Kalemba & Anor Vs Lubega (Election Petition Appeal No. 76 of 2016) [2018] UGCA 6 (19 January 2018)

Full Case Text

## THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

# **ELECTION PETITION APPEAL NO.32 OF 2016**

# 1. KALEMBA CHRISTOPHER 2. ELECTORAL COMMISSION.................................. **VERSUS** LUBEGA DRAKE FRANCIS....................................

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# HON. MR. JUSTICE ALFONSE OWINY DOLLO, DCJ HON. MR. JUSTICE S. B. K. KAVUMA, JA V HON. MR. JUSTICE RICHARD BUTEERA, JA

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## **JUDGMENT OF THE COURT**

### **Introduction**

This is an Appeal from the judgment and orders of the High Court of Uganda at Masaka (Hon. Margret Tibulya. J) in Election Petition No.11 of 2016 delivered on 5th July, 2016.

### **Background**

The facts of the Appeal are that the 1st appelland the respondent, together with other candidates, contested for the seat of Member of Parliament for Kakuuko County $25$

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Constituency in the Parliamentary elections held on 18th February, 2016. The 1st appellant was returned the winner. The respondent filed a Petition against the appellants challenging the results of the election and seeking nullification of the same. The court decided the Petition in favor of the respondent, nullified the $1^{st}$ appellant's election and ordered a fresh one to be held. The appellant was dissatisfied with the judgment and the orders of the trial court, hence this Appeal.

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## Grounds of the Appeal

The Appeal is premised on the grounds stated in the Memorandum of Appeal as below;

1. The learned trial Judge erred in law and in fact when he held that the respondent had proved to the satisfaction of court that the $1^{st}$ appellant never resigned his job of Resident District Commissioner of Lwengo District before he contested for the election of Member of Parliament.

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2. The learned trial Judge erred in law and in fact when she admitted in evidence and relied on copies of alleged pay slips for the months of July and August 2015 purportedly obtained by the respondent from the Accountant General's office without his signature, stamp authenticating and certifying them and / or a letter accompanying them, and without culting a witness from the Accountant General's office to tender them in.

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- 3. The learned trial Judge erred in law and in fact when he held that there was no evidence to show that the 1st appellant's resignation letter dated 28th May, 2016 was received by his employer when actually the said resignation letter was accepted in a letter dated 15th *July 2016 by the secretary to the president.* - 4. The learned trial Judge erred in law and in fact when he held that the $2^{nd}$ appellant failed to restrain the $1^{st}$ appellant from being nominated before he resigned his job of Resident District Commissioner of Lwengo District. - 5. The learned trial Judge erred in law and in fact when he held that the $1^{st}$ appellant did not possess the requisite academic qualification of A-Level or its equivalent for being a Member of Parliament. - 6. The learned trial Judge erred in law and in fact to ignore the fact that there was a complaint to the Electoral Commission against the $1^{st}$ appellant in respect of his academic qualifications with the participation and in the presence of the respondent and that the Electoral Commission made a quasijudicial decision in favor of the $1^{st}$ appellant which by the never appealed against decision was respondent in accordance with Art $61(1)(f)$ and $64$ of the Constitution and Section 15(1), (2), (3), (4), (5) and 6 of the Electoral Commission Act before raising the same issue in Election Petition No.11 of 2016 ander the Parliamentary Elections Act when the counded not have the jurisdiction to deliberate on matters that touch on the $1^{st}$ appellant's qualifications and his

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eligibility to contest and as such the re-hearing the aforesaid issues was contrary to the principle of Res Judicata.

7. *The learned trial Judge erred in law and in fact when* she entertained a petition for a declaration that the $1^{st}$ *appellant's admission to Kampala University was null* and void and that accordingly, the Ordinary Level *Certificate, the diploma and the degree obtained from* Kampala University were null and void without hearing from UNEB, NCHE and Kampala University, the awarding institutions which were not parties to the Election Petition Proceedings.

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- 8. *The learned trial Judge erred in law and in fact when* she entertained a petition for a declaration that the $1^{st}$ appellant's Ordinary Level Certificate, Certificate in Social Works and Social Administration. The diploma and the degree obtained from Kampala University were null and void when it is not within the court's *jurisdiction to equate and establish qualifications* under Section 4(6) of the Parliamentary Elctions Act 2005 which mandate is the National Council for Higher Education in consultation with the Uganda National Examination Board which under law have they function to determine the equivalent of all academic and professional qualifications of degrees, Diplomas, and certificates obtained and awarded by *Uganda Institute of Higher Education for recognition in Uganda.* - 9. The Learned trial Judge erred in law and in fact when she failed to properly appraise and evaluate the

evidence presented by the respondent in the petition and came to the wrong conclusion that the appellant personally or with his knowledge and consent or approval during the election with intent to directly or indirectly influence the voters to vote or not to vote a particular candidate and offered, gave or caused to be given to registered voters iron sheets and Ugx 200, $000/$ = (Two Hundred thousand Shillings) to vote for him an illegal practice or electoral offence of bribery contrary to S.68 (1) of the Parliamentary Elections Act.

10. The learned trial Judge erred in law and in fact when she relied on hearsay evidence adduced by the respondent that was not admissible and relied on that *evidence in support of the Respondent's case that* the appellant had committed an illegal practice or electoral offence of bribery contrary to S.68 (1) of the *Parliamentary Elections Act.*

- 11. The learned trial Judge failed to properly evaluate the evidence and come to a wrong conclusion that there was non-compliance with the electoral laws in the conduct of elections for Member of Parliament for Katuuko county constituency and that the noncompliance affected the overall result of the elections in a substantial manner. (Sic) - The following issues were raised for resolution:- $25$ - 1. Whether the trial judge was right to hold that the $9nd$ appellant personally or by his knowledge, consent and/or approval committed the election offences and

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indulged in the illegal practices complained of in the petition

- 2. Whether the trial Judge was right to hold that at the time of nomination and the elections the appellant did not possess the minimum academic qualifications of Advanced Level or its equivalent for being a Member of Parliament. - 3. Whether the trial Judge has jurisdiction to hear the election petition and grant the prayers as put to her by the respondent despite the fact that the $1^{st}$ appellant had earlier received a complaint relating to the qualifications of the appellant and disposed it off. - 4. Whether the trial judge properly evaluated the evidence on court record and came to a right conclusion. (Sic)

#### Representation $15$

When the Appeal came up for hearing, the $1^{st}$ appellant was represented by Mr. Justine Ssemuyaba (counsel for the 1st appellant), Mr. Lawrence Tumwesigye (counsel for the 2nd appellant) appeared for the second appelllant, while the respondent was represented by Mr. Jude Mbabali and Ssemwanga Fredrick (counsel for the respondent).

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# Submissions of the first appellant

Counsel for appellant submitted that the trial court's decision to set aside the election was premised on three $25$ grounds which are the three issues for resolution herein; to wit;

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1. The 1st appellant had not resigned his job as Resident District **before** Commissioner Lwengo District nomination for elections.

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- 2. The 1st appellant did no possess the relevant academic qualifications to enable him contest in the election. - 3. The 1st appellant committed an illegal practice (bribery) during campaigns.

On the issue of non-resignation, counsel submitted that the 1st appellant tendered in his resignation letter from the post of Resident District Commissioner, (RDC), Lwengo District $10$ to the Secretary to the President on the 28th May 2015, well within ninety days before nominations took place. He argued that the resignation was accepted by a letter from the Secretary, Office of the President dated 15th July, 2015 and that it was a serious error on the part of the Judge to $15$ say that there was no evidence that his letter was received by his employers. See: Article 252 (1), (2), (3), (g) of the Constitution and E. P. A. No.5 of 2006 Aggrey Awori Siryoyi V Mugenyi Stephen Wokise & Anor.

- He argued that although the $1^{st}$ appellant's letter of $20$ resignation did not have a receiving stamp, the letter from the Secretary-Office of the President acknowledged receipt of the same. - He further argued that the 1st appellant did not actually resign, as he wants Court to believe, basing on the $25$ argument that the 1st appellant actually continued, to receive his salary four months after the alleged resignation. He contended that the pay slips relied on by the trial court

were not certified by the Ministry of Finance and as such, should not have been admitted in evidence.

On the allegations that the 1st appellant bribed voters by giving them shs. $200,000/$ = and iron sheets to construct a boda boda stage at Kyapa Kangabwa, it was argued that the evidence given was hearsay. He submitted that an election Petition is not an interlocutory but a final proceeding aimed at determining the merits of the case and as such affidavits therein must be based on facts not information and belief.

He stated that Muzakil Kintu who was said to have been $10$ campaigning and giving out bribes on behalf of the 1st appellant was also a candidate carrying out his own campaigns and was not the 1st appellant's agent. He cited the Dr. Besigye case (supra) to support his submission that the law is such that it must be proved that bribery was $15$ committed by the candidate or his appointed agent with his knowledge or approval.

Counsel for the appellant submitted that the respondent's Petition did not spell out any instances of non-compliance with the laws and principles governing elections. He argued that the respondent only raised allegations of illegal practices and nomination without the requisite academic qualifications. Odo Tayebwa V Bassajjabalaba Nasser & Another E. P No.013 of 2011 and Amama Mbabazi V Yoweri Kaguta Museveni P. E. P No.001 of 2016

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On the issue of the academic qualifications appellant, it was argued by counsel for the 1st appellant

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that the appellant holds a Certificate in Social Work and Social Administration, a Diploma in Social Work and Social Administration and a degree in Public Administration, which qualifications are higher than the required minimum of A Level Certificate. The trial Judge however cited the provisions of S. I No. 35 of 2007 to find that the $1^{\rm st}$ appellant's subsequent qualification were invalid having established that he did not attain the requisite 3 credits for his Ordinary Level Certificate. Counsel argued that it was an error on the part of the trial Judge to apply regulations that came into force in 2007 on a certificate obtained in 1981.

He submitted that it was an error to invalidate the qualifications of the $1^{st}$ appellant without consulting with UNEB or NCHE. See: S.45 (3) Universities and Other

Tertiary Institutions Act. It was also argued that Part II of the Universities and Other Tertiary Institutions (Equating of Degrees, Diplomas and Certificate) Regulations No.62 of 2007 and NCHE Quality Assurance Framework of 2011, provides that the minimum $20$ entry requirement for an ordinary diploma programme is at least 5 passes for UCE, which the appellant has, and as such, the 1st appellant's subsequent qualifications could not be said to be invalid.

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# Submissions for the second appellant

Counsel for the 2nd appellant associated himself with the 1st appellant's submissions. He added that at the time of nominations, none of the qualifications of the 1st appellant

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had been withdrawn or cancelled by the awarding institution and as such, were valid.

He relied on Joy Kabatsi V Hanifa Kawooya Election Petition Appeal No.025 of 2007 and Hon. Kipoi Tony Nsubuga V Ronny Waluku Wataka & Others E. P. A No.007 of 2011. He contended that the trial judge was wrong in purporting to nullify the 1st appellant's academic documents in an Election Petition when the proceedings were not specifically initiated for purposes of cancellation.

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# Submissions for the respondent

Counsel for the respondent disputed the argument that the 1st appellant resigned his job before being nominated for contesting for elections to Parliament. He argued that the 1st appellant was supposed to resign even before the NRM nominations but only tendered his resignation letter in May, and there was no acknowledgment of receipt of the said letter. He stated that the reply from the Secretary of the President was written on the 15th July allowing the resignation but the 1st appellant continued to work and /or $20$ receive his benefits including the use of government vehicle registration No. UG 1948C.

The respondent requested for and obtained copies of the 1st appellant's pay slips from the Ministry of Finance which indicate that he continued to receive salary four months after the alleged resignation.

On the allegation of bribery, it was submitted that 6 affidavits were sworn in Support of the Motion berlamis Banalya, Mwanje Sadam, Muwawu Yasin,

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Abdul, Samadu and Mutebi Alex to the effect that the appellant bribed voters at Kyappagonya with iron sheets in February, 2016.

On academic qualifications, it was submitted by counsel for the respondent that the $1^{st}$ appellant obtained only one $\overline{5}$ credit instead of the required minimum of 3 at O-Level and therefore could not have been admitted to Kampala University or any other, using the same O-Level certificate. He argued that R.2 and Part 3 of the Universities and Other Tertiary Institutions Regulations indicate that one must $10$ have attained 3 credits at the same sitting for the Uganda Certificate of Education to be admitted for an Ordinary Certificate Programme at a University, which the appellant did not score.

He cited Election Petition No. 06 of 2011 Birekerawo $15$ Mathias Nsubuga v Muyanja Mbabali where Gole Nicholas Davis v Loi Kageni Kiryapawo (Election Petition Appeal No. 19 of 2007) [2008] UGSC 5 (6 March 2008) was cited with approval. Court observed "that once it is proved by evidence that a fraudulent certificate formed the basis $20$ of an admission to an academic institution, even when it was presented together with other valid documents, its contagious effect would have vitiated the validity of the other documents, and rendered the admission and the award resulting therefrom invalid." $25$

Counsel prayed for declarations that the 1st appellant's admission to Kampala University was null and void and

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that the 1st appellant did not qualify to contest as Member of Parliament.

### Court's consideration of the Appeal.

This being, inter alia a first appellate Court, we are alive to Courts duty as such. The cases of **Kifamunte Henry v** $\overline{5}$ Uganda Supreme Court Criminal Appeal No. 10 of 1997 and Pandya v. R [1957] EA 336, and Bogere Moses and Another v. Uganda, Supreme Court Criminal Appeal No. 1 of 1997 held that a first appellate court has a duty to review/reappraise the evidence and consider all the $10$ materials which were before the trial Court and come to its own conclusion regarding the facts, taking into account, however, the fact that it neither saw nor heard the witnesses testify and that in this regard, it should be guided by the observations of the trial court on the demeanour of $15$ witnesses.

The duty of this court is set out in *Rule 30* of the *Judicature (Court of Appeal Rules) Directions* which provides:

"30. Power to reappraise evidence and to take additional evidence $20$

(1) On any appeal from a decision of the High Court acting in the exercise of its original jurisdiction, the court may—

(a) Reappraise the evidence and draw infere fact; and $25$

$(b)..."$

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The appellate court must make up its mind after carefully weighing and considering the evidence that was adduced at trial. Mugema Peter Vs Mudiabole Abedi Nasser Election Petition Appeal No.30/2011

The burden of proof lies on the Petitioner (Presidential $\overline{5}$ Petition No. 1/2001 Dr. Kiiza Besigye V. Y. K. Museveni & Anor, Section 61 of the Parliamentary Elections Act) and the standard of proof in Election Petitions is slightly above the balance of Probabilities. (Election petition No. 9 of 2002 Matsiko Winfred Kyomuhangi V. J. Babihuga.) $10$

Bearing the above in mind we proceed to consider the issues in the order in which the parties argued them.

## Issue two

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# **Academic qualifications**

On the academic qualifications of the $1^{st}$ appellant, the $15$ appellant argued that he obtained five passes at UCE and proceeded to acquire a diploma that qualified him for nomination for election as a Member of Parliament. The respondent argued that the law requires that a candidate should have attained 3 credits to be admitted for an $20$ ordinary diploma course.

Counsel for the 1st appellant submitted that the $1st$ appellant joined Kampala University for a Certificate in Social Work and Social Administration in 2008 This was notably after the coming into force of the Universities and Other Tertiary Institutions (Minimum Entry Requirements

for Admission to the Universities or Other Tertiary Institutions) Regulations 63 of 2007.

These regulations provide, under Part II, that;

"The Minimum entry requirements for admission to an ordinary diploma programme are- $\overline{5}$

- a. Uganda Certificate of Education (UCE) with at least 5 passes; and - b. Uganda Advanced Certificate of Education (UACE) with 1 principal pass and 2 subsidiary passes obtained at the same sitting or its equivalent."

Under Part III of the same Regulations, it provides that;

"The minimum entry requirements for admission to an ordinary certificate programme is a Uganda Certificate of Education (UCE) with at least 3 credits obtained at the same sitting."

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The 1st appellant attained a certificate of Social Work and Social Administration at Kampala University in 2010 and a diploma in Social Work and Social Administration in 2012. Clearly, the 1st appellant was admitted for the certificate without the requisite three credits (at the same sitting), out of which subsequent academic qualifications were attained.

**Article 80(1)** (c) of the Constitution and Section 4(1) (c) of the Parliamentary Elections Act No. 17 of 2005, (PEA), provide that a person is qualified to be a Member of Parliament if that person has completed a minimum tormed education of advanced level standard or its equivalent. Once

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it is clearly established as a fact that a candidate possesses the requisite minimum academic qualifications by the lawfully mandated body, in this case UNEB, then in the event that a party is desirous of cancelling or impeaching such qualification, the same cannot be done through an election petition but an ordinary suit against the awarding body. In National Council of Higher Education Vs Anifa Kawooya Bangirana Constitutional Petition Appeal No. 4 **of 2011**, the Supreme Court held that it would be improper for courts of law to usurp the powers that are explicitly set out for an institution in an Act of Parliament.

The fact that the $1^{st}$ appellant did not attain the 3 required credits in UCE and should not have been admitted for a Diploma is not for this Court, as an Election Appeal Court, to determine. Section 4 $(1)$ (c) of the PEA provides that;

"A person is qualified to be a Member of Parliament if that person-

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- $(b) \quad \ldots$ - (c) has completed a minimum formal education of $20$ *Advanced Level standard or its equivalent"*

In essence, the Section does not provide a pass mark as a requirement. Presentation of a valid UACE certificate or its equivalent should suffice to qualify one to be a Member of Parliament. We therefore find that the learned trial Judge erred in finding that the $1st$ appellant, lacked the technisite academic qualifications. The authority of Birekerawo

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Mathias Nsubuga v Muyanja Mbabali (supra) as cited by counsel for the respondent is distinguishable from the case before us. The issue here is not one of obtaining a fraudulent certificate but one of failure to attain at least three credits at UCE so as to attain a Diploma. This issue of is therefore resolved $\mathsf{in}^$ the academic qualifications affirmative.

### **Issue three**

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### **Voter Bribery**

The respondent alleged that the $1st$ appellant bribed voters $10$ by giving them shs. $200,000/$ = and iron sheets to construct a boda boda stage at Kyapa Kangabwa contrary to Section 68(1) of the PEA. The respondent stated in his affidavit that he was informed by various registered voters that the $1^{st}$ appellant through his agents offered bribes. There were $15$ other affidavits sworn by Muwawu Yasin, Amis Banalya, Ssegirinya Aduswamadu, Mwanje Sadam, Mutebi Alex and Mugambe Pascal to the effect that the $1st$ appellant, through his chief campaigner, Muzakiru Kintu, bought the said items and delivered them at a Boda Boda stage. The 1st $20$ appellant denies Kintu ever being his agent. Kintu himself swore an affidavit stating that he was a boda rider himself and the Secretary of the stage and a new councilor for the Parish. He further deponed that the shelter of the stage was put up by the boda boda riders themselves and $25$ money to the being their Secretary, he added his construction of the same.

![](0__page_15_Picture_4.jpeg) Section 68 of the PEA criminalises voter bribery in an election.

The Section provides:

"Section 68 (1)

A person who either before or during an election $\mathsf{S}$ with intent either directly or indirectly to influence another person to vote or to refrain from voting for any candidate, gives or provides or causes to be given or provides any money gift or other consideration to that other person, commits the offence of bribery and is liable on conviction to a fine not exceeding seventy two currency points or imprisonment not exceeding three years or both."

**Kaguta Museveni** Vs Yoweri **Mbabazi** Amama In 1 of 2016. the Election Petition No. **Presidential** $15$ Supreme Court held that a court of law cannot annul an election on mere alleged voter bribery and non-compliance by the second respondent and speculation without cogent evidence to prove the said allegations. We are bound to follow the above decision in this case. We find that the $20$ allegations of voter bribery are not proved to the satisfaction of court.

## **Resignation**

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On the issue of resignation by the 1st appellant was argued by counsel for the 1st appellant that he resigned within the 90 days before nominations of candidates for Member of Parliament. The respondent argued that the 1st $\sqrt{a}$

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appellant did not resign at the time he wants Court to believe he did.

Article 252 of the Constitution of Uganda, 1995 provides for the procedure of resignation of a Public Officer. It provides:

"252. Resignation

- 1) Except as otherwise provided in this Constitution, any person who is appointed or elected to any office established by this Constitution may resign from that office by writing signed by that person addressed to the person or authority by whom he or she was appointed or elected. - 2) The resignation of a person from any office established by this Constitution shall take effect in accordance with the terms on which that person was appointed or, if there are no such terms, when the writing signifying the resignation is received by the person or authority to whom it is addressed or by any person authorized by that person or authority to receive it. - 3) For the purposes of clause $(1)$ of this article, "office" includes the office of a Public Officer" $(g)$

Section 4(4) of the PEA provides that a Public Officer who wishes to stand for election as a Member of Partiament $25$ shall, in case of a general election, resign his or her office at least ninety (90) days before nomination day.

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Black's Law Dictionary (5th Ed. 1979) defines resignation as "a formal renouncement or relinquishment' of office made with the intention of relinquishing the office and accompanied by 'an act of relinquishment".

In Davis vs. Marion County Engineer (1991) 60 Ohio $\mathsf{S}$ St.3d 53, the Supreme Court of Ohio set the following standard regarding acceptance of resignations:

"Acceptance of a tender of resignation from public employment occurs where the public employer or its designated agent initiates some type of affirmative $10$ action, preferably in writing, that clearly indicates to the employee that the tender of resignation is accepted by the employer."

The requirement to resign at least 90 days prior to the 15 nomination is mandatory. Darlington Sakwa and Another Electoral Commission others and $$ The $\overline{\mathbf{VS}}$ ((constitutional Petition No. 8 of 2006)) [2006] UGCC 3 (8 August 2006);

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In the instant case, the 1st appellant's resignation letter is dated 28th May 2015 and there is also on record, a letter from the Secretary-Office of the President, accepting that resignation. The 1st appellant contends that the pay slips alleged to have reflected salary payments to him four months after his resignation are a forgery. That the account No. 00000000870088 reflected on the pay slips too his. That the 1st appellant's account Number is 6010000037.as it appears on his bank statement which is on record.

The law governing appointment of a Resident District Commissioner (RDC) is in Article $(1)$ of the $$ Constitution which establishes the Office of the RDC who is appointed by the President. Under Article 252 (2) of the Constitution as reproduced above, resignation takes effect $\mathsf{S}$ once received by the person or authority to whom it is addressed. Whereas it is true that the resignation letter of the 1st appellant did not indicate whether it was received, that does not, per se, mean that there was no resignation at all. There is a letter on record form the Secretary-Office of $10$ the President accepting the 1st appellant' resignation referenced annexture 'J'. It is not practical, in our view, to have an acceptance of a resignation where there was no resignation at all. The absence of a received stamp from the Office of the President is, in our view, a minor irregularity in 15 the circumstances of this case.

The learned trial Judge held that since the letter of May 2015 and the resignation was written on $8th$ acceptance of the same was dated 15th July 2015, this period of time raised suspicion and was, in her view, not credible. We do not, with respect, agree with the learned trial Judge on this point. The 1st appellant wrote a letter of resignation on his part and could not determine when the reply had to be made. Therefore, it was wrong to visit the delay in replying to his resignation letter on the $1^{st}$ $25$ appellant.

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In view of what has been stated above, we find that the learned trial Judge erred in finding that the 1st appellant Resident District did not resign his office as the

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Commissioner of Lwengo District. Consequently, this ground succeeds and we find that the 1st appellant duly resigned his office at least ninety days before nominations. This Appeal therefore succeeds, the Judgment and Orders of the trial Court are hereby set aside and we hold that the 1st appellant, Kalemba Christopher, is the duly elected Member of Parliament for Kakuuto County Constituency. The respondent shall pay costs to the appellants both here

and in the Court below.

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$\frac{1}{2017}$ $10$ We so order. Dated this.... Alfonse Owiny Dollo DEPUTY CHIEF JUSTICE 15 S. B. K Kavuma JUSTICE OF APPEAL $20$ $25$ **Richard Buteera** JUSTICE OF APPEAL

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