The Court of Appeal has ejected Polycarp Ogwari and installed his rival David Ochwa as the Agule County Member of Parliament citing his illegal nomination for the 2021 elections.
According to the decision delivered on Tuesday evening, Ochwa shall take office immediately. The decision arises from an appeal, in which Ochwa, contested Ogwari’s nomination
In 2021, Ogwari, an independent leaning National Resistance Movement (NRM) party-candidate, was declared the winner with 7,190 votes. Ochwa, who ran on the NRM party ticket, came second with 6,908 votes.
Unhappy with the results, Ochwa petitioned Mbale High Court, claiming the election was marred by bribery and voter intimidation. He also argued that Ogwari lacked the requisite academic qualifications for nomination member of parliament.
Ochwa sought confirmation as the duly elected Member of Parliament or a by-election. The case initially went to Mbale High Court, then the Court of Appeal ruled in Ochwa’s favor in April 2022, ordering a retrial before a different High Court judge.
On December 15th, 2022, Justice Moses Kazibwe nullified Ogwari’s victory, leading to the current appeal to a fresh appeal, which was decided Tuesday.
In his appeal, Ogwari faulted the High Court Judge for having erred in law and fact when he reportedly failed, refused and or neglected to hear, determine and or resolve the preliminary points of law he had raised hence leading to a miscarriage of justice.
He also faulted the Trial Judge for having erred in law and fact when he set aside his election on the ground that he was illegally nominated, which wasn’t part of the petition.
On his part, Ochwa asked the Court to dismiss the appeal on grounds that the letrial Judge could not faulted as the evidence placed before him proved that Ogwari lacked the requisite academic qualifications provided for under Article 84 of the Constitution and Section 4 of the Parliamentary Elections Act.
He said that the petition pleaded the illegality generally but the affidavits filed subsequently confirmed the illegality after procuring Ogwari’s actual nomination papers.
He thus noted that the law cannot sanction what is illegal and once an illegality is brought to the attention of court, it overrides all questions of pleadings.
In their judgement, Justices Fredrick Egonda-Ntende, Eva Luswata, and Oscar Kihika agreed with Ochwa, saying that he was illegally nominated since he only possessed a Certificate in Electrical Installation obtained after Senior Four by the time he was nominated.
“The 1st Respondent (Ogwari) claims to have in his possession a Certificate of Equivalence. The 2nd Respondent contends thathe had the qualifications to be nominated.A perusal of what he submitted shows an O’ Level Certificate and verification of results for Parts II ond III in Electrical Installation Craft Courses sat at Uganda Technical College, Elgon. The two Respondents failed and/ or did not think it wise to avail the Certificate to the Court”, said the Justices.
According to the Justices “only the National Council for Higher Education has the mandate to weigh the qualifications and issue a Certificate of Equivalence which must be submitted at the time of nomination.
“It is the finding of this court that failure to submit the Certificate of Equivalence was fatal and rendered the nomination invalid”, held the Justices.
They said that the then High Court Judge Kazibwe also found as such and they have no reason as to why they should set aside his findings as he was alive to the facts of the law when he ruled like that.
“The Electoral Commission and the Speaker of Parliament are hereby formerly notified that Mr. Ogwari Polycarp shall, from the date of this judgment, cease to be the Member ofParliament for Agule County Constituency”, said the Justices.
As a consequence, Ogwari is directed to pay the costs of this appeal and the costs in the High Court that Ochwa incurred.
URN.
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