. NATIONAL

RESISTANCE

MOVEMENT

4. NSABA BUTURO:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::

BEFORE:

RESPONDENTS.

LADY JUSTICE LYDIA MUGAMBE

RULING

a) Introduction

and Background

1. This is a ruling on an application by notice of motion for a multitude of judicial review


remedies under the Judicature Act Cap 13, the Civil Procedure Act Cap 71, the Judicature
(Judicial Review) Rules S.I
the Parliamentary

o. 1112009 and the Civil Procedure Rules, for violations of

Electoral laws and the Constitution.

The Applicants brought this

application against the 1st and 2nd Respondents. The 3rd and
added as Respondents vide Miscellaneous
as such.

Application

4th

Respondents applied to be

No. 83 of 2016 and were added

2. The Applicants seek:


a) An

order of certiorari calling for and quashing the 2nd Respondent's

Kampala on

is" February

decision in

2016 and communicated on 22nd February 2016 purporting

to suspend an already concluded electoral exercise for Member of Parliament for


Bufumbira East Constituency.
b) An order of mandamus compelling the 1st Respondent to announce and gazette the
results for the said Bufumbira East Constituency Member of Parliament elections of
18th February 2016.
c) An order of prohibition restraining the 1st Respondent from conducting any other
elections for Bufumbira East Constituency Member of Parliament unless the elections
of February

is" 2016

d) A declaratory

are first set aside by a competent Court oflaw.

order to the effect that the impugned decision of the 1st and 2nd

Respondents dated 18th February 2016 could not have had the effect of setting aside
and/or

causing

the suspension

of the electoral

exercise

of Bufumbira

East

Constituency that had already taken place on 18th February 2016 to finality.
e) A declaratory order to the effect that the second Respondent usurped the powers of
the first Respondent

and as a consequence,

the impugned decision of the 1st

Respondent is in fact the decision of the 2nd Respondent in his personal stead and is to
that extent illegal, irregular, full of malafide and void ab initio.
f) A declaratory order to the effect that the purported decision to suspend elections of
Bufumbira East Constituency was premised on a fake, shady, corrupt and fraudulent
excuse, to wit; that the party symbol of one of the candidates had not been included
during the printing of ballot papers, whereas not.
g) A declaratory

order

to the effect that the impugned

decision
nd

unreasonable, illegal and ultra vires the powers of the 1st and 2

is arbitrary,

Respondents in so

far as no pre-polling complaint had been made to the 1st Respondent to warrant the
hearing and determination

of the same in accordance

with Article 61 of the

Constitution and Section 15 of the Electoral Commission Act Cap 140.


h) A declaratory order that the only circumstance under which the 1st Respondent can
issue a decision such as the impugned one is only as provided for under Article 61 of
the Constitution and Section 15 of the Electoral Commission Act.
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i)

A declaratory order that the 2nd Respondent is not legally authorized to exercise any
power affecting the road map of an electoral exercise and or suspending it except only
subject to the 151 Respondent holding a meeting and reaching a consensus to the
effect, which ritual was not adhered to in this particular case.

j)

A declaratory order to the effect that in the conduct of a parliamentary election there
can only be a second nomination in a by-election.

k) An injunctive order restraining the 151 Respondent from carrying out the threatened
arbitrary electoral exercise communicated in its impugned decision.
1) An order of mandamus compelling the

15t

Respondent to announce the winner in the

parliamentary election for Bufumbira East Constituency of February 18th 2016.


m) General damages.

3. The application

is supported

by affidavits

of Eddie

Kwizera

Wa-Gahungu,

the

I "Applicant who contested as a Member of Parliament in Bufumbira East Constituency


in Kisoro Electoral district and Sibomana Ivan who was a polling assistant at Kabami
Primary School polling station, in the same electoral district during the presidential and
parliamentary elections of

is" February

2016.

4. The Respondents oppose the application through the affidavits of James. S. Mukasa, the
3rd Respondent's

Director for Legal Services and the 2nd Respondent

who is the

Chairperson of the 151 Respondent. The Applicants are represented by Mr. Kanduho
Frank of Mis. Kanduho and Company Advocates. The 151 and 2nd Respondents are
represented by Mr. Lugolobi Hamidu of the Legal Department of the 15t Respondent
while the 3rd and

4th

Respondents are represented by Mr. Idoot Augustine of Kampala

Associated Advocates.

5. The background of this application is that sometime in 2015, the 151 Applicant and the

4th

Respondent contested in the NRM primaries for NRM flag bearer. The 15t Applicant lost.
The

4th

Respondent won and was presented by the 3rd Respondent to the

15t

Respondent

as its party sponsored candidatelflag bearer for Bufumbira East Constituency for the
position of Member of Parliament in the 2016 general elections.
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6. Vide Civil Suit 47 of 2015 in the High Court of Uganda at Kabale, the 1st Applicant
challenged the results of these primaries. On 2nd December, 2015 through Miscellaneous
Application No. 79 of 2015, the 1st Respondent obtained an interim order barring the 4th
Respondent from being nominated as the 3rd Respondent's flag bearer till the disposal of
Civil Suit No. 47 of 2015. On 21 st December 2015, in final disposal of Civil Suit No. 47
of 2015 the 1st Applicant's suit was dismissed and the interim order vacated. The 3rd and
4th Respondents subsequently obtained a consequential order vide Kabale High Court
Miscellaneous Cause No. 01 of 2016 on 14th January 2016 wherein the 1st Respondent
was compelled to nominate the 4th Respondent as NRM flag bearer for Bufumbira East
Constituency Member of Parliament.

7. The elections took place as scheduled on February


Constituency
However,

as part of the country wide presidential

the I" Respondent

Constituency

because

suspended

of the non-inclusion

is"

2016

for Bufumbira East

and parliamentary

the electoral process

elections.

in Bufumbira

East

of the yellow Bus symbol for the 4th

Respondent the party sponsored candidate on the ballot papers. For clarity, the yellow
Bus symbol was the 3rd Respondent's symbol in the elections.

8. Following this suspension, the Applicants brought this judicial review application. They
contend that the 1st Respondent received no complaint whether before or during the
polling exercise on which it based its decision to suspend the parliamentary elections of
February

is" 2016

in Bufumbira East Constituency. The Applicants also contend that the

2nd Respondent by himself usurped the powers of the 1st Respondent and purported to
bind the latter in his decision of February 18th 2016 in which the l " Respondent had no
input, permissible

in law

and thus arbitrarily suspended the electoral exercise of

Bufumbira East Constituency when the same had already been concluded with the excuse
that an unknown candidate's party symbol was missing on the ballot paper whereas in
fact it was the 2nd Applicant who was the only party sponsored candidate for FDC and
whose symbol featured on the ballot paper. The Applicants contend that the impugned
decision is arbitrary, illegal, irregular, skewed and ultra vires.
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b) Resolution
9.

Counsel raised several preliminary objections. Mr. Kanduho for the Applicants raised a
preliminary point of law on the admissibility of the affidavit of the 2nd Respondent in
particular when and where it was commissioned. He asserted that the affidavit is dated

ih

March 2016 yet was handed over to him at 11:30 am on 8th March 2016 with an apology
from Mr. Lugolobi that he was unable to file and serve by 10:00 am as Court had
directed, implying that the affidavit was never deponed on

ih

March but on 8th March.

He therefore asserted that it couldn't be true that the 2nd Respondent appeared before a
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Commissioner for Oaths on 7 March to administer the oath. He prayed that the affidavit
be expunged from the record. In his submissions, Mr. Kanduho also took issue with the
reference to the 1st Respondent as the "independent Electoral Commission" in Kabale
Court.

10. The second preliminary objection from Mr. Kanduho was in regard to the affidavit of the
3rd and

4th

Respondents. He contended that Mr. Sebugenyi the deponent of the affidavit in

issue deponed as Director of Legal Services of the 3rd Respondent and asserted that the
4th

Respondent could not rely on the affidavit of the Attorney of the 3rd Respondent. He

therefore prayed that the affidavit be treated as that of the 3rd Respondent only and the

4th

Respondent's right of audience be dispensed with as he had no affidavit.

11. Mr. Idoot for the 3rd and

4th

Respondents also raised a preliminary objection that this

application for judicial review had been brought prematurely. He contended that judicial
review cannot stand if there are other alternative remedies citing Section 15 of the
Electoral Commission

Act and Article 61 (f) of the Constitution which provide for

alternative remedies for an aggrieved party like the Applicants. He also raised another
preliminary objection contending that the procedure adopted to come before Court in
relation to an electoral matter arising out of the electoral process is not available to the
Applicant. He submitted that our laws provide for specific procedures for an aggrieved
party during the electoral process and not judicial review.

12. I have read all the pleadings and submissions of Counsel. I will address the preliminary
objections first starting with the one whether judicial review is the right procedure in this
case.

13. It is not in dispute that the Electoral Commission Act, the Parliamentary Elections Act
and the Constitution are the applicable laws in this application. All parties rely on them.

14. It is also clearly demonstrated that when the Electoral Commission or the 2nd Respondent
took the decision suspending polling activities in Bufumbira East Constituency, the
Applicants were disgruntled. The Applicants were not convinced, I take it, with the
reasoning that the suspension was for non inclusion of the NRM party symbol for the
NRM candidate-the

4th

Respondent on the ballot papers. The

4th

Respondent appeared on

the ballot papers with the bicycle symbol, which is different from the NRM yellow bus
symbol.

15. Article 61 (1) (f) of the Constitution empowers the Electoral Commission to hear and
determine election complaints before and during polling. Section 15 (1) of the Electoral
Commission Act derives from Article 61 of the Constitution and is more specific. It
provides that a complaint regarding any aspect of the electoral process at any stage if not
satisfactorily determined at a lower level of authority, shall be examined and decided by
the Commission.

16. Section 15 (2) provides that an appeal against the decision of the Electoral Commission
shall lie to the High Court. Under Section 15 (3), such appeal shall be by way of a
petition. In the circumstances of this case, no winner of the election had been announced
yet, the polling or election process was still ongoing when the suspension was effected.
The Applicants therefore had the remedy of lodging in writing their complaint with the 15t
Respondent.

17. I am persuaded by the Kenyan case of Bernard Mulage v. Fineserve Africa Limited &
3 ors. Petition No. 503 of 2014 where it was held inter alia that:

"There is now a chain of authorities from the High Court and the Court of
Appeal that where a Statute has provided a remedy to a party, this court
must exercise restraint and first give an opportunity to the relevant bodies
or state organs to deal with the dispute as provided in the relevant statute.
This principle was well articulated by the Court of Appeal in Speaker of
National Assembly v. Ngenga Karume [2008] 1 KLR 425 where it was
held that: "In our view there is merit. ..... that where there is clear
procedure for the redress of any particular grievance prescribed by the
constitution or an Act of Parliament, that procedure should be strictly
followed".

18. Not only did the Applicants not lodge the complaint under Section 15(1) of the Electoral
Commission

Act or file a petition under Section 15 (2), they also failed, in their

application before me, to demonstrate any exceptional circumstances to warrant their


resort to the High Court directly.

19. I have, in the interest of justice, considered as exceptional circumstances the fact that the
Electoral Commission to which the complaint is to be lodged under Section 15 (1) has
already taken the decision to suspend the election as a basis to warrant the consideration
of this application by this Court.

20. To this end, the existence of Annexures B, C and D to Mr. Sebugenyi's affidavit as the
ruling and orders of the High Court in Kabale is not disputed by the parties and more
important by the Kabale High Court which issued them. I have no reason to disbelieve
that they are true ruling and orders of the Court.

21. Having heard explanations


Electoral Commission

from Mr. Idoot that the reference to the "Independent"

in Annexure D is in fact an erroneous reference to the 1st


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Respondent who was served and competently attended Court and the l " Respondent also
confirms this to me, I am satisfied that the erroneous inclusion of "independent" in the
name did not prejudice any party. Secondly and more important, I am satisfied that the
suspension in issue on polling day was rational, reasonable and justified to the extent that
Mr. Nsaba Buturo who the Electoral Commission had been directed by Court to nominate
as flag bearer of NRM was not included in the ballot paper as such. The bicycle symbol
which he was included with was not representative of the NRM party that he stood for in
the said election.

22. This suspension was particularly relevant because the inclusion of Mr. Nsaba Buturo as
an independent candidate as earlier nominated was in contravention of the Court order in
Annexure D and also would discriminate and prejudice him when compared to other
NRM candidates who had benefited from the NRM symbol of the yellow bus in the
parliamentary and other elections.

23. Moreover, the suspension by the Electoral Commission was well within the wide ambit
of Section 50 (l) of the Electoral Commission Act. It was therefore legal. I

24. In the circumstances of this case, I find that judicial review was not the correct procedure
because the substance of the application is addressing more the basis or lack there of the
suspension of the election than the process leading to the suspension decision. In Kuluo
Joseph Andrew & Ors v. Attorney General & Ors, Misc. Cause No. 106 of 2010,
1 Section

50(1) of the Electoral Commission Act provides that; "Where, during the course of an election, it appears

to the commission that by reason of any mistake, miscalculation, emergency or unusual or unforeseen circumstances
any of the provisions of this Act or any law relating to the election, other than the Constitution, does not accord with
the exigencies of the situation, the commission may, by particular or general instructions, extend the time for doing
any act, increase the number of election officers or polling stations or otherwise adapt any of those provisions as
may be required to achieve the purposes of this Act or that law to such extent as the commission considers necessary
to meet the exigencies of the situation."
(2) "For the avoidance of doubt, this section applies to the whole electoral process, including all steps taken for the
purposes of the election and includes nomination."

Court explained that "judicial review is concerned not with the decision per se but the
decision making process. It involves an assessment of the manner in which a decision is
made. It is not an appeal and the jurisdiction is exercised in a supervisory manner, not to
vindicate rights as such, but to ensure that public powers are exercised in accordance with
basic standards of legality, fairness and rationality."

25. It is also not the right procedure for addressing challenges arising out of the electoral
process where specific, detailed and well laid out procedures for challenging the same are
provided. I agree with the Court in Kones v. Republic ex parte Kimani wa Wanyoike
[2006] 2 EA 158 where regarding the election process, it explained that:

"The procedure of judicial review, like that of a plaint or any such like
procedure is and was not available to the parties aggrieved by the acts or
omissions of the commission.
outcome

The only valid way of challenging the

of the electoral process,

and for that purpose

nominating

members of the National Assembly, as part of the electoral process, is


through an election petition as provided in the Constitution

and the

National Assembly and Presidential Elections Act"

26. It is apparent to me that the Applicants are trying to file an election petition disguised as a
judicial review application. Probably, their purpose is to obtain interim orders halting the
parliamentary elections rescheduled for tomorrow in Bufumbira East Constituency. This
short gun approach is unacceptable in my view.

27. Based on all the above, I am disinclined to allow the application, nor consider any other
issues raised in the substantive judicial review application or the other preliminary
objections. The application is dismissed.

28. To avoid acrimony between the Applicants and Respondents each party shall bear its own
costs.

I so order

L~AMBE
JUDGE

Judgment delivered in the presence of:


Eddie Kwizera, the 1st Applicant
Frank Kanduho, Counsel for the Applicants
Lugolobi Hamidu, Counsel for the 1st and 2nd Respondents
Idoot Augustine, Counsel for the 3rd and

4th

Respondents

Nabatanzi Florence, Court clerk

LYDIA MUGAMBE
JUDGE
8/03/2016

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