Mandela Ekol v Electoral Commission (Electoral Petition 7 of 2021) [2021] UGHCCD 280 (28 January 2021)

Full Case Text

### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT KAMPALA

## [CIVIL DIVISION]

# IN THE MATTER OF THE PARLIAMENTARY ELECTIONS ACT 17/2005

### (AS AMMENDED)

**AND**

## IN THE MATTER OF PARLIAMENTARY ELECTIONS

# (APPEALS TO THE HIGH COURT FROM COMMISSION) RULES S. I 141-1

**AND**

# IN THE MATTER OF AN APPEAL AGAINST THE DECISION OF THE ELECTORAL **COMMISSION**

## ELECTION PETITION NO. 7 OF 2021

JOSHUA MANDELA EKOL::::::::::::::: **....................................**

### **VERSUS**

ELECTORAL COMMISSION ::::::::::::::::::::::::::::::::::::

## BEFORE: HON. JUSTICE ESTA NAMBAYO

### JUDGMENT

Joshua Mandela Ekol, the Appellant, being aggrieved by the decision of the Electoral Commission(Respondent), disqualifying him from being nominated to contest for the position of Youth Member of Parliament for the Northern Region, has filed this appeal against the decision of the Commission and seeks for declaration and orders of this Court that: -

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- **1. The Respondent wrongly upheld the Returning Officer's decision to reject the petitioner's nomination paper on the ground that the petitioner is not a youth within the meaning of the Law.** - **2. The Respondent's Orders in its decision upholding the Returning Officer's rejection of the petitioner's nomination paper be set aside** - **3. The petitioner be declared as qualified for nomination as candidate for the Northern Uganda Youth Elections** - **4. The Respondent be ordered to nominate the Petitioner as a candidate for Northern Uganda Youth Elections** - **5. An order for permanent injunction restraining the Respondent from conducting elections for Youth Member of Parliament for Northern Uganda as scheduled and or at all until this Court makes its judgment in this Petition** - **6. An order of the Elections for Youth Member of Parliament for Northern Uganda be postponed for 30 days to afford your petitioner an opportunity to canvas for votes in support of his candidature as a Northern Uganda Youth member of Parliament** - **7. The Respondent pays the costs of this petition.**

Grounds of this appeal/petition are that: -

- **1. The Respondent's Returning Officer erred in Law and fact when she decided that the Petitioner was ineligible to be nominated as a candidate in the Northern Uganda Youth Member of Parliament elections.** - **2. The Respondent erred in Law and fact when it upheld the Returning Officer's erroneous decision to reject the Petitioner's nomination paper on the basis of S. 8D of the Parliamentary Elections Act, 2005 (as amended)** - **3. The Respondent erred in Law when it ascribed its own interpretation of what the age of youth is in Uganda under the National Youth Council Act** - **4. The Respondent erred in Law and fact when it found that the Petitioner was 30 years and above when he presented himself for nomination**

**5. The Respondent erred in Law when it applied the provisions of section 8(3) and 27 (A) of the National Youth Council Act in determining qualifications for Youth Members of Parliament.**

The brief back ground to this appeal is that the Appellant beingan aspirant for the Northern Uganda Youth Member of Parliament went for nominations on the 23rd December, 2020. When he presented his paper to the Retuning Officer for nomination, the Returning Officer rejected his paper on grounds that he was above 30 years of age which is the upper age limit for Youth Member of Parliament.

The Appellant appealed against the decision of the Retuning Officer to the Respondent. The Respondent upheld the Decision of the Returning Officer, hence this appeal.

Learned Counsel Okello Oryem Alfred together with Counsel Kania Renato represent the Appellant, while Counsel Abubaker Kayondo is for the Respondent. Written submissions have been filed for both parties. I will address the grounds of appeal under three issues as follows: -

- **1. Whether the Appellant qualifies to be nominated as candidate for Youth Member of Parliament for the Northern Region under the law.** - **2. Whether the Returning Officer erred in finding that the Appellant was ineligible for nomination as candidate for Youth Member of Parliament for Northern Region by virtue of his age** - **3. Whether the Respondent erred in upholding the Returning Officer's decision not to find the Appellant eligible for nomination as candidate for Youth Member of Parliament for Northern Region**

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**4. What remedies are available?**

Before I address the issues set out, I wish to emphasize that the duty of this Court as an appellate Court is to evaluate all the evidence and arrive at its own conclusion as to whether the findings of the Respondent can be supported based on the law and

evidence presented. See the cases of *M/s Fangmin -v-, Belex Tours and Travel Limited, SCCA No, 06 of2013 atpage 63, Geoffrey Nangumya -v- Emmy Turnwine & Another CivilAppeal No. 93 of2018 and Kifamunte Henry-v- Uganda, Criminal Appeal No. 10 of 1997.*

**Issue No. 1: Whether the Appellant qualifies to be nominated as candidate for Youth Member of Parliament for the Northern Region under the law.**

# **Submissions**

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Counsel for the Appellant submitted that there existed no grounds under the law for the Returning Officer to refuse the Appellant's nomination paper. He relied on S.12(2) (a) , (b) and (c) of the PEA, 2005 which lays down grounds under which a Returning Officer bases on to refuse a nomination paper. That in this case, the Returning Officer refused to accept the Appellant's nomination paper on grounds that the Appellant was ineligible because he was above 30 years of age. Counsel explained that when the Appellant presented his paper on the 23rd December, 2020, there was no allegation of ineligibility of nomination of the Appellant or challenge against his nomination made to the Returning Officer to enable her exercise powers to refuse the Appellant's nomination paper under S.12(2) (a) of the PEA. That the Returning Officer erroneously exercised her power and erred in law when she rejected the Petitioner's nomination paper on grounds of ineligibility in the absence of an allegation to that fact.

Counsel submitted that the law requires the Returning Officer to establish that the grounds for the alleged ineligibility appear on the nomination paper before exercising her powers to refuse the nomination paper. That in this case, the Returning officer relied on extraneous considerations outside the petitioner's nomination paper to reject the paper. Counsel prayed that this Court finds that the returning Officer acted erroneously and contrary to S. 12(2) (a) of the PEA when she decided that the Appellant was ineligible to be nominated as a candidate for the Northern Uganda Youth Member of Parliament.

In reply. Counsel for the Respondent submitted that S.12 of the PEA provides for factors which do not invalidate nomination paper. He explained that the applicable provision in this case is S.11 of the Parliamentary Elections Act which provides for the Procedure for nomination of candidates. Counsel explained that the Respondent was guided specifically by S.8 D & S.11 (1) (d) (iii) of the PEA, and S.1 (g) of the National Youth Council Act which sets the age of a youth to be between 18 and 30 years. Counsel emphasized that the Respondent complied with the law and procedure to decline the nomination of the Petitioner and prayed that this appeal be dismissed with costs.

### **Analysis**

**S. 8D (1) of the Parliamentary Election Act, 2005 provides that a person seeking to be elected as a representative of the youth in Parliament shall be aged between eighteen and thirty years and shall also be qualified to be a member of Parliament in terms of Article 80 of the Constitution and S. 4 of this Act.**

**Art. 80 of the Constitution and S. 4 of the PEA both lay the qualifications and disqualification of Members of Parliament.**

**S.8D (2) of the Parliamentary Election Act provides that subject to Art. 80 of the Constitution, and S. 4 of this Act, election shall be open to all youth.**

**S.1 (g) of the National Youth Council Act, 1993 defines a Youth as a person between the age of 18 and 30 years.**

Counsel for the Appellant submitted that the youth aged between 18-30 years under S.8D (1) PEA are inclusive and not exclusive of the years 18 and 30. That 30 years and a half or a third or 9 months are not also excluded. Counsel explained that under the National Youth Act, S.8(5), the legislature dealt with persons eligible to contest to become Youth Committee Members and that subsection 8(9), specifically excluded those who attain the age of 30 from contesting to join the youth committee (electoral

college). That in the case of those contesting for MP, there is no specific exclusion of those who are 30 years and a few months/seconds and those who are 18 years. Counsel emphasized that in the absence of specific exclusion of 30 plus a few months or seconds, then the only interpretation consistent with the golden rule of interpretation is that anybody 30 years and not yet 31 is eligible to stand for youth MP. He relied on the case of **Byanyima Winnie -v- Ngoma Ngime CR No.9/2001 at page 5 where Kibuka Musoke, J\_(as he then was)** stated that: -

*"the legislature does not make a mistake; it is a perfect person. Where it wants something it states so specifically, where it does not state so specifically a court oflaw cannot read words into the citations of the legislature or assume that it made a mistake or forgot something. This is the golden rule."*

From the evidence on record, the Appellant was born on the 17th July, 1990. This is the age that is reflected on the Appellant's National Identity Card which is annexure "A" to the affidavit in support of the petition. The nominations for Youth Member of Parliament were held on the 23rd December, 2020. This means that by the date of the nominations, the Appellant was 30 years, 5 months and 6 days old. According to the provisions of S.1 (g) of the National Youth Council Act, the Appellant was no longer a youth. The appellant had also exceeded the 30 years upper age limit set under S. 8D (1) of the PEA.

**In Dupont Steel -v- Sirs [1980] AllER at 541, LORD DIPLOCK noted that:**

*"Where the meaning ofthe statutory word is plain and unambiguous, it is not for the Judges to invent fancied ambiguities as an excuse for failing to give effect to that plain meaning."*

**In IRC -v- Rossminster Ltd [1980]AC 952 at 1008 Court held that:**

*"Courts must not be over-zealous to search for ambiguities or obscurities in words which on the face ofthem are plain..."*

Counsel referred this Court to annexure "G", where the Respondent stated that since the Appellant was 30 years and 5 months, at the time of nomination, he is ineligible because he is above 30 years; and submitted that there is no legal basis for the Respondent to reach at that conclusion.

Considering the law applicable to the youth electoral process and the case law authorities cited above, it is very clear that the age limit set by the legislature is 18- 30 years. If the legislature had intended to make any additions to the upper age limit of 30 years, it would have stated so. To make additions to the 30 years set by law, as submitted by Counsel for the Appellant would, in my view, amount to an invention of fanciful ambiguities over and above the plain meaning of the words. What the law provides is 30 years and this is the age that this Court is bound to take.

In this case, since the Appellant was above the stipulated 30 years by 5 months and 6 days on the date of nominations, he is not a youth under the National Youth Council Act, 1993 and is therefore, not eligible for nomination as candidate for Youth Member of Parliament under S. 8D(1) of the PEA.

**Issue No. 2: Whether the Returning Officer erred in finding that the Appellant was ineligible for nomination as candidate for Youth Member of Parliament for Northern Region by virtue of his age.**

Counsel for the Appellant submitted that S.12 PEA regulates the process of nominations and that the Returning Officer has only 3 scenarios under which she/he reject nomination of the candidate and these include: -

1) Irregularities/ allegation against the prospective candidate which must be apparent on the nomination paper.

2) There should be an apparent variation between the name of the person,on the nomination paper and the name of the person on the voters' register and this must be major.

3) There must be an imperfection in the nomination paper which leads to a substantial diversity from the requirements of the act.

He explained that the Returning Officer appears to have proceeded under the 1st and 3rd grounds. That based on annexure "D" to the affidavit in support of the appeal, the ineligibility was not apparent on the nomination paper and therefore, the Returning Officer erred in declining to nominate the Appellant and the subsequent decision of the Respondent to uphold the decision of the Returning Officer is incompetent because both decisions were not made in accordance with S.12. of the PEA. That S.13 PEA is the only other scenario where somebody can be disqualified for contesting as MP but it only applies to already nominated candidates. The Appellant in this case is not such a candidate.

In reply, Counsel for the Respondent submitted that the Respondent was guided by section 11 (1)(d)(iii) of the PEA to reject the nomination of the Petitioner/Appellant on the basis that he was not qualified to stand as a candidate under S. 8D of the PEA and S.1(g) of the NYCA which limit the age to be between 18 and 30 years. He explained that the law does not provide for 18 - 30 years and above.

**Analysis**

**S.12 of the PEA provides for factors which do not invalidate nomination paper and it states as follows: -**

**S.12(2) of the PEA provides that a returning officer shall refuse to accept any nomination paper if-**

**(a) an allegation of ineligibility of the candidate is made and the grounds for.the allegation appear on the nomination paper**

**(b) there appears a major variation between the name of any person as it appears on the nomination paper and the voters' roll**

**(c) there is any imperfection in the nomination paper leading to a substantial diversity from the requirements of this Act.**

**S. 11 of the PEA provides for the procedure for the nomination of candidates.**

**S.11(1) Nomination of a Candidate shall be made on nomination day by two registered voters appearing in person tendering to the returning officer the following-**

**(a)-**

**(b) -**

**(c) -**

**(d) - a statement under oath stating that -**

(•) -

**(>i) -**

**(iii) - the person named in the nomination paper as seeking nomination consents to the nomination and is not disqualified to stand as a candidate by this Act or any other law in force in Uganda.**

I find the submission of Counsel for the Respondent convincing that the Returning Officer proceeded under S. 11(1) (d)iii of the PEA because that is the laid down procedure under the law. The Returning Officer could not have proceeded under S. 12 of the PEA because there is no evidence of a complaint against the Appellant as rightly submitted by Counsel for the Appellant and there is no evidence before this court to show that the Returning Officer proceeded under S. 12 of the PEA. Therefore, I find that the Returning Officer was right to find that the Appellant was ineligible for nomination as candidate for Youth Member of Parliament for Northern Region by virtue of his age.

Having found as above, it would follow therefore, that the Respondent rightly upheld. the Returning Officer's decision to find that the Appellant was ineligible for nomination •as candidate for Youth Member of Parliament for Northern Regidh.

iFonreasoris/given above, I would find no merit in this appeal and do hereby dismiss? \*it witbicosts/

I so order. \

**Dated, Signed and delivered at Kampala this 28tJ1 day of January, 2021 \*\***

**Esta Nambayo**

**JUDGE**

**28/01/2021**