Quoreka v Basa [2023] PGNC 112; N10267 (26 May 2023)

N10267

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 43 OF 2022

IN THE MATTER OF THE ORGANIC LAW ON THE NATIONAL AND LOCAL GOVERNMENT ELECTION & IN THE MATTER OF DISPUTED RETURN FOR THE KABWUM OPEN ELECTORATE IN THE 2022 GENERAL ELECTION

BETWEEN:
HARING QUOREKA
Petitioner

AND:
PATRICK BASA
First Respondent

AND
PAPUA NEW GUINEA ELECTORAL COMMISSION
Second Respondent

Lae: Manuhu, J.
2023: 15^th & 26^th May

GENERAL ELECTIONS – Declaration under special circumstances –Whether Electoral Commissioner has the power to declare under special circumstances where counting was incomplete – ss. 97, 168 & 175 of the Organic Law on National and Local Level Government Elections.

Cases Cited:

Special Reference Pursuant to Constitution, Section 19 (1); Special Reference by the Ombudsman Commission of Papua New Guinea [2019] SC1814
William Hagahuno v Johnson Tuke [2020] SC2018
Powi v Kaku [2022] SC2290
Ombudsman Commission v Yama [2004] SC747

Counsel:

M.J. Alu, for the Petitioner.
S. Ranewa, for the First Respondent.
J. Simbala, for the Second Respondent.

26^th May, 2023

1. MANUHU, J.: This is an election petition disputing the declaration under special circumstances of the first respondent as the winning candidate for Kabwum Open Electorate in Morobe Province in the 2022 National General Election.
   
2. At the outset, I would like to thank the counsel for their assistance in expediting the trial and submissions. I am thus able to promptly deliver this decision.
   
3. The petition grounds are:
   
   1. The Returning Officer did not complete and determine the result of the election by scrutiny before making the declaration thereby contravening section 168 (1) of the Organic Law on National and Local-level Government Elections (“The Organic Law”).
      
   2. The second respondent failed to refer the facts and circumstances relating to the destruction of the ballot papers and ballot boxes to the Electoral Advisory Committee thereby breaching section 96 (2)(a)(b) and section 96C (4) of the Organic Law.
      
   3. The declaration of the first respondent was not made in accordance with sections 50 (1) (c), (d), and (e) of the Constitution.
      
   4. The Electoral Commissioner’s action in declaring the first respondent as the member-elect behind closed doors and in secret was a direct breach of section 175(1)(a) of the Organic Law.
      
      5. The Electoral Commissioner erroneously applied section 175 (1A) of the Organic Law to declare the first respondent as the member-elect on the basis of special circumstances.
         
   6. The Electoral Commissioner in declaring the first respondent as member-elect was in breach of the official decision made under section 96A (2) and (3) of the Organic Law.
      
   7. The declaration was contrary to the direction given by the Electoral Commissioner on 8^th August 2022 for a supplementary election.
      
   8. Integrity of the ballot boxes and ballot papers was highly compromised during polling, pick up, storage, counting, and declaration. No genuine, periodic, free elections were conducted openly and transparently. Thereby breaching section 50 (1) (c), (d), and (e) of the Constitution.
      
4. Seven affidavits were tendered by consent for the petitioner. The Situation Report was also tendered by the petitioner’s counsel. They are marked, as follows:
   
   • (a) Affidavit of Haring Quoreka Exhibit P1
   • (b) Affidavit of Charles Horangke Exhibit P2
   • (c) Affidavit of Terp Ulumgu Exhibit P3
   • (d) Affidavit of Kepi Kiwong Exhibit P4
   • (e) Affidavit of Jacky Indong Exhibit P5
   • (f) Affidavit of Joseph Basa Exhibit P6
   • (g) Affidavit of Hon. Yamandu Opake Exhibit P7
   • (h) Situation Report Exhibit P8
     
5. For the second respondent, these affidavits were admitted into evidence by consent:
   
   • (a) Affidavit of Ezekiel Nigo Exhibit R1(1)
   • (b) Affidavit of Robbie Bofeng Exhibit R1(2)
   • (c) Affidavit of Sergeant Dikinang Siniwin Exhibit R1(3)
   • (d) Affidavit of Patrick Basa Exhibit R1(4)
     
6. The second respondent’s affidavits were struck out by the Judge Administrator in Waigani because of late filing, the Court was informed. On application by the second respondent, it occurred to me that excluding the Electoral Commission’s evidence would disadvantage the Court from appreciating the circumstances under which the declaration was made. Accordingly, notwithstanding their initial exclusion, these affidavits were admitted into evidence:
   
   • (a) Affidavit of Simon Sinai (The Commissioner) Exhibit R2(1)
   • (b) Affidavit of Keteng Ondop (Returning Officer) Exhibit R2(2)
   • (c) Affidavit of Mark Mails (Assistant Returning Officer) Yus LLG Exhibit R2(3)
     
7. Counsel for the petitioner cross-examined Returning Officer Keteng Ondop who testified that he was forewarned that there would be trouble at the counting venue, but the security personnel were outnumbered and unable to prevent the burning of the ballot boxes.
   
8. Most of the evidence centered on how counting was conducted, who was at fault, who was to be blamed, and who was responsible for the burning of the ballot boxes. However, as no one supporter, official, or candidate was identified, I do not wish to be drawn into the specifics of the blame game. Suffice it to say, all the ballot boxes were completely burned to ashes.
   
9. It is not disputed however that the Writs for the 2022 General Election were issued on the 28^th of April 2022 and subsequently extended to 12^th of May 2022. Nomination opened for the Electorate from 19^th to 26^th of May 2022. The petitioner was one of 14 candidates who were nominated to contest the election. Campaign started on 12^th of May and ended on 30^th of June 2022. Polling took place from 6^th to 11^th July 2022 in 29 polling locations.
   
10. Counting commenced on 15^th of July 2022 at Sir Bob Dadae Hall at Kabwum Primary School. First preference votes from a total of 14 ballot boxes were counted on 15^th and 16^th of July 2022. A total of 15 ballot boxes were yet to be counted when counting was suspended at the end of the day and deferred to 17^th of July 2022.
    
11. At that time, the top ten candidates were:

Patrick Basa 5,498
Don Sawong 2,850
Mainuwe Motang Fenamu 1,893
Haring Qoreka 1,046
Noreo Giogi Keindip 393
Kupok Aling 369
Wagao Openg 279
Isaac Dita Bugere 142
Danny Samandingke 29
James Owa 17

12. In the morning of 17^th of July 2022, unidentified persons broke into the Kabwum District Office, brought all the ballot boxes out, and destroyed them by setting them alight. All the ballot boxes were destroyed. Counting was thus brought to an abrupt end.
    
13. A Situation Report was compiled within two days by the Returning Officer. It was attached to a letter dated 19^th July 2022 under the letterhead of the Returning Officer. The subject of the letter was: Declaration of Candidate Patrick Basa as Member Elect for Kabwum Open Electorate for National General Elections 2022. The letter was signed by the Returning Officer and four Assistant Returning Officers. The letter reads, verbatim:

“As per mentioned, the counting for Kabwum Open Electorate was disrupted on the 17th day of July, 2022 at 10:30 am when the supporters, scrutinizers and committees of rival candidates stormed the District Office where the ballot boxes were kept and took the ballot boxes containing ballot papers both counted and uncounted and other election documents (journals) and burnt them (ref.1 attachment).

“As the Gazetted Returning Officer for Kabwum Open Electorate, I, Mr. Keteng Ondop with my four (4) Assistant Returning Officers (ARs) received no formal complaints from the rival candidates nor their scrutinizers and committees in that matter. The outcome of all that happened totally jeopardized and under minded the democratic process of electing a leader through democratic process which is through the process of election and counting.

“The frustration and destruction of counting documents happened when the candidate Patrick Basa was taking a commanding lead in preliminary count for the all four LLGs; Deyamos, Komba, Selepet and Yus.

“Below are the results of the First Preference Counting (FPC) excluding Informal Votes.

Name of LLG	Counted Ballot Boxes	Total Voted	Remaining B/Boxes
Deyamos	04	2,891	04
Komba	03	3,563	03
Selepet	03	4,056	03
Yus	04	2,087	05
Total	14	12,597	19*

*Should be 15.

“With the above information the incumbent Patrick Basa led comfortably with 5, 498 votes (44%) of total formal votes. Counting should have preceded, however, the barbaric action by the supporters, scrutinizers and committees of rival candidates hindering the completion of democratic counting process.

“The destruction and burning of ballot boxes and ballot papers is unacceptable and is condemned totally at all costs. These inhumane actions had caused havoc to the democratic process of electing a leader.

“The counting incident at Markham had provoked what has happened in Kabwum, therefore we do not want this to happen in other Districts in PNG now and in the future. Under such circumstances severe penalties must be imposed to avoid such illegal actions and maintain the integrity of the counting process.

“The election (polling) in Kabwum was safe, free and fair but it’s the progressive that provoked and instigated the entire counting for Kabwum District.

“Therefore, I Keteng Ondop the duly appointed Returning Officer (RO) for Kabwum Open Electorate with powers vested under section 9 of the Organic Law on National and Local-level Government Elections declare candidate Patrick Basa as duly elected member for Kabwum Open Electorate for this year’s National General Elections.”

“Find attached are the Situation Report and Progressive results for ballot boxes counted.”

14. Section 9 of the Organic Law, by the way, is a provision on the term of office of the Electoral Commissioner. It has nothing to do with a Returning Officer’s powers to declare an election result. Secondly, the proposed decision to declare the first respondent as a member-elect appears to be a rushed decision with little or no reference to any provision of the Organic Law.
    
15. However, it appears, and I so find that the actual declaration was not made on 19^th July 2022. The Electoral Commission may have instructed the Returning Officer not to make a declaration. The letter and the Situation Report were sent to the Electoral Commissioner. About three weeks later, the Electoral Commissioner declared the first respondent as member-elect on 8^th August 2022 at the Electoral Commission Office in Hohola, NCD.
    
16. The Electoral Commissioner deposed that he made the declaration under special circumstances pursuant to section 175 (1A) of the Organic Law, based on the reports he received from the Returning Officer. The Electoral Commissioner’s full explanation is as follows:
    

“7. This declaration was based on, among others, the following reports pertaining to the conduct of the election in Kabwum Open Electorate;

(a) A Joint Situation Report from the Returning Officer, Mr. Keteng Ondop and the four (4) Assistant Returning Officers (AROs) dated 19 July 2022 on the conduct of the counting for the electorate. Mr. Ondop was in charge of counting of votes for the Kabwum Open Electorate at the time of destruction of ballot papers (17 July 2022).

Annexed hereto and marked with the letter “S-2” is a true copy of the Situation Report dated 19 July 2022.

(b) A Joint Report from the Returning Officer for Kabwum Open, Mr. Keteng Ondop and Mark Mails (ARO for Yus Rural LLG) dated 26 July 2022.

Annexed hereto and marked with the letter “S-3” is a true copy of the Report dated 26 July 2022.

“8. I was informed that counting for the Kabwum Open Electorate was disrupted on 17 July 2022, at around 10:30 am, when the supporters and scrutineers of rival candidates stormed the District Office where the ballot boxes were kept and took the ballot boxes containing ballot papers, both counted and uncounted and other electoral documents and burnt them completely to ashes.

“9. The frustration and destruction of ballot papers and electoral documents happened when it was noticed by the rival candidates that the incumbent Patrick Basa was taking a commanding lead in the preliminary counts in all the four (4) LLGs of the District.

“10. It was also reported to me that the destruction of the ballot papers was intentionally done to disrupt the election process to disturb the leading candidate’s chances of winning and to force a decision by the Electoral Commission to declare a failed election and a by-election of the open electorate.

“11. The reports highlighted the following figures of the top five (5) candidates as at 17 July 2022, the date of total destruction of the ballot papers:

KABWUM OPEN PRIMARY COUNT RESULTS AS AT 17 JULY 2022 – TOP 5 CANDIDATES
RANK	CANDIDATE #	CANDIDATE NAME	SCORES
1	20	PATRICK BASA	5, 498
2	13	DON SAWONG	2, 850
3	15	MAINUWE MOTANG FENAMU	1, 893
4	11	HARING QOREKA	1, 046
5	19	NOREO GIOGI KEINDIP	393

“12. The incident in respect of the Kabwum Open seat is somewhat similar to the election for Markham Open seat in Morobe, where all ballot boxes/ballot papers and all election materials were completely intentionally destroyed by candidates and supporters, leaving no room for the Electoral Commission to continue counting, thereby forcing the hand of the Electoral Commission to intervene.

“13. Given the situation at hand, and taking into account all reports referred to above and the circumstances on the ground at Kabwum District, and also with concerns of costs in conducting another costly election for the electorate which in my estimation would cost the people of Papua New Guinea around between K2.5 million to K3 million, I declared the First Respondent who was leading the count at the material time, as member-elect for Kabwum Open Seat.”

17. Preferably, the reasons for the decision to declare under special circumstances should be in written form at the time the declaration is made. The Electoral Commissioner also has a duty to give reasons for his decisions. See Ombudsman Commission v Yama [2004] SC747. An explanation after the event through an affidavit may be tainted by exaggeration or forgetfulness and, therefore, undesirable.
    
18. In any case, on the evidence, the only petition grounds that are worth considering are Ground 1 and Ground 5. Ground 1 is pleaded thus:
    

“1. The Returning Officer did not complete and determine the result of the election by scrutiny before making the declaration thereby contravening section 168 (1) of the Organic Law”.

19. Ground 5 reads:
    

“5. The Electoral Commissioner erroneously applied s. 175 (1A) of the Organic Law to declare the first respondent as member-elect on the basis of special circumstances.”

20. These two grounds overlap. Accordingly, the issue for consideration is whether the Electoral Commissioner has the power to declare the result of an election under special circumstances where the counting was incomplete.
    
21. I was referred to the case of Powi v Kaku [2022] SC2290 where it was held:
    

“The [Electoral Commissioner] has an unlimited discretion to determine if any “special circumstance” is presented for the purposes of any of the decisions he has to make under such provisions as s. 175 (1A) (b) of the Organic Law and given that discretion the Supreme Court has declined to circumscribe what does and what does not constitute such circumstance and left it open for a party to plead an appropriate case in the National Court: Special Reference by the Attorney-General [2002] PNGLR 696 and Special Reference by the Ombudsman Commission of Papua New Guinea (2019) SC1814”

22. With due respect, the Reference was mainly concerned about special circumstances in the context of the Electoral Commissioner’s power to extend the time for the return of the writs. The Supreme Court was not asked to give an opinion on section 175 (1A). In any event, there are aspects of section 175 that may have not been judicially considered. This petition presents a rare opportunity for the Court to consider 175, especially subsection (1A).
    
23. Section 175 states:

“(1) Subject to this section, the Returning Officer or the Electoral Commission shall, as soon as conveniently may be after the result of an election has been ascertained–

(a) at the place of nomination or any other place appointed by the Returning Officer, publicly declare the result of the election and the name of the candidate elected; and

(b) by endorsement under his hand certify on the writ the name of the candidate elected and return the writ through the Electoral Commission to the Head of State who shall then forward all the writs to the Speaker of the Parliament.

“(1A) Where the Electoral Commission has directed the Returning Officer not to declare a result: –

(a) unless the direction is withdrawn, the Returning Officer shall not declare a result and any result declared in contravention of a direction is invalid; and

(b) in special circumstances, the Electoral Commission may declare the result based on information concerning scrutiny and other information provided by the Returning Officer or an Assistant Returning Officer.

“(2) Where the Returning Officer cannot complete his inquiries into the facts set out in the declarations received by him under Section 141 or 142, without unduly delaying the declaration of the poll, and he is satisfied that the votes recorded on the ballot-papers could not possibly affect the result of the election, he may, subject to the concurrence of the Electoral Commission, declare the result of the election and return the writ without awaiting the receipt of the ballot-papers or the completion of inquiries, as the case may be.”

24. Notice that section 175 is the first section under PART VI. – THE RETURN OF THE WRITS. Return of writs is one of the steps that is undertaken after the completion of the counting of ballot papers. This means that ordinarily counting would have been completed before section 175 takes effect. Thus, after counting is completed, the first step under subsection (1) is for the Returning Officer to, as soon as is convenient, publicly declare the result of the election and the name of the candidate elected at the place of nomination or any other place appointed by the Returning Officer. Then the Returning Officer certifies on the writ the name of the candidate elected. The next step is that the writ is returned through the Electoral Commission to the Head of State who then forward all the writs to the Speaker of the Parliament.
    
25. Subsection (1A) is not as clear as subsection (1). However, in my view, like subsection (1), it also takes effect only after counting is completed. Subsection (1A) would apply in situations where the Electoral Commission forms the view that an inquiry was necessary to ascertain, verify or confirm matters such as the result of the election, the setting aside of ballot boxes and papers, the death of a candidate, and so on. These are issues that usually arise during scrutiny or counting. It would, of course, be necessary for the Electoral Commission to stop the Returning Officer from exercising his powers under subsection (1) until the inquiry is completed. It may also be necessary for the Electoral Commission to request the production of official records, tally sheets, and reports, for instance, before a decision is made to declare.
    
26. What the Electoral Commission does next would depend on all the information and reports before it. It may direct the Returning Officer to declare the result of the election under section 175 (1). It may proceed to order a recount. It may declare the election a failed election under section 97. However, time is of the essence. Delays should be avoided.
    
27. The fifth anniversary of the previous Parliament is an important date the Electoral Commissioner should always bear in mind. The need for Parliament to have its first sitting before or on the fifth anniversary to elect the Speaker and Prime Minister is important. And when it sits, it must have the quorum to conduct its business. See Special Reference Pursuant to Constitution, Section 19 (1); Special Reference by the Ombudsman Commission of Papua New Guinea [2019] SC1814. All eyes would be on the Electoral Commission to return sufficient writs to enable Parliament to sit. These are some of the many factors to be considered when the Electoral Commission is conducting an inquiry.
    
28. With days running, the Electoral Commission may not be able to complete its inquiry. This, in my view, is when it would be appropriate to disregard the inquiry and declare the result of an election and the name of the winning candidate under section 175 (1A). An aggrieved candidate would be at liberty to raise any unresolved issues by way of a petition.
    
29. This analysis is consistent with section 175 (2) which states:
    

“(2) Where the Returning Officer cannot complete his inquiries into the facts set out in the declarations received by him under Section 141 or 142, without unduly delaying the declaration of the poll, and he is satisfied that the votes recorded on the ballot-papers could not possibly affect the result of the election, he may, subject to the concurrence of the Electoral Commission, declare the result of the election and returns the writ without awaiting the receipt of the ballot-papers or the completion of inquiries, as the case may be.”

30. Notice that the inquiry under subsection (2) relates specifically to declarations received under section 141 (Voter claiming to vote against name on roll has been marked) and section 142 (Person claiming to vote whose name is noted as person to whom postal certificate, etc., issued). Where time is running out, the Returning Officer may proceed to declare the result of the election if “he is satisfied that the votes recorded on the ballot papers could not possibly affect the result of the election.”
    
31. My understanding of section 175, therefore, is that subsection (1) prescribes the normal process after counting is completed in accordance with section 168. On the other hand, subsections (1A) and (2) are inquiry provisions. They may also be described as due diligence provisions. The inquiry under subsection (2) relates specifically to declarations under sections 141 and 142. The inquiry under subsection (1A) relates to any other issues of due diligence that may be raised by the Returning Officers, candidates, or scrutineers. The compilation of the Situation Report by Returning Officer Keteng Ondop is the best illustration of the utility of subsection (1A).
    
32. However, section 175 was not made for the Kabwum 2022. Section 175 did not envisage a declaration based on a progressive result. A declaration under subsection (1A) can only be made on the basis of a legitimate result. The word “result” (or result of the election) in subsection (1) has the same meaning as “result” in subsections (1A) and (2), and vice versa. It is unlikely that “result” in subsection (1A) would have a different meaning to “result” in subsections (1) and (2). But what does it mean? In my view, “result” in sections 175 (1), (1A), and (2) has the same meaning as “result” in section 168 (1).
    
33. Section 168 provides:

“(1) Subject to this section and the Regulations, the result of an election shall be determined by scrutiny in the following manner: –

(a) the Returning Officer shall ascertain the total number of first preference votes given for each candidate;

(b) the candidate who has received the largest number of first preference votes, if that number be an absolute majority of votes, is elected;

(c) if no candidate has received an absolute majority of votes, a second count shall be held;

(d) on the second count the sealed parcels of ballot-papers shall be opened by the Returning Officer, the candidate who has received the fewest number of first preference votes shall be excluded and each ballot-paper counted to him shall be counted to the candidate next in order of the order of the voter’s preference;

(e) where a candidate then has an absolute majority of votes he shall be deemed to be elected, but where no candidate then has an absolute majority of votes the process of excluding the candidate who has the fewest votes and counting each of the ballot-papers to the unexcluded candidate next in order of the voter’s preference shall be repeated until one candidate has received an absolute majority of votes;

(f) the candidate who has received an absolute majority if the votes is elected;

(g) if, in any count, two or more candidates have an equal number of votes and one of them has to be excluded, the candidate who received the lowest number of votes in the immediately preceding count shall be excluded and if the same candidates or some of them received the same number of lowest votes in the immediately preceding count, the candidate who received the lowest number of votes in the count preceding the immediately preceding count shall be excluded and this process shall continue as far back as is necessary;

(h) if, and only if, in the situation referred to under Paragraph (g), there is no further preceding count to determine elimination of candidates on equal votes, the candidate who is lowest on the candidate poster shall be excluded;

(i) if, in the final count, two candidates have an equal number of votes, the candidate who received the highest number of votes in the immediately preceding count shall be elected and if the same two candidates received the same number of votes in the immediately preceding count, the candidate who received the highest number of votes in the count preceding the immediately preceding count shall be elected and this process shall continue as far back as is necessary;

(j) if, in the final count, in a situation referred to in paragraph (i), there is no further preceding count to determine a candidate to be elected, the candidate who is highest on the candidate poster shall be elected.”

“(2) Where on any count being conducted in accordance with Subsection (1)(d) or (e), a ballot-paper shows no preference capable, in accordance with this Law, of being counted, in that count, to an excluded candidate, that ballot-paper –

(a) shall be deemed to be exhausted; and

(b) shall be excluded from that count and on any subsequent count; and

(c) shall not be taken into account in the calculation of an absolute majority in relation to that count and any subsequent count.

“(3) The Regulations may provide for the scrutiny to be done electronically under such electronic system as approved by the Electoral Commission but which electronic system shall be programmed to follow the scrutiny rules in this section.

“(4) In this section, “an absolute majority of votes”in relation to any count, means a greater number than one-half of the whole number of ballot-papers (other than informal ballot-papers and ballot-papers excluded from that count under subsection (2)).”

34. The directive nature of section 168 (1) should be noted: “the result of an election shall be determined by scrutiny in the following manner...” Therefore, “result” in section 175 means the result of an election that has been determined by scrutiny in the manner prescribed under section 168 (1). Consequently, a result that is determined in accordance with section 168 (1) would be a valid result. Conversely, a result that bypasses or falls short of section 168 (1) would be a defective or invalid result. There is no result if the counting was incomplete. There is no provision in the Organic Law that validates a progressive result for the purpose of making a declaration. Neither can the Electoral Commission declare a winner on account of a progressive, incomplete, or invalid result.
    
35. In this case, the counting of first preference votes was incomplete. Only 14 out of 29 ballot boxes were counted when the unexpected happened. The number of ballot papers in the remaining ballot boxes is unknown. The Returning Officer was not able to “ascertain the total number of first preference votes given for each candidate”: section 168 (1)(a). All we had was a progressive result.
    
36. A general election is a democratic process that is held every five years. It allows the voters to choose a member and a political party to represent them. The right to vote is a constitutional right (section 50 of the Constitution). The Electoral Commission has the primary responsibility to facilitate the exercise of that right. Part and parcel of that responsibility is to ensure that the counting venue is safe and secure. In this case, the Electoral Commission is blaming candidates and supporters for destroying the ballot boxes, but the Electoral Commission should take responsibility for not securing the counting venue.
    
37. This failure was noted in the Situation Report, thus:
    

“The incident should not have happened if there were enough police personnel on the ground.”

38. When the Electoral Commissioner elected to rely on an incomplete, if not invalid, result to make the declaration, he effectively undermined the right of candidates to stand for an elective office and the right of electors to vote in an election (section 50 (Constitution)). In my view, this was a material error. It is contrary to the very reason the Electoral Commission exists.
    
39. It was improper for the Electoral Commissioner to impose an incomplete or invalid result on innocent voters and candidates, including the first respondent. I don’t think the voters have accepted the outcome of the election in Kabwum. It is also a bad precedent. If the trend continues, the people would be entitled to think that the Electoral Commission is being politicized or weaponized to suppress the voting rights of the people.
    
40. It is not as if the Electoral Commission ran out of options. The Electoral Commission always had the option of ordering a supplementary election under section 97 but it did not consider it. The section provides:
    

“(1) Subject to this Law, whenever an election fails a new writ shall be issued for a supplementary election by the Head of State, acting with, and in accordance with, the advice of the Electoral Commission, as soon as practicable after the failure occurs.

“(2) An election shall be deemed to have failed if no candidate is nominated or returned as elected.” (my underlining)

41. In my view, Kabwum election was a failed election when it became impossible for a candidate to be returned as elected. A supplementary election would have been appropriate. There is no evidence that the Electoral Commission sought and relied on any expert or legal advice.
    
42. In all the circumstances, the Court is satisfied that the Electoral Commissioner committed an error, a material error, when he, based on an incomplete or invalid result, proceeded to declare the first respondent as duly elected under section 175 (1A). Therefore, the declaration of the first respondent as the winning candidate for Kabwum Open Election in the 2022 National General Election is null and void.
    
43. On the question of appropriate relief, it is noted that the petition pleaded for a “supplementary election”. It may be argued that the petition should be dismissed for failure to plead the correct relief. However, the days when you can raise such arguments and succeed are limited. See William Hagahuno v Johnson Tuke [2020] SC2018. Where the Court declares the election of a candidate a nullity, a by-election is the obvious consequential order that must be made. It is therefore open to the Court to order that a by-election be held for Kabwum Open Electorate.
    
44. It is not necessary for the Court to consider the remaining grounds of the petition.
    
45. The Orders of the Court are:
    
    1. The first respondent was not duly elected as member for Kabwum Open Electorate in the 2022 General Elections.
       
    2. The declaration of the first respondent on 8^th August 2022 by the Electoral Commissioner as member elect for Kabwum Open Electorate is null and void.
       
    3. A by-election shall be held for Kabwum Open Electorate.
       
    4. The petitioner’s security deposit shall be reimbursed forthwith.
       
    5. Cost is awarded to the petitioner which, if not agreed, shall be taxed.
       

________________________________________________________________
Supersonix & Alu Lawyers: Lawyer for the Petitioner
Kawat Lawyers: Lawyer for the First Respondent
Harvey Nii Lawyer: Lawyer for the Second Respondent