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Amama Mbabazi and Another v Musinguzi Garuga James (Election Petition Appeal No. 12 of 2002)

Court of Appeal · [2002] UGCA 34 · 2002 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Appeal from High Court judgment nullifying a parliamentary election result
Decision
Appeal dismissed; nullification of the first appellant's election upheld

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Holding

The Court of Appeal dismissed the appeal against nullification of a parliamentary election. Although the trial judge had erred in striking out 20 affidavits for non-payment of commissioning fees (a minor procedural error curable under article 126(2)(e) and section 100 of the Civil Procedure Act), this caused no miscarriage of justice because the answer was treated as valid and the affidavits lacked credibility. The Court held that where proved non-compliance with electoral law was widespread, a qualitative test could be applied to assess whether the result was substantially affected. The evidence established widespread violence, intimidation and sectarian campaigning calculated to affect the result. The trial judge correctly declined to disqualify himself for bias.

Facts

The first appellant and the respondent contested the Kinkizi West Constituency parliamentary seat in the June 2001 general elections organised by the second appellant, the Electoral Commission. The first appellant was declared winner with 25,433 votes against the respondent's 12,977. The respondent petitioned the High Court to nullify the result, alleging non-compliance with the Parliamentary Elections Act, the Electoral Commission Act and the Constitution, including widespread violence, intimidation, harassment of his supporters and agents by UPDF, PPU soldiers and government officials, sectarian campaigning, and obstruction of free and fair elections. He alleged illegal practices committed by the first appellant personally and with his knowledge. The trial judge found non-compliance with electoral law and principles, commission of malpractice by the first appellant, and that the non-compliance affected the result in a substantial manner, and set aside the election. The appellants appealed, disputing the striking out of affidavits, the standard and sufficiency of proof, and the test applied to assess the effect of non-compliance.

Issues

  1. Whether the trial judge erred in striking out 20 affidavits for non-payment of commissioning fees, and whether this occasioned a miscarriage of justice.
  2. Whether the Electoral Commission, as a government institution, was exempt from court fees under section 41 of the Interpretation Decree.
  3. Whether there was non-compliance with the provisions and principles of the Parliamentary Elections Act and Electoral Commission Act in conducting the election.
  4. Whether the proper test for assessing the effect of non-compliance on the result was qualitative or quantitative, and whether the non-compliance affected the result in a substantial manner.
  5. Whether the trial judge erred in declining to disqualify himself for alleged bias.

Orders

  • Appeal dismissed.
  • Costs awarded to the respondent in the Court of Appeal and the High Court.

Key headnotes

Affidavits — Non-payment of Commissioning Fees — Curable Procedural Defect
Non-payment of fees for commissioning affidavits is a minor procedural error which a trial judge has discretionary power, at any stage of the proceedings, to cure by ordering the defaulting party to pay the deficient fees; such a defect should not be allowed to obstruct substantive justice under article 126(2)(e) of the Constitution.
Affidavits — Effect of Striking Out — Miscarriage of Justice
An error in striking out affidavits does not occasion a miscarriage of justice where the answer to the petition was nonetheless treated as valid and the affidavits in question lacked credibility and would not have altered the outcome.
Electoral Commission — Status as Body Corporate — Liability for Court Fees
The Electoral Commission, being a body corporate with power to sue and be sued in its own name under section 3 of the Electoral Commission Act and independent under section 13, is not part of the Government organs and cannot rely on section 41 of the Interpretation Decree to claim exemption from court fees.
Election Petitions — Test for Effect of Non-compliance — Qualitative versus Quantitative
Where the proved non-compliance with the provisions and principles of the Parliamentary Elections Act is extensive and widespread, a qualitative test may be applied to determine whether the non-compliance affected the result of the election in a substantial manner; arithmetical figures are not the only determining factor.
Election Petitions — Free and Fair Elections — Widespread Violence and Intimidation
Widespread violence, intimidation and sectarian campaigning against a candidate and his supporters, persisting up to polling day and creating room for voting malpractices, constitutes non-compliance with the provisions and principles of electoral law sufficient to justify annulment of the result.
Fair Hearing — Disqualification of Judge for Bias — Real Likelihood Test
A judge will be disqualified for bias only where right-minded persons would think there was a real likelihood of bias; a mere prior disagreement between a judge and counsel over a point of law in an earlier case does not amount to bias in law and is no ground for disqualification.

Legislation cited (26)

  • Parliamentary Elections Act 2001 s.62(1)(a)
  • Parliamentary Elections Act 2001 s.21(b)
  • Parliamentary Elections Act 2001 s.22(2)
  • Parliamentary Elections Act 2001 s.24(1)
  • Parliamentary Elections Act 2001 s.24(3)
  • Parliamentary Elections Act 2001 s.25
  • Parliamentary Elections Act 2001 s.26
  • Parliamentary Elections Act 2001 s.43
  • Parliamentary Elections Act 2001 s.69
  • Parliamentary Elections Act 2001 s.81
  • Electoral Commission Act 1997 s.3
  • Electoral Commission Act 1997 s.12(1)(b)
  • Electoral Commission Act 1997 s.12(1)(c)
  • Electoral Commission Act 1997 s.12(1)(e)
  • Electoral Commission Act 1997 s.12(1)(f)
  • Electoral Commission Act 1997 s.13
  • Constitution of Uganda 1995 article 28(1)
  • Constitution of Uganda 1995 article 62
  • Constitution of Uganda 1995 article 70(1)(d)
  • Constitution of Uganda 1995 article 126(2)(e)
  • Civil Procedure Act s.100
  • Court Fees, Fines and Deposits Rules rule 2
  • Court Fees, Fines and Deposits Rules rule 4
  • Court Fees, Fines and Deposits Rules rule 6
  • Interpretation Decree No. 18 of 1976 s.41
  • Parliamentary Elections (Election Petitions) Rules 1996 rule 8(3)(a)

Cases cited (10)

  • Baku Raphael Obudra v Agard Didi and Electoral Commission (Election Petition Appeal No. 2 of 2002)
  • Lawrence Muwanga v Stephen Kyeyune (Civil Appeal No. 12 of 2001)
  • Kizza Besigye v Yoweri Museveni Kaguta (Presidential Election Petition No. 1 of 2001)
  • Peters vs Sunday Post (1958) EA 424
  • Morgan vs Simpson (1974) 3 ALL ER 722; (1975) 1 QB 151
  • Gunn and others vs Sharpe and others (1974) 1QB 808
  • Karokora Katonto Zedekiya v Electoral Commission and Mondo Kagonyera (Election Petition Appeal No. 5 of 2002)
  • R vs Camborne Justices, Ex parte Pearce (1955) 1 QB
  • Mbowe
  • Southern African Trade and Development (PTA) Bank and Anor vs Martin Ogang (unreported)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.