THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA
(CORAM: ODOKI, CJ., TSEKOOKO, MULENGA, KANYEIHAMBA, JJSC., AND LADY JUSTICE MPAGI-BAHIGEINE, AG. JSC.)
ELECTION PETITION APPEAL NO.25 OF 2007
JOY KABATSI KAFURA ::::::::::::::::::::::::::::::::: APPELLANT
1. ANIFA KAWOOYA BANGIRANA ::::::: RESPONDENTS
2. ELECTORAL COMMISSION
[Appeal from a judgment of the Court of Appeal at Kampala (Okello, Engwau and Kitumba, JJ.A.) dated 5th October, 2007, in Election Petition Appeal No.3 of 2007 and No. 4 of 2007]
JUDGMENT OF TSEKOOKO, JSC:
This is a second appeal. It arises from a decision of the Court of Appeal which reversed a judgment of the High Court at Masaka (Mukiibi, J.) in Election Petition No. 1 of 2006 between the appellant and the respondents.
On 23rd February, 2006, Presidential and Parliamentary General Elections were held throughout this country. Prior to the holding of the elections, the Electoral Commission (2nd respondent) was required by the Electoral Commission Act, “the Act”, to carry out certain functions and duties. These include the appointment of electoral officials such as the District Returning Officers who in turn would appoint Assistant District Officers, presiding officers and polling assistants. A District Returning Officer is in charge of an electoral district while an Assistant Returning Officer is in charge of part of such a district whereas a presiding officer and a polling assistant would be in charge of election matters at a polling station. The Act also requires such appointments to be gazetted. According to Subsections (3) and (4) of S.30 of the Act:-
30 (3) The commission may, by notice in the Gazette, remove from office any returning officer where the retuning officer-
(a) is appointed by virtue of a public office and the person appointed returning officer ceases to hold public office;
(b) ceases to be ordinarily resident in the district for which he or she is appointed returning officer;
(c) is incapable, by reason of illness or physical or mental infirmity, of satisfactorily performing his or her duties as returning officer;
(d) is incompetent;
(e) has been proved to be partial in the performance of his or her duties; or
(f) has since his or her appointed, behaved in a corrupt manner in relation to his or her duties as returning officer.
(4) Where the office of returning officer becomes vacant, the appointment of a returning officer for that electoral district under subsection (1) shall be made within fourteen days from the date on which the commission is informed of the vacancy.
Kabatsi Joy Kafura (the appellant), Anifa Kawooya Bangirana (the 1st respondent) together with two other women, namely, Namukasa Justine Mukiibi and Nakiganda Irene Josephine, contested for the Parliamentary seat of the woman Member of Parliament, Sembabule District, in the said general elections. It seems the appellant encountered problems in the course of her campaign for election in the district. There is evidence that the Hon. Sam Kuteesa who was contesting in one of the constituencies in the same district wanted one Muwaya Tibakuno, the then District Returning Officer, and all presiding officers and polling assistants who had been appointed by him throughout the district to be replaced. Evidently there was disagreement between the appellant, the Hon. Ssekikubo MP, and Herman Ssentongo (who eventually won the LC5 Chairmanship) described as "side A", on the one hand, and the Hon. Sam Kuteesa, MP, the 1st Respondent and others described as side "B", on the other. A meeting intended to iron out the disagreement was convened at Sembabule District Headquarters on the 17th February, 2006.
On that day Hon. Sam Kuteesa appeared at the venue of the meeting. When Mr. Muwaya Tibakuno, took the chair to conduct the meeting, Hon. Kuteesa announced to the gathering that the gentleman was no longer the District Returning Officer because the Electoral Commission had replaced him with a Mr. Ibrahim Kakembo as the new Returning Officer and therefore the latter should chair the meeting. This provoked protests from side “A”. Hon. Kuteesa produced his list of prospective presiding officers and polling assistants. The matter could not be settled. The Hon. Sam Kuteesa telephoned officials of the Electoral Commission headquarters, following which another meeting was fixed to take place on 20th February, 2006. During the meeting of 20th February, 2006, at the headquarters of the 2nd respondent, a number of matters were discussed and reduced into a Memorandum of Understanding (MOU). This document which was produced in evidence shows in para 1 of the preamble that there had been disagreements between the two sides regarding presiding officers and polling assistants. In the second paragraph the MOU states that the sides recognised that disagreements pose serious threat to unity, peace and stability of the district. The meeting went on until very late at night. Apparently the 2nd respondent urged that elections must take place in the district.
The MOU indicates, inter alia, that each of the sides (“A” and “B”) would nominate a person to be appointed presiding officer so that at each polling station there were to be two Presiding Officers. I think that this was strange because the arrangement was not based on any law of which I am aware.
On the 23rd February, 2006, elections were indeed held during which the first respondent polled 29,398 votes against 28,199 for the appellant, Ms. Mukiibi polled 1,649 while Ms. Nakiganda got 789 votes. Consequently, the first respondent was declared the winner and, therefore, the Woman Member of Parliament for Sembabule District.
The appellant was dissatisfied with the results. She petitioned the High Court, at Masaka, to have the election of the first respondent annulled on a number of grounds. In the first ground she complained that the second respondent conducted the entire parliamentary election for woman Member of Parliament in Sembabule District in contravention and contrary to the provisions and the principles laid down in the Parliamentary Elections Act, the Electoral Commission Act and the Constitution and the generally accepted principles in (many) ways which were enumerated in the petition. These complaints were about malpractices which were allegedly perpetuated by the first respondent and or Hon. Sam Kuteesa and or the second respondent or their respective agents. Another complaint was that the first respondent did not possess the requisite educational qualifications. In their answers the respondents denied the allegations and averred that the elections were free and fair.
ISSUES FOR TRIAL
Five issues were framed for determination by the Court. The first and second of these were framed thus –