Wakilii

Nabukeera Hanifa v Kusasira Peace K. Mubiru and Electoral Commission (Election Petition Appeal 72 of 2016)

Court of Appeal · [2017] UGCA 137 · 2017 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Election petition appeal from the High Court dismissal of a parliamentary election petition
Decision
Appeal partially succeeded on certain grounds but the dismissal of the petition was upheld; the election result of the 1st respondent was confirmed.

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Holding

The Court of Appeal partly allowed the appeal, finding the trial Judge correctly applied the balance of probabilities standard and that affidavits procured by intimidation could not validly recant earlier sworn evidence. However, it upheld the dismissal of the petition because all bribery allegations failed: a National Identity Card is not conclusive proof of registered-voter status, which can only be established by the National Voters' Register, and corroborated independent evidence was lacking. The Court further held there was substantial compliance with electoral laws, the cancellation of results at five polling stations not being shown to affect the result substantially. The election result was upheld.

Facts

The appellant, the 1st respondent and three others contested the Woman Member of Parliament seat for Mukono District in the 18 February 2016 elections. The 1st respondent was declared winner by the Electoral Commission. The appellant petitioned the High Court at Jinja alleging non-compliance with electoral laws and that the 1st respondent personally or through agents committed bribery and illegal practices. Allegations of voter bribery were made at several locations including Namuganga SSS, Namasumbi-Ntonto, Kasangalabi, Kyanika P/S, Kasiso-Kitale and Kabumba Village, where money, maize seeds and a soda were allegedly given to induce votes. The appellant also alleged failure to control ballot papers, false entries on Declaration of Results Forms, tampering with electoral materials and violence at Bamuzale Gardens. The trial Judge dismissed the petition. On appeal, the court found certain witness recantation affidavits had been procured by the 1st respondent's lawyers through intimidation, but that the bribery allegations failed for want of proof that recipients were registered voters and lack of independent corroboration.

Issues

  1. Whether the trial Judge placed a higher burden of proof on the petitioner than required by law in an election petition.
  2. Whether affidavits procured through intimidation can validly recant a witness's earlier sworn evidence.
  3. Whether the trial Judge erred in relying on affidavit evidence he had expunged or rejected.
  4. Whether attachment of a National Identity Card sufficiently proves that a person is a registered voter for purposes of proving bribery.
  5. Whether the alleged acts of voter bribery by the 1st respondent were proved to the satisfaction of court.
  6. Whether the elections were conducted in substantial compliance with electoral laws.

Orders

  • The elections for the Woman Member of Parliament for Mukono District and subsequent declaration are upheld.
  • The respondent is entitled to half of the costs of this Appeal and full costs in the High Court.

Key headnotes

Electoral Law — Election Petitions — Standard of Proof — Balance of Probabilities to Satisfaction of Court
The standard of proof in a parliamentary election petition is on the balance of probabilities, but slightly higher than in an ordinary civil case; the requirement that grounds be proved 'to the satisfaction of court' connotes absence of reasonable doubt but does not equate to proof beyond reasonable doubt.
Evidence — Affidavits — Recantation Procured by Intimidation — Inadmissibility
An affidavit obtained from a witness through intimidation or coercion by the opposite party's advocates cannot validly recant the witness's earlier properly sworn evidence, and such illegally procured affidavits must be struck out; the proper course to challenge adverse affidavit evidence is by cross-examination.
Electoral Law — Bribery — Proof of Registered Voter Status — National Identity Card Insufficient
To prove voter bribery, it must be established that the person allegedly bribed was a registered voter; conclusive proof of registered-voter status is the appearance of the person's name in the National Voters' Register, and a National Identity Card is not sufficient proof.
Electoral Law — Bribery — Requirement of Cogent and Independent Corroborating Evidence
Bribery is a grave illegal practice requiring cogent and credible evidence; where there are competing accusations and counter-accusations, the court requires independent corroborating evidence to establish the allegation, and mere uncorroborated assertion is insufficient.
Electoral Law — Non-Compliance — Substantial Effect on Result Must Be Proved
Under section 61(1)(a) of the Parliamentary Elections Act, even where non-compliance with electoral laws is established, an election will only be set aside where the petitioner proves to the satisfaction of court that the non-compliance affected the result in a substantial manner.
Electoral Law — Declaration of Results Forms — Conclusive Effect of Agent's Signature
Once a candidate's polling agent signs the Declaration of Results Form without complaint, it is conclusive evidence that the election at that station was free and fair.
Electoral Law — Election Petitions — Right of Petitioner to Gather Evidence After Declaration
An aggrieved petitioner has every right to gather evidence in support of an election petition after the result is declared, and subsequent affidavit evidence is admissible and should be considered as a whole; a petitioner should not be faulted merely for collecting evidence post-declaration.

Legislation cited (14)

  • Parliamentary Elections Act s.1
  • Parliamentary Elections Act s.11
  • Parliamentary Elections Act s.20(5)
  • Parliamentary Elections Act s.61(1)
  • Parliamentary Elections Act s.61(1)(a)
  • Parliamentary Elections Act s.61(3)
  • Parliamentary Elections Act s.61(c)
  • Parliamentary Elections Act s.68(1)
  • Electoral Commission Act s.18
  • Commissioner for Oaths (Advocates) Act Cap. 5 s.5
  • Oaths Act Cap 19 s.6
  • Advocates (Professional Conduct) Regulations SI 267/2 r.19
  • Rules of the Court of Appeal r.30(1)(a)
  • Election Petition Rules r.15(3)

Cases cited (18)

  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Bank of Uganda v Banco Arabe Espanol (Civil Appeal No. 8 of 1998)
  • Mukasa Anthony Harris v Dr. Bayiga Michael Philip Lulume (Election Petition Appeal No. 18 of 2007)
  • Masiko Winifred Komuhangi v Babihuga J. Winnie (Election Petition Appeal No. 9 of 2002)
  • Paul Mwiru v Igeme Nathan Nabeta and 2 Others (Election Petition Appeal No. 6 of 2011)
  • Col. (Rtd) Besigye Kizza v Museveni Yoweri Kaguta (Presidential Election Petition No. 1 of 2001)
  • Blyth Vs Blyth [1966] AC 643
  • Kamba Saleh Moses v Namuyangu Jeniffer (Election Petition Appeal No. 27 of 2011)
  • Kintu Alex Brandon v Electoral Commission and Walyomu Moses (Election Petition Appeal No. 64 of 2016)
  • Ourum Okiror Sam v Electoral Commission and Ochwa David (Election Petition No. 8 of 2011)
  • Mutembuli Yusuf v Nagwomu and Electoral Commission (Election Petition No. 13 of 2016)
  • Chebrot Stephen Chemoiko v Soyekwo Kenneth and Electoral Commission (Election Petition Appeal No. 56 of 2016)
  • Amama Mbabazi v Yoweri Museveni (Presidential Election Petition No. 1 of 2016)
  • Kabuusa Moses Wagaba v Lwanga Timothy (Election Petition Appeal No. 53 of 2011)
  • Otada Sam Amooti Owor v Tabani Idi Amin and Electoral Commission (Election Petition Appeal No. 93 of 2016)
  • Bantalibu Issa Taligola v Wasugirya Bob Fred (Election Petition Appeal No. 11 of 2006)
  • Sekigozi Stephen v Sematimba Peter and Electoral Commission (Election Petition No. 10 of 2016)
  • Mbagadhi Frederick Nkayi and Another v Dr. Nabwiso Frank Wilberforce (Election Petition Appeals Nos. 14 and 16 of 2011)
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