Bonaventure Munyangoga

PART A 1. THE PROPRIETY OF THE EC AND LUBOMO’S ACTIONS AND OMISSIONS, THEIR EFFECT, THE POSSIBLE REMEDIES AVAILABLE, THE PROCEDURES AND DOCUMENTS FOR OBTAINING THE IDENTIFIED REMEDIES Article 60 of the 1995 Constitution of the republic of Uganda (as amended) establishes the Independent Electoral commission consisting of the chairperson deputy and five other members. Article 61 provides for the mandate among which include; (a) to ensure that regular, free and fair elections are held; (b) to organize, conduct and supervise elections and referenda in accordance with this Constitution. The case of Kirunda Kivejinja Vs Abdul Kantuntu Election petition NO 24/2006 cited with approval the dictum in DR. Col Kizza Besigye VS Y.K Museveni Election petition NO 1 of 2000 that an election is deemed free and fair when it is held in an atmosphere of freedom an fairness that will permit the will of the electorate to prevail. That an election marred with wide spread violence torture and intimidation cannot be said to be free and fair, anything which tends to interfere with the will of the people vitiates the principle of a free and fair election. The Electoral Commission has the mandate to take measures for ensuring that elections are conducted under free and fair conditions pursuant to Section 12 (1) (e) of the Electoral Commission Act, Cap 140. This was emphasized in the case of Joy Kabatsi Kafura VS Hanifa Kawooya & Electoral Commission Election appeal NO 25 of 2007. Odoki CJ, in Rtd. Col. Dr. Kizza Besigye v. Y.K. Museveni & Anor Election Petition No. 1 of 2001 set out the principles underlying an election. These include the following. 1. The elections must be free and fair. 2. The elections must be by universal adult suffrage which underpins the right to register and vote. 3. The elections must be conducted in accordance with the laws and procedures laid out by parliament. 4. There must be transparency. 5. The results must be on the basis of majority votes cast. Where an election is not free and fair, and where there has been non compliance with the law, the Electoral Commission will be held to account as held in Electoral Commission & Peter Bakaluba Mukasa Vs Betty Nambooze Bakireke Election Petition Appeal No.1 and 2 of 2007. FORA Article 86 (1) of the 1995 Constitution of the Republic of Uganda (as amended) grants mandate to the High Court. It states that:- “The High Court shall have jurisdiction to hear and determine any question whether a person has been validly elected a Member of Parliament or the seat of a Member of Parliament has become vacant.” CAUSE OF ACTION Supreme Court in Ismail Serugo Vs Kampala City Council & Anor Supreme Court Constitutional Appeal No.2 of 1998 stated that a cause of action is said to be disclosed if in the pleadings there are averments showing the existence of the plaintiff’s right, the violation of that right and of the defendant’s (respondent) liability for the violation. When a court is considering whether a pleading raises a cause of action or not, Supreme Court in Wycliffe Kiggundu Vs Attorney General Supreme Court Civil Appeal No.27/1992 stated that it must only look at that pleading. BURDEN AND STANDARD OF PROOF In Mukasa Anthony Harris V. Dr. Bayiga Michael Phillip Lulume, S.C.C.A No. 18 of 2007; The burden of proof is cast on the petitioner to prove the assertions to the satisfaction of the court that the irregularities or malpractices or non-compliance with the provisions and principles laid down in the relevant laws were or is committed and that they or it affected the results of the election in a substantive manner in the election petition. The evidence must be cogent, strong, and credible. The standard of proof is on a balance of probabilities but slightly higher though lower than beyond of reasonable doubt. ACADEMIC QUALIFICATION Article 80 of the Constitution provides for qualifications and disqualifications of members of Parliament. It states: (1) A person is qualified to be a member of Parliament if that person- (c) has completed a minimum formal education of Advanced Level standard or its equivalent which shall be established in a manner and at a time prescribed by Parliament by law.” Parliament enacted the Parliamentary Elections Act and provided in Section 4 (1) thereof that: “A person is qualified to be a member of Parliament if that person- (c) has completed a minimum formal education of Advanced Level standard or its equivalent.” Subsection 5 states: “For purposes of paragraph (c) of subsection (1), any of the following persons wishing to stand for election as a member of Parliament shall establish his or qualification with the Commission as a person holding a minimum qualification of Advanced Level or its equivalent at least two months before nomination day in the case of a general, and two weeks in the case of a by election- (a) persons, whether their qualification is obtained from Uganda or outside Uganda, who are claiming to have their qualification accepted as equivalent to advanced level education; Byamugisha JA in Paul Mwiru Vs Hon. Igeme Nathan Nabeta Samson, The Electoral Commission & National Council for Higher Education Election Petition No.6 of 2011 (Court of Appeal) stated that the plain or literal meaning of section 4(1) (c) of the above Act is that a person qualifies to be a member of Parliament on proving to the satisfaction of the Electoral Commission to have completed ‘A’ level standard of education or its equivalent as the minimum level of education. In doing so the candidate has to produce a certificate issued by the National Council for Higher Education in consultation with UNEB. Such certificates which are presented for equating must be valid and authentic. Kitakule lodged a complaint with the Electoral Commission before the election date to the effect that LuboMo Ken was never qualified to be nominated and elected in the position because the academic documents he used are in the name of Lubomo Ken while the voters register where LuboMo Ken voted from has the name of Ken Lubobby LuboMo. The complaint was heard during the campaign period on 14th – 05 – 2019 but the Electoral Commission has never given a decision on it. Without a decision on the complaint or any inquiry having been carried out, this did not satisfy the requirements of the law. UNDUE INFLUENCE Section 80 of the Parliamentary Elections Act 2005 states that where a person makes use of or threatens to make use of any force or violence in order to induce, compel to vote or make a person refrain from voting, that person commits an offence of undue influence. The Constitution in Article 59 guarantees the right of every citizen of Uganda who is of or above the age of 18 years the right to vote. The Electoral Commission is mandated to conduct such elections in a free fair and transparent manner. The elections must be conducted in an atmosphere which does not in any way subvert the democratic will of the people to choose a candidate of their choice. These were reechoed by Odoki CJ in Rt. Col. Dr. Besigye Kizza v. Yoweri Kaguta Museveni & Anor. EP No. 1 of 2001. In the instant facts, it’s stated that both the Army and Police men and other security agencies intimidated the voters against voting Simon Mungalu and Kitakule Paul. Furthermore, this caused the unfortunate death of Musa Bongo. All the acts amounted to undue influence. DECLARATION FORMS Section 47 (5) of the Parliamentary Elections Act 2005 entitles the Candidates, their agents and the Presiding officer to retain a copy of the Declaration of results form. In the instant case, the agents were handed forms with the valid results while forms for some other polling stations were unsigned by the Presiding Officer and the agents of Mungalu Simon yet it were those votes that were interchanged in that his votes went to LuboMo Ken. Section 78 (a) of the Parliamentary Elections Act 2005 prohibits an election officer from knowingly making false entries in any record which he or she is required to keep or make under the Act. In the instant facts, it’s stated that the polling officers including the returning officer falsified results. that the falsification of results denied Mungalu Simon 400 votes leading to LuboMo Ken being declared the winning candidate. This was in breach of the electoral laws. ABUSIVE AND DEFAMATORY LANGUAGE Section 73 of the Parliamentary Elections Act 2005 prohibits any person from making or publishing or causes to be made or published by words whether written or spoken or by song in relation to the personal character of a candidate a statement which is false. In the instant case LuboMo Ken while appearing on a radio station in Kampala for a talk show stated that all his competitors were thieves, robbers, have no homes in the constituency and have a lot of money yet they do not work anywhere. This was not only unlawful but wrongly painted the character of the Petitioner amounting to turpitude. Quoting 50 Am. Jur. 2d Libel and Slander, 165, at 454 (1995), the extract states as follows – “Moral turpitude means, in general, shameful wickedness –so extreme a departure from ordinary standards of honest, good morals, justice, or ethics as to be shocking to the moral sense of the community. It has also been defined as an act of baseness, vileness, or depravity in the private and social duties which one person owes to another, or to society in general, contrary to the accepted and customary rule of right and duty between people”. Words and Phrases Legally Defined (2nd Edition) Volume 3 1-N (John B. Sounders (Editor)) p.294, quotes a Court of Appeal of Canada case King and Brooks [1960], 129, Man. CA, per Mounin, J. at page 249, where “moral turpitude” was assigned similar definition as in the Black’s law Dictionary (supra), that it involves acts of baseness in the duties which a man owes his fellow men contrary to the accepted rule of right and duty between man and his fellow man. BRIBERY Bribery during an election is defined in Black’s Law Dictionary, 6th Edn as the offence committed by one who gives or promises to give or offers money or valuable inducement to an elector, in order to corruptly induce the latter to vote in a particular way or to abstain from voting, or as a reward to the voter for having voted in a particular way or abstained from voting. Section 68 of the Parliamentary Elections Act 2005 states that any person who, either before or during an election with intent, either directly or indirectly to influence another person to vote or to refrain from voting for any candidate, gives or provides or causes to be given or provided any money, gift or other consideration to that other person, commits the offence of bribery and is liable on conviction to a fine not exceeding ninety currency points or imprisonment not exceeding three years or both. Tsekooko, JSC in Mukasa Anthony Harris. Vs. Dr. Bayiga Michael Phillip Lulume, SC election Petition No.18 of 2007 outlined the essential elements of bribery under Section 68 (1) of the Parliamentary Elections Act to include: a) money or gift being given out by the candidate personally or through him or his agents with his or her knowledge consent or approval; b) that the recipient was a registered voter; c) that the giving was with intent to influence the voter to vote or refrain from voting; Standard of proof: Section 61 (1) (a) of Parliamentary Elections Act 2005 states that an election shall only be set aside if proved to the satisfaction of court. “Non compliance with the provisions of this Act relating to the elections if the court is satisfied that there has been failure to conduct the election in accordance with the principles laid down in those provisions and that the non compliance and failure affected the result of the election in a substantial manner.” The phrase proved to the satisfaction of the court was discussed in Col. Rtd. Dr. Kiiza Besigye v Museveni Yoweri Kaguta & Electoral Commission (Election Petition No. 1 of 2001) in which Mulenga JSC stated as follows: “I share the view that the expression “Proved to the satisfaction of court connotes absence of reasonable doubt. …. the amount of proof that produces the court’s satisfaction must be that which leaves the court without reasonable doubt.” Section 61 (3) of the Parliamentary Elections Act 2005 requires to prove the grounds on balance of probability. In the case Karokora Katono Zedekiya VS The Electoral Commission & Kagonyera Mondo Election petition No. 02 of 2001 Justice Musota stated that an order setting aside parliamentary election carries with its self-serious financial implications to the nation, the government spends a lot of money conducting by elections thus the crucial need for courts to act in matters only where the grounds of the petition are proved at a high degree. What constitutes proof on a balance of probabilities was put beyond doubt by Justice Musoke Kibuuka in Hon. Abdu Katuntu v Kirunda Kiveijinja Ali, Election Petition No. 7 of 2006 where the learned Judge stated as follows: “The subject matter of setting aside election of a Member of Parliament is of great importance to me though it may not measure to the same degree of importance as that of setting aside election petition of the President of the country. The court trying an election petition such as this one, has the duty to ensure that before issuing an order for setting aside the election of a Member of Parliament, it is duly satisfied, by the evidence before it that the allegations made, in the petition has been proved to that high degree of preponderance.” The above standard is very crucial because the challenges in organizing and conducting elections involve the use of financial and human resources. The parties involved are over-anxious even to the extent of telling blatant lies in order to convince court to rule in satisfaction of their emotion and not reasons. (HON. MR. Rubby Aweri Opio in Kidega Nabinson James Vs The Electoral Commission & Hon Odonga Otto Samuel Election Petition NO. 003 of 2011) In the instant facts, Ken LuboMo sent money through mobile money registered numbers to several groups in the constituency on 28th February 2019. The monies were sent to Telephone numbers-,-,- and- all registered in the names of people known to be voters in the constituency. This resulted into construction of churches and mosques in the area. LuboMo Ken further distributed money at various polling stations on the voting day. This act in light of the above mentioned section amounted to bribery since it was intended to indirectly influence the people to vote for LuboMo Ken. Evidence that may be relied on in bribery was discussed in the case Mbayo Jacob Robert VS Electoral Commission & Talisunya Election petition NO 7 of 2006 where court advised that some other evidence from an independent source is required to confirm the allegations of bribery instead of candidate’s trading accusations. Further in Kabusu Moses Wagaba VS Lwanga Timothy & Electoral Commission Election Petition appeal NO. 53 of 2011 court held that a voters register must be attached to show that the person bribed was a voter by annexing the page on which the deponent appear on the affidavit, that one of the essential ingredients of bribery is proof that the person bribed is a registered voter. DONATIONS Section 68 (7) of the Parliamentary Election Act 2005 (as amended) states that, a candidate or an agent of a candidate shall not carry on fundraising or giving of donations during the period of campaigning. In the instant facts, many gifts were bought and distributed to the people who in turn voted for LuboMo Ken which was in total contravention of the law. Oder JSC (RIP) in Col. (Rtd) Dr. Besigye Vs Yoweri Kaguta Museveni SC EP No.1 of 2001, at page 475 set out the ingredients of bribery as follows: a) That a gift was given to a voter. b) The gift was given by a candidate at his agent. c) The gift was given with the intention of inducing the person to vote. Therefore, the above discussion highlights the gross misconduct and electoral offence committed in the election thus violating the fundamental principle that it ought to be free and fair. THE EFFECT is that non compliance with or contravention of the election law or malpractices at the polls will vitiate the election if it would appear that the result of the election was effected thereby, but not otherwise provided as was held in the case of Morgan and others Vs Simpson and Another (1994) 3 ALLER 722 cited with approval in Karokora Katono Zedekia Vs The Electoral Commission and Hon. Mondo Kangonyera Court of Appeal Election Petition No.5 of 2002. It should also be noted that in such cases, Court considers whether the non-compliance, if any, affected the results of the election in a substantial manner. In Kiiza Besigye Vs Museveni Kaguta Yoweri & Anor Supreme Court of Uganda Election Petition Number 1 of 2001; unreported, Oder JSC, expounded that in determining this issue: - “…….arithmetical numbers or figures are not the only determining factors in deciding whether non-compliance with the provisions and principles of the Act did or did not affect the result in a substantial manner. ………….. Numbers or figures of course are terribly important, but to me, they are not the only yard stick for assessing the quality and purity of an election. Whether or not non-compliance with the provisions and principles of an Act, in the instant case, affected the result of the election with substantial manner is, in my considered opinion a value Judgment. Figures cannot tell the whole story. …………. In my considered opinion an accumulated or sum total of the non-compliance with the provisions and principles of the Act, is the yardstick for measuring the effect of non-compliance with the provisions of and principles laid down in the Act.” POSSIBLE REMEDIES 1. RECOUNT Mandatory recount Section 54 of the Parliamentary Elections Act (PEA) partly provides:- Cases of mandatory recount. (1) Where after the official addition of the votes – (a) There is an equality of votes between two or more candidates obtaining the highest number of votes or, (b) The number of votes separating the candidate receiving the highest number of votes and any other candidate is less than fifty, the Returning Officer shall, if requested in writing by a candidate, a candidate’s agent or a voter registered to vote in the Constituency, in the presence of a Senior Police Officer recount votes after giving a written notice of the intention to recount to all interested parties.” In the instant facts, the recount will not apply because the election results had a difference gap of 55 and were already gazette by the Electoral Commission on the 20th June 2019. Recount by Chief Magistrate A recount before the Chief Magistrate’s court is regulated by sections 55 and 56 of the PEA. For abundance of caution, and for greater clarity, all those provisions of the Parliamentary Elections Act were pre-produced as below by V.F. Musoke-Kibuuka in the case of Kasibante Moses Vs Katongole Singh Marwaha & The Electoral Commission Election Petition No.23 of 2011. Application to Chief Magistrate for a recount. (1) Within seven days after the date on which a returning officer has, in accordance with section 58, declared as elected the candidate who has obtained the highest number of votes, any candidate may apply to the chief magistrate for a recount. (2) The chief magistrate shall appoint the time to recount the votes which time shall be within four days after receipt of the application under subsection (1) and the recount shall be conducted in accordance with the directions of the chief magistrate. (3) A candidate who requests a recount under this section shall deposit with the chief magistrate a security for costs of thirty currency points. 56. Recovery of costs of recount. (1) where a recount under section 55 does not alter the result of the poll as to effect the declaration by the returning officer under section 58, the court may order the costs of the candidate declared to be paid by the person who applied for the recount. (2) The monies deposited as security for costs shall, so far as necessary, be paid out to the candidate in whose favour costs are awarded and, if the deposit is insufficient to cover the costs, the court shall order the liable party to pay the balance. In the case of Winnie Byanyima VS Ngoma Ngime Civil revision NO. 09 OF 2001 the High Court held that a recount under Section 56 Parliamentary Elections Act 2005 intends to serve as a filtering mechanism and is intended to be more secure and reliable than the first count carried out by the presiding officer at the various polling stations in the field at the end of the polling time. It was further held that the candidate seeking the recount should have given notice to the returning officer of his intention to submit the application. In the absence of this notice the returning officer transmitted the results and the winner was published in the Gazette before the application for a recount was even filed. The court ruled that the publication of the winner ousted the jurisdiction of the chief Magistrate to order a recount. The principle recognized in Winnie Byanyima vs Ngoma Ngime (supra) that once a winner has been gazette, the Chief Magistrate no longer has jurisdiction to order or conduct a recount applies since LuboMo Ken was gazette by the Electoral Commission on the 20th June 2019. 2. PETITION TO COURT UNDER SECTION 60 OF THE PARLIAMENTARY ELECTIONS ACT. This can be filed in the High Court by; (i) The candidate who has lost the election (ii) A registered voter of the constituency supported by signatures of not less than 500 registered voters. PROCEDURE Rule 4 of the Parliamentary Elections (Election Petition) Rules states that a petition shall state the right of the Petitioner to present the petition and also contain a brief statement of the orders understood to have been given by the commission relating to the alleged irregularity, the measures taken by the commission to correct the irregularity if any and the effects of the measures. The petition shall be filed within 30 days from the date on which the results are published in the gazette by the Electoral Commission. The petition shall be in form A in the schedule to the Parliamentary (Election Petition) Rules S.I 141-2. The grounds for setting aside an Election are laid down under Section 61 of the PEA. They are; Non-compliance with the provisions of the Act relating to elections and it affected the election in a substantive manner. That a person other than the one elected won the election That an illegal practice or any other offence under this Act was committed in connection with the candidate personally or with his or her knowledge, consent and approval. That the candidate was at the time of his or her election not qualified or was disqualified for election. It should be noted that the petition must be in compliance with Order 6 of the Civil Procedure Rules SI 71-1 and accompanied by an affidavit stating the facts on which the petition is based. Six copies must be filed as per Rule 5(2) of the 2006 amendment. A fee of 150,000/= is paid failure of which the petition is dismissed. A notice of the Petition is to be served on the Respondents within seven (7) days of filing of the Petition pursuant to S.62 of the PEA. DOCUMENTS I. Petition. II. Affidavit in support of the Petition. III. Affidavit of service. 2. ADDITIONAL INFORMATION I. I would need to look at the nomination forms of the candidates. II. I would need to look at a copy of the National Identification card of LuboMo Ken. III. I would need to look at certified copies of LuboMo Ken’s academic documents. IV. I would also need to look at the National Register to verify under which names Mr. LuboMo Ken is registered. V. I would require to have the certified copies of the Declaration forms. In the case of Kakooza John Baptist v. EC & Anor, E.P.No. 11/2007, it was held that public documents which to be used in court ought to be certified. There is however an exception in that where a party demands for the certified documents and these are not availed, such a party may tender in court the uncertified copies. VI. I would need to verify the telephone numbers on which LuboMo Ken sent mobile money to verify under which names they are registered and whether those people are reflected on the National Register as voters. In the case of Kabusu Moses Wagaba VS Lwanga Timothy & Electoral Commission Election petition appeal No. 53 OF 2011 court held that one of the essential ingredients of bribery is proof that the person bribed is a registered voter. VII. The Radio Station where the defamatory statements were made is unknown and needs to be ascertained. This for the further purpose of obtaining recordings of the defamatory statements which assassinated the character of our client. VIII. I would further need proof of the client’s residence in the constituency for example a letter from the LC1. IX. I would need a copy of the death certificate of Musa Bongo. X. I need to verify under which polling station the client is registered as a voter. 3. DRAFT THE RELEVANT DOCUMENTS YOU WOULD FILE IN COURT TO EFFECT EACH OF THE REMEDIES PROPSED ABOVE. THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA IN THE MATTER OF THE PARLIAMENTARY ELECTIONS ACT 2005 AND IN THE MATTER OF THE PARLIAMENTARY ELECTION (INTERIM PROVISION) RULES 2006 AND IN THE MATTER OF THE PARLIAMENTARY ELECTIONS (ELECTION PETITION) (AMENDMENT) RULES 2006 ELECTION PETITION NO…………..OF 2019 MANGALU SIMON:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PETITIONER VERSUS 1. LUBOMO KEN 2. THE ELECTORAL COMMISSION:::::::::::::::::::::::::::::::::::::::::::::RESPONDENTS PETITION The humble Petition of MANGALU SIMON and whose address for purpose of this Petition is C/o M/s Firm B3 & Co Advocates P.o Box 111 Mbarara Uganda and whose names are stated at the foot of this petition showeth and states as follows: 1. Your Petitioner MANGALU SIMON is a male adult Ugandan of sound mind and a registered voter at Namwiwa A Polling station under Reg. ID No. CF- and was a validly nominated candidate for the parliamentary election in Bulamogi County, Kaliro District. 2. Your petitioner states that the elections in respect of the said post were held on the 16th day of June 2019 wherein the Petitioner and the 1st Respondent were among the candidates for the seat of Member of Parliament of Bulamogi County, Kaliro District. 3. Your Petitioner states that the 1st Respondent was returned and declared by the 2nd Respondent’s returning officer as validly elected Member of Parliament of Bulamogi County, Kaliro District having polled 19179 votes while your petitioner secured 19124 votes having a difference of 55 votes. 4. Your Petitioner is aggrieved by the declaration and gazzettement of the 2nd Respondent as the validly elected Member of Parliament by the 2nd Respondent. 5. Your petitioner states that the 1st Respondent was invalidly declared winner after manipulating the votes at four polling stations of Namwiwa A, B, C and D where Declaration forms were falsified at tallying leading to an additional 400 votes in favor of the 1st Respondent. 6. And your petitioner states that the 1st Respondent sent money on mobile money numbers of voters which led them to vote for him. 7. Your petitioner states that the 1st Respondent was recognized and seen handing a number of gifts to registered voters during the campaign period. 8. That the 1st Respondent made false statements about the personal character of the Petitioner by stating on a Radio talk show in Kampala that his competitors (the Petitioner being one of them) are thieves, have a lot of money but without any jobs and that they don't have homes in the constituency. 9. That the 2nd Respondent failed to take measures in ensuring that the entire electoral process is conducted under conditions of freedom and fairness by permitting the 1st Respondent and his people to intimidate the Petitioner’s supporters, when Army and Police officers were seen around the polling station on the voting day. 10. Your petitioner states that the 2nd Respondent failed in its mandate of ensuring that election officers comply with the provisions of the law when the returning officers falsified declaration of result forms at some polling stations. 11. That the 2nd Respondent failed in its duty to organize an independent and transparent electoral process by failing to scrutinize the academic documents of the 1st Respondent during nomination and through the campaign period. 12. Your petitioner states that such an election was not an expression of the free will and consent of the people through a free and fair election but an election through bribery, intimidation and manipulation and without any freedom, fairness, transparency or values of democracy. 13. This Petition is accompanied by the Petitioner’s affidavit and a list of Documents. WHEREFORE your Petitioner humbly prays that it is declared that; (a) There was non - compliance with the electoral laws by the 1st and 2nd respondent. (b) A declaration that the 1st Respondent was not validly elected as Member of Parliament for Bulamogi County, Kaliro District. (c) Nullification or cancellation of the election results for Bulamogi County, Kaliro District. (d) A declaration that the Petitioner is the validly elected Member of Parliament for Bulamogi County, Kaliro District. (e) Costs of the Petition be recovered from the Respondents. DATED at Mbarara this …………… day of July, 2019 ……………………………………….. PETITIONER PETITIONER’S ADDRESS M/s Firm B3 & Co. Advocates P.o Box, 111, Mbarara RESPONDENTS’ ADDRESS 1. LuboMo Ken Clerk, Parliament of the Republic of Uganda Kampala 2. The Electoral Commission Office Mbarara Office TO BE SERVED UPON. 1. LuboMo Ken 2. Clerk to Parliament 3. The Electoral Commission LIST OF DOCUMENTS TO BE RELIED ON 1 Declaration forms 2 A copy of the Uganda gazette LODGED and filed at the High Court Registry at Mbarara on the______day of____________2019 Atepo Shafiq ________________________ REGISTRAR DRAWN & Filed by: M/s Firm B3 & Co. Advocates P.O. BOX, 111, Mbarara. THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA IN THE MATTER OF THE PARLIAMENTARY ELECTIONS ACT 2005 AND IN THE MATTER OF THE PARLIAMENTARY ELECTION (INTERIM PROVISION) RULES 2006 AND IN THE MATTER OF THE PARLIAMENTARY ELECTIONS (ELECTION PETITION) (AMENDMENT) RULES 2006 ELECTION PETITION NO…………..OF 2019 MANGALU SIMON::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PETITIONER VERSUS 1. LUBOMO KEN 2. THE ELECTORAL COMMISSION::::::::::::::::::::::::::::::::::::::::::::::RESPONDENTS AFFIDAVIT IN SUPPORT OF PETITION. I, MANGALU SIMON of C/o M/s Firm B3 & Co Advocates, P. O. Box 111, Mbarara do solemnly swear and truthfully state as follows 1. That I am a male adult Ugandan Citizen of sound mind and a registered voter at Namwiwa A Polling station under Reg. ID No. CF- and the Petitioner herein. 2. That the elections for the seat of Member of Parliament of Bulamogi County, Kaliro District were held on the 16th day of June 2019 wherein I and the 1st Respondent were the candidates. 3. That the 1st Respondent was returned and declared by the 2nd Respondent’s Returning Officer as the validly elected Member of Parliament of Bulamogi County, Kaliro District. (A copy of the gazette is herein attached and marked Annexture “A”). 4. That I am aggrieved and dissatisfied with the said decision of the 2nd Respondent on grounds that the said election was conducted with utter disregard of the provisions of the Parliamentary Elections Act 2005 (as amended) and the elections having been marred with gross irregularities and illegal practices particulars of which are as hereunder; a) The votes at four polling stations of Namwiwa A, B, C and D were falsified at tallying leading to an additional 400 votes in favour of the 1st Respondent. (Copies of the Declaration forms are herein attached and marked Annextures “B”, “C”, “D” and “E” respectively) b) The 1st Respondent bribed registered voters with money which he sent on their mobile money numbers-,-,- and-. c) The 1st Respondent gave out a number of gifts to registered voters. d) The 1st Respondent made false statements about my personal character by stating on a Radio talk show that I am a thief with a lot of money while I have no job and that I don’t reside in the Bulamogi County Kaliro District. (Radio recordings are hereto attached and marked Annexture “F”). e) That the 2nd Respondent permitted the Army, Police personnel and the 1st Respondent to intimidate my supporters on the voting day. 5. That I am informed by my lawyers M/s B3 & Co. Advocates whose advice I believe to be true that the above acts amount to illegal practices and are a breach of the provisions of the Parliamentary Elections Act 2005 as amended. 6. That I honestly believe that such an election was not an expression of the free will and consent of the people through a free and fair election. 7. That I swear this affidavit in support of my petition. 8. That whatever is stated herein above is true to the best of my knowledge save for paragraph 5 whose source I have disclosed. Sworn At Mbarara this ………. day of July 2019 By the Said MANGALU SIMON Mangalu Simon _______________ DEPONENT BEFORE ME Okwadikiria Peter ………………………………………. A COMMISSIONER FOR OATH DRAWN & Filed by: M/s Firm B3 & Co. Advocates P.O. BOX, 111, Mbarara. THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA IN THE MATTER OF THE PARLIAMENTARY ELECTIONS ACT 2005 AND IN THE MATTER OF THE PARLIAMENTARY ELECTION (INTERIM PROVISION) RULES 2006 AND IN THE MATTER OF THE PARLIAMENTARY ELECTIONS (ELECTION PETITION) (AMENDMENT) RULES 2006 ELECTION PETITION NO…………..OF 2019 MANGALU SIMON::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PETITIONER VERSUS 1. LUBOMO KEN 2. THE ELECTORAL COMMISSION::::::::::::::::::::::::::::::::::::::::::::::RESPONDENTS NOTICE OF PRESENTATION OF THE PETITION To: 1. LuboMo Ken 2. The Electoral Commission WHEREAS THE PETITIONER has petitioned this Honourable Court praying for setting aside the election of the 1st Respondent as a Member of Parliament for Bulamogi County, Kaliro District. (See Copy of Petition attached hereto) YOU ARE HERETO SUMMONED to appear in this Court in person or by an advocate on the_______day of ___________ 2019 at ___________ O’clock in the forenoon or soon thereafter as the above Election Petition shall be heard and disposed of. YOU ARE ALSO given 10 days from the date of service to file your reply to the Election Petition. TAKE NOTICE that in default of your so doing, the Election Petition will be heard and determined in your absence. Given under my hand and seal of this Honourable Court this ___day of __________2019 Atepo Shafiq ______________________ REGISTRAR Extracted by: M/s Firm B3 & Co. Advocates P.O. BOX, 111, Mbarara. 4. WHAT PROCEDURE CAN BE UNDERTAKEN TO PROTECT LUBOMO KEN’S SEAT? Honourable LuboMo Ken can protect his seat by filing an answer to the petition. Pursuant to Section 62 of the Parliamentary Elections Act 17 of 2005, the petitioner ought to serve the respondent with the notice of petition accompanied by a copy of the petition within 7 days after the filing of the petition. Per Rule 7(1) of the Parliamentary Elections(interim Provisions) (Election Petitions) Rules S.I141-2, upon the respondent being served with the petition, they ought to furnish to the registrar in writing, signed by the respondent or their advocate, the address at which any document relating to the proceedings of the petition and intended for the respondent may be served. Under Rule 8(1) of the Parliamentary Elections (Interim Provisions) (Election Petitions) Rules S.I 141-2 the respondent may oppose the petition within 10 days after it is served on them and file an answer to the petition. The respondent’s answer shall be filed with the registrar of the High court with 5 copies of it for use by court and for service on the commission, returning officer and the other respondents, if any. This is pursuant to Rule 8(2) of the Parliamentary Elections (Interim Provisions) (Election Petitions) Rules S.I 141-2. Such answer to the petition shall be accompanied by an affidavit stating the facts upon which the respondent relies to support their answer and a fee of fifty thousand per Rule 8(3) (a-b) of the Parliamentary Elections (Interim Provisions) (Election Petitions) Rules S.I 141-2. This is followed by the service of a copy of the answer to the petition on the petitioner or their advocate within 5 days after filing it with the registrar per Rule 8(4) of Parliamentary Elections (Interim Provisions) (Election Petitions) Rules S.I 141-2. Where the respondent requires further and better particulars of the petitioner, he shall apply for them together with the answer per Rule 8(5) of the Parliamentary Elections (Interim Provisions) (Election Petitions) Rules S.I 141-2. DOCUMENTS I. Answer to Petition. II. Affidavit in support. PART B a) Failure to trace LuboMu Ken for service of process within the statutory period. Rule 6 of the Parliamentary Elections (Interim Provisions) (Election Petition) Rules 2006 SI 141-2 for abundance of caution and greater clarity provides that; (1) Within seven days after filing the petition with the registrar, the petitioner or his or her advocate shall serve on each respondent notice in writing of the presentation of the petition, accompanied by a copy of the petition. (2) As soon as possible upon presentation of the petition and compliance by the petitioner or his or her advocate with rule 5 of these Rules, the registrar shall send a certified copy of the petition to the commission and the returning officer unless either of them is a respondent in the proceedings. (3) Service of the petition on a respondent under these Rules shall be personal except as provided in sub rule (4) of this rule. (4) Where the respondent cannot be found within three days for effecting personal service on him or her, the petitioner or the advocate of the petitioner shall immediately make an application to the court supported by an affidavit, stating that all reasonable efforts have been made to effect personal service on the respondent but without success. (5) If the court on an application under sub rule (4) of this rule is satisfied that all reasonable efforts have been made to effect service on the respondent but without success, the court may order that service be effected in any of the ways prescribed by Order V of the Civil Procedure Rules for service other than personal service, fixing the date for appearance within seven days. (6) The registrar shall, in any case, post up on the court notice board a certified copy of the petition and shall, in addition, if the court so directs, cause a certified copy of the petition to be published in the Gazette. In the premises, I would file an application under Rule 19 of the Parliamentary Elections (Interim Provisions) (Election Petition) Rules 2006 SI 141-2, Section 98 of the Civil Procedure Act Cap 71, and Order 52 Rules 1, 2 and 3 of the Civil Procedure Rules SI 71-1 seeking for orders that time for service of process upon the 1st Respondent be enlarged and/or extended. Rule 19 states that; “The court may of its own motion or on application by any party to the proceedings, and upon such terms as the justice of the case may require, enlarge or a bridge the time appointed by these Rules for doing any act if, in the opinion of the court, there exists such special circumstances as make it expedient to do so." In the case of Kwera Stella Ngirabakunzi v. Ntabgoba Jeninah, Parliamentary Elections Election App. No. 17/1996 (Arising from Election Petition No. 40 of 1996), the Court of Appeal considered provisions of Rule 19 of the Parliamentary Elections (Election Petition) Rules 1996 which were similar to the current SI 141-2 Rule 19. Manyindo DCJ held that the Rule gives court wider powers to extend the period provided special circumstances are shown. The Court of Appeal went on to hold that special circumstances vary from case to case, but must relate to the inability or failure to take the particular step within the prescribed time. It is trite law that the fact that the petition appears likely to succeed cannot alone amount to a special circumstances. The Court of Appeal then quoted with approval Shanti Vs Hindocha & Or's [1973] EA 207 where it was held that – “The position of an applicant for an extension of time is entirely different from that of an applicant for leave to appeal. He is concerned with showing sufficient reason why he should be given more time and the most persuasive reason that he can show is that the delay has not been caused or contributed to by dilatory conduct on his own part. But there are other reasons and these are all matters of degree.” Similarly, in Sitenda Sebalu v. Sam Njuba & the Electoral Commission, Election Petition Appeal No. 26 of 2007 the Supreme Court while considering similar provisions as Rule 19(supra) also took the occasion to observe that court has power under the said Rule to extend time within which to serve a notice set by Rule 6(1) of the same Rules which required service of such notice to be made within seven days after filing the petition as held in Mukasa Anthony Harris v. Dr. Bayiga Michael Philip Lulume, Election Petition Appeal No.18 of 2007(SC). Relying on the Supreme Court authorities cited, a person who has failed to serve within the statutorily prescribed time may file an application for extension/enlargement of time. Alternatively, Rule 6 (5) of the Parliamentary Elections (Interim Provisions) (Election Petition) Rules 2006 SI 141-2 states that if the court on an application under subrule (4) of this rule is satisfied that all reasonable efforts have been made to effect service on the respondent but without success, the court may order that service be effected in any of the ways prescribed by Order V of the Civil Procedure Rules for service other than personal service, fixing the date for appearance within seven days. This provision envisions an application for substituted service which is equally a viable option in the given circumstances premised under Order V rule 18 of the Civil Procedure Rules SI 71-1. b) Kitakule Paul had taken similar steps against the wrongdoers in the same court. Order XI rule 1 of the Civil Procedure Rules SI 71-1 states that where two or more suits are pending in the same court in which the same or similar questions of law or fact are involved, the Court may, either upon application of one of the parties or of its own motion, at its discretion, and upon such terms as may seem fit- a) order a consolidation of those suits; and b) direct that further proceedings in any of the suits be stayed until further order. An application for consolidation is brought by way of Chamber summons under Order XI rule 2 of the Civil Procedure Rules SI 71-1. Consolidation of suits is for the purpose of being heard and determined together due to the similarity of the issues each one raised. In Male Hassan Mabirizi Vs Attorney General Const. Petn No. 49 of 2017 and other petitions in the Constitutional Court, the consolidated petitions arose out of different petitions that were filed separately by different parties challenging the passing of the Constitution (Amendment) Act 2018 and Court directed that the same be consolidated under Rule 13 of the Constitutional Court (Petitions and Reference) Rules. 1. CONSTITUTIONAL PETITION NO. 49/ 2017 MALE H. MABIRIZI …………………............................................... PETITIONER VERSUS ATTORNEY GENERAL …………………......................................... RESPONDENT 2. CONSTITUTIONAL PETITION NO. 03/ 2018 UGANDA LAW SOCIETY ……………….......................................... PETITIONER VERSUS ATTORNEY GENERAL ………………........................................... RESPONDENT 3. CONSTITUTIONAL PETITION NO. 05/2018 1. HON GERALD KAFUREEKA KARUHANGA } 2. HON JONATHAN ODUR } 3. HON. MUNYAGWA S. MUBARAK } :::::::::::::::::::::::: PETITIONERS 4. HON. ALLAN SSEWANYANA } 5. HON. SSEMUJJU IBRAHIM NGANDA } 6. HON. WINIFRED KIIZA } VERSUS ATTORNEY GENERAL .............................................................. RESPONDENT 4. CONSTITUTIONAL PETITION NO. 10/ 2018 1. PROSPER BUSINGE } 2. HERBERT MUGISA } :::::::::::::::::::::::::::::::::::::::::::::::: PETITIONERS 3. THOMAS MUGARA GUMA } 4. PASTOR VINCENT SANDE } VERSUS ATTORNEY GENERAL …………………………............................... RESPONDENT 5. CONSTITUTIONAL PETITION NO. 13/ 2018 ABAINE JONATHAN BUREGYEYA ………….................................. PETITIONER VERSUS ATTORNEY GENERAL …………………........................................ RESPONDENT