ruling kwizera eddie vs national resistance organisation & nsaba buturo

7/25/2019 Ruling Kwizera Eddie vs National Resistance Organisation & Nsaba Buturo

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THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KABALE

HCT- 11- CIVIL SUIT No.

47 2 15

HON. KWIZERA EDDIE

wa -

GAHUNGU PLAINTIFF

VERSUS

1. THE NATIONAL RESISTANCE MOVEMENT

2. HON. JAMES NSABA BUTURO DEFENDANTS

BEFORE HONOURABLE MR. JUSTICE MICHAEL ELUBU

RULING

The Plaintiff, Hon. Kwizera Eddie Wa Gahungu brought this Suit against the

two Defendants, The National Resistance Movement and The Hon. James

Nsaba Buturo seeking several remedies namely,

a) A declaration that the impugned primaries were a sham, illegal, null and

void.

b) A declaration that impugned pnmanes were not

conformity with

democratic practices and principles, were not free and fair.

c) An order setting aside the said election and its results and nullifying all and

any benefits of such sham election to the defendants.

pg.l


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d) An order for fresh, orderly, free and fair primaries conforming to democratic

principles and practices and devoid of military interference.

e) A permanent injunction restraining the 15t Defendant, its agents, Electoral

Commission, appointees and officers from fronting/presenting the 2

n

Defendant as the party flag bearer for the Bufumbira Member of Parliament

Constituency to the Electoral Commission of Uganda or for any other

purpose.

f) An order that the Defendants pay general and exemplary damages to the

Plaintiff.

g) Any consequential or other appropriate reliefs.

h) Costs of the Suit be granted to the Plaintiff.

The facts leading up to this suit are laid out later in this ruling.

Mr. Peter Akankwasa appearing with Mr. Justus Muhangi represent the Plaintiff.

Mr. Idoot Augustine appears for the 15t Defendant and the Reverand Ezra

Bikangiso for the Second Defendant.

At the commencement of the hearing, Mr. Augustine Idoot raised three preliminary

points of law which he stated would finally dispose of the suit without having to go

into its merits.

pg.2


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Firstly, it is his contention, that the Plaintiff has no Locus Standi to sustain this

action. That the Pleadings show he participated in the 1st Defendant s primaries for

the Bufumbira East Constituency and that this is where he ostensibly derives his

locus standi. The Plaintiff has subsequently been nominated as an independent

candidate for the parliamentary elections in Bufumbira East consistuency.

The submission of Mr. Idoot is that the Plaintiff s action of being nominated as an

Independent extinguishes his locus in this suit.

To support his submission Counsel cited the case of

Julius Maganda Vs National

Resistance Movement Mbale HCMA No. 154 of 2010

where Justice Stephen

Musota held that standing as an independent changed the status quo and put into

question the locus of Julius Maganda to challenge the internal workings of a party

he no longer subscribed to. The facts are similar to those here. The applicant had

sued the NRM over party primaries in which he participated and lost. Later he (the

applicant) had been nominated to stand as an independent candidate. That was the

position at the time he challenged the NRM party primaries.

In reply, Mr Muhangi Justus, Counsel for the Plaintiff opposed this preliminary

objection. He contends it is misconceived in these circumstances because the

Plaintiff has come to Court seeking relief and buttressing his action against the

Constitution of the Republic of Uganda. Specifically he contends that the

C:: l:2::~..::a~enjoins all political o g?~~~?t~,:,Ylso conform to the Constitution and

democratic principals in the conduct of their internal organization as provided for

Article 71 (1) (c).

pg.3


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It is his submission that this Court has the mandate to resolve the Plaintiffs dispute

as it is a Court with unlimited original jurisdiction granted under Article 139 of the

Constitution.

It was argued further that this Court should depart from the decision in Maganda

(Supra) because, there, the Court did not consider the reasons for the applicant

opting to stand as an independent. Here the reason is clear as the Plaintiff had been

rigged out of a victory and seeks relief by courts intervention.

Counsel prayed that this Court considers Article 8 of the National Resistance

Movement Constitution which regulates membership and exit of the party .. There

is no mention in that Article of cessation of membership departure by way of

becoming an independent. For this reason the decision in Maganda (Supra)

according to Counsel for the Plaintiff is easily distinguished from the facts in the

present case.

Lastly this Court was referred to the Supreme Court Constitutional Appeal decision

in Hon. T. Sekikubo 4 others Vs A-G and 4 others Supreme Court

Constitutional Appeal No. 00112015 where, according to Counsel, it was held

that though the appellants had been expelled by their party they were still its

members as their exit was not voluntary. In the same way the Plaintiff had been

forced to stand as an independent because his own party nomination process was

badly flawed.

pg 4

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I shall now turn to the merits of the first objection. The Plaintiff, Hon. Kwizera

Eddie Wa Gahungu stood in the National Resistance Movement party primaries for

the Bufumbira East Constituency on the 2ih day of October, 2015.

One of those he stood against is the second Defendant Hon. James Nsaba Buturo

who was, after the said election, declared winner by the Electoral Commission of

the 1st Defendant after the said election.

The Plaintiff being dissatisfied with the outcome of the process challenged it by

lodging a Petition with the Chairman of the Electoral Commission of the 1st

Defendant. His Petition was based on alleged illegalities, irregularities and

incompetence in the way the primary elections were held.

The first defendants Electoral Commission is said to have considered the Plaintiffs

petition and dismissed it for lack of merit. The 2

nd

Defendant was then presented

to the Independent Electoral Commission as the flag bearer for the 1st Defendant to

contest for Member of Parliament for the Constituency of Bufumbira East County.

It was in these circumstances that the Plaintiff filed this suit on the 24th of

November, 2015. He also obtained an interim order issued by the Ag Assistant

Registrar of this Court restraining the 1

st

Defendant from presenting the 2

nd

ue;[lJlhlai-ll

as flag bearer for the t Defendant.

pg.5

i


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On the 2

n

of December, 2015, the Plaintiff was nominated to contest as an

Independent Member of Parliament by the Independent National Electoral

Commission.

The Constitution of The Republic of Uganda recognizes Independent

candidature under Article 72 (4) which provides,

Any person is free to stand for an election as a candidate independent of a

political organisation or political party.

The operative word here is Independent and what it means in the context of this

Article. There is guidance from the Supreme Court sitting as an appellate

Constitutional Court in the Hon. Sekikubo case (Supra) which held that the first

and cardinal rule of statutory interpretation is that where words are clear and

unambiguous they should be given their primary, plain, ordinary and natural

meamng.

The plain meaning of the word Independent according to the Merriam Webster

Online Dictionary is among others, Not subject to control by others; not affiliated

to a larger controlling unit; not bound or committed to a Political party

The online Oxford English Dictionary defines Independent as, free from outside

control, not subject to another s authority; not belonging to or supported by a

Political party.

In sum, Article 72 (4) of the Constitution would, in my view, mean that a candidate

may stand for election to parliament without the backing, support, control or

authority of a Political party.

pg.6


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The Parliamentary Elections Act, 2005 makes this even clearer when it provides

in Section 10 that,

...nomination of candidates may be made ... by a candidate standing for

election as an Independent candidate without being sponsored by a political

party.

Therefore an independent candidate IS deemed not to have the backing,

sponsorship, support or control of a Political party for purposes of his/her

candidature and is considered not to belong to any party.

Art 8(1) of the NRM Constitution prescribes membership of the party. It stipulates,

Membership of NRM shall be open to all Ugandans irrespective of ethnic

identity sex tribe creed or religion birth economic status race and

disability or other sectional division who are prepared to abide by its

Constitution Code of Conduct Rules Regulations and Bye-laws as may

from time to time be made.

Membership is only open to those who are prepared to abide by the Constitution

and the entire legal regime of the party. One who is not the subject of its control or

authority cannot claim membership.

It is my finding that the Plaintiff in deciding to stand as an Independent Candidate

in the parliamentary elections for the Constituency of Bufumbira East County

opted out of the first Defendant by his actions. He was at that point deemed not to

be affiliated to the NRM nor was he the subject of its control and authority. It

pg.7


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would mean that being an NRM party member and standing as an independent are

mutually exclusive. One cannot be both.

I therefore agree with the holding in the case of Julius Maganda (Supra) cited by

Counsel for the 1st Defendant. It was held by Justice Musota in that case that,

... The applicant unequivocally opted out of the National Resistance

Movement on his own volition and opted to stand as an independent. The

Applicant cannot be an Independent candidate and at the same time be a

member of the National Resistance Movement party.

The facts in the Maganda case are similar to the instant case in that the Applicant

had chosen to stand as an independent candidate during the parliamentary elections

for Samia Bugwe Constituency when the NRM fronted another candidate (who

won the elections) during the party primaries.

Therefore the contention by Counsel for the plaintiff that membership of the

National Resistance Movement is governed by Article 8 of its party Constitution is

true but as shown here does not apply to the plaintiff who has by his actions

voluntarily opted out.

I now return to the question whether the Plaintiff has the locus standi to sustain this

action?

Blacks Law Dictionary (8

th

Edition) defines locus standi as the right to bring an

action or to be heard.

pg8


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I am in agreement with the finding of Justice Musota in the Maganda case (supra)

that by standing as an independent the applicant had opted out of the NRM party

and waived his rights to present his application challenging the results of the party

pnmanes.

In the same vain, Hon. Eddie Kwizera Wa Gahungu opted out of the NRM when

he was nominated as an Independent candidate for the 2016 Parliamentary

Elections by the National Electoral Commission and has lost his right to prosecute

this Suit.

The first Defendants first Preliminary objection is sustained.

The second preliminary objection of the l defendant is that this action has been

rendered moot by the decision of the Plaintiff to offer himself as an independent

candidate for the elections of Member of Parliament for Bufumbira East

Constituency. It is the submission of Counsel that as a result the remedies the

plaintiff seeks in his plaint are unenforceable and no longer available to him.

(Those prayers were laid out earlier in this ruling).

Mr. Idoot submitted farther that there is no live dispute here and any order of this

Court would be for purely academic purposes.

pg.9


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He contends the prayers made by the plaintiff are aimed at securing a fresh primary

election for purpose of choosing a fresh flag bearer for the 1st Defendant. Hence

the prayer for a declaration that the primaries were a sham, null and void; and a

declaration that the primaries did not conform to democratic principles and were

not free and fair. He prays they are set aside and a fresh, orderly and free and fair

election is ordered. It is also prayed that a permanent injunction issue against the

1st Defendant restraining him from presenting the second defendant as party flag

bearer. The Plaintiff seeks general and exemplary damages, and lastly costs of the

Suit.

Counsel cited the case of Prof. Ephraim Kamuntu Vs NRM Electoral

Commission

&

2 Others Court of Appeal, Election Petition Application No.

45 2 2 where the Court of Appeal held that it has now settled law that where

proceedings which were viable when instituted have by reason of subsequent

events become inescapably doomed to fail, a Court of Law may decline to

determine the issues arising therefrom as they would have become lifeless,

academic, speculative hypothetic and moot.

He states the national nomination days for candidates standing for Member of

Parliament by the Independent National Election Commission were 2

nd

and 3

rd

of

December, 2015. Those dates have passed and the nominations were duly

conducted and concluded and the Plaintiff was nominated as an Independent

Candidate. For those reasons Counsel contends that the prayers the plaintiff seeks

are unenforceable and moot.

pg.


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The other leg of Counsels submission is that any order of Court, were it granted

would have to be implemented by the Independent National Election Commission,

which would be required to hold a fresh nomination for the Bufumbira East

Constituency outside the gazetted nomination days and national elections roadmap.

The National Election Commission has not been a party to these proceedings and a

Judgment between the present parties cannot be enforced against them.

In Reply Counsel for the Plaintiff maintains that the prayers for fresh elections and

all the remedies were still available to the Plaintiff at the time the suit was filed. It

was the Court that delayed in fixing the matter and that is what led to delay in

hearing and disposing of the suit.

It is argued by Counsel that the Kamuntu case (Supra) cited is clearly

distinguishable because, there, a consent judgement was entered by the parties and

matters between the parties resolve. That was not the position here.

The Court should consider that what is at stake is the Plaintiffs right to participate

in multiparty elections as enshrined in Article 71 of the Constitution.

I have considered the submissions on the second preliminary objection.

From

tilt;

prayers it is clear that the applicant seeks to have a fresh nomination

process conducted by the

1

st Respondent. At the time that he filed this action the

prayers were viable.

pg.


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Subsequent events namely his nomination as an independent candidate, completion

of the nomination elections by the 1st Respondent, and the completion of the

nominations by The Independent National Election Commission have rendered his

cause inescapably doomed to fail. (See Kamuntu)

Secondly and more importantly, as held in the first preliminary objection, the

Plaintiff has no locus standi to sustain this suit. A party with no locus cannot

obtain reliefs from Court.

The second objection is accordingly sustained.

or that reason I do not deem it necessarily to consider the

r

preliminary point of

law as these two have finally determined the matter before me.

pg. 2

This suit is dismissed.

The Interim order issued in Misc. Application No. 792 15 is vacated.

There shall be no order as to costs.


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>

Dated at Kabale this ..

? L

day of

t.~.2015.

MICHAEL ELUBU

JUDGE

pg.13

ruling kwizera eddie vs national resistance organisation & nsaba buturo

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