Supreme Court rules on polls in 6 municipalities
Justice Mike Chibita
What you need to know:
- This follows a judgment in which a panel of five justices unanimously dismissed an appeal in which the Attorney General and the EC had sought to overturn the lower court’s (Constitutional Court) judgment that had ejected the six MPs from the House for being elected in non-existent constituencies.
The Supreme Court yesterday confirmed that the Electoral Commission (EC) erroneously organised parliamentary elections in the six newly-created constituencies for the 2016 General Election.
This follows a judgment in which a panel of five justices unanimously dismissed an appeal in which the Attorney General and the EC had sought to overturn the lower court’s (Constitutional Court) judgment that had ejected the six MPs from the House for being elected in non-existent constituencies.
“The petition was filed before the said elections were held with one of the remedies sought being a permanent injunction barring the holding of the elections therein. The nullification of the said elections was a mere consequence of the declaration that the constituencies were unconstitutionally turned into vacancies. As such the appellants reliance on the case of Theodore Ssekikubo and others v AG (2005) is unfounded,” ruled Justice Mike Chibita, who wrote the majority decision.
He added: “The appeal is dismissed with costs to the respondent (Mr Eddie Kwizera). The respondent is awarded half the taxed costs in the court below.”
The other justices are Ezekiel Muhanguzi, Faith Mwondha, Paul Mugamba, and Night Percy Tuhaise.
Yesterday’s decision means the elections in the aforementioned six constituents were illegal and wasted taxpayers’ money.
The other implications are that the said elected MPs earned salary which they were not entitled to.
By presstime it was not clear what the implication would be for the MPs that completed the term and those in the current Parliament.
The constitutional court had earlier ejected from the 10th House MPs Patrick Ochan (Apac, UPC), Elioda Tumwesigye, (Sheema Municipality, NRM), Tarsis Rwaburindore Bishanga (Ibanda Municipality, NRM), Hashim Sulaiman (Nebbi Municipality, NRM), Asuman Basalirwa (Bugiri Municipality, Jeema) and Peter Abrahams Lokii (Kotido Municipality, NRM) for having been elected in non-existent constituencies.
The justices said the elections were conducted neither in General Election nor as a way of by-election which are the only recognised ways of electing MPs.
The court described the election of the affected six lawmakers as “improper, having been conducted prematurely” for non-existent vacancies, hence null and void.
“In the premises, I would hold that elections conducted in the six affected municipalities mentioned in the judgment are not elections for an office of Member of Parliament existing under the Constitution because they are not general election or by elections,” Justice Christopher Madrama Izama, who wrote the lead Constitutional Court decision, then held.
He added: “Secondly, the seats contested for did not have a vacancy and were already represented by elected MPs in the General Election of 2016.”
Justice Madrama also said elections cannot be held where there is no vacancy and which can only occur upon the next dissolution of Parliament or upon recall or the declaration of a vacancy by the Speaker.
He warned that it would lead to a situation where the proportions of representation in Parliament can be multiplied or decreased for particular political parties depending on where certain majorities are popular after the General Election.
Background
The Electoral Commission (EC) conducted the general election on February 18, 2016, leading to the elections of President and MPs in the 10th Parliament in 290 constituencies. However, on August 9, 2016, about seven months later, Parliament passed a resolution, prescribing the number of constituencies to be 296. This led to the creation of new constituencies in form of municipalities of Bugiri, Sheema, Nebbi, Ibanda, Apac, and Kotido.
In 2018, the EC exercised its mandate and organised elections in the newly-created constituencies.
But prior to holding of the polls in 2018 in the new constituences, Mr Kwizera, the complainant, had already petitioned the Constitutional Court against the AG and EC under Article 137, challenging the constitutionality of several acts and processes surrounding the creation of the six new constituents and the conduct of elections therein.
