THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA

AT MENGO

(CORAM: ODOKI, CJ. TSEKOOKO, MULENGA, KANYEIHAMBA AND KATUREEBE, JJ.SC.)

ELECTION PETITION APPEAL No.05 OF 2007

BETWEEN

WASIKE STEPHEN MUGENI :::::::::::::::::::: APPELLANT

AND

AGGREY AWORI SIRYOYI :::::::::::::::::: RESPONDENT

[An appeal from the decision of the Court of Appeal at Kampala

(Okello, Engwau and Byamugisha.JJ.A) dated the 5^th day of December,

2006 in Election Petition Appeal No.01 of 2006]

JUDGMENT OF THE COURT

This is a second appeal arising from an election petition instituted in the High Court by the respondent. The High Court allowed the petition. The appellant’s appeal to the Court of Appeal was dismissed hence this appeal.

FACTS AND THE BACKGROUND

At the Parliamentary General Elections held on 23^rd February, 2006, five candidates contested for the Samia Bugwe North Parliamentary constituency, in Busia District, namely the appellant, the respondent, Emmanuel Sanyu, Padde Deogratia Wowo and James Mugeni. The appellant obtained 19,750 votes and the respondent was runner-up with 12,373 votes. The rest polled 3,773, 1,775 and 972 votes respectively. The appellant was declared the duly elected Member of Parliament for that constituency.

Prior to the said elections, the respondent was the sitting member of Parliament for the Constituency. At the same time the appellant was employed as Town Treasurer of Busia Town Council which is a local government. Two undisputed facts concerning that employment occurred before the election. First, on 12^th October, 2005, the appellant wrote a letter (exh. P4) to the Town Clerk, Busia Town Council, intimating that because he intended to contest in the forth- coming parliamentary elections, he was resigning his appointment as Town Treasurer, as required under clause (4) of Article 80 of the Constitution. Secondly, on 11^th of November, 2005, the Deputy Inspector General of Government (DIGG) wrote a letter or a report (exh. P7) directing the Town Clerk, Busia Town Council, to inter alia,

“interdict the Town Treasurer, Mr. Stephen Wasike Mugeni and submit his names to the District Service Commission, for Dismissal for conflict of interest, in breach of Section 8(1) and (2) of the Leadership Code Act, 2002, and breach of Regulation 79(4) of the Local Governments Financial and Accountability Regulations, 1998”. Further more the IGG had earlier written two letters (exh. P13 dated 28^th/1/2004 and exh. P8 dated 10^th/3/2004) recommending the dismissal of the appellant. The significance of these letters will become apparent later in this judgment.

The respondent who considered himself aggrieved by the election results petitioned the High Court, at Mbale, seeking for, inter alia, an order nullifying the appellant’s election. The respondent advanced a number of complaints in his petition and in the accompanying affidavit. A number of witnesses swore affidavits in support of the petition. The appellant and the Electoral Commission were cited as co-respondents. The main complaints made against the appellant were that-

1. He was not a person qualified for nomination to contest for the Parliamentary seat because: -

1. …..by the date of nomination, he had not effectively resigned his office of Town Treasurer as required by law.

2. ……at the time of his nomination, he had been found by the Inspector General of Government (IGG) guilty of breach of the Leadership Code Act and the IGG had recommended for his removal or dismissal from his office as Town Treasurer of Busia Town Council.

2. ..…. before, during and after the Parliamentary

Elections, the appellant committed the electoral offence

of defamation under the Parliamentary Elections Act, 2005 (17 of 2005).

In his amended answer to the petition, the appellant denied all the allegations contained in the petition and swore an affidavit on 1/6/2006 in support. Some twelve witnesses swore affidavits in support of his answer.

The trial judge accepted the respondent’s complaints and gave judgment in favour of the respondent. He nullified the election of the appellant as a Member of Parliament and ordered for the holding of a fresh election. The appellant appealed to the Court of Appeal against that decision and based his appeal on four grounds. The Electoral Commission did not appeal.

Those four grounds of appeal can be summarised as follows:-

1. The trial judge erred in holding that the appellant was not qualified for nomination because he had not resigned.

2. The Judge was wrong in holding in effect that compliance with