Joy Kabatsi Kafura v Anifa Kawoooya Bangirana and Another (Election Petition Appeal No.25 of 2007)

Supreme Court · [2008] UGSC 41 · 2008 Appeal Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Second appeal to the Supreme Court from a Court of Appeal decision that had reversed a High Court judgment annulling a parliamentary election in an election petition

Decision

Appeal allowed; Court of Appeal judgment set aside and High Court order annulling the first respondent's election and directing a fresh election reinstated

The full judgment

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Holding

Allowing the appeal (3-2), the Supreme Court held that section 50 of the Electoral Commission Act empowers the Commission to modify electoral provisions prospectively by instruction and cannot be applied post facto to cure non-compliance with section 30, nor to circumvent the Constitution; it was never invoked here. The unlawful removal and replacement of the Returning Officer and the appointment of partisan, untrained polling staff under a candidates' memorandum of understanding breached the law and the Commission's independence. Failure by presiding officers to sign Declaration of Results Forms under section 47(5) and Article 68(4) invalidated the affected stations' results, which substantially affected the outcome. The Court of Appeal's judgment was set aside and the High Court's annulment reinstated.

Facts

In the 23 February 2006 general elections, the appellant and the first respondent contested the Woman Member of Parliament seat for Sembabule District. Days before polling, the existing District Returning Officer was removed and replaced amid disagreement between rival candidate factions, with the substitution announced by a contesting MP rather than effected through the gazette. At a meeting convened by the Electoral Commission on 20 February 2006, the candidates signed a memorandum of understanding allowing each side to nominate presiding officers and polling assistants, producing partisan and untrained polling staff appointed within barely two days and without training. The first respondent was declared winner with 29,398 votes against the appellant's 28,199, a margin of 1,199. The appellant petitioned the High Court, which annulled the election; the Court of Appeal reversed, holding the defects cured under section 50 of the Electoral Commission Act. The appellant appealed to the Supreme Court.

Issues

Whether the removal and replacement of the District Returning Officer, presiding officers and polling assistants was lawful.
Whether section 50 of the Electoral Commission Act could be invoked to cure non-compliance with section 30 of that Act in the appointment of election officers.
Whether failure by presiding officers to sign Declaration of Results Forms under section 47(5) of the Parliamentary Elections Act invalidates the results of the affected polling stations.
Whether the non-compliance with the electoral law affected the result of the election in a substantial manner.
Whether the Court of Appeal erred in failing to reappraise the evidence and to consider the trial court's findings that were not appealed.

Orders

Appeal allowed (by majority).
Judgment of the Court of Appeal set aside.
Judgment of the High Court annulling the election of the first respondent and ordering a fresh election for the Woman Member of Parliament for Sembabule District reinstated.
The second respondent (Electoral Commission) to pay the costs of the appellant here and in the courts below.
The first respondent to bear her own costs.

Key headnotes

Electoral Law — Special Powers of the Electoral Commission — Section 50 Electoral Commission Act

Section 50 of the Electoral Commission Act empowers the Commission to modify a provision of an electoral law prospectively by particular or general instruction to meet the exigencies of a situation; it is not a residual or validating provision capable of being applied post facto to cure non-compliance, and the Commission must actually invoke it rather than be deemed to have done so by its own default.

Electoral Law — Independence of the Electoral Commission — Article 62 Constitution / Section 13 ECA

The Electoral Commission must perform its functions independently and may not defer to the direction or control of any person; deferring to the commands of an external candidate in removing and appointing election officials violates Article 62 of the Constitution, and section 50 of the Electoral Commission Act cannot be invoked to sanction a breach of the Constitution.

Electoral Law — Declaration of Results Forms — Section 47(5) PEA / Article 68(4) Constitution

Signing of a Declaration of Results Form by the presiding officer is mandatory under section 47(5) of the Parliamentary Elections Act and Article 68(4) of the Constitution; failure to sign invalidates the declaration of results for the affected polling station, and an announcement of results not based on a duly signed form is invalid.

Electoral Law — Substantial Effect on Result — Meaning of "affected the result"

An election result is "affected" within the meaning of the electoral law where, after adjusting for proven irregularities, the contest becomes much closer than it first appeared; proof of substantial effect does not require production of every Declaration of Results Form where the invalidated forms relate to identified stations and the winning margin would narrow or disappear.

Electoral Law — Memorandum of Understanding Between Candidates — Contracting Out of Electoral Law

An election is a public process regulated by mandatory provisions of the Constitution, the Parliamentary Elections Act and the Electoral Commission Act, and candidates have no legal power to contract out of those provisions; a memorandum of understanding among candidates purporting to vary the law has no legal standing or effect.

Evidence — Burden of Proof — Section 106 Evidence Act in Electoral Disputes

Where a returning officer's removal and replacement is shown prima facie to have occurred otherwise than in accordance with the law, the burden lies on the Electoral Commission, under section 106 of the Evidence Act, to adduce evidence demonstrating that the removal and appointment complied with section 30 of the Electoral Commission Act.

Legislation cited (22)

Electoral Commission Act s.12
Electoral Commission Act s.13
Electoral Commission Act s.14
Electoral Commission Act s.15
Electoral Commission Act s.30
Electoral Commission Act s.50
Parliamentary Elections Act 2005 s.18
Parliamentary Elections Act 2005 s.34
Parliamentary Elections Act 2005 s.47(5)
Parliamentary Elections Act 2005 s.54
Parliamentary Elections Act 2005 s.61
Parliamentary Elections Act 2005 s.68
Parliamentary Elections Act 2005 s.72
Constitution of Uganda Article 1(4)
Constitution of Uganda Article 60
Constitution of Uganda Article 61
Constitution of Uganda Article 62
Constitution of Uganda Article 65
Constitution of Uganda Article 67
Constitution of Uganda Article 68(4)
Constitution of Uganda Article 126(2)(c)
Evidence Act s.106

Cases cited (9)

Rtd. Col. Kiiza Besigye v Y.K. Museveni and Electoral Commission (Presidential Election Petition No. 1 of 2001)
Kakooza John Baptist v Electoral Commission and Another (Election Petition Appeal No. 11 of 2007)
Mbowe v Eliufoo [1967] EA 240
Fredrick Zaabwe v Orient Bank and Others (Civil Appeal No. 4 of 2006)
Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997
Demetriades v Glasgow Corporation [1951] 1 All ER 457
Besigye v Museveni and Others (Presidential Petition Appeal No. 1 of 2006)
Katalemwa Estates Traders Ltd v Attorney-General (Civil Appeal No. 2 of 1987)
Constitutional Appeal No 3 of 2004 on the referendum

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