Wakilii

Akugizibwe v Muhumuza & 2 Ors (Election Petition Appeal No. 34 of 2016)

Court of Appeal · [2017] UGCA 127 · 2017 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition appeal from High Court decision annulling parliamentary election, with cross-appeal by respondent
Decision
Appeal allowed; High Court decision annulling the election set aside; appellant confirmed as duly elected member of Parliament; cross-appeal dismissed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal allowed the appeal and dismissed the cross-appeal. It held that the trial Judge committed a fatal error by relying on the evidence of a non-existent witness, thereby appearing to descend into the arena contrary to Article 28. The Court found that tallying had in fact been completed and that Article 68(3), which concerns rights at polling stations, was not violated by events at the tally centre. Non-compliance found at only two of ninety-one polling stations did not affect the results in a substantial manner. Possession of a national ID did not prove a voter was denied the right to vote. The Court set aside the High Court decision and confirmed the appellant as the duly elected member of Parliament.

Outcome

Appeal allowed; High Court decision annulling the election set aside; appellant confirmed as duly elected member of Parliament; cross-appeal dismissed

Facts

The appellant and the first respondent were candidates in the parliamentary election for Mwenge County North Constituency, Kyenjojo District, held on 18 February 2016. The Electoral Commission gazetted the appellant as winner with 19,144 votes against the first respondent's 18,426 votes, a margin of 718 votes. The first respondent petitioned the High Court, which annulled the election and ordered a fresh poll, finding non-compliance affecting results substantially and a violation of Article 68(3). Central issues concerned tallying: the Returning Officer completed tallying at all polling stations but a system breakdown interrupted printing and transmission of results, which were later declared in Kampala. The trial Judge relied on the evidence of a witness, Ategeka Wilson, who did not exist and swore no affidavit. Allegations of ballot stuffing and denial of the right to vote were raised at Kitega and Kagoma polling stations. Alleged disenfranchised voters relied only on national IDs. The appellant appealed and the respondent cross-appealed seeking to be declared winner.

Issues

  1. Whether affidavits filed in support of the petition after expiry of the time to file an election petition were properly filed.
  2. Whether the trial Judge erred in finding there was no tally sheet as evidence that tallying was completed.
  3. Whether Article 68(3) of the Constitution was violated by the manner in which tallying was conducted.
  4. Whether the trial Judge erred in relying on the evidence of a non-existent witness and thereby descended into the arena.
  5. Whether there was non-compliance with electoral law that affected the results of the election in a substantial manner.
  6. Whether the trial Judge properly applied the burden of proof regarding voters allegedly denied the right to vote.
  7. Whether the cross-appellant respondent should have been declared the winner of the election.
  8. How costs should be borne in the election litigation.

Orders

  • Appeal succeeds.
  • Cross-Appeal fails and is dismissed.
  • Decision and orders of the lower court are set aside.
  • The appellant is confirmed as the duly elected member of Parliament for Mwenge County North Constituency, Kyenjojo District.
  • Each party to pay their own costs.

Rules and key headnotes

Electoral Law — Judicial Impartiality — Reliance on Evidence of a Non-Existent Witness
A trial court that relies on the evidence of a non-existent witness to annul an election commits a fatal error and appears to descend into the arena in favour of one party, contravening the right to a fair hearing under Article 28 of the Constitution, which is non-derogable under Article 44(c).
Electoral Law — Article 68(3) — Scope Limited to Polling Stations Not Tally Centres
Article 68(3) of the Constitution guarantees a candidate or agent's right to be present at a polling station during voting, counting and ascertaining of results; it does not extend to events at a tally centre, so irregularities in tallying do not constitute a violation of Article 68(3).
Electoral Law — Substantiality — Non-Compliance Must Affect Results Substantially
Under section 61(a) of the Parliamentary Elections Act, an election is not to be annulled unless non-compliance both breached the law and affected the results in a substantial manner; non-compliance found at only two of ninety-one polling stations, absent proper application of qualitative and quantitative tests, does not justify nullification.
Electoral Law — Burden of Proof — Proof of Denial of Right to Vote
The burden of proof in an election petition lies on the petitioner to a standard slightly above the balance of probabilities; mere possession of a national identity card does not prove that a person was a registered voter denied the right to vote, and tangible evidence such as the voters' register is required.
Electoral Law — Filing of Affidavits — Time Limits for Supporting Evidence
It is sufficient compliance with the law for a petitioner to file, within the statutory thirty days, the petition together with the accompanying affidavit; other evidential affidavits relied upon may be filed thereafter, as the law does not require all affidavits to be filed within the restricted time.
Electoral Law — Costs — Discretion in Election Litigation
In election litigation of national importance, courts should carefully consider costs so as not to deter aggrieved parties from seeking redress; where non-compliance was largely caused by the Electoral Commission, no candidate should be condemned to pay costs.

Legislation cited (16)

Cases cited (15)

  • Ngoma Ngime v The Electoral Commission and Winnie Byanyima (Election Petition Appeal No. 11 of 2002)
  • Makula International Ltd v His Eminence Cardinal Emmanuel Nsubuga & Anor [1982] HCB 11
  • Brian Kaggwa v Peter Muramira (Civil Appeal No. 26 of 2009)
  • Osuana v the State (210) LPELR/ CA/OW/ 150/ 2009
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Pandya v R [1957] EA 336
  • Bogere Moses and Another v. Uganda, Supreme Court Criminal Appeal No. 1 of
  • Mugema Peter v Mudiabole Abedi Nasser (Election Petition Appeal No. 30 of 2011)
  • Col. (Rtd) Dr. Kizza Besigye v Museveni Yoweri Kaguta and the Electoral Commission (Presidential Election Petition No. 1 of 2001)
  • Matsiko Winfred Kyomuhangi v J. Babihuga (Election Petition No. 9 of 2002)
  • Nangiro John v Loroti (Election Petition Appeal No. 26 of 2006)
  • Amama Mbabazi v Yoweri Kaguta Museveni and 2 Others (Election Petition No. 1 of 2016)
  • Borough of Hackney v Reed [1874] XXXI L.J. 69
  • Paul Semwogerere and Another v Attorney General (Civil Application No. 5 of 2001)
  • Kadama Mwogezaddembe v Gagawala Wambuzi (Election Petition No. 2 of 2001)

Full judgment

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Akugizibwe Vs Muhumuza & 2 Ors (Election Petition Appeal No. 34 of 2016) [2017] UGCA 127 (23 January 2017)
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.