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Waligo v Ssekindi Aisha and Another (Election Petition Appeal 29 of 2016)

Court of Appeal · [2017] UGCA 140 · 2017 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
First appeal from High Court dismissal of a parliamentary election petition
Decision
Appeal dismissed; election of the 1st respondent as Woman Member of Parliament for Kalungu District upheld

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Holding

The Court of Appeal held that the trial Judge erred by applying the higher 'beyond reasonable doubt' standard from the presidential election case Kizza Besigye to a parliamentary petition, where section 61(3) of the Parliamentary Elections Act prescribes proof on a balance of probabilities. It also held that once the petitioner raised doubt about the genuineness of the respondent's academic documents, the evidential burden shifted to the respondent. Re-appraising the evidence on the correct standard, however, the Court found the respondent possessed a valid Certificate of Equivalence properly issued in consultation with UNEB, that her qualifications were authentic, and that bribery was not proven. The appeal was dismissed.

Facts

On 18 February 2016 parliamentary elections were held for the Kalungu District Woman Member of Parliament seat. The Electoral Commission declared the 1st respondent, Ssekindi Aisha, the winner with 19,884 votes against the appellant's 16,819 votes, and gazetted her on 3 March 2016. The appellant petitioned the High Court at Masaka to annul the election, alleging the 1st respondent lacked the requisite academic qualifications, held an invalid Certificate of Equivalence from the National Council for Higher Education, uttered false academic documents, and committed bribery. There were discrepancies in the names on the 1st respondent's academic documents (Sekindi Isa, Sekindi Ayisa, Sekindi Aisha), which she explained through a Statutory Declaration and evidence. NCHE issued her a fresh Certificate of Equivalence in 2015 after correspondence with UNEB. The High Court dismissed the petition, finding the qualifications valid and bribery unproven. The appellant appealed.

Issues

  1. Whether the trial Judge erred by placing a higher burden and standard of proof on the petitioner than required by law.
  2. Whether the 1st respondent possessed the minimum academic qualifications for nomination and election as a Member of Parliament.
  3. Whether the National Council for Higher Education duly and lawfully equated the academic qualifications of the 1st respondent.
  4. Whether the 1st respondent was guilty of bribery.
  5. Whether the trial Judge failed to properly evaluate the evidence and thereby arrived at a wrong conclusion.

Orders

  • Grounds 1, 2, 3 and 5 of the appeal dismissed; decision and orders of the High Court upheld on those grounds.
  • Ground 4 of the appeal allowed.
  • Appeal dismissed as the appellant failed to prove her case even on a balance of probabilities.
  • 1st and 2nd respondents awarded three quarters of the costs of the appeal but full costs of the court below.

Key headnotes

Election Petitions — Standard of Proof — Parliamentary versus Presidential Elections
The standard of proof in a parliamentary election petition is proof on a balance of probabilities as prescribed by section 61(3) of the Parliamentary Elections Act, and it is wrong to apply the higher standard set in the presidential petition Kizza Besigye v Museveni, which is not applicable to petitions under that Act.
Burden of Proof — Shifting of Evidential Burden — Authenticity of Academic Qualifications
Although the petitioner bears the overall burden of proof, once evidence raising doubt about the genuineness of a candidate's academic qualifications is adduced, the evidential burden shifts to the candidate to show the qualifications are authentic and belong to her, since such facts are especially within her knowledge under section 106 of the Evidence Act.
Qualifications for Parliament — Certificate of Equivalence — Consultation with UNEB
A Certificate of Equivalence issued by the National Council for Higher Education is validly issued where UNEB has been given an actual opportunity to express its views before issuance; UNEB's agreement with NCHE's position constitutes adequate consultation under section 4(6) of the Parliamentary Elections Act, and NCHE may hold its own opinion.
Pleadings — Matters Not Pleaded — Prejudice to Fair Hearing
A party cannot rely on a specific allegation, such as non-payment of equating fees, that was not pleaded and not put to the opposing witness, as doing so takes the opponent by surprise and prejudices the right to a fair hearing.
Affidavits — Administration of Oath — Compliance with Oaths Act
Affidavits are rendered fatally defective and a nullity where there is no credible evidence that the oath was properly administered in accordance with section 6 of the Oaths Act, particularly where the person said to have administered the oath differs from the commissioner named on the affidavit.
Appellate Re-evaluation — Witness Credibility and Demeanour
While a first appellate court must re-appraise the evidence, it must be guided by the trial Judge's impressions on the credibility and demeanour of witnesses observed in the witness box, and should not differ on findings turning on demeanour absent exceptional circumstances.
Electoral Offences — Bribery — Proof Required
To set aside an election for bribery under section 68(1) of the Parliamentary Elections Act, the petitioner must adduce cogent, non-contradictory evidence that the candidate gave money, a gift or consideration with intent to influence a voter; contradictory and inconsistent witness evidence is insufficient.

Legislation cited (11)

  • Parliamentary Elections Act 2005 s.4(5)
  • Parliamentary Elements Act 2005 s.4(6)
  • Parliamentary Elections Act 2005 s.4(9)
  • Parliamentary Elections Act 2005 s.61(1)(c)
  • Parliamentary Elections Act 2005 s.61(3)
  • Parliamentary Elections Act 2005 s.68(1)
  • Constitution of Uganda Article 80(1)(c)
  • Evidence Act s.101
  • Evidence Act s.106
  • Oaths Act s.6
  • Education (Pre-primary and Post Primary) Act 13 of 2008

Cases cited (13)

  • Toolit Simon Akecha v Oulanyah Jacob L'Okori (Election Petition Appeal No. 19 of 2011)
  • Kizza Besigye v Museveni (Presidential Election Petition No. 1 of 2001)
  • Paul Mwiru v Igeme Nathan Nabeta (Election Petition Appeal No. 2 of 2011)
  • Balingira Abdul Nakendo v Patrick Mwondha (Election Petition Appeal No. 18 of 2007)
  • Electoral Commission and 3 Others v Chelimo Nelson Kaprokuto (Election Petition Appeal No. 33 of 2011)
  • Butime Tom v Muhumuza David and Another (Election Petition Appeal No. 11 of 2011)
  • Interfreight Forwarders Ltd v East African Development Bank (Civil Appeal No. 33 of 2011)
  • Rollo & another vs Minister of Town and Country Planning [1947] 2 ALL 488
  • Kirunda Kivejinja v Katuntu Abdul (Election Petition Appeal No. 24 of 2006)
  • Fr. Narsensio Begumisa v Eric Tibebaga (Civil Appeal No. 17 of 2002)
  • Masiko Winfred Komuhangi v Babihuga Winnie (Election Petition Appeal No. 9 of 2002)
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Pandya vs R [1957] EA 33
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.