THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE
ELECTION PETITION NO. 0017/2016
MAGOMBE VINCENT:::::::::::::::::;::::::::;;::::::::::::::::; PETITIONER
- THE ELECTORAL COMMISSION
- MUJASI MASARA BERNARD £LLY:::::::::::;::::::::::::RESP0NDENTS
BEFORE: HON. LADY JUSTICE MARGARET C. OGULI OUMO
The Petitioner brought this petition challenging the outcome of the election conducted by the 1st Respondent on the 24th day of February 2016 for the post of Mbale District Local Council 5 Chairperson.
The background of this petition is that the 1st Respondent he'd elections for the post of Mbale District Local Council 5 Chairperson on the 24ltl day of February 2016 in which the Petitioner and the 2nd Respondent vied.
The 2nd Respondent was declared winner with 41,659 votes against the Petitioner's 38, 710 votes.
The Petitioner having contested and lost in the said election, being aggrieved by the nomination, election and declaration of the 2nd Respondent as the winning candidate for the Mbale District Local Council 5 chairperson, by the 1st Respondent, filed this petition, seeking for nullification of the results of the election and or setting aside the election of the 2nd Respondent on the following grounds ;
- That the election was not conducted in accordance with the various laws and principles governing elections ,
- That the nomination of the 2nd Respondent by the 1st Respondent to vie in the Mbale district Local Council 5 elections was illegal, unlawful, null and void abinitio; and
- That the failure to comply with the Electoral Law affected the results of the election in a substantial manner.
The petition was supported by an affidavit deponed by the Petitioner dated 3rdMarch 2016.
The 1st Respondent denies the allegations in the petition in their answer to the petition and affidavit in support , deponed by Mr. Musinguzi Rashid, the Returning officer , Mbale District, dated 8th May 2016 and the
The 2nd Respondent also denies the said allegations in his answer to the petition accompanied by an affidavit deponed by himself dated 13th May 2016.
During Scheduling, the following issues were agreed upon for court's determination:-
- Whether the 2nd Respondent was at the time of his election qualified for election as Mbale District Local Council 5 Chairperson?
- Whether there was failure to conduct election in accordance with the Electoral laws and that noncompliance and failure affected the result of the election in a substantial manner?
- Whether there is another person other than the one elected who won the elections?
- What remedies are available?
At the hearing of the petition the Petitioner was represented by Mr. Mutembuli Yusuf together with Mr. Nabbende Isaac and Mr. Ssebalu Duncan while Mr. Joseph Kyazze together with Mr. Nasser Sserunjoji represented the 1st Respondent and Mr. Mugogo Edward together with Musamali Martin, represented the 2nd Respondent.
Both counsel filed written submission which I shall refer to in my judgment.
Issue No. l. Whether the 2nd Respondent was at the time of his election qualified for election as the Mbale District Local Council 5 Chairperson?
Counsel Mutembuli submitted that the qualifications or disqualification of the 2nd Respondent under the law are derived from two facts; that is
- That the 2nd Respondent submitted invalid, incompetent, unsupported and or incomplete nomination papers to support his nomination.
- The fact that he lacked the necessary prerequisite academic qualifications to support his nomination or participation in the election of the Mbale District Council 5 Chairperson.
Counsel argued that it was averred by the Petitioner at paragraph 4 of his affidavit in support of the petition that the 2nd Respondent never submitted complete and or valid nomination papers to support his nomination.
That according to sub section 4 (e) of section 111 of the Local Government Act, Cap 243, it is explicitly provided that ,a person shall not qualify for election as a Chairperson in a Municipality, Town Division or Sub County , unless that person has submitted to the Returning Officer of the District or a Public Officer designated by him or her for that purpose on or before the nomination day a document referred to as nomination paper in form EC 1 specified in the seventh Schedule of the Local Governments Act Cap 243 which document is signed by two persons nominating him or her as a candidate.
He submitted further that under subsection 7 of the same Local Government Act, the nomination paper referred to above shall among others be accompanied by a declaration form 'EC 2 and a declaration of income, assets and liabilities in form of 'EC 3'.
Counsel submitted that in the instant circumstances, the uncontroverted evidence of the Petitioner at paragraph 4 of his affidavit in support of the petition is that the name born upon the said form EC 1 as the name of the nominated candidate is Mujasi Masaba Bernard Elly. That it is the said person that was nominated.
That however, the accompanying documents, particularly Form 'EC2', the declaration of the person seeking nomination, was deponed by Bernard E. M.Mujasi and Form EC3 the declaration of income, assets and liabilities was executed by Bernard E.M Mujasi who is not the 2nd Respondent, Mujasi Masaba Bernard Elly.
Counsel submitted also that the form 'EC5', the appointment of an official agent was executed by Bernard E.M. Mujasi , and it is the same person who is the proposed candidate.
Counsel argued that the afore evidence of the Petitioner is concretized by the certified copies of the forms EC1, EC2, EC3 &EC5, the proposed candidate's form and the Oath authenticating statement submitted into court as annexures 'A' - 'F' respectively.
Counsel submitted that the 2ndRespondent lacked or did not have at the time of his nomination the necessary academic qualifications or its equivalent.
Counsel submitted that the law determining the prerequisite academic qualifications for one to contest in a Local Council Chairperson election is explicitly provided in the Local Governments Act Cap 243 where according to subsection (3) of S 111 of the Local Government Act, it is provided that a person shall not qualify for election as a Chairperson of the District or city unless among other restrictions, he or she has attained and/or completed a minimum education of Advanced Level Standard or its equivalent.
Mr. Mutembuli submitted that the uncontroverted evidence of the Petitioner on court record is to the effect that the 2nd Respondent at the time of his nomination lacked and /or had not completed a minimum education of Advanced Level Standard , neither did he hold any such equivalent qualifications which is a prerequisite for one to qualify to contest in an election of a District Chairperson.
Counsel submitted that the Petitioner avers that the letter of verification submitted by the 2nd Respondent supporting his nomination bears the name Bernard E. W Mujasi- Masaba and not the 2nd Respondent's true name 'Mujasi Masaba Bernard Elly'.
That to substantiate his assertion, the petitioner adduced evidence in his affidavit in support of the petition a letter of verification of results issued by UNEB attached and marked as 'annexure G'.
Counsel then went on to state the law which provides for the procedure when a party wishes to change his names. He cited S 36 of the Registration of Persons Act 2015, which is in parimateria with formerly S 12 of the Birth and Death Registration Act. Cap. 309 which states as follows:
S.6 (1) " Any person being over the age of 18 years or a widow or widower, divorced or a married person who wishes to change his or her names shall cause to be published in the gazette a notice in the prescribed form of his or her intention to do so."
"Not less than seven (7) days after the publication of the notice, the person intending to change his or her name may apply in a prescribed form to the registration officer or the registration center in which his or her birth is registered."
"The registration officer shall upon being satisfied that the requirements of this section have been carried out and upon payment of the prescribed fee, amend the register accordingly and shall sign and date the amendment."
Counsel also submitted that the position of the law has been discussed by the courts in EP 15/2006 Serunjoji James Mukiibi Vs Lule Umar Mawiya at pg. 21, paragraph 10 where the Court of Appeal had this to say;
"The trial Judge was therefore right to reject the testimony of the appellant and those of his witnesses who claimed that they attended the same schools with him, the rejection was justified by evidence on record."
I would like to state that for a person who is an adult to effect change of his name he or she has to comply with the provisions of S 12 of the Birth and Deaths Registration Act Cap 309 Laws of Uganda." Which is paramaterial with Section 38 of the Registration of Persons Act 2015.
That the Judge went ahead to state that;
" There is no dispute that appellant did not comply with the above provisions. It goes without saying that he did not change his name legally and his attempt to do so through the Affidavit of 13th Jan. 2006, was in my view of no legal consequence. Considering the evidence as a whole, the Respondent proved on a balance of probability that the certificate the appellant relied upon for his nomination and subsequent election as a member of parliament did not belong to him. He therefore lacked the requisite academic qualifications to be nominated and to be elected as a Member of Parliament."
Counsel contended that the position of the law was confirmed by the Supreme Court in Civil Appeal (Election Petition) No. 6/2007 Sserunjoji Mukiibi Vs Lule Umar Mawiya where the Supreme court upheld the findings of both
the trial court and the Court of Appeal, that the appellant was not qualified for nomination as a Member of Parliament because he did not have the requisite academic qualifications. That the same position was repeated in Election Petition No. 8/2016 Ayena Odongo Crispus Charles Vs Okello P. Charles Engola Makodwogo & 4 ors and in Election Petition No. 20/2016 Alfred Muwanga Vs Ssembatya Edward Ndawula & Anor.
Counsel argued that there is no indication or suggestion whatsoever relating or implying that he difference in the names on the various documents referred to one and the same person. That there is no basis upon which the 1st Respondent could justify the nomination of Mujasi Masaba Bernard Elly, the 2nd Respondent yet all the supporting documents clearly referred to a completely a different person.
Counsel also cited the case of Abdul Balingura Nakendo Vs Patrick Mwondha Supreme Court Election Appeal No. 09/2007 where Justice Bart Katureebe held that;
" The duty to produce valid certificates to the Electoral Commission lies with the intending candidate for election. Where the authenticity of these certificates is questioned, it can only be his burden to show that he has authentic certificates."
Counsel cited the case of Babu Edward Francis Vs Electoral Commission & Anor. Election petition No. 10/2006 were lady Justice Arach Amoko stated that the provisions of Section 106 of the Evidence Act is an extension of sections 101 &
102 and treats the Respondent who is being challenged over a fact in his possession as the person asserting the truth of that fact and he has the duty to prove that fact to support his contentions.
Mr. Mutembuli submitted that the critical fact is whether the variations in the names of the 2nd Respondent on the nomination papers and the academic documents refer to one and the same person. That in the case of Rashid Bovule Iga and Manoa Achille Millo Vs Olega Asaf Noah and Anor, Election petition No. 102/2001, it was stated that once a prima facie case has been established by a petitioner the burden of proof automatically shifts to the Respondent. That in the instant circumstances, there is apparent variance in the names reflected in the nomination papers of the 2nd Respondent. That the risk of being repetitive, form EC2 being the declaration of a person seeking nomination bears the name Bernard E.M Mujasi. It is the same name that was entered on Form EC3, the declaration of income, assets and liabilities. Form EC5 the appointment of official agent and authenticating statements. That further the verification of results issued by UNEB submitted by the 2nd Respondent to support his nomination bears the names of the candidate as Bernard E. W. Mujasi- Masaba.
That the aforementioned evidence is admitted by both the Respondents. According to the affidavit of Musinguzi Rashid, deponed on the 18/05/2016 in support of the 1st Respondent's answer. He admits at paragraph 5 that it was true the 2nd Respondent only used initials of some of his names. That the 2Rd Respondent also admits in paragraph 4(iii) the variance of the names on the documents that he submitted. That further in paragraph 8 the 2nd Respondent admits the variance of the names on his academic documents and explains that the abbreviations E'&'W' are the abbreviations of his names 'Elly' and 'Wamimbi' respectively.
Counsel submitted that save for the unfounded explanations by the Respondent, there is no tangible evidence on the court record to confirm that the different names belong and refer to the same person of the 2nd Respondent. That even the 2nd Respondent's explanation is that the abbreviations were as a result of insufficient space in the nomination papers. That such an act is in violation of section 12 of the Parliamentary Elections Act, which provision stipulates that the nomination paper shall be invalid if there appears to be a major variation between the names of the person as it appears on the nomination paper and the voter's roll.
That the proceeding section mandates that in entering the name of the candidate on the nomination paper, the surname shall be recorded first followed by the other names and shall not include any title, degree or other prefix or suffix.
Counsel contended further that where there is not a deed poll, under the Registration of Person's Act, 2005 to the effect that Bernard E.W Mujasi Masaba changed his name to Mujasi Masaba Bernard Elly or a statutory declaration under the oath's Act to confirm that Bernard E.M Mujasi is the same person as Mujasi Masaba Bernard Elly, the 2nd Respondent or Bernard E.W Mujasi Masaba, the holder of the Higher school certificate and General certificate of education. That it cannot be legally acceptable or believable that the names belong to the same person or that documents bearing either of the names belong to the same person.
Counsel contended that any doubts about the academic competencies /qualifications of the 2nd Respondent allayed by the disparity in the Index Number U036/513 of the said Bernard E.W Mujasi. The Uganda National Examinations Board center number for Mbale Senior secondary school where the said Bernard E.W Mujasi Masaba alleges to have attained the higher school certificate and General Certificate of Education has no point in time had Uo36as its center number. That the position is confirmed by annexure 'G', a letter from Mbale senior secondary school confirming that their true UNEB center No. is U0051for the main center number and U1964 for its annexure center and not U036.
That by the same letter Annexure "Gl" Mbale Senior Secondary School, confirms that it could not trace the 2nd Respondent's academic qualifications in its record.
Counsel submitted that besides the variations in the names of the 2nd Respondent, the 2nd respondent submits a letter of verification in support of his nomination and it is that letter of verification that the 1st Respondent admits relying upon to nominate the 2nd Respondent. Counsel submitted that a letter of verification is not academic document as required under the law to support ones nomination. That the same position was reiterated by Lady Justice Margaret Mutonyi in HCT -03-CV Election petition No.
21/2016 Lugudde Katwe Elizabeth Vs The Returning officer, Buikwe district and 2 ors. At pg 6 to support his contention.
Counsel argued that the 2nd Respondent submitted incomplete and invalid nomination papers to support his nomination and the 2nd respondent was not qualified for nomination or participation in Mbale District Local Council 5 Chairperson Elections and his subsequent election and declaration as the dully elected LC 5 chairperson was therefore null and void abinitio. And that this Court too finds so.
With regard to issue No.l on qualifications the 1st Respondent contended that the Petitioner's contention that the 2nd Respondent submitted invalid , incompetent, unsupported, and incomplete nomination papers to support his nomination. That though the Petitioner relied on section 111(4) of the Local Government Act and sub section (7) the Petitioner however, does not contend that the 2nd Respondent never submitted the said nomination papers and the supporting documents.
Counsel submitted that the Petitioner's contention in essence relates to inconsistences on the variation in the 2nd Respondent's names on the submitted nomination documents vide EC1, EC2, EC3 & EC5 , he relied on the variations of the names in those documents. That the Petitioner has not cited any law for his conclusion that any change of arrangement of names , which all belong to the 2nd Respondent is a ground to invalidate the election. That the variations in the names is the ground for invalidating the nomination. That upon inspection of the nomination papers, the Petitioner never lodged a written complaint through the 1st Respondent regarding the nomination of the 2nd Respondent and further that the Petitioner did not adduce evidence to prove that there was another person going by said same names who submitted the said nomination documents other than the said 2nd Respondent as he conceded so in cross examination.
Counsel for the 1st Respondent contended that the Returning officer in re- examination confirmed to court that despite variations in arrangement of the names, the person
who was nominated was the 2nd Respondent, who he identified physically in court , so
the argument that the person nominated by the 1st Respondent was not the 2nd Respondent is devoid of merit. That in the absence of any evidence by the petitioner of any other person claiming the said set of names and claiming to have been nominated as such, other than the 2nd Respondent, the petitioner's contention is at best merely trivial to warrant the nullification of the 2nd Respondent's nomination . He cited the case of Baleke Kayiira Peter Vs Electoral Commission and E.C and Kakooza Joseph EP No. 004/2016 and the case Ongole James Micheal Vs Electoral Commission and Ebukalin Sam EP No. 008/200&.o support his contention.
Counsel further in relation to the petitioner's claim that the 2nd Respondent lacked the pre requisite academic qualifications and as such was invalidly nominated or incompetent to participate in the aforesaid election contended that it is an uncontested legal position that to qualify for nomination and election all the 2nd Respondent had to present to the lst Respondent was proof of completion of a minimum education of Advanced level standard or its equivalent. He thus referred to Article 183 (2) & 80(1) (c) of the 1995 Constitution and S 111(3) e of the Local Government Act Cap. 243.
Counsel contended further that, contrary to the Petitioner's argument, none of the aforementioned provisions prescribes the manner of proof of qualification. That it is thus not a mandatory requirement that such proof must be by production of academic certificates. The provision does not say that proof has to be by production academic certificates. That so long as the documents availed to the Electoral Commission constitute proof of academic qualification of the requisite standard and for as long as such qualifications have not been proved to be cancelled or unauthentic, that suffices. Counsel thus cited the case of Mutembuli Yusuf Versus Nagwomu Moses Musamba EP No. 13/2016 particularly page 40, 43, 44 & 50, to support his contention.
Counsel also contended that it is not in dispute that for his nomination, the 2nd Respondent produced before the Returning Officer of the lst Respondent, a letter of verification of results issued by UNEB which qualification is certified by UNEB in a letter which is on Court by UACE. That it is not in dispute that that is a sufficient qualification for nomination for LC 5 Chairperson as even the Returning Officer in re - examination confirmed and rightly so. That it is also not in dispute that the 2nd Respondent was nominated on strength of the said letter of verification of results which is stated above already.
That what the Petitioner disputes is the fact that the names of the person mentioned in the letters of verification of results is the 1st Respondent. The Petitioner contends that the names in the said verification letter are not those of the 1st Respondent. That the Petitioner has the burden to prove that there is another person other than the 1st Respondent who claims not only the names but the qualifications as well were held by him. That it is not enough for the Petitioner to merely raise matters of conjecture that he even conceded in cross examination that he knows of no such person who has that name and produced none. That the 2nd Respondent convincingly, explained that the initial' W' on the verification letter relates to his father's name. He then cited the case of Ba/eke Kayiira Peter Vs Kakooza Joseph EP No. 4/2016 pages 21, 22 and Ongole James Michael vs EC and Ebukalin Sam Election Petition No. 8/2006 to support his contention.
Counsel further submitted that the Petitioner having failed to adduce such evidence has now departed from his case and jumped on a band wagon to allege that the change of name was done illegally and in contravention of the Births and Death Registration Act and the Registration of the Person's Act, 2015.
That that was not in the Petitioners pleadings and certainly not the Petitioner's case. That parties are bound by their pleadings and cannot depart from them without an amendment. He cited the case of Kwijuka Geoffrey Vs Electoral Commission & Anor. EP No. 07/2011 at pages 3 and 4 to support his contention.
In the alternative, counsel for the 1st Respondent contended that the provisions of the
Births& Deaths Registration Act and the Registration of Person's Act, 2015 applies to a
person whose name was initially registered under the said Act and wishes to change the names and as it is clear from sub section (3) of section 36, which mandates a Registrar to amend the register after due process on the change of names and he is satisfied.
That there is no evidence adduced by the Petitioner to the effect that the 2nd Respondent's initial names were registered before to warrant compliance with the procedure under the said Legislations. That the correct position of the law is settled in the case of Mutembuli Yusuf Vs Nangomu Moses Musumba (Supra). And that the case of James Mukiibi Vs Lu/e Mawiya is clearly distinguishable.
Counsel drew attention of court to the case of Kizito Deo Lukyamuzi Vs Kasamba & Anor EP No. 3/2011, where the learned Judge in resolving a similar issue considered and distinguished EP No. 15/2006 Serunjogi James Mukiibi Vs Lule
Umar Mawiya that the Petitioner relied on, that Court noted that in the absence of evidence to show that the change of names was by no means the conduct of a fraudulent person or by one who knows he is a beneficiary of fraud or he has knowingly benefited from the act. Then it would be wrong to visit innocent mistakes on the person., that subsequently the learned judge found that the evidence before him was clear that the 1st Respondent was the same person who has gone by the name Kasamba Mathias with or without the 'L.S' as additional names. That no evidence was adduced that he had committed the act of fraud or forgery as he is accused of, or knowingly benefited from any such act.
That contrary to the Kizito's case as stated in the Serunjoj's case, the appellant's 'O' Level certificate had the name 'Sserunjoji James'. That the 'A' Level Certificate bore those names and in addition the initials of 'SMJ'. That the nomination forms only had the names Sserunjoji James. That his explanation to the Returning Officer at nomination was that he inherited them from his late father. That evidence was adduced to show that his father was Semwogerere Charles and not Semwongerere Mukiibi John which the letters SMJ allegedly stood for.
That in cross examination he changed and said that he changed his name at will when he registered for 'A' Level examinations and added the letters SMJ. That there was even evidence that he changed the epitaph on his father's grave to add the names Mukiibi John which were not there when the petition was filed in court. That there was even evidence of a witness who went to school claimed and knew a person with the initials 'SMJ, but that this was not the Appellant.to the effect that there were people who claimed that he attended the same school with the petitioner who had the same initials. But this was not the appellant. That the appellant even made an elementary error when he could not pronounce the subject 'poetry for which he claimed to have done at'A' Level. That he named his best subjects in European History as Napoleon and that this was a leader of Germany. That Justice Byamugisha J.A. in the lead judgment stated that, 'the contradictions in the appellant's explanation were not minor and could not be glossed over. That they were deliberate lies that were intended to suit the circumstances of the case of the petition.'
Counsel contended that the circumstances of Sserunjoji's case are different from the present case as discussed. Counsel contended that for the 2nd Respondent the alteration in the names by way of order, or adding abbreviations 'E.M' was devoid of any fraudulent intention.
That the petitioner has not adduced any evidence to show that the 2nd Respondent benefited from this alteration in names or that the 2ndRespondent was a beneficiary of fraud.
That all the Petitioner has demonstrated is that the change of order of names creates some suspicion as to whether the person referred to is the 2nd Respondent. That in the case of Ongole James Michael Vs Electoral Commission and Sam Ebukalin in EP No. 8/2006 at pg 16, Justice Musota considered similar issues and held that; "though the discrepancy in the names creates a lot of suspicion, that atone cannot be the basis for saying that the names refer to somebody else who has not been availed."
That the Petitioner has failed to adduce evidence to show that there is another and different person other than the 2nd Respondent entitled to this name. That the Petitioner's submission of merely pointing out the alteration in the names and alleging that this amounted to two different people does not amount to adducing satisfactory evidence before the court.
That even the Returning officer in his re-examination stated that he did not receive any complaint from anyone that they had been prejudiced by the alterations of the names of the 2nd Respondent. That in reexamination the Returning Officer, pointed out the 2nd Respondent in court and confirmed that he is the person who submitted the A level qualifications and the person who was nominated.
That the Petitioner was required to lay his suspicion to rest by adducing cogent evidence of the existence of a different person with the same or similar names like the 2nd Respondent as being the one for whom the 2nd Respondent had derived a benefit so as to participate in the election as in the case of Sserunjoji (supra).
Counsel contended that by blowing such a trivial detail out of proportion, the Petitioner was only exploring his chances of securing judicial victory in the absence of tangible evidence of fraud on the part of the 2nd Respondent. That the Petitioner has not dispensed his legal duty to prove his case to the satisfaction of court and we pray that court be pleased to find so.
Counsel contended also that in regard to the Petitioner's contention in the disparity in the index number U036 /513 from the Mbale Secondary School of the said Bernard E. W Mujasi Masaba which according to the Petitioner shows that the 2nd Respondent lacked the prerequisite academic qualifications to participate in the aforesaid election and relied on Annexure 'C2 to support the same. In the letter, the Petitioner was advised to seek clarity from UNEB and he adduced no such evidence that he sought clarity from UNEB as advised by the school. That the school confirmed the student in the names of Mujasi Bernard anti the Petitioner adduced no evidence to prove that it wasn't the 2nd Respondent.
Counsel contended that the Uganda National Examinations Board (UNEB) Act 1983 ,under S 4(1) vests the role of ascribing index numbers and awarding of academic certificates in UNEB and therefore they agreed with the Headmaster of Mbale Senior Secondary School that for further clarification or assistance on whether the Petitioner had dully attained his A' level Certificate from Mbale Secondary School. That the Petitioner should have consulted with UNEB and of which he chose to ignore.
Counsel contended also that whereas this court is empowered under Section 61 of the Parliamentary Elections Act of which we have recourse to by virtue of S 12 (2) of the Local Government Act, to set aside an election on grounds of lack of the requisite academic qualifications, such power cannot be invoked premised on mere suspicion and conjecture or on such trivial grounds as those relied on by the Petitioner and he cited the case of Kwijuka Geoffrey Vs Electoral Commission & Anor in HCEP No. 19/2011.
In reply to this issue the 2nd Respondent contended in his paragraph 4 of his the affidavit in support of his answer to the petition that he had attained and completed the minimum level of education of Advanced Level Certificate of Education obtained from Mbale Senior Secondary School vide index No U036/513 issued by UNEB in 1967 in his names Bernard E. W Mujasi Masaba (letter of verification of results dated 19th August, 2015 from UNEB addressed to the Electoral Commission, and a letter from Mbale Senior Secondary School dated 2/12/2015 to the Petitioner's advocate referred G & G'S to the petition respectively. )
Counsel for the 2nd Respondent contended that he has long since 2001 , participated and vied for the office of the Mbale District Local Council 5 Chairperson elections for the previous three terms and he has always been nominated by the 1st Respondent, participated and won the said consecutive elections under his known names uf Mujasi Masaba Bernard Elly and that he submitted documents in those names on all the occasions and clearly abbreviated 'E' & 'M', for Elly and Masaba respectively and that the names mean and refer to only him and no other person as evidenced by annexures
A-F' to the petition . That the said evidence was uncontroverted or denied by the Petitioner.
Counsel contended also that the 2n0 Respondent at the time of his nomination and subsequent election qualified for the election as the Mbale District Locai Council 5 Chairperson in accordance to S. Ill of the Local Government Act Chapter 243.
Counsel submitted that during the hearing of the petition, the 2nd Respondent was cross examined on the averments deponed to in his affidavit in support of his answer to the petition and he clarified that the names Bernard E. W Mujaasi Masaba, that appear on a letter of verification of results from UNEB are his known names and refer to him and he stated that the initial or abbreviations E & W refer to Elly & Wamimbi respectively and that the name Wamimbi is the name of his late father which he has previously interchangeably used along among this initials.
That the veracity of the said evidence was tested through vigorous cross examination by the Petitioner's advocates and the same was uncontroverted and they clearly clarify the issue of names.
Counsel contended further that the 2nd Respondent filed the necessary documents with the Returning Officer of the 1st Respondent at the time of nomination in the names of Bernard E.M. Mujaasi Masaba his known names , and were written filed in the requisite forms filled interchangeably.
That during the cross examination of the representative of the 1st Respondent, the Returning Officer , Mbale District Electoral Commission, by the Petitioner's advocates, as to whether the 2ndResporident was the person who was nominated by the 1st Respondent as a candidate for Mbale LC 5 Council Election, that his answer was clearly in the affirmative and he indeed identified to court the 2nd Respondent as the person he nominated. That all the above names belong to the 2nd Respondent and no other person. And counsel submitted that since the evidence to that effect was not impeached, it should be taken to be the whole truth and he cited the case of Tororo District Administration Vs Andalopo Industries Ltd 1997, 4 KALR pg 126 to
support his contention.
Counsel also contended that the Petitioner merely relied on suspicion and the 2nd Respondent ably answered this while in cross examination and gave an explanation on what the initials in his names stood for and that no one had come up to claim the said names .
Counsel contended further that the court should take judicial notice of the fact that Ugandans use several names interchangeably which as a matter of fact is a cause of great 'annoyance' not illegal. And he cited the case of Kasibbo Joshua Vs Kezekia and Electoral Commission in EP No.04 of 2011 to support his contention.
Counsel contended also that the standard of proof is whether the variation in the names was major or not. Court is to evaluate the available evidence to establish whether or not the variation in the 2nd Respondent's names in the instant case was major or minor. That the variation in the order of the names as variously presented, written and or being filled in the necessary documents and the use of the abbreviations / initials and/or being interchangeably used was not done with a fraudulent intent in mind and the variation was not enough to confuse the voters in the previous or and current elections of 2015/16 for Mbale District Local Council 5 Chairperson.
Counsel further submitted that S 111(4) e & (7) of the Local Government Act sets out the preliminary procedure and requisite documents to be filled by the candidate at the level of nomination to vie for election. And that indeed the 2nd Respondent satisfied the necessary requirements and was dully nominated and the Petitioner did not complain to halt the nomination as such on the allegation of not being qualified.
Counsel cited the case of Ongole James Micheal Vs Electoral Commission & Ebukalin Sam HC EP 81/2006 where Justice Musota Stephen stated that;
"The Electoral Laws in this country stipulate various stages to be followed by the
Electoral Commission while conducting elections at each stage. The procedure for complaints is stipulated in my considered view, it is imprudent to wait until the nomination process is over and elections are completed to complain about the initial stages in the process of the election after elections are held and the results are declared, and the person should not complain against such conduct of election and not against an earlier segment of the process..."
Counsel contended further that while the Petitioner in his affidavit in support of the petition paragraphs 4 & 5 thereof, merely states and makes averments with regard to the variation of the 2nd Respondent's names and the same being abbreviated and used interchangeably, that however the burden remains on the Petitioner to prove to the required standards that indeed the challenged identity belonged to someone else other than 2nd Respondent.
Counsel contended that the Petitioner was cross examined during the hearing and failed to adduce any evidence to the effect that there is another person within his knowledge with the same names of the 2nd Respondent other than the 2nd Respondent.
That the Petitioner failed to show of any credible evidence to that effect and above all , the Petitioner did not file any affidavit from anybody claiming that he is the true Bernard Elly Wamimbi Mujasi Masaba or Mujasi Masaba Bernard Elly in respect of the 2nd Respondent's names as interchangeably used.
That a critical evaluation of the evidence adduced by the Petitioner is squarely apparent that he has not discharged this burden.
Counsel for the 2nd Respondent cited S 111 (3) e of the Local Government Act Cap
243 which requires proof or evidence of completion of a minimum of Advanced Level or its equivalent to qualify for election of Chairperson of the District Council 5 elections.
Counsel contended that proof of the same can be done in a number of ways which can be determined by the Electoral Commission. That it is worthy to note that the Statutory Declaration or other affidavits are methods outlawed in proof of academic qualifications.
That the Petitioner makes plain allegations that the 2nd Respondent did not possess the minimum qualification of advanced level standard qualification or its equivalent which have not been proved. That the allegations were mere suspicions or perceptions of the Petitioner that the documents presented by the 2nd Respondent were not his.
Counsel contended that the court cannot rely on such plain allegations that the documents presented were not his contrary to proof by the credible authorized entities such as UNEB and that in the instant case, UNEB dully wrote to the 1st Respondent a letter of verification of the results of Uganda Advanced Certificate of Education , issued to the 2nd Respondent.
As regards doubts about the academic qualifications of the 2nd respondent based on the names in the letter of verification of results from UNEB and the alleged disparity in the Index Number U036/513 in the names of Bernard E.W. Mujasi Masaba,
Counsel contended that the Petitioner did not adduce any contrary evidence to throw doubt on the authenticity of the letter of verification of results. That in the absence of credible evidence to the contrary regarding the identity of the 2nd Respondent, as the same person in whose names the letter of verification of results was referring to and issued as such, there is no evidence and basis of saying that the names refer to somebody else other than the 2nd Respondent.
Counsel for the 2nd Respondent thus submitted that the 2nd Respondent was at the timp of his election qualified for election as the Mbale District Local Council 5 Chairperson and was possessed with the requisite minimum qualifications of Advanced Level standard and that the issue be resolved in the affirmative.
In rejoinder counsel for the Petitioner submitted that from the reading of the 2nd Respondent's submissions in reply, two obvious facts are apparent. That first of all It is admitted by both the Respondents that there was an evident variance in the names of the 2nd Respondent upon his nomination papers and supporting documents. Both Respondents admit that the names born upon Form EC1 of the nomination paper, was
not the same as the names born upon Form EC2, Form EC3, Form EC5. The proposed candidate's form and the Oath authenticating statement. That it is obvious that Form EC1, bears the names Mujasi Masaba Bernard Elly the 2nd Respondent, whereas the accompanying forms particularly Form EC 2 was deponed by a person in the names of Bernard E.M Mujasi and it is the same Benard E.M Mujasi that executed Form EC3 & Form EC5, the proposed candidates form and Oath authenticating statement. That there is also variance in the names of the 2nd Respondent and the names appearing on the letter of verification submitted in support of the nomination of the 2nd Respondent. Counsel thus in order to allay any doubts regarding the aforementioned admitted facts referred court to annexure 'A to G' attached on the Petitioner's affidavit in support of the petition.
Counsel submitted that the implication of the variation in the names rendered the nomination of the 2nd Respondent null and void abinitio as derived from 2 premises of the law. That is first of all, according to Section lll(3)e of the Local Government's Act cap 243 where it is provided that no person shall qualify for election as a Chairperson of a Municipality, Town, Division or Sub County, unless that person had submitted to the returning officer of the district or public officer designated by him or her for that purpose, on or before the nomination day, a document referred to as a nomination paper in the Form of EC1 specified in the 7th Schedule in the Local Government Act.
That according to sub section 7 of the aforesaid section, mandates that the nomination paper must among others be accompanied by a declaration in Form EC2, and a declaration of income, assets and liabilities in the Form of EC3.
Counsel submitted further that from reading a compilation of the documents submitted by the 2nd Respondent for the purpose of his nomination, it is without doubt that only Form EC1 was indeed executed by Mujasi Masaba Bernard Elly the 2nd Respondent, that the rest of the supporting forms as alluded to earlier were executed and or deponed by someone by the names of Bernard E.M. Mujasi. That though it seems a trivial point upon which to negate or invalidate one's nomination, the law is exact on this issue. Section 12 of the Parliamentary Elections Act 2005, applicable by virtue of section 172 of the Local Government Act which provides that a nomination paper shall be invalid if there appears to be a major variation in the names of a person as indicated on the voter's roll. That the proceeding section mandates that in entering the name of the candidate on the nomination paper, the surname shall be recorded first followed by the other names and should not include titles, degrees, or other prefix or suffix.
That in the instant circumstances, the nomination forms particularly EC2, EC3, EC5 , the proposed candidate's form and the Oath authenticating statement bear the names Bernard E.M Mujasi, yet the voter's register bears the name of the 2nd Respondent adjacent to his photograph as Mujasi Masaba Bernard Elly. That the effect of such variation is to render invalid the 2nd Respondent's nomination paper.
Counsel submitted that based on the aforementioned anomalies, the 2nd Respondent's nomination papers were invalid and incompetent to support his nomination as a candidate in the Mbale District Local Council 5 Chairperson election. That the explanation proffered by the 2nd Respondent that the variations in the names were occasioned as a result of insufficient writing space on the nomination paper is untenable and cannot be a justification to override the requirements under the law. That similarly the explanation that since nobody has at any point come out to claim ownership either of the alleged names then it is confirmatory that the said names belong to the 2nd Respondent is also untenable and cannot justify the overriding requirements under the law.
Counsel submitted that they had said this earlier but counsel for the Respondent seemed not to appreciate the law on the names, their change and the implication of variations in an individual's names and that for the benefit of the 2nd Respondent counsel, he reiterated that , according to section 36 of the Registration of the Person's Act 2015, it is provided that any person being over the age of 18 years of age or a widow or a widower, divorced or married , who wishes to change his or her name shall cause to be published in a gazette, a notice in the prescribed form of his or her intension to do so. That the same Act under S.7 mandates that in not less than 7 days after the publication of the notice, the person's intending to change his or her name may apply in a prescribed form to the Registration Officer, who upon being satisfied that the requirements have been carried out and the prescribed fees paid, shall, accordingly amend the register, changes. Counsel reiterated that as referred to in the earlier Election Appeal No. 15 Sserungjoji James Mukiibi Vs Lule Umar Mawiya (Supra), where it was stated that, for a person who is an adult to change his names, he or she has to comply with the provisions ofS 12 of the Births & Deaths Registration Act, which section is paramateria with section 38 of the Registration of the Persons Act. And that the same position was upheld by the Supreme Court in Civil Appeal No.6/2007 Sserungjoji James Mukiibi Vs Lule Umar Mawiya and repeated in EP 8/2016 Ayena Odongo Crispus Charles Vs Okello P. Charles Engola Macodwogo & 4 ors EP 20/2016 and Alfred Muwanga Vs Ssembatya Edward Ndawula& A nor.
Counsel submitted that if at all Bernard E.W Mujasi-Masaba desired to alter his name, and now be referred to as Mujasi Masaba Bernard Elly, he should have caused such entry to be effected in the afore manner prescribed and failing at that, there is no basis upon which the 1st Respondent would rely on to conclude that Bernard E.W. Mujasi Masaba or Bernard E.M. Mujasi and Mujasi Masaba Bernard Elly are one and the same person or that both the names refer to the 2nd Respondent and there is no evidential basis on which the court can assume or presume that and Bernard E.M Mujasi are one and the same as Mujasi Masaba Bernard Elly the 2nd Respondent.
Counsel submitted that the nomination papers submitted by the 2nd Respondent for the purposes of his nomination, were invalidated by virtue of the fact that there was variance in the names borne upon the respective form.
That further the 2nd Respondent lacked the necessary academic qualifications, since the letter of verification that he submitted in support of his nomination belongs to
someone by the names Bernard E.W. Mujasi Masaba, and there is nowhere on record ,and upon any official document that, the 2nd Respondent has been referred to BERNARD E.W. MUJASI MASABA and therefore not sufficient even if this court were to sympathize with the 2nd Respondent to assume that the alleged High School Certificate and the General Certificate of Education in the names of BENARD E.W. MUJASI MASABA belong to the 2nd Respondent. That the law and evidence would not support the findings that other than that the 2nd Respondent, is not BENARD E.W. MUJASI MASABA and therefore the 2nd Respondent cannot purport to rely on or to benefit from a Higher School Certificate that was not his own. Counsel thus submitted that Court should find that the nomination of the 2nd Respondent was null and void abinitio and so is his subsequent election.
According the section 113(e) of the Local Governments Act Cap 243, the
Petitioner in this issue raised 2 sub issues namely;
- That for purposes of nomination, the 2nd Respondent submitted unlawful documents that had variations in the names which offended section 111(4) e & 7 of the Local Governments Act anti
- That the 2nd Respondent lacked the requisite academic qualifications.
As regards the variations in names according to the documents, filed by the 2nd Respondent for his nomination, he submitted Form EC1, under the signatures of Mujasi Masaba Bernard Elly. The rest of the documents CE2, CE3, & 5 were executed and deponed by Benard E.M. Mujasi.
I do concur with counsel for the Petitioner that Section 12 of the Parliamentary Act is applicable to these elections by virtue of S. 172 of the Parliamentary Elections Act. However I have had opportunity to look at Section 12 of the Parliamentary Elections Act referred to by Counsel for the Petitioner.
The heading of the section is; "factors which do not invalidate nomination papers" specifically on section 12 (2 ) , it states; the returning officer shall refuse a
nomination paper (b) where there appears major variations between the name of the any person as it appears on the nomination paper and the voter's roll. In the instant case the returning officer accepted the nomination papers.
Section 13 goes on to state the factors that may invalidate nomination. It does not state anywhere as counsel for the Petitioner would want court to believe that variation of names is one of the factors that would invalidate the nomination. In any case the variations here were not major but was an interchange of names. Besides that, it was a requirement of the Law that the surnames be written first followed by other names.
In view of the above court is of the considered opinion that the interchanging of names did not affect or prejudice the voters as they knew who they intended to vote for.
As regards the qualifications of the 2nd Respondent, the Petitioner submitted that the 2nd Respondent lacked the necessary academic qualifications, since the letter of verification submitted in support of his nomination belongs to someone else by the names of Bernard E.W. Mujasi Masaba . That there is nowhere on any record upon any official documents that the 2nd Respondent has been referred to as Bernard E.W. Mujasi Masaba. The 2nd Respondent in cross examination tried to clarify that the letter "W " stands for Wamimbi his father whose name he adopted. That according to the verification from the Headmaster Mbale Secondary School, where the 2nd Respondent is alleged to have sat for his A' Level, the letter bears the name Bernard E.W. Mujasi Masaba and not Mujasi Masaba Bernard Elly from UNEB.
Counsel for the Petitioner submitted further that, the 2nd Respondent does not hold any equivalent qualifications which is a prerequisite for election as a District Chairperson. In this case the document submitted by the 2nd Respondent to prove his qualifications is a /letter of verification which bears the names Bernard E.W. Mujasi Masaba.
According to section 111(3) (e) of the Local Governments Act, it is provided that a person shall not qualify for election as chairperson of a District or a Council, unless that person has completed a minimum education of Advanced Level Standard or its equivalent.
In Ihe inslanl case, the 2nd Respondent Mujasai Masaba Bernard Elly also known as Barnard Elly Mujasi, submitted a verification letter from UNEB in proof of his having attained or completed a minimum education of Advanced Level.
However, the letter of verification of results dated 19th August, 2015 was in relation to Bernard E.W. Mujasi Masaba of index No. U0036/513 who sat for exams in 1967 at Mbale Senior Secondary School. The Petitioner's advocate, wrote to Mbale Secondary School for clarification of UNEB Centre Number for Mbale Senior Secondary School from the school itself. He got a clarification that the records of Cambridge Results of 1967 could not be traced. But assured them that according to their register, it indicated that the 2nd Respondent was a student at the school in 1967 and 68 and this is according to the letter which is on the court record. That is the clarification they got from Mbale Senior Secondary School. The letter from UNEB says the 2nd Respondent sat for A 'level so I wonder why was the Petitioner was asking for Cambridge School Certificate. Cambridge is S. 4. How can somebody bring a certificate of A' Level, he should have been asking for A level results, and according to this document they examined the Cambridge School Certificate results and they showed that the 2nd Respondent was in the school in 1966 and 67. He got a certification that the records of 1966, 1967 could not be traced. But there was a register which indicated that the 2nd Respondent was a student at the school in 1966 and 1967. And the letter is there on the court record.
The Petitioner challenged this qualification and produced a letter from the headmaster Mbale Secondary School to support this contention, that the 2nd Respondent did not obtain the relevant qualifications based on the contents of that letter. I have examined that letter critically and observed that the headmaster stated that he examined the Cambridge results and there was indeed a student called Bernard E.W. Mujasi
Masaba in the school in 1966 - 67. He also states that "I have checked the record and could not trace the Cambridge results of 1967 due to insecurity".
If the 2nd Respondent sat A 'level in 1967 then there was no reason why he checked the Cambridge results of the same year. Besides that he states that due to insecurity in the country in the early 1970s and early 1980s, the documents were misplaced and he will continue to search for them. He concedes that the class register he was able to recover indicates that Mujasi E. Bernard was a student in the school in 1966 & 67. He goes on to state that the Index number of the school was UO 51 for main center, and U 1964 for the annex center, and he refers to UNEB for further assistance.
The 2nd Respondent sat for A' level in 1967 and what the headmaster was searching for was Cambridge results of the same year. He was therefore directing his search to a wrong record, and merely to confuse the court and raise suspicion about the 2nd Respondent's academic papers. The headmaster correctly referred to UNEB which the Petitioner did not follow up. Besides, that the letter quotes Index Number U 036/513, which was not the centre number of Mbale Secondary School and that their centre number was U0514 for main centre and U 1964 for annex.
It is true that these 2 numbers had to defer as the 2nd Respondent sat for A' level to .which those numbers do not apply. They were for O' Level results.
I In view of the above, I am of the considered opinion that the Petitioner has not I brought credible evidence to challenge the 2nd Respondent's academic qualifications.
Consequently court is of the considered opinion and I find that the headmaster's letter to support the Petitioner's challenge to the 2nd Respondent's paper , was not brought in good faith and the Petitioner has not brought credible evidence to challenge the Petitioner's qualifications.
In those circumstances, I find that the 2nd Respondent had the requisite academic I qualifications to stand for the elections of the LC 5 Chairperson Mbale District.
I shall now go to the next issue of whether the elections were carried out in compliance with the law.
Counsel for the Petitioner opted to argue issue No. 2 & 3 together and I shall do the same. As regards the 2nd issue whether there was failure to conduct elections in accordance to the electoral laws and whether it affected the result in a substantial manner.
Mr. Mutembuli Learned Counsel for the Petitioner submitted that, in the celebrated case of Presidential Election Petition No. 1/2001, Col. Rtd. Dr. Kizza Besigye Vs Kaguta Museveni, it was stated that the election must be free and fair. The election must be conducted in accordance with the law and procedure laid down by Parliament. There must be transparency in the conduct of the elections.
The result of the election must be based on the majority of votes cast and the principles of fairness imply that all candidates in the election must be treated in the same way to enable them compete fairly.
That it was further stated that there must be a leveling the ground so that the incumbents or government ministers and officials do not have unfair advantage and the entire process must be conducted in an atmosphere free of intimidation, bribery , violence ,coercion or anything intended to subvert the will of the people.
Counsel for the Petitioner went to reiterate their earlier submission negating the nomination of the 2nd Respondent and invited court to find that, on that evidence alone it should find that there was failure to conduct the election in accordance to the provisions of the Constitution of the Republic of Uganda, The Electoral Commission Act cap 140, The Local Governments Act cap 243, and the principles regulating the conduct of the election in the Republic of Uganda. Counsel submitted further that the uncontroverted evidence on court record is to the effect that, the principles and the provisions relating to the conduct of credible elections were never followed and that the election process was not conducted in a free and fair environment.
The evidence of the Petitioner in support of the aforementioned position, is to the effect that the 1st Respondent deliberately, and or intentionally altered and/or interchanged the vote results obtained by the Petitioner and accorded them to the 2nd Respondent in order to unlawfully and or illegally accord the 2nd Respondent a superior margin of votes.
At paragraph 8 (I) (a) of the Petitioner's affidavit he avers that, at Buwamwangu Primary School Polling Station, the 2nd Respondent obtained 47 votes while he obtained 152 votes of the entire valid votes cast at the polling station. However during tallying of votes, the 2nd Respondent was assigned 152 votes instead of the 47 votes that he actually retained, and this is the evidence on court record by virtue paragraph 8 (i) b of the Petitioner's affidavit which confirms that at Budi Polling Station the 2ndRespondent obtained 47 votes while he obtained 265 votes. However during tallying the 2nd Respondent was assigned 265 votes instead of the 47 votes that he actually obtained. Further evidence of the petitioner confirms that at Kanikwa centre N-Z polling station the 2nd Respondent obtained 21 votes while he obtained 147 votes. However during tallying the 2nd Respondent was assigned 147 votes instead of the 21 votes he actually retained.
Counsel submitted that the evidence on the record further confirms that at Katale trading center Polling Station, the 2nd Respondent obtained 52 votes while the Petitioner obtained 198 votes. However during the tallying of votes, the 2nd Respondent was assigned 198 votes instead of the 52 votes that he actually obtained.
Similarly at Lwabusano Polling station, the 2nd Respondent obtained 96 votes while the Petitioner obtained 128 votes. However during the tallying of votes, the 2nd Respondent was assigned 129 votes instead of the 96 he actually obtained. That evidence further confirms that at Namalogo Polling Station, the 2nd Respondent got 32 while the Petitioner obtained 121 votes. However during tallying of votes, the 2nd Respondent was assigned 121 instead of the 32 votes that he actually obtained. At Mutoto Polling Station, the 2nd Respondent obtained 38 votes while the Petitioner obtained 380 votes. However during tallying of votes, the 2nd Respondent was assigned 380 votes instead of the 38 votes he actually obtained.
At Nakibisho Polling Station the 2nd Respondent obtained 69 votes while the Petitioner obtained 208 votes. However during tallying of votes, the 2nd Respondent was assigned 208 votes instead of the 69 that he actually obtained. That just as in the foregoing circumstances, at Kanikwa A - M Polling Station, the 2nd Respondent obtained 24 votes while the Petitioner obtained 175 votes. However during tallying of votes, the 2nd Respondent was assigned 175 votes instead of the 24 votes he actually obtained. That also at Namweya N- Z polling station, the 2nd Respondent obtained 50 votes, while the Petitioner obtained 75 votes.
However during tallying of votes, the 2nd Respondent was assigned 75 votes instead of the 50 votes that he actually got. Similarly at Prunyende Polling Station, the 2nd Respondent obtained 145 votes while the Petitioner obtained 158 votes. However during tallying of votes the 2nd Respondent was assigned 145 votes instead of the 158 he actually got. Also at Nabweya N-Z Polling Stations, the 2nd Respondent obtained 50 votes while the Petitioner obtained 75 votes. However during tallying of votes the 2nd Respondent was assigned 145 votes instead of the 158 votes that he actually obtained. At Bilal Mosque Foods Cell Polling Station the 2nd Respondent obtained 25 votes, while the Petitioner obtained 45 votes. However during tallying of votes the 2nd Respondent was assigned 45 votes instead of the 25 votes that he actually obtained. At Nkoma High School Polling Station, the 2r,d Respondent obtained 24 votes while the Petitioner obtained 42 votes. However during tallying of votes the 2nd Respondent was assigned 42 votes instead of the 24 votes he actually obtained. At Nambale Polling Station, the 2nd Respondent obtained 22 votes while the Petitioner obtained 57 votes. However during tallying of votes, the 2nd Respondent was assigned 57 votes instead of the 22 votes he actually obtained. At Maako B Polling the 2nd respondent obtained 53 votes while the Petitioner obtained 27 votes. However the 2nd Respondent fraudulently caused the execution of declaration of results forms assigning himself 225 votes instead of the 53 that he actually obtained. At Buwangwa Primary School Polling Station, the 2nd Respondent obtained 172 votes while the Petitioner obtained 186 votes. However during tallying of votes, the 2nd Respondent was assigned 186 votes instead of the 172 he actually obtained. At Butsongora primary school Polling Station, the 2nd Respondent obtained 110 votes, while the petitioner obtained 166 votes. However during tallying of votes the 2nd Respondent was assigned 166 votes instead of the 110 votes that he actually obtained. At Bulusambu Polling Station, the 2nd Respondent obtained 60 votes while the Petitioner obtained 98 votes. However during tallying of votes the 2nd Respondent was assigned 98 votes instead of the 60 votes that he actually retained. Finally at Lwangoli Polling Station the 2nd respondent obtained 71 votes while the petitioner obtained 88 votes. However during tallying the 2nd Respondent was assigned 88 votes instead of the 71 that he actually obtained.
Counsel submitted that the afore going evidence is corroborated by the affidavits of Kamali Richard, Khaitsa Sarah, Sibi Amidu, Nambale Samson, Among Esther, Magombe Aliyi, Kiseru Micheal, Makosya Andrew, Nabaya Siraji, Jackson Waloto, Manana Hussein, Wabujje Bakali, Mutonyi Beatrice, Shakhuli Clovis, Wateya Gibson, Wambuba Irene, Mugoya Muhammad, Wabuyi Henry and Nambafu Michaeal all of whom were agents of the Petitioner at the afore said polling stations.
Counsel for the Petitioner submitted that the afore evidence confirming the interchanging of vote results is concretized by the DRF forms for the respective polling stations admitted in court record as annexures I -A1 attached to the Petitioner's affidavit.
That counsel submitted that any doubt allayed by the results tally sheets for Mbale district Local Council 5 Chairperson elections, admitted on the court record as annexure A2. And further during cross examination, the 1st Respondent's Returning officer admitted alteration of results at the 19 polling stations.
Counsel submitted also that it is the evidence of the Petitioner that had the 1st Respondent's District Returning Officer properly tallied the results, the 2nd
Respondent would have obtained 39,910 votes whereas the Petitioner would have
obtained 40,295 votes in the Mbale District Local Council 5 Chairperson elections. And simple arithmetic would accord the Petitioner a superior margin of 400 votes and the eventual winner of the election.
Counsel argued that premised upon the afore going evidence, court should find that there was evident failure on the part of the 1st Respondent to conduct the election in accordance with the provisions of the Constitution of the Republic of Uganda, The Electoral Commission Act Chapter 140, The Local Government Act Chapter 243 and the principles regulating the conduct elections in the Republic of Uganda.
The third issue of determination is whether such failure or none compliance affected the results of the election in a substantial manner. Counsel submitted that in Election Petition No. 1 of 2001 Col. Rtd. Dr. Kizza Besigye Vs Kaguta Museveni ( supra), it was stated that the phrase substantial manner was extensively and elaborately discussed by Justice Odoki C.J. as he then was to mean the effect must be calculated to influence the result in a significant manner. Counsel cited the case of Halima Nabawungu Vs Electoral Commission and Anor. EP 2/2011, where Justice Elizabeth Musoke explained , the phrase affected the elections in a substantial manner to mean and I quote; " The result of the election may be perceived in two senses on one hand, it may be perceived in the sense that one candidate has won and the other contesting candidates have lost the election."
In that sense if it is said that a stated factor affected the results, it means the declared winner would not have won but for the fact stated and vice versa. On the other hand the result of the election may be perceived in the sense that a given factor affected the result implies the vote obtained by each candidate would have been different, if that fact had not occurred or existed.
Counsel submitted further that, in the instant case in the circumstances, the evidence confirmed that the 1st Respondent was illegally or unlawfully nominated the 2nd Respondent to vie , in the Mbale District local Council 5 Chairperson election, yet he was not qualified under the law to participate in the said election.
That they reiterate their earlier submission on the invalidity of the 2nd Respondent's nomination papers. That the 2nd Respondent never submitted complete or properly executed nomination papers and could therefore not have been validly nominated. That the variations in the names entered in the nomination papers are not simple anomalies or technicalities to be viewed in a trivial manner.
That they are matters that directly contravene and or violate the law. That it is a fundamental requirement that the nominated candidate submits the declaration of a person seeking nomination declaration forms, declaration of income, assets and liabilities forms. That a candidate seeking for nomination must also go on to take oath authenticating his statements to qualify for the nomination. That unfortunately, the names born upon the afore documents differ from the names of the 2nd Respondent. That the only logical deduction from reading the entire annexture 'H' being compilation of documents submitted by the 2nd Respondent in support of his nomination is that two different persons executed various documents. That while the candidate's full name is recorded in Form EC1 as Mujasi Masaba Bernard Elly, the rest of the academic documents and forms were executed and or deponed by another person referred to as Bernard E.M. Mujasi. That further the Higher School Certificate is in the names of Bernard E.W.Mujasi Masaba are not in the names of the 2nd respondent. Counsel submitted that the insistence of Benard E.M. Mujasi or Bernard E.W.Mujasi Masaba and the 2nd respondent Mujasi Masaba Bernard Elly are not one and the same person. And are not merely deponed but the law in no uncertain terms require that the variation in the names of a person be explained either by way of a deed poll or statutory declaration, none of which was presented before this Honourable Court. That by virtue of theafore going, the 2nd Respondent unlawfully nominated and such anomaly affected the results of the election in a substantial manner. Counsel then cited the case of Halima Nakawungu against the electoral commission & anor. EP No. 2/2011 , where Hon. Lady Justice Elizabeth Musoke stated that the expression none compliance affected the result of the election in a substantial manner can only mean that the votes candidates obtained would have been different in a substantial
manner if it were not for the none compliance substantially. That that means that to succeed the Petitioner does not have to prove that the declared candidate would not have lost. It is sufficient to prove that the winning majority would have been reduced and in the case of Col, Rtd. Kizza Besigye Vs Kaguta Museveni EP 1/2001 ,
were it was held that numbers are useful in making adjustments for irregularities. The crucial part is that there must be cogent evidence to be established, not only orally to the effect of none compliance but the result was substantial to support his contention.
Counsel submitted that they reiterate their earlier submissions that the effect that the 1st Respondent's Returning Officer, deliberately and intentionally altered the election results to grant the 2nd respondent majority votes of 41, 659 votes, and victory in the election. And the 1st respondent's returning officer had he tallied the results fairly , the 2nd Respondent would have in fact obtained 39,910 votes, and the petitioner 40,310 votes. That the petitioner would have thus emerged victorious on this difference alone by a margin of over 400 votes.
Counsel argued that anomaly of interchanging or altering the results, substantially affected the decision. That had the process been conducted freely and fairly, the Petitioner would have emerged a winning candidate and the dully elected Mbale District Local Council V Chairperson in the elections. And the elections were illegal, unlawful and void abinitio.
As regards the 2nd and 3rd issue, Counsel contended that S. 139 1(a) of the Local government Act is in parimateria to S 61(1) (a) of the Parliamentary Elections Act, which in essence provides for noncompliance with the provisions of the Act relating to elections as a ground for setting aside an election as long as there is proof that the alleged noncompliance and failure affected the result of the election in a substantial manner.
Counsel contended further that the burden of proof lies upon the Petitioner to prove allegations of noncompliance to the provisions of the Act and he cited the case of Hon. Oboth Jacob Vs Dr. Otyam Otalla EP No. 38/2011 at pages 28, 29 & 30. That the onus is on the Petitioner to prove to the satisfaction of the court that on record of the complaint, he unfairly got a substantial number of votes which it were not for noncompliance their votes would have gone to the Petitioner. That in the case of Odo Tayebwa Vs Basajjabalaba Nasser and Electoral Commission EP No. 13/2011 at pages 12,13. The quoted position of the law was that the provision of the law can only mean that the votes the candidate obtained would have been different in a substantial manner if it were not for the noncompliance.
As regards the falsification alteration of results from the 19 polling stations, Counsel contended that the Petitioner through Kamali Richard, Kaitsa Sarah and 7 other people who deponed affidavits as his agents, adduced evidence to the effect that the Returning Officer interchanged the results of the Petitioner with those of the 2nd Respondent at the 19 polling stations. And as such it gave the latter the superior margin over the former.
Counsel contended that nowhere in the entire petition does the Petitioner complain about anomalies in the other polling stations other than the 19 polling stations and this is in paragraph 5 - 10 of the Petitioner and paragraph 7 of the affidavit in support. That on the contrary the Petitioner's complaint was that the entire election in the constituency was riddled with irregularities, noncompliance and the alleged falsification of results. That the Petitioner in cross examination conceded that he selected the DR Forms from the 19 polling stations which proved his case. That having looked at the DR Forms for the entire constituency, he too conceded that he wanted court to compute the results of the entire constituency and declare him the winner. Counsel contended that the Returning officer conceded the errors in the 19 polling stations as being inadvertent, due to pressure of work on the same day. That in reexamination he testified that it is difficult to determine the winner of the election on the basis of the 19 polling stations unless all the 427 are considered as well.
Counsel contended further that it was on that basis that an application was made ordering the secretary electoral commission to provide certified copies of the tally sheets and DR Forms for the entire constituency. That on the hearing date the same was availed to court and the court interviewed that witness Umaru Kiyimba, and court acknowledged that Umaru Kiyimba be allowed to testify because he was knowledgeable. That the purpose was to determine that from the evidence that indeed from the 19 polling stations, there were errors. The Petitioner constructively in the DR Forms and the Tally Sheets in the entire constituency won. That even if all the results from the DR Forms and the Tally Sheets were computed, still the Petitioner would still win. That in the absence of DR Forms from the entire constituency, it would be impossible for the court to justifiably confirm and declare who won the election. That recomputing the results for only the 19 Polling Stations, as opposed to the entire district would not give us the clear, proper and just picture that the elections were not conducted in a free and fair manner.
That notwithstanding, the statements of the deponents of the affidavits in their own words, described the anomalies as unfortunate errors.
That an 'error1 has been defined in the Oxford Dictionary of Law 5th Edition Para. 179 as a mistake be it in some process. That the Petitioner's counsel considers that though these deponents and rightly saw interchanged election results of the 19 polling stations, this was an innocent mistake on the part of the Returning Officer not intended to prejudice court or to give the 2nd Respondent superior results over him.
That in further evidence to show that the intention was an innocent mistake, the Returning Officer , in his re- examination, noted that tallying was done as per polling station and that no complaint was raised by the Petitioner, his agents or supporters, regarding the total number of votes per polling station. That the Returning Officer also during cross examination, regrettably confirmed that the anomaly gave the 2nd Respondent a superior margin of 400 votes.
That from the Petitioner's evidence, annex. Y which is the Tally Sheet, indicates that there are 3 constituencies in Mbale with a total of 22,03,39 registered voters and of the total valid votes cast, the Petitioner gunned 38,710 votes compared to the 2nd
Respondent's 41,659 votes making the total votes 2,449 . Counsel contended that logically, even if the 400,000 /= votes that the Petitioner lost to the 2nd Respondent in this polling stations, were subtracted from the 2,449 and added to the Petitioner's 38,710 , they would not be enough to make the Petitioner the eventual winner in the election race.
That when added, the Petitioner would have ganned 39,110 votes compared to the 2nd Respondent's 41,251 votes and that as such the 2nd Respondent will still emerge the victor. Counsel contended that courts have held that an election cannot be a nulled for inadvertent errors like mathematical or computational errors, and even where they are detected, the question is whether such errors affected the results in a substantial manner. While every effort must be taken to ensure that what is filed in the DR forms is correct, it is the law that any irregularity in filing the Forms as regards the figures in an election must be fatal and is inexcusable. This was held by the court Hon. Oboth Jacob vs Dr. Otian Otalla Emmanuel EP No. 38/2011 at pg 222.
That further Courts have noted that arithmetical numbers are not the only determining factor in the adjudication of Election Petitions. This was held in the case of Wesonga Kamana Edward Vs Electoral Commission & Anor Mbale EP 14/2006, that the deponents confirmed that the voting process was conducted in a peaceful manner as they stipulated that voting began and ended in the stipulated time under the law. That is at 7.30 a.m. to 4.00 p.m. No incidents of voting irregularities and malpractices were mentioned.
Counsel contended that due to the fact that the election was generally free, fair and peaceful and the regrettable anomaly of interchanging the results of the Petitioner with those of the 2nd Respondent would not affect or cause a change on the eventual outcome of the election race. That Court finds that the Petitioner was not affected in a substantial manner so as to upset the eventual result of the District Local Council 5 chairperson.
As regards the 2nd and 3rd issues, the 2nd Respondents contended that S 139 of the Local Government Act Cap 243, spells out the grounds of setting aside the election petition.
Counsel contended that S. 139 of the Local Government Act spells out the grounds for setting aside an election, and these grounds have not been proved to the satisfaction of the court.
Counsel contended that the allegations in the affidavit in support of the petition paragraph 8(i), 7(ii), all fall short of the proof that the allegations of the alteration of results were deliberate and intentionally executed to the detriment of the Petitioner.
Counsel called upon court to make a finding of fact and law that the 2nd Respondent was not to blame for the alleged alterations, of the entire elections for Mbale District Local Government Council Chairperson, as pleaded in paragraph 7 of the Petitioner's affidavit in support.
That further no cogent evidence was adduced to show that the 2nd Respondent was to blame for what happened during the tallying process and the results of the Mbale District Local Council V Chairperson as reflected in the results of the tally sheet only affected the Petitioner and that such allegations affected the outcome of the entire elections in a substantial manner.
Counsel contended that the expression affected the results in a substantial manner was considered by the Supreme Court in EP No. 01/2001 Rtd. Col. Dr. Kizza Besigye Vs Yoweri Kaguta Museveni, were the Learned trial Judge approved the judgment of Mulenga J .C. at pg 355 where he said;
"To my understanding therefore, the expression noncompiiance affected the results of the election in a substantial manner can mean that the votes of the candidate obtained would have been different in a substantial manner if it were not for noncompliance substantially. That that means that to succeed, the Petitioner does not have to prove that the declared candidate would have lost. It is sufficient to prove that the winning majority would have been reduced. Such reduction however, would have to be such as would put the victory in doubt”
Counsel contended further that the burden of proof is on the Petitioner to prove that there was none compliance with the provisions of the law in the manner the elections were conducted. He has to show that the noncompliance was intended to affect the results of the election in a substantial manner.
Counsel further contended that while the Petitioner alleges that the results of the election were interchanged, in the respective polling stations he referred to and that the 1st Respondent would have obtained 39,910 votes and the Petitioner 40,310 votes, that by the Order of Court the 1st Respondent's secretary was directed to produce to Court declaration of results forms and results tally sheets of the entire Mbale District Local Council LC 5 Chairperson election held on the 24/2/2016 , hence on the 24th of February 2016, the said documents were produced through the Regional elections officer together with the Tally Sheets tendered in evidence as Exhibits . Counsel contended that a critical analysis of the DR Forms and results of the tally sheets in respect of the said election equally show that the 2nd Respondent's results in the 6 polling stations , were equally altered and interchanged in favor of the Petitioner and therefore significantly affected the 2nd Respondent's results in a way that the DR Forms and the results Tally Sheets in respect of the said entire elections equally reveals that the 2nd Respondent's results in the six polling stations were equally altered and interchanged in favor of the Petitioner and there by significantly affecting the 2nd Respondent's results generally.
Counsel further contended that it is trite law that a winning candidate in his answer to a petition cannot raise such malpractices or irregularities to defeat the petition. That with regard to the matter before court sections 138 & 139 of the Local Government Act are quite clear on the locus standi to the petition and the grounds for petition.
That the 2nd Respondent was by Law estopped to plead in answer to the petition and
raise irregularities /anomalies in the Declaration of Results sheet and Result tally sheet
that affected his results as a winning candidate. He cited the of Ngoma Ngime vs Electoral Commission & Hon. Winnie Byanyima Court of Appeal EP No 11/2002 where Justice Byamigisha held,
"In the matter before us the learned trial Judge misdirected himself on the law applicable', the 2nd Respondent as a candidate who won the election could not raise by her answer to the petition> matters concerning the appellant at all. He made the allegation that irregularities were committed during the electoral process by the 2nd Respondent and her agents. Her duty was to reply to those allegations and stop there. On the basis of the rule I have cited, she could not raise other matters, especially those that were intended to defeat the petition."
The 2ndrespondent contended that he also lost votes in 6 polling stations, counsel contended that upon the above position, that the 2nd Respondent did not raise and or plead the anomalies in the results tally sheet, as it would amount to a cross petition or counter petition as a winning candidate to support his contention.
However, counsel contended that it is settled law by the courts that illegality of any issue is a question of law which can be raised at any time or at any stage of the proceedings, with or without prior knowledge of the parties ,he cited authorities to that effect like Jarget Singh Baines Vs Ismael Mohammed Chogley (1949-1950) E.A 27, where the Court of Appeal for East Africa per Sir Barclay Nihil with approval of the statement by Scrupton L.J in Philips Vs Copings (1935)1 KB 15 had this to say;
"It is the duty of the Court when asked to find Judgment which is contrary to a statute to take the point although the litigants may not take it..."
Counsel also cited the famous case of Makula International Ltd Vs His Eminence Cardinal Nsubuga & Rev. Fr. Dr. Kyeyune CACA No. 4 of1981 (1982) HCB 11,
where the Court of Appeal held inter alia that, "A court of law cannot sanction what is illegal, an illegality once brought to the attention of court, overrides all questions of pleadings, including any admissions made thereon".
Counsel contended that illegality supersedes everything else, raised by the parties. That this rule of pleadings notwithstanding this honorable court is seized with the jurisdiction to entertain written submissions, filed by the 2nd respondent to resolve the question of illegality.
That additionally, the court under section 33 of the Judicature Act is empowered to make appropriate orders or remedies to meet the ends of justice.
That the certified copy of tally sheets for Mbale Local Council 5 Chairperson Elections exhibited by the Order of Court equally shows that the result of the 2nd Respondent were irregularly altered and or inadvertently interchanged by the data clerks of the 1st Respondent while recording results in the Results Tall sheets of the elections for six polling stations where results at the said polling stations for the 2nd Respondent were recorded in favor of the Petitioner as per the results Tally sheet contrary to the entries recorded in the Declaration of Results form. That the question to be determined is whether the irregularity /anomalies altering the results of the elections as revealed, were intended to affect the results in a significant manner and if the alteration of the votes as indicated in the result tally sheet and the DR Form affected the outcome of the elections and put the 2nd Respondent's victory in doubt?
That the answer is clearly No and that in order to determine the question, Court has to look at the irregularity/alterations in totality with regards to numbers that were inadvertently interchanged.
That the Return Form for transmission of Results attached to the results tally sheet submitted to court shows that there were a total number of 80369 valid votes cast for the candidate, the 2nd Respondent obtained majority votes and the Petitioner got 38,710.
That the itemized table attached here by the 2nd Respondent reflects the results as they appear in the DR Form certified copies thereof attached for ease of reference in respect of the said 2nd respondent shows that in the six polling stations referred to they were altered or interchanged in favor of the Petitioner.
Counsel invited court to look at the results tally sheet for the six polling stations, which clearly shows that the results of the 2nd Respondent that were altered or interchanged in favor of the Petitioner per the tally sheet before court resulted into a difference of 659 votes, that were meant to be added to the 2nd Respondent but the 1st Respondent's Returning officer inadvertently omitted to include the same and or rectify the anomaly.
That Whereas the Petitioner contends that he would have won the elections by a difference of 400 votes in the 19 polling stations, the revelation therein , if the 2nd Respondent's results that were altered /interchanged in favor of the petitioner, would still render the 2nd Respondent in the lead by a vote difference of 259 votes since the 2nd Respondent's to the tune of 659 were altered in favor of the Petitioner in the six polling stations in the itemized declaration of the results attached hereto.
Counsel contended that the Petitioner selectively referred to 19 polling stations in his favor, as against the 6 polling stations herein referred to that equally affected the 2nd Respondent in the entire election and as such the numbers of votes as demonstrated did not affect the entire results of the 2nd Respondent in a significant manner to reduce the superior margin accorded to him as the winner in the entire election as per the return form for the transmission of the results for the 1st Respondent.
As for the 3rd issue, Counsel for the 2nd Respondent contended that the person who was elected being the 2nd Respondent won the entire results for Mbale LC5 Chairperson Elections. In rejoinder on this issue, Counsel for Petitioner submitted that from reading the submissions of the Respondents, both admit the fact that there was falsification and/or alteration of results from the 19 polling stations as they both admit its truth during cross examination.
As regard whether there was none compliance with the law and whether it affected the results of the election in a substantial manner, according to S 139 of the Local Government Act , it's provided as follows; the election of a Chairperson or a Member of the Council shall be set aside on any of the following grounds; that is failure to conduct the elections in accordance to the provisions of this part of the act, and that the noncompliance or failure affected the results of the election in a substantial manner.
According to the case of Col. Rtd. Dr. Kizza Besigye Vs Yoweri Kaguta Museveni EP 1/2001, it was held that; to prove noncompiiance , the resuit has to be to such an extent that the matter will be affected, Benjamin Odoki C.J. as he then was in the same case , set down principles that court takes into account in considering whether there was noncompliance
- The election must be free and fair and that is the cardinal principle.
- The election must be conducted in compliance with law, procedure laid down by the parliament.
- There must be transparency in the conduct of the elections at the highest expression of the general will of the people.
- The election procedure should guarantee the secrecy of the ballot and the accuracy of counting.
In the instant case, there were 3 sub counties in the constituency and according to annexture of the tally sheet, there were a total of 220,339 voters. The 2nd Respondent got 41, 658 votes while the Petitioner got 38,710 votes. There is a difference of 2,949 votes between them. The evidence on record shows that, the election was conducted in a peaceful manner. It started at 9.30 a.m. and ended at 4.00 p.m. No incident of voter irregularity and malpractice generally were registered. Apart from the interchanging and alterations in the results which were entered in the results which were registered in the 19 polling stations, the elections were generally fair and peaceful. The Petitioner in those 19 polling stations conceded that there were alterations of votes, interchanging of votes, which led to a difference of 1,769 votes.
The total of 1,059 votes were registered in excess and were assigned to the 2nd Respondent as a result of this alterations. According to the transmission of results allocated to the tally sheet submitted to court, it shows that a total of 80,309 votes were cast for the candidates. The 2nd Respondent registered the votes which I have stated already.
Counsel for the Respondent contended in this submission the results of 6 polling stations were also interchanged. This contention was not brought in his petition and it is trite law that parties are bound to their pleadings but being an illegality, Court cannot ignore it.
In the circumstances of this case, the returning officer while in Court during cross examination conceded that there were alterations, interchanging of results which caused swapping in favor of the 2nd Respondent in the 19 polling stations which resulted into a total of 1,707 votes being assigned to the 2nd Respondent in excess. Court had the opportunity to look at the DR forms and tally sheets from the 19 polling stations whose results the Petitioner complained of, which showed that the 1st Respondent did not observe accuracy in tallying of the results. The evidence of the Petitioner however, during the trial does not suggest otherwise, that the contention goes beyond the 19 polling stations, and it is only in those polling stations, that the petitions that the petitioner sought an investigation to which the court complied with.
The submissions of the 2nd Respondent indicated that there was also swapping of results in the 6 polling stations, although he did not state it in his pleadings.
As I have already stated that parties are bound by their pleadings. Court therefore ignores this submission, though he did not state it in his pleadings, it is an illegality and court cannot ignore it because of the case of Makula International (supra). It is clear that the alterations, interchanging of results by the 1st respondent, led to a substantial number of votes being lost or assigned by the 1st respondent to the 2nd respondent, 1, 767 votes. Nevertheless, considering that there were 3 Sub Counties and 427 polling stations in the Constituency, it is difficult to declare the eventual winner of the elections since only results of 19 out of the 427 polling stations were held in question.
In view of the above, having perused through the petition, the evidence on record and the submissions of both counsel, I am compelled and court is compelled to find that it is difficult for the court to declare the winner of the election based on the anomalies in 19 out of the 427 polling stations. In those circumstances, the petition is allowed, and the court makes the following orders;
- The election of the 2nd Respondent as the Chairperson LC V Mbale District is hereby annulled and the election is set aside.
- The 1st Respondent is directed to organize a by election with new officers to supervise that by election.
- The parties to bear their own costs in this petition and the parties have a right to appeal.
MARGARET C. OGULI OUMO
- Musamali Martin and Mugogo Edward for the 2nd Respondent
- 2nd Respondent in Court
3.Mugogo Edward and Musamali Martin holding brief for the 1st Respondent
4. Mutembuli Yusuf and Nabbende Isaac for the Petitioner.
5.Petitioner in Court.