Wakilii

Agaba & 3 Others v The Attorney General & 11 Others (Election Petition 2 of 2022)

High Court · [2024] UGHCCD 112 · 2024 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition challenging results of East African Legislative Assembly elections held on 29 September 2022
Decision
Petition dismissed; election results upheld; 4th to 12th Respondents confirmed as validly elected representatives to the 5th East African Legislative Assembly

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed the petition challenging the 29 September 2022 election of Uganda's representatives to the East African Legislative Assembly. The court held that the Speaker and Clerk to Parliament, acting in their official capacities, could not be sued personally and were wrongly joined as respondents. The court found that while additional affidavits filed before the scheduling conference were competently on record, the petitioners failed to prove non-compliance with electoral laws or that any alleged irregularities affected the election results in a substantial manner. The election was conducted substantially in accordance with the Treaty, EALA Act, and Parliamentary Elections Act.

Outcome

Petition dismissed; election results upheld; 4th to 12th Respondents confirmed as validly elected representatives to the 5th East African Legislative Assembly

Facts

Four petitioners (Agaba Gilbert, Lolem Josephine, Nakitende Salaama Adelaide, and Bwengye Lauben Muhangi) contested elections for Uganda's representatives to the East African Legislative Assembly held on 29 September 2022. The petitioners polled 210, 11, 6, and 5 votes respectively. Nine respondents (4th–12th) polled between 233 and 422 votes and were declared winners by the Speaker and Clerk to Parliament. The petitioners challenged the election, alleging irregularities including: simultaneous polling and campaigning (24 MPs voted before campaigns ended); arbitrary ballot paper design favouring incumbents; voting in a tent outside the plenary; ballot stuffing; denial of access to voter registers and polling agents; partiality by the Speaker; and that all successful candidates belonged to the ruling party. The petition was previously dismissed by Justice Singiza for want of jurisdiction to interpret the EAC Treaty, but the Court of Appeal set aside that ruling in Election Appeal No. 5 of 2023 and ordered a retrial on merit.

Issues

  1. Whether the 2nd and 3rd Respondents were properly joined as parties to the Election Petition?
  2. Whether the petitioners' affidavits filed after the closure of pleadings are competently on record?
  3. Whether there was non-compliance with the Treaty for Establishment of the East African Legislative Assembly and electoral laws during the conduct of the election for Uganda's Representatives to the 5th East African Legislative Assembly?
  4. If so, whether the non-compliance affected the results of the election in a substantial manner?
  5. Whether the Petitioners are entitled to the remedies sought?

Orders

  • The petition is hereby dismissed.
  • The results of the 5th EALA election conducted on 29th September 2022 for Uganda Representative to East African Legislative Assembly are upheld.
  • The 4th to 12th Respondents were validly elected as Uganda's Representatives to the 5th East African Legislative Assembly.
  • Given the nature and circumstances of this petition, being a matter of public importance court makes no order as to costs.

Rules and key headnotes

Electoral Law — Election Petitions — Joinder of Parties — Speaker and Clerk to Parliament — Personal Liability in Official Capacity
The Speaker of Parliament and Clerk to Parliament, when exercising functions under the EAC Treaty and EALA Act in conducting elections for Uganda's representatives to the East African Legislative Assembly, act in their official capacities as agents of Parliament and cannot be sued personally. The Attorney General, as legal representative of Government, properly represents Parliament (a legislative arm of Government) in election petitions challenging such elections. Section 25 of the Parliament (Powers & Privileges) Act Cap 258 provides that neither the Speaker nor any officer of Parliament shall be subject to court jurisdiction in respect of exercise of powers conferred by that Act.
Electoral Law — Election Petitions — Procedure — Additional Affidavits — Filing Before Scheduling Conference
Additional affidavits in support of an election petition filed before the scheduling conference are competently on record and do not require leave of court. Elections are matters of great public importance with short statutory timeframes within which petitions must be filed, and evidence cannot always be fully gathered before filing. It is only additional affidavits filed after the scheduling conference that require leave of court. A liberal approach is adopted when dealing with affidavits in election matters.
Electoral Law — East African Legislative Assembly Elections — Applicable Law — National State Laws Under Treaty Article 52
In determining election petitions contesting the legality of elections into the East African Legislative Assembly, courts apply the respective national state laws pursuant to Article 52 of the Treaty for the Establishment of the East African Community. In Uganda, the law governing elections for Members of Parliament — the Parliamentary Elections Act 2005 — applies to EALA elections. However, the Rules of Procedure for the Election of Members of the East African Legislative Assembly and the Rules of Procedure of Parliament are also relevant and binding until revoked, amended, or modified by Parliament itself.
Electoral Law — Election Petitions — Standard and Burden of Proof — Non-Compliance and Substantial Effect
Under section 61(1)(a) of the Parliamentary Elections Act 2005, an election may be set aside only if there has been non-compliance with provisions relating to elections, the court is satisfied there has been failure to conduct the election in accordance with principles laid down in those provisions, and the non-compliance and failure affected the result of the election in a substantial manner. The burden of proof lies on the petitioner to prove allegations on a balance of probabilities, though at a slightly higher standard than ordinary civil cases. The petitioner must prove both that irregularities occurred and that they substantially and materially affected the outcome. 'Substantial manner' means the votes candidates obtained would have been different in a substantial manner but for the non-compliance, such that the winning majority would have been reduced to put the victory in doubt.
Electoral Law — Conduct of Elections — Parliamentary Rules of Procedure — Flexibility to Meet Exigencies
Parliamentary rules of procedure governing elections are not cast in stone and may be adjusted by the Speaker to suit available circumstances and exigencies, provided such adjustments do not contravene statutory requirements or constitutional imperatives. Where members of Parliament request leave to vote early due to emergencies before campaign speeches conclude, the grant of such leave does not constitute non-compliance rendering the election void, absent evidence that those members would have voted differently had they heard the campaigns or that the petitioners were specifically prejudiced.
Electoral Law — Ballot Papers — Order of Names — Absence of Statutory Requirement for Alphabetical Order
There is no established law requiring that names on ballot papers be aligned in alphabetical order. Where the electorate consists of Members of Parliament (literate and educated persons), an arbitrary order of candidate names on the ballot paper that does not follow alphabetical sequence does not render the ballot defective or the election unfair, absent evidence that voters were confused or misled. Members of Parliament are capable of reading all names on a ballot paper to locate their preferred candidate.
Electoral Law — Ballot Stuffing — Proof Required — Qualitative and Quantitative Evidence
Ballot stuffing refers to electoral fraud whereby a person submits multiple ballots, casts votes on behalf of absent persons, votes in multiple polling stations, or causes votes to be cast by deceased or fictitious persons. To prove ballot stuffing warranting nullification of an election, a petitioner must adduce cogent evidence showing: (a) the number of votes cast exceeded the number of voters who physically turned up to vote, supported by voter registers and attendance records; (b) the quantum of extra votes stuffed; and (c) the effect of those extra votes on the final outcome. Speculation, allegations unsupported by affidavits from affected voters, and absence of documentary evidence such as travel documents or attendance lists are insufficient to prove ballot stuffing.

Legislation cited (21)

Cases cited (26)

  • Col. (RTD) Dr. Kiiza Besigye v Yoweri Kaguta Museveni (Presidential Election Petition No. 1 of 2001)
  • Paul Mwiru v Hon Igeme Nabeta & Others (Election Petition No. 6 of 2011)
  • Mukasa Anthony Harris v Dr. Bayiga Michael Philip Lulume (S.C.C.A. No. 18 of 2007)
  • Apolot Stella Isodo v Amongin Jacqueline (Election Petition Appeal No. 60 of 2016)
  • Departed Asians Property Custodian Board v Jaffer Brothers Ltd (1999) EA 55
  • Prof. Peter Anyang Nyongo & 10 Others v AG of Kenya (Reference No. 1 of 2006)
  • Tamale Julius Konde v Ssenkubuge Isaac & EC (Election Petition Appeal No. 75 of 2016)
  • Jacob Oulanyah v Attorney General (Constitutional Petition No. 28 of 2006)
  • Omar & Anor Vs Mbuzi & Anor Civil Appeal No. 50 of 2006
  • Joho Vs Nyange (2008) 3 KLR (EP) 500
  • Amama Mbabazi v Yoweri Kaguta Museveni & Ors (Presidential Petition No. 1 of 2016)
  • Joy Kabatsi Kafura v Anifa Kawooya Bangirana & Anor (Election Petition Appeal No. 25 of 2007)
  • Major Roland Kakooza Mutale versus AG & IGG [2001-2005] HCB 110
  • Charles Harry Twagira v Attorney General and Two Others (Civil Appeal 4 of 2007)
  • Mutembuli v Nagwomu & Another (Election Petition Appeal No. 43 of 2016)
  • Kamurali Jeremiah Birungi & Anor v Attorney General & Anor (National Assembly Petition No. 2 of 2012)
  • Karokora Katono Zedekia v Electoral Commission and Kagonyera Mondo (Election Petition No. 2 of 2001)
  • Hellen Adoa & EC v Alice Alaso (Election Petition Appeal Nos. 54 and 57 of 2016)
  • Suubi Kinyamatma Juliet v Sentongo Robinah Nakasirye (Election Petition Appeal No. 92 of 2016)
  • Kamba Saleh Moses v Namuyangu Jennifer (Election Petition Appeal 27 of 2011)
  • Halima Nakawungu v EC and Anor (High Court Election Petition No. 2 of 2011)
  • Odo Tayebwa v Basajjabalaba Nasser (Election Petition Appeal No. 13 of 2011)
  • Toolit Simon Akocha v Oulanya Jacob L'okoli and EC (Election Petition Appeal No. 19 of 2011)
  • Ref. No. 2 of 2007 Christopher Mutikila Vs the Attorney General of United Republic of Tanzania, The Secretary General of EAC and others
  • Prof. Anyang Nyong & 10 Others v Attorney General of Kenya & 2 Others (Reference No. 1 of 2006)
  • Advocates Coalition for Development and Environment & Others Versus AG

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Agaba & 3 Others v The Attorney General & 11 Others (Election Petition 2 of 2022) [2024] UGHCCD 112 (16 July 2024)
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.