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Suubi Kinyamatama Juliet v Sentongo Robinah Nakasirye and Another (Election Petition Appeal No. 92 of 2016)

Court of Appeal · [2018] UGCA 258 · 2018 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Appeal and cross-appeal from a High Court decision nullifying a parliamentary election
Decision
Appeal allowed; High Court judgment nullifying the election set aside and the appellant's election upheld

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Holding

The Court of Appeal allowed the appeal and cross-appeal and set aside the High Court's nullification of the election. The petition's supporting affidavit was commissioned by an advocate without a valid practicing certificate; this was a major defect not curable under Article 126(2)(e), so the petition was fatally defective and unsupported by evidence. The Court further held that an uncross-examined witness's evidence is not automatically accepted and, being partisan and uncorroborated, could not ground annulment. Allegations of ballot stuffing, multiple voting and intimidation were speculative, partisan and uncorroborated, and the petitioner failed to prove that any non-compliance affected the result substantially.

Facts

The appellant, the respondent and two others contested the election for Woman Member of Parliament for Rakai District held on 18 February 2016. The Electoral Commission declared the appellant the validly elected member. The respondent petitioned the High Court at Masaka challenging the result, alleging that the Electoral Commission failed to organize a free and fair election and that there was non-compliance with electoral laws affecting the result substantially, including ballot stuffing, multiple voting, and violence and intimidation of voters. The petition's supporting affidavit was commissioned by an advocate, Namanya Moses, who had not renewed his practicing certificate for 2016. The High Court found the affidavit defective but invoked Article 126(2)(e) to cure it, and ruled in favour of the respondent, nullifying the election. The appellant and the Electoral Commission appealed.

Issues

  1. Whether the petition was competently filed where the affidavit in support was commissioned by an advocate who had not renewed his practicing certificate, and whether such defect was curable under Article 126(2)(e) of the Constitution.
  2. Whether the trial judge erred in treating the uncross-examined evidence of a witness as unchallenged and reliable.
  3. Whether there was sufficient and corroborated evidence to prove ballot stuffing, multiple voting, violence and intimidation of voters.
  4. Whether any non-compliance with electoral laws affected the result of the election in a substantial manner.

Orders

  • Appeal and cross-appeal allowed.
  • Judgment and orders of the High Court nullifying the election of the appellant set aside.
  • Each party to bear their own costs.

Key headnotes

Election Petitions — Supporting Affidavit — Commissioning by Advocate Without Practicing Certificate
An affidavit in support of an election petition commissioned by an advocate who has no valid practicing certificate is fatally defective; such a defect goes to a major requirement of the law and is not a mere technicality curable under Article 126(2)(e) of the Constitution.
Pleadings — Defective Affidavit — Time to Remedy Under Advocates (Amendment) Act s.14A
Where a litigant's pleadings are affected by defective commissioning by an advocate lacking a practicing certificate, section 14A of the Advocates (Amendment) Act 2002 entitles the innocent litigant to time to make good the defect; the matter should not proceed on defective pleadings, and failure to cure the defect leaves the petition unsupported by evidence.
Witnesses — Failure to Cross-examine — Effect on Weight of Evidence
Failure to cross-examine a witness does not amount to an admission or acceptance of that witness's evidence; each case turns on its own facts, and uncross-examined evidence that is partisan and contradicted by other evidence may be rejected.
Election Petitions — Partisan Witnesses — Need for Corroboration
Evidence of partisan witnesses in election petitions, who tend to exaggerate in favour of their candidates, must be tested against independent and neutral sources by way of corroboration; uncorroborated and contradictory partisan evidence amounts to mere allegation that cannot ground annulment of an election.
Grounds for Setting Aside Election — Non-compliance — Substantiality Test
Under section 61 of the Parliamentary Elections Act a petitioner must prove not only non-compliance with electoral law but also that such non-compliance affected the result of the election in a substantial manner; mere computational errors or speculative allegations do not invalidate an election.
Intimidation of Voters — Attribution to Candidate
Allegations of intimidation of voters cannot be visited on a candidate where the acts are not directly linked to the candidate, her agents, or property used by them, and where there is insufficient credible evidence to prove the intimidation as a fact.

Legislation cited (12)

  • Parliamentary Elections Act s.42(1)
  • Parliamentary Elections Act s.60
  • Parliamentary Elections Act s.61
  • Parliamentary Elections Act s.61(a)
  • Parliamentary Elections Act s.76(f)
  • Parliamentary Elections (Interim Provisions) Rules r.3(c)
  • Parliamentary Elections (Interim Provisions) Rules r.4(8)
  • Advocates (Amendment) Act 2002 s.14A
  • Constitution of Uganda Article 126(2)(e)
  • Judicature (Court of Appeal Rules) Directions r.30
  • Oaths Act
  • Commissioner for Oaths Act

Cases cited (15)

  • Returning Officer Iganga v Haji Muluya Mustaphar (Civil Appeal No. 13 of 1997)
  • Musoke Emmanuel v Kyabaggu Richard (Election Petition Appeal No. 67 of 2016)
  • Uganda Breweries Ltd v Uganda Railways Corporation (Civil Appeal No. 6 of 2001)
  • Achieng Sarah v Ochwo Nyakecho Kaziah (Election Petition Appeal No. 39 of 2012)
  • Toolit Simon Akecha v Oulanya Jacob L'Okori (Election Petition Appeal No. 19 of 2011)
  • Ngoma Ngime v Electoral Commission (Election Petition Appeal No. 11 of 2002)
  • Rita Ramty v Ali Sekanjako (Misc. Application No. 333 of 2014)
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Pandya v R [1957] EA 336
  • Bogere Moses v Uganda (Criminal Appeal No. 1 of 1997)
  • Mugema Peter v Mudiabole Abedi Nasser (Election Petition Appeal No. 30 of 2011)
  • Dr Kizza Besigye v Museveni Yoweri Kaguta (Election Petition No. 1 of 2001)
  • Matsiko Winfred Kyomuhangi v Babihuga (Election Petition No. 9 of 2002)
  • Freda Nanziri Kase Mubanda v Mary Babirye (Election Petition Appeal No. 38 of 2016)
  • Amama Mbabazi v Yoweri Kaguta Museveni (Election Petition No. 1 of 2016)
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.