Kiiza v Kabakumba (Election Petition Appeal No.44 of 2016)

Court of Appeal · [2017] UGCA 9 · 2017 Appeal Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Appeal from High Court decision nullifying the appellant's election as Member of Parliament

Decision

Appeal allowed; trial decision nullifying the election set aside and appellant declared validly elected Member of Parliament for Masindi Municipality

The full judgment

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Holding

The Court of Appeal allowed the appeal, finding the trial Judge failed to properly evaluate the evidence of bribery allegedly committed by the appellant through distribution of salt, money, sports jerseys and construction of wells. The Court held that bribery in an election petition must be proved by cogent direct evidence; the petitioner bears the burden of proof on a balance of probabilities; agency must be proved by showing the agent acted with the candidate's knowledge, consent or approval; and persons allegedly bribed must be identified as registered voters. The trial Judge wrongly shifted the burden of proof to the appellant and applied the standard of proof selectively. The decision nullifying the election was set aside.

Facts

The respondent, Kabakumba Labwoni Masiko, and the appellant, Ernest Kiiza, were among candidates in the Parliamentary Elections for Masindi Municipality Constituency held on 18 February 2016. The Electoral Commission declared the appellant the winner with 14,125 votes against the respondent's 9,076 votes. The respondent petitioned the High Court contending the election was conducted in contravention of the Constitution and the Electoral Commission Act. The trial Judge found that the appellant committed voter bribery through distribution of salt, money, sports jerseys and a yellow ball, and through construction of wells inscribed with the appellant's name, and nullified the election declaring the seat vacant. The appellant appealed, contending that the trial Judge failed to properly evaluate the evidence, wrongly applied the law of agency, expunged his supplementary affidavits, shifted the burden of proof and lowered the standard of proof. The Court of Appeal reviewed the witness affidavits, finding the evidence contradictory, uncorroborated, partisan and largely consisting of single identifying witnesses, and that those allegedly bribed were not shown to be registered voters.

Issues

Whether the trial Judge properly evaluated the evidence in concluding that the appellant committed the electoral offence of bribery.
Whether the respondent proved bribery through distribution of salt, money, sports jerseys, a yellow ball, and construction of wells to the required standard.
Whether the law of agency was correctly applied in attributing the acts of alleged agents to the appellant.
Whether the trial Judge erred in expunging the appellant's supplementary affidavits as illegally filed.
Whether the trial Judge erred in expunging offending parts of the respondent's witness affidavits.
Whether the trial Judge shifted the burden and lowered the standard of proof in determining the alleged illegal practices.

Orders

The decision and orders of the trial Judge are hereby set aside.
The appellant is the validly elected Member of Parliament for Masindi Municipality Constituency.
The respondent shall bear the costs of the Appeal.

Key headnotes

Electoral Law — Bribery — Standard and Quality of Proof

An allegation of bribery in an election petition must be proved by cogent, direct, first-hand evidence; mere suspicion is insufficient, and given the gravity and consequences of the offence the court cannot be satisfied by anything less than the best evidence.

Electoral Law — Bribery — Ingredients of the Offence

To establish the offence of election bribery there must be evidence that a gift was given to a voter, that the gift was given by a candidate or his agent, and that it was given with the intention of inducing the person to vote in a particular way.

Electoral Law — Agency — Liability of Candidate for Acts of Agents

A candidate is not liable for acts of bribery by alleged agents unless it is proved that the candidate authorised, knew of, sanctioned or approved the acts; it is insufficient merely to show that the persons committing the acts were agents.

Electoral Law — Bribery — Identity of Person Bribed

For bribery to affect an election, both the person bribing and the person bribed must be known, and there must be evidence that the persons allegedly bribed were registered voters.

Electoral Law — Burden and Standard of Proof

The burden of proof in an election petition lies on the petitioner and the standard of proof is on a balance of probabilities; the burden does not shift to the respondent even where a defence of alibi is raised, and the standard must be applied uniformly to the evidence of both parties.

Evidence — Affidavits — Severance of Defective Parts

Where an affidavit contains defective or untruthful parts but also parts that conform to legal requirements, the defective parts should be severed and rejected while the valid parts are admitted, in the interest of administering substantive justice without undue regard to technicalities.

Civil Procedure — Election Petitions — Filing of Supplementary Affidavits

In election petitions no pleading subsequent to the reply may be filed without leave of court, and supplementary affidavits filed after the rejoinder without leave are properly struck out, though new evidence introduced in the opposing party's rejoinder should equally be severed in the interest of justice.

Legislation cited (19)

Parliamentary Elections Act s.2(1)
Parliamentary Elections Act s.61(1)(c)
Parliamentary Elections Act s.61(2)
Parliamentary Elections Act s.61(3)
Parliamentary Elections Act s.63
Parliamentary Elections Act s.63(6)(b)(i)
Parliamentary Elections Act s.68
Parliamentary Elections Act s.68(1)
Parliamentary Elections Act s.46
Constitution of the Republic of Uganda Article 126(2)(e)
Electoral Commission Act 2005
Evidence Act s.1
Evidence Act s.111
Evidence Act s.112
Evidence Act s.113
Parliamentary Elections (Interim Provisions) (Election Petitions) Rules Rule 15
Parliamentary Elections (Interim Provisions) (Election Petitions) Rules Rule 17
Civil Procedure Rules O.9
Civil Procedure Rules Rule 18

Cases cited (17)

Kiiza Besigye v Yoweri Museveni (Election Petition No. 1 of 2006)
Besigye Kizza v Museveni Yoweri Kaguta and Another (Election Petition No. 1 of 2001)
Kwijuka Geofrey v Electoral Commission and Another (Election Petition No. 7 of 2011)
Achieng Sarah Opendi v Ochwo Nyakecho Keziah (Election Petition Appeal No. 39 of 2011)
Kamba Moses v Namuyangu Jennifer (Election Petition Appeal No. 27 of 2011)
Bakaluba Mukasa v Nambooze Betty Election Petition Appeal No.4
Odo Tayebwa v Basajjabalaba (Election Petition Appeal No. 13)
James Serunjogi Mukiibi v Lule Mawiya (Election Petition Appeal No. 15 of 2006)
Kirunda Kivejinja v Abdu Katuntu (Election Petition Appeal No. 24 of 2006)
Fred Badda and Another v Muyanda Mutebi (Election Petition Appeal No. 25 of 2006)
Bitaitana v Kananura (Civil Appeal No. 47 of 1976)
Masiko Winifred Komuhangi v Babihuga J. Winnie (Election Petition Appeal No. 9 of 2002)
Kikulukunyu Faisal v Muwanga Kivumbi Mohammed (Election Petition Appeal No. 44 of 2011)
Paul Mwiru v Igeme Nabeta and Others (Election Petition Appeal No. 6 of 2011)
(Misisa)Hazyis v Dr Lulume Bayiga (supra)
Motor Mart Application No. 6/99 (SCU) (unreported)
Reamation Ltd v Uganda Co-operative Creameries Ltd (Civil Appeal No. 77 of 2000)

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