High Court judge Simon Peter Kinobe has dismissed an appeal filed by Mulirire Daniel a candidate in Budiope East, against Moses Magogo quest to declared as unopposed.
In his decision, Kinobe said Mulirire failed to adduce compelling evidence to show that he had resigned from police before his nomination as MP candidate for Budiope East.
Ruled the Judge: “I find that the petitioner herein failed to discharge this obligation. It is also the finding of this court that the provision of proof of resignation becomes mandatory and vital at the point of a complaint being lodged with the Electoral Commission. I therefore agree with the 1st respondent that the petitioner failed to prove that he had resigned from the service of government in line with Section 4 (4) (a) Parliamentary Elections Act.
Mulirire had petitioned the High court seeking orders setting aside the decision of the Electoral Commission disqualifying him from the election for Member of Parliament for Budiope East Constituency in Buyende District. He argued that the Electoral Commission erred in law in holding that he had failed to attach proof of resignation from Uganda Police Force to his nomination paper which contravened Section 4(4)(a) of the Parliamentary Elections Act.
The petitioner argued that he had resigned from Police with effect from 15th April 2024, and that this documentary proof was in EC’s possession prior to his denomination. He also argued that the Commission erred in fact when it sat to determine the complaint on November 18 whereas service of the complaint was effected on served to him on November 23rd and that the matter was heard without service of any hearing notice on him or his lawyers.
In his decision Kinobe said that although the law doesn’t require one to show evidence of resignation, when it becomes a contentious issue, Mulirire was obliged to show it.
“It is my view that the failure to provide proof of resignation on nomination day is not fatal and should not lead to denomination of a candidate as there is no specific provision of law that makes the provision of proof on nomination day mandatory. This is a matter that can be resolved at the level of complaint upon the petitioner providing proof of his resignation…[but] during the hearing with the Electoral Commission, it was the duty of the petitioner to adduce cogent evidence in support of the claim of resignation given that the same had become contentious. Cogent is deemed to be of the kind, which is free from contradictions, truthful and compelling as to convince a reasonable tribunal to give judgment in the Petitioner’s favour…The letter which appears to be originating from the Uganda Police Force, indicated that the Uganda Police Force had accepted his resignation…It is my opinion that the letter was not sufficient for the simple reasons that the letter was signed by a one Aryatuha Dora, apparently on behalf of the Inspector General of Police. The title and capacity of the author is not indicated. The letter is not certified, and neither is there evidence that such a letter existed as at the time of nomination,” Kinobe ruled.
He also dismissed the claim that Mulirire was served the petition late. He said being served late, can’t be reason enough not to appear. “My understanding of the right to a fair hearing is that a party should be afforded an opportunity to be heard among others. The position of the law is that where a party is afforded an opportunity to be heard and they do not take the opportunity, they cannot be heard on an allegation that they were not heard. The Commission would therefore not be faulted unless there is cogent evidence adduced to prove that the manner in which it conducted the proceedings did not afford the Petitioner an opportunity to be heard,” the ruling read in part.
This ruling strengthens Magogo’s quest to sail to Parliament unopposed.
Meanwhile, the judge warned lawyers against publicly discussing cases they have pending with the court.He said: “It has now become quite fashionable for some advocates to engage in extensive discussion of matters in which they are engaged as counsel and which are being prosecuted before the court on social media and other public fora including discussing their submissions as filed in court and insinuating the likely outcome of the litigation, a practice that has now been borrowed by litigants too. I should not be understood as meaning that advocates are barred from engaging in any professional discussion of a matter pending in court, albeit within the confines of the rule against sub judice. I only wish to caution such errant legal counsel of the need to remind themselves of their professional duty as officers of Court to always maintain professional decorum and etiquette and restrict any such discussions to what is acceptable within professional limits.”
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