AW OR LEVERAGE? A CRITICAL DECONSTRUCTION OF Nambi v. Nalukoola AND THE WEAPONIZATION OF ELECTORAL JUSTICE IN UGANDA

Obita Calvin Stewart
May 27
8 min read

Nambi v. Nalukoola AND THE WEAPONIZATION OF ELECTORAL JUSTICE IN UGANDA

CALVIN STEWART OBITA*

1.0 INTRODUCTION: A JUDGMENT BEYOND THE LAW

The High Court's decision in Nambi Faridah Kigongo v. Luyimbazi Elias Nalukoola and Electoral Commission,[1] rendered on 26 May 2025, is more than a routine election petition ruling. At face value, the Court invalidated the victory of the National Unity Platform (NUP) candidate Elias Nalukoola in Kawempe North due to significant irregularities, namely, the failure to return results from 14 polling stations, and the Respondent’s personal violation of campaign laws on polling day.

However, deeper factors are at play. This decision must be viewed in the broader political and institutional context of Uganda’s electoral and judicial history. Over the past two decades, Uganda has witnessed a proliferation of election petitions, but few resulted in the nullification of a declared victory.

When such rare outcomes do occur, they overwhelmingly target opposition candidates, often under the veneer of procedural irregularity. This article examines whether the legal reasoning in Nambi v Nalukoola case was guided by judicial neutrality or shaped by political considerations.

Drawing upon legal precedents, constitutional theory, and comparative jurisprudence, it interrogates how law can be used not to uphold democracy, but to restrain it.

2.0 THE VEIL OF LEGALITY: WHAT THE COURT SAID

Justice Bernard Namanya grounded his judgment in clear statutory language. He identified two primary justifications for nullification:

(1) substantial non-compliance with the Parliamentary Elections Act due to the exclusion of 14 polling station results, and

(2) a violation of Section 100 by the 1st respondent, who personally campaigned on election day.

Justice Bernard Namanya’s ruling was carefully constructed within the framework of Ugandan electoral law. He found that the EC’s omission of results from 14 polling stations violated voters' constitutional right under Article 59 and constituted substantial non-compliance with the law under Section 80(1)(a) of the Parliamentary Elections Act. Furthermore, the judge accepted witness testimony that Nalukoola had personally campaigned at polling stations—conduct prohibited on polling day.

While the Court appeared to follow precedent, a key critique lies in the selective weight it assigned to these violations. In Uganda’s 2016 presidential petition, Amama Mbabazi v. Yoweri Museveni,[2] the Supreme Court acknowledged extensive irregularities, including delayed voting and illegal arrests, yet dismissed the petition on the grounds that these did not substantially affect the result.

Similarly, courts have repeatedly turned a blind eye to electoral misdeeds where NRM victories were at stake. In contrast, opposition candidates have suffered judicial scrutiny at a heightened level. Here, 16,640 disenfranchised voters were used as justification to dislodge a victory, even though the error stemmed from the Electoral Commission, not the candidate.

By invoking legality while applying it unevenly, the judiciary may inadvertently cast itself as an agent of state preservation rather than justice.

3.0 SELECTIVE NULLIFICATION: WHO BEARS THE BURDEN OF COMPLIANCE?

Electoral jurisprudence in Uganda is marred by inconsistency. Consider the earlier decision in Apollo Kantinti v. Sitenda Sebalu,[3] where the Court annulled a FDC victory based on EC failures. While nullifying Kantinti's election, Hon. Justice Kawesa faulted the Wakiso District returning officer, Ms Sarah Bukirwa, for disfranchising the voters and also failing to secure custody of election materials.[4]

In both cases, opposition figures were ousted based on administrative lapses attributable to the Electoral Commission, not direct misconduct by the candidates. Meanwhile, when EC errors benefit ruling party candidates, the courts routinely deem them immaterial. Examples are when ruling party candidates like Museveni or Nsereko.[5]

In Nyanzi v Nsereko, the High Court in 2021 dismissed Nyanzi's petition on the grounds of non-service, stating that Nsereko was not properly served with the petition documents.

Then in 2023, the High Court upheld Nsereko's victory, ruling that Nyanzi failed to provide convincing evidence of electoral malpractice. In these petitions involving bribery, intimidation, and violence, the courts often deferred to the 'substantial effect' test, which they interpret with extreme caution.

This inconsistency raises constitutional concerns, as all persons are equal before the law.[6] When courts hold opposition candidates liable for EC mismanagement but protect ruling party victors under the same or worse conditions, judicial neutrality is compromised. It becomes not a question of legal standards, but political identity.

Dr. Busingye Kabumba characterises the 1995 Constitution as an “elaborate farce”[7], a text that proclaims democratic ideals such as those in Article 1, which declares that “all power belongs to the people,” yet functions primarily as a tool for executive entrenchment. According to Kabumba, the constitutional order in Uganda performs legitimacy rather than enforcing it, giving the appearance of accountability while insulating power from genuine democratic contestation.

This critique finds a striking parallel in legal scholar David Landau’s concept of abusive legalism,[8] which describes the use of ostensibly neutral legal rules to systematically disadvantage political opposition. Landau warns that authoritarian regimes increasingly rely on formal legality, not brute force, to suppress dissent and consolidate authority.

Nambi v. Nalukoola illustrates this convergence: the court invoked procedural electoral rules and statutory compliance not to protect democratic choice, but to dislodge an opposition candidate through the technical failures of state institutions.

What we are left with is a legal order that speaks the language of democracy while staging its quiet retreat, where courts, cloaked in constitutionalism, become architects of exclusion.

4.0 ELECTORAL COMMISSION: INCOMPETENCE OR DESIGN?

The Electoral Commission’s failure to transmit results from 14 polling stations, disenfranchising 16,640 voters, was not a minor irregularity. It was catastrophic. The EC offered little explanation, attributing the omission to 'mob violence,' yet did not invoke its statutory power to suspend voting or re-tally. The lack of remedial action raises doubts about the EC's impartiality and operational integrity. This was not the first time such a failure occurred.

In Apollo Kantinti’s case, the EC’s failure to comply with the law led to another FDC nullification. In both instances, the courts punished the candidate, not the Commission. By absolving the EC of responsibility while using its failures to unseat opposition candidates, the judiciary inadvertently rewards dysfunction.

Comparative democracies do not tolerate such lapses. In India, the Supreme Court in Mohinder Singh Gill v. Chief Election Commissioner addressed the extent of the Election Commission's powers under Article 324 of the Constitution.

The Court held that the Election Commission possesses plenary powers to ensure free and fair elections, which include the authority to cancel a poll and order a re-poll in situations where the electoral process has been vitiated to such an extent that it affects the result of the election.[9]

This decision underscores that an electoral commission is not merely a passive facilitator of elections, but a constitutional guardian of electoral integrity. Its responsibility is not limited to logistics, but extends to ensuring that the process is free, fair, and credible at every stage.

In Uganda, however, the Electoral Commission has repeatedly abdicated this responsibility. Despite elections being nullified by courts on grounds of procedural non-compliance and disenfranchisement, often stemming from the Commission’s own failures, there has been little to no visible accountability or institutional reforms within the EC.

The paradox is stark because while courts overturn elections to preserve the rule of law, the very institution charged with preventing such failures continues to operate with impunity. This recurring dynamic suggests not merely incompetence, but a deeper institutional complacency, one that allows the law to punish candidates while shielding the administrators who compromised the election in the first place.

5.0 THE JUDICIARY’S QUIET ALIGNMENT WITH POWER

Uganda’s judiciary is structurally exposed to executive influence. Judges are appointed by the President upon recommendation of the Judicial Service Commission.[10]

Historically, the judiciary has acted both as a check and as a collaborator with power.

In the 2001 presidential election petition, In Dr. Kizza Besigye vs President Yoweri Museveni, Besigye challenged the Respondent’s victory, citing widespread electoral irregularities. The Supreme Court acknowledged these irregularities but, in a 3–2 decision, concluded they were insufficient to annul the election. Justices John Wilson Tsekooko and Arthur Oder dissented, advocating for nullification due to the severity of the malpractices.[11]

Similarly, in the 2006 petition, Besigye again contested Museveni's re-election. The Supreme Court, in a narrow 4–3 decision, upheld the election results. Justices George Kanyeihamba, Tsekooko, and Oder dissented, emphasising that the electoral flaws substantially affected the outcome.[12]

In the 2021 election, Robert Kyagulanyi, known as Bobi Wine, filed a petition challenging Museveni's victory. The Supreme Court rejected his applications to amend the petition and to introduce additional evidence, citing procedural deadlines. Kyagulanyi argued that his house arrest impeded timely evidence collection. Frustrated by these setbacks, he withdrew his petition, alleging judicial bias.[13]

The judiciary’s pattern reveals a formula which is, uphold technical legality to avoid accusations of bias, but always lands on outcomes favourable to the regime. This enables a form of legal authoritarianism, where law is not abolished, but bent so frequently that it becomes unrecognisable. It is not a law as a shield for the citizen, but as armour for the state.

6.0 LAW AS CLOAK: THE SYMBOLIC VIOLENCE OF JUDICIAL POWER

Legal philosopher Robert Cover warned that law does not merely describe power, it inflicts it.[14] In the case of Nambi v Nalukoola, the court spoke in the language of order, integrity, and compliance. Yet the effect was dislocation, suppression, and disenfranchisement.

Rather than deliver electoral justice, the judgment reimagined elections as a bureaucratic exercise. In doing so, the court disregarded the substantive will of voters, especially those in the 14 polling stations erased from the final tally. What is democracy if not the expression of popular will? What is the law if it silences that voice?

The symbolic harm extends beyond the candidates. It signals to voters that their participation is conditional. It tells young democracies that judicial robes can, under the right conditions, become shrouds for political burial.

7.0 CONCLUSION: FROM GUARDIANS TO GATEKEEPERS

Nambi v. Nalukoola will be remembered as a turning point in Uganda’s electoral jurisprudence—not for its technical merits, but for its political repercussions. It shows how law can be used not to protect the people's voice, but to modulate it, trim it, and—when necessary—extinguish it.

The judiciary must ask itself: Does the Constitution empower us to entrench power or to check it? In a time when democratic institutions are being hollowed out from within, neutrality is not enough. What is needed is courage, judicial, legal, and moral.

Until then, decisions like this one will not restore confidence in the rule of law, they will remind us how power hides in plain sight, wrapped in the dignity of the law.