Museme Mudathir v Abiriga and Anor (Election Petition No. 3 of 2016) [2016] UGHCEP 15 (24 June 2016)

THE REPUBLIC OF UGANDA

IN THE HIGHCOURT OF UGANDA AT ARUA

ELECTION PETITION N0.003 OF 2016

MUSEME MUDATHIR BRUCE ::::::::::::::::::::::::::::::::::::PETITIONER

VERSES

ABIRIGA IBRAHIM.Y.A:::::::::::::::::::::::::::::::::::::::::::::::::1^ST RESPONDENT

ELECTORAL COMMISSION::::::::::::::::::::::::::::::::::::::::::::2^ND RESPONDENT

BEFORE: HON JUSTICE JOHN EUDES KEITIRIMA

JUDGMENT

This Petition was brought under Sections 60(2) (a), 61(a), (b), (c), (d), 68 & 98 of the Parliamentary Elections Act 2005 as amended; Rules 4&5 of the Parliamentary Elections (Elections Petitions) Rules S.1141-2.

The Petition is supported by the affidavit of the Petitioner who inter alia avers as follows:

1. That the Petitioner was a former candidate in the general National Parliamentary Elections held on 18^th February 2016 which were organized by the 2^nd Respondent.

2. 
   

   •l

   The 1^st Respondent had been disqualified for election as a Member of Parliament at the time of his election by the 2^nd Respondent on the premise that he lacked academic qualifications of advanced level standard or its equivalent to be a Member of Parliament.

3. The 1^st Respondent was unlawfully declared as elected Member of Parliament in as far as his name did not appear on any of the authentic declarations of results forms.

4. The 1^st Respondent in connivance with the 2^nd Respondent initiated and forged parallel declaration forms where the 1^st Respondent's name appeared and as a result the 1^st Respondent was declared as the elected Member of Parliament based on unauthorized and illegitimate declaration forms.-

5. That the Respondents jointly and severally blatantly failed, refused, neglected or ignored compliance with the provisions and Principles of The Parliamentary Elections Act 2005 as amended and as such the elections were not free and fair in as far as non-compliance affected the results of the election in a substantial manner.

The impugned declaration forms are attached to the affidavit of the Petitioner in support of the Petition and marked as Annexture D.

The Petitioner prays for the following remedies:

1. A declaration that the 1^st Respondent was wrongly and unlawfully declared the elected Member of Parliament for Arua Municipality.

2. A declaration that the Petitioner was the duly elected Member of Parliament for Arua Municipality.

3. Any other remedy as this Court deems fit.

In answer to the Petition the 1^st Respondent in his affidavit in support to his answer avers inter alia that:

1. The Petitioner has no cause of action as the 1^st Respondent's nomination and subsequent election were lawful and done in accordance with the electoral laws of Uganda.

2. The 1^st Respondent submitted his campaign program which was duly harmonized with all the other contestants and the 1^st Respondent actively campaigned and participated in the campaign process together with other contestants including the Petitioner.

3. That at the time of the election on 18^th February 2016 the 1^st Respondent was qualified to be elected Member of Parliament for Arua Municipality.

IV.That his declaration as a Member of Parliament was done in accordance with the law and at all material times were not based on unauthorized and /or illegitimate declaration forms as alleged.

V.That on the 18^th February 2016 (Election Day) he discovered that his name was missing on some declaration forms which was immediately rectified by the 2^nd Respondent.

VII.That the correction of the defective Declaration Forms did not affect the result in any way.

VIII.That the 1^st Respondent's name appeared on the ballot paper for Arua Municipality Parliamentary seat.

That the Petitioner is not entitled to the reliefs sought.

The 2^nd Respondent's answer to the Petition is supported by the affidavit of the Chairman of the 2^nd Respondent who inter alia avers that:

1. The electoral process in Arua Municipality was conducted fairly and legally in compliance with the provisions of the Laws of Uganda.

2. The 1^st Respondent was reinstated as a candidate for Arua Municipality constituency pursuant to various court orders.

3. The 1^st Respondent was declared as winner in accordance with the law and the wish of the voters of Arua Municipality constituency.

4. The 2^nd Respondent denies any allegation of forgery of Declaration of Results Forms and contends that the Declaration of Results Forms were issued in accordance with the requirements for conducting elections and specifically in circumstances of the 1^st Respondent having been restored as a candidate for Arua Municipality constituency.

5. The 2^ND Respondent did not influence the voters of Arua Municipality constituency to vote for the 1^st Respondent.

6. The Petitioner's loss to the 1^st Respondent does not imply non- compliance with the electoral principles enshrined in the Laws of Uganda.

7. The 2^nd Respondent contends in the alternative that if there were any irregularities or non-compliance with the electoral laws, such non-compliance or irregularities did not affect the outcome of the election in a substantial manner.

8. The 2^nd Respondent admits no liability of any kind and that the reliefs sought by the Petitioner are disputed as having no merit.

Earlier on when this Petition was first brought for hearing, Counsel for the 2 Respondent raised a preliminary objection and this court ruled that the matter was res-judicata in so far as it sought declarations regarding the 1^st Respondent's academic qualifications. The detail of that ruling is on record.

At the scheduling conference the issue framed for determination was whether the 1^st Respondent did not appear on any of the authentic declaration of results forms and whether that affected the results of the election in a substantial way.

The other issue to determine is the remedies available depending on how the above issue is resolved.

It was also agreed that written submissions be filed within the time frames that were given by Court. The parties complied and filed written submissions within the time frame agreed. The details of the submissions are on record and which I have used to determine this Petition.

It was the Petitioner's contention that whereas the fresh Declaration of Results Forms was authorized by the 2^nd Respondent's Chairman, the same were illegal, invalid, null and void abinitio in as far as they, were generated by unknown sources endorsed by the 2^nd Respondent. That this was in breach of the cardinal obligations of impartiality and ensuring a free and fair election to the detriment of the electorate and the candidates save for the first Respondent. The Petitioner also contends that this conduct amounted to non-compliance with the provisions of the electoral laws of the land and the result of the election was therefore affected in a substantial manner.

The Petitioner submitted that according to Article 61(1) of the Constitution and Section 12(1) of the Electoral Commission Act Cap 140 the 2^nd Respondent has the sole mandate of organizing and conducting national elections in Uganda as well as to print and design electoral materials. That however for furtherance of its functions, the Commission may assign some responsibilities to any person, institution or organization. See Section 14 of the Electoral Commission Act Cap 140. The Petitioner also submitted that Section 28 and 29 of the Parliamentary Elections Act 2005 as amended provides that voting materials ought to be capable of being distributed by the Returning Officers to the Presiding Officers within 48 hours from the Polling day and that a list of names of the candidates as well as polling stations shall be published in the gazette for verification purposes.

The Petitioner contended that the 2^nd Respondent carried out its mandate and

designed special Declaration of Results Forms for the national elections held on

18^TH February 2016. That the said forms essentially conformed to the forms prescribed by law as it had special features to enable the Returning Officer to transmit the Results to the 2^nd Respondent's Head Quarter at Kampala. That these special features mainly include serial numbers and bar codes. That it was evident that up to the polling day no complaint was ever made as to the propriety of the voting materials and that it was on the polling day when it was realized that the 1^st Respondent's name was inadvertently missing on the Declaration of Results Forms distributed by the Returning Officer of Arua District. That the Chairperson of the 2^ND Respondent then immediately directed the printing of generic Declaration of Results Forms with the 1^st Respondent's name and ordered that they be provided to the Returning Officer, Arua District.

It is the Petitioner's contention that the generic Declaration of Results Forms printed with the 1^st Respondent's name were illegal, null and void abinitio. That the Chairperson of the 2^nd Respondent does not disclose the form and means of the directive and that it is not known whether the said directive was an assignment in accordance with the provisions of Section 14 of the ECA or a realization of an anomaly under Section 50 of the ECA. That the recipient of the directive is not disclosed and no candidate was notified of this directive and the implementations thereof save for the 1^st Respondent. It is the Petitioner's

contention that this directive was in blatant and fundamental breach of the principles of impartiality and the Commission's obligation to ensure that the election was conducted in a free and fair environment. The Petitioner refers to Article 61 (a) of the Constitution and Section 12 (1) (e) of the ECA to buttress his submission. The Petitioner emphasizes that this was a glaring case of partiality by the 2^nd Respondent in as far as the intention was to solely ensure that the 1^st Respondent wins the election. That it was not farfetched to infer that these generic Declaration of Results Forms were actually provided by the 1^st Respondent who was the aggrieved party at the time and thereafter and that the Chairman of the 2^nd Respondent endorsed them. The Petitioner cited the case of Hon. Oboth Jacob versus Dr. Otiam Otaala Emmanuel C.A Election Petition No.38 of 2011 which held on the concept of a free and fair election.

The Petitioner emphasized that the 2^nd Respondent cannot invoke Section 50 of the ECA because the same does not provide a license to override the principles of impartiality as well as free and fairness of an election. The Petitioner cited the case of Joy Kabatsi Kafura versus Anifa Kawooya Bangirana & Electoral Commission S.C. Election Petition Appeal No. 25 Of 2007 to support his submission.

The Petitioner further submitted that nothing can become of an illegality. That the generic Declaration of Results Forms were fundamentally flawed in as far as they were introduced to the Presiding Officers at 5:30 PM and hence disrupting the voting and counting of votes exercise that was already proceeding at the time. That this went to the root of the election in as far as there was inevitable distortion of the results already counted and declared at some polling stations. The Petitioner referred to paragraph 8 of the affidavit of Droti Dennis Felix. That the original Declaration of Results Forms were never withdrawn and the presiding officers were faced with the dilemma of distorting the Declaration of Results Forms by writing the 1^st Respondent's name and votes in ink. That therefore the disparities of what the Declaration of Results Forms were actually used to tally the results of the election cannot be trivialized. That the 2^nd Respondent has never pronounced itself on how the results of the elections were transmitted to the National Tally Center at Namboole because it was obvious that the generic

Declaration of Results Forms could not be transmitted for lack of a serial number and bar code that was used on search forms nationwide. That the generic forms were also flawed in as far as they did not bear any indication of a polling station, parish or even sub-county as ought to be the case on genuine declaration of results forms. The Petitioner cited the case of Kakooza John Baptist versus Electoral Commission and Yiga Anthony-S.C Election Petition Appeal No.11 of 2007that held on the importance of Declaration of Results Forms.

The Petitioner submitted that the law relating to Declaration of Results Forms is couched in mandatory terms and as such requires strict compliance. The Petitioner further contended that some of the generic forms contain major flaws in the contents of the number of votes and the votes counted. The Petitioner cited several stations were this occurred and the disparities in the numbers. That under Section 45 of the PEA, this was a proper case where this election ought to have been postponed to rectify the details of the candidates on the Declaration of Results Forms.

The Petitioner concluded by praying that the Petition be allowed in the terms proposed.

The 1^st Respondent submitted that from the onset the Petitioner in his pleadings and evidence did not challenge the results on the impugned Declaration of Results Forms and that nor were they falsified. That it was not enough for the Petitioner to submit that the generic Declaration-of Results Forms were illegal. That the Petitioner should have stated the law under which the impugned declaration of results forms did not comply with. It was the 1^st Respondent's submission that the generic Declaration of Results Forms are authentic and are not illegal and /or void as submitted by the Petitioner. That the Declaration of Results Forms came from the Electoral Commission as indicated in the affidavit of its Chairman and that this was corroborated by the Petitioner's own witness Droti Dennis Felix the Presiding Officer in charge of Enyau cell polling station in Kenya ward.

The 1^st Respondent cited Section 6(1) (c) of the Parliamentary Elections Act 17 of 2005 as amended which provides for the Commission power to transmit to the

Returning Officers sufficient blank report books and other electronic materials. That the generic Declaration Forms were printed to address and correct an error, mistake and or an emergency.

The first Respondent cited Section 50 (1) and (2) of the Electoral Commission Act

Cap 140 which gives the 2^nd Respondent special powers in order to achieve the purposes of the Electoral Commission Act or any law, where in the course of an election it appears to the Commission that by reason of any mistake, miscalculation an emergency that any of the provisions of any law relating to elections other than the Constitution does not accord with exigencies of the situation to adapt any of the provisions to such extent as the Commission considers necessary to meet the exigencies of the situation. That therefore the generic forms were made in accordance with the law. That there was nothing illegal about writing of the 1^st Respondent's name and results in ink by the 2^na Respondent's presiding officers on the existing Declaration of Results Forms. The 1^st Respondent contends that this was only to ensure that the people of Arua Municipality are not disenfranchised. That the 2^nd Respondent also has the power to direct and assign any of its duties to any election officer Under Section 14(1) of the Electoral Commission Act Cap 140.

The 1^st Respondent further submitted that Article 68(4) of the Constitution provides for the essential requirements of the Declaration of Results Forms which are the signing by the Presiding Officer, polling agents, the name of the polling station, number of votes cast in favour of each candidate. Further, that the generic Declaration of Results Forms are lawful and authenticated by the fact that they were all signed by all the candidates polling agents without registering any complaints. That the effect of signing of a Declaration of Results Form has been a subject of litigation and court's adjudication in the case of Hon. Oboth Markson Jacob versus Dr. Otiam Otaala Emmanuel E.P APPEAL NO.38 OF 2011 where it was held that; ... "the DR Forms in question are signed by the respective station presiding officers as well as a set of two agents for the appellant and also for the respondent. It follows therefore that if any of those DR Forms were a forgery; then a party to the petition would straight away point out the forgery. None did so". ... "the presiding officer and the agents of the appellant and the respondent signed the respective DR Forms at each station, each agent keeping a copy of the form. There were no complaints raised to the returning officer before the announcement of the election. I conclude from all this that a proper election as is reflected in the Declaration of Results Forms from each of these polling stations did take place and that the results were valid."

The 1^st Respondent further submitted that use of a non-prescribed Declaration of Results Forms is not a ground for annulling an election under Section 61 of the Parliamentary Election Act 17 of 2005 as amended. That the Petitioner had to prove that non-compliance affected the result in a substantial manner. The 1^st Respondent cited the case of Sitenda Sebalu versus Sam Njuba & E.P APPEAL NO.l of 2008 to buttress his submission.

The 1^st Respondent contended that apart from Counsel's submissions from the bar, it is not the Petitioner's evidence that the results were falsified, the Petitioner simply complains that that the 1^st Respondent's name should not have been printed in ink on the original DR Forms and the new /generic DR Forms bearing the 1^st Respondent's name should not have been printed and used by the 2^nd Respondent. The 1^st Respondent also prayed that the Court should invoke Section 43 of the Interpretation Act Cap 3 which provides that a document shall not be rendered void for mere deviation from the prescribed form where the substance is not affected.

The 1^st Respondent concluded by submitting that the Petitioner had failed to discharge the burden of proving that the 1^st Respondent did not appear on any of the authentic DR Forms and if so whether non-compliance if any substantially affected the result. That instead it was the 1^st Respondent that had proved that he was duly elected as a Member of Parliament for Arua Municipality on authentic and lawful DR Forms and the non-compliance if any did not affect the election in a substantial manner. The 1^st Respondent further contends that the Petition is incompetent and should be dismissed wjth costs to the 1^st Respondent.

In their submission, the 2^nd Respondent stated that under Section 50 (1) of the Parliamentary Elections Act, a presiding officer is mandated to fill in the necessary number of copies of the prescribed form for the Declaration of Results.

Regulation 2 of the Parliamentary Elections (Interim Provisions) (Prescription of Forms) Regulations SI 141-3 and. schedule therein prescribes the format of a declaration of results form. The 2^nd Respondent contends that the generic Declaration of Results Forms, bearing the name of the 1^st Respondent and the Petitioner conform to that format as prescribed by the law. The 2^nd Respondent cited the case of Ngoma Ngime versus EC and Winnie Byanyima-C.A NO.11/02 where it was held inter alia that all the 66 declaration of results forms that court examined contained the essential information that the law requires and were accordingly found to be valid.

The 2^nd Respondent submits that in this case the Petitioner's only contention is that the forms did not bear the bar codes and serial numbers. That save for these, all information required was contained in the forms. That as per the format prescribes by the law, bar codes are a superfluous addition whose failure to appear is just a matter of appearance and does not render a declaration of results forms invalid. Further, that the Petitioner does not deny that the Declaration of Results Forms as having been signed by the respective returning officers and some of the agents of the candidates who signified that the contents therein are true. The 2^nd Respondent cited the case of Babu Edward Francis versus the EC AND Elias Lukwago HC E.P NO.10 OF 2006 Where Justice Stella Amoko as she then was held that "when an agent signs a DR Form, he is confirming the truth of what is contained in the DR Form. He is confirming to his Principal that this is the correct result of what transpired at the polling station. The candidate in particular is therefore stopped from challenging the contents of the form because he is the appointing authority of the agent."

The 2^nd Respondent further submitted that the minimum legal requirement for a declaration of result form is that it must be signed by the presiding officer in order to be used as a basis for declaring the results at every polling station. The failure to comply with any other of the requirements prescribed by the law does not invalidate the results which have been declared as validly obtained by each candidate. The 2^nd Respondent also cited a recent case of Toolit Simon Akecha versus Jacob Oulanya and the Electoral Commission -Election Appeal No. 19 of 2011 it was held that all the impugned declaration of results forms as attached to the affidavit of the Petitioner on which they were signed by the respective presiding officers was not denied, as such were valid and reflected the outcome of the election.

The 2^nd Respondent contends that the Petitioner does not dispute the results reflected in the DR Forms but only disputes the appearance. The 2^nd Respondent invited Court to disregard the difference in the structural/ornamental appearance of the declaration of result forms and come to the conclusion that whereas the declaration result forms were reprinted, the results contained therein indicate the will of the people of Arua Municipality.

With regard to the errors in the computation of results as reflected in the declaration of results forms, the 2^nd Respondent submitted that the errors cited were trivial and if corrected would not affect the outcome of the election. The 2^nd Respondent cited the case of Kizza Besigye versus Museveni E.P NO.l OF 2006 where the case of Morgan versus Simpson was cited with approval which held to the effect that elections must not be set aside on light of trivial grounds. It is a matter of great public interest. The 2^nd Respondent invited the Court to disregard the mistakes as trivial as they could not affect the outcome of the election.

The 2^nd Respondent further submitted that the Petitioner merely states that the generic declaration of results forms were used in declaring the winner of the election but does not dispute the results of each of the candidates polled at the respective polling stations. That each of the declaration of results forms show that the same were signed by each of the respective agents signifying acceptance of the results. The 2^nd Respondent cited the recent case of Amama Mbabazi versus Yoweri Museveni E.P NO.l of 2016 where Chief Justice Bart Katureebe held that "given the national character of the exercise where all voters in a country formed a single constituency, can it be said that the proven defects so seriously affected the result that the result could no longer reasonably be said to represent the true will of the majority of the voters?".The 2^nd respondent concluded by praying that the petition should be dismissed with costs.