Kawooya v Kabatsi (Election Petition Appeals Nos. 3 And 4 of 2007.)

Court of Appeal · [2007] UGCA 24 · 2007 Appeal Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Consolidated appeals from a High Court decision nullifying a parliamentary election in an election petition

Decision

Appeals allowed; nullification of election set aside and election petition dismissed

The full judgment

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Holding

The Court of Appeal allowed the consolidated appeals. It held that the requirement of a Gazette notice for the removal of one returning officer and appointment of another under section 30 of the Electoral Commission Act was cured by section 50(1), which permits the Commission to adapt provisions to meet the exigencies of the situation. Even if there had been non-compliance, the petitioner had to prove, by qualitative or quantitative evidence, that it affected the result in a substantial manner under section 61(1)(a) of the Parliamentary Elections Act. Sample declaration of result forms and reports acknowledging confusion did not discharge that burden, and unsigned declaration forms do not invalidate validly cast votes. The election nullification was set aside and the petition dismissed.

Facts

The 1st appellant, the respondent and two other candidates contested the Woman Member of Parliament seat for Sembabule District in the 23 February 2006 general elections. The Electoral Commission declared the 1st appellant the winner with 29,398 votes against the respondent's 28,199. The respondent petitioned the High Court at Masaka seeking nullification, alleging non-compliance with electoral law. Before the election, disagreement among candidates over electoral officials caused tensions threatening the conduct of the poll. The Commission convened a meeting of all candidates, who signed a memorandum of understanding providing for two presiding officers per station, each side nominating officers. The returning officer Muwaya Tibakuno was removed and Ibrahim Kakembo appointed in his place without a Gazette notice, the Deputy Chairperson informing candidates orally. The trial judge found the removal and appointment unlawful, the Commission compromised, and that non-compliance and unsigned declaration of result forms affected the result substantially, and nullified the election. The appellants appealed.

Issues

Whether the trial judge properly evaluated the evidence led by the appellants.
Whether the removal of the returning officer and appointment of his replacement complied with the law, and if not whether it affected the result substantially.
Whether the finding of non-compliance with electoral laws affecting the result in a substantial manner was justified.
Whether the trial judge properly evaluated the effect of the candidates' memorandum of understanding on the election.
Whether unsigned declaration of result forms invalidated the results and affected the election substantially.
Whether the 1st appellant was entitled to costs against the respondent.

Orders

Appeal allowed.
The trial judge's order nullifying the 1st appellant's election set aside.
An order dismissing the petition substituted in its place.
Costs of the appeal and in the court below awarded to the appellants against the respondent.

Key headnotes

Electoral Law — Returning Officers — Removal and Appointment — Curing of Gazette Notice Requirement under Section 50 ECA

The requirement under section 30(1) and (3) of the Electoral Commission Act that the appointment or removal of a returning officer be by notice in the Gazette may be cured under section 50(1) of the same Act, which permits the Commission to adapt provisions to meet the exigencies of an unforeseen situation, such as by oral notification to candidates.

Electoral Law — Setting Aside Election — Non-compliance Must Affect Result Substantially

To set aside the election of a Member of Parliament for non-compliance under section 61(1)(a) of the Parliamentary Elections Act, the court must be satisfied both that there was failure to conduct the election in accordance with the principles in the relevant provisions and that the non-compliance affected the result in a substantial manner; proof of mere non-compliance without proof of its effect and extent on the result is insufficient.

Evidence — Burden of Proof — Facts Specially within Knowledge — Section 106 Evidence Act

Where the petitioner establishes a prima facie case that a returning officer was removed and replaced otherwise than in accordance with the law, the burden shifts under section 106 of the Evidence Act to the Electoral Commission to prove that the removal and appointment complied with the law, those facts being specially within its knowledge.

Electoral Law — Proof of Substantial Effect — Sampling and Unsigned Declaration of Result Forms

Sample declaration of result forms are insufficient to prove the qualitative or quantitative extent of non-compliance on an election result, as reliance on sampling is speculative; failure to sign declaration of result forms does not per se invalidate validly cast votes and does not affect the result of the election.

Electoral Law — Independence of Electoral Commission — Appointment of Polling Officials

While the Electoral Commission must perform its functions, including appointment of presiding officers and polling assistants, independently under Article 67 of the Constitution and section 13 of the Electoral Commission Act, a finding that candidate-influenced appointments compromised the Commission must be supported by evidence that the returning officer actually implemented such nominations.

Legislation cited (20)

Parliamentary Elections Act 17 of 2005 s.4(1)(c)
Parliamentary Elections Act 17 of 2005 s.18(3)
Parliamentary Elections Act 17 of 2005 s.61(1)(a)
Parliamentary Elections Act 17 of 2005 s.61(2)
Parliamentary Elections Act 17 of 2005 s.63(4)(c)
Parliamentary Elections Act 17 of 2005 s.63(6)(c)
Parliamentary Elections Act 17 of 2005 s.68
Parliamentary Elections Act 17 of 2005 s.72
Electoral Commission Act s.13
Electoral Commission Act s.14(3)
Electoral Commission Act s.15(1)
Electoral Commission Act s.30(1)
Electoral Commission Act s.30(3)
Electoral Commission Act s.34(1)
Electoral Commission Act s.50(1)
Constitution of Uganda Article 60
Constitution of Uganda Article 61(1)(f)
Constitution of Uganda Article 62
Constitution of Uganda Article 67
Evidence Act Cap 6 s.106

Cases cited (5)

Masiko Winfred Komuhangi v Babihuga J. Winnie (Election Petition Appeal No. 9 of 2002)
Besigye Kiiza v Museveni Yoweri Kaguta (Presidential Election Petition No. 1 of 2001)
Amama Mbabazi and Electoral Commission v Musinguzi Garuga James (Parliamentary Election Appeal No. 12 of 2002)
Ngoma Ngime v Electoral Commission and Winnie Byanyima (Parliamentary Election Appeal No. 11 of 2002)
Masiko Winfred Komuhangi v Babihuga J. Winnie (Election Petition Appeal No. 9 of 2002)

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