Wakilii

Businge Fred Police v Kithende Kalibogha A. and Another (HCT - 01 - CV - EP - 0005 of 2006) (HCT - 01 - CV - EP - 0005 of 2006)

High Court · [2006] UGHC 38 · 2006 Petition Granted — Election Annulled AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition challenging parliamentary election result for Bukonzo East constituency
Decision
Election annulled and seat declared vacant

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court found that the 1st respondent committed illegal practices of bribery personally and through his agents with his knowledge and consent, by giving money to voters beyond what was permissible under the Parliamentary Elections Act. The court held that money given as cash to voters could not be justified as refreshments or food under s.68(3) of the Act. While there was non-compliance with election laws regarding custody of election materials, this did not affect the results substantially. The election was annulled on the basis of proven bribery.

Outcome

Election annulled and seat declared vacant

Facts

The petitioner and 1st respondent were among six candidates in the February 2006 parliamentary elections for Bukonzo East constituency in Kasese district. The Electoral Commission declared the 1st respondent the winner. The petitioner challenged the election alleging bribery of voters, sectarian campaigning, disenfranchisement, and irregularities in ballot custody. A recount was attempted but failed because 11 ballot boxes were found unsealed or tampered with. Evidence showed that the 1st respondent and his agents, including Dominic Kambere, gave money to voters at various campaign meetings. At one meeting at Kisinga Trading Centre, each participant received shs 2,000 ostensibly as lunch allowance, though the meeting occurred late afternoon and the amount far exceeded the cost of a meal. Similar incidents occurred at the home of Kasasura where shs 60,000 was distributed to 68 attendees, and at other locations. The 1st respondent admitted in cross-examination that he routinely provided cash to voters at campaign meetings.

Issues

  1. Whether an illegal practice or election offence was committed by the 1st respondent personally or by his agents with his knowledge and consent or approval in connection with this election.
  2. Whether there was non-compliance with and failure to conduct the elections in accordance with the provisions and principles laid down in the Parliamentary Elections Act.
  3. Whether the non-compliance and failure, if any, affected the results of the election in a substantial manner.
  4. What remedies are available to the parties.

Orders

  • The election of the 1st respondent as Member of Parliament for Bukonzo East constituency is hereby set aside.
  • The election is hereby annulled.
  • The seat of Member of Parliament for Bukonzo East constituency is hereby declared vacant.
  • Costs awarded to the petitioner against the respondents to the extent of 50%.
  • Certificate of two Counsel awarded.

Rules and key headnotes

Electoral Law — Bribery — Giving money to voters as 'lunch allowance' — Whether permissible under Parliamentary Elections Act s.68(3)
The Parliamentary Elections Act s.68(3) permits the provision of refreshments or food at a candidate's campaign planning and organisation meeting as a legitimate election expense, but does not permit the giving of money in lieu of refreshments or food. Money cannot fall within the meaning of 'refreshments or food' and the giving of money was not specifically provided for in the law to avoid the real possibility of abuse.
Electoral Law — Bribery — Ingredients of the offence
The ingredients of bribery under the Parliamentary Elections Act are: (i) that a gift was given to a voter; (ii) the gift was given by a candidate or by his agent; and (iii) it was given with the intention of inducing the person to vote.
Electoral Law — Setting aside elections — Standard for illegal practices
Under s.61(1)(c) of the Parliamentary Elections Act, even a single proven illegal practice or offence committed by a candidate personally or by his agents with his knowledge and consent or approval is sufficient to set aside an election. The provision does not require a multiplicity of illegal practices.
Electoral Law — Agency — Candidate's liability for acts of agents
A candidate is liable for illegal practices committed by his agents only when they are committed with his knowledge and consent or approval. The wording of s.61(1)(c) of the Parliamentary Elections Act is clear and unambiguous in requiring the candidate's knowledge and consent or approval, thereby modifying the general principles of the law of agency.
Electoral Law — Recounting of votes — Effect of unsealed ballot boxes
Where ballot boxes presented for recount are found to be open or unsealed, the purposes of the recount are not achievable as prima facie the evidence would have been tampered with and rendered useless. To conduct a recount where some ballot boxes have been found open is an abuse of court process and amounts to exercising jurisdiction with material irregularity so fundamental that it vitiates the entire process of conducting a valid recount. Any evidence arising from such a purported recount cannot be considered by the court for determining an election petition.
Electoral Law — Non-compliance — Effect on election results
For non-compliance with the Parliamentary Elections Act to set aside an election under s.61(1)(a), it must be proved on a balance of probabilities that the non-compliance affected the results in a substantial manner. The non-compliance must be calculated to really influence the result in a significant manner. This does not mean the non-compliance must be such as would lead to a change in the overall result; rather, it means the votes obtained would have been different in a substantial manner if it were not for the non-compliance.
Evidence — Affidavits — Formal requirements for validity
An affidavit which is not dated is not an affidavit in law as it does not satisfy the requirements of the jurat under s.6 of the Oaths Act. That section mandatorily requires every Commissioner for Oaths before whom any oath or affidavit is taken or made to state truly in the jurat at what place and on what date the oath or affidavit is taken or made. Failure to comply with this legal requirement invalidates the affidavit.

Legislation cited (18)

Cases cited (7)

  • Byanyima Winnie v Ngoma Ngime (Civil Revision No. 0009 of 2001)
  • Tirwomwe Spencer Patrick v Nduhuura Richard & Another (EP No. 4 of 2001)
  • Col. (Rtd.) Dr. Besigye Kizza v Museveni Yoweri Kaguta & Another (SC EP No. 1 of 2001)
  • Patick Mutono Lodoi & Another v Dr. Stephen Malinga (Mbale EP No. 6 of 2001)
  • Amama Mbabazi & Another v Musinguzi Garuga (C.A. EP No. 12 of 2002)
  • Baguma Robert v Electoral Commission & Another (Fort Portal EP No. 10 of 2006)
  • Lolol Paul v Hon. Lolem Micah and The Electoral Commission (Mbale EP No. 2/2001)

Full judgment

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

Businge Fred Police v Kithende Kalibogha A. and Another (HCT - 01 - CV - EP - 0005 of 2006) (HCT - 01 - CV - EP - 0005 of 2006) [2006] UGHC 38 (15 September 2006)
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.