Muwonge v Akol & 10 Others (Election Petition 3 of 2022) [2024] UGHCCD 154 (11 October 2024)

### **THE REPUBLIC OF UGANDA**

#### **IN THE HIGH COURT OF UGANDA AT KAMPALA**

#### **CIVIL DIVISION**

### **ELECTION PETITION NO.0003 OF 2022**

### **IN THE MATTER OF UGANDA PARLIAMENTARY ELECTIONS OF UGANDA'S ELECTED MEMBERS TO THE EAST AFRICAN LEGISLATIVE ASSEMBLY(EALA)**

**MUWONGE MUGWANYA DANIEL---------------------------------------- PETITIONER**

### **VERSUS**

- **1. ROSE AKOL** - **2. NAMARA DENNIS** - **3. KAKOOZA JAMES** - **4. GEORGE ODONGO** - **5. MUSAMALI PAUL** - **6. MUGENYI MARY ------------------------------------RESPONDENTS** - **7. KADOGO VERONICA BABIRYE** - **8. AMONGIN JACQUELINE** - **9. SIRANDA GERALD BLACKS** - **10. ATTORNEY GENERAL OF UGANDA** - **11. THE SECRETARY GENERAL OF EAST AFRICAN COMMUNITY**

#### **BEFORE: HON. JUSTICE SSEKAANA MUSA**

#### **JUDGMENT**

This is a petition filed against the respondents challenging the election of the 9 Uganda representatives to the East Africa Legislative Assembly conducted on 29th September 2022. The result of the said election was published and notified in the Uganda Gazette issued on 30th September 2022.

The election was conducted pursuant to the Rules of Procedure for Parliament of the Republic of Uganda.

The petitioner on 29<sup>th</sup> November 2022 filed this election petition in this court challenging the election of the 1<sup>st</sup>-9<sup>th</sup> Respondents by the Parliament of Uganda as Uganda's Representatives to the East African Legislative Assembly.

The petitioner was dissatisfied and aggrieved with the manner of the campaigns, election process and conduct of the 29<sup>th</sup> September 2022 contending that; through the conduct of campaigns, availing election materials and elections, the respondent through the Clerk of Parliament of Uganda together with Speaker of Parliament grossly failed in their mandate of organising free and fair elections and that there were several election illegalities and irregularities.

The designing of the ballot paper which is under the control of the 10<sup>th</sup> respondent's agents through the Speaker and Clerk of Parliament either severally or jointly in lieu of a premeditated winning chronology as designed by the Speaker together with Clerk of Parliament in their execution of duties in relation to the said election. On the voting day of 29<sup>th</sup> September 2022, there were ballot stuffing prior to the election time.

The 10<sup>th</sup> respondent through the Speaker and Clerk of Parliament of Uganda went about the entire electoral process with incompetence, glaring bias, impartiality, malafide and prejudice against the candidature, person of the Petitioner, in preference of candidates from 1<sup>st</sup>-9<sup>th</sup> respondent as they appeared on the ballot paper in a weird order of the subsequent declaration of their winning.

The petitioner contended that the $1^{st}$ – $9^{th}$ respondents were elected in total contravention of Article 50 of the Treaty. The impugned acts of non-compliance with the electoral law and practice were such that they affected the outcome of the results in a substantial manner as the candidates were not given equal platform prior to elections as they elections started prior to their campaigning opportunity and automatization of Members of Parliament with the ballot papers.

The petitioner contends that the results of the East African Legislative Assembly representative election conducted on 29<sup>th</sup> September 2022 does not reflect a strong participation of the different shades of opinion and country's strong political parties will.

The respondent in their response filed answers to the petition contending that the alleged dissatisfaction and grievance is unfounded and without basis as the elections were duly conducted in strict compliance with Article 50 of the Treaty for the Establishment of the East African Community, The East African Legislative Assembly Elections Act, 2011, the Constitution of Uganda, and rules 12, 13 and 17 of Appendix B of S. I 30 of 2021.

Uganda as a Partner State determined the Procedure for elections and duly elected the Members of EALA and duly elected members of EALA whose names were duly announced and communicated in accordance with the law

That it is not true that the ballot paper was designed to facilitate a pre-meditated winning chronology, nor that the voters were automated by design of the ballot paper. The appearance of the candidates on the ballot papers offended no law and that all the candidates' names appeared on the ballot paper and could easily be identified by the well-educated electorate.

The elections were not arbitrary, were not marred with any alleged illegality. All the 28 candidates including the petitioner were given seven minutes to campaign and votes were cast in accordance with the rules of Parliament and relevant Appendix of the Parliament Rules of Procedure.

The allegation of ballot stuffing prior to election is based on unfounded assumptions and conjecture. The election was conducted by secret ballot and the ballots cast was within the range of the 525 members of Parliament as eligible voters and it properly reflects the correct members of National Unity Platform who shunned the election and those members of Parliament who were out of the country.

The election results constitute the free will of the electorate and that any alleged non-compliance with the law (which is denied if any) could not and did not affect the results of the election in a substantial manner to warrant the reliefs sought.

The petitioner was represented by *M/s Avrax Advocates* but they did not attend court on the day the matter was fixed for hearing while the 1st, 2nd 4 th,5th and jointly for 6th were represented by *Joseph Kyazze* and also holding brief for *Achilles Lubega* for the 8th respondent, *Ssemuyaba Justin* for the 7th and 9th respondents, *Mubiru Hezekiah* holding brief for *Katumba Appolo* for the 3rd respondent and *Namakula Elizabeth* and *Arinaitwe Benedict* for the 10th respondent. There was no representation for the 11th respondent.

The following issues were raised for courts determination.

*1. Whether the petition is competently before this court?*

# *DETERMINATION*

# *Whether the petition is competently before court?*

The respondents counsel contended that the petition is incompetently before the court since it was presented outside the time prescribed by law and thus it is caught by limitation.

The elections were conducted on 29th September 2022 and the 1st -9 th respondents were returned as the duly elected representatives. The result of the election of 1st -9 th was published and/or notified in the Uganda Gazette issued on 30th September 2022.

The petitioner on 29th November 2022, filed EALA Election Petition No. HCT-00-CV-EP-003-2022 in this court challenging the election of the 1st -9 th respondent by Parliament as Uganda's representatives to EALA. The petition was filed through ECCMIS in the pleadings Tab.

# *Analysis*

The competency of the petition s question of law and can be determined from the provisions which give the petitioner locus to appear in court. The petitioner has locus to bring this petition as a person aggrieved by the decision of the Speaker of Parliament which declared the 1st -9 th respondent in accordance with the laws that allow her to do.

The requisite forum for challenging the election of East African Legislative Assembly is the High Court of Uganda and the law that is applied by the High Court is the Parliamentary Elections Act, 2005 as amended.

The principal law that governs EALA electoral disputes including Petitions challenging the conduct of EALA elections is the Treaty for the Establishment of the East African Community (The EAC Treaty). The Treaty was domesticated in Uganda and is applicable by virtue of the provisions of the East African Legislative Assembly Elections Act.

*Article 52 (1) of the EAC Treaty* and Section 6(1) of the East African Legislative Assembly Elections Act, 2011 provides that questions regarding election of elected member of the EALA shall be determined by the institution of the Partner State that questions of the election of members of National Assembly responsible for the election in question. Section 6(1) provides;

# *"Any question that may arise whether any person is an elected member of the Assembly or whether any seat in the Assembly is vacant shall be determined by the institution of the Partner State that determines questions of the election of members of the National Assembly responsible for election in question.*

Therefore, Article 52(1) and Section 6(1) of the EALA Elections Act and Section 60 of the Parliamentary Elections Act, 2025 empowers the High Court to determine electoral disputes arising from an election of Uganda's representatives in East African Legislative Assembly. *See Kamurali v Attorney General & Anor (National Assembly Election Petition No. 002 of 2012 [2013]*

The law applied by the High Court is derived from section 60(1) of the Parliamentary Elections Act, 2005 as amended, construed in the context of Article 52(1) of the Treaty. Therefore, that governs actions and petitions for challenging the election of Uganda's representatives to the EALA is the Parliamentary Elections Act, 2005 and petition must be prosecuted pursuant to the provisions of that law. *See Agaba Gilbert & Others vs The Attorney General & Others EPA No. 5/2023*

Since the law under which the petition challenging the elections of representatives to EALA is brought is section 60(1) of the Parliamentary Elections Act, it would follow that the petition must comply with the requirements of said section including the timelines prescribed therein. *See Kamurali v Attorney General & Anor (National Assembly Election Petition No. 002 of 2012 [2013]*

Section 60(3) of the Parliamentary Elections Act, provides that every election shall be filed within 30 days after the date on which the results of the election is published by the Commission in the Gazette. In this case, the results were gazetted by the Speaker through the Clerk to Parliament on 30th September 2022.

Section 60(3) of the Parliamentary Elections Act is couched in mandatory terms on the period within which an election petition just be filed of 30 days. The Court of Appeal while examining the timelines for filing election petitions held that, there is inherent strictness in the timelines for filing election petitions. The provisions of section 60 of the Parliamentary Elections Act must be construed and applied with the aspect of strictness as to timelines being of material, and an election petition lodged in court out of time is accordingly incompetent. *See Ikiror v Orot Election Petition Appeal No. 105 of 2016 [2019] UGCA 10*

The petitioner filed this election petition on 29th November, 2022 and the Notice of Presentation of the Petition was filed on 02nd December 2022. The said petition ought to have been filed within 30 days after the issuance of the results in the gazette on 30th September 2022. The last possible date for the filing of any election petition challenging the election should have been 30th October 2022. It is clear that by the time the election petition was filed it was outside the prescribed timelines of 30 days.

A petition seeking interference must strictly conform to the requirements of the law. It is a special jurisdiction and a special jurisdiction has always to be exercised in accordance with the statute creating it. The courts have to guard against petitioners who want to extend their election grievance outside the timeframe allowed under the law. An election petition filed beyond time has to be dismissed *limine.* The court has no power to condone the delay under any circumstances.

The petitioner as noted earlier was supposed to file the petition with 30 days after the results were published in the Gazette. Similarly, a petition cannot be filed earlier than the date of publication of the successful candidates. The right to file a petition just like the right to stand in an election are a creature of statute or special law and must be subject to the limitation imposed by it. The principle that underlines the law of limitation of actions is basically one that *"once statute barred, always statute barred".*

In the final result this Petition fails since it was filed outside the prescribed time limit of 30 days.

The respondents are awarded costs against the petitioner.

It is so ordered

*SSEKAANA MUSA JUDGE 11th October 2024*