High Court Says Courts Are Not a Shortcut to Parliament and Will Not Be Used to Impose Candidates on the Electorate Without a Ballot-Based Mandate.

Waboga David
Jan 11
9 min read

Introduction

The High Court has dismissed a pre-election petition challenging the nomination of parliamentary candidates on the basis of an alleged non-existent constituency, reaffirming the primacy of substantive justice over technicalities in Uganda’s electoral process.

The Court held that the use of the name “Nakawa West” instead of “Nakawa Division West” on nomination papers amounted to a curable clerical misnomer, not a fatal illegality. The decision clarifies the scope of the Electoral Commission’s powers to correct nomination irregularities and reinforces judicial reluctance to disenfranchise voters through overly technical interpretations of electoral laws.

Facts

The Petitioner (Bwowe Ivan) and the 2nd to 8th Respondents were nominated by the Electoral Commission (1st Respondent) as candidates for the position of Member of Parliament (MP) for Nakawa Division West Constituency in Kampala during nominations held on October 22-23, 2025.

However, the 2nd to 8th Respondents' nomination papers (Form NP and related documents) listed the constituency as "Nakawa West" instead of the officially gazetted name, "Nakawa Division West." Their proposers, seconders, and supporting voters (at least 10 registered voters per candidate) also used this name, and oaths were taken accordingly.

The Returning Officer nonetheless endorsed their nominations.

The Petitioner lodged a complaint with the Electoral Commission on November 6, 2025, arguing that the 2nd to 8th Respondents were nominated for a non-existent constituency, rendering their nominations invalid. An inter-party hearing was held on November 10, 2025, with all five Commissioners present.

On November 27, 2025 (noted as December 7 in some references, possibly a clerical discrepancy), the Commission dismissed the complaint, upholding the nominations. Key reasons included:

The Control Form (a post-nomination administrative document) signed by all candidates, including the Petitioner, correctly listed "Nakawa Division West."
Campaign programs and schedules submitted by all candidates indicated intent to campaign in the same geographical area.
The campaign program was harmonized by October 31, 2025, correcting any error.
Candidates, including the Petitioner, interchangeably used "Nakawa West" and "Nakawa Division West" (e.g., on campaign posters).

Dissatisfied, the Petitioner appealed to the High Court under Article 63 of the Constitution, Sections 71 and 15 of the ECA, Sections 28-33 of the PEA, and relevant rules, seeking to nullify the 2nd to 8th Respondents' nominations, declare himself the sole valid candidate, and be elected unopposed.

Affidavits were filed by all parties (except the 4th and 5th Respondents), with the Petitioner reiterating that the Commission lacked power to amend nomination papers post-nomination.

Issues

The court framed two main issues for determination:

Whether the Electoral Commission validly upheld the Returning Officer's decision to nominate the 2nd to 8th Respondents.
What remedies are available to the parties.

Preliminary objections were also raised regarding the validity of affidavits, answers to the petition, and the Commission's decision (e.g., signed only by the Chairperson).

Submissions

Petitioner's Submissions (Counsel: Frank Kanduho):

The Petitioner argued that the nominations violated Sections 28 and 29 of the PEA, which require nomination papers to accurately reflect the gazetted constituency name. "Nakawa West" is non-existent, as per the Electoral Commission's gazette and 2020/2021 General Elections Report.

The Commission erred by considering extraneous materials (e.g., Control Form, campaign schedules, posters) not part of the statutory nomination process. Post-nomination, the Commission lacks power to amend papers (Section 29(3) allows corrections only before 5:00 PM on nomination day).

The error was not clerical but substantive, invalidating oaths and support from non-existent voters. Citing cases like Abdulrahman Elamin v. Dhabi Group (CS No. 432/2012) and Sanyu Sarah v. China Railway Group (CS No. 004/2024), the Petitioner contended that actions for a non-existent entity are nullities.

Allowing the nominations subverts electoral democracy.

1st Respondent's Submissions (Counsel: Enoch Kugonza and Sendyana Mukasa Edward):

The Commission defended its decision as compliant with Section 15(1) of the ECA, which empowers it to correct irregularities. The error was a minor misnomer cured by the Control Form (bearing unique code 22903 for Nakawa Division West), which concludes the nomination process. Sections 12(1)(e)-(f) and 49(1)-(2) of the ECA grant broad powers to manage elections and cure mistakes. No confusion arose among electorates, and the Petitioner himself used "Nakawa West" interchangeably. The petition was frivolous and an abuse of process.

2nd Respondent's Submissions (Counsel: SHIELD Advocates):

The nomination was valid, fulfilling all legal requirements. The constituency is popularly known as "Nakawa West," and the Control Form corrected any misnomer. The Commission rightly dismissed the complaint for lack of merit.

3rd and 8th Respondents' Submissions (Counsel: Isaac Aisu, Phillip Munaabi, Andrew Kiryowa for 3rd; similar for 8th):

The error was a curable omission, not causing confusion. The 3rd Respondent, a former Deputy RDC in Nakawa, noted the names are used interchangeably. The Control Form and harmonized campaigns confirmed the correct constituency. The Petitioner was not prejudiced and sought to mislead the court.

6th Respondent's Submissions (Counsel: Hon. Nalukoola):

The nomination was valid, with the error being clerical and cured by the Control Form and harmonized programs.

The Petitioner used similar shorthand on posters. Citing Okabe Patrick v. Opio Joseph Linos (Election Petition No. 87/2016), the Respondent argued the decision required quorum but was valid as it reflected the Commission's collective view.

7th Respondent's Submissions (Counsel: Ocheng Felix and France Kamya):

The nomination process is ongoing, not a single event. The omission of "Division" was a clerical error curable under Article 126(2)(e) of the Constitution (substantive justice). Citing Toolit Akecho v. Oulanyah Jacob L'Okori (HC EP No. 07/2016), misnomers do not vitiate nominations. The Returning Officer complied with Section 29(2), as the error caused no substantial diversity.

4th and 5th Respondents: No submissions filed.

Legal Representation

Petitioner: Frank Kanduho.
1st Respondent: Enoch Kugonza and Sendyana Mukasa Edward (from Electoral Commission's Legal Department).
2nd Respondent: SHIELD Advocates.
3rd Respondent: Isaac Aisu, Phillip Munaabi, and Andrew Kiryowa.
5th Respondent: Alex Luganda and Ayub Nampolwa (noted in representation list, though 5th filed no reply).
6th Respondent: Hon. Nalukoola.
7th Respondent: Ocheng Felix and France Kamya.
4th and 8th Respondents: Represented as per judgment, but specifics not detailed beyond general appearances.

The court heard oral and written submissions, overruling preliminary objections to proceed on merits.

Court’s Findings

Preliminary Objections

The Court overruled three preliminary objections:

1. Compliance with Rule 7(1) (Electoral Commission's Affidavit)

Petitioner's Objection

The Electoral Commission's affidavit did not comply with Rule 7(1) requirements

The Court found that the affidavit "mirrors the impugned decision" and "provides adequate information as required."

Objection dismissed.

2. Answer to Petition vs. Affidavit (Rule 8(4))

Petitioner's Objection

The 2nd-8th Respondents filed "Answers to Petition" instead of affidavits in reply, which is a "fatal blunder."

The Court found that while respondents should file affidavits (not formal answers), the Answer to Petition can be severed, leaving the affidavit as valid evidence. Objection dismissed.

"Nothing in the rules restricts Respondents from filing affidavit evidence subsequent to the answer to petition."

3. Validity of Electoral Commission Decision (Signature Requirement)

6th Respondent's Objection

The decision was signed by only the Chairperson, not five commissioners as allegedly required

The Court found that Section 8(8) of the Electoral Commissions Act allows the Commission to regulate its own procedure. All five commissioners were present at the hearing.

No evidence the Chairperson's signature doesn't represent the Commission's decision.

Objection was dismissed.

Main Issue

Validity of Nomination

Applicable Law

The Court examined:

Section 29(2) of the Parliamentary Elections Act - A Returning Officer shall refuse nomination if:

(a) Allegation of ineligibility appears on the nomination paper
(b) Major variation between names on nomination paper and voters roll
(c) Any imperfection in the nomination paper leading to substantial diversity from requirements

Section 15(1) of the Electoral Commission Act, Cap. 176:

"A complaint submitted in writing alleging any irregularity with any aspect of the electoral process at any stage, if not satisfactorily resolved at the lower level of authority, shall be examined and decided by the Commission; and where the irregularity is confirmed, the Commission shall take necessary action to correct the irregularity and any effects it may have caused."

Article 126(2)(e) of the 1995 Constitution:

"Courts must administer substantive justice without undue regard to technicalities."

Court's Reasoning

1. Nature of the Error

The Court found the anomaly was a "minor irregularity or misnomer" that could be cured by the Commission under Section 15 of the Electoral Commission Act and Section 29(2) of the Parliamentary Elections Act.

2. Substantive Justice Over Technicalities

Justice Acellam emphasized:

"In handling this Petition, this court shall prioritize the merits over formal procedural flaws and technicalities. To allow the appeal this Court will be denying the voters of Nakawa Division West Constituency the opportunity of choosing their representative to parliament."

"Elective democracy requires that anyone seeking political office subjects himself/herself to the will of the electorate. A proper mandate is through the ballot box. This ensures that the people express their will, and this court cannot be seen to subvert the will of the people."

3. The Petitioner's Own Conduct

The Court made a critical observation:

"It is also my observation that on page 27 of the Electronic file of the Petition, Form ND/UO, the Petitioner just like all candidates was also declared as a nominated directly elected member of parliament candidate to represent 'Nakawa West' constituency. A constituency he claims does not exist. The Petitioner did not however raise that 'anomaly' to the commission or to this court."

This finding revealed that the Petitioner himself was declared nominated for "Nakawa West" but did not challenge his own nomination on this basis.

4. Interchangeable Usage

The Court agreed that:

"'Nakawa West' Constituency and 'Nakawa Division West Constituency' are one and the same but often used interchangeably."

5. Error Was Corrected

The Court found:

"The control form of the Parties and all preceding documents in respect to the nomination indicate the constituency as Nakawa Division West. Thus, the clerical error was corrected and can not be held to cause confusion to anyone and most certainly not the Petitioner."

6. Precedent on Clerical Errors

The Court cited Kosongaki Diana v. Fulgensia Tumwesigye Civil Application No. 21 of 2023 [2025] UGSC 27:

"Substantive justice outweighs procedural technicalities, clerical errors especially when the said errors can be explained or corrected."

On the Merits

The Court held that:

The nomination error was a minor irregularity or misnomer, not an imperfection leading to substantial diversity under Section 29(2) of the Parliamentary Elections Act.
The Control Form was a legitimate and integral part of the nomination process.
The Electoral Commission was lawfully empowered to correct such errors.

“The failure by the 2nd–8th Respondents to fill in the correct name of the constituency… is a minor irregularity which could be cured by the Commission.”

The Court strongly emphasised democratic choice:

“To allow the appeal would be denying the voters… the opportunity of choosing their representative. This court cannot be seen to subvert the will of the people.”

The Court further criticised the attempt to obtain an unopposed declaration:

“The effort of the Appellant… is an audacious attempt to sneak to Parliament to represent a group of people whose mandate he has not obtained.”

Holding

The petition failed on its merits.
The Electoral Commission’s decision upholding the nominations was affirmed.
The appeal was dismissed in its entirety.
Each party was ordered to bear its own costs.

KEY TAKEAWAYS

For Electoral Practice

Clerical Errors Are Curable: Minor errors or misnomers in nomination papers (such as incomplete constituency names) can be cured by the Electoral Commission under its statutory powers, particularly where:
1. The correct information appears on other official documents (e.g., Control Forms)
2. No voter confusion results
3. The geographical area and intention are clear
Control Form Significance: The Control Form is not merely an administrative document but serves as confirmation of nomination. When all candidates (including the petitioner) sign a Control Form with the correct constituency name, this cures earlier errors.
Interchangeable Names: Where a constituency is commonly known by both a formal name and a shortened version (e.g., "Nakawa Division West" vs. "Nakawa West"), and these are used interchangeably without causing confusion, this does not invalidate nominations.
Electoral Commission's Corrective Powers: Section 15(1) of the Electoral Commission Act grants broad powers to correct irregularities and their effects, extending to nomination-stage errors.

For Legal Practitioners

Substantive Justice Prevails: Courts will apply Article 126(2)(e) of the Constitution to prioritize substantive justice over procedural technicalities, especially in election matters where disenfranchisement may result.
Clean Hands Doctrine: A petitioner who committed the same alleged error (being declared for "Nakawa West") lacks the moral and legal standing to challenge others on that basis.
Voter Rights Paramount: Courts are reluctant to grant relief that would:
1. Deny voters their right to choose representatives
2. Impose a candidate on voters without electoral mandate
3. Subvert the democratic will of the people
Procedural Compliance in Pleadings: While the Court allowed latitude:
1. Rule 7(1) requires Electoral Commission affidavits to state specific facts about the complaint and decision
2. Rule 8(4) requires respondents (other than the Commission) to answer by affidavit within two days
3. Formal "Answers to Petition" can be severed from supporting affidavits without fatal effect
Section 29(2)(c) Interpretation: "Imperfection leading to substantial diversity" requires material deviation, not mere clerical errors or alternative naming conventions for the same constituency.

For Political Candidates

Document Accuracy Matters, But Context Saves: While candidates should ensure accuracy in all nomination documents, courts will consider:
1. The totality of documents filed
2. Common usage and understanding
3. Whether confusion actually resulted
4. Whether the error was corrected through official processes
Harmonization Process Significance: Participation in official harmonization meetings and signing of harmonized programs serves as evidence of:
1. The correct constituency being contested
2. Correction of earlier errors
3. Common understanding among all candidates
Strategic Litigation Risks: Attempting to eliminate all competitors through technical objections may:
1. Backfire if the petitioner committed the same error
2. Be characterized as an attempt to "sneak to parliament"
3. Result in cost consequences if unsuccessful

General Principles

Electoral Democracy Protected: Courts serve as guardians of the democratic process and will not facilitate attempts to circumvent the ballot box through technicalities.
Timing of Corrections: While Section 29(3) provides for corrections by 5:00 PM on nomination day, this does not preclude the Electoral Commission from exercising its Section 15 powers to correct irregularities discovered later, especially when:
1. The error is clerical
2. The correction is evident in other official documents
3. No prejudice results
Evidence Standards: In pre-election petitions, affidavit evidence predominates (Rule 15(1)), and preliminary objections on pleading technicalities will be narrowly construed to avoid defeating substantive claims.

IMPLICATIONS

This judgment reinforces that:

Electoral law emphasizes substance over form in determining nomination validity
The Electoral Commission has broad corrective powers to cure irregularities
Courts will protect voters' rights to choose their representatives
Technical objections will not succeed where they would disenfranchise voters without substantial justification
Candidates must approach courts with clean hands and cannot benefit from errors they themselves committed