Uganda Legal Information Institute - Development https://old.ulii.org/tags/development en Samelic Electrical & General Hardware v Tororo District Administration (HIGH COURT CIVIL SUIT No.5/93) [1994] UGHCCD 3 (31 March 1994); https://old.ulii.org/ug/judgment/hc-civil-division-uganda/1994/3 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/hr" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">HR</a></li><li class="field-item odd"><a href="/tags/development" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Development</a></li></ul></section><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-c846d13ab782db54eca7612f00153b9c"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/hc-civil-division-uganda/1994/3/hc-civil-division-uganda-1994-3.pdf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"><iframe class="pdf" webkitallowfullscreen="" mozallowfullscreen="" allowfullscreen="" frameborder="no" width="100%" height="600px" src="/sites/all/libraries/pdf.js/web/viewer.html?file=https%3A%2F%2Fold.ulii.org%2Fsystem%2Ffiles%2Fjudgment%2Fhc-civil-division-uganda%2F1994%2F3%2Fhc-civil-division-uganda-1994-3.pdf" data-src="https://old.ulii.org/system/files/judgment/hc-civil-division-uganda/1994/3/hc-civil-division-uganda-1994-3.pdf">https://old.ulii.org/system/files/judgment/hc-civil-division-uganda/1994/3/hc-civil-division-uganda-1994-3.pdf</iframe> </div> </div> </div> </div> </div> Mon, 13 Aug 2018 09:50:14 +0000 Eunice Logose 28901 at https://old.ulii.org Dr. Otiam Otala Emmanuel V Oboth Marksons Jacob (Tororo Election Pet No. 07 Of 2011) [2011] UGHC 141 (22 September 2011); https://old.ulii.org/ug/judgment/high-court-uganda/2011/141 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/hr" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">HR</a></li><li class="field-item odd"><a href="/tags/development" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Development</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p>&nbsp;</p> <p><strong>THE REPUBLIC OF UGANDA</strong></p> <p><strong>IN THE HIGH COURT OF UGANDA AT TORORO</strong></p> <p><strong>&nbsp;ELECTION PETITION NO.0007 OF 2011</strong></p> <p>&nbsp;</p> <p><strong>DR.OTIAM OTAALA EMMANUEL ……………………………………..PETITIONER</strong></p> <p><strong>VERSUS</strong></p> <p><strong>1. OBOTH MARKSONS JACOB</strong></p> <p><strong>2. ELECTORAL COMMISSION…………………………….…………RESPONDENTS</strong></p> <p>&nbsp;</p> <p>&nbsp;</p> <p><strong><u>JUDGMENT</u></strong></p> <p>The petitioner herein together with the 1<sup>st</sup> respondent and three other persons were candidates in the Parliamentary elections in the West Budama County South constituency, which were held on 18<sup>th</sup> February 2011. The 2<sup>nd</sup> respondent declared the 1<sup>st</sup> respondent as the successful candidate. Mr. Oboth Marksons Jacob has since been sworn in and taken his seat at the Member of Parliament for that constituency.</p> <p>The petitioner challenged the results of that election on two grounds which he set out in this petition, first that there was non compliance with the electoral laws, which non compliance affected the results of the election in a substantial manner. Eight instances of such non compliance were set out in paragraph 3 of the petition. Secondly, the petitioner complained that the 1<sup>st</sup> respondent personally or by his agents with his knowledge and consent or approval committed illegal practices contrary to the electoral laws. Five instances were set out in paragraph 4 of the petition.</p> <p>The petitioner sought from court a declaration that the 1<sup>st</sup> respondent was not validly elected as a member of parliament for West Budama County South Constituency, and for that election to be annulled, and a fresh election ordered. He also prayed for costs of the petition. Several affidavits were filed in support of the petition.</p> <p>The 1<sup>st</sup> and 2<sup>nd</sup> respondents opposed the petition. Each party also filed affidavits in opposition to the petition.</p> <p>The petitioner was represented by Mr. Aggrey Bwire assisted by Mr. Geoffrey Ojok and Mr. Ambrose Tebyasa. The 1<sup>st</sup> respondent was represented by Mr. Dagira Suza and the 2<sup>nd</sup> respondent was represented by Mr. Kawuma Geoffrey.</p> <p>At conferencing it was agreed by all parties as follows.</p> <p>1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The petitioner and the 1<sup>st</sup> respondent were parliamentary candidates in the 18/2/2011 elections in West Budama County South constituency.</p> <p>2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The 2<sup>nd</sup> respondent declared the 1<sup>st</sup> respondent as the duly elected Member of Parliament for the said constituency.</p> <p>3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The 2<sup>nd</sup> respondent published the 1<sup>st</sup> respondent as winner of the said election in the Uganda gazette of 4<sup>th</sup> March 2011, with 17,210 votes against 16,034 votes for the petitioner.</p> <p>The following issues were set down for court’s determination;</p> <p>1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Whether there was non compliance with the electoral laws and principles therein in the conduct of parliamentary elections in West Budama County South constituency.</p> <p>2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; If any such non compliance affected the results of the election in a substantial manner.</p> <p>3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Whether any illegal act or offence was committed by the 1<sup>st</sup> respondent personally or by his agents with his knowledge and consent or approval.</p> <p>4.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The remedies.</p> <p>The petitioner filled 41 affidavits with more than 58 documents in support of the petition. The 1<sup>st</sup> respondent filled 34 affidavits to which were annexed some 34 documents. The 2<sup>nd</sup> respondent filed 4 affidavits. These were all admitted in evidence. &nbsp;It was agreed at conferencing that all the affidavits would be deemed to have been read in open court. The Returning Officer of the 2<sup>nd</sup> respondent R35 Erikwaine Ngobi (RO) was the only witness called for cross examination.</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p><strong>Non Compliance with the Electoral Laws.</strong></p> <p><strong>Disenfranchisement</strong></p> <p>This was the first issue. The complaints herein were set out in paragraph 3 of the petition. The complaint was that there was voter disenfranchisement in at least 6 polling stations. These were named as;</p> <p>1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Bendo Nursery School polling station, with 330 registered voters;</p> <p>2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Panyangasi Primary School polling station with 509 registered voters;</p> <p>3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Rubongi Sec. School polling Station with 404 registered voters;</p> <p>4.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Rugoti Church polling station with 808 registered voters;</p> <p>5.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Mawele Primary School polling station with 563 registered voters; and</p> <p>6.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Siwa Pri. School polling station with 299 registered voters.</p> <p>This is borne out from the Results Tally Sheet exhibit P1 which indicated ‘0’ results for each candidate in respect of each of those polling stations. &nbsp;During cross examination the 2<sup>nd</sup> respondent’s Returning Officer (RO) told court that results from six polling stations were not included in the final results tally. He named the six as above. He told court that he cancelled the results of Bendo Nursery School polling station and Panyangasi Primary School polling station because the total number of votes cast exceeded the total number of registered voters at these respective polling stations. He told court that the results of the remaining four polling stations of Siwa, Mawele, Rugoti church and Rubongi were not included in the final tally because the envelopes from those polling stations did not contain the Declaration of Results (DR) forms.</p> <p>The RO Erikweine Ngobi R35 conceded that there was an irregularity and hence his decision to announce the results of the elections in the constituency minus those from these four polling stations. He told court that he was aware of the options under Section 53(3) and (4) of the Parliamentary Elections Act (PEA), of using the DR forms in the Presiding Officers report book, or in the ballot boxes, but he chose not to exercise those options. He justified his decision saying that in any event, even if he had included the results from those polling stations, the final outcome would not have changed.</p> <p>Odoki CJ, in <em><u>Ret. Col. Dr. Kizza Besigye v. Y.K. Museveni &amp; Another</u></em> EP No. 1 of 2001 set out the principles underlying an election. These include the following.</p> <p>1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The elections must be free and fair.</p> <p>2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The elections must be by universal adult suffrage which underpins the right to register and vote.</p> <p>3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The elections must be conducted in accordance with the laws and procedures laid out by parliament.</p> <p>4.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; There must be transparency.</p> <p>5.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The results must be on the basis of majority votes cast.</p> <p>There was no dispute that West Budama County South constituency comprised 99 polling stations. Exhibit P1 the results Tally Sheet shows that only 93 polling stations had results. 6 polling stations had zero results.</p> <p>The evidence was that people voted at these six polling stations, but for reasons given by the RO, the results there from did not form part of the results of the elections of the constituency. The results of an election can only be ascertained from a tally of the results from the voting at the various polling stations. From this tally only can a determination be made as to which candidate obtained the majority votes.</p> <p>The 1<sup>st</sup> respondent argued that there was no disenfranchisement of voters at the 6 polling stations. People voted but due to irregularities, the votes were not included in the final tally. That to me was a concession that there was an irregularity. The RO of the 2<sup>nd</sup> respondent equally conceded that there was an irregularity in so far as the envelopes from the four polling stations did not include the DR forms. He equally conceded that the 2 polling stations whose results were cancelled exhibited irregularities and those results could not be allowed to stand.&nbsp; The argument of the respondents in this regard was that the people voted and so were not disenfranchised as alleged.</p> <p>Disenfranchise means to be deprived of the right to vote. The right to vote entails not only casting a ballot paper for a candidate of ones choice, but also and equally important, knowledge that that vote will be treated equally as all the other votes cast in the election, before a candidate is declared the winner thereof.</p> <p>The Inter Parliamentary Council sitting in Paris in 1994 unanimously adopted a ‘Declaration on Criteria for Free and Fair Elections’. It stated in paragraph 2 clause 6 thereof that,</p> <p>‘Every voter is entitled to exercise his or her right equally with others and to have his or her vote accorded equivalent weight to that of others.’</p> <p>That is quite instructive as it is persuasive and it goes to the argument about disenfranchisement. In the USA a country said to be one of the leading democracies had issues about disenfranchisement in the State of Florida after the 2000 presidential elections. The US Commission on Civil Rights, a body with jurisdiction to examine allegations regarding the right of US citizens to vote and to have their votes counted said the following about disenfranchisement;</p> <p>‘disenfranchised voters are individuals who are entitled to vote, want to vote, or attempt to vote, but who are deprived from either voting or having their votes counted.’</p> <p>In the present case, the voters of the six polling stations wanted to vote and indeed attempted to vote. Their votes were not counted in so far as those votes did not constitute or form part of the results of the elections at which these people attempted to vote a candidate of their choice for Member of Parliament. Their votes were not given equivalent weight as those from other polling stations as they were excluded or not considered in the final tally.</p> <p>The RO in his duty to tally the results of votes from the polling stations so as to determine the candidate with the majority votes under Section 53(1) of the PEA, opened envelopes from four polling stations and the DR forms were not enclosed therein. Section 53(3) and (4) of the same PEA envisions exactly the scenario the RO encountered, where the DR forms are not in the envelope from the Presiding Officer, and directs that the DR form which is attached to the report of the Presiding Officer, or the DR form from the ballot box may be used instead.</p> <p>This provision is intended to ensure that votes of all the voters are accorded equivalent weight, and are thus counted, meaning that they are considered and included in the final tally before the RO decides who of the candidates has the majority of votes and therefore is the winner of the election.</p> <p>For unintelligible reasons the RO while claiming to be aware of the existence of these statutory provisions, chose to ignore them and proceeded to tally the results and he excluded these four polling stations.</p> <p>In respect of the two polling stations whose results were cancelled, I agree with Counsel for the 2<sup>nd</sup> respondent that the Electoral Commission must be clothed with the power, in the appropriate circumstances to take whatever action that it deems necessary within the law, to ensure free, fair and transparent elections, including the power, where necessary to cancel elections at polling stations. That however should not be seen as derogation from their duty to uphold the constitutional right of the people of Uganda enshrined in Article 1(4) thereof,&nbsp;</p> <p>‘to express their will and consent on who shall govern them and how they should be governed, through regular, free and fair elections of their representatives or through referenda.’</p> <p>The 1<sup>st</sup> respondent exhibited DR forms from the impugned polling stations in his affidavit in reply to the petition RA2 to RA7. The RO equally sought to rely on the same DR forms in his explanation that voting indeed took place in those respective polling stations. That was not impressive in the least. The 2<sup>nd</sup> respondent decided on 20<sup>th</sup> February 2011 when it declared the results of elections for West Budama County South parliamentary constituency that the results from the six polling stations could not be and indeed were not considered in the tally of results at which the winner of the election was determined. There was a zero return in respect of those polling stations. The respondent could not thereafter turn around and claim to have and even for whatever reason purport to rely on results from the same polling stations. Results from those polling stations were said to be unavailable for the purpose for which they were primarily required, i.e. to determine the candidate with the majority votes. It would be absurd to say the same results later surfaced and were now available to confirm a result made or arrived at when they were unavailable.</p> <p>For the four polling stations where the DR forms were not available, the RO decided that he could not and did not use the forms which were in the report of the Presiding Officers or from the ballot boxes. The law availed him such an option but decided not to utilize it. One of his reasons was that there was no time to wait the arrival of the ballot boxes. The elections were held and concluded on 18<sup>th</sup> February. The RO announced the results on 20<sup>th</sup> February. It surely could not have taken two days for the ballot boxes to arrive. Whatever his reasons, the RO impugned the results from the four polling stations. So the DR forms which the 1<sup>st</sup> respondent annexed to his affidavit, being DR forms which were allegedly given to his agents at the respective polling stations were of no relevance.</p> <p>The same argument goes for the two polling stations whose results were cancelled. The cancellation was because of irregularities. There were more votes cast than the number of registered voters. That was evidence that either persons voted more than once, or that there was ballot stuffing, both of which hallmarks of an unfair election, and are contrary to the law. Once cancelled, those results could not be of any value to anyone and any purpose, may be save to show that people cast their ballots at those polling stations.</p> <p>Engwau JA, in <em><u>Bakaluba Mukasa v. Nambozo</u></em> held that the Electoral Commission has the constitutional duty to organize a free and fair election. Where an election is not free and fair, and where there has been non compliance with the law, the EC will be held to account.</p> <p>For the above reasons I found that the people in the six polling stations who totaled 2,913 voters were disenfranchised contrary to Article 59 of the Constitution.</p> <p><strong>Failure to control use of ballot papers</strong></p> <p>The petitioner alleged in paragraph 3 (ii) that there was failure by the 2<sup>nd</sup> respondent to control the use of ballot papers contrary to Section 12(1)(b) of the Electoral Commission Act, which enjoins the 2<sup>nd</sup> respondent, ‘to design, print, distribute and control the use of ballot papers.’ The complaint being that such failure resulted in multiple voting, ballot stuffing and voting by ineligible persons including the dead.</p> <p>The complaint was that the failure to control the use of ballot papers led to multiple voting, and or ballot stuffing, or ineligible voters voting. The evidence of this failure was from the RO Erikwaine Ngobi R35, who told court that the results of two polling stations Bendo Nursery Primary School and Panyangasi Primary school were cancelled for the reason that the total number of votes cast exceeded the total number of registered voters. That was a clear and unequivocal plea of guilty by the 2<sup>nd</sup> respondent of its failure to control the use of ballot papers at those two polling stations. If the 2<sup>nd</sup> respondent had been in full and proper charge and control of ballot papers, there would not be any way in which the number of those voting at&nbsp; a polling station would exceed the number of those registered to vote there from.</p> <p>&nbsp;In order to vote, a person had to be possessed of a ballot paper. The law is that each voter must be given one ballot paper and such person must cast his or her ballot paper once. There are administrative safeguards to ensure that a person votes only once. These include putting indelible ink on a conspicuous part of the body of the voter after casting the ballot.</p> <p>The only people authorized to give out ballot papers were the representatives of the 2<sup>nd</sup> respondent. These were the only people who had custody of the ballot papers. After voting, the ballot papers were counted and the RO discovered that more ballot papers were counted in the ballot box than the actual number of people who were lawfully registered to vote at these respective polling stations. Hence the cancellation&nbsp; of the results.</p> <p>One does not need to go further to seek proof that there was failure by the 2<sup>nd</sup> respondent to control the use of ballot papers. However, the RO further conceded in cross examination that at other polling stations, including at the impugned polling stations, there were significant discrepancies in the figures of the ballot papers given out and those actually used in the election. This was evident from the DR forms from these polling stations. Such polling stations included Kagwara COU, Nabuyoga County Headquarters, and Salvation Army Primary School.</p> <p>The answer by the 2<sup>nd</sup> respondent to these complaints was that the figures in respect of the numbers of votes received by the various candidates were not impugned. It was claimed that these figures of the number of votes obtained by each candidate were correct.&nbsp; The discrepancies were to be found only in the numbers of ballot papers used as against those issued. It was submitted that the problem was purely arithmetical. There was failure by the Presiding Officers to properly add the figures and come out with correct entries.</p> <p>While the figures of the votes obtained were not queried, it is not possible to dismiss incorrect figures in an election as being of no significance. The number of votes cast for each candidate determine whether or not the candidate won the election. Numbers are vital in an election. The correctness of the same is therefore an absolute necessity. If a Presiding Officer cannot add properly the number of ballot papers used and the spoiled ones to come out with a correct record of those not used, then the correctness of all the other figures given out by such Presiding Officer become suspect, and the fairness of such an election will be questionable.</p> <p>Mr. Aggrey Bwire learned Counsel for the petitioner put it aptly when he said that ballot papers are the legal tender of the electoral process. Proper control and use of the same is important in ensuring a free and fair election. The complaint that the 2<sup>nd</sup> respondent failed to ensure proper control and use of ballot papers was proved to the satisfaction of court.</p> <p><strong>Voter Intimidation, harassment and violence</strong></p> <p>The petitioner complained in paragraph 3(ii) of the petition that his supporters were harassed and intimidated before and during the voting day. Others were beaten up. There was the affidavit of the petitioner in support of the petition in paragraphs 8 to 23, 26, 27, and 35 to 37. These alleged beating of supporters and agents of the petitioner, while others were chased from the polling stations. The petitioner attached exhibits P4 which were collective statements to the police, of supporters who were assaulted by the supporters of the 1<sup>st</sup> respondent on voting day. Many of them did not; as a result of the intimidation, harassment and the violence which marked the electoral process in the constituency, vote for the candidate of their choice.</p> <p>Kirumi Eustace Mawele PA2 in his affidavit deposed that he was beaten by known supporters of the 1<sup>st</sup> respondent, and at one point went into coma. He reported to the police and a copy of his statement was exhibited. He named those who assaulted him as Oniang Charles, Okoth Ben, John Karori, and others. He attached a medical report which showed the injuries which he sustained, and also an extract of the 1<sup>st</sup> information to the police. In that 1<sup>st</sup> information which was recorded the day the incident allegedly took place, he said that he was assaulted by unknown persons. That was the same information he gave and which appears in the police medical report of the following day. The statement to the police in which names of the assailants were given was recorded on 10<sup>th</sup> March, more than three weeks later. That was not convincing.</p> <p>Asale Joyce deposed that she was attacked by supporters of the 1<sup>st</sup> respondent and she bled profusely. She annexed the medical form showing the injuries she sustained from the assault.</p> <p>Obbo George deposed that he was chased from Mawafu Christian Center polling station by the 1<sup>st</sup> respondent and his brothers Obonyo Jacob, Owora Yokosani and one Julius Abila among others, for the reason that he witnessed and protested multiple voting. However, in his statement to the police which was exhibited, he said that he was beaten up, and not just chased away.</p> <p>Osinde Valerian deposed that he witnessed people claiming to be supporters of the 1<sup>st</sup> respondent beating Kirumi Eustace. This was at Panyangasi B polling station. He asserted that the DR form was also removed from the envelope, and another one whose origin and authenticity were unknown instead was inserted.</p> <p>Ochwo Wilfred Mucope deposed that he was chased from Nabuyoga sub county headquarters by a gang which was led or instructed by the District LC V Chairperson Osuna Emmanuel who was alleged to be a supporter of the 1<sup>st</sup> respondent. The vehicle which chased them, a mini bus registration No. UAP 536L was later intercepted and from it was recovered pangas, metals bars and clubs.</p> <p>Owor Oketcho deposed that the 1<sup>st</sup> respondent came to Nabuyoga sub county headquarters polling station in a convoy of vehicles UAJ 875E, UAK 648Q, a double cabin red pick up and ordered him to leave the polling station lest he would be killed. He was beaten up. He saw stones, pangas clubs and huge sticks on the said pick up.</p> <p>In answer to the allegations of voter intimidation, harassment and violence, the 1<sup>st</sup> respondent denied it all. He conceded in paragraph 39of his affidavit that his supporters in a mini bus were arrested on allegations of being involved in or perpetrating electoral violence, but that they were later exonerated of any wrong doing and released. It was argued that the fact that the 1<sup>st</sup> respondent stood surety for these supporters did not mean that they or any of them was his agent, and in any event, by being exonerated, they were found to be blame less of any wrongdoing. I would agree that there was nothing to show that these were agents of the 1<sup>st</sup> respondent.</p> <p>The case of <em><u>Kaija William &amp; The EC v. Byamukama James</u></em> EPA No. 12/2006 was relied on. In that case, the Court of Appeal held that ‘a candidate is liable for the acts of his agents he appointed or authorized, and but also for the acts of other agents employed by his agents, having authority to employ others. The crucial test is whether there has been employment or authorization by the candidate to do some election or adoption of the work done.’ There was no evidence that the 1<sup>st</sup> respondent authorized the employment of the 22 suspects by any of his known agents. There was no evidence that he adopted or approved what they did. The only evidence was that these were his ‘loyal supporters’, and that he stood surety for them when the police detained them. That is what would be expected of a leader where his subjects or supporters find themselves on the wrong side of the law. In any event, the police exonerated these suspects.</p> <p>I however do not agree that there was no wrongdoing. There was evidence that these persons were in possession of objects which could well be described as dangerous. Being unlawfully armed with dangerous objects in public is a criminal offence. This was election period. Violence was alleged in several instances. This was evidence of such violence.</p> <p>There was evidence of a red pickup with clubs and huge sticks. The evidence was that some voters were chased by vehicles, and others threatened. This was evidence of violence. I agree that the entire electoral process should be conducted in an atmosphere free of intimidation, bribery, violence or anything that will subvert the will of the people. See <em><u>Rt. Col. Dr. Besigye Kizza</u></em> (supra).</p> <p>It was not shown to the satisfaction of court was that these acts of violence were caused by the 1<sup>st</sup> respondent or by his agents with his knowledge and consent or approval.</p> <p><strong>Voting by the ineligible or/and the dead. </strong></p> <p>The allegation was from Oyeri Neggrey in paragraphs 10 and 11 of his affidavit. He deposed in paragraph 10 that at Muwafu Christian Centre polling station, there were a total of 599 registered voters. The 1<sup>st</sup> respondent received 596 votes, while the petitioner received 2 votes. There were no invalid or spoiled votes. That means the total number of votes cast were 598. That means all the registered voters except only one person cast their vote at that polling station.</p> <p>In paragraph 11 of his affidavit, Oyeri Neggrey deposed that he was aware that some five persons who were registered voters at that polling station are dead. He named them as the following;</p> <p>1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Sunday Moses voter ID No. 04125783</p> <p>2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Owora Yonasan voter ID No. 04126010</p> <p>3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Oketch Pinon voter ID No. 04126011</p> <p>4.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Obbo Patrick voter ID No. 04125952</p> <p>5.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Maka Kalim voter ID No. 04126218</p> <p>The Results Tally sheet exhibit P1 showed the total number of registered voters at Muwafu Christian Centre polling station as 599. The results of the polling were as shown by Oyeri Neggrey and this is the same from the DR form which was annexed to the affidavit of the RO. The other candidates received zero votes at that polling centre.</p> <p>If the five persons above are indeed dead, and they are part of the 599 registered voters at that polling station, yet the results in the tally sheet and the DR form show that only one person did not vote, then it means three of them had votes cast on their behalf.</p> <p>The affidavit of Oyeri Neggrey was dated 21<sup>st</sup> March 2011. It was one of the very first affidavits filed along with the petition. Response to the allegation therein was vague and general. Mukula Mohamed was a police constable at Muwafu Primary School polling station, not Muwafu Christian Centre polling station. He deposed that Neggrey and his wife were agents of Yoweri Kaguta Museveni, and that polling proceeded smoothly at his polling station. That did not answer the allegation that dead people voted at Muwafu Christian Centre polling station.</p> <p>Owor John was the police constable at Muwafu Christian Centre polling station. He was related to Neggrey. He deposed that voting went on smoothly at his polling station. Obonyo Charles while stating that Neggrey did not tell the truth in his affidavit, he, like Owor John did not make any mention of the serious allegation that the dead voted at Muwafu Christian Centre polling station.</p> <p>Owor Moses Oliyo and Opio John Peter were at Muwafu Primary School polling station. They did not in any event mention or deny the allegations by Neggrey. Peresi Ochieng was at the relevant polling station. She deposed that paragraphs 3 to 10 of the affidavit of Neggrey were false. That was not correct, because paragraph 10 of the affidavit of Neggrey gave details of the results of the poling at Muwafu Christian Centre polling station. These results were the same as in the tally sheet exhibit P1 and in the DR form annexed to the affidavit of the RO. But more significantly, Peresi Ochieng specifically excluded from the averments of Negrey which were false, paragraph 11 which gave details of the persons who are dead in that polling station.</p> <p>There was no denial by the 1<sup>st</sup> respondent of this allegation that the five people mentioned are dead or that they were not part of the 599 registered voters at this polling station, and this was his own polling station. There was no denial of this allegation from the RO, or from the Presiding Officer of this polling station. The affidavit of Neggrey was attacked by many deponents in support of the 1<sup>st</sup> respondent in many respects save this. The only inference I drew from the above was that this averment was true and correct. This was a serious indictment in the fairness of the results of the elections at this polling station, which had a turn up of 99.83 percent.</p> <p><strong>Use of Government vehicle. </strong></p> <p>The petitioner complained in paragraph 4(a)(v) of the petition that the 1<sup>st</sup> respondent improperly and unlawfully used government vehicle registration No. UG0200J during and for purposes of his campaigns. The evidence to that effect was from the wife of the petitioner Awere Phibby Otaala. She deposed that on 17<sup>th</sup> and on 18<sup>th</sup> February 2011, she witnessed the said vehicle being driven by Geoffrey Owara, a supporter of the 1<sup>st</sup> respondent for purposes of campaigns of the 1<sup>st</sup> respondent. This was the vehicle which the 1<sup>st</sup> respondent was using while in the civil service. She deposed that on 18<sup>th</sup>, that vehicle was impounded by the police and kept at Tororo CPS.</p> <p>The 1<sup>st</sup> respondent denied these allegations. He deposed that he handed over all government property including the motor vehicle when he resigned his office as a civil servant as he joined active politics. Owora Geoffrey deposed that he was a driver with the Ministry of Justice, and his vehicle was registration number UG0200J. He denied the averments of Mrs Otaala. He denied that the vehicle was impounded by the police on polling day. He deposed that he was instructed to deploy police officers in West Budama constituency, and that was what he did. He annexed to his affidavit a document signed by ASP Katuramu PDC Tororo to the effect that the said vehicle was used as deposed by its driver, and only on polling day.</p> <p>There was no evidence to contradict or controvert the above. I found the allegation not proved to the satisfaction of court.</p> <p><strong>Whether the non complaisance affected the results of the election in a substantial manner. </strong></p> <p>This was the 2<sup>nd</sup> issue. Section 61(1) (a) of the PEA provides that &nbsp;the election of a candidate as a Member of Parliament shall only be set aside if it is proved to the satisfaction of court that the non compliance with the electoral laws affected the results in a substantial manner. The results of the election of West Budama County South constituency were published in the Uganda Gazette dated 4<sup>th</sup> March 2011 exhibit P2 and the 1<sup>st</sup> respondent won the election with 17,210 votes. The runner up was the petitioner with 16,034 votes. The difference in votes between the winner and the runner up was 1,176 votes. The total number of votes from the six polling stations whose results were not considered in the final tally by the 2<sup>nd</sup> respondent was 2,913.</p> <p>There was evidence from the RO that it was possible to obtain 100 percent votes cast for a candidate. From the tally sheet exhibit P1 the results showed that at Nabuyoga sub county headquarters the voter turn up was 99.74 percent. The winner at that polling station received 94.63 of the votes cast. At Muwafu Christian Centre polling station voter turn up was 99.83 percent. The winner at this polling station got 99.67 percent. With this kind of percentage turn up, it was therefore possible to secure a similar turn up at the polling stations where the results were not considered. The difference of 1,176 votes was far below the total number of registered voters in the 6 polling stations of 2,913 voters.</p> <p>The difference of more than 1000 votes cannot be said not to have had a substantial effect on the results of the election. Even if only the 4 polling stations whose results did not appear in the envelopes were to be considered, the total number of registered voters would be 2,074, which is still greater than the difference between the two leading candidates. That was a substantial effect.</p> <p>More to this, at Gule Primary School polling station the results shown on the DR form and confirmed by the RO in cross examination were 179 votes. What the RO tallied and is reflected in the Results Tally Sheet exhibit P1 is 129 votes. The RO said that was an error. By that error of the RO the petitioner lost out 50 votes. It obviously affected the results of the election.</p> <p>Mulenga JSC, in the <em><u>Ret. Col. Dr. Besigye Kizza</u></em> petition (supra) held on substantial effect that numbers are important, but equally so the conditions which produced them. It was admitted that there were inconsistencies in the numbers in the DR forms. The court found that there was an atmosphere of violence during the electoral process. Some people sustained injuries. Violence marred the electoral process. The atmosphere was not conducive to the people freely choosing their representatives. The irregularities where non existing voters apparently voted all combined to make the election not a free and fair contest. I found the 2<sup>nd</sup> issue proved to the satisfaction of court.</p> <p><strong>Whether any illegal act or offence was committed by the 1<sup>st</sup> respondent personally or by his agents with his knowledge and consent or approval. </strong></p> <p>This was the 3<sup>rd</sup> issue. The petitioner in paragraphs 39 of his affidavit in support and 23 of his affidavit in rejoinder alleged widespread bribery of voters by the agents of the 1<sup>st</sup> respondent. Okongo Sam Ogola deposed that he was a polling agent of the petitioner at Abwel Primary School polling station. He stated that one Omalli Angeli came to his home on the eve of polling and describing himself as an agent of the 1<sup>st</sup> respondent gave his wife 2 sachets of salt.</p> <p>It is surprising that an agent of an opponent was the one being bribed. That is not believable. Owor Jude deposed that on the eve of polling, he was with Gabriel Onyango and Oboth Vincent when they met Ogineri Oketch and Kapeli Oketcho who gave him shs 5000/-, so he would vote for the 1<sup>st</sup> respondent. He had to return 3000/- as his two companions refused the bribe. However, that evening, the same people waylaid them and beat them up, and threatened them so that they vote for the 1<sup>st</sup> respondent. That again appears weird. If a person has been offered money which he accepted to vote for a particular candidate, the last thing one would do to that person before poling day is to beat them up. It does not add up.</p> <p>Okoth Thomas deposed that on the eve of polling, Ochola Joseph, Budesta Opendi and Okumu Luka went to his home and gave him 2 sachets of salt so that he should vote for the 1<sup>st</sup> respondent. He did not say whether he cast his vote as requested. However, he was given shs 5000/- on polling day, as he walked from the polling station for the same reason. He deposed that he took the money but did not disclose that he had already voted. That was a very dishonest person with a criminal mind. He admitted taking a bribe which is a criminal offence. He further admitted taking money from Ochola under false pretenses. What else did he do or not do in order to gain materially. He is certainly an untrustworthy person. His evidence has to be treated with caution.</p> <p>Onyango Gabriel deposed that he was offered as bribe by the agent of the 1<sup>st</sup> respondent but that he refused it. He stated that he was forcibly led to the polling station and forced to vote for the 1<sup>st</sup> respondent, after being ‘forced’ to accept 2000/-. Bribery connotes exercise of free will. Where one is forced to vote for a person other than a person of his own choice, that may be an unlawful act but it would not be called bribery.</p> <p>Angom Jasper deposed that he saw Mboti giving money to voters. He could not state that this was a bribe. Only the recipients could tell with exactitude whether or not they received money from Mboti, and for what purpose.</p> <p>The 1<sup>st</sup> respondent denied the allegations of bribery in paragraph 19 of his answer to the petition. He deposed that he was not aware that Mboti was his ardent supporter, or that said Mboti bribed voters.</p> <p>Okoth ogolla Mboti Vincent deposed that he participated in the voting like any other ordinary citizen with a right to chose those to represent him. He was not an agent of any of the candidates in the election, and he never gave any money to any person as a bribe for voting for any particular candidate. He denied giving shs 2,000/- to Cotilda Nyadendi or Alowo Berna.</p> <p>Awor Rose Mary deposed that she was not given any bribe by Oketch Kapeli or Ogineri Oketcho or any other person during the elections. Kotilda Nyapendi denied in her affidavit having been bribed by Mboti or any other person. Alowo Berna similarly denied having been bribed.</p> <p>The evidence of bribery was inconclusive. The offence of bribery is deeply frowned upon. A single act of proven bribery could suffice to overturn an election. The implications are that serious. Therefore before court could overturn an election based on allegations of bribery, it has to be satisfied by cogent and uncontroverted evidence in proof of the allegation. It is similar to proving fraud in a civil suit.</p> <p>In <em><u>Mutono Lodoi &amp; Another v. Steven Oscar Malinga</u></em> EP No. 6 of 2001 (Mbale), the issue of bribery was dealt with extensively In that case there was evidence that the 1<sup>st</sup> respondent personally dished out to voters sachets of salt and pieces of soap. There was evidence that his agents did the same. These same agents swore affidavits in support of the petition, and the 1<sup>st</sup> respondent deposed they were indeed his agents.&nbsp; Maniraguha J, (RIP) found and held that bribery had been proved to courts satisfaction and he overturned the election.</p> <p>There was no evidence that the 1<sup>st</sup> respondent personally engaged in acts of bribery. The allegations of bribery were by people who were said to be his agents or supporters. There was no evidence that Ogineri and Kapeli were indeed his agents. But even if that was proved, it had to be further proved that the act of giving bribes was with the knowledge and consent or approval of the candidate. There was no such evidence. I found that the allegation of bribery was not proved to the satisfaction of court.</p> <p><strong>Use of defamatory language. </strong></p> <p>It was alleged that the 1<sup>st</sup> respondent used language which was defamatory of the petitioner during his campaigns. The petitioner in paragraphs 5, 6 and 7 of his affidavit in support of the petition deposed that at various election rallies, the 1<sup>st</sup> respondent referred to him as <strong>‘<em>namunaka</em>’ </strong>which meant that he was a Marabou stock, a greedy and insensitive person, a cannibal who was feasting on people’s flesh, a person who was unfit to lead the people.</p> <p>Adhola Simon deposed that on the eve of polling the 1<sup>st</sup> respondent in the company of three others who included Ochandi Mathew met him as he moved home and said Ochandi Mathew told him he was one of Namunaka’s people. He was thrown into the boot of the car and dumped at Tororo CPS.</p> <p>Ochwo Wilfred Mucope deposed that the 1<sup>st</sup> respondent during his campaign rallies severally referred to the petitioner as ‘namunaka’, meaning that he was insensitive to peoples’ feelings.</p> <p>A campaign manifesto of the 1<sup>st</sup> respondent was exhibited P43. At page 4 of the said manifesto under the heading; ‘My Pledge When Elected’ paragraph one thereof stated thus; ‘Improve on health service delivery (health centres II – IV) must function well to eliminate the <strong>‘namunakas’</strong> through lobbying government and NGOs. …’</p> <p>The 1<sup>st</sup> respondent did not deny the manifesto. There was no mention of any name of the petitioner or the other four candidates in that manifesto. The quoted part of the manifesto was in reference to health services. The petitioner was not in the health sector. He deposed that he was a Minister in charge of Labour. The two deponents who mentioned the word namunaka did not allude to either the petitioner. Adhola Simon was threatened and assaulted for being one of the people of the namunakas. There was no reference in his affidavit that this was in reference to the petitioner. He did not depose that he was an agent or supporter of the petitioner.</p> <p>Ochwo Wilfred Mucope deposed that the 1<sup>st</sup> respondent used to refer to the petitioner as namunaka at his rallies. He did not mention even one such rally. Surely if the derogatory word was used at public rallies, more than one person would have heard it and would have testified to such. There was none. I found that this allegation was not proved to the satisfaction of court.</p> <p><strong>Remedies</strong></p> <p>The last issue was on remedies. Section 61(1) of the Parliamentary Elections Act (PEA) provides that an election shall be set aside if any of the grounds therein set out is proved to the satisfaction of court.</p> <p>I found that there was non compliance with the laws and principles of elections c/s 61(1)(a) of the PEA. I also found that the non compliance affected the results in a substantial manner. That was in the 1<sup>st</sup> and 2<sup>nd</sup> issues. I did not find that there were illegal practices or electoral offences under Section 61(1) (c) which were committed by the 1<sup>st</sup> respondent personally or by his agents with his knowledge and consent or approval.</p> <p>In the premises the election of Member of Parliament for West Budama County South is hereby set aside. A fresh election shall be held to elect the peoples representative to parliament in accordance with the law.</p> <p>The problems in the constituency from which this petition arose were to a large measure caused by or exacerbated by the non diligence of the 2<sup>nd</sup> respondent. The 2<sup>nd</sup> respondent shall therefore meet the costs of the petitioner. I award the petitioner a certificate of two counsel.</p> <p>RUGADYA ATWOKI</p> <p>JUDGE</p> <p>23<sup>rd </sup>September 2011.&nbsp;</p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-8fb1836230f073565dfb6b259947f9b7"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/high-court/2011/141/high-court-2011-141.doc" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Mon, 27 Jul 2015 14:00:45 +0000 Anonymous 17977 at https://old.ulii.org Kakande Kenneth Paul v Ruhindi Fred and Another (Election Petition No.7 of 2006) ((Election Petition No.7 of 2006)) [2006] UGHC 34 (4 September 2006); https://old.ulii.org/ug/judgment/high-court-uganda/2006/34 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/hr" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">HR</a></li><li class="field-item odd"><a href="/tags/development" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Development</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><center> <font size="3">THE REPUBLIC OF UGANDA<br /> IN THE HIGH COURT OF UGANDA AT NAKAWA</font><br /> <font size="3"><b>ELECTION PETITION NO </b></font><font size="3"><b>7</b></font><font size="3"><b> OF 2006</b></font><br /> <font size="3">(</font><font size="3">ARISING FROM KAMPAL</font><font size="3">A HCT E.P. NO. 19 OF 2006)</font><br /> &nbsp;</center> <p> KAKANDE KENNETH PAUL&hellip;&hellip;&hellip;&hellip;&hellip;&hellip;&hellip;&hellip;&hellip;..................&hellip;&hellip;&hellip;.PETITIONER</p> <center> VERSUS<br /> <font face="Times New Roman">1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </font></center> <p> RUHINDI FRED<br /> <font face="Times New Roman">2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </font>ELECTRORAL PETITION ............................................................ RESPONDENTS<br /> <br /> <b><u>BEFORE: HON. MR. JUSTICE ELDAD MWANGUSYA:</u></b><br /> <br /> <b><u>RULING</u></b><b><u>:</u></b></p> <div align="left"> This ruling arises out of an oral application by Mr. Katumba, counsel for the petitioner arising out of the ruling of this court to exclude affidavits served by the petitioner outside the time prescribed by this court. According to him the ruling raises a novel point of Law that requires interpretation by the court of Appeal. He also stated that the petitioner wished to appeal the ruling so that the court of appeal determines as to whether or not this Honourable court was justified to reject an extension of time of service in view of the fact that the delay to serve was only one day.<br /> Mr. Kandebe for the 1<sup>st</sup> respondent and Mr. Okello Oryem for the 2<sup>nd</sup> respondent opposed the application to grant the petitioner leave to appeal against the ruling of this court. The main thrust of their submission was that by nature of Election Petition trials which have limits this court should not allow the petitioner to appeal against the ruling because it will bog down the trial.<br /> <br /> In the first place there is no point of Law raised by the ruling that requires interpretation by the court of appeal. All the ruling does is exclude the evidence that was not served within the time prescribed by this court which is within the discretion of this court to do.<br /> <br /> Secondly and more importantly there is nothing in the ruling that warrants an appeal during the hearing of this petition. What Mr. Katumba refers to as novel point of Law can be interpreted even after the conclusion of the trial of this petition? This position is against the background that S.63 (a) of the Parliamentary Elections Act enjoins this court to determine an election before it within six months after the petition is lodged in that court. This petition was lodged on 26/4/2006, we are already four months behind schedule and yet the petitioner does not seem to be in a hurry to have his petition heard as expeditiously as the requirement of S.63 of the Parliamentary Elections Act demands.<br /> <br /> In the circumstances the petitioner&rsquo;s application for leave to appeal the ruling of this court excluding affidavits served out of time is rejected. The costs of this ruling will abide the outcome of this petition.<br /> <br /> Eldad Mwangusya<br /> <b><u>JUDGE</u></b><br /> <b>5/9/2006<br /> <br /> 5/9/2006 at 12.15 p.m.</b><br /> All parties and counsels as before.<br /> <br /> <b><u>Court:</u></b><br /> Ruling delivered in open court.<br /> <br /> Eldad Mwangusya<br /> <b><u>JUDGE</u></b><br /> <b>5/9/2006</b><br /> <br /> <b><u>Mr. Katumba:</u></b><br /> My client has instructed me to inform this Hon. Court that he is not satisfied with the manner this court is handling this petition. My instructions are that this court has shown bias in the way it has been handling this matter. The petitioner instructed me that when court convened on 31/7/2006 your Lordship told the petitioner that he is a young man and that he should wait for the next election. The biasness has been manifested throughout the hearing of this petition and his prayer is that His Lordship disqualifies himself from hearing of this petition and that the file be sent back to the registrar for re-allocation because he is not certain that at the end of the day justice will be done. That is all.<br /> <b><u>Mr. Okello Oryem:</u></b><br /> I wish to register my utmost hear felt disappointment in this application. I wish to register my personal apology to the court. The reason is that these type of applications are becoming rampant. Bias does not carry the same meaning as losing on application or a case before a court in law. When a litigant accuses a court of Law of bias there must be clear and specific reasons demonstrating bias. Losing a case is only a consequence of the bias but losing a case on its own does not show bias.<br /> <br /> On the reasons advanced by my colleague the first one is that the petitioner is not satisfied. The duty of court is not to satisfy a petition. The duty of court is to dispense justice according to fact and Law and not satisfy a litigant dissatisfaction arises from an error in law pr an error in fact. Even&nbsp; then the solution lies in filing on appeal after the court has made its judgment.<br /> <br /> The second reason is that bias has manifested itself throughout the hearing so far. That is no reason to impute bias. What has happened so far is that the petitioner won 2 applications. The first was on 24/7/2006 and then on 31/7/2006. The respondents lost those two applications. The respondents have won the last two. There are two points I wish to make. Winning and losing is not the basis for imputing bias. Secondly to accuse a court of Law of bias when there are no reasons to demonstrate so in my view amounts to blackmail because it will affect evaluation of the evidence. It will also affect impartiality. I invite court to come out strongly against this accusation and reject the application to step down.<br /> <br /> <b><u>Mr. Kande</u></b><b><u>be:</u></b><br /> Associate myself with the views of Mr. Okello Oryem. I have something little to add. The principle is that there must be an underlying reason that would make the judge biased. In this case the petitioner has not shown that the judge is a friend or neighbour. There is nothing to show that there is any bias and the petitioner has not shown how it has manifested itself. The basic reason seems to be that they are bent on delaying the trial. It is an attempt to blackmail the court.<br /> As lawyers, we should advise our clients to retrain from making statements that alleged bias without substantiation. Courts are meant to decide cases based on the facts and the Law. It is not a must that one party wins a case.<br /> <br /> This application should not be allowed to derail. No ground has been shown to support bias. I pray that the application be rejected and court proceeds to hear the case.<br /> <br /> <b><u>Mr. Katumba (in reply):</u></b><br /> I wish to reply by stating that what I have stated are not my words. They are the petitioner&rsquo;s words. I am only communicating my clients sentiments.<br /> <br /> <b><u>Court:</u></b><br /> It is now 1.00 p.m. Case adjourned to 6/9/2006 at 9.00 a.m. for a ruling as to whether or not the judge should disqualify himself from hearing this petition.<br /> <br /> Eldad Mwangusya<br /> <b><u>JUDGE</u></b><br /> <b>6/9/2006</b><br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> &nbsp;</div> <center> <b>HE REPUBLIC OF UGANDA<br /> IN THE HIGH COURT OF UGANDA AT NAKAWA<br /> ELECTION PETITION NO. 7 OF 2006<br /> (FROM KAMPALA HCT E.P. NO. 19 OF 2006)</b></center> <br /> <p> <b>KAKANDE KENNETH PAUL :::::::::::::::::::::: PETITIONER</b></p> <center> <b>VERSUS</b><br /> <b><font face="Times New Roman">1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </font></b></center> <p> <b><!-- Drawn Shape (ignored--not implemented yet) --></b><b>RUHINDI FRED</b><br /> <b><font face="Times New Roman">2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </font></b><b>ELECTRORAL PETITION ::::::::::::::: RESPONDENTS</b><br /> <br /> <b><u>BEFORE: HON. MR. JUSTICE ELDAD MWANGUSYA:</u></b><br /> <br /> <b><u>RULING</u></b><b><u>:</u></b></p> <br /> <div align="left"> This court has handled the hearing of this petition filed by, KAKANDE KENNETH PAUL against the election of RUHINDI FRED as member of Parliament for Nakawa Division constituency. The case was first called for mention on 24/7/2006 but nothing significant happened in terms of hearing of the petition because it was not ready. It was adjourned to 31/7/2006 for mention and during the proceedings on that day a schedule for the hearing of the case was set out. The schedule included a scheduling conference which was supposed to be held on 25/8/2006. The scheduling conference was not conducted on 25/8/2006 because one of the lawyers had lost a relative. The case was then adjourned to 4/9/2006 for the scheduling and commencement of hearing of the petition. On 4/9/2006 Mr. Katumba, counsel for the petitioner raised the issue of the affidavits that had been filed on the petition but had not been responded to by the respondents. This issue was tried. Counsel for the petitioner submitted on the issue and counsel respondents replied. The petitioner&rsquo;s counsel replied to the respondents&rsquo; counsel&rsquo;s submissions. A ruling was given on the issue. Court found that the affidavits in question were not properly served because they were served outside the time prescribed by court. After the ruling of the court counsel for the petitioner made an oral application to be granted leave to appeal against the ruling. This matter was also tried and at the end of the trial court rejected the application. The reason for the rejection were again clearly stated in the ruling. It was at this juncture that counsel for the petitioner raised an objection to the manner in which the petition was being handled. The objection was that court had shown bias in the way it was handing the matter. The basis for this was that the trial judge had told the petitioner that he was a young man and that he should wait for the next election. That the bias had been manifested throughout the hearing of the petition. He asked the trial judge to disqualify himself and send back the file to the registrar for re-allocation because at the end of the day he was not certain that justice will be done.<br /> <br /> Both Mr. Okello Oryem and Mr. Kandeebe counsel for the 2<sup>nd</sup> and 1<sup>st</sup> respondents respectively made submissions on the issue of bias and stated that there was no reason for the trial judge to disqualify himself because the allegations of bias had not been substantiated.<br /> <br /> After listening to the submissions of all counsel I have given a very serious thought to the matter. I have also read the dictum of the former chief justice of Uganda The Hon. S.W. Wambuzi in the G.M. Combine case C.A. No. 9 of 2000 cited in the case of MUSNGUZI G.J. V. AMAMA MBABAZI Election Petition No. 3 of 2001 which stated:-<br /> &nbsp;</div> <div align="left"> &ldquo;To conclude I must state that there is a growing tendency in these courts to levy false accusations of bias either to avoid certain judicial officers handling their cases or to cause delay in this disposal of cases. There is a growing tendency to allege corruption or bias when parties lose their cases. No one in this country has a right to choose which judicial officer shall determine his or her case. All judicial officers take the judicial oath to administer justice to all manner of people without fear or favour, affection or ill will. <u>Judicial officers have a duty to prevent delays on flimsy or unsubstantiated grounds.&rdquo;</u> (emphasis added).<br /> <br /> The principle is aptly stated in the above passage. It is simply that judicial officers should not succumb to whims of litigants that make allegations of bias every time they lose a case. This seems to be the case here because the question of bias was raised when two ruling went against the petitioner I have explained the circumstances under which the two rulings came about. They were tried like any other issue would be tried and reasons for the ruling clearly stated. So for someone to suggest that the manner of handling the petition has been biased is not being sincere. One may disagree with the reasons for the ruling but there was absolutely no bias in arriving at the decisions.<br /> <br /> The petitioner referred to a remark made on 31/7/2006 to make his allegation that the court was biased. But the petitioner has forgotten that there was a lot of discussion about the case especially his failure to file affidavits in support of the petition which he had filed on 26/4/2006. The lengthy discussion culminated in his being allowed more time to file the affidavits and serve them on the respondents by 2/8/2006. it is his failure to serve the affidavits in the time set that is causing more arguments about the issue. The rejection of the affidavits was in accordance with the principle that orders of court should always be adhered to unless court decides otherwise. It is not because court is biased against the petition that any of the decisions so far made were made.<br /> <br /> In the circumstances there is absolutely no reason for me to step down from the hearing of the case. I have tried the case in accordance with my judicial oath and I will continue to abide by that oath till conclusion of the trial. The application for me to step down from the trial of this petition is dismissed.<br /> <br /> Eldad Mwangusya<br /> <b><u>JUDGE</u></b><br /> <b>6/9/2006</b><br /> All parties as before except for addition of Ms. Ntamibirweki who is assisting Mr. Kandeebe. Ms. Nahihuka Mariam court clerk.<br /> <b><u>Court:</u></b><br /> Ruling signed and read in open court.<br /> Eldad Mwangusya<br /> <b>JUDGE<br /> 6/9/2006</b><br /> <br /> <b><u>Mr. Kasumba:</u></b><br /> In view of the ruling that has just been delivered by this Honorable court I seek for an adjournment to enable me discuss the implications of the three rulings so far delivered by this court. These ruling&rsquo;s have a far reaching implication to the petition especially the fact that further affidavits in support of the petition has been rejected by this Honorable court. The leaves only the petitioners affidavit in support of the petition on record. In view of these developments I wish to consult my client as to the next course of action that we may take either to continue with the petition or otherwise. There are sentimental and emotional feelings attached to election petitions. All these deciding to continue with the petition or otherwise. I pray for an adjournment to 8/9/2006 at 9.00 a.m. when I will infor court as to the next of action that the petitioner intends to take. I believe the time is reasonable in the circumstances.<br /> <br /> <b><u>Mr. Kandeebe:</u></b><br /> I oppose the application for an adjournment only in respect of the time. To me this morning is enough for whatever consultation he wishes to make. I pray that court gives counsel till this afternoon to enable him make his consultation. The whole of next week I am engaged in other petitions and I will be so engaged till the end of the month. In case court is inclined to grant any adjournment I pray for costs of to day and tomorrow because they had already been set down for hearing of this case.<br /> <br /> <b><u>Mr. Okello Oryem:</u></b><br /> I associate myself with submissions of Mr. Kandeebe. For the second respondent this petition is more serious that the petitioner appears to be taking it. The time table was set by court. The hearing of Electoral Petitions is very important. There are only three lawyers handling petitions at the Electoral Commission. If this matter was to be adjourned to Friday as proposed by my colleague I would not be able to appear because following the time table set by this court. I have fixed matters before other courts up to Thursday 28 and then again from 3<sup>rd</sup> October up to 15<sup>th</sup> that is the implication of an adjournment is to be granted till Friday.<br /> <br /> On the implications raised by Mr. Katumba there are only two either the petition is prosecuted on the evidence available or it is withdrawn.<br /> He does not need two days to consult on that. The problem is that the time prayed for by the petitioner is only available to him and not to all of us.<br /> Finally I wish to state that emotions have no place in courts of Law.<br /> In these circumstances I oppose the application for an adjournment till Friday. I have no objection for counsel&rsquo;s request for time to consult.<br /> I also requests for costs of to day if court is inclined to adjourn the matter.<br /> <b><u>Mr. Katumba:</u></b><br /> I concede that the time prayed is too long. I pray I should be allowed till tomorrow afternoon to report on results of my consultation with the petition.<br /> <br /> <b><u>Court:</u></b><br /> In view of the petitioners request for time to consult with the petitioner on the next course of action to take considering the rulings of this court I will grant on adjournment to 7/9/2006 t 2.30 p.m. Depending on the out come of the consultation a scheduling conference will be held after counsel for the petitioner has reported outcome.<br /> On costs I am the view that the petitioner might not have anticipated the developments in the trial of the case and he may not be faulted for this adjournment.<br /> In the circumstances the costs of this adjournment will abide the out come of the petition.<br /> Eldad Mwangusya<br /> <b><u>JUDGE</u></b><br /> <b>6/9/2006<br /> 7/9/2006</b><br /> All parties as before.<br /> Ms. Nakibuka Marriam court clerk.<br /> <br /> <b><u>Mr. Katumba:</u></b><br /> When this matter was adjourned it was for purposes of enabling me consult my client and report to court as to the next course of action to take in view of the ruling that had been given by this Hon. Court.<br /> <br /> Under sub (3) leave has to sought by way of an application which has been supported by an affidavit. I have discussed this issue with Mr. Kandeebe counsel for 1<sup>st</sup> respondent and Mr. for 1<sup>st</sup> respondent and Mr. Okello Oryem counsel for the 2<sup>nd</sup> respondent and they seem to have no objection to the withdrawal. The only issue remaining is that of costs and Mr. Okello Oryem does not insist on the 2<sup>nd</sup> respondent being paid costs by the petitioner. Each party would meet its own costs. As far as Mr. Kandeebe for the respondent is concerned he informed me. I have discussed this matter with the petitioner and this petitioner has decided to withdraw this petition because he felt that after rejection of the petition he did not have sufficient evidence to proceed with the petition.<br /> <br /> Rule 22 sub rules 1, 2 and 3 of the Parliamentary Elections (Election Petition Rules) govern withdrawal. Under sub (1) and (3) the petition can only be withdrawn with leave of court. That he would require costs to the tune of shs.10,000,000/=.<br /> <br /> <b><u>Mr. Okello Oryem:</u></b><br /> I did give due consideration to the withdrawal of the petition without a protracted trial and each party meets its own costs.<br /> <br /> The current prevailing transition is that the Electoral Commission cannot claim instruction fee. If I was to insist on costs it would amount to only shs.200,000= which is requisible. So I am not insisting on costs.<br /> <br /> <b><u>Mr. Kandeebe:</u></b><br /> I have no objection to the withdrawal of the petition without a formal application. Costs follow the event. I informed my learned friend that if I was to ask for costs on scale it would be in the region of shs.30 &ndash; 50,000,000=. But I also put into consideration the fact that the case has not gone full trial and asked the petitioner to refund only shs.10,000,000/= that the 1<sup>st</sup> respondent deposited and I have already used.<br /> <br /> <b><u>Mr. Katumba:</u></b><br /> I agree with my learned friend that costs follow the event and I appreciate his offer that we pay shs.10,000,000/= as full settlement of his costs. I pray that court leaves the issue of costs for me to discuss with Mr. Kandeebe.<br /> <br /> <b><u>Court:</u></b><br /> Counsel for the petitioner has applied for leave of court to withdraw the petition and both counsel for both respondents have no objection.<br /> Therefore under Rule 22(1) of Parliamentary Elections (Election Petition) Rules Leave is granted for withdrawal of the petition and it is withdrawn.<br /> On costs between the petitioner and the 1<sup>st</sup> respondent both counsel will have further discussion on the amount and if no agreement is reached the petitioner will pay the 1<sup>st</sup> respondent the taxed costs of this withdrawal.<br /> As between the petitioner and the 2<sup>nd</sup> respondent each party will meet its own costs.<br /> Eldad Mwangusya<br /> <b><u>JUDGE</u></b></div> <div align="left"> <b>7/9/2006</b><br /> <br /> <b>THE REPUBLIC OF UGANDA</b></div> <center> <b>IN THE HIGH COURT OF UGANDA AT NAKAWA<br /> ELECTION PETITION NO. 19 OF 2006</b></center> <br /> <p> <b>KAKANDE KENNETH PAUL ::::::::::::::::::::::::::: PETITIONER</b></p> <center> <b>VERSUS</b><br /> <b><font face="Times New Roman">3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </font></b></center> <p> <b><!-- Drawn Shape (ignored--not implemented yet) --></b><b>RUHINDI FRED</b><br /> <b><font face="Times New Roman">4.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </font></b><b>ELECTRORAL PETITION ::::::::::::::: RESPONDENTS</b><br /> <br /> <b><u>BEFORE: HON. MR. JUSTICE ELDAD MWANGUSYA:</u></b></p> <br /> <br /> <div align="left"> <b><u>RULING:</u></b><br /> This petition was filed under the Parliamentary Election Act by KAKANDE KENNETH PAUL (hereinafter referred to as the 1<sup>st</sup> and 2<sup>nd</sup> respondents respectively.) It was in respect of the Parliamentary elections that were held throughout the contrary on 23<sup>rd</sup> February 2006. The petitioner and the respondent with others contested for the Nakawa Division Constituency Parliamentary seat and at the end of the election the 1<sup>st</sup> respondent was declared the winner. The result of the Election was published in the Uganda Gazzette of 27<sup>th</sup> March 2006. Following the publication of the results the petitioner contested the outcome of the election and filed this petition on 26/4/2006. in the petition he alleged that the 1<sup>st</sup> respondent had committed a number of Electoral Offences and that the 2<sup>nd</sup> respondent failed to conduct the Election in accordance with the constitution and the Parliamentary Elections Act.</div> <div align="left"> &nbsp;</div> <div align="left"> The 1<sup>st</sup> respondent filed his reply to the petition on 15<sup>th</sup> May 2006 while that of the 2<sup>nd</sup> respondent had been filed on 8<sup>th</sup> May 2006. They both denied any wrong doing and prayed this court to dismiss the petition filed by the petitioner.</div> <div align="left"> &nbsp;</div> <div align="left"> The burden to prove the allegations in the petition lies on the petitioner and according to Rule 15(1) of the Parliamentary Election (Election Petitions) Rules all the evidence at the trial, in favour of or against the petition shall be by way of affidavits read in open court. This presupposes that by the time of the trial each party has adduced his or her evidence in form of affidavits and this evidence has been served on the other party</div> <div align="left"> &nbsp;</div> <div align="left"> As already pointed out this petition was filed on 26/4/2006, an affidavit in support of the petition was filed together with the petition. It was incumbent upon the petitioner to adduce all the other evidence he intended to rely on during the trial and serve it on the respondents who in turn would adduce their evidence against the petition. As it was no other evidence was adduced by the petitioner to support the allegation as a consequence of which the respondents never filed any other evidence against the petition.</div> <div align="left"> &nbsp;</div> <div align="left"> This petition was first called for mention on 24/7/2006. This was about three months from the time the petition was fled. The petitioner had had more than ample time to adduce his evidence supporting the petition. Instead Mr. Katumba Counsel for the petitioner informed court that he was not ready to proceed with the hearing of the petition because the petitioner was out of the country. Neither the 1<sup>st</sup> nor the 2<sup>nd</sup> respondents was ready for the hearing. The petition was set down for mention on 31/7/2006 and on this day all the parties and their counsel attended. The proceedings which are vital for this ruling are set out below:-</div> <br /> <p> <b><u>Court:</u></b></p> <div align="left"> The case was for a pre conference and it is noted that the petitioner has not filed evidence in form of affidavits to support the petition. By consent of all parties:<br /> <br /> <font face="Times New Roman">1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </font></div> <div align="left"> The petitioner will be allowed till 1/8/2006 at 5.00 p.m. to file the affidavits in support of the petitioner and serve them on the respondents by 2/8/2006 at 5.00 p.m.<br /> <font face="Times New Roman">2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </font>The respondents will file their affidavits in reply by 16/8/2006 at 5.00 p.m.<br /> <font face="Times New Roman">3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </font>The scheduling conference shall be held on 25/8/2006 at 9.00 a.m.<br /> <font face="Times New Roman">4.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </font>The hearing of the petition shall be held on 4<sup>th</sup> to 7<sup>th</sup> September 2006.</div> <div align="left"> The scheduling conference was not held on 25/8/2006 because counsel for the 1<sup>st</sup> respondent was bereaved. It was agreed that the scheduling conference would be held on 4/9/2006 and the actual hearing of the case would commence thereafter.<br /> <br /> When the case was called up for hearing 4/9/2006 Mr. Katumba counsel for the respondent informed court that he had served the respondents with the affidavits in support of the petition but that they had not responded. He stated that since an Election is a matter of Public Interest the respondents should be given more time to respond to the petitioners evidence. Alternatively he prayed that if court was to find that there was no proper service the petitioner should be allowed another two or three days to effect service of the affidavits.<br /> <br /> Both Mr. Kandeebe and Mr. Okello Oryem counsel for the 1<sup>st</sup> and 2<sup>nd</sup> respondents respectively opposed the application for the petitioner to be give more time to serve the respondents. They both denied having been served with the affidavits. They prayed that the affidavits be excluded and that the case proceeds with the evidence that is already on the court record.<br /> <br /> Mr. Katumba&rsquo;s application raises two issues. The first is whether there was proper service of the affidavits. The second is the fate of the affidavits in case court finds that they were not properly served.<br /> <br /> On the first issue it is my view that none compliance with a court order setting down the time when the affidavits should have been filed negates the service. It was clearly stated that the petitioner should file his affidavits on 1/8/2006 and serve by 2/8/2006 at 5.00 p.m. according to the affidavit of the process server he served the 1<sup>st</sup> respondent on 3/8/2006 at 1.16 p.m. and the 2<sup>nd</sup> respondent was served at 3.00 p.m. Both services were outside the time stipulated by court. To me it is immaterial that service was outside the stipulated time by a few hours or that in the circumstances prevailing it was difficult to comply with the court order as the affidavit of the process server seems to suggest. In such circumstances the petitioner should have applied to court for expansion of the time instead of trying to &lsquo;force&rsquo; service on the respondents. This should not have taken more a month to do and to condone such an inordinate delay would defeat the purpose of the parliamentary elections act that provides for expeditious trial of Electoral Petitions. The answer to the 1<sup>st</sup> issue is that the purported service of the affidavits on the two respondents was not proper and the fate of these affidavits is that they will not be admitted. They are excluded from the record of this petition.<br /> <br /> I am aware that court can allow filing of affidavits every the trial of the case proceeds. (See MATSIKO WINIFRED KOMUHANGI V. BAHIHUGA J. WINNIE (Election/Petition Appeal No. 9 of 2002) but the bulk of the affidavits should be filed at the time of filing the petition and others would be additional to the bulk of the evidence.<br /> <br /> Mr. Katumba also raised the public importance of an Election Petition. Unfortunately the petitioner has not demonstrated that he attaches such importance to the petition when he has failed to file affidavits in support of the petition for the last four months. I am not inclined to give the petitioner more time to adduce evidence.<br /> In the circumstances the affidavits filed in this court on 1<sup>st</sup> and 2<sup>nd</sup> August 2006 will be excluded from the trial which will proceed with the evidence already filed.<br /> <br /> Eldad Mwangusya<br /> <b><u>JUDGE</u></b><br /> <b>5/9/2006</b></div> <br /> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-b8e6667c4fb88bec3e3ef2ac5762ebd3"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/high-court/2006/34/high-court-2006-34.rtf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Mon, 27 Jul 2015 13:57:00 +0000 Anonymous 17257 at https://old.ulii.org Advocates Coalition For Development & Environment & 4 Ors V Attorney General & Anor ((Constitutional Petition No. 14 Of 2011)) [2011] UGCC 11 (15 November 2011); https://old.ulii.org/ug/judgment/supreme-court-uganda/2011/11 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/hr" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">HR</a></li><li class="field-item odd"><a href="/tags/development" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Development</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p><strong>THE REPUBLIC OF UGANDA<br /> IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA<br /> CONSTITUTIONAL PETITION NO.14 OF 2011</strong><br /> <br /> <strong>BETWEEN</strong><br /> <br /> 1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</p> <p><!-- Drawn Shape (ignored--not implemented yet) --><strong>ADVOCATES COALITION FOR </strong><br /> <strong>DEVELOPMENT</strong><strong> </strong><strong>AND ENVIRONMENT</strong><br /> <strong>2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>HON. ATIM A. O. BEATRICE</strong><strong>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; PETITIONERS</strong><br /> <strong>3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>ACTION AID UGANDA&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><br /> <strong>4.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>FORUM FOR WOMEN IN DEMOCRACY</strong><br /> <strong>5.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>CENTRE FOR PUBLIC INTEREST LAW</strong></p> <p>&nbsp;</p> <p><br /> <br /> <!-- Drawn Shape (ignored--not implemented yet) --><strong>AND</strong><br /> <strong>1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong></p> <p><strong>ATTORNEY GENERAL </strong><strong>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; RESPONDENTS</strong><br /> <strong>2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>THE PARLIAMENTARY COMMISSION&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><br /> <br /> <br /> <br /> <strong>CORAM</strong><strong> </strong><strong>:</strong><strong>&nbsp; </strong><strong>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>HON. JUSTICE A.E.N.MPAGI-BAHIGEINE, DCJ;</strong><br /> <strong>HON. JUSTICE S.B.K.KAVUMA, JA;<br /> HON. JUSTICE A.S.NSHIMYE, JA<br /> HON. JUSTICE M.S.ARACH AMOKO, JA;<br /> HON. JUSTICE REMMY KASULE, JA;</strong></p> <p>&nbsp;</p> <div>&nbsp;</div> <p>&nbsp;</p> <p><br /> <strong>JUDGEMENT OF </strong><strong>THE </strong><strong>COURT</strong></p> <div><br /> <strong>INTRODUCTION:</strong><br /> <br /> This petition is brought under <strong>Article 137</strong><strong>(3)(b)</strong> of the Constitution, the Constitutional Court (Petitions and References) Rules, S.I No. 91 of 2005 and all the other enabling laws.<br /> &nbsp;</div> <div>It was brought by Advocates Coalition for Development and Environment, Hon. Atim A.O Beatrice, Action Aid Uganda, Forum For Women In Democracy and the Centre For Public Interest Law, (hereinafter individually referred to as the 1<sup>st</sup>, 2<sup>nd</sup>, 3<sup>rd</sup>, 4<sup>th</sup> and 5<sup>th</sup> Petitioners respectively and together as the petitioners).</div> <div><br /> In the Petition, the petitioners variously describe themselves as hereunder:-<br /> <br /> 1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</div> <div>The 1<sup>st</sup>, 4<sup>th</sup> and 5<sup>th</sup> Petitioners are companies limited by guarantee engaged in and carrying out independent public policy research and advocacy, capacity building and lobbying to ensure respect for human rights, good governance, transparency and accountability in the conduct of the public affairs of the State of Uganda.<br /> 2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The 2<sup>nd</sup> Petitioner was a member of the 8<sup>th</sup> Parliament representing the Women of Kitgum District.<br /> 3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</div> <div>The 3<sup>rd</sup> Petitioner is a Non-Governmental Organisation duly registered under the laws of Uganda and with objectives and carrying on activities similar to those of the 1<sup>st</sup>, 4<sup>th</sup> and 5<sup>th</sup> Petitioners.<br /> 4.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</div> <div>The 1<sup>st</sup> Respondent is sued in its representative and constitutional capacity representing the Government of Uganda.<br /> 5.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The second Respondent is a body Corporate established under section 2(3) of the Administration of Parliament Act, Cap. 257 of the laws of Uganda with power to sue and be sued in its name.</div> <div><br /> The Petitioners make the following averments:-</div> <div><br /> (i)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</div> <div>That the petitioners have a constitutional and civic duty to defend and uphold the Constitution of Uganda and prevent wastage of public resources in accordance with Objective No.XXIX of the National Objectives and Directive Principles of State Policy and <strong>Article 17</strong> of the Constitution.<br /> (ii)&nbsp;&nbsp;&nbsp;&nbsp; That the Executive and Legislative arms of government, represented by the respondents in this petition, are bestowed with public trust to, <em>inter alia</em><em>,</em> manage public resources and run the affairs of the State of Uganda in accordance with the Constitution and the wishes and aspirations of the people of Uganda.<br /> (iii)&nbsp;&nbsp;&nbsp; That in January 2010, the respondents, without the authority of any law or motion of Parliament, caused to be paid to each member of Parliament a total sum of Uganda Shillings 20, 000, 000/= to monitor government programmes.<br /> (iv)&nbsp;&nbsp;&nbsp;&nbsp;</div> <div>That the said payment was done in total disregard of <strong>Articles </strong><strong>1(</strong><strong>1</strong><strong>), (2), 8A, </strong><strong>85(1) </strong>and<strong> 2, 154 (1) (a) </strong>and <strong>( b), 15</strong><strong>4</strong><strong> (2), 159</strong><strong>, </strong><strong>164</strong> , <strong>90(1), (2)</strong> - <strong>(4</strong><strong>)</strong> and <strong>94</strong> and <strong>Objective Principles of State Policy</strong> Nos. <strong>XXVI </strong>and <strong>XX1X</strong> of the Constitution of Uganda and was neither appropriated nor made under any enabling law and was an interference with the independence and autonomy of Parliament and was made contrary to its Rules of Procedure.<br /> (v)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</div> <div>That the legislative duty of monitoring government programs is not a function of an individual member of Parliament but rather, a duty executed through Committees of Parliament as provided for under <strong>Article</strong><strong>s</strong><strong> 90 (1) – (4) </strong>and <strong>94 </strong>of the Constitution and Part <strong>XXVI</strong> of the Rules of Procedure of the Parliament of Uganda.<br /> (vi)&nbsp;&nbsp;&nbsp;&nbsp;</div> <div>That payment by the 1<sup>st</sup> and 2<sup>nd</sup> Respondents of the sum of Ushs. 20 (Twenty) million to each member of Parliament and a total sum of Ushs 6.2 bn (Six billion Two Hundred Million), without authorization is a breach of trust and a violation of the sovereignty of the people of Uganda and is inconsistent with and/or in contravention of <strong>Objective XXVI</strong> of the <strong>National Objectives and Directive Principles of State Policy</strong> and <strong>Article 1, 2, 8A</strong> and <strong>164</strong> of the Constitution.<br /> (vii)&nbsp;&nbsp;&nbsp;</div> <div>That the act of receiving, using and/or refusing to return the said unlawful and unconstitutional payment by members of Parliament is an abuse of the public trust bestowed upon them and a negation of their duties to prevent wastage of public resources and is, therefore, inconsistent with and in contravention of <strong>Articles 1, 17(1) (i)</strong> and <strong>164(2)</strong><strong> </strong>and<strong> (3)</strong> of the Constitution.</div> <div><br /> The petitioners seek the following declarations:<br /> <br /> a)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</div> <div>A declaration that the acts of the 1<sup>st</sup> and 2<sup>nd</sup> Respondents of approving and paying to each individual member of Parliament a sum of 20,000,000/= is inconsistent with and in contravention of <strong>Article</strong><strong>s</strong><strong> 1(1), </strong><strong>(</strong><strong>2</strong><strong>)</strong> and (<strong>3), 85(1) </strong>and <strong>(2)</strong><strong>, 154(1) (a) </strong>and<strong> (b)</strong> and <strong>154(2)</strong> of the Constitution of Uganda.<br /> b)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; A declaration that the act of paying members of Parliament by the Respondents to monitor government programmes is in contravention of <strong>Articles 1, 79, 90(1), (2)</strong> and <strong>(3)</strong> of the Constitution and the Rules of Procedure made pursuant to the provisions of <strong>Article 90(3)</strong> of the Constitution.</div> <div><br /> The petitioners seek orders that:<br /> a)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</div> <div>The 1<sup>st</sup> and 2<sup>nd</sup> Respondent recover the Shs. 6.2 billion paid out to the members of Parliament in January 2011 and refund the same to the Consolidated Fund within one month from the date of judgment.<br /> b)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</div> <div>The Respondents be restrained from making payments to members of Parliament without following the provisions of the Constitution and the relevant laws.</div> <div>&nbsp;</div> <div>The Petition is accompanied by the affidavits in support sworn by Mr. Godber W. Tumushabe, that by the 2<sup>nd</sup> Petitioner together with her affidavit in rebuttal and her further supplementary affidavit in rebuttal of the respondents’ affidavits. Further affidavits in support of the petition are from Hon. Nabila Nagayi Sempala, and Hon. Erias Lukwago, both members of the 8<sup>th</sup> Parliament.</div> <div>&nbsp;</div> <div>These affidavits basically narrate the background of the petition and amplify the averments of the petitioners.</div> <div>&nbsp;</div> <div>The answers to the petition filed by the respondents are accompanied by affidavits sworn by the Clerk to Parliament, the Secretary to the Treasury and Ms. Eva Kabundu, a State Attorney at the 1<sup>st</sup> respondent’s Chambers.<br /> <br /> The respondents contend that the acts of the respondents complained of by the petitioners are neither inconsistent with nor in contravention of any of the Articles of the Constitution cited by the Petitioners or any other law. They contend, further, that the Petitioners are not entitled to the declarations and the orders they seek from court.</div> <div><br /> <strong>The i</strong><strong>ssues:</strong><br /> There are four agreed issues, namely:<br /> <strong>i)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong></div> <div><strong>W</strong><strong>hether the act of authorization, withdraw</strong><strong>al and </strong><strong>payment to each Member of Parliament a sum of Shs.20m was in contravention of Articles 1(1)(2) </strong>and<strong> (3), 79, 85 (1) </strong>and<strong> (2), </strong><strong>154(1)</strong><strong>,</strong><strong> (2)</strong><strong>,</strong><strong> (3) </strong>and<strong> </strong><strong>164 (2) </strong>of the Constitution.<br /> <strong>ii)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>Whether the act of paying individual members of Parliament to monitor Government programmes is inconsistent with Articles 79, 85(1), </strong>and<strong> (2) of the C</strong><strong>onstitution and </strong><strong>the </strong><strong>R</strong><strong>ules of procedure of Parliament</strong><strong> made pursuant to Article 90(3) in as far as the duties of members of Parliament</strong><strong> and the Committee</strong><strong>s</strong><strong> of the House are concerned.</strong><br /> <strong>iii)&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>Whether the act of receiving and using the said payment by Members of Parliament is an abuse of public trust bestowed upon them and a negation of their</strong><strong> duties to prevent waste of public resources and therefore inconsistent with and in contravention of Articles</strong><strong> </strong><strong>1, 17(1)(</strong><strong>i</strong><strong>), 164 (2) and (3) of the Constitution.</strong><br /> <strong>iv)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>Whether the parties are entitled to the reliefs sought.</strong></div> <div>&nbsp;</div> <div><strong>Representation:</strong></div> <div>At the hearing of the petition, learned counsel Muhumuza Kaahwa, Francis Tumusiime, Francis Gimara and Nicholas Opio represented the petitioners while Mr. Henry Oluka, Principal State Attorney assisted by Mr. Daniel Gantungo, State Attorney represented the 1<sup>st</sup> respondent and Ms. Stina Cherotich appeared for the 2<sup>nd</sup> Respondent.</div> <div><br /> <strong>The case for the Petitioners</strong>.<br /> <strong>Issue 1:</strong></div> <div>Arguing issue one, counsel for the Petitioners submitted that emoluments and such other facilities of Members of Parliament are determined by Parliament under <strong>Article 85,</strong> not the Minister of Finance and Speaker of Parliament. According to them, the budget of Parliament for the financial year 2010/2011 had no funds from which the members of Parliament could be facilitated to monitor government programmes. Counsel further submitted that <strong>Article</strong><strong>s</strong><strong> 154(3</strong><strong>)</strong> and<strong> (4</strong><strong>)</strong> prohibit withdrawal of money from the Consolidated Fund which is not authorized by law.<em> </em>Counsel cited Section 16 of the Public Finance and Accountability Act, and Regulations 38<strong> </strong>and 39 made under that Act. Counsel prayed court to find in the affirmative on this issue.</div> <div>&nbsp;</div> <div><strong>Issue 2:</strong></div> <div>Arguing issue two, counsel for the petitioners submitted that the functions of Parliament are provided for by <strong>Article 79(1)</strong> and that <strong>Article 90</strong> of the Constitution provides for and empowers Committees of Parliament, under Rules 133 and 161(d) to monitor government programmes. He further submitted that members of Parliament are not experts on National Agricultural Advisory Services, (NAADS) and that <strong>Article 90(3)</strong> pre-supposes the non-expert nature of Parliament. He contended that MPs could not, therefore, monitor government programmes. He also submitted that MPs already have a hefty-package of allowances for carrying out their activities. Concluding this issue, counsel submitted that at the time of the payment, the members of Parliament were busy campaigning and had only three months left to the end of their term of office and as such had no time to monitor NAADS and other government programmes. He asked court to find in the affirmative on this issue.</div> <div><br /> <strong>Issues 3 and 4:</strong></div> <div>On issues 3 and 4, counsel for the Petitioners submitted that the payment by the respondents and receipt by each member of Parliament of Shs. 20m was a breach of public trust contrary to <strong>Articles 1, 164</strong> and <strong>8</strong><strong>A</strong> and <strong>Objective 26</strong> of the National Objectives and Directive Principles of State Policy of the Constitution. He submitted that the Shs.20m was paid without guidelines and Terms of Reference. He further submitted that Public Trust is a fudiciary duty between the governor and the governed in accordance with <strong>Article 1 (3)</strong><strong> </strong>of the Constitution. He contended that when leaders misuse public funds, they must refund the same as provided for under <strong>Article 164(2)</strong> of the Constitution. He pointed out that <strong>Article 164(3)</strong> provides that Parliament shall monitor all public expenditure.</div> <div>&nbsp;</div> <div>Counsel submitted that the Shs 20m paid to each member of Parliament was taxed yet allowances to monitor government programmes should not be taxed. He further submitted that this payment was wrongly frontloaded from the 4<sup>th</sup> to the 2<sup>nd</sup> quarter of the Financial Year 2010/2011. Counsel prayed Court to find in the affirmative on these issues and grant the petitioners the reliefs they sought.</div> <div><br /> <strong>The case for the respondents:<br /> Issue 1</strong></div> <div>Submitting for the 1<sup>st</sup> Respondent, Mr. Henry Oluka stated that it was the case of the respondents that the acts of authorization, withdrawal and payment of the Shs 20m to each member of Parliament were not in contravention of <strong>Article</strong><strong>s</strong><strong> 1, </strong><strong>(2), </strong><strong>(3), 79, 85(1), 154(1)(2) </strong>and <strong>(3) </strong>and <strong>164(2)</strong> of the Constitution. Counsel submitted that <strong>Article 79 (1) </strong>gives Parliament power to make laws for the good governance of Uganda. Some of the laws that Parliament made are the Public Finance Act, No. 6 of 2003 and the Administration of Parliament Act, Cap 257 of the Laws of Uganda. The administration of Parliament, counsel pointed out, is undertaken by the Parliamentary Commission established under <strong>Article 87A</strong> of the Constitution. He submitted, further, that under S4(1) (b) of the Public Finance and Accountability Act, the Minister of Finance Considers requests for money from the Consolidated Fund as she did for the Shs 20m the subject of this petition.</div> <div>&nbsp;</div> <div>Counsel further submitted that the Speaker, as the head of Parliament and Chairman of the Parliamentary Commission is empowered to make financial estimates on expenditure under Section 6(f) of Cap 257. To counsel, the Speaker was not wrong to consult with the Minister of Finance who, under Section 3 (b) of the Public Finance and Accountability Act, 2003, supervises and monitors the public finances of Uganda. He, further still, submitted that it was not illegal for the Speaker to request for additional funding to facilitate members of Parliament to monitor government programmes and that this did not amount to contravention of <strong>Article 1(1)(2)</strong> and <strong>(3) </strong>of the Constitution. It was not an infringement of <strong>Article 79</strong><strong> </strong>either. The money paid out to the members of Parliament was part of emoluments or allowance covered by <strong>Article 85</strong> of the Constitution. Counsel contended, further, that the payment of Shs 20m to each member of the 8<sup>th</sup> Parliament was consistent with all the articles of the Constitution set out in issue one and was neither a contravention of the Administration of Parliament, the Public Finance and Accountability and the Appropriation2010/2011 Acts as well as the Regulations made under the Public Accountability Act.</div> <div>He prayed Court to find in favour of the respondents on issue one.<br /> <br /> <br /> <strong>Issue 2</strong></div> <div>With regard to issue two, counsel for the 1<sup>st</sup> Respondent submitted that the payment of Shs. 20m to each member of the 8<sup>th</sup> Parliament to monitor government programmes was neither inconsistent with nor in contravention of <strong>Articles 79</strong> and <strong>85</strong> of the Constitution or any of the Rules of Procedure of Parliament. He contended that as elected representatives of the people, members of Parliament are the agents of development for those very people they represent and as such, had the interest and duty to monitor government programmes in their constituencies.</div> <div>&nbsp;</div> <div>Counsel contended that the oversight function of Parliamentary Committees over the Executive neither prohibits nor replaces the individual member of Parliament’s function and duty to monitor government programmes. Emphasizing that the people have a right to development, counsel submitted that provisions relating thereto in the Constitution must be expansively interpreted looking at the Constitution as a whole. He prayed court to find that the payment of the Shs 20m to each member of the 8<sup>th</sup> Parliament was consistent with <strong>Articles 79</strong> and <strong>85</strong> of the Constitution.</div> <div><br /> <br /> <strong>Issue 3:</strong></div> <div>On this issue, counsel submitted that the payments made to the members of Parliament totaling to Shs. 6.2bn were embodied in the estimates of allowances of members of Parliament as per annexture “A2” to the affidavit in rebuttal of the 2<sup>nd</sup> petitioner. Counsel contended that his submissions on issues 1 and 2 showed that the actions of the Speaker, Clerk to Parliament, Secretary to the Treasury and the Minister of Finance were all consistent with the Constitution and the relevant enabling laws and, therefore, they did not breach the duty to prevent wastage of public resources.</div> <div><br /> <strong>Issue 4:</strong></div> <div>Regarding issue four, counsel submitted that the petitioners are not entitled to any of the remedies, reliefs declarations and orders they sought and that their petition had no merit. He prayed court to disallow the issue and dismiss the petition with costs.</div> <div>&nbsp;</div> <div>Arguing the case for the 2<sup>nd</sup> respondent, her counsel fully associated herself with the submissions of counsel for the 1<sup>st</sup> respondent and added that members of Parliament are elected individually in their constituencies and are, therefore, answerable to their constituents individually. She contended that it was a misconception for the petitioners to argue that the function of monitoring government programmes was limited to Committees of Parliament only since <strong>Article 90</strong> does not state anywhere that members of Parliament have no role, individually or otherwise, to monitor government programmes.</div> <div>&nbsp;</div> <div>She further submitted that the doctrine of the Separation Of Powers enshrined in the Constitution is intended to avoid unnecessary interference by one arm of government in the functions of the others. He referred court to the case of <strong>A</strong><strong>ttorney </strong><strong>G</strong><strong>eneral</strong><strong> vs </strong><strong>Maj. Gen. David </strong><strong>Tinyefunza </strong><strong>Supreme Court </strong><strong>Cons</strong><strong>titutional Appeal No.1 of 1997</strong><strong>.</strong></div> <div>&nbsp;</div> <div>Counsel contended that MPs were elected by the people as their representatives and therefore any decision of Parliament is the decision of the People. She pointed out that Parliament enacted the Appropriation Act, 2010/2011, which incorporated the budget estimates of the Parliamentary Commission. She emphasized that payments made under that Act are legal and not unconstitutional and that those payments needed no further Parliamentary approval. Counsel concluded by praying that the petition be dismissed with costs.</div> <div><br /> <br /> <br /> <strong>Reply by the petitioners</strong><br /> Counsel for the petitioners submitted, by way of reply, that it was the case of the petitioners that everything done was wrongly done.<br /> &nbsp;</div> <div>On the separation of powers, counsel submitted that there were procedures that were not followed and court can inquire into this under <strong>Article 137 (3)(b)</strong> of the Constitution. Counsel invited Court to consider the case of <strong>Patricia McK</strong><strong>enna vs An Taoiseach and</strong> <strong>Others (No. 2) [SC Nos. 361 and 366 of 1995] Ireland</strong>.</div> <div><br /> <strong>Principles of constitutional interpretation:</strong></div> <div>We consider the following to be the relevant principles of constitutional interpretation on the matter before Court.<br /> <br /> (1) The principles which govern the construction of statutes also apply to the construction of constitutional provisions. <strong>(The Republic vs EL Man</strong><strong>n</strong><strong> (1969</strong><strong>) E.A</strong><strong> 357.)</strong><br /> (i)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</div> <div>The widest construction possible in its context should be given according to the ordinary meaning of the words used, and each general word should be held to extend to all ancillary and subsidiary matters. In certain context, a liberal interpretation of the constitutional provision may be called for.<br /> (ii)&nbsp;&nbsp;&nbsp;&nbsp;</div> <div>A constitutional provision containing a fundamental right is a permanent provision intended to cater for all times to come and therefore, should be given a dynamic progressive and liberal flexible interpretation, keeping in mind the ideals of the people and their social economic and political-cultural values so as to extend fully the benefit of the right to those it is intended for. <strong>(South</strong> <strong>Dakota </strong><strong>vs.</strong><strong> North Carolina, <a class="autolink_findcases" href="/cgi-bin/LawCite?cit=192%20US%20268" title="View LawCiteRecord">192, US 268</a> <a class="autolink_findcases" href="/cgi-bin/LawCite?cit=1940%20LED%20448" title="View LawCiteRecord">1940 LED 448.)</a></strong><br /> (iii)&nbsp;&nbsp;&nbsp; The entire Constitution has to be read together as an integrated whole and with no one particular provision destroying the other, but rather each sustaining the other. This is the rule of harmony, completeness and exhaustiveness and the rule of paramouncy of the written Constitution. <strong>(Paul K. Ssemogerere and 2 others </strong><strong>vs.</strong><strong> AG </strong><strong> Supreme Court </strong><strong>Constitutional Appeal No. 1 of 2002)</strong><br /> (iv)&nbsp;&nbsp;&nbsp;&nbsp;</div> <div>No one provision of the Constitution is to be segregated from the others and be considered alone, but, all provisions bearing upon a particular subject are to be brought into view and be interpreted as to effectuate the greater purpose of the instrument.<br /> (v)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</div> <div>Judicial power is derived from the people and shall be exercised by courts established under the Constitution in the name of the people and in conformity with the law and with the values, norms and aspirations of the people and courts shall administer substantive justice without undue regard to technicalities <strong>(Article 126(1)</strong><strong> </strong>and <strong>(2) (e)</strong><strong> </strong>of the Constitution of Uganda, 1995.)<br /> (vi)&nbsp;&nbsp;&nbsp;&nbsp;</div> <div>The Constitution is the Supreme law of the land and forms the standard upon which all other laws are judged. Any law that is inconsistent or in contravention of the Constitution is null and void to the extent of the inconsistency. <strong>(Article 2(1) </strong>and<strong> (2)</strong> of the Uganda Constitution, 1995)<br /> (vii)&nbsp;&nbsp;&nbsp;</div> <div>Fundamental rights and freedoms guaranteed under the Constitution are to be interpreted having general regard to evolving standards of human dignity. See also the case of <strong>Uganda Law Society </strong><strong>vs.</strong><strong> Attorney General Constitutional Petition No. 18 of 2005.</strong></div> <div><br /> <strong>Court’s consideration of the issues</strong></div> <div>Keeping in mind the above principles, we shall now proceed to consider the framed issues.</div> <div><br /> <br /> <br /> <strong>Issue 1:</strong><br /> The gist of issue one is the Petitioner’s complaint that the acts of authorization, withdrawal and payment of Shs. 20m to each member of the 8<sup>th</sup> Parliament was unconstitutional by reason of being inconsistent with and in contravention of <strong>Articles 1(1), (2)</strong> and <strong>(3), 79, 85(1)</strong> and <strong>(2), 154 (1)</strong><strong>,</strong><strong> (2)</strong> and <strong>(3)</strong> and <strong>164 (2)</strong> of the Constitution.</div> <div><strong>Article 1</strong> provides:</div> <div><strong>“</strong><strong>Article </strong><strong>(1)&nbsp;&nbsp;&nbsp;&nbsp; All power belongs to the people who shall exercise their sovereignty in accordance with this Constitution.<br /> (2)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Without limiting the effect of clause (1) of this article, all authority in the State emanates from the people of Uganda; and the people shall be governed through their will and consent.<br /> (3)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; All power and authority of Government and its organs derive from this Constitution, which in turn derives its authority from the people who consent to be governed in accordance with this Constitution.</strong></div> <div><strong>(4)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>………………………………………………………………………………………..</strong><strong>.”</strong></div> <div>&nbsp;</div> <div><strong>Article 79</strong> provides:</div> <div><strong>“</strong><strong>Article </strong><strong>79 </strong><strong>(1)&nbsp; Subject to the provisions of this Constitution, Parliament shall have power to make laws on any matter for the peace, order, development and good governance of Uganda.<br /> (2) &nbsp;&nbsp;&nbsp;&nbsp; Except as provided in this Constitution, no person or body other than Parliament shall have power to make provisions having the force of law in Uganda except under authority conferred by an Act of Parliament.<br /> (3)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Parliament shall protect this Constitution and promote the democratic governance of Uganda.”</strong></div> <div><br /> <strong>Article 85 </strong>provides:</div> <div><strong>“</strong><strong>Article 85 </strong><strong>(1)&nbsp; A member of Parliament shall be paid such emoluments, such gratuity and pension, and shall be provided with such facilities, as may be determined by Parliament.<br /> (2)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; A member of Parliament shall not hold any office of profit or emolument likely to compromise his or her office.”</strong></div> <div>&nbsp;</div> <div><strong>Article 154 </strong>provides:<br /> “<strong>Article 154 (1)</strong> <strong>No monies shall be withdrawn from the Consolidated Fund except—</strong><br /> <strong>(a)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong></div> <div><strong>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; to meet expenditure charged on the fund by this Constitution or &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; by an Act of Parliament; or</strong><br /> <strong>(b)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>where the issue of those monies has been authorized by an Appropriation Act, a Supplementary Appropriation Act or as provided under clause (4) of this Article.</strong></div> <div><strong>(2)</strong><strong> No monies shall be withdrawn from any public fund of Uganda other than the Consolidated Fund, unless the issue of those monies has been authorised by law.</strong><br /> <strong>(3)</strong><strong> No monies shall be withdrawn from the Consolidated Fund unless the withdrawal has been approved by the Auditor General and in the manner prescribed by Parliament.</strong><br /> <strong>(1)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong></div> <div><strong>……………………………………………………………………………..</strong><br /> (2)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</div> <div>………………………………………………………………………………………..<br /> <strong>(a)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong></div> <div><strong>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; ……………………………………………………</strong><br /> <strong>(b)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>…………………………………………………..”</strong></div> <div>&nbsp;</div> <div><strong>Article 164 (2</strong>) provides:</div> <div><strong>“Article 164</strong><strong>(1)&nbsp; ………………………………………………………………………</strong></div> <div><strong>(2)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Any person holding a political or public office who directs or concurs in the use of public funds contrary to existing instructions shall be accountable for any loss arising from that use and shall be required to make good the loss even if he or she has ceased to hold that office.”</strong><br /> &nbsp;</div> <div>We note that Parliament, duly elected by the people of Uganda, enacted the Administration of Parliament Act, Cap 257 of the Laws of Uganda, the Appropriation Act 2010/2011 and the Public Finance and Accountability Act, Act 6 of 2003, all of them pursuant to <strong>Article 79</strong> of the Constitution.</div> <div>&nbsp;</div> <div>A need for additional funds for members of the 8<sup>th</sup> Parliament to monitor government programmes was identified. The Speaker of Parliament, as Chairperson of the Parliamentary Commission and acting together with the other authorized officers of the Commission, who included the Commission Secretary, initiated the process of procuring the needed funds from the Ministry of Finance. Prior to that, the Parliamentary Commission, according to the evidence on record, had considered the money it needed for its operations in the Financial Year (FY), 2010/2011 and submitted it to Parliament. Parliament approved the same as part of the Appropriation Act 2010 – 2011 under programme 2 with a total of Shs. 59 bn. See Annexture “A2” to the affidavit in rebuttal of Hon Atim Anywar Odwongo Beatrice, the 2<sup>nd</sup> Petitioner. This annexture clearly shows at page 24 the said approved amount of Shs. 59bn which amount included, among other funds, money for members of Parliament’s salaries and allowances. It is thus an established fact that the money, the subject of this petition had already been approved and voted by Parliament to be used as salaries and allowances by members of Parliament in the FY 2010/2011. What happened was that this already voted for and allocated amount of Shs. 6.2 bn, was accessed by Parliament by frontloading the same from the 4<sup>th</sup> to the 2<sup>nd</sup> quarter of the FY 2010/2011. This was done after obtaining the approval of the relevant authority in the Ministry of Finance Planning and Economic Development.</div> <div>&nbsp;</div> <div>The Ministry of Finance gave its approval acting under the powers conferred on it under Regulation (Reg.) 39 of the Public Finance and Accountability Regulations, which provides:</div> <div><strong>Regulation 39&nbsp;&nbsp;&nbsp; Virements or re-allocations within a vote.</strong></div> <div><strong>“39 (1)</strong><strong> The Minister has discretionary powers to vary the amount allocated within a vote, provided that—</strong><br /> <strong>a)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong></div> <div><strong>the total amount authorized by Parliament for that vote in an Appropriation Act is not exceeded;</strong><br /> <strong>b)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>the variation is not so large or important as to represent a change in policy;</strong><br /> <strong>c)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>the changes made are not novel or contentious; and</strong><br /> <strong>d)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>any virements made will from the outset not involve heavy liabilities in future years.</strong><br /> <strong>(1)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong></div> <div><strong>The power of the Minister to vary the amount allocated within a vote may be delegated in writing to the Secretary to the Treasury or accounting officer.</strong><br /> <strong>(2)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong> All virements within a vote shall be the subject of an application for virement addressed to the Secretary to the Treasury and copied to the Accountant General and the Auditor General—</strong><br /> <strong>a)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong></div> <div><strong>showing the amounts involved;</strong><br /> <strong>b)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>identifying the items where extra provision is required;</strong><br /> <strong>c)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>identifying, where appropriate, any delegated authority for the re-allocation;</strong><br /> <strong>d)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>giving appropriate explanation for the shortfall in the original provision;</strong><br /> <strong>e)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>clearly identifying the items with the anticipated savings; and</strong><br /> <strong>f)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>giving appropriate explanations and the reasons for the savings being available.</strong><br /> <strong>(3)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong></div> <div><strong>In order to ensure that the savings identified are genuine, items from which funds have been transferred will no longer be eligible for the provision of additional funds by a Supplementary Appropriation Act or subsequent virements.</strong><br /> <strong>(4)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong> In the absence of delegated authority, applications for virement shall be submitted by the Secretary to the Treasury for consideration by the Minister, and no such application will be approved by the Secretary to the Treasury without the specific authority of the Minister.</strong><br /> <strong>(5)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong> On approval of an application under sub regulation (5) of this Regulation, a warrant for virement within a vote shall be issued to the accounting officer concerned and copied to the Accountant General; and on receipt of his or her copy of the warrant, the Accountant General may, where necessary, issue an amended accounting warrant to the accounting officer reducing the amount authorized on the item which has had its available funds reduced.</strong><br /> <strong>(6)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong> Expenditure on the item which has had its available funds increased by the accounting warrant shall at all times remain within the limits of any accounting warrant currently in force.</strong></div> <div><br /> The Ministry did not go by way of approval of a supplementary under Reg. 38 for, this was not necessary since there was enough money to cover the item of the expenditure sought from the already approved amount. Regulation 38 was, therefore irrelevant to the procurement of the money the subject of this Petition.</div> <div>&nbsp;</div> <div>In his affidavit, the Secretary to the Treasury elaborately explained the whole process in the following terms:</div> <div>&nbsp;</div> <div>On the 23<sup>rd</sup> of November 2010, the Clerk to Parliament wrote to the Hon. Minister of Finance requesting for a supplementary funding of Ug.Sh. 6.54 billion to enable him pay members of Parliament allowances for purposes of monitoring government programmes. The Clerk to Parliament was reacting to the Rt. Hon. Speaker’s letter dated 23<sup>rd</sup> November 2010 on the same subject. On the 24<sup>th</sup> November 2010 the Hon. Minister of Finance replied to the Clerk to Parliament informing him that due to pressures being exerted on the budget at that time, it was not possible to issue a supplementary as requested. Consequently, the Minister advised the Clerk to reallocate within the available Parliamentary annual balances for the FY 2010/2011 to meet the required expenditure. Pursuant to that advice, the Clerk to Parliament wrote to the Secretary to the Treasury confirming that the allowances for Members of Parliament on which supplementary funds were required had enough balances to cover the necessary expenditure required subject to such funds being frontloaded from the forth to the second quarter of the financial year and that all he had to do was to adjust the recurrent cash limit for the second quarter by the amount required and frontload the budgeted fund by the same amount. This meant that there was no need for a supplementary budget or approval of Parliament for those funds since the item, allowances for Members of Parliament, had already been approved in 2010/2011 FY. It only required the permission of the Secretary to the Treasury to allow Parliament to spend amounts in allowances budgeted for in the second quarter, which they would have spent, under normal circumstances, in the 4<sup>th</sup> quarter of the FY 2010/2011.</div> <div>&nbsp;</div> <div>This Court received further uncontroverted evidence of the Secretary to the Treasury that in compliance with Regulation 39, he authorized the frontloading of the money from the fourth to the second quarter.</div> <div>&nbsp;</div> <div>We are satisfied, on the evidenced before us that the Minister of Finance and Economic Development, who is mandated by the Constitution and the law to supervise and monitor the public finances of Uganda under S.3 (b) of the Public Finance and Accountability Act, the Speaker of Parliament who, under S.2(4) of the Administration of Parliament Act, is the Chairperson of the Parliamentary Commission, the Secretary to the Treasury and the Clerk to Parliament, all acted in accordance with the law in the process that led to the authorization, withdrawal and payment of Shs. 20m to each member of the 8<sup>th</sup> Parliament.</div> <div><br /> In as far as the payments in issue were made in accordance with laws duly enacted by Parliament, we are not persuaded that the acts complained of by the Petitioners in this Petition in any way contravened <strong>Article 79</strong> of the Constitution. By enacting the Appropriation Act 2010/2011, Parliament approved the payments in issue in the Petition in strict compliance with <strong>Article 85</strong> of the Constitution. There was, therefore, no need for further Parliamentary approval by resolution or otherwise.</div> <div>&nbsp;</div> <div>Similarly, we find that the payment was done in compliance with <strong>Article 154</strong> of the Constitution since the same was effected under laws duly enacted by Parliament and with all the requisite approvals. Therefore, no money relevant to this petition was withdrawn from the Consolidated Fund without Parliamentary approval.</div> <div>&nbsp;</div> <div><strong>Article 164</strong> deals with Accountability regarding public funds and <strong>164 (2) </strong>specifically provides for accountability by any person holding a political or public office who, unlawfully, causes loss of public funds by requiring him/her to make good such loss. The Shs. 20m paid out to and received by each of the members of the 8<sup>th</sup> Parliament was part of the funds approved for use by Parliament under programme 2 as indicated above. We are convinced that the Accounting Officers acted within the mandate emanating from Regulation 39 (supra).</div> <div><br /> We, therefore, find that the acts of authorizing, withdrawal and payment of Shs. 20m to each of the member of the 8<sup>th</sup> Parliament were neither inconsistent nor in contravention of <strong>Articles 1(1), (2)</strong> and <strong>(3), 79, 85 (1)</strong> and <strong>(2), 154 (1) (2)</strong> and <strong>(3)</strong> and <strong>164(2)</strong> of the Constitution. We, therefore, find in the negative on this issue.</div> <div><br /> <strong>Issue 2:</strong></div> <div>The gist of issue 2 is the petitioner’s complaint that the act of paying individual members of Parliament to monitor government programmes was inconsistent with <strong>Articles 79, 85 (1)</strong> and <strong>(2)</strong> of the Constitution and the Rules of Procedure of Parliament made pursuant to <strong>Article 90(3)</strong> of the Constitution. To the petitioners, the function of monitoring government programmes was the sole preserve of Parliamentary Committees.</div> <div>&nbsp;</div> <div>We have already dealt with <strong>Articles 79</strong> and <strong>85</strong> of the Constitution in so far as they related to the payments of the money the subject of this petition in our resolution of issue one. We need not repeat that here.</div> <div><strong>Article 90</strong> provides:<br /> “<strong>Article 90&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Committees of Parliament</strong><br /> <strong>(1)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong></div> <div><strong>Parliament shall appoint committees necessary for the efficient discharge of its functions.</strong><br /> <strong>(2)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>Parliament shall, by its rules of procedure, prescribe the powers, composition and functions of its committees.</strong><br /> <strong>(3)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>…………………………………………………………………………….</strong><br /> <strong>(a)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong></div> <div><strong>……………………………………………………………………………….</strong><strong>;</strong><br /> <strong>(b)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>………………………………………………………………………….</strong><strong>;</strong><br /> <strong>(c)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>……………………………………………………………………………..</strong><strong>—</strong><br /> <strong>(i)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong></div> <div><strong>……………………………………………………………………..</strong><strong>;</strong><br /> <strong>(ii)&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>………………………………………………………………..</strong><strong>and</strong><br /> <strong>(iii)&nbsp;&nbsp;&nbsp; </strong><strong>……………………………………………………………………..</strong><strong>.”</strong></div> <div><strong>Article 94</strong><strong>,</strong> which we find relevant to the Rules of Procedure of Parliamentary Committee provides:</div> <div>&nbsp;</div> <div><strong>“</strong><strong>Article </strong><strong>94</strong><strong>(1)&nbsp;&nbsp; </strong><strong>Subject to the provisions of this Constitution, Parliament may make rules to regulate its own procedure, including the procedure of its committees.</strong></div> <div><strong>(2) </strong><strong>…………………………………………………………………</strong><br /> <strong>(3) &nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>………………………………………………………………</strong><strong>.</strong><br /> <strong>(4) </strong><strong>…………………………………………………………………</strong><br /> <strong>(a)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong></div> <div><strong>…………………………………….</strong><strong>;</strong><br /> <strong>(b)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>………………………………..</strong><strong>;</strong><br /> <strong>(c)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>…………………………………….</strong><strong>; and</strong><br /> <strong>(d)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>…………………………………..</strong><strong>.</strong><strong>”</strong></div> <div>&nbsp;</div> <div>We have carefully considered <strong>Article 164 (3)</strong> of the Constitution, Rules 90, 94, 133 and 161 of the Rules of Procedure of Parliament. By virtue of <strong>Article 164 (3)</strong><strong>,</strong> Parliament is empowered to monitor all expenditure of public funds. In our view, monitoring government expenditure does not stop at examining papers at the Public Accounts Committee meetings only or indeed at any other Parliamentary Committee. It includes following the money to the ground where it is alleged to have been spent.</div> <div>&nbsp;</div> <div>There is nothing in the Constitution or indeed in any other law or any of the said Rules of Procedure of Parliament that prohibits a member of Parliament, individually or otherwise, from monitoring government programmes in his/her constituency. In addition to this, we hold the view that the overall functions of Parliament under <strong>Article 79</strong> of the Constitution of making laws on any matter for peace, order, development and good governance of Uganda, read together with <strong>Article 164(3)</strong> are inclusive, rather than exclusive, of the responsibility of an individual member of Parliament carrying out a monitoring role in addition to other bodies or persons in that member’s constituency.</div> <div>&nbsp;</div> <div>Further, we accept as correct the submission by counsel for the respondents that the members of Parliament are individually agents of development in their respective constituencies with interest and duty to individually monitor government programmes. This is good sense. We also note from the evidence before us that the Shs. 20m paid to each member of the 8<sup>th</sup> Parliament was for monitoring government expenditure on all government programmes on the ground and not (NAADS) only.</div> <div>&nbsp;</div> <div>We observe that the timing of the payment may appear unsuitable but, that notwithstanding, no constitutional provision was breached in our considered view. It may also be true that not all members of the 8<sup>th</sup> Parliament may have been experts in certain disciplines but they were the owners of those programmes together with their Constituents. It is then not farfetched to say that they could competently monitor, even if only politically, what was on the ground in their respective constituencies regarding government programmes.</div> <div>&nbsp;</div> <div>We note the submission by counsel for the 2<sup>nd</sup> respondent to the effect that under the doctrine of the Separation of Powers this Court should not question the acts of approval, withdrawal and payment of the money, the subject of this petition, by the 1<sup>st</sup> and 2<sup>nd</sup> respondents and of the receipt and utilization of the same by the members of the 8<sup>th</sup> Parliament who received and used it. This Court is acutely alive to the operation of the said doctrine of the Separation of Powers as expounded by the Supreme Court in <strong>Attorney General </strong><strong>vs.</strong><strong> Maj. General David Tinyefunza</strong> (supra). We however, do not accept the said submission by counsel for the 2<sup>nd</sup> respondent. This Court has not exceeded the parameters set in the cited case in considering the matters raised in this petition. It has acted within its jurisdiction under <strong>Article 137</strong> of the Constitution.</div> <div>&nbsp;</div> <div>Counsel for the petitioners also contended that it was erroneous for the Shs. 20m paid to each Member of the 8<sup>th</sup> Parliament to have been taxed. The Court is not in the instant petition concerned with how taxes are deducted and remitted to taxing authorities. This does not have a direct bearing on the principle under Courts’ consideration. We, therefore, find in the negative on issue two.</div> <div>&nbsp;</div> <div><strong>Issue 3:</strong><br /> The gist in issue 3 is the complaint by the petitioners that the acts of receiving and using Shs. 20m by each of the member of the 8<sup>th</sup> Parliament was an abuse of public trust bestowed upon them and a negation of their duties to prevent waste of public resources in contravention of <strong>Articles 1, </strong><strong>8A, </strong><strong>17(1) (i),</strong> <strong>164(2)</strong> and <strong>(3)</strong> of the Constitution.<br /> <strong>Article 17</strong> provides:</div> <div>“<strong>Article 17&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Duties of a Citizen.</strong><br /> <strong>(1)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong></div> <div><strong>It is the duty of every citizen of Uganda—</strong><br /> <strong>(a)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong></div> <div><strong>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; ……………………………</strong><br /> <strong>(b)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>……………………………</strong><br /> <strong>(c)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; …………………………..</strong><br /> <strong>(d)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>…………………………..</strong><br /> <strong>(e)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>……………………………</strong><br /> <strong>(f)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; ……………………………</strong><br /> <strong>(g)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; ……………………………</strong><br /> <strong>(h)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>……………………………</strong><br /> <strong>(i)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; to combat corruption and misuse or wastage of public &nbsp;&nbsp;&nbsp; property;”</strong></div> <div><strong>Article 8A</strong> provides:</div> <div>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; “<strong>Article 8 (A)&nbsp;&nbsp;&nbsp; </strong><br /> <strong>(1)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong></div> <div><strong>Uganda shall be governed based on principles of </strong><strong>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>national interest and common good enshrined in the </strong><strong>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>national objectives and directive principles of state </strong><strong>&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>policy.</strong><br /> <strong>(2)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong> Parliament shall make relevant laws for purposes of </strong><strong>&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>giving full effect to clause (1) of this Article.”</strong></div> <div><strong>Objective No. (XXVI) </strong>of the National objectives of State Policy provides:</div> <div><br /> <strong>“</strong><strong>XXVI </strong><strong>(i)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; All public offices shall be held in trust for the people.</strong></div> <div><strong>(ii)&nbsp;&nbsp;&nbsp;&nbsp; All persons placed in positions of leadership and responsibility shall, in their work, be answerable to the people.<br /> (iii)&nbsp;&nbsp;&nbsp; All lawful measures shall be taken to expose, combat and eradicate corruption and abuse or misuse of power by those holding political and other public offices.”</strong></div> <div>&nbsp;</div> <div>We have already shown in this judgment in our resolution of issues one and two above how the payments made to the members of the 8<sup>th</sup> Parliament were lawfully made with all the required approvals. We have no evidence that any of that money was used by any of the recipients of the same in a way that amounted to abuse of public trust bestowed by the Constitution on those members of Parliament or indeed on any other public official. Similarly, no satisfactory evidence has been adduced to Court to show that that money was used by any of its recipients in a way that amounted to a negation of the duty of any of such a Member of Parliament to prevent wastage of public resources in contravention of any of the Constitutional Provisions cited. It is trite law that Courts of law act on credible evidence adduced before them and do not indulge in conjecture, speculation, attractive reasoning or fanciful theories. See <strong>Okale</strong><strong> vs Republic <a class="autolink_findcases" href="/cgi-bin/LawCite?cit=1965%20EA%20555" title="View LawCiteRecord">1965 EA 555</a>, Kanalusasi vs Uganda [1998 – 1990] HCB </strong>and <strong>Silaagi Buroro Gordon vs Uganda Court of Appeal Criminal Appeal No. 122/2005, </strong>(unreported).<br /> <br /> We, therefore, find that the act of receiving and using the Shs. 20m paid to each of the members of the 8<sup>th</sup> Parliament by those who chose to use it, was not an abuse of public trust bestowed upon those members of Parliament. It was not a negation of their duty to prevent waste of public resources or corruption either. It was, therefore, not in contravention of <strong>Articles 1, 17 (1) (i), 164 (2)</strong> and <strong>(3)</strong> and National Objectives and Direct Principles of State Policy Nos <strong>XXVI </strong>and <strong>XXVII</strong> of the Constitution.</div> <div>&nbsp;</div> <div>We, consequently, find in the negative on this issue too.</div> <div><br /> <strong>Issue 4</strong></div> <div>Issue 4 is about the reliefs sought by the petitioners. Having held as we have, on issues 1 to 3, we find that the petitioners are not entitled to any of the remedies, reliefs and declarations sought and we decline to grant any.</div> <div><br /> In the result, this petition fails and is dismissed for lack of merit.</div> <div>Each party shall bear their own costs.</div> <div><br /> Dated at Kampala this…16<sup>th</sup> …..day of …November....2011<br /> <br /> <br /> &nbsp;</div> <p><strong>………………………………………………………….<br /> A.E.N.MPAGI-BAHIGEINE</strong><br /> <strong><u>DEPUTY CHIEF JUSTICE</u></strong><strong><u>/PRESIDENT CONSTITUTIONAL COURT</u></strong><br /> <br /> <br /> <br /> <br /> <br /> <strong>……………………………………………….………<br /> S.B.K.KAVUMA</strong><br /> <strong><u>JUSTICE OF APPEAL</u></strong><strong><u>/CONSTITUTIONAL COURT</u></strong></p> <p><br /> <br /> <br /> <br /> &nbsp;</p> <p><strong>………………………………………………………<br /> A.S.NSHIMYE</strong><br /> <strong><u>JUSTICE OF APPEAL</u></strong><strong><u>/CONSTITUTIONAL COURT</u></strong></p> <p>&nbsp;</p> <p><br /> <br /> &nbsp;</p> <p><strong>………………………………………………………</strong></p> <p><strong>M.S.ARACH AMOKO</strong><br /> <strong><u>JUSTICE OF APPEAL</u></strong><strong><u>/CONSTITUTIONAL COURT</u></strong><br /> <br /> <br /> <br /> <strong>………………………………………………..<br /> REMMY KASULE</strong></p> <p><strong><u>JUSTICE OF APPEAL</u></strong><strong><u>/CONSTITUTIONAL COURT</u></strong></p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-3b6093f4b323b8ad3b7fab4efd7f8b4a"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/constitutional-court/2011/11/constitutional-court-2011-11.rtf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Mon, 27 Jul 2015 13:38:33 +0000 Anonymous 15848 at https://old.ulii.org