Kamba Saleh Moses v Namuyangu Jennifer (Election Petition Appeal No. 0027 of 2011)

Court of Appeal · [2012] UGCA 8 · 2012 Appeal Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Appeal from High Court decision nullifying a parliamentary election on grounds of bribery

Decision

Appeal allowed; trial court orders nullifying the appellant's election set aside, restoring the appellant as Member of Parliament for Kibuku County Constituency

The full judgment

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Holding

The Court of Appeal allowed the appeal, holding that the trial judge denied the appellant a fair hearing under Article 28(1) of the Constitution by single-handedly deciding the court fees issue without hearing the parties, rendering that finding a nullity. Re-evaluating the matter, the Court found the late payment of court fees a mere irregularity curable under Article 126(2)(e), not an illegality. On bribery, the Court held that to prove the offence under section 68 of the Parliamentary Elections Act, the recipient must be proved a registered voter and the giver's motive established. The sole witness was an uncorroborated, partisan accomplice; no recipient was proved to be a voter, so bribery was not established.

Facts

The appellant and the respondent contested the seat of directly elected Member of Parliament for Kibuku County Constituency in the parliamentary elections held on 18 February 2011. The Electoral Commission declared the appellant validly elected, having polled 22,855 votes against the respondent's 21,893. Aggrieved, the respondent filed an election petition in the High Court at Mbale. The petition was allowed on the sole ground that the appellant had bribed a village group known as "Butakitibwamoiza" by giving shs 300,000 to buy hoes. The principal witness, Jane Frances Kataike, was a self-confessed supporter of the respondent who testified she received the money and then voted for the appellant. No voters' cards or voters' register were tendered to prove that the group members were registered voters. The appellant contended the money was given at the group's request to buy hoes, which were actually bought.

Issues

Whether the trial judge properly handled the question of payment of court fees for the election petition where the parties were not heard before the issue was disposed of.
Whether late payment of court fees rendered the petition time-barred.
Whether the trial judge properly evaluated the evidence before concluding the appellant committed the electoral offence of bribery.

Orders

Appeal allowed.
Orders of the trial court nullifying the appellant's election as Member of Parliament for Kibuku County Constituency set aside.
Costs awarded to the appellant here and in the court below.

Key headnotes

Right to Fair Hearing — Article 28(1) — Non-derogable Nature of Natural Justice

The right to a fair hearing under Article 28(1) of the Constitution is non-derogable and sacrosanct; proceedings conducted in contravention of it are a nullity, and parties or their counsel cannot validly agree to forego it.

Election Petitions — Payment of Court Fees — Irregularity versus Illegality

Where an election petition is presented to court on the last day and accepted without protest, late payment of the assessed court fees is a mere irregularity, not an illegality, and may be cured under Article 126(2)(e) of the Constitution so as not to render the petition time-barred.

Bribery — Ingredients of the Offence — Recipient Must Be a Registered Voter

To establish the electoral offence of bribery under section 68 of the Parliamentary Elections Act it must be proved to the satisfaction of court that the recipient of the gift was a registered voter at the material time and that the giver had the motive to influence voting; a mere assertion of being a voter, without voters' cards or register, is insufficient.

Corroboration — Accomplice and Partisan Witnesses in Election Petitions

The uncorroborated evidence of a partisan or accomplice witness in an election petition is suspect and requires independent corroboration from a non-partisan witness, since witnesses contesting political power may exaggerate to secure judicial victory for their preferred candidate.

Standard of Proof — Bribery in Election Petitions

The standard of proof for bribery in an election petition is higher than the ordinary balance of probabilities but does not require proof beyond reasonable doubt; proof to the satisfaction of court is required.

Legislation cited (10)

Parliamentary Elections Act s.60(3)
Parliamentary Elections Act s.68(1)
Parliamentary Elections Act s.68(2)
Parliamentary Elections Act s.1
Parliamentary Elections (Election Petitions) Rules r.5
Judicature Act s.11
Judicature (Court of Appeal Rules) Directions r.30(1)(a)
Judicature (Court Fees) Rules r.6
Constitution of Uganda art.28(1)
Constitution of Uganda art.126(2)(e)

Cases cited (9)

Ndaula Ronald v Haji Nadduli Abdul (Election Petition Appeal No. 20 of 2006)
Kiiza Besigye v Yoweri K. Museveni (Election Petition Appeal No. 1 of 2001)
Amama Mbabazi v Musinguzi James (Election Petition Appeal No. 12 of 2002)
Mukasa Anthony v Lulume (Election Petition Appeal No. 18 of 2007)
Bakaluba Peter Mukasa v Nambooze Betty Bakireke (Election Petition Appeal No. 4 of 2009)
De Souza v Tanga Town Council (Civil Appeal No. 89 of 1960) [1961] EA 377
Pandya v R [1957] EA 336
Electoral Commission v Namboze Betty Bakireke (Election Petition Application No. 20 of 2007)
Stephen Kyeyune Supreme Court Civil Appeal No. 12 of 2001

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