Agaba v Electoral Commission (Election Petition 1 of 2018) [2018] UGHC 39 (11 July 2018)

## **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA**

### **IN THE MATTER OF THE PARLIAMENTARY ELECTIONS ACT 2005**

**AND**

### **IN THE MATTER OF THE ELECTORAL COMMISSION ACT CAP 140**

**AND**

# **IN THE MATTER OF THE PARLIAMENTARY ELECTIONS (APPEALS TO THE HIGH COURT FROM COMMISSION) RULES SI NO. 141-1**

## **ELECTION PETITION NO. Ol OF 2018**

**AGABA PETER------------------------------------------------------------------------- PETITIONER**

**VERSUS**

**ELECTORALCOMMISSION----------------------------------------------------------- RESPONDENT**

### **BEFORE HON. JUSTICE SSEKAANA MUSA**

## **JUDGEMENT**

This is an appeal by way of Petition, in which the Petitioner, Agaba Peter, is challenging the decision of the respondent, the Electoral Commission, declining to nominate him as <sup>a</sup> candidate for Ibanda Municipality Constituency Member of Parliament, on grounds that his nomination papers were not accompanied with evidence of academic qualifications as required under section 4(l)(c) of the Parliamentary Elections Act, 2005.

The said decision was communicated in <sup>a</sup> letter dated 13th June 2018 by the Chairman of the Respondent, Justice Byabakama Mugenyi Simon to the appellant through his lawyers M//s KTA Advocates & Solicitors.

At the hearing of this appeal on 12th June 2018, the academic documents were presented again and they looked at them and clearly the reasoning was shocking. The academic documents were attached and they were not only the originals but also the verified copies from UNEB.

He further submitted that the Commission is clothed with authority to nominate because the returning officer is executing powers delegated to him by the commission. Even if it was found that he never presented originals, the law does not specify that originals must be presented. He did present his photocopies from UNEB.

Counsel Simon Kiiza also submitted that under Section 15 of Electoral Commission Act is mandated to examine and see whether the ground of refusal to nominate was genuine. According to him, the petitioner presented originals at the hearing and in resolution 10 of the proceedings of the Electoral Commission, it was noted that in future the DR/RO guidelines should include; The need to have <sup>a</sup> Registration Book for aspirants who came up for Nominations and The need for every DR/RO to endorse on every Nomination Document, the reasons why the DR/RO has rejected or passed to ease future reference.

It was his submission that there was doubt in the minds of the Commission and hence the need to amend the guidelines and in case of any doubt, the same should have been resolved in favour of the petitioner. Counsel cited the case of *Mukundane Vincent & Ahaisibwe Gordians vs EC & Melichiadis Kazwengye Election Petition No. 04 of 2010,* for the proposition that the procedure to be followed in establishing academic qualifications with the Electoral commission was not prescribed.

The respondent opposed the petition and filed an affidavit of Mugabi Justine Ahabwa, and contended that annexture <sup>B</sup> forms the gist of the respondent's defence.

*"Agaba appeared before the DR/RO for further verification as directed by the 1st desk. He told him that he could not be cleared without the original* The finding of the Commission was that;

*1*

- *• The complainant did not deny that they DR/RO was ready to assist him in complete his nomination process ifhe provided the originals of the academic papers.* - *• Though Agaba claimed to have had the original and copies of his academic papers, he did not present them during nomination and despite advice to pick them so that they can be verifiedfor his clearance as a candidate.*

It is my finding that the petitioner presented copies of his academic papers but he did not have the original academic papers. The petitioner indeed presented the copies of the academic papers but lacked originals for verification with the originals.

The main question for the determination of the court arising out of the submissions of the petitioner and respondent is whether the Returning Officer was right to refuse to nominate the petitioner because he lacked original academic documents.

According to section *4(5) ofthe Parliamentary Elections Act* it is provided;

*"For purposes of paragraph (c) of subsection (1) any of the following persons wishing to stand for election as a member of Parliament shall establish his or her qualification with the commission as a person holding a minimum ofqualification ofAdvanced level or its equivalent at least two months before nomination day in the case of a general election, and two weeks in case of a by election-*

*fa) Persons, whether their qualification is obtainedfrom Uganda "*

In addition section *4(13) of the Parliamentary Elections Act* is also very instructive on the question of verification of academic papers/qualifications;

*For avoidance of doubt, if a candidate has an advanced level certificate obtained in Uganda or qualifications higher than the prescribed qualification obtained in Uganda or from the former University of East Africa or any of its constituent colleges, then, there shall be no need for* In the case of *Ongole James Micheal vs Electoral Commission & Ebukalin Sam HCEP NO... 0008..of 2006.* The learned Judge Stephen Musota (as he then was) held as follows;

/

*"The law relating to nominations and election of Chairpersons as quoted above has been put into perspective. It is true as submitted by learned Counselfor the respondents that it is not mandatory for a prospective candidate for nomination to contest LC.* 1/ *elections to produce original 'O' and 'A' Level Certificates as a basis for nomination. What the law requires is proof or evidence of completion of a minimum advanced level qualification or its equivalent. I agree with the submission of Counsel Ssekaana that proofofthis can be done in a number of ways which can be determined by the Electoral Commission. Statutory Declarations and/or affidavits are the methods out lowed in proofof an academic qualification. (See section 111 3E).*

*When the second respondent appearedfor nomination, the returning officer stayed the same because he did not present both his 'O' and 'A' Level original Certificates. I am ofthe view that this rejection and requirement had no basis in law. Since the Electoral commission has the discretion to determine what satisfies it as proof of 'A' Level qualification in cases where there is no ambiguity, and then it was right to nominate the second respondent on production of an original Academic Transcript for a Diploma which is a higher qualification than 'A' Level. Given that the Diploma was obtainedfrom Uganda after 'A' level, it did not require any verification by the National Councilfor Higher Education. As rightly pointed out by learned Counsel for the respondents, ifphotocopies presented by the second respondent on his first appearance were rejects as ifit was a legal requirement, then this was done in error because, as stated earlier, the law does not prescribe ways in which proof of qualifications must be made. This can be by presentation oforiginals or otherwise and it leaves options open to the Commission to even accept or rely on photocopies. Evidential details may be leftfor trial sessions like the instant one. Of course there could be a fear that some unscrupulous people could presentfake papers but this was dealt with by my brother D. K. Wangutusi J. in a similar case of Kabaale Kwagala Olivia vs. Beatrice Zirabamuzaale Magoola and Electoral Commission, Electoral Petition No. 3/2006 at Jinja. In this petition which was premised on academic qualifications, it was held inter alia that:*

This court finds that the commission was erroneous in upholding and confirming the decision of the Returning Officer who refused to nominate the petitioner because of failure to present original academic papers.

In the final result this Petition succeeds and the respondent is ordered to nominate the petitioner.

The petitioner is awarded costs of this petition.

It is so ordered

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**SSEKAANA MUSA JUDGE** $11^{th}$ /97/2018