THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KABALE

HCT- 11- CIVIL SUIT No. 047/2015
HON. KWIZERA EDDIE wa - GAHUNGU

PLAINTIFF

VERSUS
1. THE NATIONAL RESISTANCE MOVEMENT
2. HON. JAMES NSABA BUTURO

DEFENDANTS

BEFORE HONOURABLE MR. JUSTICE MICHAEL ELUBU

RULING

The Plaintiff, Hon. Kwizera Eddie Wa Gahungu brought this Suit against the
two Defendants, The National Resistance Movement and The Hon. James
Nsaba Buturo seeking several remedies namely,

a) A declaration that the impugned primaries were a sham, illegal, null and
void.
b) A declaration

that impugned pnmanes

were not

III

conformity

with

democratic practices and principles, were not free and fair.

c) An order setting aside the said election and its results and nullifying all and
any benefits of such sham election to the defendants.
pg.l

d) An order for fresh, orderly, free and fair primaries conforming to democratic
principles and practices and devoid of military interference.

e) A permanent injunction restraining the

Commission,

appointees

15t

Defendant, its agents, Electoral

and officers from fronting/presenting

the 2nd

Defendant as the party flag bearer for the Bufumbira Member of Parliament
Constituency to the Electoral Commission of Uganda or for any other
purpose.
f) An order that the Defendants pay general and exemplary damages to the
Plaintiff.

g) Any consequential or other appropriate reliefs.

h) Costs of the Suit be granted to the Plaintiff.

The facts leading up to this suit are laid out later in this ruling.
Mr. Peter Akankwasa appearing with Mr. Justus Muhangi represent the Plaintiff.
Mr. Idoot Augustine

appears for the

15t

Defendant and the Reverand Ezra

Bikangiso for the Second Defendant.

At the commencement of the hearing, Mr. Augustine Idoot raised three preliminary
points of law which he stated would finally dispose of the suit without having to go
into its merits.

pg.2

Firstly, it is his contention, that the Plaintiff has no Locus Standi to sustain this
action. That the Pleadings show he participated in the 1st Defendant's primaries for
the Bufumbira East Constituency and that this is where he ostensibly derives his
locus standi. The Plaintiff has subsequently been nominated as an independent
candidate for the parliamentary elections in Bufumbira East consistuency.

The submission of Mr. Idoot is that the Plaintiff s action of being nominated as an
Independent extinguishes his locus in this suit.

To support his submission Counsel cited the case of Julius Maganda Vs National
Resistance Movement Mbale HCMA No. 154 of 2010 where Justice Stephen
Musota held that standing as an independent changed the status quo and put into
question the locus of Julius Maganda to challenge the internal workings of a party
he no longer subscribed to. The facts are similar to those here. The applicant had
sued the NRM over party primaries in which he participated and lost. Later he (the
applicant) had been nominated to stand as an independent candidate. That was the
position at the time he challenged the NRM party primaries.

In reply, Mr Muhangi Justus, Counsel for the Plaintiff opposed this preliminary
objection.

He contends it is misconceived in these circumstances because the

Plaintiff has come to Court seeking relief and buttressing his action against the
Constitution of the Republic of Uganda.

Specifically he contends that the

C::)l:2::~..!::a~enjoins all political o!"g?~~~?t~,:,Yls

to conform to the Constitution and

democratic principals in the conduct of their internal organization as provided for

Article 71 (1) (c).
pg.3

It is his submission that this Court has the mandate to resolve the Plaintiffs dispute
as it is a Court with unlimited original jurisdiction granted under Article 139 of the
Constitution.

It was argued further that this Court should depart from the decision in Maganda
(Supra) because, there, the Court did not consider the reasons for the applicant
opting to stand as an independent. Here the reason is clear as the Plaintiff had been
rigged out of a victory and seeks relief by courts intervention.

Counsel prayed that this Court considers Article 8 of the National Resistance
Movement Constitution which regulates membership and exit of the party .. There
is no mention in that Article of cessation of membership departure by way of
becoming an independent.

For this reason the decision in Maganda (Supra)

according to Counsel for the Plaintiff is easily distinguished from the facts in the
present case.

Lastly this Court was referred to the Supreme Court Constitutional Appeal decision
in Hon. T. Sekikubo & 4 others Vs A-G and 4 others Supreme Court
Constitutional Appeal No. 00112015 where, according to Counsel, it was held
that though the appellants had been expelled by their party they were still its
members as their exit was not voluntary. In the same way the Plaintiff had been
forced to stand as an independent because his own party nomination process was
badly flawed.

pg.4

I,

I shall now turn to the merits of the first objection.

The Plaintiff, Hon. Kwizera

Eddie Wa Gahungu stood in the National Resistance Movement party primaries for
the Bufumbira East Constituency on the 2ih day of October, 2015.

One of those he stood against is the second Defendant Hon. James Nsaba Buturo
who was, after the said election, declared winner by the Electoral Commission of
the 1st Defendant after the said election.

The Plaintiff being dissatisfied with the outcome of the process challenged it by
lodging a Petition with the Chairman of the Electoral Commission of the 1st
Defendant.

His Petition was based on alleged illegalities, irregularities

and

incompetence in the way the primary elections were held.

The first defendants Electoral Commission is said to have considered the Plaintiffs
petition and dismissed it for lack of merit. The 2nd Defendant was then presented
to the Independent Electoral Commission as the flag bearer for the 1st Defendant to
contest for Member of Parliament for the Constituency of Bufumbira East County.

It was in these circumstances

November, 2015.

that the Plaintiff filed this suit on the 24th of

He also obtained an interim order issued by the Ag Assistant

Registrar of this Court restraining the 1st Defendant from presenting the 2nd
ue;[lJlhlai-ll

as flag bearer for the i Defendant.

~t

pg.5

I
I

----------

On the 2nd of December, 2015, the Plaintiff was nominated to contest as an

Independent

Member

of Parliament

by the Independent

National

Electoral

Commission.

The

Constitution

of The

Republic

of Uganda

recognizes

Independent

candidature under Article 72 (4) which provides,

'Any person is free to stand for an election as a candidate, independent of a
political organisation or political party. '
The operative word here is 'Independent' and what it means in the context of this
Article. There is guidance

from the Supreme Court sitting as an appellate

Constitutional Court in the Hon. Sekikubo case (Supra) which held that the first
and cardinal rule of statutory interpretation is that where words are clear and
unambiguous they should be given their primary, plain, ordinary and natural
meamng.
The plain meaning of the word Independent according to the Merriam Webster
Online Dictionary is among others, 'Not subject to control by others; not affiliated
to a larger controlling unit; not bound or committed to a Political party
The online Oxford English Dictionary defines Independent as, free from outside
control, not subject to another's authority; not belonging to or supported by a
Political party.
In sum, Article 72 (4) of the Constitution would, in my view, mean that a candidate
may stand for election to parliament without the backing, support, control or
authority of a Political party.

pg.6

The Parliamentary Elections Act, 2005 makes this even clearer when it provides
in Section 10 that,
'...nomination of candidates may be made ... by a candidate standing for
election as an Independent candidate without being sponsored by a political
party.'

Therefore

an independent

candidate

IS

deemed not to have the backing,

sponsorship, support or control of a Political party for purposes of his/her

candidature and is considered not to belong to any party.

Art 8( 1) of the NRM Constitution prescribes membership of the party. It stipulates,

Membership of NRM shall be open to all Ugandans, irrespective of ethnic
identity, sex, tribe, creed or religion, birth, economic status, race and
disability or other sectional division, who are prepared to abide by its
Constitution, Code of Conduct, Rules, Regulations and Bye-laws as may
from time to time be made.

Membership is only open to those who are prepared to abide by the Constitution
and the entire legal regime of the party. One who is not the subject of its control or
authority cannot claim membership.
It is my finding that the Plaintiff in deciding to stand as an Independent Candidate
in the parliamentary elections for the Constituency of Bufumbira East County
opted out of the first Defendant by his actions. He was at that point deemed not to
be affiliated to the NRM nor was he the subject of its control and authority. It

pg.7

would mean that being an NRM party member and standing as an independent are
mutually exclusive. One cannot be both.

I therefore agree with the holding in the case of Julius Maganda (Supra) cited by
Counsel for the 1st Defendant. It was held by Justice Musota in that case that,
'...The applicant

unequivocally

opted out of the National

Resistance

Movement on his own volition and opted to stand as an independent. The

Applicant cannot be an Independent candidate and at the same time be a
member of the National Resistance Movement party. '

The facts in the Maganda case are similar to the instant case in that the Applicant
had chosen to stand as an independent candidate during the parliamentary elections
for Samia Bugwe Constituency when the NRM fronted another candidate (who
won the elections) during the party primaries.
Therefore the contention by Counsel for the plaintiff that membership of the
National Resistance Movement is governed by Article 8 of its party Constitution is
true but as shown here does not apply to the plaintiff

who has by his actions

voluntarily opted out.

I now return to the question whether the Plaintiff has the locus standi to sustain this
action?

Blacks Law Dictionary (8th Edition) defines locus standi as the right to bring an
action or to be heard.
pg.8

I am in agreement with the finding of Justice Musota in the Maganda case (supra)
that by standing as an independent the applicant had opted out of the NRM party
and waived his rights to present his application challenging the results of the party
pnmanes.

In the same vain, Hon. Eddie Kwizera 'Wa Gahungu opted out of the NRM when
he was nominated

as an Independent

candidate for the 2016 Parliamentary

Elections by the National Electoral Commission and has lost his right to prosecute
this Suit.

The first Defendants first Preliminary objection is sustained.

The second preliminary objection of the l " defendant is that this action has been
rendered moot by the decision of the Plaintiff to offer himself as an independent
candidate

for the elections

of Member of Parliament

for Bufumbira

East

Constituency. It is the submission of Counsel that as a result the remedies the

plaintiff seeks in his plaint are unenforceable and no longer available to him.
(Those prayers were laid out earlier in this ruling).

Mr. Idoot submitted farther that there is no live dispute here and any order of this
Court would be for purely academic purposes.

pg.9

He contends the prayers made by the plaintiff are aimed at securing a fresh primary
election for purpose of choosing a fresh flag bearer for the 1st Defendant. Hence
the prayer for a declaration that the primaries were a sham, null and void; and a
declaration that the primaries did not conform to democratic principles and were
not free and fair. He prays they are set aside and a fresh, orderly and free and fair
election is ordered. It is also prayed that a permanent injunction issue against the
1st Defendant restraining him from presenting the second defendant as party flag
bearer. The Plaintiff seeks general and exemplary damages, and lastly costs of the
Suit.

Counsel cited the case of Prof. Ephraim Kamuntu

Vs NRM Electoral

Commission & 2 Others' Court of Appeal, Election Petition Application No.

4512012 where the Court of Appeal held that it has now settled law that where
proceedings which were viable when instituted have by reason of subsequent
events become inescapably doomed to fail, a Court of Law may decline to
determine the issues arising therefrom as they would have become lifeless,
academic, speculative hypothetic and moot.

He states the national nomination days for candidates standing for Member of
Parliament by the Independent National Election Commission were 2nd and 3rd of
December, 2015.

Those dates have passed and the nominations were duly

conducted and concluded and the Plaintiff was nominated as an Independent

Candidate. For those reasons Counsel contends that the prayers the plaintiff seeks
are unenforceable and moot.

pg. 10

The other leg of Counsels submission is that any order of Court, were it granted
would have to be implemented by the Independent National Election Commission,
which would be required to hold a fresh nomination for the Bufumbira East
Constituency outside the gazetted nomination days and national elections roadmap.
The National Election Commission has not been a party to these proceedings and a
Judgment between the present parties cannot be enforced against them.

In Reply Counsel for the Plaintiff maintains that the prayers for fresh elections and
all the remedies were still available to the Plaintiff at the time the suit was filed. It
was the Court that delayed in fixing the matter and that is what led to delay in
hearing and disposing of the suit.

It is argued by Counsel that the Kamuntu

case (Supra) cited is clearly

distinguishable because, there, a consent judgement was entered by the parties and
matters between the parties resolve. That was not the position here.

The Court should consider that what is at stake is the Plaintiffs right to participate
in multiparty elections as enshrined in Article 71 of the Constitution.

I have considered the submissions on the second preliminary objection.

From tilt; prayers it is clear that the applicant seeks to have a fresh nomination
process conducted by the 1st Respondent.

At the time that he filed this action the

prayers were viable.

pg. 11

Subsequent events namely his nomination as an independent candidate, completion

of the nomination elections by the 1st Respondent, and the completion of the
nominations by The Independent National Election Commission have rendered his
cause inescapably doomed to fail. (See Kamuntu)

Secondly and more importantly, as held in the first preliminary objection, the
Plaintiff has no locus standi to sustain this suit. A party with no locus cannot
obtain reliefs from Court.

The second objection is accordingly sustained.

F or that reason I do not deem it necessarily to consider the 3 rd preliminary point of

law as these two have finally determined the matter before me.

This suit is dismissed.

The Interim order issued in Misc. Application No. 79/2015 is vacated.
There shall be no order as to costs.

1\

pg. 12

--:
>1

Dated at Kabale this ..

?:.L

~
day of

t.~.2015.

MICHAEL ELUBU
JUDGE

pg.13