Bwire Adeya v Ochieng and 2 Others (Election Petition 1 of 2001) [2002] UGHC 131 (11 January 2002)

Full Case Text

# THE REPUBLIC OF UGANDA

#### IN THE HIGH COURT OF UGANDA AT JINJA

# ELECTION PETITION NO. 001 OF 2001

#### In the Matter of the Parliamentary Elections Act No. 6 of 2001

And

# In the Matter of Parliamentary Elections Petitions rules, Statutory Instrument No. 27 of 1996

And

# In the Matter of Parliamentary elections held in Bukooii South Constituency on 26 June 2001

# STEPHEN BWIRE ADEYA :::::::::::::::::::::::::::::::::::: **VERSUS**

#### $1.$ OCHIENG PETER PATRICK

- THE RETURNING OFFICER BUGIRI $\overline{2}$ . - THE ELECTORAL COMMISSION :::::::::::::::::::::::::::::::::::: $3.$

# BEFORE: THE HONOURABLE LADY JUSTICE ANNA MAGEZI

#### JUDGMENT

This dispute arose out of a petition contesting the election of the Honourable Ochieng Peter Patrick as a sitting MP of Bukooli South Constituency. The declared MP Ochieng Peter Patrick was the first respondent while the Returning Officer Bugiri and the Electoral Commission were joined as the second and third respondents respectively.

After a scheduling conference the court was asked to determine: -

- $1.$ Whether the first Respondent Ochieng Peter Patrick was a person qualified to be nominated for election as a Member of Parliament and: - $\overline{1}$ Whether the first Respondent was nominated in accordance with the law

The Petitioner's evidence indicated that the first Respondent was declared by the second and third Respondents as duly elected yet the Certificates of what them be

presented did not bear the 1st respondent's names. Secondly that the 1st Respondent did not submit a certificate from the Uganda National Examination Board (UNEB) equating his qualifications to 'A' Level qualifications in accordance with section $5(4)$ of the Parliamentary Election Act 2001 (P. E. A.). Therefore that the 1st Respondent was not qualified to be nominated as a Parliamentary candidate within the meaning of section $5(1)(c)$ and section $5(4)$ of the P. E. A.: Subsequently that the first Respondents' purported nomination and acceptance of his nomination was void within the meaning of section $15(c)$ and (e) of the P. E. A since he lacked the appropriate qualifications of 'A' Levels or its equivalent.

The petitioner prayed for the following reliefs:

- Declaration that the 1st Respondent was not qualified to be nominated as a $(a)$ candidate in the parliamentary elections; - $(b)$ That court declares this nomination void; - That the results be set aside; $(c)$ - That fresh elections be ordered; $(d)$ - $(e)$ Grant any other reliefs and - Award costs or the petition. $(f)$

The petition was supported by the affidavit of Steven Bwire Adeya the Petitioner. He deponed that on examining the nomination papers he failed to see the UNEB Certificate as required by $s.5$ (4) of the P. E. A. The petitioner also deponed that he was surprised to note that the 1st Respondent known to him as Ochieng Peter was depicted by some documents as Ochieng Peter Patrick. It was the Petitioner's contention that the 1st Respondent's act was intended to impersonate and fraudulently present false educational certificates and papers. He (Adeya) was cross-examined by the Respondent learned counsels.

Ouma Abott deponed over the discrepancies in the names that depicted the First Respondent as Ochieng Peter on the academic documents presented where as he was known as Ochieng Peter Patrick. The deponent stated that he did not find Ochieng Peter Patrick qualifications gazetted anywhere.

Thomas Ochaya's affidavits indicated that when he checked with UNEB he did not find any certificate issued to Ochieng Peter Patrick.

Alfred Labong swore in his affidavit that he obtained a certificate from UNEB which equated his qualifications to an Advanced Level standard.

The first Respondent on the other hand stated that he was duly nominated since he had completed a two (2) year full time course leading to a certificate in Electrical and Electrical Installation Works at Busitema National College of Agricultural Machanisation in 1995.

He said that General Notice No. 120/2001 of Uganda Gazette Vol. XCIV No. 24 dated 4th May 2001 exempted him from obtaining a Certificate under s. 5(4) P. E. A. That he instead tendered a letter to prove his academic qualification. The first Respondent tried to clarify the discrepancies in the names appearing on his documents. He said that the discrepancies in names and spellings on his documents were due to several factors. These included use of his grandfather's name and spelling mistakes some of which should not be attributed to him since he could not accept responsibility for other people's errors. The first Respondent stated that he had sworn a Statutory Declaration to explain the change of name from Peter Ochieng. Ochieng Peter and to Ochieng Peter Patrick.

The first Respondent was supported by Mr. Bukenya Secretary for UNEB. Mr. Bukenva was cross examined on his affidavit in which he deponed that Ochieng Peter's qualifications were the subject of General Notice No. 120 of 2001 Volume XCIV No. 24 dated 4th May 2001. That the notice equated the first Respondent's qualifications to that of 'A' Level standard. That there was no need for individual gazetting of such qualification equated the 'A' Levels. That UNEB did not issue certificates to all persons with equivalent 'A' Level qualification to verify their academic standards. That all those whose qualifications fell within the General Notice No. 120/2001 were not required to be issued with Certificates. Mr. Bukenva reiterated that the letter to the Chief Administrative Officer Bugiri verified Ochieng Peter's qualification as equivalent to 'A' Level standard.

Mr. Kassujja, the Chairman Election Commission's affidavit reiterated the same position as that of Mr. Bukenya.

I have carefully assessed the evidence as briefly outlined above and contained on the record through the various affidavits. I have also considered the demeanour of the Petitioner, and Respondent and other deponents as they were cross-examined on their various statements in the affidavits. Subsequently I addressed the issues as argued by the learned counsels for the Petitioner the 1st and the 3rd Respondents.

In general the learned counsels fused the two contetious issues and cited precedents relevant to their arguments. I therefore proceed to analyse those arguments below:

Was the first Respondent qualified to be a Member of Parliament? $\mathbf{1}$

$2.$ Did his nomination papers present any fundamental irregularities?

Whether the $2^{nd}$ and $3^{rd}$ Respondents were justified in allowing the 1st $3.$ Respondent to Parliament and correctly declared him duly elected as an MP of Bukooli south?

In considering the questions posed above I have scrutinised the evidence on record and arguments of learned counsels and the relevant governing law. Of particular relevance is section 5 of the Parliamentary Election Act 2001 (P. E. A.) which states that a person shall be qualified to be a Member of Parliament if he is;

a citizen of Uganda $(a)$

$\Delta$

a registered voter, and $(b)$

has completed a minimum formal education of Advanced Level standard or its $(c)$ equivalent.

1St Respondent Therefore the major contentious issue before this court is whether the Petitioner had completed the minimum formal education of Advanced Level standard or its equivalent. It is clearly evident that the Petitioner did not have an Advanced Level standard. It was claimed however that he had academic qualifications equivalent to a minimum formal education as required by the law. The Petitioner disputed such He urged court to disbelieve the 1st Respondent because of the assertion. discrepancies regarding the names in the presented documents. These discrepancies

$\frac{1}{\tau}$

included the names on the documenls, the schools purportedly attended plus rhe suspect transcripts which falsified the academic qualification ofthe I\$ Respondenr.

Before indulging in the credibilitl' oi the qualification ofrhe l" Respondenr I shall concentrate on the s:atutory provision respecting minimum qualifications

Section 5(l) of P. E. A specifically requires that to qualily to be a lvlember of Parliament a person must have completed a minimum formal education of Advanced Level standard ofEducation or its equivalent.

Section 5(4) goes on to say that "For the purposes of paraeraph (c) of subsection I of this section a person shall qualify as having the equivalent of rhe Advanced Level Formal Education onlr, if he or she holds a Certificate issued to hinr or her by the Uganda National Examination Board Notice of rvhich has 'ceen published in the Gazette. It is my considered opinion that the mininrum for;;ai education must either be an Advanced level standard or its equivalent qhich is evidenced by holding a Certificate issued bl LNEB. M1, interpretation olthe seciion emphasises that a Certificate must be issued bv LNEB. That this certitlcate musi L.e exhibited by a Notice published in the Gazette. Section 5(-l) P. E. A is explicir rnd clear. This is not withstanding section 5(5) P. E..{ rvhich enlpowers LNEts :i-. periodically publish in the Gazette notice ofthe list of qualifications considered b'. ir to be equivalent to advanced level of formal education. Whereas section i(-l) P. E .-\ is for purposes of individual verification ofthe person's qualification section 5(5) P E..{ is in my opinion a publication of the qualifications considered to be equatei to .\' Leiel standard. Section 5(5) does not apDear to displace section 5(+). If it .iiC rt rvould have made s.5(:l) redundant. If it inrended to do so it should have erpies.'ei clearly that lor the purposes of section 5(1) the periodic notices issued bl L\EB under s. 5(5) were sufficient. On the other hand however section 5(5) P. E r\ r.'rers to section 5(l) P. E. A. it may be useful to also look at section 2(3) P. E..{ rrhich interprets an equivalent standard ol edLrcation in respecr of Advanceci l-;,.e1 qualiiication to mean an equivalent standard of education in respect o{-.\rirr:nccri Level prescribed by the Uqanda National Exanrinarion Board ancl grublrsheti i:: ihe Gazette This section 2(3) appears to rein fbrce oi- pave \va) tbr [-iNEB to ..:et standards bl prescribing qualifications cirL:ir alent to .'\' I-evcl -stardlrd ls plli id.'':l

for under section $5(5)$ . Section $5(5)$ is therefore distinct from section $5(4)$ as each section and subsection are intended to do different things. Section $5(4)$ is for verifying individual qualifications of MPs while section $5(5)$ is for standard setting of equivalent qualifications equated to 'A' Level standard in order to clarify various qualifications presented for verification. When I further read section 5(6) it is apparent that section 5(4) requires an individual Certificate to be issued and published in the Gazette. Section 5(6) reads "A Certificate issued by the Uganda National Examination Board under any other enactment, to the same effect as a Certificate required to be obtained under section 4 of this section and notice of which has been published in the Gazette shall be sufficient for the purposes of paragraph (c) of subsection (1) of this section. I have underlined the relevant parts which in my mind show that a separate Certificate is required to be obtained under subsection 4 of section 5. That notice of such Certificate issued by UNEB under this section shall be sufficient in respect of any election for which the same qualification is required. This section reinforces my point that a Certificate must be issued by UNEB in lieu of an Advanced Level Certificate if the candidates' qualifications are merely equated to 'A" Level and published under subsection 5 of section 5.

Having found as above I reject the defence argument that the 1st Respondent did not require to comply with section $5(4)$ . It is irrelevant that he was influenced by General Notice No. 120 of 2001. That General Notice was rightly published under the provisions of section $5(5)$ . It should be noted however that even if the Respondents qualified under schedule 1 (b) of the Notice, "by holding a technical Certificate or Diploma awarded by UNEB or other recognised examining body to a person who holds a UCE Certificate and has studied for at least two continuos years in a Technical Institution", he still should have been required to obtain a Certificate under section 5(4). It is apparent this Certificate is lacking. Court's attention was drawn to the fact that in compliance with section 5(4) UNEB Gazetted names of people alleged to have completed formal education of Advanced Level standard. It is surprising why UNEB selectively chose to comply with section 5(4) while on other occasions such as in the case of the 1st Respondent it ignored the provision. If this was because of Exhibit Dó, a letter by UNEB written to the Chairman Electoral Commission to the effect that individual aspiring candidates did not require to be gazetted by UNEB in accordance with section 5(4). I regret to say that that letter was

$\overline{5}$

a misdirection. Subsequently reliance on the misleading directive was fatal in nr.7 view as it contravened a statutory provision under the P. E. A. The Ietter sousht to refer to General Notices No. 120 and 745 published in the Usanda Gazerte Yol. \CI\/ No. 24 of 4f May 2001 and Vol. XCN No. 26 of I ld' Ivlav 200t. The leuer said rhat tt people presenting qualifications covered in the two General Notices should be deemed to have their qualifications Eazetted under section 5(4) i think this s.as fatally wrong. I have a.lready outlined above that section 5(5) did not ciisplace section 5(4) Each section is independent, necessary and deals u,ith ditfurent aspecrs. Without boring you I wish to reiterate that section 5('i) deals n iih individual verifications of candidates while section 5(5) sets the srandards of rqualificarions which are equivalent to 'A' Levels.

in the circumstances I find no alternative but to cieclare that non compiiance with section 5(4) was fatal. The candidate declared as \lember ol Parliamenr rcr Bukooli South Constituency was not qualified rvithin the meaning oisecrion -i( l)1c).

I therefore proceed under section 62(d) P. E. A 2001 to declare that Ochieng Peter Patrick the ln Respondent was not dull nominated as his nominarion papers were void for non compliance with the provisions of section 5 Election Parliamenrarr' Act 2001.

Having nullified the election as above I shall not consirier rhe intriguing allegations against the 1s Respondent's exact academic quaiitications since this court has no por.vers to convict for an illegal practice or other ot'ierrce .\ccordirr-lir i iind the exercise futile and not worth pursuing at this material tir:re

I therelore conclude by ordering the first Respondent to r acate I',is srat. Tl:c' coun rvill accordingly ceniry its determination to the Ccmmission and Si1:.'lker of Parlianrent. The seat ofthe I" Respondent is hereb-v declared vacanr

Thc ctrsls rn this Petition hal'e been atvariled irt l-,rrr-.rrr (ri'rhr J)('ri,i1)n(:i -i i;t Ont i'' licsr;ttndent should n:eet ar.l\*o third/ of the costs l:ccltusc i Llon t l.clie ,,., hc i:rno.:tir1l', i;iiled tr-r gct tht reqtrired C'crriJicare in urrv crsr r:r [:rlr I'] i;r,, ::r:I,,i:)(rrri lnd(i liiiI l--. lltclaretl tlial he \*ls Irot distruirlilletl rrnr!:r llrc l':,rlr,r::,.u.ri i .',"r:'

Act 2001 yet he flouted section 5 of that Act. He was therefore contributory negligent. The Electoral Commission as the Principal Manager of the Elections was grossly negligent in failing to observe the Parliamentary Elections Act 2001 as required by the Electoral Commission Act 1997. They should meet the bulk of the costs..

I wish to end by making the following comments:

It is surprising that despite the fact that the Electoral Commission is a Constitutional Body and regulated by a statute that its work can be interfered with by UNEB to the detriment of the law.

For example in a Press Release regarding nomination check list dated 27th July 2001 the Chairman of the Electoral Commission stated among other things that "A person who claims to have attained the equivalent of 'A' Level must attach a Certificate from UNEB and a copy of the Gazette under which the Certificate was issued". It is surprising that the Chairman Electoral Commission failed to react to UNEB's letter dated 21st May 2001 refuting the need for individual Gazetting of candidates' qualifications equated to 'A' Level. This letter Exh. D6 was clearly misleading. As the principal Manager of the Electoral process in the country the Commission is empowered to ensure compliance by all election officers and candidates with the provisions of the Act or any other law. The Commission should not have allowed UNEB to intermeddle with the process as this was absolute trespass which defiled the entire process. The Commission should wake up to its weakeness. I finally wish to thank the learned counsels who conducted the Petition.

I thank them for binding the proceedings and for the attachments of precedents that shaped my decision. The cases referred to included:

- Election Petition No. of 2001; Col. (RTD) Besigye Kiiza versus Museven1 $1.$ Yoweri Kaguta & Electoral Commission. - John Bosco Oryem versus Electoral Commission No. 2/98 $\overline{c}$ .

Yowasi Makaru versus The Electoral Commission Election Petition No. 1/92 3

$\mathcal{R}$

- Victoria Kakoko Sebageraka versus Electoral Commission. Election Appeal 4. No. 1/2001 - Byanyima Winnie versus Ngoma Ngime; Civil Revision No. 0009/2001 - $5.$ Mbarara High Court.

Acts referred to:-

- The Constitution of the Republic of Uganda 1995 $1.$ - The Parliamentary Election Act 2001 $2.$ - The Electoral Commission Act 1997. $3.$

ANNA MAGEZI **JUDGE** 11/1/2002