Abim, Uganda | By Michael Wandati | The Court of Appeal has directed Yuventine Omara, the Abim district LCV chairperson, to immediately step down from office, as he was elected while still serving in the Uganda People’s Defence Forces (UPDF).
The court further mandates that John De West Ariko, who contested independently against Omara and secured the runner-up position, be officially declared the winner of the election and assume office immediately.
This decision was rendered on Tuesday 13, February 2024 by a panel of three justices: Frederick Egonda-Ntende, Catherine Bamugemereire, and Eva Luwaga. The ruling follows a successful cross-appeal by Ariko, represented by lawyers led by Jude Byamukama.
In the 2021 elections, the Electoral Commission (EC) declared Yuventine Omara of the ruling National Resistance Movement (NRM) party as the winner of the Abim district LC V chairperson seat with 14,417 votes, defeating John De West Ariko, who secured 4,809 votes.
However, Ariko contested the outcome by petitioning the High Court in Soroti, arguing that Omara was ineligible for the position since he hadn’t resigned from his position in the army.
The court heard that Omara served as a captain in the UPDF. In response, Lady Justice Jane Kajuga sided with Omara, deeming the petition incurably defective, and subsequently dismissed it with costs.
Discontented with the initial ruling, Ariko appealed, asserting that Justice Kajuga’s decision to strike out the petition was based on an incorrect interpretation of the law, rendering it incurably defective.
Ariko argued that the High Court judge failed to address whether the Local Government’s Act’s requirement for public officers to resign applies to UPDF members. He sought the Court of Appeal’s intervention to overturn Justice Kajuga’s decision.
On July 19, 2022, the Court of Appeal, led by Deputy Chief Justice Richard Buteera, ordered a fresh hearing of the election petition before a different judge. Subsequently, in March 2023, High Court Judge Issa Serunkuma nullified Omara’s election and mandated a new election.
Dissatisfied with this outcome, both Omara and Ariko returned to the Court of Appeal for a subsequent round of litigation.
Following the nullification, Omara filed an appeal challenging the decision, while Ariko contended that a new election was unnecessary as his opponent had been unlawfully nominated in a two-contestant race.
Ariko argued before the Court of Appeal that Justice Serunkuma erred by not declaring him the validly elected district chairperson when he was not found unopposed at the end of the nomination period.
In their recent judgment, the justices referenced the precedent set in the Wakanyima Musoke Vs Robert Ssebunya 2016 case of Nansana Municipality. In that case, Wakanyima’s victory was annulled due to invalid nomination grounds, as he lacked the necessary educational qualifications.
The justices noted similarities between the Abim case and the Nansana Municipality case, reinforcing the decision to order a fresh election.
“The only difference is that Mr Omara won the polls with a very wide margin. We accept the submission that the poll results decidedly in Mr. Omara’s favor cannot sanitize his illegal participation in the primary elections of his party, his nomination, and his election.
We also consider the fact that the elections were held and completed way back in 2021. Mr Omara technically lost his seat on 9/3/2023 the date of the judgement. If at all he has since acted as the LC V Chairperson, his tenure must now be halted,” said the justices.
According to the Court of Appeal, only two candidates were nominated and they are the only ones who participated in the election. However, they have indicated that since Omara should not have been on the ballot, then Ariko would have proceeded to contest the elections unopposed and should have been declared the winner in line with section 263 of the Local Government Act.
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“That said, the fact of receiving salary by itself would not result in annulling the election. What we consider more significant is that the appellant/Omara omitted to follow the correct procedure to secure his discharge from the army as such was wrongly nominated,” said the justices.
The court has also ruled that, from the analysis of the evidence, they concluded that the trial judge was correct to find that by the time of his nomination on September 28, 2021, Omara had not yet been discharged from the UPDF and therefore he was not qualified for nomination as a Candidate to the position of District LC V of Abim District.
They say from the evidence on the court record, that Omara remained in UPDF service at least until 6/10/2020 and continued getting salary from the force. The Court of Appeal decision is final in election disputes.
