Buwembo v Busulwa Atanansi and Another (Election Petition No 032 of 2021)

Observed later treatment

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

By majority (Musoke and Obura JJA; Madrama JA dissenting), the Court of Appeal dismissed the appeal and upheld the first respondent's election as LC III Chairperson. The majority held the appellant failed to prove bribery, undue influence, intimidation, publication of a false statement, or substantial non-compliance to the satisfaction of the court. Madrama JA, dissenting, held that the standard of proof under section 139 of the Local Governments Act is proof on the balance of probabilities (read with section 61(3) of the Parliamentary Elections Act), that there is no rigid requirement of corroboration for bribery, and that the trial judge erred by applying a higher standard; he would have found bribery proved and nullified the election.

Outcome

Appeal dismissed by majority; the first respondent's election as LC III Chairperson upheld.

Facts

The appellant, the first respondent and three others contested the position of LC III Chairperson of Malangala Sub-county, Mityana District, in the Local Council elections held on 3 February 2021. The first respondent obtained 1361 votes and the appellant 1253 votes, and the first respondent was declared the winner. The appellant petitioned the High Court to nullify the election, alleging that it was riddled with violence, bribery, intimidation of voters, and false publication that he was dead. Evidence was led that the first respondent and persons alleged to be his agents (including Bijjampola and Sekasi) distributed money to persons lining up to vote and ferried voters, and that the appellant was assaulted on the eve of polling day during a curfew. The first respondent denied that the alleged perpetrators were his agents and denied consenting to or approving any illegal practices. The High Court dismissed the petition, and the appellant appealed on six grounds concerning the trial judge's evaluation of evidence.

Issues

1. What standard of proof applies to grounds for setting aside a local government election under section 139 of the Local Governments Act.
2. Whether the offence of bribery in an election petition requires corroboration and proof of a criminal standard.
3. Whether the first respondent committed the illegal practice or offence of bribery personally or through his agents with his knowledge, consent or approval.
4. Whether the first respondent published a false statement of the appellant's death contrary to section 148(2) of the Local Governments Act.
5. Whether violence committed during a curfew could be attributed to the first respondent or his agents so as to affect the election.

Orders

• By majority decision, the appeal is dismissed with costs to the respondents.
• The election of the 1st respondent as LC III Chairperson for Malangala Sub County in Mityana District is upheld.
• (Per Madrama JA, dissenting) The appeal would have partially succeeded, the election nullified, fresh elections ordered, and the judgment served on the DPP under section 140(2) of the Local Governments Act.

Rules and key headnotes

Legislation cited (15)

• Local Governments Act cap 243 s.139
• Local Governments Act cap 243 s.147
• Local Governments Act cap 243 s.148
• Local Governments Act cap 243 s.140(2)
• Local Governments Act cap 243 s.172
• Local Governments Act cap 243 s.1(q)
• Parliamentary Elections Act 2005 s.61
• Parliamentary Elections Act 2005 s.61(3)
• Parliamentary Elections Act 2005 s.62(3)
• Presidential Elections Act 2005 s.59(6)
• Presidential Elections Act 2005 s.58(6)(c)
• Parliamentary Elections (Interim Provisions) Statute 1996 s.91
• Oaths Act cap 19 s.10
• Copyright and Neighbouring Rights Act 2006 s.2
• Children and Young Persons Act 1933 s.38

Cases cited (11)

• Kamba Saleh Moses v Namuyangu (Election Petition Appeal No. 027 of 2011)
• Masiko Winifred Komuhangi v Babihuga J. Winnie (Election Petition Appeal No. 9 of 2002)
• Achieng Sarah and Electoral Commission v Ochwo Nyakecho Keziah (Election Petition Appeal No. 39 of 2012)
• Director of Public Prosecutions v Hester [1972] 3 All ER 1056
• Director of Public Prosecutions v Kilbourne [1973] 1 All ER 440
• Odo Tayebwa v Bassajjabalaba Nasser and the Electoral Commission (Election Petition Appeal No. 013 of 2011)
• Lanyero Sarah Ochieng and Electoral Commission v Lanyero Molly (Election Petition Appeal No. 032 of 2011)
• Besigye Kizza v Museveni Yoweri Kaguta and The Electoral Commission (Election Petition No. 1 of 2001)
• Besigye Kizza v Museveni Yoweri Kaguta and The Electoral Commission (Election Petition No. 1 of 2001)
• Blackburn Case, Potter & Fielden v Hornby Fielden (1869) 20 L.T.
• Ernest Kiiza Vs. Kabakumba L Masiko (supra)

Cases citing this judgment (1)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

• Buwembo v Busulwa and Another (Election Petition Appeal No. 33 of 2021)

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