Kampala, Uganda | THE INDEPENDENT | The Court of Appeal has dismissed the Gogonyo county legislator Derrick Orone, and his Bukimbiri counterpart, Eddie Kwizera, and declared their seats vacant. The Court of Appeal panel led by Justice Egonda-Ntende, Monica Mugenyi, and Muzamiru Mutangula Kibeedi delivered the verdict in their judgment on Monday afternoon.
The appellant court has directed the Electoral Commission to organize by-elections in the two constituencies within two months as stipulated by the law. Orone’s trouble stemmed from an application filed by his rival Issa Bantalib Taligola. Taligola garnered 6,280 votes while Orone who ran on the National Resistance Movement-NRM party ticket managed 6,314 votes.
Taligola rejected the poll results and petitioned Mbale High Court on grounds that there was an excess of 16 polling stations and falsification of results at Katukei Fellowship Church polling station. He also accused his rival of moving around with armed personnel on the polling day in contravention of the laws governing elections. However, Justice Immaculate Busingye who listened to the petition at Mbale High Court dismissed it citing a lack of sufficient evidence to nullify Orone’s victory. Bantalib decided to appeal Busingye’s decision arguing that she had failed to properly evaluate the evidence before court.
In their verdict, the Court of Appeal justices set aside the High Court decision and nullified Orone’s victory noting that they were satisfied with the evidence on the court record, that Orone committed electoral offenses when he moved within the precincts of several polling stations with armed personnel and canvassed for votes.
They argued that this was illegal and sufficient enough to annul Orone’s victory. The court of appeal also nullified the victory of Eddie Kwizera as Bukimbiri County Member of Parliament in the Kisoro district. The judges made the decision after an application filed by Forum for Democratic Change-FDC party rival, James Owebeyi.
Owebeyi ran to court on grounds that the Electoral Commission supplied defective ballot papers for the election since they didn’t bear the correct name of the candidates. The ballot papers had the right pictures of the candidates in Bukimbiri County but with names from different constituencies. Owebeyi, who is now a student at the Law Development Centre in Kampala obtained 104 votes against Kwizera’s 11,821 votes in the January 14th, 2021 polls that attracted four other candidates. The two other candidates including Asgari Turyagyenda obtained 11,330 votes and Martin Muhereza 167 votes.
Dissatisfied with the results, Owebeyi petitioned the Kabale High Court where Justice Phillip Odoki dismissed the application on grounds that the ballot paper used in the election was legally compliant with electoral laws. Owebeyi decided to petition the Court of Appeal arguing that Justice Odoki had erred in law and fact by dismissing the petition with costs and holding that the margin of victory to be considered was between him (Owebeyi) and Kwizera without considering the other candidates who did not petition the court.
However, in their judgement delivered on Monday, Justices Fredrick Egonda-Ntende and Eva Luswata noted that the errors on the ballot papers introducing unknown names substituting those of the known candidates were an anomaly on the part of the Electoral Commission, which affected the results in a substantial manner.
“The Electoral Commission which has the statutory mandate to design, print, distribute and control voting material conceded that mistakes were made while preparing the ballot papers for the Bukimbiri County Constituency. I instead considered it as a grave error that amounted to a defect”, wrote Justice Luswata in a majority decision.
According to Luswata and Egonda-Ntende, such a blatant error shouldn’t have gone unnoticed during the preparation of the ballot papers. “The use of defective ballot papers in the election amounted to noncompliance with the constitution and electoral laws that govern a free and fair election,” said the Justices.
The justices ordered the Electoral Commission to pay the costs of the appeal to Owebeyi both at the High Court and Court of Appeal as they prepare for fresh elections.
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