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Babirye v Bukenya and Another (Election Petition Appeal No. 50 of 2021)

Court of Appeal · [2022] UGCA 219 · 2022 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Election petition appeal from a judgment of the High Court at Mubende dismissing an election petition
Decision
Appeal dismissed; election of the first respondent upheld

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Holding

The Court of Appeal dismissed an election petition appeal challenging the election of the first respondent as MP for Bukuya County. The Court held that the standard of proof for grounds under the Parliamentary Elections Act is the balance of probabilities, not beyond reasonable doubt, and found the trial Judge had wrongly applied a criminal standard by requiring police/PF3 reports for bribery and violence. However, only Ground 4 (standard of proof) succeeded, which was inconsequential. The bribery, violence and non-compliance allegations were not proved to the required satisfaction, and the proven irregularities at three polling stations and arrest of agents did not affect the 9,143-vote winning margin in a substantial manner.

Facts

The appellant, Jane Babirye Zaninka, contested the 2021 parliamentary elections for Bukuya County Constituency in Kasanda District against the first respondent, Dr. Michael Iga Bukenya, and two others. The election was held on 14 January 2021 and the first respondent was returned the winner, garnering 15,190 votes against the appellant's 6,047, a margin of about 9,143 votes. He was gazetted as the duly elected MP on 17 February 2021. Dissatisfied, the appellant petitioned the High Court at Mubende alleging bribery (at Kichumbanswa, Bwerenga, Katuugo and Kigudde), intimidation and violence against her and the arrest of her agents, defective affidavits filed by the Electoral Commission, and irregularities in declaration of result forms at several polling stations. The trial Judge found bribery and violence allegations unproved, but found proven non-compliance at three polling stations and the arrest of about ten of the appellant's agents. She held the non-compliance did not substantially affect the result and dismissed the petition with costs. The appellant appealed.

Issues

  1. Whether the trial Judge failed to properly evaluate the evidence regarding alleged incidents of bribery.
  2. Whether the trial Judge set the standard of proof in the election petition higher than that provided by law.
  3. Whether the trial Judge erred in failing to expunge the allegedly defective affidavits filed by the 2nd respondent.
  4. Whether the trial Judge failed to properly evaluate the evidence of intimidation and violence against the appellant and her agents.
  5. Whether the trial Judge failed to properly evaluate evidence of non-compliance with electoral laws and irregularities in declaration of result forms.
  6. Whether any proven non-compliance affected the result of the election in a substantial manner.

Orders

  • The appeal is dismissed.
  • Each party shall bear its own costs in this court and in the court below.

Key headnotes

Electoral Law — Standard of Proof — Grounds under the Parliamentary Elections Act
Under section 61(3) of the Parliamentary Elections Act 2005, the grounds for setting aside an election must be proved on the balance of probabilities, not beyond reasonable doubt; a trial court errs where it applies a criminal standard to election petition grounds.
Electoral Law — Bribery — Proof and Reporting Requirement
There is no requirement under section 68(1) of the Parliamentary Elections Act that an act of bribery be reported to the police or the Electoral Commission in order to be proved; requiring such a report imposes a standard higher than the law requires.
Evidence — Hearsay and Corroboration — Partisan Witnesses in Election Petitions
Hearsay evidence is inadmissible unless supported by other evidence, and the testimony of partisan witnesses or a single witness during elections requires independent corroboration to establish a contested fact such as bribery.
Evidence — Proof of Assault in Civil Proceedings — Police Form 3
In a civil election petition, a petitioner is not required to produce a Police Form 3 to prove assault or violence; requiring such forensic proof raises the standard beyond the requisite balance of probabilities.
Electoral Law — Non-compliance — Substantiality Principle
An election will not be annulled for non-compliance with electoral laws unless the non-compliance affected the result in a substantial manner, meaning the winning majority would have been reduced so as to put the victory in doubt.
Civil Procedure — First Appellate Court — Duty to Re-evaluate Evidence
A first appellate court is under a duty to subject the evidence adduced at trial to fresh and exhaustive scrutiny and reach its own conclusions, while giving due regard to the trial court's advantage of observing witnesses first hand.

Legislation cited (13)

  • Parliamentary Elections Act 2005 s.61(1)
  • Parliamentary Elections Act 2005 s.61(3)
  • Parliamentary Elections Act 2005 s.68(1)
  • Parliamentary Elections Act 2005 s.58(6)(a)
  • Evidence Act s.58
  • Evidence Act s.73
  • Oaths Act s.5
  • Oaths Act s.6
  • Constitution of Uganda Article 142(1)
  • Constitution of Uganda Article 125(2)(e)
  • Parliamentary Elections Rules rule 11(1)
  • Parliamentary Elections Rules rule 11(2)
  • Parliamentary Elections Rules rule 15

Cases cited (39)

  • Odo Tayebwa v Arinda Gordon Kakuuna and Electoral Commission (Election Petition Appeal No. 85 of 2015)
  • Bakaluba Mukasa Peter v Nambooze Bakileke Betty (Election Petition Appeal No. 4 of 2009)
  • Mukasa Antony Harris v Dr. Bayiga Micheal Philip Lulume (Election Petition Appeal No. 17 of 2007)
  • Kizza Besigye v Yoweri Museveni and Electoral Commission (Presidential Election Petition No. 1 of 2005)
  • Vincent Kyamadidi Mujuni v Charles Ngabirano and Electoral Commission (Election Petition Appeal No. 84 of 2016)
  • Hellen Adoa & Another v Alice Alaso (Election Appeal No. 57 and 54 of 2016)
  • Kikulukunyi Faisal v Muhammed Muwanga Kivumbi (Election Petition Appeal No. 44 of 2011)
  • Isondo v Amongin (Election Petition Appeal No. 50 of 2015)
  • Dr Bayiga Micheal Philip Lulume v Mutebi David Ronnie and Electoral Commission (Election Petition No. 14 of 2015)
  • Katuntu Abdul v Kirunda Kivejinja Ali & Anor (Election Petition No. 7 of 2006)
  • Lanyero Sarah Ochieng and Electoral Commission v Lanyero Molly (Election Petition Appeal No. 32 of 2011)
  • Kamba Sale Moses v Namuyanga Jenifer (Election Petition Appeal No. 27 of 2017)
  • Robert Ntende v Isabirye Idi (Election Petition No. 74 of 2015)
  • Bayo Jacob Robert v Talisuna Simon (Election Petition Appeal No. 2 of 2006)
  • John Kosi Odomelo v Electoral Commission & Anor (Election Petition Appeal No. 5 of 2005)
  • Kabusu Moses Wagaba v Lwanga Timothy & Electoral Commission (Election Petition Appeal No. 53 of 2011)
  • Jeet Mohinder Singh v Harminder Singh Jassi AIR 2000 258
  • Ssematimba Peter and NCHE v Sekijgozi Stephen Election Petition No.8 & 10 (2015)
  • Akol Hellen Odeke v Okodel Umar EPA No.05
  • Toolit Simon Akech v Oulanyah Jacob L'okori (Election Petition Appeal No. 19 of 2011)
  • Oboth Marksons Jacob v Dr Otim Otaala (Election Petition Appeal No. 38 of 2011)
  • Amoru Paul & Electoral Commission v Okello-Okello John Baptist (Consolidated Election Petition Appeal Nos. 39 and 98 of 2016)
  • Betty Muzanira Bamukwatsa v Masiko Winifred Komuhangi & 2 Others (Election Petition Appeal No. 55 of 2016)
  • Dr Mayanja Bernard & Can Joyce Okeny v Hood Katuramu & Nokrach William Wilson (Election Petition Appeal No. 42 of 2016)
  • Father Nasensio Begumisa & 3 Others v Eric Tibebaga (Civil Appeal No. 17 of 2002)
  • Mbogo v Shah (1958) EA 93
  • Uganda v Oloya 1977 HCB 4
  • Uganda v DC Ojok 1992 HCB 54
  • Akol Patrick and 1936 others V Uganda (2005) HCB 6
  • Woolmington v DPP AC 462
  • Choitram v Hiranad Ghamsharnas Dadlani [1958] EA 641
  • Miller v Minister of Pensions [1947] 2 ALL ER 373
  • Mbayo Jacob Robert v Electoral Commission and Another (Election Appeal No. 7 of 2006)
  • Col. Dr. Kizza Besigye v Electoral Commission & Yoweri Kaguta Museveni (Presidential Election Petition No. 1 of 2006)
  • Mbowe v Eliufoo [1967] EA 240
  • Dr. Kizza Besigye v Yoweri Museveni (Presidential Election Petition No. 1 of 2001)
  • Anderson Kambela Mazoka & 3 Others v Levy Patrick Mwanawasa & 3 Others: Presidential Petition No. SCZ/01/02/03/2002
  • Lewanika & Others v Chiluba
  • Garuga Musinguzi v Amama Mbabazi (Election Petition No. 3 of 2001)
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