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Electoral commission and Another v Tumwesigye (Consolidated Election Appeal No. 73 & 74 of 2021)

Court of Appeal · [2022] UGCA 161 · 2022 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Consolidated appeals from a High Court decision nullifying a parliamentary election
Decision
Appeals dismissed; High Court order nullifying the election and directing fresh elections upheld

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Holding

The Court of Appeal dismissed the consolidated appeals against the nullification of the Buwekula South parliamentary election. It held that the respondent had pleaded and proved manipulation of the voters' register and ballot box stuffing, that the trial judge correctly admitted certified Voters' Registers and Declaration of Results Forms obtained on discovery, and that the Electoral Commission, as custodian of election materials, failed to rebut proven discrepancies. The Court found grave anomalies at 21 of 61 polling stations — unaccounted ballots, ballot stuffing and 1,328 unverified voters — which substantially affected the result given the narrow margin. No reviewable error was shown; the election was correctly nullified.

Facts

Museveni William (2nd appellant) and Tumwesigye Fred (respondent) contested the Member of Parliament seat for Buwekula South Constituency in Mubende District in the election held on 14 January 2021 by the Electoral Commission. Museveni garnered 8,075 votes and was declared winner; Tumwesigye was runner-up with 7,479 votes. Tumwesigye petitioned the High Court alleging electoral offences, manipulation of the voters' register, ballot stuffing and failure by the Commission to enforce the Parliamentary Elections Act. He obtained, through discovery, certified copies of Voters' Registers and Declaration of Results Forms, which were retrieved from sealed ballot boxes. Analysis revealed discrepancies between ballots counted and voters recorded, unaccounted votes, and six polling stations without voters' rolls. The trial judge found that proven defects, given the small margin, substantially affected the result and nullified the election, ordering fresh elections with costs to Tumwesigye. Both the Commission and Museveni appealed.

Issues

  1. Whether the respondent's late preliminary objection on the form of the grounds of appeal should be entertained.
  2. Whether the trial judge erred in relying on the Voters' Register and Declaration of Results Forms not pleaded or proved by affidavit.
  3. Whether the trial judge correctly applied the law on hearsay evidence in affidavits in election petitions.
  4. Whether the trial judge improperly shifted the burden of proof onto the Electoral Commission.
  5. Whether it was lawful to open the ballot boxes and rely on materials retrieved from them.
  6. Whether stamp duty was required for certified copies of election documents.
  7. Whether the proven discrepancies and unverified voters substantially affected the result of the election.

Orders

  • The respondent's preliminary point on the impropriety of the grounds of appeal is dismissed.
  • Ground 1 of the Consolidated Memorandum of Appeal struck out for contravening rule 86(1).
  • All grounds of appeal fail.
  • The consolidated appeals are dismissed.

Key headnotes

Election Petitions — Preliminary Objections — Timing and Late Objection on Form of Grounds
A preliminary point of law going merely to the form of the grounds of appeal, raised for the first time in late submissions without leave and without earlier notice, may be declined where entertaining it would occasion unnecessary delay in the expedited disposal of an electoral appeal.
Memorandum of Appeal — Prolixity — Rule 86(1) Court of Appeal Rules
A ground of appeal that merely reproduces the trial judge's findings in narrative and sub-paragraphs, without specifying how the judge erred, is prolix and contravenes rule 86(1) of the Court of Appeal Rules and is liable to be struck out.
Affidavits in Election Petitions — Hearsay — Severance Rather Than Wholesale Rejection
Where an affidavit accompanying an election petition contains both admissible and hearsay matter, the court should sever and reject only the hearsay portions and rely on those parts deposed from personal knowledge, rather than expunge the affidavit wholesale.
Burden of Proof — Shifting Evidential Burden — Electoral Commission as Custodian
Once a petitioner adduces prima facie evidence of irregularities in election materials, the evidential burden shifts to the Electoral Commission, as custodian of all election documents, to account for the discrepancies; failure to do so justifies a finding against it.
Ballot Box Stuffing — Discrepancy Between Ballots Counted and Voters Recorded
Ballot box stuffing is proved where the number of ballots counted at polling stations exceeds the number of men and women recorded as having cast votes, contrary to the one-person-one-vote principle in section 31 of the Parliamentary Elections Act.
Preservation and Opening of Ballot Boxes — Section 52 Parliamentary Elections Act
By virtue of section 52(1) of the Parliamentary Elections Act there is no time limit for opening ballot boxes so long as an election dispute subsists, since election materials must be preserved until disputes arising from the election are settled.
Substantial Effect Test — Quantitative and Qualitative — Narrow Margin
Where proven non-compliance affects a substantial number of votes relative to a narrow winning margin, the qualitative and quantitative tests are satisfied and the election may be nullified as no longer reflecting the true will of the voters.

Legislation cited (28)

  • Parliamentary Elections Act s.31
  • Parliamentary Elections Act s.34
  • Parliamentary Elections Act s.39
  • Parliamentary Elections Act s.52
  • Parliamentary Elections Act s.61(3)
  • Parliamentary Elections Act s.63(9)
  • Parliamentary Elections Act s.65
  • Parliamentary Elections Act s.66(2)
  • Parliamentary Elections Act s.8(4)(a)
  • Electoral Commission Act s.12(1)
  • Electoral Commission Act s.18
  • Evidence Act s.1
  • Evidence Act s.75
  • Stamps Act s.42
  • Electronic Transactions Act s.8(2)
  • Electronic Transactions Act s.22
  • Illiterates Protection Act s.3
  • Civil Procedure Rules Order 19 rule 3
  • Civil Procedure Rules Order 6 rule 7
  • Civil Procedure Rules Order 10 rule 12
  • Civil Procedure Rules Order 10 rule 15
  • Parliamentary Elections (Interim Provisions) Rules rule 15
  • Parliamentary Elections (Interim Provisions) Rules rule 17
  • Court of Appeal Rules rule 86(1)
  • Court of Appeal Rules rule 2(2)
  • Judicature (Court of Appeal Rules) Directions rule 30(1)
  • Constitution of Uganda Article 61
  • Constitution of Uganda Article 126

Cases cited (17)

  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Muyanja Simon v Kenneth Lubogo and Electoral Commission (Election Petition Appeal No. 82 of 2016)
  • Levi Siminyu Makali v. Koyi John Wakule & Others, Kenya High Court Election Petition No. 4 of 2017
  • Nsubuga Jonah v Electoral Commission (Election Petition No. 34 of 2011)
  • Freda Nanziri Kase Mubanda v Mary Babirye Kabanda (Election Petition Appeal No. 38 of 2016)
  • Paul Mwiru v Igeme Nathan Nabeeta and 2 Others (Election Petition Appeal No. 6 of 2011)
  • Jeet Mohinder Singh v. Harmider Singh Jassi, AIR 2000 SC 258
  • Rehema Tiwuwe Watongola v Salaamu Musumba (Election Petition Appeal No. 27 of 2016)
  • Raila Amolo Odinga & Another v. Uhuru Muigai Kenyatta, Kenya Supreme Court Presidential Petition No 1 of 2017
  • Raila Odinga & 5 Others v. Independent Electoral and Boundaries Commission & 3 Others, Petition 5 of 2013 [2013] eKLR
  • Col. (Rtd) Dr. Besigye Kizza v Museveni Yoweri Kaguta and Electoral Commission (Presidential Election Petition No. 1 of 2001)
  • Muhindo Rehema v Winfred Kiiza (Election Petition Appeal No. 29 of 2011)
  • John Baptist Kakooza v Anthony Iga and Electoral Commission (Election Petition Appeal No. 7 of 2007)
  • Foster v Mackinnon (1869) LR 4 CP 704
  • Kasaala Growers Cooperative Society v Jonathan Kakooza and Another (Civil Application No. 19 of 2010)
  • Ngoma-Ngime v Winfred Byanyima and Electoral Commission (Election Petition Appeal No. 11 of 2002)
  • Nakate Lilian Segujja and Electoral Commission v Nabukenya Brenda (Election Petition Appeals No. 17 & 21 of 2016)
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