Bahinduka v Rwemulikya and Another (Election Petition No 3 of 2006) 2016 UGHCEP 26 (15 August 2016)

Election Petition No. 3 of 2006

Case Details

  • Court: High Court of Uganda at Fort Portal

  • Petitioner: Hon. Bahinduka Martin Mugarra

  • Respondents: 1. Gerald Rwemulikya Ibanda2. Electoral Commission

  • Judge: Hon. Lady Justice H. Wolayo

  • Date of Judgment: 15th August 2016

Background of the Petition

  • The petitioner sought to:

    • Set aside the election of the 1st respondent.

    • Declare him as the runner up or

    • Order a fresh election.

Grounds of the Petition

  • The 1st respondent was allegedly:

    1. Not qualified for election as an MP.

    2. Not a citizen of Uganda.

    3. Identified as a Congolese national with a voter’s card from the Democratic Republic of Congo (DRC).

    4. Entered Uganda as a refugee in 1993.

Respondents' Denial

  • Both respondents denied the allegations, claiming the 1st respondent is a Ugandan citizen and was validly nominated.

  • Legal representation:

    • 1st respondent: ESNafrica Advocates & Acellam Collins & Co. Advocates.

    • 2nd respondent: Kandeebe, Ntambirweki & Co. Advocates.

Legal Framework

  • Reference to EPA 13 of 2011:

    • Burden of proof in election contests is on the contestant.

    • Standard of proof: balance of probabilities.

Issues for Trial

  1. Qualification of the 1st respondent at the time of nomination.

  2. Whether the petitioner is entitled to the reliefs sought.

Evidence Presented by the Petitioner

Citizenship Claims

  • Focused on article 80(1)(a) of the Constitution: qualifications include citizenship, being a voter, and education qualifications.

  • Claim that the 1st respondent is not a Ugandan citizen was central.

Witness Testimonies

  • Kahiigwa Edward (PW1): Testified about refugee enumeration in 1993. Claimed the 1st respondent and his father were registered as refugees fleeing Zaire.

  • Emphasized that John Kituku (1st respondent's father) supposedly enumerated as a refugee.

Enumeration Documents

  • Ten forms filled during alleged enumeration of refugees revealing inconsistencies in records.

  • The claim of refugees was weakened by evidence suggesting it was about cattle registration for revenue.

  • Lack of signed forms and clear direction for the 1993 enumeration raised doubts about authenticity.

Additional Evidence Considered

  • John Kituku's Affidavit: Claimed he fled with cattle, leaving his family behind—implying inconsistencies in petitioner’s narrative.

  • Testimonies seemed to support a narrative of local revenue needs rather than credible refugee registration.

Voter’s Cards Evidence by Petitioner

  • Introduced photocopies of voter’s cards allegedly indicating the 1st respondent's Congolese nationality.

  • Shown to be unverifiable under scrutiny, as originals could not be located in court.

Conclusion of Evidence Review

  • Petitioner failed to demonstrate credible evidence of the 1st respondent’s Congolese nationality or that he was unqualified for election.

  • John Kituku provided extensive documentation supporting his claim to Ugandan citizenship, including tax records and land ownership which strengthened his case.

Legal Findings

  • The petitioner did not prove the allegations related to the citizenship of the 1st respondent.

  • The court recognized the law regulating citizenship, emphasizing that:

    • Citizenship by birth in Uganda is conferred by the parents' status.

    • The 1st respondent presented valid national identity documents affirming Ugandan citizenship.

Judgments and Orders

  • The petition was dismissed; the 1st respondent is a citizen of Uganda.

  • A permanent injunction against the petitioner from claiming the 1st respondent’s Congolese nationality was issued.

  • Petitioner ordered to pay costs to the respondents.

Date of Judgment

  • 15th August 2016

  • Judge: Hon. Lady Justice Henrietta Wolayo