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THE REPUBLIC OF UGANDA.

IN THE HIGH COURT OF UGNADA HOLDEN AT KAMPALA.

(CIVIL DIVISION).

PRE -ELECTION APPEAL/EP NO. 0008 OF 2025.

(AN APPEAL ARISING FROM THE DECISION OF THE ELECTORAL COMMISSION COMMUNICATED TO THE PETITIONER ON THE 1^ST DAY OF DECEMBER 2025)

BWOWE IVAN.       …………………………………………………           PETITIONER.

–VERSUS-

1. THE ELECTORAL COMMISSION.
2. NASASIRA HAPPY.
3. BURORA HERBERT ANDERSON.
4. OKUYE FELIX EPHRAIM/OKUYE FELIX.
5. OKUMU VINCENT NOBERT.
6. SSENYONYI JOEL BESEKEZI.
7. KYAMBADDE WILBERFORCE.
8. RWAMITI APUULI. …………………………………..                     

PETITIONER’S COUNSEL’S SUBMISSIONS ON PRELIMINARY POINTS OF LAW.

My Lord;

When the instant appeal came up for mention this morning, we sought and were granted leave to raise preliminary points (POs) of law regarding the propriety of the 1^st, 2^nd and 6^th respondents’ purported answers to the petition and their attendant affidavits.

Your Lordship indeed did direct that we do raise these POs by way of filing written submissions and it is in compliance with Your Lordship’s directions that we are so doing as here below set out.

First, the law on pre-election petitions’ procedural propriety is to be found in S.15 of the Electoral Commission Act so far as it stipulates as follows;

• ……………………………………………
• (2) “An appeal shall lie to the High Court against a decision of the Commission confirming or rejecting the existence of an irregularity”..
• The appeal shall be made by way of a petition, supported by affidavits of evidence, which shall clearly specify the declaration that the High Court is being requested to make”.
• ….…………………………………………………..
• ….……………………………………………………..
• “The Chief Justice shall, in consultation with the Attorney General, make rules of Court for regulating the procedure in respect of any appeals under this section and may, for that purpose, adopt any procedure prescribed by any, enactment subject to such modifications as the Chief Justice may specify”

Pursuant to the command of S.15(6) of the Electoral Commission Act read together with S. 113 of the Parliamentary Elections Act Cap. 177, the Hon. The Chief Justice, in consultation with the Attorney General, made The Parliamentary Elections (Appeals to High Court from Commission) Rules, S.I 141-1, relating to the practice and procedure to be observed by Court in handling appeals such as the one before Your Lordship.

1. THE 1^ST PRELIMINARY OBJECTION.

In its affidavit taken out by Mr. Lugolobi Hamidu, the 1^st respondent failed to discharge its duty cast upon it by rule 7(1) and (3) of The Parliamentary Elections (Appeals to High Court from Commission) Rules, S.I 141-, hereinafter referred to as the Rules, when it filed what it opted to refer to as “The 1^st respondent’s affidavit in reply/answer to Petition”.

In its entirety, the (11) eleven paragraph affidavit of Lugolobi Hamidu does not, in the very least, conform to the (6) rule test spelt out under rule 7(1) of the rules in terms of what an affidavit filed by the Commission should state.

We say so because rule 7(1) of the rules, which, by the text of its wording, is a commandment to the commission, provides that;

7. “Commission’s duty on service of petition.

• When the commission has been served with a petition, it shall, within three days after service, lodge an affidavit with the registrar stating the following facts__
• a description of the irregularity or irregularities complained of to the Commission;
• the orders given by the Commission confirming or rejecting the existence of an irregularity or irregularities;
• the remedial orders given and the effect of those orders;
• a statement whether any earlier complaint was reported to a lower authority and if so, what the complaint was and what orders were given by the lower authority;
• a statement of the facts found by the Commission on the evidence placed before it; and
• any notes of the evidence taken by the Commission at the time of its hearing of the complaint made to the Commission.”

It is thus crystal clear, from the mandatory wording of rule 7(1) of the Rules, that the content of an affidavit filed by the Commission such as the impugned affidavit of Mr. Lugolobi Hamidu is dictated by the Rules and the commission has an obligation to comply. The Commission is not at liberty to choose what to state in its affidavit without first complying with the text of rule 7(1) of the Rules.

It is to be appreciated that in the wisdom of the Chief Justice, in consultation with the Attorney General, it was intended that in its affidavit, the Commission as “a court” of first instance in pre-election matters pursuant to the exercise of its mandate under Article 61(1)(f) of the Constitution, ought to appraise the High Court, as the first and last appellate Court in pre-election petitions, of;

1. the description of the irregularity or irregularities complained of by the petitioner at the time he lodged his complaint before it,

1. the orders it gave either confirming or rejecting the existence the irregularity or irregularities complained of by the petitioner at the time he lodged his complaint to it,

1. the remedial orders it gave and the effect of those orders,

1. the existence of any complaint that the petitioner may have made to an authority lower than it, what that complaint was and what sort of orders that lower authority rendered in respect to that complaint,

1. the facts it found on the basis of the evidence placed before it,

1. the record of proceedings of the matter it heard and determined.

The learned Chief Justice, in consultation with the learned Attorney General, in coming up with the rules and specifically wording rule 7(1) in mandatory terms, desired that the Commission discharges its duty to the court by ensuring that its affidavit fully brings out all the (6) six elements therein contained.

To be specific, for example, the commission must discharge its duty under rule 7(1)(f) of the Rules by providing to the court a record of proceedings so far as that record, by way of notes of evidence, brings out how it conducted the hearing of the complaint made to it by the petitioner. The rationale for rule 7(1)(f) of the rules is not hard to find: – it is that, when this honorable court sits in judgment as the first and final appellate Court in pre-polling petitions, it ought to be sufficiently tooled with a record of proceedings of the Commission demonstrating how and when it sat and determined the complaint on the basis of the evidence placed before it in exercise of its power under Article 61(1)(f) of the Constitution of the Republic of Uganda,1995(as severally amended).

Without the commission heeding the command set out in rule 7(1)(f) of the Rules, the court sitting as the first and last appellate court in a pre-polling petition is deprived of the opportunity to re-evaluate and re-appraise the evidence that was placed before the commission during the course of the hearing of the complaint made to it by the petitioner herein.

By use of the phrase “it shall”, the learned Chief Justice, in consultation with the learned Attorney General, intended that rule 7(1)(a),(b),(c),(d),(e) and (f) of the Rules ought to be complied with by the commission without exception.

To put the wisdom of the Chief Justice in context, the head note to rule 7 of the Rules is very instructive. The said rule is headed “Commission’s duty on service of a petition.”  The imperative attendant to the use of the word “duty” in the headnote to rule 7 of the Rules is that the commission has “a legal or moral obligation to act or to refrain from acting”; according to the definition of “duty” by Black’s Law Dictionary, at page 624.

Given our analysis of the enunciation of rule 7(1)(a), (b),(c),(d),(e) and (f) hereinabove set out, we invite Your Lordship to interrogate the propriety of “the 1^st respondent’s affidavit in reply/answer to petition” and be pleased to find that the affidavit of Mr. Lugolobi Hamidu fatally falls short of all the (6) six dictates therein set out thereby making the said affidavit good fodder for being struck out with costs to the petitioner herein.

We invite Your Lordship, as you retire to make a ruling on this particular PO, to appreciate that, in his (11) eleven paragraph affidavit, there is absolutely no statement by Mr. Lugolobi Hamidu of the (6) six facts dictated by rule 7(1) of the Rules such as;

1. the description of the irregularity or irregularities complained of (by the by your humble petitioner in these proceedings) to the Commission,
2. the orders the commission handed down rejecting the existence of the irregularity or irregularities (complained of by your humble petitioner in these proceedings),
3. what remedial orders the commission gave subsequent to its hearing of the complaint and the effect of those orders,
4. any earlier complaint that may have been reported to a lower authority, the nature of that complaint and what orders, if any, were given by the lower authority in resolution of such a complaint,
5. a statement of the facts found by the commission on the evidence placed before it,
6. any notes of evidence taken by the commission at the time of its hearing f the complaint made to the Commission.

So far as the commission abnegated its duty under rule 7(1) of the Rules wherein it is obligated by the use of the phrase; “it shall”. In Uganda’s legal framework, the word “shall” is interpreted as an imperative command that imposes a mandatory obligation, leaving no room for judicial or party discretion unless explicit exceptions apply.

The use of the word “shall” in procedural rules signifies a mandatory requirement rather than a directory suggestion. As established by the Supreme Court of Uganda in SITENDA SEBALU VS. SAM NJUBA AND ELECTORAL COMMISSION (ELECTION PETITION APPEAL NO. 26 OF 2007), while “shall” can occasionally be directory, it is ordinarily used to connote a mandatory command. The Court emphasized that it should be interpreted in a directory sense only in “exceptional circumstances” namely, where a mandatory interpretation would lead to absurdity, inconsistency with the Constitution, or a miscarriage of justice.

In applying this principle, the High Court in KALEMESA SAMUEL WILSON VS. KAGGWA CHRISTOPHER CHRIS & 7 ORS (MA NO. 776 OF 2023) held at pages 18–19:

“It is my understanding that the draftsmen’s insertion of the word ‘shall’ in Order XIA 1(2) was intended to ensure that litigants extract summons for directions as a must save for when they were faced with exceptional circumstances laid down under sub rule 4, otherwise leaving wiggle room in the application of this provision would cause an absurdity and defeat the intention of the Rules Committee.”

In the fore going decision of the High Court & the Supreme Court so far as the courts applied its mind to the use of the word “shall”, simply means that the commission had neither choice nor discretion to choose its own content of the affidavit in answer to the petition.

Accordingly, following the above decisions, in its answer to the petition, the duty of the commission, was at all material time to conform to the full text of rule 7(1) of the Rules by ensuring that the affidavit of Mr. Lugolobi Hamidu takes stock of all the facts dictated upon the commission by rule 7(1)(a),(b),(c),(d),(e) and (f) of the Rules.

In the case before Your Lordship, the affidavit of Mr. Lugolobi Hamidu falls short of anything praiseworthy as far as compliance with rule 7(1) of the Rules is concerned.

We, thus, invite Your Lordship to be pleased to strike out the said “affidavit in reply” cum “answer to petition” filed by the commission through its Mr. Lugolobi Hamidu with costs to the petitioner herein.

The result attendant to striking out the 1^st respondent’s impugned affidavit, as we pray it ought to be struck out, would be that the 1^st respondent would, by its conduct of failing to comply with the dictates of rule 7(1), have closed itself out of these proceedings and thus incapable of enjoying any right of audience before Court.

In sum, it is our well-considered submission and prayer that Your Lordship be pleased to sustain this PO.

2. THE 2^ND PRELIMINARY OBJECTION.

Our second preliminary objection is that what was filed by the 2^nd and 6^th respondents as their respective “answer to the petition” is creation of the figment of their own imagination.

The 2^nd respondent filed what she termed as; “The 2^nd respondent’s answer to the petition”. On his part, the 6^th respondent filed what he termed as; “The 6^th respondent’s answer to the petition”. This, we contend, is a fatal blunder on the part of the 2^nd and 6^th respondent and therefore incapable of being cured by any ray of grace by Your Lordship.

We say so because, rule 8(4) of the Rules loudly pronounces itself on how any other respondent other than the Commission ought to answer the petition. It provides thus;

“A respondent other than the commission, served with the petition, may answer the petition by an affidavit within two days after the service.”

It is our invitation to Your Lordship that the 2^nd and 6^th respondents set out to answer the petition and did purport to answer the petition not by way of an affidavit as spelt out by rule 8(4) of the Rules but rather by way of an “answer to the petition” yet an “answer to the petition” is not only extraneous to the Rules but it is also not provided for under the Rules as a permissible method of answering a petition by a respondent other than the commission. The consequence that attends to the 2^nd and 6^th respondents’ foul importation of an “answer to the petition” in the place of an affidavit in answer to the petition is that the same ought to be struck out with costs to the petitioner herein.

In aggravation of their obsequious mediocrity in approaching the Rules, the 2^nd and 6^th respondents, each, filed what they conveniently termed as “affidavit in support of the answer to the petition”. This, we contend, is as foul as it is inexcusable on the part of the 2^nd and 6^th respondents so far as it not provided for anywhere in the Rules. Our premise for so saying is that, as we have already demonstrated to Your Lordship, rule 8(4) of the Rules only makes provision for a respondent other than the commission answering a petition by “an affidavit” only and not “an answer to the petition”. Clearly, there being no provision in the Rules for a respondent other than the commission answering a petition by “an answer to the petition”, there is equally no room for “an affidavit is support of the answer to the petition” such as what was filed by the 2^nd and 6^th respondents herein.

Under rule 8(4) of the Rules, the only permissible route to be taken by a respondent other than the commission in answering a petition is by way of an affidavit. Thus, a respondent other than the commission, cannot, within the realm of the Rules file an affidavit in support of their own answer to the petition yet they are expected to have answered the petition by way of an affidavit and not an answer to the petition as was the case with the 2^nd and 6^th respondents herein.

Accordingly, it is our well-considered submission that the 2^nd and 6^th respondents herein abnegated to file an affidavit in answer to the petition as required of them by rule 8(4) of the Rules.

We submit further that “an answer to the petition” as was filed by the 2^nd and 6^th respondents herein is, at any rate, not one and the same as “an affidavit” in answer to the petition provided for under rule 8(4) of the Rules.

We further submit that “an affidavit in support of the answer to the petition” such what the 2^nd and 6^th respondents herein filed in court is foreign to the Rues and cannot be said to be an affidavit in answer to the petition as made provision for under rule 8(4) of the Rules.

Consequently, we invite Your Lordship to be pleased to find merit in this preliminary objection and proceed to strike out the 2^nd and 6^th respondents’ respective “answer(s) to the petition” and their attendant “affidavits in support of the answer to the petition” with costs to the petitioner herein.

We so pray.

Dated and signed at Kampala, at the Petitioner’s counsel’s law chambers, this                18^th day of December 2025.

                                                    FRANK KANDUHO

                                                  ______________________

M/s Kanduho & Co. Advocates.

(Counsel for the Petitioner).

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