Zawedde v Attorney General and Another (Constitutional Petition No. 1 of 2014) [2021] UGCC 15 (4 May 2021)

Full Case Text

## IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

[Coram: Egonda-Ntende, Barishaki Cheborion, Musoke, Kibeedi & Mulvagonja; JJCC]

**CONSTITUTIONAL PETITION NO. 01 of 2014**

#### **BETWEEN**

Zawedde Aidah-

Petitioner

#### AND

Respondent No. 1 Attorney General= Respondent No. 2 Electoral Commission

#### Judgment of Fredrick Egonda-Ntende, JCC

- [1] I have had the benefit of reading in draft the judgment of my sister, Mulyagonja, JCC. I agree with it and have nothing useful to add. - [2] As Musoke, Barishaki Cheborion and Kibeedi, JJCC, agree, the petition is dismissed with no order as to costs.

Dated, signed and delivered at Kampala this day of 2021

Fredrick Egonda-Ntende Justice of the Constitutional Court

## THE REPUBLIC OF UGANDA IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA **CONSTITUTIONAL PETITION NO. 001 OF 2014**

ZAWEDDE AIDAH:::::::::::::::::::::::::::::::::::

#### **VERSUS**

1. ATTORNEY GENERAL

2. ELECTORAL COMMISSION::::::::::::::::::::::::::::::::::

HON, MR. JUSTICE FREDRICK EGONDA NTENDE, JCC CORAM: HON. LADY JUSTICE ELIZABETH MUSOKE, JCC HON. MR. JUSTICE CHEBORION BARISHAKI, JCC HON. MR. JUSTICE MUZAMIRU KIBEEDI, JCC HON. LADY JUSTICE IRENE MULYAGONJA, JCC

## JUDGMENT OF ELIZABETH MUSOKE, JCC

I have had the advantage of reading in draft the Judgment of my learned sister Mulyagonja, JCC in this matter. I agree with it. For the reasons she has given, I too would dismiss this Petition and make no order as to costs.

Dated at Kampala this .................................... .......................................

**Elizabeth Musoke**

Justice of the Constitutional Court.

#### IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

#### **CONSTITUTIONAL PETITION NO. 001 OF 2014**

(Coram: Egonda-Ntende, Elizabeth Musoke, Cheborion Barishaki, Mutangula Kibeedi & Irene Mulyagonja, JJCC)

ZAWEDDE AIDAH:::::::::::::::::::::::::::::::::::

#### **VERSUS**

#### 1. ATTORNEY GENERAL

2. ELECTORAL COMMISSION::::::::::::::::::::::::::::::::::

#### **JUDGMENT OF CHEBORION BARISHAKI, JCC**

I have had the benefit of reading in draft the judgment prepared by my learned sister Lady Justice Irene Mulyagonja, JCC and I agree with her that this petition ought to be dismissed for the reasons she has ably advanced.

I also agree with the order proposed on costs.

Dated at Kampala this .... 2021 **Cheborion Barishaki**

#### JUSTICE OF APPEAL/ CONSTITUTIONAL COURT

#### IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

(Egonda-Ntende, Cheborion Barishaki, Musoke, Mutangula-Kibeedi and Mulyagonja, JJCC)

#### **CONSTITUTIONAL PETITION NO. 001 OF 2014**

#### ZAWEDDE AIDAH:::::::::::::::::::::::::::::::::::

#### **VERSUS**

#### 1. ATTORNEY GENERAL

2. ELECTORAL COMMISSION ::::::::::::::::::::::::::::::::::::

#### JUDGMENT OF MUZAMIRU MUTANGULA KIBEEDI, JCC

I have had the advantage of reading in draft the Judgment prepared by Hon. Lady Justice Irene Mulyagonja, JCC. I agree with the reasoning and the Orders she has proposed.

Dated at Kampala this $4$ day of

Muzamiru Mutangula Kibeedi JUSTICE OF THE CONSTITUTIONAL COURT

# IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

Coram: Egonda-Ntende, Musoke, Cheborion Barishaki, Mutangula-Kibeedi and Mulyagonja, JJCC

**CONSTITUTIONAL PETITION NO. 001 OF 2014**

**THE OWNER OF STREET STREET STREET STREET STREET** ZAWEDDE AIDAH:::::::::::::::::::::::::::::::::::

#### **VERSUS**

# 1. ATTORNEY GENERAL

2. ELECTORAL COMMISSION :::::::::::::::::::::::::::::::::::: 10

# JUDGMENT OF IRENE MULYAGONJA, JCC

#### Introduction

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This petition was brought under Article 137 (3) of the Constitution of the Republic of Uganda and rule 3 of the Constitutional Court (Petitions 15 and References) Rules, S. I 91 of 2005, to challenge the constitutionality of section 138 (4) of the Local Government Act and section 60 (3) of Parliamentary Elections Act on grounds that they are inconsistent with and contravene Article 28(1), 21(1), (2) and 61(1) of the Constitution.

Section 138 (4) of the Local Governments Act and section 60 (3) of the Parliamentary Elections Act are inconsistent with Article 28 (1) of the Constitution for making gazetting of results of Parliamentary and Local Council elections a condition precedent to challenging the results;

2. The failure or refusal by the Electoral Commission to gazette the results for Local Council elections for persons with disabilities in 2001 and 2006 while gazetting the results of other candidates was

The petitioner sought declarations that: 20

discriminatory with regard to persons with disability and contrary to Articles 21(1) and (2) of the Constitution;

3. Failure by the Electoral Commission to gazette results for Local Council Elections for persons with disabilities in time to enable the petitioner challenge the results by the Electoral Commission was a breach of its constitutional duty under Article 61 $(1)$ $(d)$ of the Constitution.

She prayed that the Electoral Commission be ordered to pay-the costs in Election Petition No. 06 of 2011 in the Chief Magistrates Court at Mengo and Election Appeal No. 01 of 2012 in the High Court at Kampala, which were both dismissed on the ground that the petitioners lodged their petition before the gazetting of the results by the Electoral Commission. She further prayed that the costs of this petition be borne by the respondents.

#### **Background** 15

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Briefly, the Petitioner, an adult female with a physical disability, states in her affidavit in support of the petition that she contested for the post of female Councillor for Persons with Disabilities in the Local Council $\mathsf V$ (LC5) Elections for Kampala District in 2011. That when the elections were held on $2^{nd}$ May 2011 she garnered 17 votes while the person with the highest vote garnered 19 votes.

The petitioner states that she instructed her lawyers to challenge the election in court but was advised that the law requires the election results to be gazetted before any petition can be filed in court to challenge them. Upon inquiry from the Electoral Commission, the lawyers was informed that there were no funds to gazette the results. The successful contestant was sworn in and took office before the results were gazetted. Due to the delay in gazetting the results, the

petitioner instructed her advocate to file Election Petition No. 6 of 2011 in the Chief Magistrates Court at Mengo. The petition was struck out on the ground that it was lodged before the gazetting of the results the petitioner sought to challenge.

The petitioner further avers that she then filed an appeal in the High 5 Court as High Court Election Appeal No. 01 of 2012, to challenge the decision of the Magistrates' Court. That on appeal, Kabiito J, upheld the findings of the Magistrate upon which the petitioner appealed to the Court of Appeal. On the second appeal, counsel for the petitioner applied to the Court of Appeal to refer some questions to the 10 Constitutional Court for interpretation but the Court did not grant the order. Instead the appeal was struck out because it was filed out of time.

The petitioner now brings this petition for this court to dispose of those questions. She adds that section 60 (3) of the Parliamentary Elections 15 Act, which also requires a candidate aggrieved by the results in the elections to lodge an election petition after the results of the election are gazetted, in similar terms to section 138 (4) of the Local Governments Act also be interpreted vis-à-vis Article 28 (1) of the Constitution.

The 1st respondent opposed the petition and filed an affidavit in answer to the petition stating that the petition does not raise any question for constitutional interpretation.

### Representation

At the hearing of the petition, Mr. Kwemara Kafuzi and Ms. Stella Nakamya represented the petitioner. The 1st respondent was represented by Ms. Maureen Ijang, State Attorney in the Attorney General's Chambers. No one appeared on behalf of the 2nd respondent.

The petitioner filed written submissions on 2nd October 2020, while the 1st respondent filed submissions on 4th October 2020. The 2nd respondent did not file any submissions.

- During the Scheduling Conference on 23rd June, 2015, three issues were agreed upon for determination by this court as follows: - 1. Whether section 138 (4) of the Local Government Act and section 60 (3) of the Parliamentary Elections Act are consistent with Article 28 (1) of the Constitution;

- 2. Whether the Electoral Commission refused, neglected or ignored to gazette results of persons with disabilities in Local Council 5 Elections for 2001, 2006 and 2011 and if so, whether the failure to do so contravened Article 21 $(2)$ and 61 $(1)$ $(d)$ of the Constitution; and

3. Whether the petitioner is entitled to the orders sought.

## Submissions of the Petitioner 15

With regard to Issue 1, Ms Stella Nakamya submitted that Section 138 (4) of the Local Governments Act and Section 60 (3) of the Parliamentary Elections Act are inconsistent with Article 28 (1) of the Constitution in as far as they impede, deny and/or delay a speedy contest against the results of an election until they are gazetted by the Electoral Commission. That the gazetting of results is not a condition precedent to the swearing in of a successful candidate and as a result they violate the Constitution because the taking of the oath by the successful party is based on contested results yet the candidate who is aggrieved is denied the right to be heard before a competent court. That the requirement to await the gazetting of the results before the petitioner could contest the results in court denied the petitioner a fair and speedy trial.

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Counsel for the petitioner referred to paragraphs 5 and 6 of the affidavit in support where it was affirmed that the ballot paper for the contested election contained 47 symbols yet there were only 4 candidates contesting on the National Resistance Movement Organisation and on independent candidate tickets. She submitted that some of the voters were blind but no braille guide was provided to interpret all the symbols on the ballot paper.

Counsel for the petitioner further submitted that upon losing the election, the petitioner gave instructions to her lawyers to file an election petition challenging the results but she was informed that there was a legal requirement to gazette the results before she could challenge them in court. That the Electoral Commission explained that it was unable to gazette the results of the election for the representative of people with disabilities due to absence of funds. That in addition the results for 2001 and 2006 elections for that position were also not gazetted.

The petitioner's counsel complained that when the petitioner filed a petition in the Magistrates' Court in Mengo before the results were gazetted, it was struck out on the grounds that it was filed before the results were gazetted. That on a first appeal to the High Court the decision of the lower court was upheld.

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Ms. Nakamya further submitted that the requirement to gazette fetters the aggrieved party's right to contest the results of an election yet the Electoral Commission only gazettes the results when it has funds to do so. She contended that the Electoral Commission did not gazette results for Local Councils for persons with disabilities in 2001 and 2006, denying the aggrieved parties their rights to challenge the elections.

With regard to the 2nd Issue, counsel for the petitioner referred to Article 21 (1) and (2) and Article 61(1) (d) of the Constitution and paragraphs

12 and 13 of the petitioner's affidavit to support the argument that the act of gazetting other election results and refusing and/or neglecting to gazette election results for persons with disabilities in 2001, 2006 and 2011 was discriminatory and contravened Article 21(1) and (2) and 61(1) (d) of the Constitution.

With regard to the 3rd Issue, counsel for the petitioner submitted that costs are at the discretion of court but she prayed that this petition be allowed and costs be awarded to the petitioner in Election Petition No.6 of 2011 in the Magistrates Court at Mengo and Election Petition Appeal No.1 of 2012 in the High Court at Kampala.

## Submissions of the 1st Respondent

In reply, counsel for the 1st respondent submitted that this court has previously observed that a petition is deemed to raise questions for Constitutional interpretation when it alleges that an Act of Parliament or any other law or anything in or done under the authority of any law; 15 or any act or omission by any person or authority is inconsistent with or in contravention of a provision of the Constitution. She referred us to Constitutional Petition No. 53 of 2010 Behangana Domaro & Another v Attorney General where this court relied on the decision of the Supreme Court in Constitutional Appeal No. 2 of 1998, Ismail Serugo v Kampala City Council & Another for what amounts to contravention of the Constitution.

Counsel for the 1st respondent further argued that there must be before this court a petition or a reference with interpretation or construction of the Constitution as the primary objective. She relied on the decision in Attorney General v Major General David Tinyefuza; Supreme Court Constitutional Appeal No. 1 of 1997 and Mugoya Kyawa

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## Gaster v Attorney General; Supreme Court Constitutional Appeal No. 09 of 2008.

Counsel submitted that the acts complained of herein amount to infringement of rights that can be remedied under Article 50 of the Constitution and therefore the petition was wrongly brought under Article 137 of the Constitution. She further argued that section 138 (4) Local Government Act and section 60 (3) of Parliamentary Elections Act are not inconsistent with Article 28 (1) of the Constitution. That the section 138 (4) provides that election petitions shall be filed 14 days after publication of results of the contested election in the gazette. Therefore the aggrieved party does not lose the right to be heard since time within which to petition begins to run after the said publication.

Ms. Ijang further pointed out that the allegations that the petitioner unsuccessfully petitioned the Magistrates Court and appealed to the High Court and this Court are not supported by any evidence and should be disregarded by this court on that ground.

With regard to the 2nd Issue, counsel for the 1st respondent submitted that the petitioner's claim in this petition related to filing a petition before the Magistrate's Court and two appeals therefrom that are not supported by any evidence. That further allegations that the 2nd respondent neglected to gazette results of the elections for people with disabilities to the LC V Council have also not been proved. She also pointed out that there was a contradiction in the petitioner's conferencing notes at pages 3-4, where it was stated that "... whereas in the instant case the results were gazetted, the same was done as an 25 afterthought after the petitioner had contested the results in court."

It was her argument that the petitioner ought to have petitioned Court after the results were gazetted in 2011 and not before. That there was

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no discrimination as the results for the election of the representatives of persons with disabilities were gazetted.

With regard to the remedies sought, the respondent's counsel submitted that the petitioner admitted that she filed her petition in court before the results were gazetted. That having done so, the petitioner is not 5 entitled to any of the remedies sought.

Counsel further stated that the swearing in of the candidate declared as the successful candidate in the elections did not in any way bar the petitioner from filing her petition after gazetting of the results. She prayed that the petition be dismissed.

In rejoinder, counsel for the petitioner relied on the decisions in Behangana Domaro (supra), Ismail Serugo (supra) and Attorney General v General David Tinyefuza (supra) to support the argument that the petition raises questions for constitutional interpretation with regard to section 138 (4) of the Local Government Act and section 60 (3) of Parliamentary Elections Act, in so far as they contravene Article 28

She reiterated that the requirement to gazette the results violates the right to a fair hearing and a speedy trial since the aggrieved party has to wait until the $2^{nd}$ respondent gazettes the results before they can challenge them.

## Resolution of the Petition

The 1st respondent contends that this petition does not raise any questions for constitutional interpretation. Since this is an objection to the propriety of the petition before us, it is incumbent on the court to dispose of it first before dealing with any substantive issues, if any.

$\mathbf{R}$

This petition was brought under Article 137 (3) of the Constitution which provides that:

(3) A person who alleges that an Act of Parliament or any other law or anything in or done under the authority of any law; or any act or omission by any person or authority is inconsistent with or in contravention of a provision of this Constitution, may petition the Constitutional Court for declarations to that effect and for redress where appropriate.

In Major General David Tinyefuza v. Attorney General, Supreme Court Constitutional Appeal No. 01 of 1997, it was held (Wambuzi, 10 $CJ)$ that:

> "In my view, jurisdiction of the Constitutional Court is limited in Article 137 (1) of the Constitution to interpretation of the Constitution. Put in a different way no other jurisdiction apart from interpretation of the Constitution is given. In these circumstances, I would hold that unless the question before the Constitutional Court depends for its determination on the interpretation of the Constitution or construction of a provision of the Constitution, the Constitutional Court has no jurisdiction."

The same position was maintained in Paul K. Ssemogerere v. Zachary 20 Olum and Others, Constitutional Appeal No 01 of 2002 and Amooti Godfrey Nyakana v National Environment Management Authority Constitutional Appeal No 05 of 2011, and many others.

The Petitioner's complaint in this case is that section 138 (4) of the Local Governments Act and Section 60 (3) of the Parliamentary Elections Act 25 are inconsistent with Article 28 (1) of the Constitution. That the 2nd respondent's refusal to gazette the results of elections for the representative of persons with disabilities in 2001 and 2006 is discriminatory against disabled persons and in breach of its constitutional duties. Further, that it contravenes Articles 21 (1) and (2) 30 and 61 (1) (d) of the Constitution. That the refusal to gazette the said

results before the swearing in of the declared successful candidate was in breach of the 2nd respondent's constitutional duty.

The petition therefore raises two questions for constitutional interpretation: Whether section 138 (4) of the Local Government Act and section 60 (3) of the Parliamentary Elections Act are in contravention of Article 28 (1) of the Constitution. However, the question whether Article 60 (3) contravenes or is inconsistent with Article 28 (1) of the Constitution is academic. There is no live dispute over it concerning the petitioner or any other person named in the petition.

In Sun Life Assurance Co of Canada v. Jervis [1944] 1 All ER 469, 10 while dealing with the question whether an appeal before the House of Lords had been rendered academic, Viscount Simon LC stated thus,

> "I do not think that it would be a proper exercise of the authority which this House possesses to hear appeals if it occupies time in this case in deciding an academic question, the answer to which cannot affect the respondent in any way. If the House undertook to do so, it would not be deciding an existing lis between the parties who are before it, but would merely be expressing its view on a legal conundrum which the appellant hopes to get decided in its favour without in any way affecting the position between the parties. ... I think it is an essential quality of an appeal fit to be disposed of by this House that there should exist between the parties a matter in actual controversy which the House undertakes to decide as a living issue."

In the absence of a dispute between the parties before this court in this petition relating to section 60 (3) of the Parliamentary Elections Act, the issue is academic and should not impinge on the time and other resources expended by this court. It will therefore not be considered for it is merely academic. The other questions posed in the petition are whether the failure to gazette the results for the election of representatives for persons with disabilities in 2001, 2006 and 2011 was discriminatory against persons with disability and therefore in contravention of Articles 21 (1) and (2) and 61 (1) (d) of the Constitution. The two questions are about enforcement of the provisions of the Constitution and not its interpretation. Placed in a position where the court had to decide whether the protection of rights under the National Assembly (Powers and Privileges) Act contravened provisions of the Constitution, the Supreme Court (Wambuzi, CJ) in Major General David Tinyefuza v. 10 Attorney General (supra) resolved the issue as follows:

> "It is my considered view that in respect of the second claim the respondent had a cause of action based on the Constitution, the National Assembly (Powers and Privileges) Act and some other laws but the Constitutional Court had no jurisdiction to entertain the claim because its resolution does not depend on the interpretation or construction of any provision of the Constitution but of those other laws. To the extent that those rights and privileges are guaranteed by the Constitution their violation or threatened violation must be resolved by another competent Court."

The Justices of the Court in the majority were agreed on that point and Karokora, JSC stated thus:

"Clearly the jurisdiction of the Constitutional Court is confined to interpretation of the Constitution under clauses (1) and (3) of Article 137 of the Constitution. And unless any allegation made under Article 50 (1) of the Constitution requires interpretation of the Constitution, Article 137 (3) would not be called in aid to resolve grievances brought under Article 50 (1) of the Constitution."

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The complaint about discrimination against persons with disabilities in contravention of Article 21 (1) and (2) and the alleged failure of the Electoral Commission to gazette results of the elections for representatives of persons with disabilities for the Local Council 5 for Kampala therefore belongs to another competent court or tribunal, not the Constitutional Court.

For the election held in 2011, which the petitioner challenged without success in the Magistrates Court at Mengo and the High Court, there was evidence adduced in the affidavit in support of the answer to the petition that the results were gazetted. Attached to the affidavit sworn by Enoch Kugonza for the 2nd respondent was a copy of the Uganda Gazette published on 17th February 2012 in compliance with section 137 (1) of the Local Governments Act. It displayed the results of all candidates that contested in the election for male and female representatives of persons with disabilities for Kampala.

The only issue for determination in this petition is therefore whether the delay in gazetting the results for the representatives of persons with disabilities in Kampala for the elections held in May 2011 makes section 138 (4) of the Local Governments Act inconsistent with Article 28 (1) of the Constitution. I will now proceed to resolve that question.

Section 137 (1) of the Local Governments Act provides that,

"The Electoral Commission shall, as soon as practicable after the election, ascertain, declare and in writing under its seal publish in the Gazette the results of the election in each constituency."

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This flows from the mandate of the Commission stated in Article 61 (1) (d) of the Constitution. Section 138 (2) and (3) of the Local Governments Act then go on to provide that a candidate who is aggrieved by the

declaration of results of a Councillor may petition the Magistrates' Court having jurisdiction in the constituency.

Subsection (4) of section 138, the impugned provision, provides that,

"(4) An election petition shall be filed within fourteen days after the day on which the results of the election has been notified by the Electoral Commission in the Gazette."

The petitioner's complaint is that while the election was held on the 2nd May 2011 and she was the runner up declared by the Commission, there were irregularities in the election, including that the number of candidates displayed on the ballot paper handed to the voters contained 47 symbols representing 47 political parties and yet there were only 4 candidates contesting under the NRM party and independents. That the candidates who were declared winners by the Electoral Commission were sworn in two weeks after the election but she could not file a valid petition due to the failure of the Electoral Commission to gazette the

15 results.

The petitioner contends that the question remains whether an election petition should be filed after the gazetting of the results when the candidate who is declared the winner takes his/her seat before the results are gazetted. Further that the Electoral Commission only gazettes results when it had the necessary funds to do so. That this is unconstitutional because it denies the aggrieved candidates the right to be heard in time, or at all, making section 138 (4) of the Local Governments Act inconsistent with Article 28 (1) of the Constitution.

Article 28 (1) of the Constitution provides that: 25

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"In the determination of civil rights and obligations or any criminal charge, a person shall be entitled to a fair, speedy and

## public hearing before an independent and impartial court or tribunal established by law."

The right to a fair hearing is an essential aspect of the judicial process and is vital for the protection of other human rights. The purpose of the right to a fair hearing is to ensure the proper administration of $\mathsf{S}$ justice. The basic elements of the right to a fair hearing are: equal access to, and equality before the courts; the right to legal advice and representation; the right to procedural fairness; the right to a hearing without undue delay; the right to access to a competent, independent and impartial tribunal established by law; the right to a public hearing; and the right to have the free assistance of an interpreter where necessary.1

In Charles Harry Twagira v. Attorney General, Supreme Court Criminal Appeal No 27 of 2003, the Supreme Court explained the meaning of a "fair trial" or "hearing" under Article 28 of the Constitution thus:

"A fair trial, or a fair hearing, under Art.28, means that a party should be afforded opportunity to, inter alia, hear the witnesses of the other side testify openly; that he should, if he chooses, challenge those witnesses by way of cross-examination; that he should be given opportunity to give his own evidence, if he chooses, in his defence; that he should, if he so wishes, call witnesses to support his case. ..."

The petitioner's real complaint was that the candidate that was declared as the Councillor for persons with disabilities was sworn in and took office before she was enabled to file a petition to challenge the election. In her view, she was denied access to the court for the period of time

&lt;sup>1 Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa; retrieved on 5/03/2021, from http://hrlibrary.umn.edu/research/ZIM%20Principles\_And\_G.pdf

between the declaration of the results and the gazetting. In other words, had she had access to the court immediately after the election results were declared, she may have prevented the swearing in of the candidate declared as the Councillor representing people with disabilities in her constituency by filing a petition in court.

However, the fact that the declaration of a candidate as most successful and therefore the person eligible to be sworn in and take office does not prevent any person that is eligible to file a petition under section 138 (4) of the Local Governments Act from doing so. For as long as the Electoral Commission has gazetted the results, as is provided for in section 137 of the Local Governments Act, and the petition is filed within 14 days of the gazetting, it shall be heard by the appropriate court.

It is also my view that the delay in publishing the results of the elections is brought about by the wording of section 137 of the Local 15 Governments Act. There is no limit to the time within which the Commission should gazette the results because the provision allows it to gazette the results "as soon as practicable after the election." The wording of the provision gives the Commission leeway to publish at any time that they are able to and there will be no sanctions for inordinately $20$

late gazetting. The fault therefore lies with the legislature and not the Commission and efforts should be made to have that law amended to specify a specific time frame within which the results should be gazetted in order for aggrieved candidates to have access to the courts as soon 25 as possible.

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However, once the petition is lodged in the appropriate court within 14 days of gazetting the results, the court must exercise its jurisdiction to

hear the petition and it may set aside the election on any of the grounds in section 139 of the Local Governments Act which provides as follows:

"The election of a candidate as a chairperson or a member of a council shall only be set aside on any of the following grounds if proved to the satisfaction of the court-

- (a) that there was failure to conduct the election in accordance with the provisions of this Part of the Act and that the noncompliance and failure affected the result of the election in a substantial manner; - (b) that a person other than the one elected purportedly won the election: - (c) that an illegal practice or any other offence under this Act was committed in connection with the election by the candidate personally or with his or her knowledge and consent or approval; or - (d) that the candidate was at the time of his or her election not qualified or was disqualified from election."

The filing of the petition then triggers the rights under Article 28 (1) of the Constitution in that the parties to the petition should be afforded the right to a fair hearing in the manner that was articulated by the Supreme Court in the case of Charles Harry Twagira (supra).

I am therefore unable to find that section 138 (4) of the Local Governments Act contravenes, or is inconsistent with Article 28 (1) of the Constitution.

The petition therefore fails. 25

> The petitioner prayed that this court orders the Electoral Commission to pay the costs that were ordered against her by the Magistrates Court at Mengo in Election Petition No 6 of 2011 and by the High Court at Kampala in Election Appeal No. 1 of 2012.

Section 27 of the Civil Procedure Act provides that costs follow the event. The determination of who meets the costs is then within the discretion of the court. It has not been proved before this court that the courts below exercised their jurisdiction following wrong principles so that this court then exercises its discretion to order that the orders of the two courts are set aside. This court therefore cannot intervene in the matter.

However, this court has discretion over the costs of this petition and I am of the view that the petition was filed in the public interest. For that reason, I will make no order as to costs.

In conclusion, this petition is dismissed with no order as to costs.

Irene Mulvagoria

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JUSTICE OF APPEAL/CONSTITUTIONAL COURT