Baguma v Kunihira & Another (Election Petition Appeal 3 of 2023) [2024] UGCA 100 (3 May 2024)

Full Case Text

# THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

(Coram: Muzamiru M. Kbeedi, lrene Mulyagonja & Christopher Gashirabake, JJA)

# ELECTION PETITION APPEAL NO. 03 OF 2023

HON. BAGUMA SPELLANZA MUHENDA APPELLANT

### YERSUS

# 1. KUNIHIRA FAITH PHILO 2. THE ELECTORAL COMMISSION RESPONDENTS

[Appeal from the Judgment of the High Court of Uganda at Fort Portal (Hon. Lady Justice Jeanne Rwakakooko) delivered on the 24n day of February 2023 in Election Petition No.007 of 2021)

#### JUDGMENT OF THE COURT

#### lntroduction

- t1l The appellant and the 1st respondent together with two others, contested for the seat of District Woman Representative in Parliament for Kyenjojo District in the national General Elections held in Uganda on the 14m of January 2021. - l2l Soon after the nomination of the 1't respondent as one of the contesting candidates in the said election, the Appellant lodged a complaint with the Electoral Commission (2na Respondent) alleging that the nomination of the 1st Respondent as a candidate was illegal as she did not possess the minimum academic qualifications. Nonetheless, the campaigns went ahead unhindered, and, upon conclusion of the election, the Returning Officer of the 2no Respondent declared the 1st Respondent as the validly elected District Woman Representative in Parliament for Kyenjojo District with a winning margin of 23,611 votes, having obtained a total of 75,576 votes, while the Appellant was the runner-up having garnered a total of 51,965 votes.

- t3l The 2no Respondent thereafter published the 1st Respondent in the Uganda Gazette as the winning candidate. The 1't Respondent was subsequently sworn in as the Woman Member of Parliament for Kyenjojo District and she still holds the same position to date. - t4l Being aggrieved by the election results, the Appellant filed Election Petition No. 007 of 2021 in the High Court at Fort-Portal against the 1st and 2no Respondents challenging the election and declaration of the 1st Respondent as the elected Woman Member of Parliament for Kyenjojo District. The Petition was grounded on alleged want of qualifications on the part of the 1.t Respondent, non-compliance with electoral laws, alleged commission of illegal practices and election offences as set out in section 62 (a) and (c) of the Parliamentary Elections Act (PEA).

- tsl The Petition first came up for trial before Hon. Justice Victoria N. M. Katamba. Counsel for the Respondents raised a preliminary objection as to the competence of the Petition. lt was argued that the affidavits in support of the Petition having been commissioned by an advocate who had no valid practicing certificate at the time, the Petition was incompetent and ought to be struck out. - t6] The trial Judge upheld the preliminary objection and struck out the Petition with costs to the Respondents. - l7l Aggrieved by the decision of the trial Judge, the Appellant appealed to this Court, vide Election Petition Appeal No. 19 of 2021. This Court held that the absence of the Appellant's affidavit in support of the Petition did not automatically render the election Petition defective. That the learned trial Judge therefore erred in law when she held that a Petition without an affidavit, is not a Petition at all. The Court of Appeal allowed the appeal, set aside the orders of the trial court and ordered that the file be remitted to the High Court for trial of the Petition on its merits before another Judge.

I8l The retrial was conducted by Hon. Lady Justice Jeanne Rwakakooko.

- tgl At the retrial on merits, the 1't Respondent denied the allegation of want of qualification and ineligibility for nomination. She contended that the complaint of academic qualifications having been raised before the 2nd Respondent by the Appellant was a pre-polling issue which the High Court lacked jurisdiction to entertain as part of the election petition challenging the results of the election. - [10] Further, she denied the allegations that the election was marred by illegalities, multiple voting, violence, bribery and any electoral malpractices as alleged by the Appellant. She too, denied the allegations of any illegalities committed by her or any other person with her knowledge, consent or approval. - [11] The 2no Respondent similarly denied the claims against it and prayed for the dismissal of the Petition. - 1121The learned trial Judge held that the 1st Respondent was, at the time of her nomination and election, qualified for election to Parliament as a Member of Parliament, and was legally and duly nominated and elected for District Woman Representative to Parliament for Kyenjojo District. Further, that the Petitioner had not shown that the non-compliance complained of substantially altered or had an effect on the final results of the election of the 1st respondent. - [13] Accordingly, the High Court dismissed the Petition with costs to the Respondents - l14l lmmediately after the delivery of the judgment by the Court, Counsel for the Appellant orally informed the trial Court that the Appellant was dissatisfied with the Court's decision and intends to appeal. He cited the Parliamentary Elections (lnterim Provision) (Election Petition) Rules which provide for an oral notice of appeal.

- [15] ln its Ruling on the application, the Court disallowed the Appellant's oral application and directed her to"file the same formally in the usual manner, in Fort Portal." - t16l The Appellant accordingly filed the formal Notice of Appeal in the High Court in Fort Portal.

# Grounds of Appeal

- l17l The Appellant thereafter lodged the Memorandum of Appeal in this Court contesting the decision of the trial court on the following grounds: - 1) The learned trial Judge erred in law when she applied and relied on erroneous principles of law on appealing againsf fhe said Judgment and orders in Election Petition No. 7 of 2021 thereby arriving at an unjust and erroneous decision. - 2) The learned trial Judge erred in law and fact when she held that the 1st Respondent was, at the time of her nomination and election qualified for election to Parliament as a ltlember of Parliament. - 3) The learned trial Judge erred in law and fact when she held the lst Respondent was legally and duly nominated and elected for District Woman Representative to Parliament for Kyenjojo District. - 4) The learned trial Judge erred in law and fact when she held that the Parliamentary elections held on 14th January 2021 were conducted in compliance with the Parliamentary Elections Act, 2005 (as amended). - 5) The learned trial Judge erred in law and fact when she failed to hold that there was non-compliance with the electoral taws that affected the outcome of

the elections for District Woman Represenf ative to Parliament for Kyenjojo District rn a substantialmanner.

- tl Bl The Appellant then made the following prayers: - i, That the Petition is allowed - ii. ADeclaration that the l't Respondent was at the time of her nomination and election not qualified for election to Parliament. - iii. ADeclaration that the 1st Respondent having been nominated for the election illegally was not validly elected as fhe District Woman Represenfative to Parliament for Kyenjojo District. - A Declaration that the duly elected person for District Woman Representative for Kyenjonjo Districf is fhe Appellant who has the highest number of valid vofes cast among the remaining validly nominated candidates for the said seaf, IV, - The Appellant be declared and Gazetted as the duly elected District Woman Representative to Parliament for Kyenjojo District. V - VI, ln the alternative, an order that the election of the 7't Respondent as the District Woman Representative for Kyenjojo District is sef aside, fhe seaf is declared vacant and a new election is ordered, - vii. That the Respondents pay fhe Cosfs of this Court and the Lower Court.

#### Representations

t19l At the hearing of this appeal, the Appellant was represented by Mr. Ben Ssemanda Zziwa and Mr. Francis Obbo; while Mr. Joseph Kyazze and Mr. Franklin Alfred

Madara, appeared for the 1st respondent. The 2no Respondent was represented by Mr Enock Kugonza.

t20] Leave was granted by the court to the parties to proceed by way of written conferencing notes which were adopted as the parties' respective legal arguments. However, the Appellant was further permitted by the Court to file additional submissions to cater for any matters arising from the trial Judge's notes which were availed to this Court and the parties on the date the hearing of the appeal took place. This judgment has therefore been prepared largely on the basis of the Written conferencing notes and written submissions.

## Duty of the Appellate Court

- l21l The duty of this Court sitting as a first appellate court from a decision of the High Court is set out in Rule 30(1) of the Judicature (Court of Appeal Rules) Directions, Sl 13-10 ('the Court of Appeal Rules') to be to 're-appraise the evidence and draw inferences of fact.' - l22l The said Rule is applicable to election petition appeals by virtue of Rule 36 of the Parliamentary Elections (lnterim Provisions) Rules, S.l. 141-2 which adapts to election petition appeals 'any rules regulating the procedure and practice on appeal from decisions of the High Court to the Court of Appeal in civil matters.' ln Banco Arab Espanol v Bank of Uganda, Civil Appeal No. 8 of 1998 (Supreme Court), the duty to re-evaluate the evidence on record was held to be applicable to the re-appraisal of both oral and affidavit evidence save that the trial Court's impressions on the demeanour of witnesses would be inapplicable to affidavit evidence. This duty does similarly apply to election petition appeals before the Court. See: Achieng Sarah Opendi & Another v Ochwo Nyakecho Keziah, Election Petition Appeal IVo. 39 of 2011

[23] It is with the above principles in mind that we now proceed to analyse the grounds of appeal starting with the combined grounds two to five. Thereafter, we shall resolve ground one.

# Grounds two to five of the Appeal

# The AoDel submissions

- l24l From the submissions of the Appellant, the gist of the Appellant's complaint in grounds two to five is that at the time of the nomination and election of the 1't respondent as the District Woman Representative in Parliament for Kyenjojo District, she did not possess an Advanced Level Certificate (A Level Certificate) or any qualification equivalent to an A Level Certificate. That the Diploma Certificate presented by the 1st Respondent fell short of the standard set by the law in the sense that it was presented without a certificate of equivalence from the National Council of Higher Education (NCHE) to confirm whether the qualifications possessed by the 1st Respondent having been obtained from Uganda were equivalent to the A level Certificate. And that neither was it equated by the Uganda National Examinations Board (UNEB). - l25l Citing the cases of Kalemba Christopher and Electoral Commission Vs. Lubega Drake Francis Election Petition Appeal No. 32 of 2016 and Sembatya Edward Ndawula Vs Alfred Muwanga Election Petition Appeal No. 34 of 2016 Counsel for the Appellant submitted that presentation of a valid UACE certificate or its equivalent should suffice to qualify one to be a Member of Parliament, and that it was only UNEB that is mandated to equate any award of the Uganda Advanced Certificate of Education. - [26] The Appellant further submitted that soon after the nomination of the 1st Respondent, she filed a complaint with the 2no Respondent challenging what she termed as the 'illegal" nomination of the 1s Respondent as a result of her nomination to contest in

the election when she did not possess the academic qualifications prescribed for one to qualify for election as a Member of Parliament, but her complaint was never resolved by the 2nd Respondent.

- $[27]$ The Appellant faulted the trial Judge for failing to properly evaluate all the evidence presented by the Appellant at the trial on this issue of the legality of the 1st Respondent's nomination to participate in the election for District Woman Representative to Parliament for Kyenjojo District. The Appellant opined that the trial Court ought to have considered the evidence as to whether indeed the 1st Respondent was qualified to be a Member of Parliament, and as to whether the Appellant's complaint was indeed resolved and determined by the 2nd Respondent. - [28] Counsel faulted the trial Judge for resolving the issue concerning the illegality of the 1st Respondent's nomination by relying on Section 15 of the Electoral Commission Act Cap 140 and the authority of **Kasirye Zzimula Fred vs Bazigatirawo Kibuuka** Francis Amooti & Electoral Commission Election Petition Appeal No. 01 of 2018 where this court held that complaints before and during the polling should be resolved by the Electoral Commission under Section 15 of the Electoral Commission Act, and that the Appellant was estopped from bringing the complaint in respect of Academic qualifications after the election results were declared. Counsel sought to distinguish the authority of **Kasirye Zzimula Fred** (supra) from the instant case as in the former case, the Appellant failed to file a complaint before the Electoral Commission challenging the irregularities in the nomination forms of the Respondent, while in the instant case the Appellant complained about the nomination of the 1st Respondent but the said complaint was never determined on its merits, thus making it an exception to the position of the law in Section 15 of the Electoral Commission Act. - [29] Counsel cited the case of **Grace Nalubega Vs Juliet Suubi Kinyamatama and Electoral Commission, Election Petition Appeal No. 27 of 2021, where this Court** held that it would be incumbent upon the Appellant to establish the exceptions to the general rule set out in Section 15(1)of the Electoral Commission Act Cap 140.

- [30] Counsel argued that the process of nomination of the 1't Respondent having been carried out in contravention of provisions and principles of the Constitution of the Republic of Uganda as amended, the Parliamentary Elections Act No. 17 of 2005 as amended, and the Electoral Commissions Act, it warranted the exclusion of 1st Respondent and her results from the final tally. Consequently, argued the Appellant, the above non-compliance affected the result of the election in a substantial manner in the sense that it unfairly, illegally and/or unlavufully made the 1st Respondent a candidate and subsequent winner amongst the candidates for District Woman Representative to Parliament for Kyenjojo District whereas she was not qualified to contest in the election. - I31] Counsel for the Appellant concluded by praying that the appeal be allowed in the terms set out in the Petition.

## The 1't and 2no Respondents' ioint submissions

- t32l The 2no Respondent contended that it lawfully nominated the 1't Respondent, denied the alleged non-compliance with the electoral laws and, in the alternative, argued that if there was any non-compliance with electoral laws as alleged, it could not and did not affect the results of the election in a substantial manner. - [33] lt was the Respondents' submission that the position of the law is that the election of a Member of Parliament shall only be set aside on grounds stipulated under Section 61 of the Parliamentary Elections Act, 17 of 2005, if those grounds are pleaded and proved to the satisfaction of court. The Respondents relied on EPA No.109/2016, Lumu Richard Kizito Vs. Makumbi Kamya Henry and EC to support this contention.

- t34l The Respondents submitted that the evidence adduced by the Appellant fell below the required standard and could not lead to setting aside the election of the 1't Respondent as the District Woman Member of Parliament of Kyenjonjo District without substantial and cogent evidence compelling it to do so. - t35] The Respondents observed that the Appellant's complaint in the instant matter was essentially challenging the 1't Respondent's nomination. The Respondents contended that this is a matter that ought to be determined by way of a complaint to the Electoral Commission, being the Constitutionally and statutory prescribed forum for determination of pre-election complaints. The Respondents further contended that upon determination of the complaint or otherwise by the Electoral Commission, the remedy available to the Appellant was to file an appeal to the High Court. The Respondent relied on Articles 61(1) (f) and 64(1) of the Constitution, Section 15 of the Electoral Commission Act and Section 15(a) & (b) of the Parliamentary Elections Act 2005, all of which were construed by this court in Akol Hellen Odeke Vs. Okodel Umar, Court of Appeal EPA No.06 of 2020.

[36] The Respondents invited Court to find that a complaint against the 1s Respondent's nomination was made to the Electoral Commission by the Appellant. The Electoral Commission heard the complaint and declined to uphold it for the reasons it stated. The Appellant having not been satisfied with the reasons that were given by the Electoral Commission ought to have appealed against it to the High Court as prescribed by Articles 61(1) (f) and 64(1) of the Constitution, Section 15 of the Electoral Commission Act and Section 15(a) & (b) of the Parliamentary Elections Act 2005. The Respondents cited the decisions of this court in Grace Nalubega Vs. Juliet K Suubi Kinyamatama, EPA No. 27 of 2021 para 26-31 of the Judgement; Jack Odur Lutanywa Vs. Electoral Commrbsion & Anor EPA No. 35 of 2021 and Kasirye Zzimula Fred V Bazigatirawo EPA IVo.06 of 2020.

[37] Counsel reiterated that the issue of the alleged disqualification of the 1.t Respondent was a pre-election issue to be resolved by the Electoral Commission and with a right of appeal to the High Court, which remedy was not pursued by the Appellant. That, the trial Court could not re-investigate the issue of whether the 1st Respondent was duly qualified for nomination and election as a Member of Parliament as any attempt to do so would render the election petition a disguised appeal against the decision of the Electoral Commission upholding the nomination of the 1st Respondent by the /no Respondent. Counsel argued that this would further offend the rationale behind the provisions of Articles 61(1)(f) and 64(1)of the Constitution, Section 15 of the Electoral Commission Act and Section 15(a) & (b) of the Parliamentary Elections Act 2005 on finality of decisions on pre-election complaints as was espoused in the decision in EPA No. 27 of 2021 Grace Naluhega Vs. Juliet K Suubi Kinyamatama, EPA No. 35 of 2021 Jack Odur LutanytraVs. Electoral Commission & Anor Appeal EP No. 01 of 2018; and Kasirye Zzimula Fred V Bazigatirawo EPA IVo.06 of 2020,

- t38l Counsel for the Respondents submitted that, therefore, it would follow that both the High Court and this Court lack the jurisdiction to consider the Appellant's complaints about the academic qualifications of the 1.t Respondent and cited the decision of this court in Nandagire Christine Ndiwalana Vs. Katushabe Ruth EPA No.034 of 2021 to back their argument. - t39] Without prejudice, the Respondents addressed the issue of the academic qualifications of the 1't Respondent that were the subject of her nomination and election and contended that she was duly qualified for nomination and election as a Member of Parliament. That the finding of the learned Trial Judge that the 1st Respondent was duly qualified for nomination and election as a Member of Parliament was legally and evidentially supported and doesn't warrant interference by this Court.

- t40] Counsel submitted that the qualifications for a Member of Parliament are prescribed underArticle 80 (1)of the Constitution and Sections 4 and 5 of the PEA. That for her nomination and election, the 1st Respondent submitted a UCE certificate, a Diploma in Business Studies obtained after UCE, a certificate in Computer Studies, an Advanced Diploma in Project Management and a Doctor of Ministry, USA. - [41] Counsel contended that the 1't Respondent provided evidence that her Diploma in Business Studies obtained after UCE, the certificate in Computer Studies, and her Advanced Diploma in Project Management were recognized by the NCHE. According to Counsel, it was not in dispute that the Advanced Diploma in Project Management is a qualification that transcends 'A' Level certificate and no evidence was adduced to prove that the advanced Diploma in Project Management is not a higher qualification than 'A' 'Level, and therefore required certification by the National Council for Higher Education as being equivalent to 'A' level certificate.

- l42l Counsel forthe Respondents cited Section 5 (13) of the PEAwhich provides that if a candidate has an advanced level certificate or qualifications higher than the prescribed minimum obtained in Uganda, there shall be no need for verification from the NCHE. Counsel referred to the case of Banan Vs. Papchemeiko & Anor (Petition 24 of 2016) [2016] UGHCEP 55, which was upheld on appeal to this Court where this Court considered the weight of a Diploma in Project Management as a qualification higher than A' Level and needed no certification from the NCHE. - t43] Reference was also made to Regulation 7 of the Universities and Other Tertiary lnstitutions (Benchmarks for Verifying, Determining and Recognizing Academic Qualifications as a Person Holding a Minimum Qualification of Advanced Level or lts Equivalent) Notice, 2015, which provides for persons who do not require a certificate of formal completion of Advanced level or its equivalent from the National Council for Higher Education to include .a person who holds a Ugandan academic t2

qualification recognized by the National Council as higher than Advanced Level, including a Diploma, Advanced Diploma, Degree, Postgraduate Certificate, Postgraduate Diploma, fi/laster's Degree or Doctoral Degree".

- 1441 Counsel re-iterated their submission before the High Court that the burden placed by law on the Appellant was not to merely make allegations amounting to suspicion but to adduce concrete and cogent evidence to prove that the 1.t Respondent was indeed not academically qualified for nomination and election as a Member of Parliament. That it was incumbent on the Appellant to plead and prove that the qualifications in possession of the 1't Respondent were not higher than UACE. - t45l Counsel prayed that the conclusion drawn by the learned Trial Judge that the 1st Respondent was duly qualified for nomination and election and was validly elected as such was supported in law and evidence on record and ought to be upheld by this court. Counsel prayed that the appeal be dismissed with costs.

## Appellant's supplementary submissions in reioinder

- t46l Counsel for the Appellant reiterated their earlier submission that the 1st Respondent was not possessed with the requisite academic qualifications for election as a member of Parliament. That of all the academic qualifications that were presented by the 1st Respondent, none of them was an Advanced Level Certificate or a Certificate of equivalence, nor was any ever equated to Advanced Level Certificate or even to being higher than Advanced Level. - l47l Counsel submitted that it is only UNEB that is mandated to equate any award of Uganda Advanced Certificate of Education and cited the authority of Kalemba Christopher and Electoral Commission Vs. Lubega Drake Francis Election Petition Appeal No. 32 of 2016.

t48] Counsel reiterated the prayer that the appeal be allowed with costs

## Determination of srounds two to five of the4ppeal

- t49] We have studied the record of appeal and considered the submissions of the respective counsel for all the parties to this appeal. We have also considered the authorities availed to court by the parties which we are grateful for. Grounds two to five of the appeal resurrect the perennial question of the mandate of the High Court to determine the issue of the academic qualification of the winning candidate during the hearing of the Petition challenging the results of the election. lt is the Appellant's case in grounds two to five that the Appellant, who was declared by the 2no Respondent as the successful candidate in the election, was illegally elected as, at the time of her election, she was not qualified to be nominated as a candidate and/or elected as a Member of Parliament because she lacked the required academic qualifications of the minimum formal education of Advanced level standard or its equivalent. - [50] The Appellant further contended that upon nomination of the 1st Respondent, she (the Appellant) lodged a complaint with the 2no Respondent against the 1st Respondent objecting to the eligibility of the 1st Respondent for nomination and election as a Member of Parliament. However, the 2no Respondent did not resolve the complaint. Hence, opined the Appellant's Counsel, the High Court had jurisdiction to investigate the issue of the 1't Respondent's academic qualifications while considering the petition challenging the election results. - [51] On the other hand, the Respondents contended that the issue of the 1't Respondent's academic qualifications was the subject of the Appellant's complaint to the 2no Respondent as the constitutionally and statutory prescribed forum for determination of pre-election complaints. The Respondents further contended that upon determination of the complaint or otherwise by the 2no Respondent, the remedy available to the

Appellant was to file an appeal to the High Court. The Respondents opined that the Appellant having failed to exercise her right of appeal to the High Court, is estopped from raising the same issue during the Petition against the election result as that would tantamount to a disguised appeal to the High Court. The Respondents supported the finding of the trial Judge that the Appellant having failed to appeal against the decision of the 2no Respondent upholding the nomination of the 1't Respondent, a right which is prescribed by law, she (the Appellant) was estopped from challenging the Respondent's nomination, after losing the elections.

t52] This Court (Bamugemereire, hrlusota & Kbeedi, JJA) had occasion to consider at length the jurisdiction of the High Court as a court of first instance in respect of preelection disputes in the case of Akol Hellen Odeke Vs. Okodel Umar (supra) thus:

'lt is true that jurisdiction is a creature of statute. The original jurisdiction of the High Court and the Electoral Commission in respect of election related drspufes arising before and during polling emanates from the Constitution of the Republic of Uganda, 1995. As such, it is important to sef ouf all the provisions of the Constitution which have a bearing on the resolution of the rssue of the mandate of both Constitutional bodies in order to effectively determine the scope of the .unlimited original jurisdiction" of the High Court. Ih,s ,s in accordance with the cardinal rule of constitutional interpretation to the effect that in interpreting the Constitution the entire Constitution must be read as an integrated whole with no particular provision destroying the other but each sustaining the other so as to promote harmony of the Constitution - see Dr. Paul K. Semoaerere and 2 others Vs. A. G. Constitutional Appeal No. 1 of 2002.

The following provisions of the Constitution have a bearing on the mandate of the Electoral Commission and the High Court with regard fo dr'sputes arising before and during polling day:

- . Article 61(1)(0 one of the Constitutional functions of the Electoral Commission is.to hear and determine Election Complainfs arisrng before and during polling". - o Article 64(1) -. Any person aggrieved by a decision of the Electoral Commission in respecf of any of the complaints referred to in article 61(1)(0 of this Constitution may appeal to the High Court". - o Article 139(1) "The High Court shall, subiect to the provisions of this Constitution, have unlimited originaljurisdiction in all matters and such appellate and other jurisdiction as may be conferred on it by this Constitution or other law". [Emphasis added]

... The "unlimited original jurisdiction" conferred upon the High Court by Article 139(1) of the Constitution r.s, frrsf and foremosf, subiect to Article 61(1)(0 of the Constitution. The import of this is that the mandate to hear and determine election complaints arising before and during polling as a "court" of first instance is yesfed in the Electoral Commission.

Article 139(1) of the Constitution is a/so subject to Article 6afl of the Constitution which express/y vesfs the High Court with jurisdiction to hear appeals from decisions of the ElectoralCommlssion made pursuant to Article 61(1)(0 of the Constitution.

Accordingly, it is my finding that the High Court sitting at Soroti did not have jurisdiction to hear and determine the Respondent's application as a court of first instance.'

- 153] The above decision is still a good statement of the law, and we have no reason to depart from it. - [54] The Record of Appeal in the instant matter indicates that by the letter of the Appellant's Advocates, Ms R. Nsubuga & Co. Advocates, dated 22no October 2020, and received by the 2no Respondent on 28tn October 2020, the Appellant filed a complaint with the 2no Respondent objecting to the decision of the Returning Officer to nominate the 1't Respondent who was stated not to possess the prescribed academic qualifications.

l55l By the letter of the 2no Respondent addressed to the Appellant's Counsel on the 16th December 2020, the 2no Respondent's Chairperson, Hon. Justice Simon Byabakama Mugenyi, referred to the proceedings and the Commission's deliberations of 11tn October 2020, 12tn Octob er 2020 and on 30tn November 2020 and stated: -

> -...(b) That before nominations, a case of Judicial review to wit; Miscellaneous Cause No. 294/2020 was filed in Courfs of law (High Court, Civil Division) involving the Respondent herein as well as fhe Executive Secretary, UNEB and the examination board of UNEB itself in respect of inter alia the decision affecting the said academic credentials. (c) Therefore, for now, the Commission cannot proceed with this matter srnce the sameis sfi// before a Court of law. (d) Accordingly, before the Commission, this matter sfands stayed."

t56l Further, the commission then concluded that: -

'ln view of the foregoing, the Commission, under MlN. COMP 378/2020, resolved that for now, the decision of the Returning Officer, Kyenjojo Electoral District, of nominating fhe Respondent is upheld."

- O [57] There is no doubt that the decision of the 2no Respondent in respect of the complaint of the Appellant was within the 2no Respondent's constitutional mandate. The remedy available to the Appellant was exercise of her right of appeal from the said decision to the High Court of Uganda by virtue of Article 64(1) of the Constitution as operationalized by Section 15 of the Electoral Commission Act, Cap. 140. - l58l ln the Petition subsequently filed in the High Court by the Appellant after the 2no Respondent publishing the 1't Respondent in lhe Uganda Gazette as the winning candidate, one of the grounds upon which the Appellant sought to have the election

results annulled by the High Court was lack of the prescribed academic qualifications by the 1st Respondent at the time of nomination and election. The Learned trial Judge held that the Appellant having failed to appeal to the High Court against the decision of the Electoral Commission upholding the nomination of the 1st Respondent, a right which is prescribed by law, the Appellant was estopped from challenging the Respondent's nomination, after losing the elections. The question that arises in these circumstances, therefore, is whether the High Court had jurisdiction as a court of first instance to investigate the issue of academic qualifications of the Appellant at the stage of considering the Petition challenging the election results.

[59] The academic and other qualifications of members of Parliament together with the disqualifications of members of Parliament are set out in Section 4(1) and 4(2) of the Parliamentary Elections Act respectively in the following terms:

# "Section 4 - Qualifications and disqualifications of members of Parliament

- (1) A person is qualified to be a member of Parliament if that person- - (a) ls a citizen of Uganda;

- (b) ls a registered voter, and - (c) Has completed a minimum formal education of Advanced Level standard or its equivalent. - (2) A person rs not qualified for election as a member of Parliament if that pers0n- - (a) ls of unsound mind; - (b) ls holding or acting in an office the functions of which involve a responsibility for or in connection with the conduct of an election; - (c) ls a traditional or cuftural leader as defined in clause (6) of article 246 of the Constitution;

- (d) Has been adjudged or otherwise declared bankrupt under any law in force in Uganda and has not been discharged; or - (e) /s under a sentence of death or a sentence of imprisonment exceeding nine months rmposed by any competent court without the option of a fine; - (f) Has, within the seven years immediately preceding the election, been convicted by a competent court of a crime involving dishonesty or moralturpitude; or - (g) Has, within the seven years immediately preceding the election, been convicted by a competent court for contravention of any law relating to elections conducted by the Commission." - t60] Petitions to the High Court challenging the election of a member of Parliament are governed by Part X of the Parliamentary Elections Act, Sections 60- 67. The grounds for setting aside the election of a Member of Parliament are set out in Section 61 of the Parliamentary Elections Act, in the following terms: -

## "67. Grounds for setting aside election

(l)The election of a candidafe as a member of Parliament shall only be sef aside on any of the following grounds if proved to the satisfaction of the court-

(a)non-compliance with the provisions of this Act relating to elections, if the courtis safisfred that there has been failure to conduct the election in accordance with the principles laid down in those provisions and that the non-compliance and the failure affected the result of the election in a substantial manner;

(b)that a person other than the one elected won the election; or

(c)that an illegal practice or any other offence under this Act was committed in connection with the election by the candidate personally or with his or her knowledge and consent or approva| or

(d)that the candidate was at the time of his or her election not qualified or was disqualified for election as a member of Parliament.

(2)Where an election rs sef aslde, then, subject to section 63, a fresh election shall be held as if it were a by-election in accordance with section (3) Any ground specified rn subsecflon (1) shall be proved on the basis of abalance of probabilities." I Emphasis ours/

161] This court in the case of Jack Odur Lutanytra v Electoral Commission & Another, Election Petition Appeal ItJo. 35 of 2021, while considering the scope of application of Section 61(1) (d) of the Parliamentary Elections Act observed as follows:

"Section 4 of the Parliamentary Elections Acf draws a distinction between parameters that positively qualify a person to be a member of Parliament (l'tlP) and fhose that render him/ her 'not qualified' for election. Whereas section 4(1) outlines fhe qualifications of a member of Parliament to include academic qualifications, secfion 4(2) specifically demarcates fhe parameters that would disqualify a person from election to the office of MP. The fact that the term'not qualified' used in section 4(2) is replicated in section 61(1)(d) of the same Act would, in our view, suggesf thaf ft is fhe parameters outlined in secfion 4(2) that would form the basis for the non-qualification or disqualification of a candidate under section 61(1)(d) of the Parliamentary Elections Act. Ihese include a person being of unsound mind, a traditional or culturalleader, an adjudged bankrupt etc.'

162l The above statement of the law was followed by this court (Elizabeth Musoke, Muzamiru ltlutangula Kbeedi & ltlonica K. Mugenyi, JJA) in Grace Nalubega Vs. Kinyamatama and Another (Election Petition Appeal No. 27 of 2021) [2022|. UGCA 156 (26 May 2022) where it was further observed as follows;

"... the parameters of qualification under secfion 4(1) of the Parliamentary Elections Act are not envisaged as grounds for setting aside an election under section 61(1)(d) of the same Act. Rather, they are the sort of nomination issues that a registered voter would (without much constraint) be at liberty to inspect under secfion 15 of the Act for possible advancement to the Electoral Commissions as a complaint under secfion 15(1) of the Electoral Commission Act. Ihese parameters include a candidate's voter registration stafus.,,

... our construction of Article 61(1)(0 of the Constitution read together with secfion 15 of the Electoral Commission Act is that nomination complaints or complaints pertaining to nomination should be submitted to the Electoral Commission for determination. Recourse may only be made to an election petition lodged under section 61(1)(d) of the Parliamentary Elections Acf where an intending petitioner had no knowledge of and could not with reasonable diligence have had knowledge of such defects in the nomination papers at the time of nomination. That would be the rationale behind secfion 15(a) of the Parliamentary Elections Act that empowers a registered voter to rnspecf any nomination paper filed on the nomination day. That legal provision is intended to give registered voters, including candidates and prospective candidates, the opportunity to pick up any irregularities observed at the time of nomination Such irregularities would be governed by secfion 15(1) of the Electoral Commissions Act and are subject to determination by the Electoral Commrssion, final appeals from rfs decision being made to the High Court under Article 64fl of the Constitution and secfion 15(2) of the Electoral Commission Act."

- [63] We find no reason to depart from the above statement of the law as pronounced by this court in the cases above. Section 61(1Xd) of the Parliamentary Elections Act was not intended to circumvent the constitutional provisions set out in this judgment by granting the High Court original jurisdiction in matters where the Constitution itself denied the High Court such jurisdiction and conferred such original jurisdiction upon the Electoral Commission underArticles 61(1X0, with any aggrieved party having a right of appeal to the High Court as the first and final appellate court in such matters by virtue of Article 64(4) of the Constitution. - [64] We accordingly find that the trial Court did not err in holding that the Appellant was estopped from raising the issue of academic qualifications of the Appellant in the Petition challenging the election results after the Appellant raised the same before the 2no Respondent and not appealing against the 2no respondent's decision not to denominate the 1st Respondent. Grounds two to five therefore fail.

### Ground 1

- t65l The Appellant's complaint in ground one is that the learned trial Judge erred by disallowing the Appellant's oral notice of appeal in contravention of Rule 29 of the Parliamentary Elections (Election Petition) Rules S.l 141 -2 and directing her to file a formal Notice of Appeal. - t66l The Respondents did not respond to the Appellant's submissions on this ground. - [67] Rule 29 of the Parliamentary Elections (Election Petition) Rules is couched as follows:

'Notice of appeal may be given either orally at the time judgmenf rs given or in writing within seven days after the judgment of the High Court against which the appeal is being made.'[Emphasis added]

- t68l lt is clear from the above Rule that the choice as to the mode of giving the notice of appeal is vested in the party who desires to appeal: He/she can give the notice orally or in writing. - 169l From the Record of Appeal, soon after the trial Court delivered its judgment, the Appellant's Counsel before the trial Court, Mr. Mukama, stated thus:

....in light of the decision that has been delivered, lwould like to humbly inform this court that we intend to appeal... We pray that the oral application for leave to be taken.'

- [70] ln response, Counsel for the 1st Respondent stated that "fhe Petitioners have a right of appeaf'. - 171l ln its Ruling, the trial Court stated:

'Courl hereby directs that as soon as you receive the signed and sealed decision, that you formally apply to appeal as an appeal is within your rights. I disallow the prayer for you to apply orally and direct that you file the sanle formally in the usual manner, in Fort Poftal."

1721 There is no doubt that the Appellant's complaint against the above decision of the trial court is founded, Rule 29 of the Parliamentary Elections (Election Petition) Rules does not in any way give the trial Court the mandate to determine for the parties which option to take when notifying court about the intention to exercise their right of appeal. The choice of whether to give an oral or written notice of appeal is a matter wholly within the mandate of the concerned party. Where a party chooses to give an oral notice of appeal, the role of the trial court is limited to taking note of the oral notice of appeal in its record of proceedings and, thereafter, facilitating the parties obtain the

certified proceedings and judgment to enable the aggrieved party pursue its right of appeal.

t73] Accordingly, we find that the trial Court clearly misunderstood its mandate in that aspect. Ground one succeeds.

#### Remedies

- l14l The Appeal having failed on all the substantive grounds of appeal, it is hereby dismissed. - tTSl As regards the costs of appeal, we have taken into account that the Appellant succeeded on only one ground out of the five grounds of appeal. Accordingly, the Appellant shall meet 4t5 of the taxed costs of the Respondents before this court.

# t76l It is so ordered.

| Dated and delivered at Kampala this | Dg'dayof | | | |-------------------------------------|----------|--|--| | | | | | | | | | | | | | | |

Muzamiru Mutangula Kibeedi JUSTICE OF APPEAL

Irene l\/ulyag JUSTICE OF APPEAL

ristopher G JUSTICE OF APPEAL