THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(CIVIL DIVISION)
ELECTION PETITION NO. 02 OF 2022
IN THE MATTER OF THE EAST AFRICAN LEGISLATIVE
ASSEMBLY ELECTIONS ACT, 2001
AND
IN THE MATTER OF THE ELECTION OF UGANDA’S
REPRESENTATIVES TO THE EAST AFRICAN LEGISLATIVE
ASSEMBLY HELD ON 29TH SEPTEMBER 2022
AGABA GILBERT AND 3 OTHERS::::::::::::::::::::::::::::PETITIONERS
Versus
THE ATTORNEY-GENERAL AND 11 OTHERS :::::::: RESPONDENTS

Judgment

Before: Hon. Justice Dr Douglas Karekona Singiza

1 Introduction

The East African Community (EAC) is a regional body of historical and

contemporary importance to member states. The East African Legislative
Assembly (EALA) is one the organs of the EAC established under the Treaty for
the Establishment of the East African Community (hereafter ‘the treaty’).1 The
national assemblies of every member state elect nine members who represent that
state in the Assembly. The role of the eight organs is to deepen co-operation in
the exercise of the judicial mandates of the partner states, among other
objectives.2 The treaty’s ultimate aim is to foster a loose federation along the lines

1
See the preamble to the treaty.
2
Historically, Uganda, Kenya and Tanzania were the original members of the regional body,
with links to British imperial interests in trade and commerce through taxation as a source of

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of regional bodies such as the European Union. This court is aware that the
collapse of the defunct EAC in 1977 was linked in part to juridical and ideological
strains among the member states of the time.3

The jurisdictional mandate of this court in interpreting the treaty in a petition

before it has been challenged as falling outside its mandate on the ground that
such a mandate is exercised exclusively by the regional court.

2 Background

A group of candidates who were nominated to run for the positions of Uganda's
representatives to the EALA claim that the way in which the election of EALA
members was conducted infringed the treaty, the East African Legislative
Assembly Elections Act, and the Ugandan Constitution.

The allegation is that the elections were predetermined and that numerous
irregularities affected the results, such as the simultaneous conduct of polling and
campaigning, the usage of a ballot paper with an ‘arbitrary’ order of candidates’
names, and the failure to conduct voting in plenary. A complaint was also made
concerning the participation of ex-officio Members of Parliament (MPs).

The petitioners contend that these irregularities and illegalities also offended the
Rules of Procedure of Parliament and substantially affected the election results to
their disadvantage. They thus seek the following declarations and orders:

1) That the 4th to 12th respondents were not validly elected;

2) That the result of the election be annulled;
3) That an order for conduct of fresh elections be made; and

revenue. Rwanda, Burundi, South Sudan, and Democratic Republic of Congo joined the
regional bloc later, and with them came different legal systems and histories.
3
The preamble of the treaty hints at an agreement in which the members committed themselves
to a significant collective understanding.

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 4) The costs of the petition.

2.1 Legal representation

At the commencement of the petition, J Byamukama & Co. Advocates
represented the petitioners, while the Attorney-General represented the 1st, 2nd
and 3rd Respondents. Ms. Magna Advocates, Ms. Mpanga Advocates, Ms.
Tumisiime, Kabega & Company Advocates, Ms. Semuyaba, Iga & Co.
Advocates, and Ms. Luzige, Lubega, Kavuma & Co. Advocates, represented the
other respondents. I must state at the outset that I found the pleadings and
arguments presented by counsel from both sides to be clear and helpful. It is my
hope that this ruling will be equally clear and helpful.

2.2 Petitioners’ summary of the evidence

Mr Agaba Gilbert participated in the election of members of the EALA held on
29 September 2022, where he contested against 27 other candidates. He alleged
several illegalities and irregularities in the election. For instance, his affidavits
contend that the election involved the usage of a ballot paper in which the
ordering of the names of candidates was ‘arbitrary’ and that it followed a process
which was insufficiently transparent, with ballot-stuffing cited as a point of
reference. Agaba also refers to the alleged bias of the Rt. Hon Speaker of the
Parliament (she was the returning officer and is now the 2nd Respondent) because
she campaigned directly for some of the candidates. Agaba is also aggrieved
because he was allegedly denied access to information relating to the tally of
results and the register of voters used for identifying the MPs who voted.

Agaba’s allegations are supported by the affidavit of Ms. Lolem Josephine, who
also participated in the election for members of the EALA, as she too had been
verified and nominated alongside 27 other candidates. Her complaint specifically
concerns the Rt. Hon Speaker’s decision to conduct the elections and campaigns
concurrently, a decision that allegedly denied her and other candidates a fair
opportunity to canvass MPs for their support. Furthermore, she argues that the

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use of a ballot paper in which the order of the names of candidates was ‘arbitrary’
created an opaque environment susceptible to vote-rigging. The fact that there
were no guidelines on when voting would start and end was cited as a further
example of irregularity.

Nakitende Salaama Adelaide, who also participated in the elections, claims that
she was prevented from accessing the polling stations on the election day and that
some of her agents were harassed and arrested by security personnel.

The affidavit of Mr Bwengye Lauben Muhangi repeats the allegations of the other
witnesses but highlights the fact that all but one of the members elected to the
EALA belong to the same political party. He adds, indeed, that the only
independent winning candidate is allied to the ruling party, contrary to Article 50
of the EAC treaty and Rule 12 of the Rules of Procedure of Parliament.

2.3 Brief reply to the petition

All the respondents insist that the pre-voting processes were open and transparent
to all candidates, and that every eligible MP who was present during the allocated
time was free to cast his or her vote without any hindrance whatsoever. The
respondents assert that the ballot paper complained of did not infringe on any
legal framework and was not designed to favour specific candidates.

The 1st, 2nd and 3rd Respondents deny the allegations in the petition and insist that
the Rt. Hon. Speaker presided over the voting process in an impartial manner that
observed customary parliamentary decorum. The 4th, 5th, 7th, 8th, and 11th
Respondents (who are represented separately) do not depart from the contentions
made by the 1st, 2nd and 3rd Respondents. They insist that there is no mandatory
requirement that the ballot paper must have security features or serial numbers,
as the petitioners seem to allege. Similarly, the 6th Respondent (who is also
represented separately) vehemently denies the allegations made in the petition
concerning voter fraud, ballot-stuffing and other irregularities and maintains that

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the election results reflected the will of the electorate. Finally, the 9th and 12th
Respondents (also separately represented) contend that the challenged election
results complied strictly with Article 50 of the treaty.

3 Preliminary objections

Before the commencement of the hearing of the petition, the 1st, 2nd and 3rd
Respondents informed the court orally that they intended to raise preliminary
points of law, a position confirmed by the rest of the respondents. It was agreed
that all the respondents would adopt joint submissions. For ease of reference, in
this part of the ruling I will refer to all the respondents as “the applicants” and to
all the petitioners as “the respondents”.

In their written submissions, the applicants insist that the petition as presented
before the court is bad in law because it seeks to interpret the provisions of the
treaty; by so doing, the petition brings to question the jurisdictional status of this
court in adjudicating over the petition. Furthermore, it is asserted that the petition
does not disclose any cause of action in respect of the 2nd and 3rd applicants in
that the alleged wrongs attributed to them were not personal in nature but acts
performed in the execution of their public duties. Three preliminary objections,
as understood by this court, are as follows:

1. Whether the court has jurisdiction to handle the election petition that
raises matters of interpretation of the EAC Treaty;
2. Whether the 2nd and 3rd Respondents can be sued as parties to an election
petition; and
3. Whether the petitioners’ affidavits filed after closure of pleadings are
competently on record.

I need to state that should the first preliminary objection succeed, then it would
be wish-wash for this court to discuss the remaining issues in any detail.

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3.1 Point of departure
The applicants argue that they do not contest this court’s jurisdiction to adjudicate
petitions regarding elections to the EALA, but object rather to this court’s power
to interpret the treaty. It is the view of the applicants in their preliminary point
that the mandate to interpret the treaty vests in the East African Court of Justice
(EACJ). For the respondents, their argument, as understood by this court, is that
a reference to the treaty in the petition is merely complementary. They make the
point that this court could in essence separate the petition. The respondents insist
that this court could elect to address the claims dealing with jurisdiction
separately to save the rest of the petition.

Very clearly, the question revolves around whether this court is clothed with the
power to interpret the treaty while dealing with a petition challenging the
outcomes of the elections of EALA members. Indeed, without jurisdiction, a
court of law does not have authority to examine the substantive issues, however
grave they may be.4

The available jurisprudence on the jurisdiction to interpret the treaty reflects a

mixed bag of approaches that could inevitably result in tensions. In my view, the
recognition of the ‘subsidiarity’ principle under the treaty5 (an area which is not
addressed at all by any of the parties in their submissions) may easily determine
whether or not this court is vested with any of powers to interpret the treaty. I will
deal with the principle of subsidiarity in detail later in this ruling. For now, in the
paragraphs below, I consider the specific arguments advanced by the two sides.

4
Uganda v Hon. Kassiano Ezati Wadri and 31 others [2018] UGHCCRD 151.
5
Article 1(1) of the treaty provides that the ‘“principle of subsidiarity” means the principle
which emphasises multi-level participation of a wide range of participants in the process of
economic integration’.

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4 Framework on the power to interpret the treaty

Both parties conversed the framework on the power to interpret the treaty by the
EACJ. Indeed, Article 23 of the treaty vests the mandate to interpret to the treaty
in the EACJ.6 Case law confirms the position that only the EACJ has jurisdiction
to interpret the treaty.7 In Muhochi,8 the view was that unless jurisdiction has been
conferred on the national courts, the interpretative jurisdiction remains exclusive
to the EACJ.

It is true that one of the areas where the treaty expressly confers jurisdiction upon
national courts is in the adjudication of election petitions concerning the EALA.9
In fact, the EACJ has declined to adjudicate election petitions because it did not
have the power to do so under the treaty.10 In Katuntu,11 the EACJ took the view
that it could exercise jurisdiction in election petitions by EALA members only
where the matter required interpretation of the treaty. That being said, jurisdiction
by national courts to hear election petitions challenging the election of EALA

6
Article 27 (1) of the treaty provides that ‘[t]he Court shall initially have jurisdiction over the
interpretation and application of this Treaty’, which suggests the possibility that, in the future,
member states could allow the courts’ ‘plenary powers’ to vest in members states’ courts. For
detail on the meaning of plenary powers, see Singiza D Constitutional law, democracy, and
development: Decentralisation and governance in Uganda (2019: London: Routledge) p. 156.
7
Anita Among v AG of Uganda & Ors, EACJ Reference No. 6 of 2012; James Alfred Koroso v
AG of Kenya, EACJ Reference No. 12 of 2014; James Katabaazi and 21 Ors v Sec. Gen. of the
East African Community and Anor, EACJ Reference No. 1 of 2007.
8
Samuel Mukira Muhochi v AG of Uganda, EACJ Reference No. 5 of 2011.
9
See Article 52 of the treaty.
10
Prof. Anyang’ Nyong’o & 10 Ors v AG of Kenya & Ors, EACJ Reference No. 1 of 2006;
Christopher Mtikila v AG & Ors, Reference No. 2 of 2007.
11
Abdu Katuntu v AG of Uganda, EACJ Reference No. 6 of 2012.

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members is not in doubt.12 The question here is whether the pleadings require this
court to interpret the treaty.

The respondents claim that the elections were not conducted in accordance with
the treaty and offended all democratic principles laid down in articles 6 and 7 of
the treaty. They argue that in determining this question, all that the court must do
is to enforce, rather than, interpret those provisions. The respondents also take the
view this court has ‘plenary’ powers to enforce provisions of the treaty, a power
which is incidental to its mandate in Article 52. For their part, the applicants fault
the respondents for asking this court to interpretate the treaty provisions and
determine how the EALA elections should be conducted, an approach that
naturally withers away the court’s very power to do so.

In Mbabali v Ssekandi,13 the court distinguished between interpretation and

application or enforcement of the law. The court understood the term
‘interpretation’ with reference to ‘the ascertaining of the meaning of a provision
and how it should be applied in a particular context’. The court also defined
application or enforcement of the law with reference to the process of ‘effecting
a particular provision of the law to the facts of a case before the court’.

In Testimony Motors,14 the court distinguished ‘interpretation in the course of

enforcement’ from ‘interpretation of controversial provisions which may be in
dispute’. It concluded that national courts should steer clear of the latter, which
is a preserve of the EACJ. In my view, there is a strong basis for the limitation of
national courts’ power to interpret the treaty. It must have been the desire of the
framers of the treaty to avoid the risks that would be created if national courts

12
Kamurali Jeremiah Birungi & Anor. v AG of Uganda & Anor, EP 2 of 2012.
13
Mbabali Jude v Ssekandi Edward, Constitutional Petition 28 of 2012.
14
Testimony Motors LTD v Commissioner Customs Uganda Revenue Authority, Civil Suit 4 of
2011.

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were to interpret any of the provisions of the treaty differently.15 Given the
different legal systems under which the treaty now operates, it indeed would be
wise for national courts to steer clear from interpreting any treaty provisions.

An argument could emerge that the EACJ and national courts have a concurrent
power to interpret the treaty. This argument may find support in the wording of
Article 33(2), which creates a hierarchy of decisions suggesting that the decisions
of the EACJ take precedence over those of the national courts on a similar
nature.16 In the Prof. Anyang’ Nyong’o case, however, the court rejects this view
and holds that there was no provision for directly referring a question for
interpretation to the national court.17

5 Jurisdictional by incidental power

The respondents’ view is that this court could easily go ahead to interpret articles
6 and 7 of the treaty since those provisions are ‘incidental’ to the mandate of
national courts to inquire into EALA elections under Article 52 of the treaty. They
invited this court to give meaning to the term ‘incidental’ as an ordinary English
word defined with reference to ‘depending on something else, likely to happen or
happening in addition to another event’.18

The words of the Supreme Court in Baku Raphael,19 where the guidance was that
jurisdiction cannot be inferred or implied, are deeply relevant here. Caution is
thus always advised because the incidental-powers doctrine can only be

15
Prof. Anyang’ Nyong’o (op cit); Testimony Motors (op cit).
16
Article 33(2) of the treaty provides that ‘[d]ecisions of the Court on the interpretation and
application of this Treaty shall have precedence over decisions of national courts on a similar
matter’.
17
Prof. Anyang’ Nyong’o (op cit).
18
See Black’s Law Dictionary, 2nd Edition.
19
Raphael Baku & Anor. V AG, Constitutional Appeal 1 of 2005.

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interpreted purposefully and restrictively in order not to allow the encroachment
of one organ’s mandate by the other.20 It would be problematic, therefore, for this
court to rely on the incidental-powers doctrine to vest itself with a power to
interpret a treaty that is not specifically granted.

5.1 Do national laws cure the jurisdictional defects in the petition?

This court acknowledges that, besides articles 6 and 7 of the treaty, the
respondents rely on the East African Legislative Assembly Election Act and the
Rules of Procedure for the Election of Members of the East African Legislative
Assembly to build their case.

The respondents suggest that the court could as well separate the pleadings which
are not linked to articles 6 and 7 of the treaty to save the rest of the petition, which
is hinged on East African Community law, national laws, and rules. They cite
cases by the EACJ where the court dealt with only the part requiring interpretation
of the treaty and did not adjudicate over the part requiring enforcement, which is
the mandate not of the EACJ but the national courts. In Prof. Anyang’ Nyong’o,
the court divided the pleadings and went on to adjudicate only the parts where it
had jurisdiction because those happened to be the ‘core and material’ pleadings.21

The approach above is a highly problematic one for this court to adopt. In the
remaining paragraphs, this court will clarify why it is unwise, using the principle
of subsidiarity, to ‘read in’ any of the ‘plenary’ or ‘incidental’ powers as vesting
in the national courts.

20
Steytler N and De Visser J Local government law of South Africa (2007) (Durban: Lexis
Nexis) pp. 5–7 cited in Singiza D (op cit) p.156.
21
Prof. Anyang’ Nyong’o (op cit).

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6 Determining the court’s jurisdiction on the subsidiarity principle

Federal systems (or even loose federations) are grounded on the principle of
subsidiarity, a notion that speaks to a federal government’s functional mandate
which is enumerated but limited to its subsidiary role.

The principle of subsidiarity rests on the legal reasoning that a partner state’s role
is intrinsically linked to the preference for smaller orders of government. Thus, a
treaty organ should only act where a more immediate state level is unable or fails
to do so.22 There is thus a link between the treaty and the principle of subsidiarity
that may be used in diverse ways as an aid in the determination of the ‘plenary’
adjudicative power of partner states’ courts.

A wealth of literature is available on the strategic, institutional and jurisdictional

aspects of subsidiarity. For instance, subsidiary is strategic when, in the
consideration of two norms, it becomes desirable that one norm give precedence
to the other. Likewise, it may be considered institutional when preference is given
to one institution rather than another because it is deemed better suited to perform
a given function.23 According to Du Plessis, institutional subsidiarity ‘constrains
any more encompassing or superordinate institution … to refrain [from] taking
for its account matters which a more particular, subordinate institution … can
appropriately dispose of …’. 24 Subsidiarity can also be jurisdictional in character.
In this case, one level of a state organ may choose to steer clear from executing a
function because it can be performed in its entirety by another organ.25

22
See Article 7(1)(d) on the operational principles of the treaty, which provides that the
principle of subsidiarity entails an ‘emphasis on multi-level participation and the involvement
of a wide range of stakeholders in the process of integration’.
23
De Visser J ‘Institutional subsidiarity in the South African Constitution’ 2010 Stell LR 91.
24
Du Plessis LM “Subsidiarity: What’s in the name for constitutional interpretation and
adjudication?’ 2006 Stell LR 209.
25
De Visser (op cit) p. 93.

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The principle is generally used as tool for rationalising fiscal federalism by
demanding that a public good be performed only by a sphere of government
which is in an area where the public good is most preferred.

The principle is also applicable in view of the protective value it has for
democracy, with the argument being that the

deliberative process on the delivery of a public good should be [by] those people
that have a significant interest in the delivery of that public good. If too many people
with an insignificant interest are included, the deliberative process becomes over-
inclusive, and the democratic control is diluted as a result.26

The principle has found its fullest expression in the Germany Constitution, the
1992 Maastricht Treaty on the European Union, and the Treaty of Amsterdam.27

It is the decision of this court that it was the intention of the partner states that
only the EACJ should be clothed with the mandate to interpret the treaty because
‘institutionally speaking’, it is the organ most suited to do so. As such, any
petition built on idea that this court may in fact exercise some ‘plenary’ powers
to interpret the treaty must fail. Given the diversity of legal systems under the
treaty, it is also wise that national courts should be restrained from encroaching
on a mandate that they cannot efficiently exercise.

26
Ibid.
27
See Article 5 of the Treaty of the European Community, which provides:
In areas which do not fall within its exclusive competency, the Community shall
take action, in accordance with the principles of subsidiarity, only if and in so far
as the objectives of the proposed action cannot be sufficiently achieved by Member
States and ca, therefore, by reason of the scale or effect of the proposed action, be
better achieved by the Community.
Any action by the Community shall not go beyond that what is necessary to achieve
the objectives of this Treaty.

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Since the petition in its current form seeks to interpret the treaty, it is dismissed
with costs to the respondents for want of jurisdiction due to the reasons stated in
this ruling.

Having dismissed the petition, I find it unnecessary to discuss the second and
third questions that deal with cause of action and defective affidavits. I can advise
only that it is a poor litigation strategy to attempt to sue public officials in their
individual capacities unless provision is made for this in an Act of Parliament.

Dated at Kampala this 15th day of March 2023

Dr. Douglas Karekona Singiza

Acting Judge

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