Wakilii

Col. (RTD) Besigye Kizza v Museveni Yoweri Kaguta & Another (Presidential Election Petition No. 1 of 2001)

Supreme Court · [2001] UGSC 15 · 2001 Petition Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Presidential election petition to the Supreme Court under article 104 of the Constitution and s.58 of the Presidential Elections Act 2000, challenging the validity of the President's election.
Decision
Petition dismissed by majority of three to two; the 1st Respondent's election as President upheld.

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Cited — treatment unverified cited in 2 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Supreme Court dismissed a petition challenging the 2001 presidential election. The Court unanimously found the Electoral Commission failed to comply with the Presidential Elections Act—failing to gazette a complete list of polling stations and to supply the voters register—and that free-and-fair principles were compromised in some areas. However, by a majority of three to two it held the petitioner had not proved to the Court's satisfaction that the non-compliance affected the result in a substantial manner, nor that the first respondent personally, or with his knowledge and consent, committed any illegal practice. The standard of proof is satisfaction of the court—high, given the gravity—not necessarily beyond reasonable doubt. Petition dismissed; each party to bear own costs.

Facts

On 12 March 2001 Uganda held its second presidential election under the 1995 Constitution. Six candidates stood. The Electoral Commission declared the 1st Respondent, the incumbent, the winner with 69.3% of votes cast; the petitioner obtained 27.8%. On 23 March 2001 the petitioner filed a petition under article 104 of the Constitution and the Presidential Elections Act 2000, alleging that the Commission failed to comply with the Act and the Electoral Commission Act in numerous respects—including failing to publish a complete list of polling stations in time, failing to supply the voters register, abridging the display period, multiple voting, ballot stuffing and pre-ticking of papers—and that the non-compliance affected the result substantially. He also alleged the 1st Respondent committed illegal practices personally or through agents with his knowledge and consent, including a false AIDS statement, bribery, deployment of partisan soldiers, and threats. The respondents denied the allegations or explained them as administrative measures and human error. All evidence was adduced by affidavit, with cross-examination only by leave.

Issues

  1. Whether during the 2001 election of the President there was non-compliance with the provisions of the Presidential Elections Act 2000.
  2. Whether the said election was not conducted in accordance with the principles laid down in the provisions of the said Act.
  3. Whether, if the first and second issues are answered in the affirmative, such non-compliance with the provisions and principles of the Act affected the result of the election in a substantial manner.
  4. Whether an illegal practice or any other offence under the said Act was committed, in connection with the election, by the 1st Respondent personally, or with his knowledge and consent or approval.
  5. What reliefs are available to the parties.

Orders

  • The petition is dismissed by majority decision.
  • Each party to bear its own costs.

Key headnotes

Electoral Law — Presidential Election Petition — Burden and Standard of Proof
In a presidential election petition the burden of proof lies on the petitioner; the standard required is proof to the satisfaction of the court, which is a very high standard given the gravity of the subject matter, but not necessarily proof beyond reasonable doubt.
Electoral Law — Grounds for Annulment — Effect of Non-Compliance on Result
A presidential election may be annulled for non-compliance with the Act only where it is proved to the satisfaction of the court that the election was not conducted in accordance with the principles laid down and that the non-compliance affected the result in a substantial manner; mere non-compliance with provisions is insufficient.
Evidence — Affidavits in Final Proceedings — Personal Knowledge and Severance
An election petition is a final, not interlocutory, proceeding, so affidavits must be confined to facts within the deponent's personal knowledge; matters based on information and belief are inadmissible, but a court may sever defective portions and act on admissible parts rather than reject the whole affidavit.
Civil Procedure — Procedural Technicalities — Substantive Justice under Article 126
Rules of procedure are handmaidens of justice and not to be used to defeat it; under article 126 of the Constitution courts administer substantive justice without undue regard to technicalities, justifying a liberal approach to defective affidavits drawn under time pressure.
Statutory Interpretation — Acts Construed as One — Incorporation by Reference
Where a statute directs that one Act be construed as one with another, every provision of each must be interpreted as if contained in a single Act, unless a clear inconsistency requires the later Act to be read as modifying the earlier; thus the Presidential Elections Act and the Electoral Commission Act are read together.
Statutory Interpretation — Ejusdem Generis — Power to Adapt Electoral Timelines
Applying the ejusdem generis rule to s.38(1) of the Electoral Commission Act, the Commission's power to extend time and otherwise adapt provisions does not include power to reduce the statutory minimum period for display of the voters register, the abridgement of which undermines the principles of voter registration and transparency.
Electoral Law — Free and Fair Elections — Constituent Principles
A free and fair election requires assessment of the totality of the electoral process and is governed by the principles of universal adult suffrage, secret ballot, conduct in accordance with the law and procedure laid down by Parliament, transparency, and a result based on the majority of votes cast.

Legislation cited (33)

  • Presidential Elections Act 2000 s.28
  • Presidential Elections Act 2000 s.29
  • Presidential Elections Act 2000 s.30(7)
  • Presidential Elections Act 2000 s.31
  • Presidential Elections Act 2000 s.32
  • Presidential Elections Act 2000 s.32(5)
  • Presidential Elections Act 2000 s.35
  • Presidential Elections Act 2000 s.47(4) and (5)
  • Presidential Elections Act 2000 s.58(3)
  • Presidential Elections Act 2000 s.58(6)
  • Presidential Elections Act 2000 s.58(7)
  • Presidential Elections Act 2000 s.63
  • Presidential Elections Act 2000 s.65
  • Presidential Elections Act 2000 s.70
  • Presidential Elections Act 2000 s.71
  • Electoral Commission Act 1997 s.12
  • Electoral Commission Act 1997 s.18
  • Electoral Commission Act 1997 s.19
  • Electoral Commission Act 1997 s.25
  • Electoral Commission Act 1997 s.38(1)
  • Constitution of Uganda 1995 article 1(4)
  • Constitution of Uganda 1995 article 65
  • Constitution of Uganda 1995 article 104
  • Constitution of Uganda 1995 article 126
  • Statutory Declaration Act 2000 s.3
  • Statutory Declaration Act 2000 s.4
  • Statutory Declaration Act 2000 s.7
  • Commissioner for Oaths (Advocates) Act Cap 53 s.4
  • Commissioner for Oaths (Advocates) Act Cap 53 s.5(1)
  • Commissioner for Oaths (Advocates) Act Cap 53 s.6
  • Civil Procedure Rules Order 17 r.3
  • Universal Declaration of Human Rights 1948 article 21
  • UN Covenant on Civil and Political Rights 1966 article 25

Cases cited (21)

  • Mbowe v Eliufoo (1967) EA 240
  • Bater v Bater [1950] 2 All ER 456
  • Blyth v Blyth [1966] AC 643
  • Odetta v Omeda (Election Petition No. 1 of 1996)
  • Margaret Zziwa v Naava Nabagesera (Civil Appeal No. 39 of 1997)
  • Katwiremu Bategana v Mushemeza (Election Petition No. 1 of 1996)
  • Ayena Odong v Ben Wacha (Election Petition No. 2 of 1996)
  • Ssemogerere & Olum v Attorney General (Constitutional Petition No. 3 of 1999)
  • Charles Mubiru v Attorney General (Constitutional Appeal No. 1 of 2001)
  • Assanand & Son (Uganda) Ltd v East African Records Ltd (1959) EA 360
  • Caspair Ltd v Harry Grandy (1962) EA 414
  • Standard Goods Corporation Ltd v Harakchand Nathu & Co (1950) 17 EACA 99
  • Nandala v Lyding (1963) EA 706
  • Zola v Ralli Bros Ltd (1969) EA 691
  • Reamation Ltd v Uganda Co-operative Creameries (Civil Application No. 7 of 2000)
  • Motor Mart (U) Ltd v Yona Kanyomozi (Civil Application No. 6 of 1999)
  • Hackney (1874) 31 LT 69
  • Morgan v Simpson [1975] QB 151; [1974] 3 All ER 722
  • Attorney General v Kabourou (1995) 2 LRC 757
  • Sang v Republic (1971) EA 539
  • Kibwimukya v Kasigwa (1978) HCB
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