BACKGROUND
On the 13th July, 2018, Hon. J. Ssekaana Musa delivered a judgement at High Court of Uganda, Kampala in the aforementioned case which highlights; the powers of the Electoral Commission to examine and hear complaints, which party may lodge a complaint to the Commission, the constitution of the Commission and the difference between a deed Poll and a statutory declaration.
Summary of the facts
On the 4th June, 2018, National Resistance Movement [NRM] complained to the Electoral Commission [herein called “the Commission”] challenging the nomination of the Petitioner, a candidate for Pallisa Woman Member of Parliament, on grounds that she did not possess academic papers as required under Section 4(1)(c) of the Parliamentary Elections Act, 2005 [herein called “the Act”]. The contention of the NRM was that the Petitioner whose names appear in the voters’ register as Achola Catherine Osupelem was different from the person presented in the academic papers with the names Achola Catherine and yet there was no evidence to demonstrate that she complied with the procedure of change of name. On the 14th June, 2018, the Commission delivered its decision denominating the Petitioner hence the appeal.
Preliminary Objections
The Petitioner raised the following Preliminary Objections:
Locus Standi.
The Petitioner submitted that the complaint was incompetent since it was presented by National Resistance Movement that is not a registered voter per Section 15 of the Act.
Decision of Court
Court relied on Article 61(f) of the Constitution and Section 15 of the Act that mandate the Commission to hear and determine election complaints arising before and during polling and grant the Commission power to examine and decide any complaint and to take necessary action to correct any irregularity and Section 10 of the Act that provides for the sponsorship of candidates by political parties under Multiparty political system.
Court decided that under the law there is no restriction on who can make a complaint and in absence of any restrictions being imposed by the Constitution, the Parliamentary Elections Act could not be interpreted to be that restrictive on Political parties or Organizations being involved in lodging complaints.
Conclusion
The objection was answered in the negative that NRM’s complaint was properly made and that the objection was devoid of merit.
Constitution of the Commission
The Petitioner contended that the decision of the Commission was incompetent since it was signed by the Chairman of the Commission only.
Decision of Court
Court relied on the minutes or proceedings of the Commission to show that members were in attendance and at the end of the hearing took a decision. The Chairman of the Commission only communicated on behalf of the Commission and it is not a requirement that all the members must sign on the said communication.
Conclusion
This objection was also answered in the negative that the Commission was properly constituted.
Issues for determination
There were only two issues framed for determination, to wit;
Whether the respondent lawfully cancelled the nomination of the Petitioner?
Whether there are any remedies available to the parties?
Resolution of issues
In resolving the issues, court stated that the Petitioner tried to validate the names in order to be able to use ‘her’ academic papers by swearing a statutory declaration and later having a deed poll. But this aggravated the bad situation and by which date, the Petitioner’s names had already changed.
When a new name is added, that will automatically mean a change of person or new identity and any person who knew the person before the change of name will definitely not be in position to recognize the person by the new names unless explanations are made or a photograph is shown. Therefore, the changing of the name of the Petitioner created difficulty of substantiating the previous identity alongside the new name.
Court further stated that the presentation of a statutory declaration which was not registered as the explanation for the variation of names cannot be justification for disregarding the law.
Distinguishing cases relied on
Court traversed through the different cases relied on by the parties and distinguished them from the instant case as follows:
In Mashate Magomu Peter vs EC & Another; the person challenged had lawfully changed his names and there was a deed poll. In the case of Mulindwa Isaac Ssozi vs Lugudde Katwe Elizabeth; the appellant proved that he is one and the same person by lining up several witnesses from Makerere University former course mates and Academic registrar, Principal Examinations Officer UNEB who produced a photo album of the appellant for senior six. And above all he had changed name by way of a deed poll. In the case of Mandera Amos vs Bwowe Ivan; the appellant’s certificate had an error in his name of ‘Mandera’ written as ‘Nandera’. Court held that the use of a statutory declaration was sufficient to prove and explain the clerical errors in his name. In the case of Waligo Aisha Nuluyati vs Ssekindi Aisha & EC; The 1st respondent explained the discrepancy in one of her names ‘Ayisa’ instead of ‘Aisha’ by a statutory declaration and court was satisfied with the explanation together with other evidence that ‘Sekindi Ayisa’ and ‘Sekindi Aisha’ are one and the same.
Proof of change of name
Court stated the circumstances under which a Deed Poll and a Statutory Declaration are applicable. A Statutory declaration would only be applicable in cases of misspelling of names. Secondly, in the absence of a Statutory Declaration, the Petitioner had a duty to produce evidence from Uganda National Examinations Board, Institute of Teachers Education Kyambogo, Uganda Christian University, parents or relatives and persons she went to school with to prove she is one and the same as Achola Catherine and Achola Catherine Osupelem. Therefore, in absence of a proper deed poll by the Petitioner, a Statutory Declaration could not explain a change of name or addition of a name.
Finally, Court concluded that the Commission was right to denominate her due to discrepancy in her names in academic documents, National Register and National Identity card.
What happens after a candidate has been denominated.
Court relied on Section 14 (1)b, (2) and (3) of the Act to conclude that whatever the Respondent did in declaring the remaining candidate as duly elected and publishing the same in the Gazette was within law.
Section 14(1)(b) provides that where at the close of nomination days; only one person has been duly nominated for the election for a constituency, the returning officer shall forthwith declare that person duly elected as a member of parliament with effect from the polling day fixed in accordance with this Act.
Section 14(2) further provides that where a returning officer makes a declaration under subsection (1)(b), the returning officer shall notify the Commission which shall cause to be published in the Gazette a notice of the name of the candidate declared so elected and the day with effect from which he or she was declared elected. Section 14(3) also provides that if, by virtue of an appeal under Section 16 or as otherwise permitted under this Act, an additional candidate is later duly nominated, the Commission shall revoke the Gazette notice and the returning officer shall revoke his or her declaration.
Conclusion
Court concluded that in light of the above provisions of the law, the Commission was right in declaring and Gazetting the remaining candidate having denominated the Petitioner.
DISCLAIMER
This article provides general information only. It is not intended to provide advice concerning any specific set of facts, nor is it intended to be relied on as legal advice.
ABOUT THE AUTHOR
The author is a commercial law practitioner with M/s Tibugwisa and Co. Advocates
For comments and inquiries contact him at bright@tadvocates.com or 0775788115.