For poll anomalies, the law should take course

Nov 06, 2002

Tempers were running high in the Kiboga LC5 contest until the Minister in Charge of the Presidency, Prof. Gilbert Bukenya, called a conciliatory meeting.

Tempers were running high in the Kiboga LC5 contest until the Minister in Charge of the Presidency, Prof. Gilbert Bukenya, called a conciliatory meeting. A few days later, the Court of Appeal reversed a High Court decision and reinstated Siraje Nkugwa as chairman.

Nkugwa had won the initial election but the runner-up Edward Byaruhanga petitioned the High Court against that victory.

The High Court declared the seat vacant and ordered fresh elections in only one polling station. The petitioner, Edward Byaruhanga, was not satisfied with fresh elections in only one polling station so he appealed to the Court of Appeal.

Though the seat had been declared vacant by the High Court, the petitioner and his supporters did not deem it victory enough since fresh elections had not been called for the whole District. Apparently, a repeat election in this one polling station would not guarantee a change in the overall results.

It was evident that the incumbent’s results would not be substantially affected by even a severe loss in this polling station.

It was therefore not obvious who had won the High Court petition; the petitioner or the respondent.

True, the seat had been declared vacant but the re-election ordered by the High Court was unlikely to substantially change the results.

The Court of Appeal eventually applied this time-tested standard, of whether a re-election would return a different result, to eventually decide that the incumbent should stay in office.

Since all elections have some degree of unfairness and malpractices, unless the final result could have been substantially different, it is always a waste of time and resources to order for a re-election. It is not a perfect standard but it is the best we have so far.

The next question in the Kiboga polls was whether, having declared the seat vacant and an appeal having been lodged, the incumbent could still stay on as chairman. This question caused more confusion than the election results themselves.

Several legal opinions were given on this matter. The Solicitor General and Attorney General advised that Article 186 (6) of the Constitution dealt with the subject amply.

That Article provides that if a chairperson is removed from office, the vice-chairperson assumes office. Others argued that the Constitutional position did not envisage an appeal on removal of a chairperson.

Therefore, since the Local Governments Act defers from the Parliamentary Elections Act where it is silent on some matters like members of parliament who have lost but appealed can retain their seats pending the outcome of the appeal, district chairpersons could also remain in their seats, pending appeal.

The Attorney General is the Principal Legal Advisor to the Government, according to the Constitution. Therefore unless a court strikes down his opinion, it always holds sway. As far as the Government is concerned therefore, a District Chairperson is removed from office, appeal or no appeal. The constitution amply deals with that matter.

The mistake that was made however, was for a group of enthusiastic opponents of the incumbent to try to take the law in their hands.

They got hold of the Attorney general’s opinion and decided to try and evict the chairperson. They confiscated the official vehicle among other things. In law, this amounts to mob justice. It is no different from the Nakulabye boda boda cyclists who wanted to assist the state in dispensing justice to suspected murderers of their colleague!

Ultimately, the law has to be left to take its course, however slow and complicated it may seem. The alternative is mob justice, anarchy and self destruction.

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