WORKSHOP ONE

GROUP 1

BRIEF FACTS

On the 12/02/2020, the Electoral Commission conducted a Parliamentary by Election

in Maddudu County Constituency Kabulasoke District in which 4 candidates
participated including Sebanja Eric who emerged second with 16300 votes and
Positive Power’s Musisi Ismail won with 16327 votes. On the 17 th August 2020, the
Electoral Commission gazetted the name of Musisi Ismail as duly elected MP. He was
sworn in and took office on 19 th August 2020. Sebanja Eric was dissatisfied with the
results and generally, he alleges that there was connivance between the Returning
Officer and Musisi Ismail in favour of the winning candidate, that the entire process
was unfair and subverted the will of the people. He particularly alleges that Musisi
Ismail carries questionable academic documents, that until the relevant elections, he
was still a Government employee, that he had goons- Red Brigade(RB)- under the
command of his strong supporter Luzibu Pio, who wrecked havoc throughout the
entire campaigns up to the day of polling. He further alleges that Musisi with the
connivance of the Electoral Commission committed electoral offenses like Bribery,
uttering malicious statements to taint his character, entering forgeries on Declaration
of Results forms, among others.

ISSUES:

1. WHETHER MUSISI ISMAIL WAS PROPERLY NOMINATED AND

DECLARED WINNER OF THE BY-ELECTION?
2. WHETHER THE ACTIONS AND/OR OMISSIONS OF MUSISI ISMAIL
AND THE ELECTORAL COMISSION WERE PROPER BEFORE THE
LAW?

RESOLUTION.

1. WHETHER MUSISI ISMAIL WAS PROPERLY NOMINATED AND

DECLARED WINNER OF THE BY-ELECTION?

Article 60 of the constitution establishes the independent electoral commission

consisting of the chairperson deputy and five other members with the mandate to
conduct regular free and fair elections. The case OF KIRUNDA KIVEJINJA VS
ABDUL KANTUNTU election petition NO 24/2006 cited with approval in the
dictum in DR COL KIZZA BESIGYE VS Y.K MUSEVENI ELECTION
PETTION NO 1 OF 2000 stipulates that an election is deemed free and fair when it
is held in an atmosphere of freedom and 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 &ELECTRO COMMISSION
ELECTION APPEAL NO 25 OF 2007.

Section 4 of the parliamentary elections act ,2005, is instructive on the qualification

of candidates for a parliamentary seat which requires one to be a citizen of Uganda,,
registered voter, and fulfills the minimum ‘formal’ education requirement of
advanced level Standard.

In accordance to the facts at hand, it is not contended that Musisi Ismail lacks the
required Advanced level certificate. What is alleged is that he did not complete
primary education and hence did not obtain a Primary Leaving Examinations
Certificate which is prerequisite for one to qualify to have post primary ‘formal
education.’

It is instructive at this juncture to read from Section 2 of the Education(pre-

primary,primary and post primary) Act 13 of 2008, which defines formal
education to mean ‘a package of learning made available by recognised schools and
institutions, following approved curriculum standards and guidelines.’ The Act also
under its Section 10 sets up the levels of Education as being pre-primary, primary,
post primary and tertiary/university education.

Therefore, in interpreting that act, particularly the definition of formal education and
the requirement that one must pass through all the structures set to be deemed to have
acquired formal education, one would be disqualified if they do not have a Primary
leaving Examinations Certificate.

HOWEVER, Since the facts indicate that Musisi acquired the ‘O’level qualification
in 2003 and subsequently the Diploma (‘A’ level equivalent) in 2005, this act does not
apply since it came in force in 2008, as it cannot act retrospectively.

The above position was adopted in the case of Butime Tom v Muhumuza David &
Anor Election Petition Appeal no 11/2011,in which the court of Appeal noted that
the preceding Education Act Cap 127 of 1970 had been silent on the structures of the
different levels of education and what it required one studying to move from one level
of schooling to another. The judge concluded that the plain or literal meaning of
Section 4(1)(c), of the Parliamentary Elections Act is that a person qualifies to be a
member of Parliament on proof of having completed or gone through ‘A’ level
education or its equivalent, as the minimum level of education. He added that it
couldn’t have been the intention of the legislature, that for one to be said to have
attained ‘A’ level education, that person had to prove a string of prior qualifications
leading to the ‘A’ level standard.

Therefore as pointed out above, Musisi does not necessarily have to prove that he has
a Primary Leaving Examinations Certificate to qualify for election as member of
parliament. The Diploma he has in Social Development being the equivalent of ‘A’
level standard is enough. And since there is no contention as to whether the diploma is
indeed an equivalent of A. level standard, we conclude that Musisi’s nomination was
proper to that extent.

The other contention is in respect of his alleged position as a Gender Officer for the
Ministry of Gender, Labour and Social Development. Section 4(2) of the
Parliamentary Elections Act provides for the factors that would disqualify one from
being nominated and these are; when one is of unsound mind, a religious leader, and
as section 4(4)b puts it, a contestant holding a public office, or employed under any
government department or agency, Local government or body in which government
has a controlling interest has to resign the same at least 14 days before their
nomination.
Furthermore, section B of the Uganda public service standing orders, rule 12
provides that payment of salary to a public officer shall be stopped immediately the
officer ceases to render services to the government under whatever circumstances
including death.

From the facts at hand it is purported that Musisi retired on 19/12/2019 in a letter
addressed to the ministry of gender but however evidence of a bank indicate that that
he has been drawing salaries and allowances for field work activities until the end of
February and it is inconsistent with the law above.

Therefore, much as Musisi’s documents were proper, he had to properly resign from
his position as a Government Official to qualify for nomination. And subsequently his
declaration as winner in the midst of all the irregularities as we shall point out in the
next issue was equally improper.

2. WHETHER THE ACTIONS AND/OR OMISSIONS OF MUSISI ISMAIL

AND THE ELECTORAL COMISSION WERE PROPER BEFORE THE
LAW?

THE ELECTORAL COMMISSION.

In relation to Paragraph 5 of the facts, it is alleged that the original declaration forms
(DR) that were handed to Sebanja’s agents bore different results from what the RO
used in computing the results announced in respect of five polling stations. These
were: Masavu A, Masavu B, Masavu C, Kigagga and Wankaki.
Section 50 of the Parliamentary Elections Act requires the presiding officer to
create a number copies of the declaration of results forms and distribute them
accordingly. These bear the results of that particular polling station and therefore must
always be in tandem. Once transmitted to the Returning officer, such officer has a
duty under- Section 52, to ensure the safe custody of such documents and therefore
the discrepancies noted point to an inference that the same were tampered with.
Section 78 of the Parliamentary Elections Act creates an offence of making false
returns of an election. It stipulates under paragraph (a) that an election officer or any
other person with a duty to perform under an election who makes in any record, return
or other document which he or she is required to keep or make under this Act, any
entry which he/she knows or has reasonable cause to believe to be false, and (g)
without reasonable cause acts or omits to act in breach of his/her official duty
commits an offence and is liable on conviction to a fine not exceeding one hundred
and twenty currency points or imprisonment not exceeding five years or both.

Paragraph 6 of the facts also reveals that the polling agents’ signatures on the DR
forms used by the RO to declare results at these five polling stations were forged.
That while the DR form for Wankaki was unsigned by the presiding officer (PO),
those for Masavu A, B & C lacked the signatures of his agents. This shows that the
returning officer neglected his duties under Section 50 as indicated above. Section 76
(a) creates an offence of forgery and stipulates the same punishment and indicated
above.

Section 40 of the Act gives Returning officers powers of Justice of Peace during an
election. They can by verbal order cause to be arrested any person who causes
disorder or is seen to engage in actions likely to cause disorder at any polling station.
Yet Paragraph 3 of the facts reveals that Musisi Ismail’s goons dubbed the Red
Brigade (RB) continued to wreck havoc even on the polling day and the Commission
omitted to evoke its powers to bring about order. Under Section 45, it is stipulated
that where violence or any other interruptions are caused at a polling station, the
Electoral commission can postpone voting, non of such measures were taken and
therefore this shall be deemed improper.

MUSISI ISMAIL.

As indicated in paragraph 3 of the facts, Musisi’s goons under the command of his
strong supporter Luzibu Pio wreaked havoc on the constituency. They caused assaults
and intimidation to the people. All such actions are prohibited under the
Parliamentary Elections Act. Section 71 for instance considers obstruction of voters
an illegal practice and such actions have the effect of obstructing voters. Section 72
stipulates the punishment for illegal practices as fine not exceeding 48 currency
points or imprisonment not exceeding two years or both. Section 80 also creates an
offence of Undue influence for instance where a person directly or indirectly through
another makes use of force or threatens to use violence in order to compel or make
one refrain from voting. Section 7(a) also requires secrecy and prohibits any person
from interfering with another at the time of voting especially through intimidations,
undue influence or threats. Section 24(b),(c) and (e) also prohibits the creation of
such groups to interfere with electioneering activities of others. Therefore by virtue of
all the provisions cited above, Musisi’s actions were improper.

Paragraph 4 of the facts reveals that on 07/2/2020, Musisi Ismail well within his
knowledge, consent and approval acted through his campaign agent namely Yosiya
Bulolo who distributed Red T-shirts, bars of soap and sachets of salt to the voters in
Nameere Sub county. This is not proper as in offends Section 68 of the Parliamentary
Elections Act that prohibits bribery and considers it an illegal practice. The
punishment for illegal practices has already been stipulated above.

Paragraph 7 also indicates that Musisi made malicious statements tainting Sebanja’s
character. Section 21(3)(b) prohibits one campaigning from using language which is
defamatory or insulting or constitutes incitement of hatred. Section 22(6) also
prohibits the use of private media to make statements which are false knowing them
to be false, making malicious, abusive, insulting or derogatory statements. Section 73
is to the same effect. Therefore the said statements are improper if they cannot be
justified.

EFFECT OF THE ACTIONS OR OMISSIONS.

The effect of the above actions or omissions as pointed out is that they gravely affect
the results of an election. For instance, when voters are intimidated, some do not vote,
when the commission neglects it duties of ensuring that the documents are in proper
custody or when it engages in forgeries on such documents, the people’s will be
subverted as votes are lost. Sebanja Eric claims to have lost 300 votes to the opponent
and this is substantial as it would alter the results announced, considering that Musisi
is alleged to have won with only 27 votes.

As stated in the case of Amama Mbabazi v Y.K.Museveni and others Election

Petition No.1 of 2016, the important question one ought to ask is, can it be said that
the proven defects so seriously affected the result that it could no longer reasonably be
said to represent the true will of the majority of voters? Considering that the
irregularities affected over five polling stations,(Mr.Sebanja’s strongholds), and over
300 votes could have been lost, yet the margin with which it is purported he lost is
only 27 votes, the above question would be answered in the affirmative.

Group 2

2. What are the possible remedies available in the circumstances?

The remedy available to the aggrieved party is a Petition to the High Court to set
aside the election under Section 61 of the Parliamentary Elections Act.

Article 86 of the 1995 Constitution as amended and Section 60 (1) of the

Parliamentary Elections Act clothes the High court with the jurisdiction to
entertain Parliamentary Election Petitions. It is usually filed in the Civil Division of
the High Court.
Locus standi-S60 of the PCA is a registered voter, a candidate who loses an
election.

Grounds for setting aside a Parliamentary election ( Relate to S61 of the

PEA)

(a) Non compliance with the electoral laws.( Sarah Bireete V Benadette
Bigirwa &EC Election petition No. 13/13. It was stated that the substantial
effect menas that the effect must be calculated to really influence the result in
a significant manner.

(b) That a person other than the one declared won.

(c) Illegal practice or offences under the Act eg bribery, obstruction of votes,
etc under S68 of the PEA)

(c) Where the candidate was at the time of the election was not qualified.
(Art.80, S4,5 of the PEA, Paul Mwiru V Nathan Nabeta Election Appeal
No.6/11)

In the instant facts, this is one of the cases in which the interests of the
public outweigh the saving of public funds and it would be highly advisable for
even the judge to set aside the election since it is evident that the process
was characterized by manifest irregularities and the will of the people was
subverted.

It is important to note that in the facts, it’s clearly stated that Sebanja Eric is
aggrieved and believes that he would have been the successful candidate but
for the stated manifest irregularities in the entire electoral process.

Recount (under section 63(5) of the PEA)

The PEA provides for three types of recount of votes in instance of a very
small margin between the winning and aggrieved candidates or where the
candidates draw;
1. Mandatory one under section 54 of PEA.
2. A recount before the Chief Magistrate's court is regulated by section 55 and
56 of the PEA and the other provision is section 58(3) of PEA.
3. One that may be ordered by the High court, during trial of an election
petition, under Section 63(5) of the PEA
A recount before the Chief Magistrate‘s court is regulated by sections 55 and
56 of the PEA. The other relevant provision is sections 58(3), of the PEA.

S55 of the PEA - provides that an application for a recount is to the Chief
Magistrate
According to S55(1), the application should be made 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.
Under subsection (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.
Under subsection (3)- A candidate who requests a recount under this section
shall deposit with the chief magistrate a security for costs of thirty currency
points.

Under S56 the law requires depositing of security.

S56(1) provides that where a recount under section 55 does not alter the
result of the poll as to affect 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.
Under subsection (2), the monies deposited as security for costs shall, so far
as necessary, be paid out to the candidate in whose favor costs are awarded
and, if the deposit is insufficient to cover the costs, the court shall order the
liable party to pay the balance.
S58 provides for the declaration of winning candidate.
Subsection (3) states that where a returning officer receives notice of a
recount under section 55, he or she shall delay transmission of the return and
report for the constituency in question until he or she has received from the
court a certificate of the results of recount.
With that in mind, it is clear to court that section 55(1), of the PEA, vests
courts presided over by chief magistrates with jurisdiction to order and to
conduct recounts upon applications made to them under that provision of the
PEA.
This was set out in the case of Kasibante Moses v Katongole Singh
Marwaha P and the Electoral
Commission Election Petition No.23 of 2011.

Under the facts, the vote difference between the Sebanja Eric and Musisi
Ismael is 27. Just a very small margin that guarantees a recount in my humble
opinion and be done under section 63(5) of PEA but court must ascertain the
following conditions;
(i) Boxes have been secured since the elections
(ii) That the seals are the one that were applied when the last sealed
(iii) Both parties must be represented

i. What is the procedure, forum and the relevant

documents in the circumstances?
Procedure.
1- The Procedure is by way of a Petition in the prescribed form under
Rule 4 (1) of the Parliamentary Elections (Interim Provisions)
(Election Petitions) Rules SI 141-2
2- Must pay a prescribed fee of UGX150, 000 (Rule 5 (3) of the
Parliamentary Elections (Interim Provisions) (Election Petitions)
Rules SI 141-2 )
3- Filing should be within time. Under S. 60(3) of the Parliamentary
Elections Act, 2005 requires every Election petition to be filed within
30 days after the day the day on which the result of the election is
published by the commission in the Gazette‟ (refer to; Katongole v
Babirye & Anor (ELECTION PETITION NO 003 OF 2016) in which it
was held that Clearly a petition must be lodged in Court within 30 days
of the gazetting of the results by the second respondent.
4- Serving opposite party
The Notice of the Petition together with a copy of the petition must be served
on the Respondent within Seven days after filing under Section 62 of the
PEA and Rule 6 (1) of the Rules.
In Katongole v Babirye & Anor (ELECTION PETITION NO 003 OF 2016)
[2016] it was held that a petition and a notice of presentation of the petition
shall then be served on the respondent within 7 days after the filing. This is
the plain meaning of the legislative provisions governing the filing and service
of the election petitions as provided for in the law and procedural rules above.

According to Mukasa Anthony Hariss V Dr. Bayiga Micheal Phillip Lulume

SCEP NO 18/2001, Service of the Notice is made on the respondent
personally. However, it has been held that failure to serve the Respondent
with the Notice is an irregularity which does not vitiate the proceedings if it has
not caused an injustice to the respondent.

NOTE; It should be noted that rule 17 of the Parliamentary Election

(Election Petitions) Rules (the Rules) provides that subject to these Rules,
the practice and procedure in respect of a petition shall be regulated, as
nearly as may be, in accordance with the Civil Procedure Act and the Rules
made under that Act relating to the trial of a suit in the High Court, with such
modifications as the court may consider necessary in the interests of justice
and expedition of the proceedings.

Forum
The High Court
Section 61 of the Parliamentary Elections Act.
Article 86 of the 1995 Constitution and Section 60 (1) of the
Parliamentary Elections Act cloth the High court with the jurisdiction to
entertain Parliamentary Election Petitions. These usually filed in the Civil
Division of the High Court.

Documents.
- Notice of intension to sue
- Petition.
This is provided for under Rule 4 which takes one to Form A in the Schedules
to the Rules
- Affidavit; Rule 4(8) provides that the petition shall be accompanied by
an affidavit setting out the facts on which the petition is based together
with a list of any documents on which the petitioner intends to rely.
 Notice of presentation of petition; S. 62 of PEA and Rule 6(1) of the
Rules.

Whether there is any additional information needed in the

circumstances?
The rationale of this additional information is to enable us obtain sufficient
information to draft complete legal documents, being able to prepare our client
to collect all materials of evidential value to be able to prove the case on the
balance of probabilities.
And the following is some of the additional necessary information;-
a) Whether Sebanja Eric has all the qualifications for the Member of
parliament position.(this is to ensure he has clean hands as per S4 of
the PEA).
b) The identity of the RO and PO (these are the agents of the EC)
(S47,78(a) of PEA.
c) Need the recordings of the malicious statements made of the radio.
(this is because one must prove that it was Musisi Ismael in the
audio)and on which day did Musisi Ismael appear on the radio to make
the false statements?
d) Evidence of salary drawings and allowances by Musisi up to February
2020. (for example a bank statement would prove contravention of Art.
80(4) of the Constitution)
e) Produce the DR forms because this is one of the core evidence at
hand. Shall prove the inconsistencies ij the results and the forgery of
signatures.
f) Should get competent witnesses (for example Gladys Namatovu).
These shall prove his allegations to bribery, etc. however, they should
be registered voters.
g) Evidence as to the alleged bribery (photographs,etc)
h) In his opinion, how many votes did he lose as a result of the alleged
manifest irregularities?
i) What is his interest at the moment (to be able to offer client-centered
advice)
j) Whether he has any other relevant documents or evidence to the case.
 GROUP 3.

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA SITTING AT MASAKA
ELECTION PETITION NO. 001 OF 2020
THE PARLIAMENTARY ELECTIONS ACT NO.17 OF 2005
AMENDED BY THE PARLIAMENTARY ELECTIONS (AMENDMENT ACT
NO.1 OF 2006 AND NO.12 OF 2010)
THE PARLIAMENTARY ELECTION ( ELECTION PETITIONS) RULES SI 141-2
THE PARLIAMENTARY BY- ELECTION HELD ON THE 12TH OF FEBRUARY
2020 IN MADDUDU COUNTY CONSTITUENCY, KABULASOKE DISTRICT.

SEBANJA ERIC .………………………………………………..PETITIONER

VERSUS
1.MUSISI ISMAIL
2.ELECTORAL COMMISSION……………………………..RESPONDENTS

PETITION

(Under Section 60 (2)(a) of Parliamentary Elections Act and Rule 4 of the

Parliamentary Elections (Election Petitions) Rules and any other enabling laws)

Your humble petitioner SEBANJA ERIC of C/o Lule and Co. Advocate, Plot No. 16
Main street, Masaka showeth and states hereunder as follows;

1- That the petitioner is a male adult Ugandan of sound mind and he was a
candidate in parliamentary election for Maddudu constituency and is a
registered voter.
2- That the said election was held on the 12th August, 2020 where the petitioner
(NRM), Evelyn Namagembe (FDC), Musoke Edison (INDEPENDENT) and
the 1st Respondent (INDEPEDENT/POSITIVE POWE) participated as
candidates.
3- That the returning officer acting on behalf of 2 nd respondent declared the 1st
respondent as a validly elected person.
4- That the petitioner contends that the 1st respondent was not validly elected on
the following grounds.
ii. That the 1st respondent was not properly nominated by the 2nd
respondent as he did not possess the necessary academic qualification
contrary to Section 4 (1) (c) of the parliamentary Elections Act and
Article 80 of the Constitution.
iii. That the 2nd respondent never resigned from public service as required
by law.
iv. That the 2nd respondent failed, neglected and or mishandled the process
of the said election.
v. That the election was marred with violence by the agents and or under
the direction and control of the 1st respondent.
vi. That the 1st respondent was involved in the acts of bribery by
distributing red T-shirts, bars of soap and sanchets of salt. during the
process of campaigns contrary to Section 68(1) of the parliamentary
Elections Act.
vii. That contrary to Section 73(1)(a) of the parliamentary Elections Act,
the 1st Respondent while appearing on Maddudu FM made a false
statement on the character of the Petitioner.
viii. That the 1st Respondent and his goons threatened to beat petitioner's
supporters in case they vote the petitioner contrary to Section 80(1) (a)
of the parliamentary Elections Act.
ix. That the declaration forms bore different results and some were not
signed by the returning officer and my agents.
x. That the election right from the nomination was marred by grave
irregularities, illegal practices by the 1st Respondent personally and
other people with his knowledge, approval, particulars of which are
contained in the Affidavit of the Petitioner annexed hereto.

5- Whereof your humble petitioner prays that;

a) A declaration that the 1st respondent was not validly elected as a
member of parliament of maddudu constituency.
 b) The nomination and election if the 1st Respondent be nullified for
want of the academic qualifications.
c) An order directing that the 2nd respondent to organize a new election
on the account of substantial none compliance with the electoral laws
by the 1st Respondent.
d) Costs of the Petition.

Dated at Masaka this ……………..day of ………………………., 2020

………………………..

COUNSEL FOR THE PETITIONER

Address for service of the petitioner

Lule & Co. Advocates

plot No.16 Main street,Masaka.

 THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA SITTING AT KAMPALA ELECTION
PETITION NO. 001 OF 2020
THE PARLIAMENTARY ELECTIONS ACT NO.17 OF 2005
AMENDED BY THE PARLIAMENTARY ELECTIONS (AMENDMENT ACT
NO.1 OF 2006 AND NO.12 OF 2010)
THE PARLIAMENTARY ELECTION ( ELECTION PETITIONS) RULES SI 141-2
THE PARLIAMENTARY BY- ELECTION HELD ON THE 12TH OF FEBRUARY
2020 IN MADDUDU COUNTY CONSTITUENCY, KABULASOKE DISTRICT.

SEBANJA ERIC ………………………………………………..PETITIONER

VERSUS
MUSISI ISMAIL
ELECTORAL COMMISSION……………………………..RESPONDENTS

AFFIDAVIT IN SUPPORT OF PETITION

I SEBANJA ERIC C/O LULE AND CO. ADVOCATES PLOT NO.16 MAIN
STREET MASAKA, do hereby swear and states hereunder as follows.

1- That I am a male adult of sound mind, a resident of Maddudu county,

Kabulasoke district and the petitioner in this petition thus I swear this affidavit
in that capacity.
2- That I was one of the contenders in that election that was held on the 12 th
February, 2020 where I emerged the 2nd with 16,300 votes while the 1st
respondent gathered 16,327 votes. See attached copy of nomination and
declaration of results marked as annexture A and B respectively
3- That the said election was organized by the 2 nd respondent under her
constitutional obligations.
4- That the said election was marred with violence and illegalities from the time
of nomination till declaration of the winner on the 14th August, 2020.
5- That the 1st respondent was nominated to contest in the election when he never
possessed the required academic qualification.
6- That the 1st respondent never sat for PLE as he abandoned the school while in
primary five in 2000.
7- That in 2003 it is alleged that the respondent acquired “O” certificate within 3
years. See attached copy Certificate marked annexture C
8- That two years later in 2005, the 1st respondent alleged to have obtained a
Diploma in Social Development. See attached copy of the certificate marked
annexture D.
9- That by the time of nomination, the 1st respondent was working with the
Ministry of Gender, Labour and social development and continued to draw
salary from the said work. See Attached copy of bank statement marked
annexture E.
10- That the 2nd respondent failed in its duty when they failed to consider the
academic documents of the 1st respondent and also nominated the 1st
respondent while he was working as a public servant.
11- That the 1st respondent engaged the activities of violent goons which scared
away voters by threatening and hampering voting during campaign period and
on polling day.
12- That during campaigns on the 7/02/2020, the 1st respondent engaged in the
activities of bribery to wit by giving out items like Red T-shirt, bars of soap
and sachets of salt to votes.
13- That the original declaration forms that were handed to my agents in 5 that is
Masavu A, Masavu B, Masavu C, Kigagga and Wankaki polling stations bore
different results from which the returning officer used while tallying the final
results. See attached copies of declaration forms marked annextures Fi, Fii,
Fiii, Fiv, and Fv respectively.
14- That the declarations forms used on the said polling stations were either forged
or some were un signed by the returning officer.
15- That the falsification and interchanging of results to the petitioner. See
attached copy falsified declaration forms marked annexture Gi, Gii, Giii,
Giv and Gv.
16- That upon realization of the falsifaication of declaration forms, the petitioner
lodged a complaint to the Kabulasoke police station. See attached copy of
criminal reference Police ref 12/02/20/16 marked annexture H.
 17- That the 1st respondent made scandalous and malicious remarks while
appearing on Maddudu FM to wit that the petitioner was of corrupt moral and
he slept with neighbour’s pig. See attached copy of CD recording from
Maddudu FM.
18- That the said remarks affected the intergrity of the person of the petitioner and
affected his reception to the electorate.
19- That the remarks were embarrassing to his reputation and a person of his
stature and the petitioner shall contend it affected his votes.
20- That due to the said illegal and irrational acts and omissions of the
respondents, they denied the respondent a free and fair participation in the
election.
21- That the said illegal and irrational activities were reported to the DPC
kabulasoke district.

What is herein stated is true to the best of my knowledge and understanding.

Sworn at Masaka this 24th day of August, 2020.

By the petitioner Sebanja Eric… Deponent

BEFORE ME:
__________________________________________
COMMISSIONER FOR OATHS

DRAWN BY:-
LULE AND CO. ADVOCATES,
PLOT NO 16,
MAIN STREET, MASAKA.
 THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA SITTING AT KAMPALA
ELECTION PETITION NO 001 OF2020
THE PARLIAMENTARY ELECTIONS ACT NO.17 OF 2005
AMENDED BY THE PARLIAMENTARY ELECTIONS (AMENDMENT ACT
NO.1 OF 2006 AND NO.12 OF 2010)
THE PARLIAMENTARY ELECTION ( ELECTION PETITIONS) RULES SI 141-2
THE PARLIAMENTARY BY- ELECTION HELD ON THE 12TH OF FEBRUARY
2020 IN MADDUDU COUNTY CONSTITUENCY, KABULASOKE DISTRICT.

SEBANJA ERIC ………………………………………………..PETITIONER

VERSUS
1.MUSISI ISMAIL
2.ELECTORAL COMMISSION……………………………..RESPONDENTS

AFFIDAVIT IN SUPPORT OF KAVUMA MUTESASIRA

I KAVUMA MUTESASIRA of Maddudu Kabulasoke district do hereby swear and

states hereunder as follows;

1- That I am a male adult Ugandan of sound mind and a registered voter of

Maddudu county in Kabulasoke and electoral supervisor of the petitioner
and thus swear this affidavit in that capacity.
2- That I am well versed with facts of the recent election in Maddudu
constituency since I was the electoral supervisor of one of the candidates
that is the petitioner. See attached copy of appointment as electoral
supervisor marked A.
3- That during the campaigns while I was carrying on my duty of organizing
campaigns for the petitioner, I encountered the wrath of Red brigade under
the command of the Luzibu Pio the lead supporter of the 1 st respondent who
wrecked havoc throughout the campaign period.
4- That again on the polling day, the said Red brigade stationed themselves
near the polling stations of Masavu A, Masavu B, Masavu C and Wankaki
and thus scared away some people from voting.
5- That on the 7/2/2020, the 1st respondent with his knowledge and consent
and through his campaign agent bribed voters by distributing Red T-shirt,
salt and bars of soap and thus sent the electorate into joyous and partying
mood.
6- That among the persons who received the said items is Gladys Namatovu
who confessed that she was given the said items so that she can vote for the
1st respondent.
7- That the said Gladys Namatovu and other persons who received the said
items were registered voters of Maddudu constituency.
8- That as the electoral supervisor of the petitioner, I reported the above
concerns to the petitioner.
9- That again, the agents who were under my guidance and supervision from
three polling stations of Masavu A, Masavu B and Masavu C lacked
signature of the agents at the station. See attached copy of the same on the
petitioner’s affidavit.
10- That the 2nd respondent when failed in his duty when she used unsigned and
falsified declaration forms.
11- That the act of the respondent to conduct the elections in a manner
prescribed by the laws affected the outcome of the elections.
12- That the declaration forms we received from our agents from Masavu A,
Masavu B, Masavu C, Wankaki and Kigagga bore different results from
those on the declaration forms of the 2nd respondent.
13- That I in accompany of the petitioner, we reported the case of forgery to the
DPC Kabulasoke district under criminal reference police ref 12/02/20/16
attached on the petitioner’s affidavit.

Sworn at Masaka this 24th day of August, 2020.

By Kavuma Mutesasira… Deponent

BEFORE ME:

__________________________________________
COMMISSIONER FOR OATHS
DRAWN BY:-
LULE AND CO. ADVOCATES,
PLOT NO 16,
MAIN STREET, MASAKA.
 THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA SITTING AT KAMPALA
ELECTION PETITION NO ………………../2020
THE PARLIAMENTARY ELECTIONS ACT NO.17 OF 2005
AMENDED BY THE PARLIAMENTARY ELECTIONS (AMENDMENT ACT
NO.1 OF 2006 AND NO.12 OF 2010)
THE PARLIAMENTARY ELECTION ( ELECTION PETITIONS) RULES SI 141-2
THE PARLIAMENTARY BY- ELECTION HELD ON THE 12TH OF FEBRUARY
2020 IN MADDUDU COUNTY CONSTITUENCY, KABULASOKE DISTRICT.

SEBANJA ERIC ………………………………………………..PETITIONER

VERSUS
1.MUSISI ISMAIL
2.ELECTORAL COMMISSION……………………………..RESPONDENTS

AFFIDAVIT OF GLADYS NAMATOVU

I GLADYS NAMATOVU of Nameere Sub County, Kabulasoke district swear and

states hereunder as follows;

5- That I am a female adult of sound mind and a registered voter in Maddudu

Constituency and thus swear this affidavit in that capacity.
6- That I am versed with the election of 12/2/2020 between Sebanja Eric,
Everlyn Namagembe, Musoke Edison and Musisi Isreal.
7- That as a registered voter, a number of candidates and their candidates came to
our village and even my home seeking for my mandate.
8- That among them was Musisi Isreal who sent his agent one Yosiya Bulolo
who came to Nameere sub county.
9- That the said Yosiya came with a number of items including and not limited to
Red T-shirts bearing Musisi’s portrait, bars of soap and sachets of salt.
10- That Yosiya Bulolo informed the people who were at the gathering that Musisi
had sent for us the said items for the purposes of voting him.
11- That the said items were handed to the people who were gathered and I myself
got a Red T-shirt, a bar of soap and at the end, we started dancing and
ululating.
 12- That after receiving the said items, I pledged my support for Musisi Isreal.

What is stated herein is true to the best of my knowledge and understanding.

Sworn at Masaka this 24th day of August, 2020

By the said Glayds Namatovu} Deponent

BEFORE ME:

__________________________________________
COMMISSIONER FOR OATHS

DRAWN BY:-
LULE AND CO. ADVOCATES,
PLOT NO 16,
MAIN STREET, MASAKA.
 THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA SITTING AT KAMPALA
ELECTION PETITION NO ………………../2020
THE PARLIAMENTARY ELECTIONS ACT NO.17 OF 2005
AMENDED BY THE PARLIAMENTARY ELECTIONS (AMENDMENT ACT
NO.1 OF 2006 AND NO.12 OF 2010)
THE PARLIAMENTARY ELECTION ( ELECTION PETITIONS) RULES SI 141-2
THE PARLIAMENTARY BY- ELECTION HELD ON THE 12TH OF FEBRUARY
2020 IN MADDUDU COUNTY CONSTITUENCY, KABULASOKE DISTRICT.

SEBANJA ERIC ………………………………………………..PETITIONER

VERSUS
1.MUSISI ISMAIL
2.ELECTORAL COMMISSION……………………………..RESPONDENTS

AFFIDAVIT OF MUSISI ENOCK

I MUSISI ENOCK resident of Kabulasoke police quarters swear and states hereunder
as follows

1- that I am an adult Ugandan of sound mind and the District police commander
of Kabulasoke district and well versed with the recent political situation in the
Maddudu constituency thus swear affidavit in that capacity.
2- That Maddudu constituency recently had elections for the member of
parliament among whom was the petitioner and the 1st respondent.
3- That I was responsible for developing security on the polling day and giving
security escorting election materials to various stations.
4- That on the 12/2/2020 at around 9:30Pm, our of the contestants reported a case
of forgery and falsification of declaration forms against the returning office on
stations including Masavu A, Masavu B, Masavu C, Wankaki and Kigagga.
5- That I entered the criminal reference offence under police reference number
12/02/20/16. See attached copy on the affidavit marked annexture A.
6- That the petitioner offered and or wanted the police to swing into action and
make arrests.
 7- That however, as a commander of the district police, I refrained my officers
from making arrests as it would amount interfering with the independent work
of the 2nd respondent.
8- That I advised the petitioner to secure a court order authorizing us to interfere
with electoral system.
9- That again I advised the petitioner that if he was aggrieved by the process
could seek advice from the repute of the lawyers.
10- That the police never carried investigation nor arrested as the 2 nd respondent
has the mechanism of dealing with grievances.

Whatever is stated herein is true to the best of my understanding and knowledge.

Sworn at Mbarara this 24th day of August, 2020} ………………….

By the said Musisi Enock} Deponent

BEFORE ME:

__________________________________________
COMMISSIONER FOR OATHS

DRAWN BY:-
LULE AND CO. ADVOCATES,
PLOT NO 16,
MAIN STREET, MASAKA.
 THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA SITTING AT KAMPALA
ELECTION PETITION NO ………………../2020
THE PARLIAMENTARY ELECTIONS ACT NO.17 OF 2005
AMENDED BY THE PARLIAMENTARY ELECTIONS (AMENDMENT ACT
NO.1 OF 2006 AND NO.12 OF 2010)
THE PARLIAMENTARY ELECTION ( ELECTION PETITIONS) RULES SI 141-2
THE PARLIAMENTARY BY- ELECTION HELD ON THE 12TH OF FEBRUARY
2020 IN MADDUDU COUNTY CONSTITUENCY, KABULASOKE DISTRICT.

SEBANJA ERIC ………………………………………………..PETITIONER

VERSUS
MUSISI ISMAIL
ELECTORAL COMMISSION……………………………..RESPONDENTS

SUMMARY OF EVIDENCE

The Petitioner shall lead evidence to show that the nomination and election of the
respondent was void for want of qualifications and that the whole election process
was marred by grave irregularities and illegal practices all which determined the
outcome of the results.

LIST OF WITNESSES.

1.Sebanja Eric-Petitioner.
2.Kavuma Mutesasira-Electoral supervisor
3.Gladys Namatovu
4. Musisi Enock-District police Commander
5,Any other with leave of Court

LIST OF DOCUMENTS

1.Nomination form
- 2.Declaration form
- 3.Appointment as election supervisor of Mutesasira
- 4.Gazzattee dated 17th August, 2020
 - 5.O-level certificate for the 1st respondent
- 6.Diploma certificate for the respondent
- 7.Bank statement in the names of 1st respondent.
- 8.Forged declaration forms
- 9.Genuine declaration forms
- 10.Police reference number 12/02/20/16
- 11.Compact disc recording from Maddudu Fm
- 12.Any other with leave court

LIST OF AUTHORITIES

1.The 1995 Constitution of Republic of Uganda

2.The Parliamentary Elections Act No 17/2005 as amended
3.The Parliamentary Elections (Election Petitions) Rules SI 141=2
4.The Election commission Act as amended
5.The Uganda Examination Board act Cap 137
6.The Civil Procedure Act Cap 71
7.The Civil Procedure Rules SI 71=1 as amended.

Dated at Masaka this………..day of……..2020

………………………………………….
Counsel for the Petitioner.
 THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA SITTING AT KAMPALA
ELECTION PETITION NO ………………../2020
THE PARLIAMENTARY ELECTIONS ACT NO.17 OF 2005
AMENDED BY THE PARLIAMENTARY ELECTIONS (AMENDMENT ACT
NO.1 OF 2006 AND NO.12 OF 2010)
THE PARLIAMENTARY ELECTION ( ELECTION PETITIONS) RULES SI 141-2
THE PARLIAMENTARY BY- ELECTION HELD ON THE 12TH OF FEBRUARY
2020 IN MADDUDU COUNTY CONSTITUENCY, KABULASOKE DISTRICT.

SEBANJA ERIC ………………………………………………..PETITIONER

VERSUS
MUSISI ISMAIL
ELECTORAL COMMISSION……………………………..RESPONDENTS

SUMMONS TO ANSWER PETITION.

WHEREAS the above named Petitioner has lodged an election petition in this court.
YOU ARE HEREBY required to file an answer to the petition in this court by … day
of July 2019
AND TAKE NOTICE that in default of your doing so, the petition will be heard and
determined in your absence.

GIVEN UNDER my hand and the seal of the Court this ……………………….day of
………………………………..........2020 at Masaka.

______________________________
REGISTRAR.
 GROUP 4.

Task 6.A

Assume you were representing Musisi Ismail, what steps would you take to
protect his seat.

Below are the steps I would take to protect Musisi Ismail's seat;

1. Furnish the respondent ‘s address.

Rule 7 of the Parliamentary Elections (Interim Provisions) (Election Petitions)

Rules SI 141-2 Requires the Respondent to furnish address and it states that;

(1) A respondent on whom a petition has been served shall, within seven days after
the service of the petition, furnish the registrar in writing signed by the respondent or
the advocate of the respondent, an address to which may be sent any document
relating to the proceedings on the petition and intended for the respondent.

(2) If a respondent fails to comply with sub rule (1) of this rule, the registrar shall
post up every document referred to in that sub rule on the court notice board; and the
posting up shall be sufficient notice of it to the respondent.

File an answer to the petition together with an affidavit within 10 days after receipt of
petition, pay fees of 50,000 and serve the petitioner.

This is provided for under Rule 8 of the Parliamentary Elections (Interim

Provisions) (Election Petitions) Rules SI 141-2 which states that;

(1) If the respondent wishes to oppose the petition, the respondent shall, within ten
days after the petition was served on him or her, file an answer to the petition.
The respondent’s answer shall be filed with the registrar together with five copies of it
for use by the court and for service on the commission, the returning officer and the
other respondents, if any.

(3) The answer of the respondent shall be accompanied by—

(a) an affidavit stating the facts upon which the respondent relies in support of his or
her answer;

and

(b) a fee of fifty thousand shillings.

The respondent shall, within five days after filing the answer with the registrar, serve
a copy on the petitioner or his or her advocate.

(5) Where the respondent requires further and better particulars of the petition, he or
she shall apply for the particulars together with the answer.

(6) The petitioner shall, subject to the directions of the court, supply any particulars
requested under sub rule (5) of this rule on or before the date set for trial of the
petition.

In conclusion therefore, stated above are the steps I would take to protect Musisi
Ismail's seat.

Task 6.B

Suppose you had received the relevant instruction on 26/6/2020 from Sebanja
Eric, soon after his meeting with the DPC kabulasoke, would your advice on the
appropriate remedy, procedure, forum and documents been the same as in 2&3;
above?
REMEDIES

The remedy available to the aggrieved party is a Petition to the High Court to set aside
the election under Section 61 of the Parliamentary Elections Act,2005.

Article 86 of the 1995 Constitution and Section 60 (1) of the Parliamentary

Elections Act,2005 clothes the High court with the jurisdiction to entertain
Parliamentary Election Petitions. It is usually filed in the Civil Division of the High
Court.

Recount

A recount before the Chief Magistrate ‘s court is regulated by sections 55 and 56 of

the Parliamentary Elections Act,2005.

The other relevant provision is sections 58(3), of the Parliamentary Elections

Act,2005.

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 Parliamentary Elections Act,2005 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.

Recovery of costs of recount

(1) Where a recount under section 55 Parliamentary Elections Act,2005does not alter
the result of the poll as to affect the declaration by the returning officer under section
58bParliamentary Elections Act,2005, 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 favor costs are awarded and, if the deposit is insufficient to
cover the costs, the court shall order the liable party to pay the balance.

Declaration of wining Candidate

(3) Where a returning officer receives notice of a recount under section 55

Parliamentary Elections Act,2005 he or she shall delay transmission of the return
and report for the constituency in question until he or she has received from the court
a certificate of the results of recount.

With that in mind, it is clear to court that section 55(1), of the Parliamentary Elections
Act,2005 vests courts presided over by chief magistrates with jurisdiction to order and
to conduct recounts upon applications made to them under that provision of the
Parliamentary Elections Act,2005.

This was set out in the case of Kasibante Moses v Katongole Singh Marwaha P &
the Electoral Commission Election Petition No.23 of 2011

PROCEDURE

The Procedure is by way of a Petition in the prescribed form under Rule 4 (1) of the
Parliamentary Elections (Interim Provisions) (Election Petitions) Rules SI 141-2

The Petition is lodged with the registry of the civil division after paying a prescribed
fee of UGX150, 000 (Uganda Shillings One Hundred Fifty Thousand) under Rule 5
(3) of the Parliamentary Elections (Interim Provisions) (Election Petitions) Rules
SI 141-2

Under S. 60(3) of the Parliamentary Elections Act, 2005 provides, Every Election
petition shall be filed within 30 days after the day the day on which the result of the
election is published by the commission in the Gazette‟

Serving opposite party

The Notice of the Petition together with a copy of the petition must be served on the
Respondent within Seven days after filing under Section 62 of the PEA and Rule 6 (1)
of the Rules.

Section 62 of the Parliamentary Elections Act,2005 states as follows:

“Notice in writing of a presentation of petition accompanied by a copy of the petition

shall, within 7 days after the filing of the petition, be served by the petitioner on the
respondent or advocate shall serve on each respondent notice in writing of the
presentation of the petition, accompanied by the copy of the petition”.

In Katongole v Babirye & Anor (ELECTION PETITION NO 003 OF 2016)

[2016] it was held that Clearly a petition must be lodged in Court within 30 days of
the gazetting of the results by the second respondent. That petition and a notice of
presentation of the petition shall then be served on the respondent within 7 days after
the filing. This is the plain meaning of the legislative provisions governing the filing
and service of the election petitions as provided for in the law and procedural rules
Service of the Notice is made on the respondent personally. However, it has been held
that failure to serve the Respondent with the Notice is an irregularity which does not
vitiate the proceedings if it has not caused an injustice to the respondent.

See Mukasa Anthony Hariss V Dr. Bayiga Micheal Phillip Lulume SCEP NO
18/2001.
It should be note that rule 17 of the Parliamentary Election (Election Petitions) Rules
(the Rules) provides that subject to these Rules, the practice and procedure in respect
of a petition shall be regulated, as nearly as may be, in accordance with the Civil
Procedure Act and the Rules made under that Act relating to the trial of a suit in the
High Court, with such modifications as the court may consider necessary in the
interests of justice and expedition of the proceedings.

FORUM

High Court

DOCUMENTS.

Petition.

This is provided for under Rule 4 of the Parliamentary Election (Election Petitions)
Rules (the Rules) ;

Form of petition.

(1) The form of a petition shall be as specified in Form A in the

Schedule to these Rules.

(2) Every petition shall state—

(a) the right of the petitioner to present the petition in accordance with section 90 of
the Statute;

(b) the holding and result of the election together with a statement of the grounds
relied upon to sustain the prayer of the petition; and
(c) the address of the Petitioner

Affidavit; Rule 4(8) of the Parliamentary Election (Election Petitions) Rules (the
Rules) provides that the petition shall be accompanied by an affidavit setting out the
facts on which the petition is based together with a list of any documents on which the
petitioner intends to rely.

Notice of presentation of petition; S.62 Parliamentary Elections Act and Rule 6(1)
of the Parliamentary Election (Election Petitions) Rules (the Rules).

In conclusion therefore, stated above is the appropriate remedy, procedure and forum
for Sebanja Eric.