Enyangu and Others v Electoral Commission and Another (Miscellaneous Application 101 of 2022) [2022] UGHCEP 48 (27 July 2022)

The Republic of Uganda

In The High Court of Uganda at Soroti

Miscellaneous Application No. 101 of 2022

(Arising from Misc. Application No. 100 of 2022)

(Also Arising from Misc. Application No. 99 of 2022)

(And Also Arising from Election Petition No. 10 of 2022)

In The Matter of Section 15 (2), (3), (4) & (5) of The Electoral Commissions Act, Cap. 140

And

In The Matter of an Appeal Against the Decision of The Electoral Commission Dated 12<sup>th</sup> July 2022 Under CM. Min 134/2022Ref. No. Leg/75/79/01 - Communicated to The Petitioners On $15^{th}$ July 2022

$\cdot$ And

In The Matter of the Parliamentary Elections held on the 14<sup>th</sup> Day of January 2021 for Soroti City, Soroti West Division Constituency

$\mathsf{S}$

And

In The Matter of the Parliamentary By-Elections scheduled to take place on the 28th day of July 2022 for Soroti City, Soroti East Division Constituency

Enyangu Micheal Etadu

Opio Enoch 25

Ejoku Aaron

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Anwango Mary

Versus

Electoral Commission

Hon. Ebwalu Jonathan 30

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DEPUTY REGISTRAR. HIGH COURT SOROTI (U)

## Ruling:

This is an application for a Certificate of Urgency brought under section 98 of The Civil Procedure Act and Rules 3 and 4 of The Judicature (Court Vacation) Rules, seeking orders that a certificate of urgency be issued allowing for the hearing of the Applicants' applications for Interim Injunction, Temporary Injunction and the election petition/appeal during court vacation.

The application is supported by the affidavits of the applicants sworn on 19th and 17th July, 2022 stating the grounds thereof which briefly are that during 15 the 14th January 2021 elections for the directly elected member of parliament for Soroti City, Soroti West Division constituency, the 1st respondent illegally and wrongfully placed the parishes of Aloet and Opilyai in Soroti City West Division constituency instead of Soroti East Division constituency where they rightfully belong. 20

That this court and the Court of Appeal in two decisions found the 1st respondent's actions illegal and that the two parishes of Aloet and Opilyai be placed in Soroti East Division where the rightfully belong.

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That without removing the votes of the voters from Aloet and Opilyai from the declared and gazetted results from Soroti City, West Division where the 1<sup>st</sup> respondent declared the 2<sup>nd</sup> respondent winner, the 1<sup>st</sup> respondent has organized a by-election for the directly elected member of parliament for Soroti City, East Division where the voters from Opilyai and Aloet are slated to participate and vote on 28<sup>th</sup> of July 2022.

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- That if the planned election happens without the removal of the votes of the $\mathsf{S}$ voters from Opilyai and Aloet parishes from the declared and gazetted results it will lead to commission of electoral offences and breach of the constitution, the electoral laws and inevitably amount to contempt of the orders of the various courts of law. - The applicants have filed a petition/appeal against the 1<sup>st</sup> respondent's 10 decision to continue with the impugned by-election and this petition is pending hearing and determination before this Honourable court.

The 2nd respondent in his affidavit in reply stated that in application for $a$ certificate of urgency the applicant is supposed to show exceptional circumstances of peculiar urgency and not a self-created urgency like in the instant case where the decisions in the High Court was delivered in September 2021 and Court of Appeal on 17th of June 2022.

That the applicants have not established any imminent danger to their existing rights that poses a possibility of irreparable harm if the certificate of urgency is not granted.

That the applicants' matter before this court has no realistic prospect as it not arguable on the grounds that the jurisdiction of the High Court under Section 15 of the Electoral Commission Act as a basis from with their temporary and interim orders arise is inapplicable where the elections were concluded, that the applicants have not established their locus standi, the election in Soroti East is being conducted pursuant to the decree and orders of the Court of Appeal and enforcement thereof cannot be injuncted by the High Court and that the petition and resultant applications are not competent on account of being time barred.

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**DEPUTY REGIS**

SOI

Counsel for the applicants submitted on whether this application reveals $\mathsf{S}$ sufficient ground for the grant of the prayers sought and what remedies are available to the parties.

Counsel submitted that as stated in paragraphs 19 of the each of the Applicants' affidavits in support of this application; on 1st July 2022, by way of a complaint under section 15 (1) of the Electoral Commission Act, Cap 140, the Applicants challenged the legality of the planned by election for the directly elected Member of Parliament for Soroti East Division constituency and the 1st Respondent's failure to fully comply with the two above mentioned decisions of this court and the Court of Appeal.

That as stated in paragraphs 22 and 23 of each of the applicants' affidavits in 15 support of this matter, on 15th July 2022, the 1st Respondent dismissed the Applicants' complaint and being dissatisfied with that decision the Applicants filed Election Petition No 10 of 2022, appealing against the 1<sup>st</sup> Respondent's decision. With Section 15(5) of the Electoral Commissions Act, cap. 140 clearly provides that; 20

> "The High Court shall proceed to hear and determine an appeal under this section as expeditiously as possible and may, for that purpose, suspend any other matter pending before it. So by virtue of that provision of the law, this honourable court is enjoined to handle the Applicants' petition as expeditiously as possible."

Counsel further stated that if this application is not granted the Applicants' petition and the two applications for injunctive remedies will be rendered nugatory as no useful remedy will be granted to solve the planned unconstitutional and illegal acts of the $1^{st}$ Respondent that are detailed in the

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Applicants' Petition and the two applications which the Applicants seek to be $\mathsf{S}$ handled urgently during court vacation.

Counsel also submitted that by their very nature election matters are urgent in nature given the fact that they relate to the very critical issues of the determining who will represent of members of the constituency in parliament which is a corner stone for democracy.

That this is why election matters are governed by strict and short timelines to ensure that they are disposed of expeditiously.

It is also the Applicants' contention in this matter that the impugned byelection is tainted by unconstitutional and illegal acts.

Counsel finally prayed that a certificate of urgency and costs of the 15 application be granted.

In reply, the 1st Respondent submitted that the instant Application is incompetent and a classical abuse of court process and should be dismissed with costs.

- Counsel submitted that the application was brought in bad faith and is a 20 waste of court's valuable time. Counsel relied on Male Mabirizi Vs Attorney General Misc. Application No. 921 of 2021 to support their argument. - Counsel for the 1<sup>st</sup> respondent further submitted that in the instant case, the Applicants have not demonstrated to Court the existence of rights accrued to 25 them and as such an imminent danger these existing rights and instead, they want this Honourable Court to hear and determine matters already adjudicated upon by the Court of Appeal, the highest Appellate Court in Elections matters.

DEPUTY REGISTRAR. HIGH COURT SOROTI (U)

Counsel submitted that this Honourable Court has no jurisdiction to $d\phi$ so $\overline{5}$ and such cannot grant this Application.

That all the applications herein are a disguised application for stay of execution of the Orders of the Court of Appeal by the $1^\text{st}$ Respondent in Election Appeal No. 10 and 021 of 2021 and this court lacks the jurisdiction to do so.

That even if this court had such powers, there was no basis to re-open the case that had already been determined as demonstrated by the Court of Appeal in Serebe Apollo Vs Electoral Commission Election Petition *Application No. 01 of 2021.*

- Counsel further submitted that although the application arises from an 15 appeal against the decision of the Electoral Commission under section 15 of the Electoral Commission Act, it was their firm submission that section 15 of the Electoral Commission Act is inapplicable in the current circumstances of the case and that this was fortified by the case of - Byanyima Winnie Versus Ngoma Ngime Civil Revision of 20 *Uganda No.0009 of 2001* where his Lordship Honourable Justice V. F. Musoke-Kibuuka held that;

"The electoral process is segmented and the last segment is the segment of vote counting and declaring the winning candidate and it closes with the publishing of the name of the winner in the Uganda gazette."

That this was the very last act of the electoral commission in respect of the election of a Member of Parliament. Once the person who is gazetted takes


up his or her seat in Parliament, the Electoral Commission can no longer $\mathsf{S}$ reach him or her."

Counsel then stated that having declared the $2<sup>nd</sup>$ Respondent as the duly elected Member of Parliament for Soroti West Constituency and gazetted as such by the 1<sup>st</sup> Respondent, a position confirmed by the Court of Appeal, the 1<sup>st</sup> Respondent is thus *functus officio*. I agree with this point.

On the urgency of the matter, counsel for the 1<sup>st</sup> respondent submitted that in the instant case the 1<sup>st</sup> Respondent was preparing to conduct a by-election in Soroti East Constituency and not Soroti West Constituency and as such. there is nothing urgent to warrant Court's intervention either by way of injunction or otherwise and the question regarding the validity of the election for Member of Parliament for Soroti West had been determined and settled by both Soroti High and Court of Appeal in *Ameco Anna Grace&* Another Versus Electoral Commission & Hon Ebwalu. The same cannot therefore be re-opened for adjurations by this honourable court.

- That the by-election being organized by the 1<sup>st</sup> Respondent is in compliance 20 with the Court of Appeal orders in the consolidated Appeal of *Attal Moses* & Electoral Commission versus Ariko Herbert Edmund, where the Court of Appeal ordered for a by election to be held in Soroti East inclusive of the two parishes of Aloet and Opilyai. - That the Court of Appeal further found and held that the voters of the two 25 parishes were disenfranchised when they were denied the opportunity to participate in voting for Member of Parliament in Soroti East Constituency.

Counsel finally submitted that the Applicants are not entitled to the remedies sought and prayed that this application be disallowed with costs.


DEPUTY REGISTRAR. GH COURT SOROTI (U) 27 JUL **SIGN:.** 000000000000000

Counsel for the 2<sup>nd</sup> respondent submitted in reply that in the instant case, as $\mathsf{S}$ far as the 2<sup>nd</sup> Respondent and Soroti West Division Constituency were concerned where the Applicants have sought through the appeal/petition to have a by-election, there is no election planned and as such, there is nothing warranting Court's intervention either by way of injunction or otherwise that should be certified as urgent. 10

That regarding the *prima facie* merits of the Petition, it was their argument that the Petition lacked merit and section 15 of the Electoral Commission Act through which it is brought is inapplicable to the 2<sup>nd</sup> Respondent as he was not subject to the control or administrative powers of the Electoral Commission anymore.

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In making this assertion, Counsel relied on **Byanyima Winnie Versus** Nome Ngime Civil Revision of Uganda No. 0009 of 2001, Mwesigye Enock Vs Electoral Commission, High Court Miscellaneous Cause No.62 of 1998 and Ikiror Kevin v Orot Ismael Election Petition Appeal No.105 of 2016.

Counsel for the 2<sup>nd</sup> respondent further submitted that the petition is incompetent as the applicants have not proved locus standi to file it as required by section 60 (2) (b) of the Parliamentary Election Act and it has also been filed out of time per section 60 (3) of the Parliamentary **Elections Act.**

Counsel finally submitted that the applications and petitions brought by the applicants are frivolous, vexatious and incompetent and therefore not worthy of Court's urgent attention in this court vacation and finally prayed that this Application is dismissed with costs to the Respondents.


TY REGISTRAR. COURT SOROTI - In resolving this application, it should be borne in mind that a matter $\mathsf{S}$ brought to be considered under a certificate of urgency, is trite that such urgency which involves mainly the abridgment of time prescribed by the rules and the departure from the established filing and sitting times of the Court be justified. - This is because once the court goes into civil vacation, it can only be brought 10 out of that civil recess only if an applicant proves that there was a matter which cannot possibly wait consideration until after the end of the civil vacation and so the court may set the matter down forthwith for hearing at any reasonably convenient time within the court vacation. - It should be noted that court will not grant a certificate of urgency as a matter $15$ of course. To merit consideration, the application should disclose exceptional circumstances of peculiar urgency.

It is for that reason that **Rule 4 of The Judicature (Court Vacation) Rules** contemplates that in applications of this nature, the applicant should explicitly set out the circumstances which he or she avers render the matter urgent and the reason why he or she claims that he or she cannot be afforded

- substantial relief in a hearing in due course after the vacation, thus calling for the rules relating to the restriction on civil proceedings during the High Court vacation to be dispensed with. - There are degrees of urgency and consequently the courts deal with the 25 question of urgency according to the merits of each case. A distinction necessarily has to be made between those matters that ought to be heard urgently and those to which some delay would not cause harm which would not be compensated by the relief eventually granted to such litigant.


**COURT SOROTI**

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- An applicant wishing the matter to be treated as urgent has to show that the $\mathsf{S}$ infringement of such interest if not redressed immediately would be the cause of harm to him or her which any relief in the future would render an ineffectual legal judgment (brutum fumen). (see: Lakony vs Gulu District Service Commission [2018] UGHCCD 236) - In considering this instant application, I note that it is true that the 10 applicants in their affidavits, on the face of it, appears to establish a case of urgency in so far as they disclose that there is an impending by-election slated for 28<sup>th</sup> July 2022 in which the Member of Parliament for Soroti City East Division is scheduled to be directly voted for by the voters of Soroti East - Division constituency inclusive of the voters from Opilyai and Aloet parishes 15 who ostensibly did also vote for the directly elected MP for Soroti City West Division in 2021.

Thus in respect of 2<sup>nd</sup> Respondent and Soroti West Division Constituency is concerned, the Applicants seek through an appeal / petition to have a byeelection. However, there is no election planned that constituency warranting 20 Court's intervention either by way of injunction or otherwise that can be certified as urgent.

Further regarding the *prima facie* merits of the appeal/ petition, the issues raised by the applicants anchored on section 15 of the Electoral **Commission Act** are in regard to matters which the $1^{st}$ Respondent has 25 jurisdiction to hear and determine and which this court, may by way of an appeal hear which does not subject the 2<sup>nd</sup> respondent to the control or administrative powers of the Electoral Commission as was pointed in Byanyima Winnie Versus Ngoma Ngime Civil Revision of


DEPUTY REGISTRAR. HIGH COURT SOROT

*Uganda No.0009 of 2001* where his Lordship Honourable Justice V. F. Musoke-Kibuuka held that;

"the electoral process is segmented and the last segmen**t** is the segment of vote counting and declaring the winning Candidate and it closes with the publishing of the name of $\mathcal{L}$ the winner in the Uganda gazette. That is the very last $act$ of the electoral commission in respect of the election of $\mathbf{a}$ Member of Parliament. Once the person who is gazetted takes up his or her seat in Parliament, the Electoral Commission can no longer reach him or her."

This was the position of this court in the case of Mwesigye Enock Vs 15 Electoral Commission, High Court Miscellaneous Cause No. 62 of 1998, in which the Electoral Commission had attempted to remove a sitting Councilor and declare a different person as elected instead, the High Court held;

"The role $of$ the **Electoral Commission** to $act$ administratively in relation to any candidate closes the very moment the candidate takes his or her seat as $\alpha$ Counselor or as Member of Parliament. The Electoral Commission's powers can only be exercised in relation to candidates' and not to councilors or Members of Parliament. A person who has been declared the winner of an election or even the one who has lost one is no longer $\alpha$ Candidate. He or she is beyond the administrative reach of the Commission. The Commission can only reach him through a court order. To attempt to extend those powers to

COURT SOROTI (U)

$\mathsf{S}$

## Councilors and Members parliament is to act in excess of jurisdiction and any decision or action is ultra vires the Electoral Commission's Act."

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Based on the above decisions, it is my considered opinion that section $15$ of the Election Commission Act through which the Applicants lodged their complaint resulting to an appeal/petition is inapplicable to the 2<sup>nd</sup> Respondent who has already been sworn as a Member of Parliament with the 1st Respondent having no powers over him as he was no longer a candidate as was clearly made out by The Electoral Commission in its decision attached to this application in paragraph (e) of their decision dated 12<sup>th</sup> July 2022, when it stated;

"That following the Court of Appeal decision on the placement of the two parishes in Soroti East Division, the commission is not possessed with the powers to cancel the electoral outcome in Soroti City West Constituency."

Additionally, the perusal of the decision of the Court of Appeal in respect of 20 Soroti East Constituency does not it itself reveal that it made an infective decision that, given the reinstatement of the parishes of Aloet and Opilyai to Soroti East Constituency, then the election of the member of parliament for Soroti City West Constituency was affected by its decision and as such must 25 be redone.

So given the fact that the Court of Appeal did not in its wisdom nullify the election of the 2<sup>nd</sup> Respondent and thereafter directed fresh elections be carried out in Soroti City West constituency, this honourable would wanting of powers to entertain matters relating to the holding of elections affecting Soroti City East constituency hand in hand with that of Soroti City West


DEPUTY REGISTRAR. HIGH COURT SOROTI (U)

constituency given the reality that the election of the Member of Parliament $\mathsf{S}$ for Soroti West is not currently ordered to be repeated.

The only question that can possibly arise would be whether the member of Parliament for Soroti City West constituency was validly elected after the Court of Appeal decision in regard to the impugned parishes but that is for another time and can only be determined by the High Court upon a proper petition being presented in accordance of the provisions of section 60 to 68 of the Parliamentary Elections Act and not through an appeal from a complaint through Electoral Commission or through a petition /appeal as is in the instant case. See: Ikiror Kevin v Orot Ismael Election Petition Appeal No.105 of 2016

Furthermore, it should be borne in mind that the High Court under **section** 15 of the Electoral Commission Act has no powers under the law when the procedure under the said section is invoked to order for a bye-election as its power is limited to resolving administrative issues of candidates that the Electoral Commission had failed to resolve adequately before any elections are conducted which decision by the High Court under section 15 of the **Electoral Commission Act** would be final yet a decision nullifying a seat of a Member of Parliament by the High Court is appealable to the Court of Appeal.

It is thus worth noting as averred by the $2^{nd}$ Respondent (see Para 7(a) 25 Affidavit in reply), that the Court of Appeal has since made a final determination vide Election Petition Appeal No.021 of 2021 and as such the High Court cannot reopen an investigation and or entertain a petition to determine the validity of the 2nd respondent election which has been confirmed by the Court of Appeal as doing so would in effect mean that 30

**GH COURT SOROTI**

- the High Court was assuming jurisdiction over the Court of Appeal which $\mathsf{S}$ would be illegal as it being a lower court cannot reverse the decision of the Court of Appeal which is a higher court with any purported act by the High Court to reverse a decision of the Court of Appeal being gravely unconstitutional. - The Court of Appeal has also made a determination regarding the election in 10 Soroti City East Division constituency which decision is final and that decision has resulted in a by-election in that constituency. That decision is final and is not open to either the Electoral Commission or to the High Court to investigate or re-adjudicate since under section 66 of the Parliamentary Elections Act as amended, the decision of the Court of 15 Appeal is final in that aspect and bind the entire world including the Applicants, the Respondents, the Electoral Commission, the Courts and all the electorates with the common adage being that litigation must invariably at one time or another come to a conclusion. - Finally, though the Petition from which application arise is intended to 20 challenge the elections of the $2^{nd}$ Respondent, I note the applications for a Temporary Injunction and Interim order are seeking injunctive reliefs in matters relating to the constituency of Soroti City East Division for which the Court of Appeal made conclusive orders binding on all authorities including $25$ this court.

However, weighing the merits of this application side by side with what is contained in the petition and the resultant applications, this court would conclude that there is nothing worthy of this court's urgent attention during court vacation so that the court would certify the same as being urgent as no prima facie merits have been shown.


DEPUTY REGISTRAR. HIGH COURT SORO

$\mathsf{S}$

Accordingly, I would order that the petition be heard and considered outside court vacation as there is no eminent danger to existing rights of the applicants and there is no evidence adduced of the possibility of irreparable harm and or damages which cannot be atoned by any other remedies as was held in Lakony Jana vs Gulu District Commission, Miscellaneous Civil Application No. 0110 of 2018. This position is fortified by the holding by Mubiru J in the same *Lakony case*, where the learned judge pointed out that;

"In certifying the matter as urgent, the court is not supposed to take verbatim what the Applicant is saying regarding perceived urgency but is required to apply its mind to the circumstances of the case and reach an independent Judgment as to its urgency alongside the prima facie merits of the matter. The matter believed to be urgent must be a matter of substance rather than form. The Court should be satisfied that the matter sought to be brought to its attention during the vacation prima facie has merit. There should be a realistic prospect that the matter $\mathbf{r}$ intended to be brought before court is arguable."

The above principles apply to the instant matter and so my conclusion is that the appeal/petition herein is not worthy of court's urgent attention during 25 court civil vacation as the applicants have not proved that there were any eminent danger and or that they would have no alternative remedy to warrant the grant of a certificate of urgency given the fact that theirs is $a$ petition is in regard to Soroti City West constituency where there is no impending electoral action though they would wish by infection to have the

DEPUTY REGISTRAR. HIGH COURT SOROTI (U)

election in Soroti City East constituency injucted by this court which act $\mathsf{S}$ would be contrary to the decision and orders of the Court of Appeal.

The applicants are thus not entitled to the remedies sought and therefore, this application for the grant of a certificate of urgency is denied with no order as to costs.

I so order. $10$

Hon. Justice Dr Henry Peter Adonyo

Judge

27th July 2022