Wakilii

Alaso v Electoral Commission and Anor (HCT-00-CV-EP 5 of 2016)

High Court · [2016] UGHCEP 33 · 2016 Petition Granted — Election Nullified AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition challenging the result of the Serere District Woman Member of Parliament election held on 18 February 2016
Decision
Election nullified and fresh elections ordered for Serere District Woman Member of Parliament

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court nullified the Serere District Woman MP election, finding that the 2nd Respondent committed illegal practices including use of a government ambulance for campaigns, bribery through distribution of items, and that the Electoral Commission failed to address complaints and ensure proper conduct. Serious irregularities in ballot accounting, harassment of the petitioner's agents, and the donation of an ambulance 16 days before polling with the candidate's branding constituted breaches of the Parliamentary Elections Act that affected the result substantially.

Outcome

Election nullified and fresh elections ordered for Serere District Woman Member of Parliament

Facts

On 18 February 2016, elections were held for Serere District Woman MP among three candidates. The 2nd Respondent won by a margin of 16,111 votes over the Petitioner. The Petitioner challenged the election alleging non-compliance with electoral laws and commission of illegal practices. A preliminary objection struck out 47 of the Petitioner's affidavits for non-compliance with the Illiterates Protection Act and Oaths Act, leaving only 6 affidavits. Evidence established that the 2nd Respondent donated a government ambulance to the district on 2 February 2016, 16 days before the election, with her campaign posters and branding on it, and used it at campaign rallies with the knowledge and approval of district officials. The Petitioner's campaign agents were arrested and harassed. Distribution of money, sugar, salt, and soap to voters was proven through the testimony of Cephas Mukhwana, a hired bodyguard who participated in the distributions and was paid UGX 200,000. Serious accounting irregularities emerged in ballot papers, with thousands of unexplained excess unused ballot papers at multiple polling stations. The Returning Officer failed to investigate complaints.

Issues

  1. Whether or not there was non-compliance with the electoral laws
  2. Whether there was failure to conduct the election in accordance with the principles laid down in the provisions of the electoral laws
  3. Whether the non-compliance affected the results of the election in a substantial manner
  4. Whether the 2nd Respondent or her agents, with her knowledge, consent or approval committed illegal acts/offences
  5. Whether the Petitioner is entitled to the remedies sought

Orders

  • Election nullified.
  • The 2nd Respondent is directed to arrange and hold fresh elections for Woman Member of Parliament for Serere district.
  • Both Respondents shall be liable to pay costs in equal amounts.
  • Certificate for two counsel granted to the Petitioner's lawyers.

Rules and key headnotes

Evidence — Affidavits in Election Petitions — Compliance with Illiterates Protection Act and Oaths Act
Affidavits sworn by illiterate deponents must comply with Section 3 of the Illiterates Protection Act by stating the true and full name and address of the writer, and with Section 6 of the Oaths Act by identifying the Commissioner for Oaths who administered the oath. Where affidavits fail to state the writer's full address or identify the commissioner, they are fatally defective and will be struck out, as such defects go beyond mere form and cannot be cured by Article 126 of the Constitution.
Standard of Proof in Election Petitions — Balance of Probabilities
In an election petition, the petitioner bears the burden of proving that irregularities, malpractices, or non-compliance with electoral laws were committed and affected the results substantially. The standard of proof is on a balance of probabilities but slightly higher than the ordinary civil standard, though lower than the criminal standard of beyond reasonable doubt.
Illegal Practices — Use of Government Resources in Campaigns — Parliamentary Elections Act s.25(1)
Section 25(1) of the Parliamentary Elections Act prohibits candidates from using government or public resources for campaign purposes unless authorized by law. The donation and use of a government ambulance bearing a candidate's posters and branding at campaign rallies, 16 days before polling day, with the full knowledge and approval of the candidate and district officials, constitutes an illegal practice and breach of the Act.
Bribery — Donations During Campaign Period — Parliamentary Elections Act s.68(7) and (8)
A candidate or agent of a candidate shall not carry on fundraising or giving donations during the campaign period. Honoring a pledge to donate an ambulance made close to a year earlier, by handing it over 16 days before the election, raises doubts as to bonafides and constitutes an illegal practice when the donation coincides with the campaign period and is intended to corruptly influence voters.
Bribery — Elements of the Offence — Parliamentary Elections Act s.68(1)
The offence of bribery under Section 68(1) of the Parliamentary Elections Act requires proof that: (a) a gift was given to a voter, (b) the gift was given by a candidate or agent, and (c) it was given with the intention of inducing the person to vote or refrain from voting. Where evidence establishes distribution of money, sugar, salt, and soap across a constituency by persons working for a candidate, with the candidate's knowledge, the elements of bribery are satisfied.
Non-Compliance by Electoral Commission — Failure to Investigate Complaints
The Returning Officer has a duty to ensure an even and impartial electoral process. Where a returning officer receives complaints of use of government vehicles for campaigns, harassment of a candidate, and destruction of posters, and takes no action to investigate or address those complaints, this constitutes non-compliance with electoral laws and breach of the officer's responsibilities under the Parliamentary Elections Act.
Nullification of Elections — Grounds under Parliamentary Elections Act s.61(1)(c)
Under Section 61(1)(c) of the Parliamentary Elections Act, an election shall be set aside if proved to the satisfaction of the court that an illegal practice or offence under the Act was committed in connection with the election by the candidate personally or with their knowledge, consent, or approval. Where a candidate personally uses government property for campaigns with full knowledge and approval, and illegal practices including bribery are committed by agents, the election will be nullified.

Legislation cited (11)

Cases cited (9)

  • Mukasa Anthony Harris v Dr Bayiga Michael Lulume (Supreme Court Civil Appeal No. 18 of 2007)
  • Matsiko Winfred Komugangi v Babihuga Winnie (Election Petition Appeal No. 9 of 2009)
  • Kasaala Growers Co-operative Society v Kakooza Jonathan and Anor (Supreme Court Civil Appeal No. 19 of 2010)
  • Ngoma Ngime v Electoral Commission and Anor (Court of Appeal Election Appeal No. 11 of 2002)
  • Tiken Francis and Anor v Electoral Commission and 2 Others (Election Petition No. 01 of 2012)
  • Col (Rtd) Kizza Besigye v Museveni Yoweri Kaguta and Anor (Supreme Court Election Petition No. 01 of 2001)
  • Achieng Sarah Opendi and Anor v Ochwo Nyakecho (Court of Appeal Election Petition Appeal No. 39 of 2011)
  • Odo Tayebwa v Nasser Basajabalaba and Anor (Election Appeal No. 13 of 2001)
  • Fred Badda and Anor v Prof Muyanda Mutebi (Election Petition Appeal No. 25 of 2006)

Full judgment

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

Alaso v Electoral Commission and Anor (HCT-00-CV-EP 5 of 2016) [2016] UGHCEP 33 (25 July 2016)
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.