Odo Tayebwa v Nasser Basajjabala & Electoral Commission (Election Petition Appeal No. 013 of 2011)

Court of Appeal · [2012] UGCA 11 · 2012 Appeal Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Appeal from High Court dismissal of a parliamentary election petition

Decision

Election of the first respondent nullified; Electoral Commission directed to arrange fresh elections

The full judgment

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Holding

The Court of Appeal dismissed the appellant's complaints of non-compliance (mass voter transfers) and most bribery allegations for lack of corroborated, cogent evidence, holding the burden lay on the petitioner. However, it found unequivocal evidence that the first respondent's brother and agent, Hassan Bassajjabalaba, made a donation of UGX 5,700,000 to Ruharo Catholic Church two weeks before polling, honouring an old pledge in a manner intended to corruptly influence voters. This constituted bribery and an illegal practice contrary to sections 68 and 61(1)(c) of the Parliamentary Elections Act. The appeal succeeded on that ground; the first respondent's election was nullified and fresh elections ordered.

Facts

Odo Tayebwa, the first respondent Bassajjabalaba Nasser and six others contested the Bushenyi-Ishaka Municipality parliamentary seat in the February 2011 elections. The Electoral Commission declared the first respondent winner with 5,446 votes; the appellant came third with 2,831 votes. The appellant petitioned the High Court alleging non-compliance with electoral laws, including the transfer of voters from areas where he was popular, and various incidents of bribery. The High Court dismissed the petition. On appeal, the appellant relied on the transfer of 147 voters from Kakoma to Fort Jesus, alleged cash payments and distribution of mineral water at several polling stations, and a donation of UGX 5,700,000 made by the first respondent's brother Hassan Bassajjabalaba to Ruharo Catholic Church two weeks before polling, honouring a pledge made about a year earlier. The first respondent had earlier promised to send an agent to assist the church, and Hassan duly attended and made the donation.

Issues

Whether the non-compliance with the electoral laws affected the results in a substantial manner.
Whether the first respondent or his agents, with his knowledge and consent, committed an election offence or illegal practice.
Whether the trial judge properly evaluated the evidence and whether the first respondent was validly elected.
Whether the trial judge erred in ordering the appellant to pay all the costs of the petition.

Orders

Appeal succeeds on the ground of bribery at Ruharo Church.
The election of the first respondent as Member of Parliament for Bushenyi - Ishaka is nullified.
The second respondent is directed to arrange for fresh elections.
Costs here and below awarded to the appellant.

Key headnotes

Election Petitions — Burden and Standard of Proof

In an election petition the burden of proof rests on the petitioner and does not shift; the standard is higher than a mere balance of probabilities but short of proof beyond reasonable doubt, and the petitioner must adduce credible, cogent evidence rather than rely on the weakness of the respondent's case.

Election Petitions — Non-Compliance — Substantial Effect on Results

To set aside an election for non-compliance with electoral laws the petitioner must prove that on each complaint the respondent unfairly obtained a substantial number of votes which, but for the non-compliance, would have gone to the petitioner.

Bribery — Elements of the Offence

The offence of bribery under section 68 of the Parliamentary Elections Act is complete only where it is proved that a gift was given to a voter, that it was given by a candidate or his agent, and that it was given to induce the voter to vote for the candidate; clear and unequivocal proof is required.

Election Petitions — Corroboration of Bribery Allegations

The confession of a person alleged to have received a bribe is not conclusive, and uncorroborated evidence of a single witness alleging bribery is insufficient; strong corroborated evidence is required to establish the corrupt motive of the person who bribes another.

Bribery — Agency of a Candidate

There is no precise rule for proving agency; any person who, with the candidate's knowledge, acts in furthering the election by procuring votes is an agent for whose acts the candidate is liable, and a candidate cannot extricate himself from acts done by a person he sent to fulfil his pledge.

Bribery — Donations and Timing During Campaign

Under section 68(7) and (8) of the Parliamentary Elections Act a candidate or agent may not carry on fundraising or give donations during campaigning; the imminence of an election is relevant, and honouring a year-old pledge by a donation made days before polling may be construed as a subtle form of bribery intended to corruptly influence voters.

Legislation cited (7)

Parliamentary Elections Act 2005 s.61
Parliamentary Elections Act 2005 s.61(1)(c)
Parliamentary Elections Act 2005 s.68
Parliamentary Elections Act 2005 s.68(1)
Parliamentary Elections Act 2005 s.68(7)
Parliamentary Elections Act 2005 s.68(8)
Local Government Act

Cases cited (6)

Besigye v Museveni Yoweri Kaguta and Electoral Commission (Election Petition No. 1 of 2001)
Baxter v Baxter [1950] 2 All ER 458
Matisko Winfred Komuhangi v Babihuga T. Winnie (Election Petition Appeal No. 9 of 2002)
Amama Mbabazi and Electoral Commission v Musinguzi Garuga James (Election Petition Appeal No. 12 of 2002)
Fred Badda and Another v Prof. Muyanda Mutebi (Election Petition Appeal No. 25 of 2006)
Halisbury's 4th Edition Vol. 15, para 698

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