Nabukeera v Kusasira and Another (Election Petition Appeal 67 of 2016)

Court of Appeal · [2017] UGCA 183 · 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

Election result upheld; appeal partly succeeded on evidential grounds but failed overall as bribery and substantial non-compliance were not proved

The full judgment

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Holding

The Court of Appeal partly allowed the appeal, finding the trial Judge erred on several evidential points: affidavits coerced from witnesses to recant their evidence should have been struck out, expunged affidavits should not have been relied upon, and the Judge wrongly speculated that the petitioner fabricated evidence. However, the appeal ultimately failed because the appellant did not prove the recipients of alleged bribes were registered voters (which requires evidence of the National Voters' Register, not a National ID), and did not prove that established non-compliance with electoral laws affected the result in a substantial manner. The election result was upheld.

Facts

The appellant, the 1st respondent and three others contested the election for Woman Member of Parliament for Mukono District held on 18 February 2016. The 1st respondent was declared winner by the Electoral Commission. The appellant petitioned the High Court alleging non-compliance with electoral laws and that the 1st respondent personally or through agents committed bribery and illegal practices. Alleged bribery incidents occurred at Namuganga SSS, Namasumbi-Ntonto, Kasangalabi, Kyanika P/S, Kasiso-Kitale and Kabumba Village, where voters were said to have received money, maize seeds and sodas. The appellant also alleged failure to control ballot papers, false entries on DR Forms, tampering with electoral materials, and violence at Bamuzale Gardens. Several supporting witnesses swore affidavits, recanted them in affidavits favouring the 1st respondent, then deponed that they had been coerced by the 1st respondent's lawyers into recanting. The High Court dismissed the petition, prompting this appeal.

Issues

Whether the trial Judge placed a higher burden and standard of proof on the petitioner than required by law.
Whether affidavits purporting to recant earlier sworn evidence, obtained through coercion of witnesses, could properly be treated as recantation.
Whether the trial Judge erred in relying on affidavits he had expunged and on the 1st respondent's affidavit in rejoinder.
Whether the appellant proved that the recipients of alleged bribes were registered voters.
Whether the 1st respondent committed acts of voter bribery sufficient to invalidate the election.
Whether non-compliance with electoral laws affected the result of the election in a substantial manner.

Orders

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

Key headnotes

Electoral Law — Standard of Proof — Meaning of 'satisfaction of court' under PEA s.61(3)

In a parliamentary election petition the burden lies on the petitioner to prove allegations to the satisfaction of court on a balance of probabilities; the phrase 'proved to the satisfaction of court' connotes absence of reasonable doubt and imposes a standard slightly higher than ordinary civil cases, but it does not require proof beyond reasonable doubt.

Evidence — Affidavits — Recantation Procured by Intimidation of Witnesses

Affidavits obtained by intimidating or coercing a witness into recanting earlier sworn evidence contravene Rule 19 of the Advocates (Professional Conduct) Regulations and are obtained illegally; such affidavits must be struck out and cannot be treated as a valid recantation of the witness's earlier properly sworn evidence.

Civil Procedure — Affidavits — Expunged Evidence Cannot Be Relied Upon

A court must pass a definite and clearly ascertainable decision; where affidavits are inadmissible for failing the requirements of proper commissioning under the Oaths Act and Commissioner for Oaths (Advocates) Act, they cannot form part of the record and a judge errs by purporting to expunge them yet later relying on them.

Electoral Law — Bribery — Proof That Recipient Was a Registered Voter

To prove bribery in an election petition, conclusive proof that the person bribed was a registered voter requires evidence of the person's name appearing in the National Voters' Register; swearing in an affidavit that one is a registered voter and attaching a National Identity Card is insufficient.

Electoral Law — Petitioner's Right to Gather Evidence After Declaration of Results

An aggrieved party in an election petition has every right to gather evidence in support of the petition after the results are declared, and subsequent affidavit evidence should be admitted and considered; a court errs by faulting a petitioner or witnesses merely because evidence was collected at the petition stage rather than during polling.

Electoral Law — Non-compliance — Substantial Effect Requirement under PEA s.61(1)(a)

An election will only be set aside for non-compliance with the Parliamentary Elections Act where the petitioner proves both that non-compliance occurred and that it affected the result in a substantial manner; absent evidence of the effect of cancelled polling station results on the overall outcome, the non-compliance does not invalidate the election.

Electoral Law — Declaration of Results Forms — Conclusiveness Where Agents Sign Without Complaint

Once candidates' agents sign the Declaration of Results Forms without complaint, this is conclusive evidence that the election at that polling station was free and fair.

Legislation cited (13)

Parliamentary Elections Act s.1
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 v 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 The EC (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 No. 14 and 16 of 2011)

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