What happens when an election petition appeal remains unresolved for an entire electoral cycle? The case in question—Election Petition Appeal No. 53 of 2016—concerned the eligibility of a Member of Parliament from Kibuku County, and the court's delay in deciding the matter ultimately denied both the candidate and the electorate timely justice.
In his lead judgment delivered today, Justice Moses Kazi Bwe Kawumi of the Constitutional Court has tackled this.
Facts
The petitioner challenged the failure by the Court of Appeal to expeditiously determine Election Petition Appeal No. 53 of 2016, arguing that it contravened multiple constitutional provisions, including Articles 1(4), 2(1) & (2), 3(4)(a), 126(2)(b), and 140(1) & (2).
Background of the Case
In the 2016 parliamentary elections, Herbert Tom Kinobere was declared and gazetted as the Member of Parliament for Kibuku County Constituency. His election was challenged in the High Court by Wairagala Godfrey Kamba, who successfully argued that Kinobere was unqualified to hold the seat.
Kinobere appealed the decision (Election Petition Appeal No. 53 of 2016), and the case was first heard in March 2017. However, due to multiple disruptions—including judicial retirements, promotions, and panel reconstitutions—the case remained unresolved for over four years. Ultimately, on December 4, 2020, the Court of Appeal dismissed the appeal on the grounds that it had abated, as the 2016–2021 electoral cycle was coming to an end.
Petitioner's Arguments
The petitioner contended that:
The Court of Appeal’s failure to resolve the petition within six months violated the Constitution, specifically the requirement for expeditious determination of election disputes.
The failure to supervise and require Justice Stephen Kavuma (then Deputy Chief Justice) to clear pending cases before retiring was inconsistent with Article 144(1)(c) of the Constitution.
The delay resulted in an unconstitutional situation where Kibuku Constituency remained represented by an unqualified MP, contravening Articles 1 and 126(2)(b) of the Constitution and Sections 66 & 67 of the Parliamentary Elections Act, 2005.
Respondent’s Argument and Petitioner’s Rejoinder
The Respondent argued that the Petition lacked constitutional issues for interpretation and denied that the Court of Appeal’s delay in determining Election Petition Appeal No. 53 of 2016 violated constitutional provisions. The Respondent also rejected claims that failing to supervise the Deputy Chief Justice before retirement contravened the Constitution or undermined the rule of law.
Supporting this position, State Attorney Ebila Hilary Nathan filed an affidavit stating that the reasons for the delay were outlined in the judgment and that the Petitioner’s grievances could be challenged through Judicial Review in the High Court, though this argument was later abandoned in submissions.
In rejoinder, the Petitioner maintained that the delay was unconstitutional and unjustifiable. They further asserted that the High Court lacks jurisdiction to review decisions of a higher court, making the Petition appropriately filed before the Constitutional Court.
Legal Representation
Petitioner - Mr. Akenda Solomon
Respondent - Mr. Richard Adrole (Assistant Commissioner, Litigation) & Senior State Attorney Mark Muwonge
Court’s Verdict
The Constitutional Court noted that Section 66(2) of the Election Petitions Act mandates the Court of Appeal to hear and determine election appeals within six months of filing. Similarly, Article 140(2) of the Constitution requires both the Court of Appeal and the Supreme Court to prioritize election petitions and suspend any other pending matters to ensure swift resolution.
Despite these provisions, the Court of Appeal failed to conclude the matter for over four years, citing procedural setbacks, such as the collapse of hearing panels and judicial promotions. However, the Constitutional Court found no evidence that the Court of Appeal lacked the requisite number of justices to hear and determine the appeal.
The judgment emphasized that the delay contravened fundamental constitutional principles, including:
Article 140(2): Which requires the Court of Appeal and Supreme Court to prioritize election matters.
Article 126(2)(b): Which mandates courts to administer justice without undue delay.
Article 28(1): Which guarantees a fair and speedy hearing as a component of the right to a fair trial.
Article 1(4): Which upholds the sovereignty of the people in choosing their representatives.
The Constitutional Court held that the failure to deliver a timely decision deprived the people of Kibuku County of their constitutional right to be represented by a duly qualified leader.
Implications of the Delay
The court underscored that election disputes must be resolved within the election cycle to ensure meaningful electoral justice. By failing to do so, the Court of Appeal effectively negated the purpose of election petitions, allowing an unqualified representative to serve a full term in Parliament.
Court’s Declarations and Remedies
The Constitutional Court made the following key declarations:
The omission by the Court of Appeal to hear and determine Election Petition Appeal No. 53 of 2016 within the 2016–2021 election cycle was unconstitutional, violating Articles 126(2) and 140(2) of the Constitution.
The failure to resolve the appeal within the electoral term resulted in the people of Kibuku County being represented by a member of Parliament whose qualifications had been declared inadequate.
While the court acknowledged the gravity of the issue, it declined to grant further remedies, ruling that the orders sought were speculative. The court also directed that each party bear its costs, given the public interest nature of the case.
Conclusion
The Constitutional Court's ruling serves as a strong reminder that courts must prioritize election petitions to safeguard democratic processes. While the court acknowledged the gravity of the issue, it declined to grant specific remedies beyond the declaration of constitutional violations. Each party was ordered to bear its own costs.
Key Takeaways
Election petitions must be resolved swiftly – Justice delayed is justice denied.
Judicial accountability is essential – Courts must uphold their duty to deliver timely rulings.
Voter representation is paramount – The people’s will must not be frustrated by procedural delays.
This ruling sends a clear message: delays in election petition appeals are not merely administrative lapses—they are constitutional violations that can undermine democratic governance
Read the full judgment below
.jpg)
コメント