Dhabasadha v Balaba and Anor (Election Petition No. 1 of 2016) [2016] UGHCEP 5 (1 March 2016)

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT JINJA

ELECTION PETITION NO. 01 OF 2016

IN THE MATTER OF SECTION 15 (2) & (3) OF THE ELECTORAL COMMISSIONS ACT CAP, 140

AND

IN THE MATTER OF THE LOCAL GOVERNMENT ACT, CAP 243

AND

IN THE MATTER OF A PETITION (BY WAY OF APPEAL) CHALLENGING THE DECISION OF THE ELECTORAL COMMISSION CONFIRMING THE NOMINATION OF BALABA DAVID AS MAYOR OF IGANGA MUNICIPAL COUNCIL

DHABASADHA ASUMAN PETITIONER

VERSUS

1. BALABA DAVID

2. THE INDEPENDENT ELECTORAL COMMISSION RESPONDENTS

BEFORE: - HON. LADY JUSTICE P. BASAZA WASSWA

RULING

1. The Petitioner filed this petition by way of appeal under section 15 of the Electoral Commission Act, Cap 140 against the decision of the 2^nd Respondent made on 2^nd February, 2016 (hereafter referred to as “the impugned decision”) by which the 2^nd Respondent

upheld the Returning Officer’s nomination of the 1^st Respondent as a candidate for the Mayoral Seat (Chairperson LC IV) of Iganga Municipal Council. (Hereafter referred to as “the contested seat”).

Background

2. The Petitioner and the 1^st Respondent are candidates for the contested seat of Iganga Municipal Council. The 1^st Respondent was working as a teacher at St. John SS Buwaya in Mayuge District, a Government sponsored school. He resigned from the service of Government and was nominated on 17^th November, 2015 as a candidate for the contested seat.

The Petitioner lodged a complaint dated 15^th January, 2016 with the 2^nd Respondent challenging the nomination of the 1^st Respondent on the ground that the 1^st Respondent did not resign from office in accordance with the law. Upon consideration of the Petitioner’s complaint, the 2^nd Respondent made the impugned decision to the effect that the nomination of the 1^st Respondent complied with section 116 (5) of the Local Government Act, Cap 243 (as amended).

3. The Petitioner’s ground of appeal for his Petition to this court is that the impugned

decision of the 2^nd Respondent was illegal in that the 1^st Respondent’s nomination did not comply with the period stipulated under the law. He contended that the 1^st Respondent resigned on 31^st August, 2015, seventy seven (77) days before his nomination on 17^th November, 2015 contrary to the required ninety (90) days stipulated under section 4 (4) of the Parliamentary Elections Act, 2005.

4. The 1^st Respondent filed a reply to the Petitioner’s Petition contending that he resigned on 22^nd May, 2015 and that the impugned decision of the 2^nd Respondent was correct and in accordance with the law.

5. The 2^nd Respondent contended in an affidavit in reply sworn by its legal officer; a one Hamidu Lugoloobi; that the impugned decision of the 2^nd Respondent in upholding the decision of the Returning Officer in nominating the 1^st Respondent was in accordance with the law.

6. The Petitioner and the 1^st Respondent filed a joint scheduling memorandum and agreed on the following issues for this Court’s determination;

1. Whether the 1^st Respondent resigned within the stipulated time before his nomination?

2. Whether the 2^nd Respondent was justified to validate the nomination of the 1^st Respondent?

3. What remedies are available to the Parties?

7. All the parties filed written submissions. The Petitioner was represented Mr. Mudioble Abed Nasser and Ms. Mutumba Bena of M/s Ambrose Tebyasa & Co. Advocates, the 1^st Respondent was represented by Mr. Sseryazi Benon of M/s Sseryazi, Mugabi & Co. Advocates and the 2^nd Respondent was represented by its Electoral Commission Law Chambers.

Decision of this Court;

8. It is not in dispute that the Petitioner resigned from his teaching job with St. John SS Buwaya in Mayuge District, a Government sponsored school. What is in dispute is the effective date of resignation, and whether the effective date of resignation was within the period stipulated under the law.

I will begin by establishing the effective date of the 1^st Respondent’s resignation from the service of Government. Counsel for the Petitioner argued that the Ministry of Public Service having accepted the 1^st Respondent’s resignation effective, 31^st August, 2015, time begun to run on 1^st September, 2015. The 1st Respondent’s Counsel argued that acceptance of the 1^st Respondent’s resignation was on 7^th August, 2015 and even if the acceptance was effective 31^st August, 2015, the 1^st Respondent was nominated 77 days after his resignation. For the 2^nd Respondent it was argued that the 1^st Respondent indeed resigned 77 days before his nomination.

The law is clear on this point: Section A - n, paragraphs 10 & 11 of the Uganda Public Service Standing Orders, 2010 (Standing Orders, 2010) provide that a public Officer cannot remove himself or herself from the service by merely intimating that he or she wants to resign. A public officer must apply to Government by giving a notice of thirty (30) days, and shall not leave office until his or her application has been approved in writing indicating the date the officer may leave office. Pursuant to these paragraphs 10 & 11, the effective date the 1^st Respondent resigned was therefore 31^st August, 2015. The 1^st Respondent’s letter of resignation dated 22^nd May 2015 was merely an application to resign, and was not effective until it was approved by the letter approving his resignation that gave him an effective date of his resignation. For all intents and purposes, before 31^st August 2015 he was still an employee of Government.

Having established the date of resignation of the 1^st Respondent, I will now determine whether the 1^st Respondent’s resignation met the requirements of the law.

From the onset I find that the law relied on by the Petitioner for his appeal is not applicable. His appeal is as such, misconceived. The Petitioner relies on section 4 (4) of the Parliamentary Elections Act, 2005 (PEA, 2005) and yet the PEA, 2005 is an Act for the provision of Parliamentary Elections and related matters. The Petitioner and the 1^st Respondent are not contesting for a Parliamentary seat but for a local Council Office; the Mayoral seat, Chairperson LC IV of Iganga Municipal Council. The applicable law is the

Local Government Act, Cap 243 as amended by the Local Government (Amendment)

(No. 2) Act, 2006.

Section 116 (5) of the Local Government Act (as amended) provides that:

“Under the multiparty political system, a public officer, a person employed in any Government department or agency of Government, an employee of a company in which Government has a controlling interest, who wishes to stand for elections to a local Council office shall resign his or her office at least thirty days before nomination day in accordance with the procedure of the service or employment to which he or she belongs” (Emphasis added)

The period required under the aforesaid law within which the 1^st Respondent had to resign is at least thirty (30) days and not ninety (90) days under the PEA, 2005 as contended by the Petitioner.

9. My conclusion is that the resignation of the 1^st Respondent on the effective date of 31^st August 2015 was well within the stipulated time of “at least thirty (30) days before his nomination on 17^th November, 2015 as a candidate for the contested seat. I therefore agree with the submissions of the Respondents that the impugned decision of the 2^nd Respondent was in accordance with the law. .

10. For these reasons, I uphold the 2^nd Respondent’s decision to validate the nomination of the 1^st Respondent as candidate for the Mayoral seat, Chairperson LC IV of Iganga Municipal Council. This Petition is accordingly dismissed with costs to the 1^st and 2^nd Respondents.

I so order,

P BASAZA WASSWA

JUDGE

01/03/2016