THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
CIVIL DIVISION
MISC. CAUSE NO.296 OF 2013
ELECTORAL COMMISSION :::::::::::::::::::::::::::::::::::: APPLICANT
VERSUS
1. ACTION PARTY (AP)
2. BRIDGE PARTY (BP)
3. PROGRESSIVE ALLIANCE PARTY (PAP)
4. UGANDA MANDATE PARTY (UMP)
5. NEW ORDER DEMOCRACY (NOD)
6. PEOPLE’S INDEPENDENT PARTY (PIP)
7. MOVEMENT FOR DEMOCRATIC CHANGE (MDC) RESPONDENTS
8. NATIONAL REDEMPTION PARTY (NRP)
9. MOVEMENT VOLUNTEER MOBILIZER’S
ORGANIZATION (MVMO)
10 REFORM PARTY (RP)
11. ATTORNEY GENERAL
BEFORE: HON. JUSTICE STEPHEN MUSOTA
RULING
The Electoral Commission filed this application by way of Notice of Motion under Rule 17 of the Political Parties and Organizations (Appeals and Applications) Rules 2005 for orders that the respondent parties be deregistered as political parties, and for the costs of the application to be provided for. The respondent parties are:-
- Action Party (AP)
- Bridge Party (BP)
- Progressive Alliance Party (PAP)
- Uganda Mandate Party (UMP)
- New Order Democracy (NOD)
- People’s Independent Party (PIP)
- Movement for Democratic Change (MDC)
- National Redemption Party (NRP)
- Movement Volunteer Mobilizer’s Organization (MVMO)
- Reform Party (RP)
The 11th Respondent is the Attorney General.
The grounds of the application are that:-
- The respondents are registered Political Parties in Uganda.
- The law requires the 1st to 10th respondents to submit to the applicant a written declaration stating the source of their funds and other Assets of the Political Party.
- The applicant sent several reminders to the respondents requiring them to declare their assets and liabilities to no avail.
- It is in the interest of justice that this application be granted.
- It is just and equitable that the respondents be deregistered as Political Parties and with costs.
The Notice of Motion by the applicant is supported by the affidavit of one Byakagaba Patrick a Principle Election Officer in the applicant’s legal department and in charge of the Political Parties Desk. He deponed confirming that the ten respondents are registered Political Parties as provided for under the Constitution and the Political Parties Organization Act 18 of 2005. They were mandated to contribute and participate in the National Politics of the country. Their Certificates of Registration are attached to this affidavit and are collectively marked as Annexture ‘A’. That the applicant is empowered to regulate the financing and functioning of Political Parties and Organizations. That the 1st to 10th respondents are required to submit a written declaration stating the sources of funds and other assets of each of them and submit the same after the first year of registration or within such time as the applicant may direct and thereafter annually submit to the applicant a written declaration stating the sources and assets of each party.
The deponent further avers that the applicant sent several notices to the respondent parties requiring them to submit written declarations stating the source of funds and other assets and liabilities and proof of service thereof is annexed as ‘C’. However, the respondent parties ignored and/or refused to submit any written declaration stating the source of their funds, Assets and Liabilities to the applicant since registration.
In an attempt to secure the same, the applicant invited the respondents for a meeting to forge a way forward on 14th August 2008 as per Annexture ‘D’ and sent several other notices to the respondent parties as per Annextures ‘E’ and ‘F’ and advertised in the Daily Monitor and Observer Newspapers inviting them for a meeting with the applicant as per Annexture ‘G’ but the respondents ignored the meeting with no explanation to the applicant.
That it was at this point that the applicant in its meeting of 9th April 2013 took a decision to proceed to apply to deregister the respondent parties and the parties were duly informed as per Annexture ‘H’. Despite this, the respondent parties took no steps to appeal the decision or even consult the applicant.
Only the 7th, 9th, 10th and 11th respondents filed affidavits in reply.
In its affidavit in reply, the Attorney General who is the 11th respondent through the Principle State Attorney Kiyingi Josephine avers that the application against it is misconceived, it lacks merit and it is bad in law because it is not the Attorney General but rather the applicant which is empowered to regulate the financing and functioning of the Political Parties and Organizations as by law prescribed. Further that the applicant has not shown any sufficient evidence why the Attorney General is being sued as a nominal defendant. The Attorney General prayed that the claim against it be struck out with costs.
In its affidavit in reply, the 7th respondent, the Movement For Democratic Change through its president Mutiibwa Johnson deponed that on 26th October 2007, its Secretary General wrote to the Secretary to the applicant informing him about compliance for the year 2005 as Annexture ‘C’. That on 5th December 2008, MDC submitted its audited report for the year 2005 and the same was received by the applicant as shown in Annexture ‘D’. Further that on 8th February 2007, the MDC submitted its audited report for the year 2006 and the same was received by the Electoral Commission as per Annexture ‘E’ and on 23rd March 2009, MDC submitted its audited report for 2007 and was received as per Annexture ‘F’.
The 7th respondent prayed that this matter be settled out of court and in the interest of democracy, this application should not be granted.
In its affidavit in reply the 9th respondent Movement Volunteer Mobilizers Organization (MVMO) through its president Nyabongo Oyo Apollo, opposes this application because the applicant applies the law selectively and favors some parties e.g NRMO, DP, CP & UPC. That this application is bad in law because there is no code of conduct for political parties and the applicant has acted unilaterally. Therefore this application is premature frivolous, vexatious with no justification. The 9th respondent denies receiving any letters or reminders for compliance. That the 9th respondent complied with the law for the years 2005, 2006 and 2007 and did not comply for the years 2008, 2009, 2010 and 2011 because of the elusive and unreasonable behavior of the applicant which refused the returns.
The Chairman of the 10th respondent, the Reform Party, Robert Ndyomugyenyi swore an affidavit in reply stating that the application is unconstitutional and its actions have not been independent nor free from control and direction of any person. Therefore this application is incompetent, frivolous vexatious disclosing no cause of action and it is premature. That the 10th respondent has never been served with and letters and reminders as stated by the applicant in Annexture ‘E’. The 10th respondent says he complied with the requirements of the law for the years 2006, 2007, 2008 and 2009. That the applicant frustrated its compliance with the law for the years of 2010, 2011, 2012 and he is behaving partially with bias.
During the hearing of the application, parties were allowed to file written submissions.
The applicant is represented by Mr. Eric Sabiiti assisted by Mr. Lugoloobi. Mr. Tayebwa represented the 9th and 10th respondents and Mr. Masaba Fred appeared for the 11th respondent. Indeed Mr. Masaba Fred submitted for the 11th respondent. Tusasirwe & Co. Advocates submitted for the 9th and 10th respondents jointly.
I have considered the application as a whole. I have also considered the affidavits in reply by the respondents who made replies I have taken into account the submissions for and against the application. I am of the considered view that one issue arises for determination of this matter and that is:-
- Whether the respondents’ parties complied with the requirements of S. 9 of the Political Parties and Organizations Act and Rule 17 made there under.
Section 9 of the Political Parties and Organizations Act enacts that:-
- Every political party or organization shall, within sixty days after the expiry of the first year after the issue to it of a certificate of registration under section 7, or such longer period as the Electoral commission may allow to submit to the Electoral Commission a written declaration in Form 2 in the Third Schedule.
- The political party or organization shall also, annually after the first year, within such time as the Electoral Commission may direct, submit to the Electoral Commission a written declaration in Form 2 in the Third Schedule.
- A declaration submitted to the Electoral Commission under subsection 1 or 2 shall state the sources of funds and other assets of the political party or organization.
- A declaration shall be authorized by members of the executive committee.
- The Electoral Commission shall, within thirty days after receipt of declaration, publish in the Gazette notice of the fact that the declaration has been received and that it is available for inspection at the offices of the Electoral Commission by any member of the public upon payment of the fee prescribed under this Act.
- Where a political party or organization fails to comply with this section within twenty-one days after notice from the Electoral Commission to do so, the Electoral Commission may apply to the High Court for an order to deregister the political party or organization.
- Without prejudice to any other penalty provided in this Act where a political party or organization makes a statement for the purpose of this section which is false in material particular, the political party or organization commits an offence and is liable on conviction to a fine not exceeding seventy two currency points.
- A member of the executive committee of a political party or organization referred to in subsection (7) who contributes in any way to the commission of the offence referred to in that subsection, also commits the offence and is liable on conviction to a fine not exceeding seventy two currency points or imprisonment not exceeding three years or both.
As per Annexture ‘A” to the affidavit in support of this application, it is undisputed that the 1st to the 10th respondents are registered political parties. There is proof as contained in Annexture ‘B’ of the affidavit in support that numerous notices and/or reminders requiring the respondents to comply with S. 9 of the Political Parties and Organizations Act were given but were ignored by the respondents. This is shown in Annexture ‘C’ wherein there are acknowledgments of receipt of the said notices and/or reminders to submit declaration of assets and liabilities. The applicant went ahead to invite the 1st to the 10th respondents in a letter marked Annexture ‘D’ for a meeting to map a way forward. Following that meeting the respondents committed themselves to comply as reflected in Annexture ‘E’ of the affidavit in support. Thereafter the applicant sent several reminders to the respondents reminding them of their commitment, but all the same, they did not comply.
In Annexture ‘F’ the applicant again invited the respondents for a meeting on 9th April 2013 at 8:30am and published the summons in both the Daily Monitor and Observer Newspaper of 5th April 2013 (Annexture ‘G’). This was deemed the last meeting by the applicant. However, the respondent parties ignored this invitation as well prompting the applicant to send to each of the respondents a Notice of decision of the Electoral Commission to deregister each of them. The notice issued by the Secretary to the applicant reads as follows:
“NOTICE OF THE DECISION OF ELECTORAL COMMISSION TO DEREGISTER ACTION PARTY (AP).
Please refer to our reminders of even reference dated 22.11.2006, 05.12.2006 15.08.2007, 27.08.2008, 18.10.2011 and 10.10.2012, regarding your Party’s non compliance with the provisions of the Political Parties And Organizations Act 2005 (as amended).
You also neglected and/or ignored the Commission’s invitation to you to discuss the matter and hence once again lost further opportunity to explain your failure to comply with the law.
Take notice, therefore, that at its meeting held on 9th April 2013, the Commission decided to invoke its powers under Sections 9, 10 and 12 of the Political Parties and Organizations Act 2005 (as amended) to have your Political Party deregistered for failure to:-
- Submit your Annual Audited Accounts for the years ending December 2005, 2006, 2007, 2008, 2009, 2010 and 2011.
- Submit Declaration of Assets and Liabilities for the years 2005, 2006, 2007, 2008, 2009, 2010 and 2011.
- Hold a Delegates Conference to elect your executive members as required”.
The notice is comprised in Annexture ‘H’ and is also dated 2nd May 2013, Ref. LEG 353/01.
This obstinence continued even after the applicant filed this application when the majority of the respondents did not file any affidavit in reply to this application. The 1st, 2nd, 3rd, 4th, 6th and 8th respondents did not file affidavits in reply despite service of the application on their authorized representatives/agents. The 1st, 2nd, 3rd and 8th respondents were served by way of substituted service following a court order of 26th September 2013. There is an affidavit of service on record by Tyan Robson dated 11th November 2013 and 20th September 2013 respectively.
As rightly submitted by learned counsel for the applicant, this court is enjoined under rule 11(1) of the Political Parties and Organizations (Appeal and Application) Rules 2005 to apply as nearly as may be the Civil Procedure Act and rules as made there under as they relate to the trial of a suit in the High Court.
In the instant case, in the absence of any affidavits in reply to the application rebutting the averments of the affidavit in support, it follows that the application in respect
- Action Party (AP)
- Bridge Party (BP)
- Progressive Alliance Party (PAP)
- Uganda Mandate Party (UMP)
- New Order Democracy (NOD)
- Peoples Independent Party (PIP)
- National Redemption Party (NRP)
stands unopposed. Since the above named parties did not oppose this application and given that court is satisfied that there was effective service on them and given that the applicant has furnished proof on a balance of probabilities that none of the said parties complied with S. 9 of the Political Parties And Organizations Act 18 of 2005, the application against those parties will be allowed.
The 7th, 9th and 10th respondents filed affidavits in reply and written submissions in opposition to this application.
Mr. Mutiibwa Johnson President General of the 7th Respondent, the Movement for Democratic Change (MDC) deponed that the 7th respondent submitted its audited report for 2005, 2006, 2007, 2008 and 2009 to the applicant but he does not annex any of the alleged audited reports. In fact, in his paragraph 10 of the affidavit in reply, the 7th respondent acknowledges that the party had not made declarations of its assets and liabilities for successive years.
In his affidavit in reply, Mr. Robert Ndyomugenyi, the Chairman of Reform Party (10th respondent) depones that he complied with the requirements of the Political Parties and Organizations Act for the years 2006, 2007, 2008 and 2009. However this evidence remained mere allegations because no annextures were attached to substantiate those averments. Most of the attachments to his affidavit work against him.
In his paragraph 14, Mr. Robert Ndyomugenyi clearly admits not submitting written declarations of assets and liabilities for 2010, 2011 and 2012.
Mr. Nyabongo Apollo swore an affidavit in reply on behalf of the 9th respondent the Movement Volunteer Mobilizers Organization (MVMO). He revealed but without proof that since its registration in 2005, the 9th respondent complied with the requirements of the Political Parties and Organizations Act for the years 2005, 2006, and 2007. However no annextures were attached to the affidavit to substantiate his allegations. In his paragraph 16, Mr. Nyabongo Oyo Apollo clearly admits not submitting the written declarations of assets and liabilities for 2008, 2009, 2010 and 2011.
As rightly submitted by learned counsel for the applicant, it was mandatory for the respondent Political Parties to submit annually after the first year or such time as the applicant may direct, written declarations of assets and liabilities and the sources of funds and other assets. The declarations have to be authenticated and verifiable. But as explained by Mr. Byakagaba Patrick in his affidavit in rejoinder, the 7th respondent only submitted some of the financial accounts for the years 2005, 2006 and 2007. The 9th respondent only submitted financial statements for the years ending 2007, and 2008. However, when the submitted financial accounts were forwarded to the auditors for verification they were found wanting and the 7th, 9th and 10th respondents were informed accordingly by the Secretary of the applicant. (See collective copies attached and marked ‘K’). They however took no steps to rectify the anomalies. These legal requirements have to be taken seriously because they are not a mere formality. Compliance with the law is mandatory. It cannot be done selectively according to the wishes of a Political Party. It was therefore not enough to comply in selected years. The argument that some parties did not comply because there is no Code of Conduct for Political Parties is baseless. Compliance with the law is not premised on existence of a Code of Conduct. The law is clear on making the requisite declarations.
It should be noted that applications of this nature are proved or rebutted by affidavit evidence. In the instant case, none of the respondent Political Parties used their respective affidavits in reply to rebut Mr. Byabakama’s averments and show that they complied with S. 9 of the Act. The fear by the applicant that these are brief case Political Parties with no structures could be founded.
It is mandatory under S. 9(2) of the Political Parties and Organizations Act for Political Parties and Organizations to annually submit to the Electoral Commission, the applicant, written declarations in Form 2 in the 3rd schedule.
As submitted by learned counsel for the applicant and was not rebutted by the respondents, the purpose of the written declarations is to provide information about the financial position, performance and changes in parties and organizations. It is also necessary because it facilities the applicant which is the regulator of the respondent parties to make desired and important decisions that affect the continued operations of the parties and organizations. The said information is useful to all stakeholders and the electorate because it provides a basis for making funding decisions by stakeholders and government.
It is common knowledge that political parties influence the political process and sponsor their respective agenda. They usually sponsor candidates for election to political offices and participate in the governance of Uganda at all levels. Therefore since parties and organizations influence the political process, they must be law abiding and have an agenda in order to mobilize support and funds in order to compete for political power. Competing for political power requires the political party to respect the rule of law. Its leaders must be exemplary, disciplined and law abiding citizens.
It is impossible to achieve the above qualities if a party neglects the mandatory requirement of S. 9(2) of the Act. A party which neglects the mandatory requirements of the law must be deregistered.
Consequently, I will uphold the request by the applicant that for deliberately having failed to comply with S. 9 of the Political Parties And Organizations Act which is mandatory, an order is hereby given to deregister the:-
- Action Party (AP)
- Bridge Party (BP)
- Progressive Alliance Party (PAP)
- Uganda Mandate Party (UMP)
- New order Democracy (NOD)
- Peoples Independent Party (PIP)
- Movement for Democratic Change (MDC)
- National Redemption Party (NRP)
- Movement Volunteer Mobilizers Organization (MVMO)
- Reform Party (RP)
Regarding the 11th respondent (the Attorney General) the applicant has not made any specific claim against it. The applicant did not also ask for any prayers against it. I will therefore order the application against the Attorney General to be dismissed.
The applicant shall get half of the costs of this application against the first to the tenth respondents. However each party shall meet its costs in respect of the 11th respondent. It is so ordered.
Stephen Musota
J U D G E
16.04.2014