Wakilii

Bashaija Kazoora John v Electoral Commission & Anor (Mbarara HCT Election Pet. No. 04 of 2011)

High Court · [2011] UGHC 88 · 2011 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition challenging the result of parliamentary election for Mbarara Municipality
Decision
Election petition dismissed. The election of the 2nd Respondent as Member of Parliament for Mbarara Municipality upheld.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed the election petition challenging the result of the parliamentary election for Mbarara Municipality. While the court found that the Electoral Commission failed to fully comply with a prior court order prohibiting voters from Makenke Barracks (Kashari County) from voting in Mbarara Municipality, the non-compliance affected only six polling stations out of 99. The vote margin between the declared winner and the petitioner was such that even deducting all votes from the impugned stations would not affect the outcome. The non-compliance did not substantially affect the result and therefore did not justify nullifying the election.

Outcome

Election petition dismissed. The election of the 2nd Respondent as Member of Parliament for Mbarara Municipality upheld.

Facts

The petitioner challenged the election of the 2nd Respondent as MP for Mbarara Municipality held on 18 February 2011. Prior to the election, on 4 February 2011, the High Court had issued an order prohibiting voters from Makenke Army Barracks (located in Kashari County) from voting in Mbarara Municipality. The Electoral Commission issued a press release two days before polling dividing polling stations between Kashari County and Mbarara Municipality. The petitioner alleged that despite the court order, soldiers and civilians from Makenke Barracks voted in six polling stations in Lubiri Cell within Mbarara Municipality. The declared winner received 12,553 votes, the first runner-up 9,666 votes, and the petitioner 8,846 votes. The six impugned polling stations in Lubiri Cell recorded 1,625 votes total, with the 2nd Respondent receiving 1,228 votes and the petitioner 165 votes from those stations.

Issues

  1. Whether in the conduct of the elections of the directly elected Member of Parliament for Mbarara Municipality, there was disobedience of a Court Order and if so whether it amounted to contempt of court?
  2. Whether such contempt of Court as mentioned above is ground for the nullification of the election for the directly elected MP for Mbarara Municipality?
  3. Whether the 2nd Respondent was involved in any illegal practice under the Act?
  4. Whether the election for the directly elected MP of Mbarara Municipality conducted on 18 February 2011 was held in compliance with the National Electoral Laws?
  5. If not whether non-compliance with the national electoral laws affected the results of this election substantially?
  6. What remedies, if any, are available to the parties?

Orders

  • The petition is dismissed.
  • The 1st Respondent (Electoral Commission) shall bear all the costs of this petition.

Rules and key headnotes

Electoral Law — Standard and Burden of Proof — Degree of Proof in Election Petitions
In election petitions, the standard of proof is on the balance of probabilities, but the degree of proof is heightened. A petitioner must prove grounds to the satisfaction of the court with a reasonable degree of probability, though not as high as in criminal cases.
Electoral Law — Non-compliance with Electoral Laws — Scope of Electoral Laws
Non-compliance with electoral laws is not restricted to the Parliamentary Elections Act alone but includes all national laws enacted and recognized as enabling the handling of elections, including court orders which have the force of law and are sources of law.
Electoral Law — Grounds for Nullification — Substantiality Test
For an election to be nullified on grounds of non-compliance with electoral laws, there must be cogent evidence that the non-compliance affected the result of the election in a substantial manner. The court must evaluate the whole process to determine how it affected the result and assess the degree of the effect.
Electoral Law — Substantiality Test — Quantitative Analysis
Substantiality in election petitions refers to a quantitative analysis of scrutinizing the numbers in an election to assess whether these numbers had a considerable effect on the election result as a whole. Numbers are important, as are the conditions which produce those numbers.
Administrative Law — Contempt of Court — Requirements for Finding Contempt
For non-compliance with a court order to amount to contempt of court, there must be proof of conscious, willful disobedience with impunity. In respect of a civil order, the person accused must be given a right of hearing since a court order may be capable of one or more interpretations.
Constitutional Law — Substantive Justice — Application in Election Petitions
The doctrine of substantive justice is part of Uganda's constitutional jurisprudence. Courts should avoid getting bogged down by technicalities and should hear election petitions on their merits rather than dismiss them on preliminary objections where substantive justice requires.

Legislation cited (6)

Cases cited (9)

  • Kiiza Besigye v Electoral Commission and Yoweri Kaguta Museveni (Presidential Election Petition No. 1 of 2006)
  • Besigye v Museveni Kaguta & Anor (Election Petition No. 1 of 2001)
  • Col. Rtd Dr. Besigye Kiiza v M.Y. Kaguta & Electoral Commission (Election Petition No. 1 of 2001)
  • Miller v Minister of Pensions (1974) 2 all E.R 372
  • Chris Bigirwa Rutaremwa v Godfrey Ngobi Uni-Engineers and Co. (HCT-00-CC-CS 247/2003)
  • Singura Robert Rwomushojwa and 2 others v Electoral Commission (HCT-05-CV-MA-0160-2010)
  • Joy Kabatsi Kafura v Anifa Kawooya Bangirana & Anor (Election Petition Appeal No. 25 of 2007)
  • Kizza Besigye v Yoweri Kaguta Election
  • Amama Mbabazi & Electoral Commission v Musinguzi Garuga James (Election Petition Appeal No. 12 of 2002)

Full judgment

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

Bashaija Kazoora John Vs Electoral Commission & Anor (Mbarara HCT Election Pet. No. 04 of 2011) [2011] UGHC 88 (7 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.