Rtd. Col. Dr. Kizza Besigye v Electoral Commission & Yoweri Kaguta Museveni (Election Petition No.1 of 2006)

Supreme Court · [2007] UGSC 24 · 2007 Petition Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Presidential election petition to the Supreme Court under Article 104(1) of the Constitution and section 59(1) of the Presidential Elections Act challenging the validity of the 2006 presidential election result

Decision

Petition dismissed by majority decision; 2nd respondent's election as President upheld

The full judgment

Read the complete, verbatim text of this judgment.

Cited — treatment unverified cited in 5 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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 found that the Electoral Commission failed to comply with the Constitution, the Presidential Elections Act and the Electoral Commission Act by disenfranchising voters and in the counting and tallying of results, and that the principles of free and fair elections, equal suffrage, transparency and secrecy of the ballot were compromised by bribery, intimidation or violence, multiple voting and vote stuffing in some areas. However, by a majority of four to three, the Court held the petitioner had not proved that the non-compliance affected the result in a substantial manner, and by five to two that no illegal practice or offence was proved against the 2nd respondent personally or his agents with his knowledge and consent. The petition was dismissed.

Facts

The 2006 presidential election was held on 23 February 2006 under a multiparty dispensation, the third under the 1995 Constitution. Five candidates contested. On 25 February 2006 the Electoral Commission declared the 2nd respondent, Yoweri Kaguta Museveni, the winner with 59.28% of valid votes; the petitioner, the runner-up, obtained 37.36%. On 7 March 2006 the petitioner filed a petition challenging the validity of the result. He alleged the Commission disenfranchised voters by deleting names from the register, failed to cancel results where malpractices occurred, failed to declare results in accordance with the law, and failed to ensure conditions of freedom and fairness; and that the electoral process was marred by bribery, intimidation, violence, multiple voting and vote stuffing. He further alleged the 2nd respondent personally committed illegal practices, including making malicious and sectarian statements and bribery by his agents. All evidence was by affidavit, the petitioner filing about 200 and the respondents about 280. The respondents denied the allegations. The Court was required by Article 104(1) to inquire into and determine the petition expeditiously, within 30 days of filing.

Issues

Whether there was non-compliance with the provisions of the Constitution, the Presidential Elections Act and the Electoral Commission Act in the conduct of the 2006 presidential election.
Whether the election was not conducted in accordance with the principles laid down in the Constitution, the Presidential Elections Act and the Electoral Commission Act.
Whether, if issue 1 or 2 or both are answered in the affirmative, such non-compliance affected the results of the election in a substantial manner.
Whether the alleged illegal practices or electoral offences were committed by the 2nd respondent personally, or by his agents with his knowledge and consent or approval.
Whether the petitioner is entitled to the reliefs sought.
Whether section 59(6)(a) of the Presidential Elections Act is inconsistent with Article 104(1) of the Constitution and whether the question should be referred to the Constitutional Court under Article 137(5).

Orders

The petition is dismissed.
Each party shall bear its own costs.

Key headnotes

Constitutional Law — Reference to Constitutional Court — Article 137(5) — When a question of interpretation 'arises' in proceedings

A court before which a request for a reference under Article 137(5) is made is not a mere conduit; it must consider whether the question of constitutional interpretation genuinely arises in the particular proceedings and has merit, and a question raised before, rather than during, the proceedings does not arise so as to require a reference.

Constitutional Law — Consistency of legislation — Section 59(6)(a) Presidential Elections Act and Article 104(1) of the Constitution

Section 59(6)(a) of the Presidential Elections Act, which requires proof that non-compliance affected the result in a substantial manner, is not inconsistent with Article 104(1) of the Constitution, because Article 104(9) empowers Parliament to enact the grounds for annulment of a presidential election.

Electoral Law — Annulment of presidential election — Standard of proof — Substantial effect on the result

A presidential election may only be annulled where it is proved to the satisfaction of the court not merely that there was non-compliance with the law and its principles, but that the non-compliance affected the result of the election in a substantial manner.

Electoral Law — Disenfranchisement — Removal of voters from the register — Right to a fair hearing

The right to vote is fundamental and may not be taken away lightly; removal of a citizen's name from the voters register affecting that right must be carried out fairly and transparently, with the affected voter informed and afforded a fair hearing, and a citizen's failure to verify the register during display does not justify disenfranchisement.

Evidence — Affidavit evidence — Hearsay — Need for corroboration

Affidavit evidence based on information received from third parties rather than the deponent's personal knowledge is hearsay and cannot be relied on to establish an allegation unless corroborated by independent evidence from persons who witnessed the matters deponed to.

Electoral Law — Bribery — Section 64 Presidential Elections Act — Proof that recipient is a registered voter

The offence of electoral bribery under section 64 of the Presidential Elections Act is not committed unless the money, gift or other consideration is given to or received by a person proved to be a registered voter, and it is shown the item was given to influence that person's vote and was not part of permitted campaign expenses.

Electoral Law — Declaration of results — Section 56(2) Presidential Elections Act — Documents not a pre-requisite

Section 56(2) of the Presidential Elections Act does not require the Electoral Commission to receive all the listed documents from returning officers before ascertaining and declaring the results, as no time is fixed for their transmission and a contrary construction would defeat the constitutional duty to declare results within forty-eight hours.

Legislation cited (19)

Constitution of Uganda 1995 art.104(1)
Constitution of Uganda 1995 art.104(9)
Constitution of Uganda 1995 art.103(7)
Constitution of Uganda 1995 art.137(5)
Constitution of Uganda 1995 art.59
Presidential Elections Act s.59(1)
Presidential Elections Act s.59(6)(a)
Presidential Elections Act s.56
Presidential Elections Act s.57
Presidential Elections Act s.54(1)
Presidential Elections Act s.64
Presidential Elections Act s.31
Presidential Elections Act s.32(1)
Electoral Commission Act s.12(e)
Electoral Commission Act s.12(f)
Electoral Commission Act s.19
Electoral Commission Act s.25
Electoral Commission Act s.50
Advocates Act s.67(1)

Cases cited (2)

Rtd. Col. Dr. Kizza Besigye v Yoweri Kaguta Museveni and Electoral Commission (Presidential Election Petition No. 1 of 2001)
Kyamanywa Simon v Uganda (Criminal Appeal No. 16 of 1999)

Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.