The Court of Appeal in Kampala has ordered the Abim District LCV Chairperson Yuventine Omara to vacate office after he was elected when he was still a serving Officer in the Uganda People’s Defence Forces.
The court has also ordered that John De West Ariko who contested against Omara as an Independent candidate is declared the winner of the election and shall take office with immediate effect.
According to the judgment issued on Tuesday by a panel of three Justices Frederick Egonda -Ntende, Catherine Bamugemereire, and Eva Luwaga, the Speaker of Abim District is hereby formally notified that “Mr. Omara Yuventine shall from the date of this Judgement cease to be the Chairperson of Abim District Local Government Council”
The decision follows a successful cross-appeal by Ariko through his lawyers led by Jude Byamukama.
The Electoral Commission in 2021 declared Omara of the NRM party as the winner of Abim with 14, 417 votes against Ariko who garnered 4,809 votes.
But Ariko petitioned the High Court in Soroti on grounds that Omara was not qualified for the position because he had not resigned from his employment in the Uganda People’s Defence Forces.
The court heard that Omara was serving as a member of UPDF at the rank of Captain.
As a result, Lady Justice Jane Kajuga agreed with Omara that the petition was incurably defective and dismissed it with costs.
Aggrieved with this decision, Ariko through his lawyer Jude Byamukama filed an appeal on grounds that Justice Kajuga erred in law when she struck out the petition on grounds that it was filed under a wrong law and therefore incurably defective.
Kajuga was also faulted for having failed to consider that Omara was nominated as a candidate for the Chairperson Abim District while still a serving UPDF soldier which contravened the constitution and the local government Act.
According to Ariko, the High Court Judge further failed to determine the issue of whether the requirement for public officers to resign under the local government’s Act applies to members of the UPDF.
He asked the Court of Appeal to set aside the decision by Justice Kajuga.
In their Decision on July 19th, 2022 the Court of Appeal Justices comprised of Deputy Chief Justice Richard Buteera, ordered for a fresh hearing of the election petition before a different Judge.
In March 2023, High Court Judge Issa Serunkuma nullified the election of Omara and ordered a fresh election for the District Chairperson.
Dissatisfied with this decision, both Omara and Ariko went back to the Court of Appeal for a second round of litigation.
Omara appealed against the nullification while Ariko argued that there was no need for a fresh election since his colleague had been illegally nominated in a race of two contestants.
Ariko told the Court of Appeal that Justice Serunkuma erred when he failed to declare him as the validly elected District Chairperson when he did not find him unopposed at the close of the nomination exercise.
In their Judgement issued on Tuesday, the Justices citing the previous decisions in the Wakanyima Musoke Vs Robert Ssebunya 2016 Case of Nansana Municipality, where the victory of Wakanyima was nullified on invalid nomination grounds that he also lacked the requisite education qualifications, indicated that the facts of this Abim case are also similar to that one.
The Justices say that the only difference is that Wakanyima won with a small margin and Omara won with a very wide margin. In addition to overturning the polls, the Judge also declared the runner-up the validly elected candidate.
“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 LCV 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 Omara should not have been on the ballot and then Ariko would have proceeded to contest the elections unopposed and he would have been declared the winner in line with section 263 of the Local Government Act.
“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 28th, 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 LCV 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.
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