Baleke v Electoral Commission and Kakooza (Election Petition Appeal 4 of 2016) [2017] UGCA 136 (19 June 2017)

# **THE REPUBLIC OF UGANDA**

# **IN THE COURT OF APPEAL OF UGANDA AT KAMPALA**

# **ELECTION PETITION APPEAL NO.** 004 **OF** 2016

(ARISING FROM HIGH COURT ELECTION PETITION NO. 004 OF 2016)

# **BALEKE PETER APPELLANT**

# **VERSUS**

#### RESPONDENTS 1. ELECTORAL COMMISSION **2. KAKOOZA JOSEPH**

#### **CORAM;**

### **HON. JUSTICE RICHARD BUTEERA, JA** HON. JUSTICE ELIZABETH **MUSOKE, JA HON. JUSTICE PAUL KAHAIBALE MUGAMBA, JA**

#### **JUDGMENT OF THE COURT**

This appeal arises from the decision ofJustice Joseph Murangira in Election

Petition No. 004 of 2016. The hearing was at the High Court in Mubende.

**Background**

Both the appellant and the 2nd respondent contested in the elections for Buwekula Constituency Member of Parliament organized by the 1st respondent. The elections took place on 18th March 2016. Following the

exercise the 2nd respondent emerged winner. The winner was declared and his particulars were published in the Uganda Gazette accordingly. The 2nd respondent's victory was contested by the appellant, who filed the Election Petition aforementioned. The Petition did not succeed however and resulted in this Appeal.

#### Appearances

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counsel for the appellant. Messrs Ssekaana Musa and Lule Kennedy were counsel for the 1st respondent. Mr. Kiryowa Kiwanuka was counsel for the 2nd respondent. Mr. Bamujje Ahmed, holding brief for Mr. Joseph Balikuddembe, was

#### Grounds of Appeal

The following grounds of appeal were advanced:

- 1. The learned trial Judge erred in law and in fact when he held that the 2nd respondent was properly and lawfully elected. - 2. The learned trial Judge erred in law when he failed to find as fact that the 2nd respondent presented to the 1st respondent's returning officer there was no lawful verification of the 2nd respondent's academic qualification for the Parliamentary Elections of 18th February 2016. a certified true copy of an old verification certificate of 2010 and that

3. On the evidence adduced at the time of nomination of the 2nd of December 2015 the learned trial Judge failed to find as fact that as there was deed poll declaration to the 1st respondent's returning officer proving that the 2 names belong to him as required by law. a variation in the name of the 2nd respondent, the 2nd respondent had failed to present a or a statutory

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- 4. The learned trial Judge erred in law when he failed to find the provisions of sections 60(2)(a) and 61(l)(d) confer an unconditional right to a candidate who loses an election to challenge the election of a candidate as a Member of Parliament elected Member of Parliament was at the time of his election not qualified for elections as a Member of Parliament. on the ground that the - 5. The learned trial Judge erred in law when he held that a certificate issued by the National Council for I-Iigher Education suffices for any election including Parliamentary Elections. - 6. That the learned trial Judge erred in law and fact when he of the authorities furnished to him as well as failing to properly apply the law to the evidence adduced in court thereby concluding that the 2nd respondent complied with the disregarded some

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requirements of the provisions of sections 4 and 5 of the Parliamentary Elections Act 2005.

### Scheduling conference

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At scheduling conference the following issues were framed for resolution:

- 1. Whether or not the trial Judge erred in law and fact when he held that the appellant failed to discharge the burden of proof thereby concluding that the 2nd respondent was qualified for nomination and election as a Member of Parliament. - 2. Whether or not the trial Judge failed to apply the law and evaluate the evidence on record. - 3. Remedies.

#### Onus on court

This is the first appellate court in this matter and we are alive to the expectations imposed by rule 30 of the Rules of this court which among other details enjoins us to re-appraise the evidence on record and draw inferences of fact. There is a list of authorities relating to this imperative. We are aware also of other considerations of the law such as section 101(1) of the Evidence Act to the effect that whoever desires any court to give Judgment as to any legal right or liability dependent on the existence of

facts which hi is also section 61(3) of the Parliamentary Elections Act relating to the qualification which provides the standard of proof as being on the basis of provides that proof in the circumstances must be to the satisfaction of court. It is with this background that we proceed to resolve the issues at hand. e or she asserts must prove the existence of those facts. There a balance of probabilities. For certainty section 61(1) of the same Act

#### Issue 1

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*held that the appellant failed to discharge the burden ofproof thereby concluding that the 2nd respondent was qualifiedfor nomination and election as a Member ofParliament. Whether or not the trial judge erred in law andfact when he*

necessary qualification to be a Member of Parliament. formal education of Advanced Level standard or its equivalent as a Article 80(l)(c) of the Constitution ordains completion of a minimal

Similarly section 4(1)(c ) of the Parliamentary Elections Act provides that a person is qualified to be a Member of Parliament if that person has completed a minimum formal education of Advanced Level standard or its equivalent. That is one of the qualifications. There are key provisions under the Act which deal with academic qualifications and which are relevant to

certain prospective candidates to establish their qualification with the Commission as persons holding a minimal qualification of Advanced Level or its equivalent. Thereafter section 4(6) of the Act provides: the issue at hand. One such is section 4(5). This relates to the need for

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*'A* person required to establish his or her qualification under subsection (5) shall do so by the production of a certificate issued to him or her by the National Council for Higher Education in consultation with the Uganda National Examinations Board/

hr his affidavit in support of his answer to the Petition and in his cross examination the 2nd respondent was consistent in stating that the National Council for Higher Education (NCHE) had issued him with the required certificate in 2010 prior to the elections of 2011 and that the same certificate had been verified by the same NCHE on 23rd July 2015 preparatory to his nomination in the recent elections. It was his evidence that the same certificate was presented by him and accepted on nomination day and that a fee of Shs 750.000/= was paid by him for carrying out the process of nomination. All this evidence is not contested. Section 4(9) of the Parliamentary Elections Act reads:

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A certificate issued by National Council for Higher Education under section (6) shall be sufficient in respect of any election for which the same qualification is required/

There is an affidavit on record sworn by Ms Faridah Bukirwa. We find parts of it relevant to the case at hand. She deponed:

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- *'1.* I am an adultfemale Ugandan of sound mind serving with National Council for Higher Education as the senior legal Officer of the institution and I swear this Affidavit in that capacity. - 2. National Council for Higher Education (NCHE) has the mandate to issue a certificate of completion of Formal Education of Advanced Level Standard or it's Equivalent in consultation with the Uganda National Examination Board (UNEB) Parliamentary Elections Act, 2005. as per S. 4(6) of the - 3. In the year 2010, the 2nd Respondent presented his academic qualifications to NCHE for equating to wit: East African Certificate of Education; and a Certificate of Completion of the Officer Cadet's Course Intake 17 Long issued by the Tanzanian Military Academy-Monduli

- 4. In Consultation with UNEB, NCHE found the above mentioned qualifications satisfactory and did issue a Certificate of Completion of Formal Education of Advanced Level Standard or of its Equivalence (hereinafter referred to as " NCHE Certificate" to the 2nd Respondent on the 23rd day of June, 2010 - 5. In 2015, the 2nd Respondent again presented his above mentioned qualifications together with a copy of the NCHE Certificate that was awarded to him in 2011 to National Council for Higher Education (NCHE) for our approval and authentication. - 6. The National Council for Higher Education (NCHE) approved 'documents presented by the 2nd Respondent and duly certified the copy of the NCHE Certificate genuine copy of the original NCHE Certificate awarded on 23rd June, 2010 on 20th July 2015 to be the true and - 7. I have looked at our records and state that it is not as alleged that the NCHE Certificate that was awarded to the 2nd Respondent is a duly issued by the National Council for Higher Education, forgery and I assert that the said Certificate was

We note that in the affidavit above paragraph 5 refers to the NCHE Certificate awarded to the appellant in 2011 but we deem this a typing error given the facts in paragraph 4 and paragraph 6 of the affidavit. The document at page 136 of the proceedings also shows the award of the Certificate of Completion of Formal Education of Advanced Level Standard or of its equivalent was actually done on 23rd June 2010. In her cross examination Ms. Faridah Bukirwa stated (at page 161 of the Record of Appeal):

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'Kakooza Joseph's certificate we issued in 2010 was still valid. Kakooza Joseph did apply for the verification of his academic qualifications in 2015. He submitted O'level education and the certificate for his officers' cadet course

Then at page 166 of the Record of Appeal the same witness stated:

'When candidates submit their academic qualifications every time they do that we still verify from the relevant bodies as to whether such person was awarded a particular qualification or certificate and in 2015 this verification was conducted by NCHE which still got the issued with such certificates which we usually attach. By the time NCHE certified Mr. same response that Mr. Kakooza Joseph was Kakooza's certificate of equivalence NCHE was satisfied that he had been awarded the same In the instant case there was no need for NCHE to issue a fresh certificate based on the same qualifications, **/** which have been submitted previously by Kakooza Joseph

From the testimony of the witness above the mandate of the NCHE is clear, after consultation with UNEB where necessary to certify actual A level qualifications or their equivalence. In the case of the 2nd respondent herein that was done in 2010 and once again in 2015 after due verification. It is asserted on behalf of the appellant that the proper procedure was not followed in 2015. They relate to the decision of this Court by Byamugisha J. A of good memory, in Paul Mwiru Vs **Hon** Igeme Nathan Nabeta **Samson and 2 others, Election Petition Appeal No. 6 of 2011.** She stated:

*'....* I am not persuaded by the case put forward by the 3rd defendant when it claims that once it issues a certificate for one election, the certificate is valid for further elections. This would tantamount to amending the law. Equating of academic papers for purposes of elections is not a once in a life time exercise unless the law is amended.../

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From the uncontroverted evidence of Faridah Bukirwa it is clear NCHE carried out its mandate of equivance and verification not only in 2010 but also in 2015; reason why this case should not be viewed in the light of what court dismissed in the case cited above.

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Indeed the position was qualified further in Balingira Nakendo vs Patrick Mwondah, Election Petition Appeal No. 9 of 2007 wherein it was held:

There must be a basic presumption here that the above certificates must be genuine, and duly issued by the bodies named therein. If it were proved that those certificates on which NCHE based its decision to issue its own were not genuine, then it would follow that NCHE certificates would be a nullity as the person would not have the necessary qualifications/

Looking at the evidence on record we find nothing indicating that the qualifications certified by NCHE were not genuine. Consequently we find that NCHE did nothing wrong in carrying out its mandate and this issue is so resolved.

In contest also is the name of the 2nd respondent. According to the appellant there is adverse variation between the names of the 2nd

of his qualification was based. It is not disputed that the 2nd respondent Kakooza Joseph. The 2nd respondent's East African Certificate of Education (O'Level) bears similar bears the appellation Kakooza JS while the certificate of verification from the NCHE known as Certificate of Completion of Formal Education of Kakooza Joseph. It is argued on behalf of the appellant that the Certificate for the Military Academy, Monduli, could have applied to an individual different from the 2nd respondent as it bears the name Kakooza J. S. Indeed the name Joseph Smarts has too been mentioned to refer to the appellant. The trial court considered the evidence available to it and observed: respondent and the names that appear on the papers upon which certificate was nominated and contested the election as Advanced Level standard or Of Its Equivalent too bears the names names. His certificate from the Tanzania Military Academy, however,

Tn his affidavit evidence, the Petitioner does not prove on the balance of probabilities how he arrived at his conclusion that Kakooza Joseph and Kakooza J. S or Kakooza Joseph Smarts do not refer to the 2nd respondent. The court expected the petitioner to bring to courtpersons called Kakooza J. S and Kakooza Joseph Smarts to testify in support of the allegations about the names against the 2nd

respondent. The burden remained on the petitioner to prove to the required standard that indeed the challenged identity belonged to someone else.

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After studying the evidence adduced by the Petitioner it is apparent that he has not discharged this burden

We have looked also at the affidavits in support of the 2nd respondent's Answer to the petition. One is by Major General Pecos Kutesa and the other by Brigadier Byarugaba Jim Willis. We layout the relevant parts of the affidavits. We start with the affidavit of Major General Kutesa:

- 3. That I know the 2nd Respondent herein Major (Rtd) Kakooza Joseph and have known him since 1979 as a Cadet Officer when we met at the Tanzania Military Academy- Monduli. - 4. I attended the Tanzania Military Academy Monduli for the period October 22,1979 to July 1980 with other soldiers from Uganda and Captain (Rtd) Kakooza Joseph was one of the soldiers who attended the course.

5. along with me and others and we were commissioned as 2nd Lieutenants in the then Uganda National Liberation Army. I know that Major (Rtd) Kakooza Joseph completed the course

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- 6. I know at the Tanzania Military Academy Monduli we used to call Major (Rtd) Kakooza Joseph, Smarts. Smarts was his name and I still refer to him as such. - 7. It is not true that Major (Rtd) Kakooza Joseph forged a certificate of the Tanzania Military Academy of Monduli, because I attended the academy with him and we completed it together and were both commissioned as 2nd Lieutenants and issued with certificates of attendance

Next is the affidavit of Brigadier Byarugaba which partly states:

- '2. That I know the 2nd Respondent herein Major (Rtd) Kakooza Joseph and have known him since 1979 as a Cadet Officer when we met at the Tanzania Military Academy- Monduli. - 3. I attended the Tanzania Military Academy Monduli for the period October 22,1979 to July 1980 with other soldiers from

Uganda and Major (Rtd) Kakooza Joseph was one of the soldiers who attended the course.

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- 4. Lieutenants in the then Uganda National Liberation Army. along with me and others and we were commissioned as 2nd I know that Major (Rtd) Kakooza Joseph completed the course - 5. I served with Major (Rtd) Kakooza Joseph in the Uganda National Liberation Army, then subsequently the National Resistance Army and Uganda Peoples Defence Forces before his retirement. - 6. We were required to use our surnames and two initials on our certificates and I used Byarugaba J. W on the issued to me (sic) and I know Major (Rtd) Kakooza Joseph used Kakooza J. S on the one issued to him. Major (Rtd) Kakooza Joseph was also known as Smarts. - 7. It is not true that Major (Rtd) Kakooza Joseph forged a certificate of the Tanzania Military Academy of Monduli, because I attended the academy with him and we completed it together and were both commissioned as 2nd Lieutenants and issued with certificates of attendance.

observed by the trial court no evidence is adduced to prove that the impugned names and qualifications did not relate to the 2nd respondent. Needless to say it is incumbent on the appellant in the circumstances to else has claimed the qualifications. The lower court was not impressed and on similar principles we find no ground to fault that finding. prove his allegations to the satisfaction of the court. For example no one The evidence in the two affidavits is nowhere rebutted and as clearly

## Issue 2

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The next issue is whether or not the trial Judge failed to apply the law and evaluate the evidence on record. We have partly dealt with this issue in the course of this judgment. It was argued that the verification certificate issued by NCHE was not genuine given that for 'Higher' in National Council for Higher Education the 'High' appeared on the stamp and that there should have been a seal rather than a stamp to authenticate the document. However in her affidavit Faridah Bukirwa, duly issued by NCHE and was genuine. There is no evidence to rebut **<sup>i</sup>** her testimony in this respect. In her cross examination the witness stated Senior Legal Officer, NCHE, stated that the impugned document was

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that when candidates submit their academic qualifications NCHE certificate was awarded as claimed. It was her evidence that NCHE verified the 2nd respondent's impugned qualifications with the Tanzania satisfied that the 2nd respondent had been awarded the qualifications he claimed. It was the evidence of the witness that in the case in issue there was no need for NCHE to issue a fresh certificate based on the same qualifications, given that the 2nd respondent had previously submitted them to NCHE. In tire event NCHE went head and issued the verification which doubtless was utilized by the 1st respondent in the nomination of the 2nd respondent; pursuant to its mandate under section 4(9) of the Parliamentary Elections Act. We note in passing the allegation that NCHE did not consult Uganda National Examinations Board as required under section 4(6) of the Parliamentary Elections Act. Here again no evidence exists to buttress the assertion. In any case the Electoral Commission's role in the matter is not inclusive of questioning the certificate issued by NCHE. verifies from the relevant bodies whether the claimed qualifications or Military Academy. NCHE was

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We are satisfied the learned trial Judge properly evaluated the evidence and correctly applied the law to the facts before him.

## Issue 3

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## Remedies

The final issue relates to available remedies. As we find this appeal lacks merit. Accordingly it is dismissed with costs to the respondents in this Appeal and, as earlier determined, in the High Court.

Dated at Kampala this 2017 *(Mr\ <sup>I</sup>.* <sup>4</sup> day of

## HON. JUSTICE RICHARD BUTEERA JUSTICE OF APPEAL

HON. JUSTICE ELIZABETH MUSOKE JUSTICE OF APPEAL

HON. JUSTICE PAUL KAHAIBALE MUGAMBA JUSTICE OF APPEAL CLu • MO