IN THE HIGH COURT OF UGANDA AT KAMPALA
MA 103 OF 2017
(ARISING FROM MA 102 OF 2017 AND ELECTION PETITION NO. 1 OF 2017)
YONA MUSINGUZI ………………………………..……………….APPLICANT
- NATIONAL RESISITENCE MOVEMENT
- ATTORNEY GENERAL……………………………………RESPONDENTS
BEFORE HON. LADY JUSTICE H. WOLAYO
The applicant through Newark advocates sought an interim order restraining the 2nd respondent institution to wit Parliament of Uganda from accepting the flag bearers of the 1st respondent as candidates for member of the East African Legislative Assembly( EALA) until disposal of the main application. The application was supported by affidavit in support of the applicant. Mr. Harimwomugasho appeared for the applicant.
The 1st respondent who was represented by Mr. Elison Karuhanga of Karuhanga, Kasajja & Co. Advocates filed an affidavit in reply of Oscar Kihika opposing the application.
The 2nd respondent who was represented by Senior State Attorneys Richard Adrole and Gerald Batanda filed an affidavit in reply of Jane Kibirige opposing the application.
It was the applicant’s case that he has filed MA 102 of 2017 seeking a temporary injunction to restrain the 2nd respondent from holding the election of members of the East African Legislative Assembly on 28.2.2017.
He averred in paras. 6 and 7 of the affidavit in support that based on information from the 1st respondent that nomination and voting of candidates in the primary elections would be carried out in the categories of one woman representative, one representative from Kampala, one representative for special interest groups and four regional representatives ( western , eastern, northern and central) he campaigned and contested for the western region.
According to the applicant, guidelines on polling day of 7.2.2017 were issued and elections held but before tallying was completed, the election was called off and another election scheduled for the next day 8th February 2017. It was the applicant’s evidence that by the time the election was called off, he was leading candidates contesting for the Western region and that that information is in the possession of the 1st respondent.
The applicant’s case further is that on 8th February he participated in the election and emerged 8th but that the rules had changed removing the categories that had formed the basis of the 7th February elections.
My analysis of the applicant’s complaint is that he joined the race on the understanding that elections would be based on seven categories including the western region category but that on 8.2.2017, the rules changed removing the categories and only six candidates were elected which left him out as he emerged in the 8th position.
The 1st respondent’s explanation for the aborted 7th February election was that there was confusion as to whether the NRM should nominate seven candidates or six and the consensus was only six candidates be nominated hence the holding of fresh elections on 8th February.
Furthermore, it was the 1st respondent’s case that campaigning on regional basis was not set out in the NRM guidelines except for the requirement to reserve 40% of positions for women .
I have examined the written guidelines entitled polling day guidelines for EALA NRM primaries 2017 and there is no mention of representation by regions. These guidelines were relied upon by both the applicant and 1st respondent.
If verbal guidance was given on 7th February to elect candidates based on regions, the issues that arise are whether this was permissible within the context of how elections in primaries are generally conducted and whether the guidance could be changed as and when pertinent issues arose. These are issues for trial among others and it is premature for me to pronounce on them at this stage.
I now turn to the law applicable to the grant of temporary injunctions.
I have carefully considered oral submissions of all counsel and studied the authorities availed to me.
The law applicable to the grant of temporary injunctions applies to interim orders.
It is now settled that for a temporary injunction to issue, the applicant’s suit must have a likelihood of success; it must be shown that he will suffer irreparable damage, and if none of these two applies to the facts, the application is determined on a balance of convenience.
The applicant seeks an order restraining the 2nd respondent from accepting the six candidates nominated by NRM until disposal of the main application. As counsel for both respondents submitted these nominees have already been accepted by the 2nd respondent as candidates. According to the road map issued by Parliament, by 20.2.2017, the nominees were to be displayed .The affidavit of Oscar Kihika confirms that the candidates have gone through the parliamentary vetting process .
This means the order sought has been overtaken by events. Counsel for the applicant relied on SC Const. Applic. 4 of 2014 Hon Theodore Sekikubo and four others v AG in support of his submission that where there is partial execution, a stay can be ordered.
That is correct legal position but in this application , the candidates have already been accepted as candidates for the East African Legislative Assembly yet the applicant wants court to stop that acceptance which order would be issued in vain . Courts do not issue orders in vain.
What is left is for the elections to take place . If the applicant had sought an order to stop the elections, it would have been within the parameters of the Supreme Court precedent but he did not. Apparently these are the orders sought in the main petition in which he prays that the results of 8th February be annulled and those of 7th February be upheld. In the alternative , he prays for fresh elections and a permanent injunction against the persons nominated by the 1st respondent from participating in the EALA elections on 28.2.2017.
Even if the applicant had asked for these orders in the interim application, the likelihood of success of the main petition is in doubt owing to the requirement in section 4(2) of the EALA Act 2011 for Parliament to elect representatives within 90 days of the expiry of the term of the current Parliament. As counsel for the respondents suggested, this court has a duty to give effect to Community laws and to cause a change to the road map for elections would contravene the EALA Act.
In other words, the prayer to stop elections of the nominees of the 1st respondent sought by the petitioner in the main petition is not sustainable by virtue of section 4 (2) of the EALA Act. That section is in the following terms.
4(1) the National Assembly of each Partner state shall in accordance with its rules of procedure elect , not from among its members, nine members of the Assembly.
4(2) The National Assembly shall elect members of the Assembly within 90 days from the expiry date of the outgoing Assembly.
Read together, the two sub sections make it mandatory that nine members will be elected. To issue an order stopping some of the candidates from participating in the election goes against the spirit of section 4(1) and 4(2) and also section 4(3) that requires representation of political parties represented in the National Assembly.
For the foregoing reasons, the application for an interim order is dismissed with costs in the cause.
DATED AT KAMPALA THIS 24TH DAY OF FEBRUARY 2017.
HON. LADY JUSTICE H. WOLAYO