Eddie Kwizera v Electoral Commission and Another (Constitutional Application No. 04 of 2020) [2023] UGCA 402 (6 October 2023)

Full Case Text

## THE REPUBLIC OF UGANDA

### IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

# **CONSTITUTIONAL APPLICATION NO. 04 OF 2020**

EDDIE KWIZERA::::::::::::::::::::::::::::::::::::

#### **VERSUS**

#### 1. ELECTORAL COMMISSION

2. HON. SIMON BYABAKAMA JCC CHAIRMAN ELECTORAL COMMISSION::::::::::::::::::::::::::::RESPONDENTS

**CORAM: HON. JUSTICE RICHARD BUTEERA, DCJ** HON. JUSTICE CATHERINE BAMUGEMEREIRE, JCC HON. JUSTICE MUZAMIRU KIBEEDI MUTANGULA, JCC HON. JUSTICE IRENE MULYAGONJA, JCC HON. JUSTICE OSCAR JOHN KIHIKA, JCC

#### **RULING OF THE COURT**

## **Introduction**

The Applicants brought this application under the provisions of Section 98 of the Civil Procedure Act, Rule 2(2) and 43 of the Judicature (Court of Appeal Rules) Directions and Rule 23 of the Constitutional Court (Petitions and References) Rules 2005 for orders that:

- 1. The second respondent be arrested and committed to Civil Prison for contempt of court. - 2. The first respondent pays a fine of shillings $3,000,000,000/$ = to the registrar of the court in order to purge the contempt. - 3. All preparations for elections in respect of parliamentary constituencies created after 2001 be immediately halted.

## 4. Costs

The application, filed on the 17th of March 2020, stems from the judgement of this court in Constitutional Petition No. 20 of 2018 Eddie Kwizera Vs Attorney General & The Electoral Commission which was delivered on the 27th of December 2019. The petitioner, who is the Applicant in the present application, had sought a number of declarations and orders to wit:

- 1. That the creation of the municipalities of Apac, Sheema, Ibanda, Nebbi. Bugiri and Kotido as constituencies was null and void. - 2. That the holding of elections in those constituencies contravened article 63 (6) and 20 of the Constitution of the Republic of Uganda. - 3. That the resolution of Parliament creating constituencies was null and void. - 4. A permanent injunction restraining the second respondent from holding elections in the said municipalities.

The Constitutional Court partially allowed the petition and, in its judgment, made the following orders:

- 1. That the parliamentary elections conducted in the municipalities of Apac. Sheema, Ibanda, Nebbi, Bugiri, and Kotido are hereby nullified. - 2. That the Electoral Commission shall within one year hereof, file in the Constitutional Court evidence of the prescription by Parliament of the number of constituencies in Uganda for the next general elections pursuant to the provisions of Articles 294 and 63(1) of the Constitution. - 3. That the Electoral Commission shall, within ten months hereof file, in the Constitutional Court, evidence of demarcation of the boundaries of the Constituencies in accordance with the prescription made by the Parliament pursuant to the provisions of Article 63 of the Constitution. - 4. That the Petitioner shall be paid half of the taxed costs by the second respondent.

The 1st Respondent being dissatisfied with part of the Judgement of the Constitutional Court filed its Notice of Appeal on the 30th of December 2019 and on the same day filed in the Supreme Court, Constitutional Application No. 3 of 2020 for stay of execution of the orders of the Constitutional Court. This application was heard and granted in a ruling delivered by the Supreme Court on the 4th of June 2020.

In the meantime, the 1st Respondent filed in the Supreme Court, Constitutional Appeal No. 3 of 2020, Electoral Commission vs Eddie **Kwizera** which was consolidated with Constitutional Appeal No. 2 of 2020 to become Consolidated Constitutional Appeals Nos 02 & 03 Attorney General, Electoral Commission and Hon. Basalirwa & 5 Others vs Eddie **Kwizera.** Judgement in this appeal was delivered on the $6th$ of January 2022 wherein it confirmed the Constitutional Court's decision and dismissed the appeal.

Whereas this application was filed on the $17th$ of March 2020, well before Constitutional Application No.3 of 2020 and Consolidated Constitutional Appeals Nos. 2 & 3 were heard and determined, it was fixed for hearing on the $3rd$ of March 2023.

At the hearing Mr. Wandera Ogalo appeared for the Applicant while Mr. **Ahmidu Lugolobi** appeared for the Respondents. Both parties were ordered to file their respective written submissions, which was done.

The grounds, upon which this application is based are contained in the Notice of Motion. The motion is supported by an affidavit which was sworn by the Applicant on the 17th of March 2020. The grounds in the Notice of Motion are stated to be as follows;

- 1. This Honorable Court did deliver judgement on the 27th December 2019 in Constitutional Petition No. 20 of 2018. - *2. The said judgement and decree of this Honorable Court were served upon the Respondents.* - 3. In breach and contempt of the decision and orders of this court, the Respondents have jointly and severally persistently disregarded and disobeyed the said orders thereby defying the authority of this Honorable *Court and undermining the dignity of the Court.*

The Respondents filed an affidavit in reply deposed by **Mulekwah R. J Leonard** on the 1st day of March 2023, opposing the application. The grounds for opposition, as set out in the affidavit in reply, can be summarized as follows;

- 1. The application is incompetent in as far as it has been overtaken by *events, and it is frivolous vexatious and a classical abuse of court process* and a preliminary objection thereto shall be raised before the *commencement of hearing of the application.* - 2. The $1^{st}$ Respondent filed Constitutional Appeal No.3 of 2020 in the Supreme Court challenging the decision of the Constitutional Court. - 3. Upon commencement of the Appeal process the $1^{st}$ Respondent filed *Constitutional Application No. 3 of 2020 in the Supreme Court which was* heard and determined on the 4th of June 2020. - 4. The Supreme Court in Constitutional Application No. 3, of 2020 stayed execution of the decision, decree and orders of the Constitutional Court *pending the determination of the Appeal.* - 5. The Constitutional Court in Constitutional Petition No. 20 of 2018 had directed the 1st Respondent to file within in one year from the date of Judgement evidence of prescription by Parliament the number of Constituencies of the 2020-2021 general elections. The Constitutional *Court also ordered the 1st Respondent to, within ten months from the date of judgement file evidence of demarcation of boundaries of Constituencies.* - 6. *However, the Ruling in Constitutional Application No. 3 of 2020 stayed* execution of the aforementioned decree and orders of the Constitutional Court thus implementation of the orders within the time frames ordered *was not possible.* - *7. Evidence of prescription of constituencies and demarcation* $of$ constituencies for the 2020-2021 General Elections has since been filed in *Court and the Applicant's costs have been accordingly paid.* - 8. The $1^{st}$ and $2^{nd}$ Applicants are not in contempt of the Constitutional Court orders and the Applicant is not entitled to the remedies sought.

# **Preliminary Objection.**

Before delving into the merits of the application, we shall first address the preliminary objections that were raised by Counsel for the Respondents in his written submissions. The preliminary objections raised were two, as follows:

i) The Proceedings against the $2^{nd}$ Respondent are barred by law.

ii) The application is an abuse of court process and vexatious.

# Respondents' Submissions on the 1st Preliminary Objection.

The first preliminary objection is that the proceedings against the $2^{nd}$ Respondent are barred by law. Counsel submitted that the $2^{nd}$ Respondent is protected against personal lawsuits arising from his official functions by virtue of Section 49 of the Electoral Commission Act which provides that a member or employee of the Commission shall not be liable to any civil proceedings for any act done in good faith in performance of those functions.

Counsel submitted that the $2^{nd}$ Respondent is the Chairperson of the $1^{st}$ Respondent, a Member of the Commission by virtue of Article 60 of the 1995 Constitution and was at all material times acting under the direction of the Commission, as such the $2^{nd}$ Respondent is exempted from personal law suits. Counsel further argued that the Applicant in his application never pleaded that the $2^{nd}$ Respondent did not act in good faith and in the absence of such pleadings and evidence, the current civil proceedings against the $2^{nd}$ Respondent cannot be sustained, are incompetent and not maintainable, as such the $2^{nd}$ Respondent should be struck off with costs.

## Applicant's Submissions on the $1st$ Preliminary Objection.

Counsel for the Applicant in reply contended that Section 49 of the Electoral Commission Act protects the 2nd Respondent while performing any function of the Commission if the act complained of is done in good faith. Counsel further argued that the functions of the Commission are set out in article 61(1) of the Constitution and they do not include disobedience of court orders and therefore Section 49 is not applicable.

Counsel for the Applicant went on to point out that the $2^{nd}$ Respondent signed two general notices. One with and the other without the word "demarcation" which is central to the application. Counsel argued that having raised this grave contradiction in their submissions, it was incumbent upon counsel for the $2^{nd}$ Respondent to make some explanation, which was not done thereby leaving the issue of good faith open.

## **Respondent's Submissions in Rejoinder**

In rejoinder, Counsel for the $2^{nd}$ Respondent submitted that the argument pertaining to the $2^{nd}$ Respondent's signing of General Notice no.288/2020 as a disobedience of the Court's directive, was a deliberate attempt to mislead court or is rooted in the Applicant's misconstruction of the Constitutional Court Judgement that the court held that the six municipalities and the 76 constituencies were unconstitutional and did not exist. Counsel argued that the Constitutional Court never issued a declaration that the existence of six municipalities and 76 constituencies was unconstitutional. The Constitutional Court instead faulted the 1st Respondent for conducting and organizing midterm elections in the six constituencies comprising of municipalities specifically named as Apac, Sheema, Ibanda, Nebbi, Bugiri and Kotido. Counsel then referred the court to page 72 of the Constitutional Court's Judgement where it was stated that the ultimate effect of the petition was that it only challenged the act of the $1^{st}$ Respondent to conduct elections in the six constituencies.

With regard to the allegation that the $2^{nd}$ Respondent had signed two General Notices as evidence of bad faith, Counsel for the $2^{nd}$ Respondent submitted that they had demonstrated the circumstances under which General Notices No.288 of 2020 and 1292 of 2020 had been signed. General Notice 1229 contained 353 constituencies and was signed on $1^{st}$ October 2020 by the $2^{nd}$ Respondent, while General Notice No, 288 which has 296 constituencies was signed earlier on the 10th of March 2020 therefore the claims that the word "Demarcated" was inserted is preposterous.

## **Resolution**

The preliminary objection raised by the $2nd$ Respondent is, in our view, founded on the provisions of Order 7 Rule 11 (d) of the Civil Procedure Rules which provides as follows;

## "The plaint shall be rejected in the following cases—

![](_page_5_Figure_6.jpeg)

**(b)** $\dots$

$(c)$ ....................................

$(d)$ where the suit appears from the statement in the plaint to be

## barred by any law;"

A court that has been moved to reject a plaint has to look to the pleading to establish whether or not the statements contained therein lead to the action being barred by any law.

In the instant case, we are dealing with the Notice of Motion which initiated the present application. That is the pleading that this court ought to look into. As a Constitutional Court, we are granted the jurisdiction to do so by virtue of Rule 23 (1) of the Constitutional Court (Petitions and References) Rules which provides as follows;

"Subject to the provisions of these Rules, the practice and procedure in respect of a petition or a reference shall be regulated, as nearly as may be, in accordance with the Civil Procedure Act and the rules made under that Act and the Court of Appeal Rules, with such modifications as the Court may consider necessary in the interest of justice and expedition of the proceedings."

The Notice of Motion names Hon. Simon Byabakama JCC Chairman Electoral Commission as the $2^{nd}$ Respondent. It is indeed common ground that the $2^{nd}$ Respondent is the Chairman and a member of the commission of the 1st Respondent which is the Electoral Commission. It is on that basis that Counsel for the 2nd Respondent argued that the 2nd Respondent is protected against personal lawsuits arising from his official functions by virtue of Section 49 of the Electoral Commission Act.

Section 49 of the Electoral Commission Act provides as follows;

"A member of the commission or an employee of the commission or any other person performing any function of the commission under the direction of the commission shall not be personally liable to any civil proceedings for any act done in good faith in the performance of those functions."

Thus Section 49 of the Electoral Commission Act would *ipso jure* appear to bar these proceedings against the 2nd Respondent, provided that the act complained of in the said proceedings was done in good faith. The party bringing the action would be required to plead in no uncertain terms that the omissions or commissions complained of were not done in good faith. This is so because in determining whether or not to strike out a plaint, the court only has to look to the pleadings and not the evidence. The Supreme Court of India in the case of **Kamala & Ors vs K. T. Eshwara Sa & Ors, Appeal (civil) No. 3038 of 2008**1 discussed Order 7 Rule 11(d) of the Indian Civil Code which is *pari materia* with Order 7 Rule 11(d) of our Civil Procedure Rules and had this to say.

" Order VII, Rule $11(d)$ of the Code has limited application. It must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. Different clauses in Order VII, Rule 11, in our opinion, should not be mixed up. Whereas in a given case, an application for rejection of the plaint may be filed on more than one ground specified in various sub-clauses thereof, a clear finding to that effect must be arrived at. What would be relevant for invoking clause (d) of Order VII, Rule 11 of the Code is the averments made in the plaint. $\boldsymbol{For}$ that purpose, there cannot be addition $any$ $\boldsymbol{or}$ subtraction...... For the purpose of invoking Order VII, Rule 11(d) of the Code, no amount of evidence can be looked into"

The above position of the law has equally been applied in our courts. In **James** Mundele Sunday vs Pearl of Africa Tours & Travel Ltd H. C. C. S (Commercial Division) Civil Suit No 89 Of 2011 Justice Madrama (as he then was) stated thus;

"I agree with the submission that the question whether a suit is barred by limitation can be considered by a perusal of the plaint only. This is consistent with Order 7 rule 11 (d) of the Civil Procedure Rules which provides that the plaint shall be rejected in the following cases inter alia in $(d)$ :

"(d) where the suit appears from the statement in the plaint to be barred *by any law;" (Emphasis added)*

From a consideration of Order 7 rule 11 of the Civil Procedure Rules, the issue of whether the Plaintiff's plaint is barred by law has to be considered upon perusal of the plaint only and anything attached to the plaint forming part of it"

The aforementioned position of the law had earlier been adopted by the Supreme Court. See Ismail Serugo v Kampala City Council and the Attorney General; Constitutional Appeal No. 2 of 1998.

&lt;sup>1 Indian Kanoon - http://indiankanoon.org/doc/1792834/

In the context of the present application, and as stated before, the pleading that this court has to look at is the Notice of Motion. The grounds in the Notice of Motion which have already been reproduced hereinabove, indicate that the action is being brought against the 2nd Respondent who is accused of disregarding orders of this court. The remedy sought by the Applicant is to have the 2nd Respondent arrested and committed to civil prison for contempt of court.

This is clearly a civil action being brought against a person who enjoys immunity from civil proceedings by virtue of Section 49 of the Electoral Commission Act. Nowhere, in the Notice of Motion, is it pleaded that the $2nd$ Respondent's actions were made in bad faith. Put in another way, the alleged facts as pleaded do not, with certainty, lay ground for the demonstration of bad faith on the part of the $2^{nd}$ Respondent.

Even if, for argument's sake, we were to look at the accompanying affidavit as part of the pleading, there is no demonstrable act of bad faith attributable to the $2^{nd}$ Respondent. Paragraph 12 of the Applicant's affidavit tacitly concedes that the act of contempt had not even been committed. It reads as follows;

# "I verily believe that though the time within which to file evidence of demarcation has not expired, the decision to hold elections in those constituencies without filing such evidence undermines the authority of this court"

We therefore find that the Applicant, by his pleading, has failed to show that the 2nd Applicant, in terms of Section 49 of the Electoral Commission Act, acted in bad faith; that being the case the Applicant's action is thus barred by law. We accordingly uphold the first preliminary objection and strike out the application as against the $2^{nd}$ Respondent with costs.

#### Respondent's Submissions on the $2^{nd}$ Preliminary Objection.

The second preliminary objection is that the application is an abuse of court process and is vexatious. Counsel for the Respondent submitted that the application is an abuse of court process and vexatious on four accounts.

The first is that the application was filed parallel to the Supreme Court stay of execution and appeal proceedings. Counsel argued that contempt proceedings are by nature adverse to appeal and stay of execution proceedings therefore

there was a likelihood that this would potentially result in conflicting judgements at the Supreme Court and Court of Appeal thereby resulting in abuse of court process.

The second is that the prescription of constituencies by the Parliament on the 30th of July 2020 rendered the current proceedings moot. Counsel argued that at the time the Applicant filed the Petition in the Constitutional Court the number of constituencies was 296. When Parliament adopted a resolution on 30th July 2020 it prescribed 353 constituencies in Uganda which were to be divided for purposes of Parliamentary Elections, the 1st Respondent undertook demarcation of the boundaries of the said constituencies. Counsel contended that the aforementioned events completely and irrevocably eradicated the effects of the alleged omission/violation. Counsel then referred us to the case of Cambell-Edward Co. vs Gomez, 136 S.ct.663, 669 (2016) for the proposition that a case is moot when the issues presented are no longer live, the action can no longer proceed and must be dismissed as moot.

The third is that the instant application was filed prematurely in the sense that the time frames within which the Respondent ought to have filed the evidence of prescription and demarcation of the constituencies as directed by the Constitutional Court hadn't elapsed. It was counsel's argument that had the Constitutional Court entertained this application before the expiry of the time frames within which the 1st Respondent ought to have filed evidence of Prescription by Parliament of constituencies and demarcation thereof, it would have obviously dismissed the action on account of being premature.

Lastly, Counsel contended that the act of conducting and concluding Parliamentary General Elections 2020-2021 on the 14th of January 2021 in effect rendered the instant application nugatory. Counsel submitted that the Constitutional Court, at page 83 of its judgement, directed that the Respondent shall within one year file in court evidence of prescription by Parliament dividing Uganda into a number of constituencies pursuant to the mandate conferred upon it by Articles 294 and 63 (1) of the Constitution for the next General Elections. The said General Elections, counsel further submitted, were concluded on the 14th of January 2021, during the subsistence of an order of stay of execution by the Supreme Court of the Constitutional Court orders pending the determination of the appeal.

#### Applicants Submissions on $2^{nd}$ Preliminary Objection.

In reply to the Respondents submissions counsel for the Applicant, on the point of having filed parallel proceedings, submitted that it was not correct to state that the application was filed parallel to the Supreme Court stay order. Counsel argued that whereas the application was filed on the 17th March 2020, the Supreme Court granted the stay of execution on the 4th June 2020, three months after the application was filed. There was thus nothing parallel about the two.

Counsel for the Applicant further submitted that there could be no potential conflict. He argued that if this application had come up for hearing on the 5th of June 2020, he would no doubt have applied to have the proceedings in the Supreme Court stayed. He asserted that this application came up for hearing on the $2^{nd}$ of March 2023, when judgment in the Supreme Court was delivered on the 6th of January 2021. Counsel argued that he did not see how the Applicant could have been said to have pursued concurrent hearings in both courts.

With regard to the Respondent's submission that the prescription of constituencies by the Parliament on the 30th of July 2020 rendered the current proceedings moot, counsel for the Applicant responded by submitting that subsequent prescription did not render the application moot. Counsel argued that a party can disobey a court order and set up a defence that the order has been overtaken by events. This, counsel further argued, would be setting a dangerous precedent.

Regarding the argument that the instant application was filed prematurely, counsel for the Applicant submitted that the Applicant was alive to the fact that the time granted by the Court within which to file evidence had not elapsed. Counsel conceded that the Applicant openly says so in paragraph 12 of his affidavit. Counsel submitted that the contention was that the 1st Respondent had issued a road map for the 2020/2021 general parliamentary elections on the 23rd of February 2020 and gazetted the six municipalities been unconstitutionally brought into existence and 76 which had constituencies which the Court required evidence of demarcation. Counsel argued that the above acts had by themselves already contravened the decision of the court.

Counsel for the Applicant did not respond to the Respondent's submissions that the act of conducting and concluding Parliamentary General Elections 2020-2021 on the 14th of January 2021 in effect rendered the instant application nugatory. Counsel for the Respondent instead made lengthy submissions on the decision of this court in the case of **Kamba Samuel & 2** Others vs The Electoral Commission & Attorney General which was handed down on the 11th of March 2022. It was Counsel's contention that by the time the 1st Respondent gazetted the constituencies for the 2020/2021 elections they were aware of this decision!!

## Respondents' submissions in rejoinder.

In rejoinder to the Applicant's submissions, Counsel for the Respondents argued that there was nowhere in the judgment of the Constitutional Court where their Lordships found and held that the existence of the six Municipalities and 76 Constituencies was unconstitutional. Counsel submitted that the Constitutional Court faulted the 1st Respondent for conducting and organizing mid-term elections in those Constituencies pursuant to which the Court ordered the 1st Respondent to comply with Articles 63 and 294 of the Constitution in the next general elections.

### **Resolution**

The anomaly that stands out from the submissions of both counsel is the fact that the instant application for contempt of court orders was filed prematurely. It is common ground that by the time this application was filed, the time frames within which the Respondent ought to have filed the evidence of prescription and demarcation of the constituencies as directed by the Constitutional Court hadn't elapsed.

For emphasis, the Constitutional Court, on the 27th of December 2019, directed that the 1st Respondent within one year, had to have filed in court evidence of prescription by Parliament dividing Uganda into a number of constituencies pursuant to the mandate conferred upon it by Articles 294 and 63 (1) of the Constitution for the next General Elections. Yet, the Applicant filed the present application on the 17th of March 2020, three months after the decision of the Constitutional Court, well before the one year period ordered by court had expired. We are of the view that this amounts to abuse of court process on the part of the Applicant.

Black's Law Dictionary 4th Edition at page 25 defines the term 'abuse' as follows:

# "To make excessive or improper use of a thing, or to employ it in $a$ manner contrary to the natural or legal rules for its use; to make an extravagant or excessive use, as to abuse one's authority."

Generally, the elements for abuse of process are: (1) the use of an illegal or improper use of process; (2) an ulterior motive or improper purpose; and in some jurisdictions (3) harm to a litigant. $2$

It is quite clear that the Applicant, in the instant case, improperly used court processes by filing this action for contempt *before* the alleged act of contempt had occurred. This, in our view, renders the application frivolous and vexatious to the Respondents who have had to respond to it at the cost of the Commission.

## According to Black's Law Dictionary 4th Edition,

# "Frivolous pleas" are those which are so clearly and palpably bad as to require no argument to convince the court thereof, and which would be pronounced by the court indicative of bad faith in the pleader on a mere inspection."

Thus, where an action is found to be frivolous, it is liable to be struck out under the provisions of Order 7 Rule 11(e) of the Civil Procedure Rules. The considerations for rejecting a pleading under Order 7 Rule 11 have already been discussed and we need not delve into them yet again. Suffice to add that according to Odger's 'Principles of Pleading and Practice in Civil Actions of the High Court of Justice' 22nd edition page 148, an application to reject a plaint on the ground of being frivolous or vexatious relies only on the facts pleaded and no evidence is admissible.

Indeed, when we look at the Notice of Motion, the pleadings therein do show that this matter was filed prematurely; there was no contempt committed as of the time of filing the application. In the premises we uphold the second preliminary objection and strike out the application for being an abuse of court process and being frivolous.

&lt;sup>2 https://www.law.cornell.edu/wex/abuse of process

Before we take leave of this matter, we note that whereas this application was filed in March of 2020 it was not served upon the Respondents until February of 2023 and it came up for hearing on the $2^{nd}$ of March 2023. By that time, the 1st Respondent had filed the requisite evidence of Prescription by Parliament and evidence of demarcation of constituencies. The Applicants dispute this. However, had we not struck out the application, we would have taken the view that the 1st Respondent had purged the contempt by the time the matter came up for hearing.

In conclusion the application is struck out with costs to the Respondents.

### We so order

Dated this ...... $6$ ....day of ................................... HON. JUSTICE RICHARD BUTEERA, DCJ, HON. JUSTICE CATHERINE BAMUGEMEREIRE, JCC HON. JUSTICE MUZAMIRU KIBEEDI MUTANGULA, JCC

HON. JUSTICE IRENE MULYAGONJA, JCC

HON. JUSTICE OSCAR JOHN KIHIKA, JCC