Wakilii

Lanyero Sarah Ochieng & Another v Lanyero Molly (Election Petition Appeal No. 32 of 2011)

Court of Appeal · [2012] UGCA 28 · 2012 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Appeal from High Court judgment nullifying a parliamentary election in an election petition
Decision
Appeal allowed; trial court's nullification of the 1st appellant's election effectively set aside

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Cited — treatment unverified cited in 1 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Court of Appeal allowed the appeal, holding that bribery under s.68 of the Parliamentary Elections Act requires proof that a gift was given by a candidate or agent to a registered voter with intent to influence voting, and must be established by independent corroborating evidence. The evidence of the respondent's partisan agent and unauthenticated photographs was insufficient. The Court further held that bribery (an illegal practice under s.61(1)(b)) is distinct from non-compliance (s.61(1)(a)) and the two cannot be interchanged. There was no proof the EC mismanaged the election, and the 488-vote margin could not have been overcome. The trial judge wrongly applied the qualitative test and incorrectly evaluated the evidence.

Facts

The 1st appellant and the respondent were among four contestants for the Woman Member of Parliament seat for Lamwo District in the parliamentary election held on 18 February 2011. The 1st appellant was declared winner with 11,546 votes against the respondent's 11,058, a margin of 488 votes. The respondent challenged the result in the High Court on grounds including bribery and the Electoral Commission's failure to conduct a free and fair election. The respondent relied principally on the affidavit of Otim Joseph, her welfare administrator/agent, who took photographs of women allegedly receiving bitenge and salt distributed by the 1st appellant's agent. Several supporting affidavits were filed, some of which were later retracted by deponents in affidavits supporting the answers to the petition. The trial judge found in favour of the respondent and nullified the election, awarding her costs. The 1st appellant and the Electoral Commission appealed.

Issues

  1. Whether the trial judge erred in finding that the 1st appellant committed illegal practices and electoral offences personally or through her agents with her knowledge, consent or approval.
  2. Whether the trial judge erred in finding that the Electoral Commission failed to conduct the election in accordance with the Parliamentary Elections Act and that the non-compliance affected the result in a substantial manner.
  3. Whether the trial judge failed to properly evaluate the evidence on record.
  4. Whether the trial judge engaged in conjecture and speculation in reaching his conclusions.

Orders

  • Appeal allowed.

Key headnotes

Electoral Law — Bribery — Ingredients of the Offence Under Parliamentary Elections Act s.68
To establish the illegal practice of bribery, it must be proved that a gift was given to a voter, that it was given by a candidate or agent, and that it was given to induce the person to vote for the candidate; these ingredients are cumulative, and the recipient must be proved to be a registered voter on the National Voters Register.
Evidence — Election Petitions — Corroboration of Partisan Witnesses
In election matters the evidence of a partisan witness, such as a candidate's agent, requires corroboration from an independent source, and an allegation of bribery cannot be proved on the uncorroborated evidence of such a witness.
Evidence — Documentary Evidence — Authentication of Photographs
Photographs tendered to prove bribery must be authenticated; absent proof of the time, place, and circumstances in which they were taken and the participants' status, they carry no probative weight on the allegation of bribery.
Electoral Law — Grounds for Setting Aside an Election — Distinction Between Bribery and Non-Compliance
Bribery is an illegal practice and a ground for setting aside an election under s.61(1)(b) of the Parliamentary Elections Act, while non-compliance under s.61(1)(a) relates to the Electoral Commission's failure to carry out its electoral duties; the two are distinct and cannot be used interchangeably to support conclusions on each other.
Electoral Law — Substantial Effect on Result — Qualitative and Quantitative Tests
The test for determining the effect of irregularities on an election result depends on the particular facts; the qualitative test cannot apply where the alleged malpractices are not proved, and where the proven vote margin could not have been bridged the result is not affected in a substantial manner.
Civil Procedure — First Appellate Court — Duty to Re-Evaluate Evidence
A first appellate court has a duty to subject the whole of the evidence on record to fresh and exhaustive scrutiny and draw its own conclusions of fact, making due allowance for the fact that it did not see or hear the witnesses testify.

Legislation cited (8)

  • Parliamentary Elections Act s.68
  • Parliamentary Elections Act s.61(1)(a)
  • Parliamentary Elections Act s.61(1)(b)
  • Parliamentary Elections Act s.61(1)(c)
  • Parliamentary Elections Act s.30(5)
  • Parliamentary Elections Act s.1
  • Electoral Commission Act s.12(1)(e)(f)(j)
  • Court of Appeal Rules r.30

Cases cited (6)

  • Kizza Besigye v Kaguta Museveni (Election Petition No. 1 of 2001)
  • Pandya v R [1995] EA 336
  • Masiko Winifred Komuhangi v Babihuga J. Winnie (Election Petition Appeal No. 9 of 2002)
  • Mukasa Anthony Harris v Dr. Michael Lulume Bayiga (Election Petition Appeal No. 21 of 2007)
  • Wadada Rogers v Sasaga Isaiah Jonny & EC (Election Petition No. 31 of 2011)
  • Kizza Besigye v Y.K. Museveni & Electoral Commission (Election Petition No. 1 of 2006)
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.