Betty Muzanira Bamukwatsa v Masiko Winnifred Komuhangi and Others (Election Petition Appeal No.065 of 2016)

Court of Appeal · [2018] UGCA 269 · 2018 Appeal Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

First appeal from High Court dismissal of an election petition challenging a parliamentary election result

Decision

Election nullified; bye-election ordered

The full judgment

Read the complete, verbatim text of this judgment.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The Court of Appeal allowed the appeal and nullified the election of the 1st Respondent as Woman MP for Rukungiri. It held that a Returning Officer's declared results, transmitted in the statutory Return Form, are final and conclusive and cannot be unilaterally altered by the Electoral Commission; only a court may do so. The Returning Officer's failure to tally 5,413 votes disenfranchised voters and, together with unreliable Declaration of Results Forms from several polling stations, substantially affected the result given the winning margin of 4,028. The Court further found, after re-evaluating the evidence, that the 1st Respondent committed the illegal practice of giving donations during campaigning at two churches.

Facts

In the general election of 18 February 2016, the Appellant and the 1st Respondent contested the seat of Woman Member of Parliament for Rukungiri District. The 1st Respondent was declared winner and gazetted. The Returning Officer declared the 1st Respondent winner with 58,994 votes against the Appellant's 54,966 votes (a margin of 4,028) in the statutory Return Form, but conceded he had not tallied 5,413 valid votes cast at the time. The gazetted results subsequently differed, showing the 1st Respondent with 61,561 and the Appellant with 57,812, after the Electoral Commission added omitted results. Four polling stations with 2,250 registered voters were never tallied. Declaration of Results Forms from several polling stations were unsigned, altered, incompletely filled, or recorded votes cast exceeding registered voters. The Appellant also alleged the 1st Respondent gave donations at six churches during the campaign period. The Appellant's petition was dismissed by the High Court, prompting this appeal.

Issues

Whether the trial judge erred in holding that the premature declaration of a winner by the Returning Officer was a minor inconsistency.
Whether the trial judge erred in failing to determine complaints concerning 10 polling stations with inconsistent and doubtful entries on Declaration of Results Forms.
Whether the trial judge erred in disregarding the omission to tally results in respect of 4 polling stations with 2,250 registered voters.
Whether the trial judge erred in disregarding the points of law canvassed by the Appellant.
Whether the trial judge erred in concluding that the 1st Respondent had not committed the illegal practice of giving donations during the campaign period.
Whether the proven non-compliance and illegal practices substantially affected the result of the election.

Orders

Appeal allowed.
The election of the 1st Respondent as Woman Member of Parliament for Rukungiri District is nullified and the 3rd Respondent is directed to hold a bye-election.
The Appellant is entitled to costs from the Respondents in this appeal and in the court below, to be met equally by both respondents.

Key headnotes

Electoral Law — Declaration of Results — Finality of Returning Officer's Return Form

Once a Returning Officer has declared the elected candidate by completing the statutory Return Form under section 58(1) of the Parliamentary Elections Act, those results are final and conclusive; the Electoral Commission has no power to alter them, and only a court of competent jurisdiction may interfere with them.

Electoral Law — Tallying of Results — Reliance on Provisional Results

A Returning Officer must declare a winner based on final results after adding up all Declaration of Results Forms under sections 53 and 58(1); reliance on provisional results to declare a winner, where results are not reported missing or cancelled, is erroneous and unlawful.

Electoral Law — Disenfranchisement — Failure to Tally Votes

Failure to tally a substantial number of valid votes cast amounts to disenfranchisement of voters; where the number of untallied votes exceeds the declared winning margin, such disenfranchisement substantially affects the outcome of the election.

Electoral Law — Declaration of Results Forms — Validity of Unsigned, Altered or Incomplete Forms

A Declaration of Results Form must be signed by the presiding officer and properly completed; unsigned forms, forms with uncertified material alterations, incomplete forms, or forms recording votes cast exceeding registered voters are unreliable and should be excluded from the tally absent exceptional circumstances.

Evidence — Election Petitions — Admissibility of Affidavit Evidence Filed After the Petition

Subsequent affidavit evidence filed after an election petition is admissible and must be considered as a whole; a trial court errs in law by disregarding such evidence merely because it was filed after the petition, or because the source of information was not particularised in the petitioner's affidavit.

Evidence — Election Petitions — Omnibus Evaluation of Evidence

A trial judge must evaluate the evidence specifically in respect of each allegation rather than adopting an omnibus or generalised approach; failure to do so, including failing to consider unchallenged affidavit evidence, constitutes an error of law in the evaluation of evidence.

Electoral Law — Illegal Practices — Giving of Donations During Campaign Period

Under section 68(7) of the Parliamentary Elections Act, a candidate or agent must not carry on fundraising or give donations during the campaign period; such an illegal practice may be established by unrebutted and unchallenged affidavit evidence corroborated between witnesses.

Legislation cited (14)

Parliamentary Elections Act s.53
Parliamentary Elections Act s.53(1)
Parliamentary Elections Act s.53(2)
Parliamentary Elections Act s.57
Parliamentary Elections Act s.57(1)
Parliamentary Elections Act s.58
Parliamentary Elections Act s.58(1)
Parliamentary Elections Act s.59
Parliamentary Elections Act s.59(1)
Parliamentary Elections Act s.61(3)
Parliamentary Elections Act s.68(7)
Constitution of Uganda Article 68(4)
Rules of the Court of Appeal Rule 30
Rules of the Court of Appeal Rule 86(1)

Cases cited (17)

Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
Selle and Another v Associated Motor Boat Company Ltd and Others [1968] EA 123
Mbaghadi Fredrick Nkayi & Another v Dr. Nabwiso Frank Wilberforce (Election Petition Appeals No. 14 and 16 of 2011)
Apollo Kantinti v Sitenda Sebalu & Others (Election Petition Appeal No. 31 of 2016)
Joy Kabatsi v Anifa Kawooya & Electoral Commission (Election Petition Appeal No. 25 of 2007)
Achieng Sarah Opendi v Ochwo Nyakecho (Election Petition Appeal No. 39 of 2011)
Kakooza John Baptist v Electoral Commission & Yiga Anthony (Election Petition Appeal No. 11 of 2007)
Muhindo Rehema v Winnifred Kiiza & Electoral Commission (Election Petition Appeal No. 29 of 2011)
Nyakecho Annet & Electoral Commission v Ekanya Geoffrey (Election Petition Appeal Nos. 28 and 30 of 2016)
Paul Mwiru v Igeme Nathan & Others (Election Petition Appeal No. 6 of 2011)
Peter Bakaluba v Betty Nambooze (Election Petition Appeal No. 27 of 2009)
Odo Tayebwa v Bassajjabalaba Nasser & Electoral Commission (Election Petition Appeal No. 13 of 2011)
Bantalib Issa Taligola v Wasugirya Bob Fred & Electoral Commission (Election Petition Appeal No. 11 of 2006)
Col. (Rtd) Dr.Besigye Kizza
Nakate Lilian Seguja & Electoral Commission v Nabukenya Brenda (Election Petition Appeal Nos. 17 and 21 of 2016)
Tubo Christine Nakwang v Akello Rose Lilly (Election Petition Appeal No. 80 of 2016)
Kintu Alex Brandon v Electoral Commission & Walyomu Moses (Election Petition Appeal No. 64 of 2016)

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