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What has the court of appeal decided regarding the Tororo By-election?
Kampala — Uganda’s Court of Appeal has declined to issue arrest warrants against Electoral Commission (EC) Chairperson Justice Simon Byabakama and other EC commissioners, despite a petition accusing them of contempt for failing to conduct a by-election in Sere Sub-county, Tororo District. The court held that the EC had shown “reasonable grounds” for its failure to organise the election as earlier ordered.
A panel of justices — Hellen Obura, Christopher Gashirabake, and Musa Ssekaana — delivered the decision, determining that although the EC is constitutionally obligated to organise elections, contempt of court requires proof of deliberate or wilful disobedience, which was not shown in this case.
“The respondent has provided a reasonable ground for non-compliance and has shown good faith efforts to comply with the court order. Since contempt requires deliberate non-compliance, and the applicant has not met the threshold for willful disobedience, we find the respondent not in contempt of the order of this court,” the justices said in their ruling.
The judges issued a caution to both the EC and the Ministry of Finance for “selectively prioritizing certain by-elections while ignoring others,” emphasising that it was “unacceptable to leave a whole sub-county without a chairperson for over three years.” They added that, with the 2026 general elections approaching, it would be “logistically and financially impractical” to organise a stand-alone by-election for Sere Sub-county at this stage.
Background: What the By-Election is, Who the Candidates Were, and What Happened
To understand the current legal dispute, here is what transpired:
- What the election was for: The by-election would be for the office of LCIII Chairperson of Sere Sub-county in Tororo District. LCIII refers to a Local Council at the Sub-county level.
- Why the by-election was ordered: In the 2021 Local Government Elections, Michael Okongo was declared winner of the LCIII Chairperson position for Sere. He defeated Christestom (“Bonny”) Owori by a narrow margin (Okongo had 799 votes; Owori 776). Owori challenged the result in court, alleging irregularities — including ineligible voters, multiple voting, forged signatures at a polling station and other breaches of the Local Government Act. On 19 May 2022, the Court of Appeal annulled Okongo’s election and ordered fresh elections (“by-elections”) to fill that LCIII Chairperson seat.
- Candidates: The main contestants in the original 2021 election were Michael Okongo (the declared winner before annulment) and Christestom Bonny Owori (the petitioner who challenged the result). After the annulment, fresh by-elections were supposed to be held. Owori demanded the by-election, as per the May 2022 court ruling.
- What EC says: The EC conceded that the court order exists and that it is legally bound to follow it, but attributed the delay in organising fresh elections to lack of funding. Its legal officer, Patrick Wettaka, submitted that the Commission had formally sought supplementary funds, including a letter dated 20 February 2023, detailing a budget shortfall of more than Shs 10.7 billion needed to conduct several local government by-elections nationwide.
- What the petitioner asked for: Owori asked that the EC commissioners be held in civil prison for contempt, pay him damages totalling Shs 300 million, and that the by-election be carried out. He argued that EC had “defied” the May 2022 judgment for over three years despite repeated reminders and that such inaction disrespected voters in Sere Sub-county.
What the Court Decided
- The Court of Appeal found that although EC has a constitutional duty to conduct elections, there was insufficient evidence that the EC wilfully ignored the 2022 court order. The standard for contempt requires proof of deliberate and wilful disobedience, not merely failure or delay. The EC’s explanation – especially the financial constraints – was accepted as plausible and as an attempt to comply in good faith.
- As such, no arrest warrants were issued against Justice Byabakama or the EC commissioners. The court also declined to order payment of the damages sought by Owori, on the basis that the threshold for establishing contempt was not met.
- However, the court strongly criticised the situation whereby a sub-county has been without a chairperson for more than three years. It also issued warnings to EC and the Ministry of Finance to avoid partial prioritisation of by-elections, and urged them not to overlook vacancies due to financial or other logistical excuses.
Implications and Next Steps
- For Sere Sub-county: Residents remain without a chairperson (LCIII) since the annulment of Okongo’s election in May 2022. Without the by-election, the area lacks formal local leadership at that level, which may impact governance, public accountability, and service delivery.
- For the EC and Ministry of Finance: The ruling underscores the need to plan and budget for by-elections and not allow essential democratic processes to stall indefinitely due to funding issues.
- Looking ahead: Given that the next general elections are scheduled for 2026, the court noted that it may be inefficient or impractical to hold a special by-election so close to nationwide elections. Still, the EC is under legal obligation to act, and further legal or political pressure may increase.
Conclusion
The Court of Appeal’s decision in this case marks a critical balancing act between enforcing judicial orders and respecting practical realities, such as resource constraints. While the EC avoided contempt sanctions because the court found no wilful defiance, the judgment leaves unresolved critical questions about local representation for Sere Sub-county. It also highlights structural challenges in ensuring timely democratic processes across Uganda’s local government system.
