The Court of Appeal sitting in Kampala has declined to order the Electoral Commission to degazette Anita Among, as an unopposed woman MP for Bukedea district.
In a ruling dated March 18, the Court of Appeal presided over by Justices Catherine Bamugemereire, Stephen Musota and Muzamiru Kibedi said that although the Soroti High Court judge Wilson Musaalu Musene had no powers to hear and determine a case in which a voter sought and was granted orders to bar an aspirant Akol Hellen Odeke from contesting for the Bukedea woman parliamentary seat, they, nonetheless declined to grant the orders to degazette Among.
In the unanimous ruling written by Kibedi, the court says that the High court had no original powers to hear electoral disputes before they are heard and determined by the Electoral Commission. This matter was first taken to court by Okodel Umar, a voter in Bukedea district to stop the Electoral Commission from nominating Akol Hellen Odeke, arguing that she had changed her name from Akol Hellen to Akol Hellen Odeke.
He argued that as such, she wasn’t a registered voter in the district hence not qualified to contest. But Akol in her defence said she was the same person and only added the name Odeke after having married Martin Odeke. However, the judge agreed with Okodel that Akol Hellen Odeke and Akol Hellen are two different persons and ordered the Electoral Commission not to nominate her.
Nevertheless, Akol went ahead and presented herself for nomination, although the Returning Officer, acting on the orders from the Electoral Commission declined to nominate her. This enabled Anita Among, the current woman MP of Bukedea to go through unopposed, forcing Akol to run to the Court of Appeal to try and set aside the High court ruling.
The Court of Appeal judges found out that indeed the High Court in Soroti had no power to hear, let alone determine the case.
“Accordingly, it is my findings that the High Court sitting at Soroti did not have jurisdiction to hear and determine the respondent’s application as a court of the first instance…The effect of this finding is that the orders made by the High Court were a nullity. To use the language of words, and phrases legally defined…, where the court takes it upon itself to exercise a jurisdiction which it does not possess, its decisions amount to nothing. This ground alone fully disposes of…all other grounds of appeal,” the ruling reads in part.
In the appeal, Akol asked the court to issue consequential orders ordering the Electoral Commission to degazette Among as unopposed MP for Bukedea. However, the court declined to grant this order arguing that doing so would be to condemn Among who was not a party to the suit without having availed her a fair hearing which act would be contrary to article 28 of the constitution.
“It is my holding that rule 2(2) of the rules of this court is no license for this court to make orders which would be tantamount to a breach of constitutionally guaranteed rights especially the right to fair hearing as enshrined in Article 28 and 44 of the constitution. Accordingly, I would decline to exercise the inherent powers of this court to grant the consequential orders sought by the appellant,” the ruling read in part.