Wakilii

Akidi Margaret v Adong Lilly & EC (Gulu Election Pet. No. 004 of 2011)

High Court · [2011] UGHC 94 · 2011 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition challenging the declaration of results for the Woman Member of Parliament for Nwoya District in the general elections held on 18 February 2011
Decision
Petition dismissed; election of 1st Respondent as Woman Member of Parliament for Nwoya District upheld

Observed later treatment

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Holding

The High Court dismissed the election petition challenging the declaration of the 1st Respondent as Woman Member of Parliament for Nwoya District. The petitioner failed to prove on the balance of probabilities that there was non-compliance with electoral laws or that any proven irregularities affected the results in a substantial manner. The court found no evidence of illegal practices or electoral offences committed by the 1st Respondent. The court held that the margin of victory (1,731 votes) could not be overcome even if all invalid and spoilt votes were attributed to the petitioner. The court also held that failure to cite the specific enabling provision (s.61(4)) and citing obsolete procedural rules were not fatal to the petition, as these errors could be cured under Article 126(2)(e) of the Constitution.

Outcome

Petition dismissed; election of 1st Respondent as Woman Member of Parliament for Nwoya District upheld

Facts

The petitioner contested for Woman Member of Parliament for Nwoya District in the general elections held on 18 February 2011. The 1st Respondent was declared winner with 7,253 votes against the petitioner's 5,522 votes, a margin of 1,731 votes. The petitioner alleged multiple electoral irregularities including vote stuffing, vote buying, voting by non-registered persons, rejection of valid votes, non-display of results, ballot papers being found outside polling stations, unauthorized relocation of polling stations, intimidation of voters, and bribery. The petitioner claimed these irregularities affected the results substantially and sought annulment of the election and a recount. The 2nd Respondent explained that ballot papers were blown away by a whirlwind at Kulu-Amuka polling station and recovered by the public. The 1st Respondent denied all allegations of electoral malpractice. There were 912 invalid votes and 352 spoilt votes, totalling 1,264 votes.

Issues

  1. Whether the election of the Woman Member of Parliament for Nwoya district was conducted in non-compliance with the provisions of the electoral laws.
  2. Whether the non-compliance (if any) affected the result of the election in a substantial manner.
  3. Whether an illegal practice or offence was committed in connection with the 2011 Parliamentary election for Nwoya Woman Member of Parliament by the 1st Respondent.
  4. Whether this case is fit and proper for a recount to be ordered.
  5. Whether the affidavit in support of the 1st Respondent's reply offends the Commissioners for Oaths (Advocates) Act and should be struck off.

Orders

  • Petition dismissed.
  • Costs awarded to the Respondents.
  • Certificate for two Counsel granted.
  • Certificate of complexity refused.

Rules and key headnotes

Electoral Law — Election Petitions — Burden and Standard of Proof — Balance of Probabilities
The statutory burden of proof in an election petition lies on the petitioner, and the standard is on the balance of probabilities.
Electoral Law — Election Petitions — Pleadings — Failure to Cite Specific Statutory Provision — Whether Fatal
Failure to cite the specific enabling provision (s.61(4) of the Parliamentary Elections Act) is not fatal to an election petition where the petition clearly sets out the grounds of complaint in compliance with the Constitution and relevant electoral laws, and the allegations are supported by affidavit evidence putting the respondents on notice.
Electoral Law — Election Petitions — Procedural Rules — Citation of Obsolete Rules — Whether Fatal
Citing obsolete procedural rules (Election Petition Rules 1999 instead of Parliamentary Elections (Election Petitions) Rules 2005) constitutes negligence of an advocate which should rarely be visited on an ignorant litigant. Such error can be cured by Article 126(2)(e) of the Constitution to allow the court to determine the substantial rights of the parties.
Electoral Law — Non-Compliance with Electoral Laws — Display of Results — Directory Provision
The provisions regarding display of Declaration of Results Forms are directory and not mandatory. Non-compliance with them is not fatal to the final results.
Electoral Law — Illegal Practices — Bribery — Effect on Results — Section 63(3) Parliamentary Elections Act
Before an election is annulled for bribery, the court must consider whether the acts complained of are substantial. Under Section 63(3) of the Parliamentary Elections Act, where bribery is proved, the vote given by that person shall be deducted from the total number of votes given for the candidate. The election should not be annulled for isolated cases of bribery that do not substantially affect the result.
Electoral Law — Recount — Grounds for Ordering — Section 63(5) Parliamentary Elections Act
Under Section 63(5) of the Parliamentary Elections Act, the High Court can order a recount during trial only if satisfied that there were irregularities on such a scale as to warrant entering the ballot boxes. Where no such irregularities are proved and the integrity of the ballot boxes cannot be established, a recount should not be ordered.
Constitutional Law — East African Community Treaty — Binding Nature of East African Court of Justice Decisions
All states parties to the East African Community Treaty are bound by the decisions of the East African Court of Justice in respect of articles of the Treaty such as Article 123 which provides for the development and consolidation of democracy, the rule of law, and respect for human rights and fundamental freedoms. Decisions of the EACJ are binding and not merely persuasive.

Legislation cited (21)

Cases cited (4)

  • Prof. Peter Anyang'Nyongo & others v Attorney General of Kenya & Others (East African Court of Justice Reference No. 1 of 2006)
  • Hon. Sitenda Sebalu v The Secretary General of the EAC & Others (EACJ Reference No. 1 of 2011)
  • Sitenda Sebalu v Sam Njuba (Election Appeal No. 6 of 2009)
  • Joy Kabatsi v Anifa Kawoya

Full judgment

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

Akidi Margaret Vs Adong Lilly & EC (Gulu Election Pet. No. 004 of 2011) [2011] UGHC 94 (21 July 2011)
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.