Sekabira v Electoral Commission (Election Appeal 10 of 2021) [2021] UGHCCD 281 (10 May 2021)

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

# [CIVIL DIVISION]

IN THE MATTER OF THE DECISION OF THE ELECTORAL COMMISSION IN CANCELLATION OF THE NOMINATION FOR THE ELECTION OF DISTRICT PERSONS WITH DISABILITIES COUNCILOR TO LUWERO DISTRICT

## ELECTION APPEAL NO. 10 OF 2021

SEKABIRA HERBERT ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT

#### VERSUS

# ELECTORAL COMMISSION ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT

## BEFORE: HON. JUSTICE ESTA NAMBAYO

## RULING

Sekabira Herbert (hereinafter referred to as the Appellant) being aggrieved by the decision of the Electoral Commission (hereinafter referred to as the Respondent) disqualifying him as candidate for Councilor for Persons with disabilities for Luwero District, brings this appeal under S.15 of the Electoral Commission Act, against the decision of the Electoral Commission seeking for declarations that: -

- a) The action of the Respondent in having the Elections Tribunal conduct proceedings that offend the rule of natural justice are illegal and unconstitutional and void ab initio - b) The Respondent flouted the rules of natural justice in holding an alleged complaint by a none existing complainant without any due diligence making its decision void ab initio

Katutu were for the Respondent. Counsel for the Respondent raised <sup>a</sup> preliminary objection on grounds that the appeal is *incompetent and barred in law on grounds* that the other candidate has since been declared unopposed and the electoral process was concluded at that stage and that the Petitioner cannot now proceed under S. 15 of the ECA. Counsel submitted that this Court now has no jurisdiction to entertain this appeal, as jurisdiction now lies with the Chief Magistrates Court under S. 138(2) & (3) of the Local Government Act,

Counsel further submitted that the role of the Respondent ends with Candidates. Once a declaration is made, the matter is not with the Respondent as the Electoral process is concluded, at the level of a declaration. She relied on the case of *Byanyima Winnie -v- Ngoma Ngime CR No. 9 of 2001* and prayed that this appeal be dismissed with costs.

In reply Counsel for the Appellant submitted that the preliminary objection is baseless and lacks merit. He explained that there is no proof that the other candidate has been declared unopposed. That the only document is a letter communicating to the returning Officer advising him to declare the other candidate as unopposed. That this appeal is the right procedure to challenge the decision of the Electoral Commission. Counsel submitted that the Local Government Act referred to by Counsel for the Respondent does not provide for candidates. He prayed that the preliminary objection be over ruled so that the matter is heard on its merits.

# Analysis

*5. <sup>138</sup> (2) of the Local Government Act provides that a person qualified to petition under subsection (3) who is aggrieved by a declaration of results of a councilor may petition the Chief Magistrates Court having jurisdiction in the constituency.*

*S.101 ofthe Evidence Actprovides that: -*

*Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts, must prove that those facts exist^When <sup>a</sup> person is bound to prove the existence ofany fact, it is said that the burden ofproofties on thatperson"*

*In the case of Jovelyn Barugahare - <sup>v</sup> - Attorney General SCCA No. <sup>28</sup> of 1993, Court stated that he who asserts must also affirm.*

*Under S.103 of The Evidence Act, the burden ofproof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proofofthat fact shall He on anyparticularperson*

The Appellant relied on a communication from the Respondent directing the Returning Officer to declare candidate Mulema unopposed (see annexure "G" to the petition), but did not present evidence to confirm that the Returning Officer has since not yet complied with the directive of the Respondent. In *Miller v. Minister ofPensions [1947] 2AH ER 372,* it was noted that: -

*"If the evidence is such that the tribunal can say "we think it more probable than not, then the burden is discharged, but if the probabilities are equal the burden is not discharged. When left in doubt, the party with the burden of showing that something took place will not have satisfied the court that it did."*

<sup>I</sup> find it not proper to assume that the Returning Officer has not yet declared Mulema as Councilor unopposed without evidence to that effect. The burden of proof lies with the Appellant to confirm to this Court that the Returning Officer has not yet complied with the directive of the Respondent to declare Mulema unopposed. Without evidence to that effect, it would be wrong for this Court to hold that Mulema is not yet declared as Councilor unopposed. My finding is that the

#### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA MISC. APPLICATION NO. 280 OF 2021

# ARISING FROM ELECTION PETITION APPEAL NO. 10 OF 2021

# SEKABIRA HERBERT ::::::::::::::::::::::::::::::::::::

# **VERSUS**

# ELECTORAL COMMISSION :::::::::::::::::::::::::::::::::::: BEFORE: THE HON. LADY JUSTICE ESTA NAMBAYO **RULING:**

Upon listening to the submissions for counsel for the Respondent in the absence of counsel for the Applicant, this court finds that; the error was only in one sentence where court wrote $S.38(2)$ of the Local Government Act instead of S.138(2) of the Local Government Act.

The error is hereby corrected to read S. $138(2)$ of the Local Government Act under the slip rule.

The Application is dismissed.

Each party will bear its own costs.

I so order.

Esta Nambayo Judge 10/5/2021