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Hon. Ocen Peter & Another v Hon. Ebil Fred (Election Petition Appeal No. 83 of 2016)

Court of Appeal · [2018] UGCA 33 · 2018 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Election petition appeal from a High Court decision annulling a parliamentary election
Decision
Appeal allowed; the High Court annulment set aside and the first appellant's election as Member of Parliament for Kole South Constituency upheld

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Holding

The Court of Appeal allowed the appeal, holding that the petitioner failed to prove the alleged electoral offences to the required standard. Verbal sectarian utterances fall under section 24(a), not section 23(1) which requires use of a symbol or colour. Statements attacking character under section 73 require the exact words to be pleaded verbatim. The petitioner's affidavit evidence was largely hearsay and uncorroborated, and there was no proof that the alleged perpetrators were agents acting with the candidate's knowledge, consent or approval. The burden of proof never shifted to the respondent candidate. The trial Judge's annulment and order for fresh elections were set aside; the first appellant's election was upheld.

Facts

Following parliamentary elections on 18 February 2016 for the Kole South Constituency, the first appellant, Hon. Ocen Peter, polled 15,784 votes and was declared the winner. The respondent, Hon. Ebil Fred, came third with 5,867 votes. The runner-up, Alula David, garnered 12,714 votes. The respondent petitioned the High Court alleging that the first appellant committed electoral offences, namely uttering false and disparaging statements (calling him 'akwar anam' and a homosexual), running a sectarian campaign, using or threatening violence through gangs led by the first appellant's son, and using a government motor vehicle for campaigns. The High Court allowed the petition, annulled the election and ordered fresh elections. The first appellant and the Electoral Commission appealed, contending the evidence was hearsay, uncorroborated, that agency and the candidate's knowledge or consent were not proved, and that key offences were not properly pleaded.

Issues

  1. Whether the trial Judge erred by failing to properly evaluate the evidence and apply the law in annulling the election.
  2. Whether the trial Judge erred in annulling the election and ordering a fresh election where there was an unchallenged runner-up candidate.
  3. Whether the trial Judge erred in finding the offence of use of a government motor vehicle which was allegedly neither pleaded nor the basis of the trial.
  4. Whether the trial Judge erred in failing to find that the petition was incompetent.
  5. Whether verbal sectarian utterances fall within the offence of sectarianism under section 23(1) of the Parliamentary Elections Act.
  6. Whether the burden of proof in election petitions remained on the petitioner.
  7. Whether agency and the candidate's knowledge, consent or approval must be proved for electoral offences committed by others.

Orders

  • Appeal allowed.
  • The 1st appellant was validly and duly elected as Member of Parliament for Kole South Constituency.
  • The election, return and gazetting of the 1st appellant as Member of Parliament for Kole South Constituency are upheld.
  • Each party shall bear its own costs here and in the courts below.

Key headnotes

Electoral Law — Sectarianism — Scope of section 23(1) Parliamentary Elections Act
The offence of sectarianism under section 23(1) of the Parliamentary Elections Act requires the use of a symbol or colour with a tribal, religious or other sectarian connotation as a basis for candidature; purely verbal sectarian utterances do not fall within section 23(1) but may constitute an offence under section 24(a), which must be specifically pleaded.
Electoral Law — False Statements as to Character — Section 73 Parliamentary Elections Act
To establish the offence of making false statements concerning a candidate's character under section 73 of the Parliamentary Elections Act, the exact words complained of must be pleaded verbatim so the court can assess their malicious or defamatory effect and the respondent can know the case to meet.
Electoral Law — Burden and Standard of Proof — Election Petitions
In election petitions the burden of proof lies squarely on the petitioner to prove all allegations on a balance of probabilities to the satisfaction of the court, at a degree higher than in ordinary civil suits, and this burden never shifts to the respondent.
Evidence — Affidavit Evidence — Hearsay and Corroboration in Election Petitions
Affidavit evidence based on information must disclose the source, failing which it is hearsay and unreliable; given the highly partisan nature of election contests, cogent independent and credible corroborating evidence is required, and cross-examination of affidavit deponents is not mandatory under the Parliamentary Election Petition Rules.
Electoral Law — Agency — Proof of Knowledge, Consent or Approval
Where electoral offences are alleged to have been committed by persons other than the candidate, it is insufficient to show those persons were agents; the petitioner must prove that the candidate knew of, consented to or approved the conduct under sections 61(1)(c) and 80 of the Parliamentary Elections Act.
Electoral Law — Remedies — Declaration of Validly Elected Candidate
A court cannot declare a runner-up candidate who was not a party to the petition as validly elected; such relief offends the audi alteram partem rule, and where the petition does not seek a declaration in favour of another person, the court is confined to dismissing the petition or setting aside the election.
Electoral Law — Competence of Petition — Citing Wrong Law and Pleading Particulars
Citing a wrong law or using an abbreviation does not necessarily vitiate a petition where no reasonable person would be misled; however, a petition that fails to plead the necessary and material particulars of the alleged electoral offences contrary to Order 6 of the Civil Procedure Rules is defective.

Legislation cited (23)

  • Parliamentary Elections Act (Act 17/2005) s.4
  • Parliamentary Elections Act (Act 17/2005) s.11(i) and (iii)
  • Parliamentary Elections Act (Act 17/2005) s.22(6)
  • Parliamentary Elections Act (Act 17/2005) s.23(1)
  • Parliamentary Elections Act (Act 17/2005) s.24(a)
  • Parliamentary Elections Act (Act 17/2005) s.60
  • Parliamentary Elections Act (Act 17/2005) s.61(1)
  • Parliamentary Elections Act (Act 17/2005) s.61(3)
  • Parliamentary Elections Act (Act 17/2005) s.63
  • Parliamentary Elections Act (Act 17/2005) s.73
  • Parliamentary Elections Act (Act 17/2005) s.80
  • Electoral Commission Act (Cap. 140) s.15
  • Constitution of Uganda 1995 Article 28(1)
  • Constitution of Uganda 1995 Article 44(e)
  • Constitution of Uganda 1995 Article 126(2)(e)
  • Civil Procedure Rules Order 6 Rules 1 and 3
  • Civil Procedure Rules Order 6 Rule 18
  • Civil Procedure Rules Order 8 Rule 19
  • Parliamentary Elections (Interim Provisions) Rules S.I. 141-2 Rule 8(3)
  • Parliamentary Election Petition Rules Rule 15(1)
  • Parliamentary Election Petition Rules Rule 15(2)
  • Judicature (Court of Appeal Rules) Directions S.I. 13-10 Rule 30(1)
  • Judicature (Court of Appeal Rules) Directions S.I. 13-10 Rule 86(1)

Cases cited (30)

  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Mugema Peter v Mudyobole Abed Nasser (Election Petition Appeal No. 30 of 2011)
  • Rtd. Col. Dr. Kiiza Besigye v Y.K. Museveni (Election Petition No. 1 of 2001)
  • Magnhild (Owners) v Mcintyre Bros & Company [1920] 3 KB 321
  • Becke v Smith (1836) 2 M & W 191
  • Fred Badda and Another v Prof. Muyanda Mutebi (Election Petition Appeal No. 25 of 2006)
  • Timothy Denis Morrison & Others versus Alstair Carmichael, MP & Another [2015] ECIH 71
  • Kabuuso Moses Wagabo v Lawrence Timothy Mutekaya (Election Petition No. 15 of 2011)
  • Amongin Jane Francis Okili v Lucy Akello and Electoral Commission (Election Petition No. 1 of 2014)
  • Uganda Journalist Safety Committee and Others v Attorney General (Constitutional Petition No. 7 of 1997)
  • Banatib Issa Taligola v Electoral Commission and Wasugirya Bob Fred (Election Petition No. 15 of 2006)
  • Karokora v Electoral Commission and Kagonyera (Election Petition No. 2 of 2001)
  • Paul Mwiru versus Igeme Nathan Samson Nabeeta, EC & NCHE
  • Mbayo Jacobs v Electoral Commission and Another (Election Petition Appeal No. 7 of 2006)
  • Checkunir Sungohor Christopher v Electoral Commission and Another (Civil Application No. 5 of 2003)
  • Hon. Kipoi Tony Nsubuga v Ronny Waluku Wataka and 2 Others (Election Petition Appeal No. 7 of 2011)
  • Nile Breweries Ltd v Bruno Ozunga t/a Nebbi Boss Stores (Civil Suit No. 580 of 2006)
  • Mukasa Anthony Harris v Dr. Bayiga Michael Phillip Lulume (Election Petition Appeal No. 18 of 2007)
  • Masiko Winfred Komuhangi v Babihuga J. Winnie (Election Petition Appeal No. 1 of 2002)
  • S.N. Shah v C.M. Patel and Others [1961] EA 397
  • Ngoma Ngime v Electoral Commission and Another (Election Petition No. 1 of 2001)
  • Azizi Kasujja v Nauni Tibenkanya Nakato (Civil Appeal No. 63 of 1995)
  • Caroline Turyatemba and 4 Others v Attorney General and Another (Constitutional Petition No. 15 of 2006)
  • Ngoma Ngime v Electoral Commission and Winnie Byanyima (Election Petition No. 11 of 2002)
  • Rtd. Col. Kiiza Besigye v Yoweri Kaguta Museveni and Electoral Commission (Election Petition No. 1 of 2006)
  • Rtd. Col. Dr. Kiiza Besigye v Electoral Commission and Y.K. Museveni (Presidential Election Petition No. 1 of 2001)
  • Madi v Tropical Plantations Ltd (Civil Suit No. 54 of 1970)
  • Mathina Bwambale v Crispus Kiyonga and Another (Election Petition No. 7 of 2006)
  • Mbayo Jacob and Electoral Commission v Sinani [2007] 2 EA 316
  • Borough of Hackney Gill vs. Reed [1874] XXXI L.J. 69
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