Wakilii

Babirye v Bukenya (Election Petition No. 2 of 2021)

High Court · [2021] UGHCEP 35 · 2021 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Petition challenging the outcome of parliamentary election for Bukuya County, Kasanda District, held on 14 January 2021
Decision
Petition dismissed; election of 1st respondent as member of parliament for Bukuya County upheld

Observed later treatment

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Holding

Held that although there was non-compliance with electoral laws in the conduct of the parliamentary election for Bukuya County, specifically the arrest of ten of the petitioner's polling agents and irregularities at three polling stations, such non-compliance did not affect the result of the election in a substantial manner. The petitioner failed to prove allegations of bribery or widespread intimidation to the required standard. The winner's margin of 9,143 votes was too large to be substantially dented by the proven minor irregularities. Petition dismissed with costs to the respondents.

Outcome

Petition dismissed; election of 1st respondent as member of parliament for Bukuya County upheld

Facts

The petitioner secured 6,047 votes in the 14 January 2021 parliamentary election for Bukuya County, Kasanda District. The 1st respondent was declared winner with 15,190 votes. The petitioner challenged the outcome alleging manipulation of votes, ballot stuffing, falsification of results in 36 polling stations, grave errors in counting and tallying, bribery by the 1st respondent, violence and intimidation targeting her personally and her agents, and failure by the Electoral Commission to conduct the election in accordance with electoral laws. On the night of 13 January 2021, ten of the petitioner's polling agents were arrested from her home in Mundade and from a guest house in Bukuya Town and detained at Bukuya Police Station, preventing them from manning polling stations on election day. The petitioner hurriedly arranged replacements. Her agents signed Declaration of Results forms at most polling stations without complaint.

Issues

  1. Whether there was non-compliance with the electoral laws in the conduct of the election
  2. Whether there were any illegal practices committed by the 1st respondent personally or by his agents with his knowledge and consent or approval
  3. Whether there were any electoral offences committed by the respondents or their agents
  4. If so, did the non-compliance and illegal practices substantially affect the result of the election
  5. What remedies accrue to the parties

Orders

  • Petition dismissed.
  • Affidavit of Ssewikyanga Moses expunged from the record; petitioner to bear costs thereby.
  • First two paragraphs of Nakiyemba Jalia's affidavits expunged from the record.
  • Affidavits of Mugisha Simon and Tumwesigye Emmanuel expunged from the record; Electoral Commission to bear costs thereby.
  • All declarations and prayers sought in the petition denied.
  • Costs of the petition awarded to the respondents.

Rules and key headnotes

Electoral Law — Burden of Proof — Standard of Proof in Election Petitions
In election petitions, the burden of proof lies with the petitioner and remains with the petitioner throughout the proceedings. Under Section 61 of the Parliamentary Elections Act, the petitioner must discharge that burden to the satisfaction of the Court, on a balance of probabilities. For illegal practices such as bribery, the standard is placed at a higher bar than that applied in ordinary civil cases, though not to the level of proof beyond reasonable doubt. The evidence must be cogent—compelling, clear, logical and convincing.
Electoral Law — Grounds for Setting Aside an Election — Non-Compliance with Electoral Laws
An election shall be set aside on grounds of non-compliance with electoral laws only if the court is satisfied that there was failure to conduct the election in accordance with the principles laid down in the Parliamentary Elections Act and that the non-compliance and failure affected the result of the election in a substantial manner. The court must investigate the legitimacy of the entire election process covering the pre, present and immediate post-election period, and must determine whether a valid election has been held, having due regard to the rights of voters.
Electoral Law — Polling Agents — Effect of Polling Agent Signing Declaration of Results Forms
A candidate is bound by the actions of their polling agents, including the signing of Declaration of Results forms. When an agent signs the form, the agent is confirming to the candidate that the correct result is what transpired at the polling station. The agent's signature is an indication that the agent is in agreement with all the processes before and during that endorsement. Failure by the agent to lodge a complaint at the polling station binds the candidate.
Electoral Law — Bribery — Proof of the Offence of Bribery
The offence of bribery under Section 68 of the Parliamentary Elections Act has three ingredients: (1) a gift or money was given to a registered voter; (2) the gift was given by a candidate personally or through their agent with the candidate's knowledge, consent and approval; and (3) it was given with the intention of inducing the person to vote for a particular candidate or in a certain manner. The offence is considered grave and requires cogent evidence that is truthful and free from inconsistencies or contradictions. An allegation of bribery must be proved by unequivocal evidence and not mere suspicion. Where the evidence is partisan, the court will look for cogent, independent evidence.
Electoral Law — Substantiality Test — Quantitative and Qualitative Approaches
In assessing whether non-compliance affected the result of an election in a substantial manner, the court must evaluate the whole process of the election using both quantitative and qualitative approaches. The quantitative approach takes a numerical approach to determine whether the non-compliance significantly affected the results. The qualitative approach looks at the overall process of the election, especially voter information, the process of counting, tallying and declaring results, and the ability of each voter to cast their vote. Numbers are useful in making adjustments for irregularities, but the crucial point is that there must be cogent evidence, direct or circumstantial, to establish not only the effect of non-compliance but to satisfy the court that the effect on the election was substantial.
Evidence — Illiterates Protection Act — Mandatory Requirements for Documents Translated to Illiterate Deponents
Under Sections 2 and 3 of the Illiterates Protection Act, any person who writes a document for, at the request, or on behalf of an illiterate, or who acts as witness to the mark of an illiterate on any document, must include their name and full address. Prior to the illiterate appending their mark, the document must be read over and explained to them. The person who translated the document must include a certificate confirming that the translation was made in accordance with the law. The provisions are mandatory and designed to protect illiterate persons by ensuring that their oaths are not misinterpreted or changed. Failure to comply with these requirements renders the affidavit defective.
Electoral Law — Intimidation and Violence — Effect on Election Result
For intimidation and violence to substantially affect an election result, evidence must be adduced to show that such intimidation was relentless, widespread and effective throughout the constituency and for the duration of the campaigns and voting. Isolated incidents of intimidation, even if proven, will not substantially affect the result unless they trickle down or across the constituency to influence the vote or final tally. A candidate must prove that the intimidation prevented voters from exercising their right to vote for the candidate of their choice.

Legislation cited (18)

Cases cited (35)

  • Mukasa Anthony Harris v Dr Bayiga Michael Phillip Lulume (Supreme Court Election Appeal No. 18 of 2007)
  • Paul Mwiru v Hon Igeme Nathan Nabeta Samson and 2 Others (Election Petition Appeal No. 6 of 2011)
  • Helen Adoa & Electoral Commission v Alice Alaso (Election Petition Appeal No. 54 & 57 of 2016)
  • Ernest Kiiza v Kabakumba Masiko (Election Petition Appeal No. 44 of 2016)
  • Col (Rtd) Dr Kiiza Besigye v Museveni Yoweri & Another [2001-2005] 3 HCB 4
  • Kiiza Besigye v Yoweri Kaguta Museveni (Presidential Election Petition No. 1 of 2001)
  • Kyakulaga & Electoral Commission v Waguma (Election Petition Appeal No. 15 & 20 of 2016)
  • Frederick N Mbaghadi & Anor v Frank Wilson Nabwiso (Election Petition Appeal No. 14 & 16 of 2011)
  • Kasaala Growers Co-Operative Society v Kakooza & Anor (Civil Application No. 19 of 2010)
  • Rtd Col Dr Kizza Besigye v Electoral Commission & Yoweri K Museveni (Presidential Election Petition No. 1 of 2006)
  • Ngoma Ngime v Electoral Commission & Hon Winnie Byanyima (Election Petition No. 11 of 2002)
  • Tumwesigye Fred v Museveni William & Electoral Commission (Election Petition No. 3 of 2021)
  • Hon George Patrick Kasaijja v Fred Ngobi Gume & Electoral Commission (Election Petition Appeal No. 68 of 2018)
  • Tikens Francis & Anor v The Electoral Commission & 2 Ors (High Court Election Petition No. 1 of 2012)
  • Dr Bayigga MP Lulume v Mutebi David & Anor (Election Petition No. 14 of 2016)
  • Kabuusu Wagaba v Lwanga Timothy Mutekanga (Election Petition No. 15 of 2011)
  • Toolit Simon Akecha v Oulanyah Jacob L'Okori (Election Petition Appeal No. 19 of 2011)
  • Katutuntu Abdul v Kirunda Kivejinja Ali & Anor (Election Petition No. 7 of 2006)
  • Nabukeera Hussein Hanifa v Kusasira Peace Mubirr (Election Petition Appeal No. 72 of 2016)
  • Nakate Mary Annet v Babirye V Kadogo (Election Petition Appeal No. 89 of 2016)
  • Oyo Tayebwa v Basajjabalaba (Election Petition Appeal No. 13 of 2011)
  • Amuru & EC Vs Okello Okello (supra)
  • Bakaluba Peter Mukasa v Nambooze Betty Bakireke (Supreme Court Election Petition No. 4 of 2009)
  • Wanyoto Lydia Mutende v Electoral Commission & Nakayenze Connie Galiwango (Election Petition No. 2 of 2021)
  • Kwijuka Geofrey v Electoral Commission & Anor (Election Petition No. 7 of 2011)
  • Mbayo Jacob Robert v Talisonya Simon (Election Petition Appeal No. 2 of 2006)
  • Kasta Hussein Bukenya v Bukenya Balibaseka Gilbert & Electoral Commission (Election Petition No. 29 of 2011)
  • Kabuusu Moses Wababo v Lwaiga Timothy Mutekanga & Electoral Commission (Election Petition No. 11 of 2011)
  • Kyamadidi Mujuni Vincent v Ngabirano Charles & Electoral Commission (Election Petition Appeal No. 84 of 2016)
  • Buwembo Monday Kalule v Busulwa Atanansi & Electoral Commission (Election Petition No. 6 of 2021)
  • Amama Mbabazi v Yoweri Museveni (Election Petition No. 1 of 2016)
  • Kisirye v Bazigatirawo & Anor (Election Petition No. 8 of 2016)
  • Amoru Paul & Electoral Commission v Okello Okello JB (Election Petition Appeal No. 39 & 95 of 2016)
  • Babu Edward Francis v Elias Lukwago (Election Petition No. 10 of 2006)
  • Mbowe v Eliuffo (1967) EA 241

Full judgment

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

Babirye v Bukenya (Election Petition No. 2 of 2021) [2021] UGHCEP 35 (12 September 2021)
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