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Nakato v Babirye (Election Petition Appeal No. 0089 of 2016)

Court of Appeal · [2017] UGCA 53 · 2017 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Election petition appeal from the High Court dismissal of a parliamentary election petition
Decision
Appeal dismissed; election of the 1st respondent as Woman Member of Parliament for Buyende District upheld

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Holding

The Court of Appeal dismissed the appeal, holding that the trial Judge applied the correct standard of proof in parliamentary election petitions — a balance of probabilities to the satisfaction of court that is slightly higher than ordinary civil cases but not beyond reasonable doubt. Requiring independent or corroborating evidence was a proper exercise of evaluating credibility, not an elevation of the standard. The allegations of bribery and donations were not proved: no recipients were shown to be registered voters, agency relationships were unproved, and forensic analysis showed the alleged donation recordings dated from 2011 and 2014, not the 2016 campaign period. Allegations of non-compliance did not substantially affect the result. Costs were properly awarded.

Facts

Nakato Mary Annet, Babirye Veronica Kadogo and another contested the election for Woman Member of Parliament for Buyende District held on 9 March 2016. Babirye was declared winner by the Electoral Commission and gazetted. Nakato petitioned the High Court alleging illegalities and malpractices, including bribery and donations by the 1st respondent and her agents at various locations (Makanga, Iyingo, Iringa, Buyumba, Irundu and other polling stations), false statements, and electoral non-compliance such as cancellation of results from seven polling stations and inclusion of unsigned declaration of results forms. The trial Judge dismissed the petition with costs, finding the elections complied with the law and that no non-compliance substantially affected the result. Forensic analysis of audio recordings of alleged donations showed they were made on 1 January 2011 and 1 January 2014, not during the 2016 campaign period. Nakato appealed.

Issues

  1. Whether the trial Judge placed a higher burden and standard of proof on the petitioner than required in election petitions.
  2. Whether the trial Judge erred in requiring the appellant's evidence to be corroborated by independent witnesses.
  3. Whether the trial Judge failed to apply the law relating to donations as an illegal practice.
  4. Whether acts of bribery or donation by the 1st respondent or her agents were proved to the satisfaction of court.
  5. Whether the election was conducted in compliance with the parliamentary elections laws and whether any non-compliance affected the result substantially.
  6. Whether the trial Judge erred in awarding costs of the petition to the respondents.

Orders

  • Ground 3 struck out for failing to comply with Rule 86(1) of the Rules of the Court of Appeal.
  • Grounds 1, 2, 4, 5, 6 and 7 dismissed.
  • Appeal dismissed with costs to the respondents in this appeal and in the High Court.

Key headnotes

Election Petitions — Standard of Proof — Parliamentary Elections
In a parliamentary election petition the grounds must be proved on a balance of probabilities to the satisfaction of court; this standard is slightly higher than that in ordinary civil cases but does not require proof beyond reasonable doubt.
Corroboration — Election Petitions — Evaluation of Credibility
There is no rule requiring corroboration of evidence in election petitions, but where allegations are met by rebuttal, a court may require independent evidence to confirm the allegations as part of assessing credibility, and this does not amount to raising the standard of proof.
Bribery and Donations — Proof of Registered Voter and Intent
To prove bribery or an illegal donation, the petitioner must adduce cogent evidence that money or gifts were given to persons who were registered voters with intent to influence their vote; failure to prove that recipients were registered voters defeats the allegation.
Agency — Liability of Candidate for Acts of Agents
To attribute an act of bribery by an agent to a candidate, the petitioner must adduce credible evidence proving the agency relationship and that the acts were done with the candidate's knowledge, consent or approval; mere allegation is insufficient.
Memorandum of Appeal — Mandatory Requirements of Rule 86(1)
A ground of appeal that is couched in general terms and fails to specify the points alleged to have been wrongly decided and the nature of the order sought offends the mandatory requirements of Rule 86(1) of the Rules of the Court of Appeal and will be struck out.
Non-Compliance — Substantial Effect on Result
An election will only be set aside for non-compliance with electoral law where the non-compliance is proved to have affected the result of the election in a substantial manner.

Legislation cited (11)

  • Parliamentary Elections Act s.61(1)
  • Parliamentary Elections Act s.61(3)
  • Parliamentary Elections Act s.68(1)
  • Parliamentary Elections Act s.68(4)
  • Parliamentary Elections Act s.68(7)
  • Parliamentary Elections Act s.68(8)
  • Parliamentary Elections Act s.73(1)
  • Parliamentary Elections Act s.18(2)
  • Parliamentary Elections Act s.45
  • Constitution of Uganda Article 59
  • Rules of the Court of Appeal r.86(1)

Cases cited (10)

  • Pandya v R [1957] EA 336
  • Besigye v Museveni Yoweri Kaguta and Electoral Commission (Presidential Election Petition No. 1 of 2001)
  • Nsubuga v Kavuma (1978) HCB 307
  • Toolit Simon Akecha v Oulanya Jacob L'okori and Another (Election Petition Appeal No. 19 of 2011)
  • Kamba Saleh Moses v Namuyangu Jeniffer (Election Petition Appeal No. 27 of 2011)
  • Blyth v Blyth [1966] AC 643
  • Achieng Sarah Opendi and Electoral Commission v Ochuro Nyakecho Keziah (Election Petition Appeal No. 39 of 2011)
  • Mukasa Harris v Lulume Bayiga (Election Petition Appeal No. 18 of 2007)
  • Joy Kabatsi Kafura v Anifa Kawoya Bangirana (Parliamentary Elections Appeal No. 25 of 2007)
  • Mbogo and Another v Shah [1968] EA 93
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.