Kampala High Court has nullified the National Resistance Movement’s (NRM) decision of not endorsing Godfrey Aine Kaguta Sodo as the ruling party’s flag-bearer for the Mawogola North Constituency in the 2021 General elections.
“This court issues an Order of Certiorari quashing both decisions of the 1st Respondent i.e the NRM Election Disputes Tribunal and that of the Secretary General of NRM since it was based on an illegal decision of the Election Disputes Tribunal,” ruled Justice Musa Ssekaana this Monday morning.
Sodo recently sued NRM and his rival Shartsi Nayebare Kutesa Musherure, saying he won the flag bearer elections but that the party instead declared it did not have a flag-bearer for the Mawogola North NRM Parliamentary seat.
He said this decision was tainted with “illegality, irrationality, procedural impropriety, unfairness and is null and void.”
Sodo, a brother of President Museveni also protested as ‘unfair’, the decision of NRM’s Electoral Commission to delay the hearing and determination of the Complaint made on October 2, 2020 against his election until the date the of nominations on October 15-16.
He argued that NRM has an obligation to follow and comply with its Party Constitution and the Election Regulations in the conduct of its primaries, hearing and determination of disputes arising from Party Primaries.
The elections for choosing a flag bearer were postponed twice on account of the fact that the candidates’ surrogates and supporters were involved in violent activities that rendered conditions in the Constituency impossible to hold peaceful elections.
NRM fights back
In response to Sodo’s petition, NRM said after the elections, Sodo was returned the winner and Musherure challenging the election with evidence which required extensive investigation and consideration required time.
“I was thus not able to render a considered ruling until 14th October 2020,” said the head of NRM’s Election Dispute Tribunal, Enock Barata.
He said he discovered that the NRM primary elections held were marred by violence, ferrying of voters, omission of results from some villages that voted, lack of election in some villages and a second illegal vote beyond the voting time at one of the polling stations hence the results could not be allowed to stand.
Barata gave an example of an illegal second vote at Kikoma polling station after 5pm in the evening where the number of voters was approximately 1,400 which he said substantially affected the result of the election as the margin between the top two contestants was 1,580 votes.
“In light of the irregularities the election did not determine a winner. That as a consequence thereof I was minded to order a re-election in affected villages in order to determine the actual winner. However, I was also minded that given the time of closure of nominations for the general elections, this order would have been impossible to execute any mindful effect. I did recommend the parties to the highest organ for directions outside the findings of the Tribunal. Sodo opted out of the NRM when he opted to be nominated as an Independent candidate,” said Barata.
Musherure agreed with the NRM’s position but added that the courts of law do not decide cases where no live disputes between parties are in existence.
She argued that the court orders must have practical effects and not be for academic purposes.
“There is no live dispute between the parties to be decided by this honourable court as NRM nominations for the Parliamentary candidates for Mawogola North Constituency and all other constituencies have already been closed as such this application is overtaken by events,” stated.
In his ruling today, Justice Ssekaana said NRM did not dispute the fact that the person who took the decision did not hear the parties and this according to Sodo was illegal.
“Indeed this is not disputed and the respondents seem to concede to this and have in their submissions justified why Enoch Barata who never heard the election petition decided instead of Isaac Kyagaba and Ahmed Kalule Mukasa. Any good system of administration of justice is based on the maxim that the ‘one who decides must hear’, meaning thereby that one and the same person must hear and decide, and that hearing and deciding functions should not be bifurcated,” said the judge.
“That a person who hears must decide and that divided responsibility is destructive of the concept of a fair hearing. If one person hears and another decides like in this present case, then personal hearing becomes an empty formality.”
The judge observed that the facts as presented clearly indicate that the person who made the decision as he stated in his affidavit in reply, indeed never heard the parties.
“This a total breach of the duty act fairly and thus puts the said decision in question for being illegal and in breach of rules of fairness as enshrined in both the National Constitution as well as the NRM Constitution. It is cardinal principle of our judicial system that a case should be decided by the authority hearing the arguments and a successor cannot decide a case without hearing the argument afresh on the ground that arguments have already be advanced before the predecessor who left the case without deciding it himself. The decision of the 1st respondent (NRM) is therefore illegal and tainted with procedural impropriety,” said the Judge.
Effect of ruling
Justice Ssekaana said under judicial review proceedings, once a decision has been proved to be illegal, the resulting effect of certiorari would therefore be to quash the said ultra vires and/or illegal decision and deprive the said decision of any effect whatsoever.
The effect of certiorari in most instances is to make it clear that the public body and public law powers have been exercised unlawfully, and consequently, to deprive the public body’s act of any legal basis.
The Judge said the decision of NRM refusing to endorse Sodo as the party’s flag-bearer for the Mawogola North Constituency in the 2021 General elections is retrospectively invalidated and deprived of any legal effect since its inception.
“The court can only ensure that a decision has been reached lawfully, and if not quash the unlawful decision. The court cannot substitute an alternative decision for that of the decision-maker. In many circumstances, the decision maker will be free to reconsider the matter and make a fresh decision (which may even be the same as the original decision) provided that in doing so he/she does not repeat the error or make any further reviewable errors,” said the judge.
This means NRM is at liberty to make a new decision in the Mawogola North election.
The judgment’s implication is that court cannot force NRM to make a decision but only ensures the decision is made in compliance with the law.
“A decision-maker will not, however, be able to retake the decision where the court held he has no power to take the decision in question,” emphasised the judge.
“Nor will he be able to reach an identical second decision if the initial decision was so unreasonable or irrational that no reasonable authority could have taken such decision unless possibly, circumstances have changed since the time the first decision was taken.”
The application was allowed with to costs to Sodo.
The elections, which were scheduled for September 4, 2020 were postponed several times and eventually held on the September 30, 2020.
At the election, Sodo was returned as the winner of the said elections with a total of 17,347 votes representing 46 percent of the total votes cast while Musherure was runner up with 16,104 votes representing 42.7 percent and Kisekka Salim with 4,274 representing 11.3 percent.
Following declaration of Sodo as winner, on the 2nd October 2020, Musherure Petitioned the NRM’s Elections Tribunal challenging the election of Sodo.
The Petition was heard by the NRM’s officers Called Isaac Kyagaba and Ahmed Kalule Mukasa on October 8, 2020.
However, according Sodo, no ruling was made on the Petition until October 15, 2020 which was one of two days set aside for the countrywide nomination of Parliamentary candidates.
On October 15, 2020, Sodo said he was verbally informed that the Chairman of the NRM Election Disputes Tribunal a one Enoch Barata had delivered the decision on the Petition and wherein he had held that the Petition had succeeded and that however, without the proper exercise of voter franchise, the Tribunal was not able to pronounce a winner of the election and recommended the Parties to the Central Executive Committee for directions.
On the same night of October 15, 2020, NRM Secretary General, Kasule by letter addressed to the Chairman of the Electoral Commission notified the Chairperson that the NRM would not endorse any candidate to contest and carry its flag for the position of Member of Parliament for Mawogola North Constituency, Sembabule.