Wakilii

Chelangat v The Electral Commission & Another (Election Petition 6 of 2021)

High Court · [2021] UGHC 70 · 2021 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition challenging the validity of the 2nd Respondent's election as woman member of Parliament for Bukwo district
Decision
Petition dismissed with costs to the Respondents

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Holding

The High Court dismissed the election petition challenging the validity of the 2nd Respondent's election as woman member of Parliament for Bukwo district. The court found that the Petitioner failed to prove non-compliance with electoral laws through admissible evidence, as uncertified declaration forms could not be relied upon. Minor errors in recording data at three polling stations did not affect the election results in a substantial manner, leaving the 2nd Respondent with a winning margin of 447 votes. The Petitioner also failed to prove allegations of bribery and multiple voting with credible independent evidence.

Outcome

Petition dismissed with costs to the Respondents

Facts

The Petitioner, Ms. Tete Chelangat Everline, contested for woman member of Parliament for Bukwo district in the elections held on 14 January 2021. The Electoral Commission declared the 2nd Respondent, Ms. Chemutai Everlyn, winner with 16,603 votes against the Petitioner's 15,585 votes. The Petitioner challenged the election validity, alleging that presiding officers cancelled, altered and changed results on declaration forms at several polling stations, connived with the 2nd Respondent to procure prohibited persons to vote, facilitated impersonation and multiple voting, and that the 2nd Respondent engaged in voter bribery. The Petitioner led evidence through 18 affidavits, while the 1st Respondent filed 15 affidavits and the 2nd Respondent filed 15 affidavits in opposition. The court found minor errors in recording data at Kapkoloswo, Kokorwo and Matimbei polling stations but no evidence of systematic electoral malpractice.

Issues

  1. Whether the Parliamentary elections for Bukwo district woman member of Parliament were conducted in non-compliance with electoral laws and principles thereunder.
  2. If so, whether the non-compliance affected the results of the election in a substantial manner.
  3. Whether the 2nd Respondent personally or through her agents, with her knowledge and consent or approval committed electoral offences and illegal practices during the election for district woman member of Parliament for Bukwo district.
  4. What are the remedies available to the parties.

Orders

  • Petition dismissed.
  • Costs awarded to the Respondents.

Rules and key headnotes

Electoral Law — Election Petitions — Burden and Standard of Proof
In an election petition, the petitioner bears the burden of proving the grounds of the petition on a balance of probabilities, but the standard is slightly higher than the ordinary civil standard though lower than beyond reasonable doubt. The evidence must be cogent, strong and credible.
Evidence — Documentary Evidence — Public Documents — Declaration of Results Forms
Declaration of Results forms are public documents within the meaning of section 73(a)(ii) of the Evidence Act and require certification under section 76 if they are to be presented as authentic and valid documents in evidence. A non-certified DR form cannot be validated by the mere fact that it is annexed to an affidavit. The exception is where a party gave notice to the party in possession of the originals requesting certification and they refused or failed to do so.
Evidence — Hearsay — Election Petitions — Affidavit Evidence from Agents
Affidavits that accompany an election petition or answer may contain paragraphs that include hearsay evidence because they may base some allegations on information from agents or supporters. However, courts expect the evidence from witnesses in support to pass the test of hearsay. The hearsay test still applies even to these affidavits.
Evidence — Corroboration — Election Petitions — Partisan Witnesses
Election petitions are highly partisan and supporters are likely to go to any length to seek to establish adverse claims. It is important to look for cogent independent and credible evidence to corroborate claims to satisfy court that the allegations made by the petitioner are true. Some other evidence from an independent source is required to confirm allegations instead of reliance on supporters of candidates trading accusations and counter-accusations.
Electoral Law — Non-Compliance — Substantial Effect on Results
To succeed in proving that non-compliance affected the result of an election in a substantial manner, the petitioner does not have to prove that the declared candidate would have lost. It is sufficient to prove that the winning majority would have been reduced. Such reduction however would have to be such as would put victory in doubt.
Electoral Law — Electoral Offences — Bribery — Ingredients
The offence of bribery under section 68(1) of the Parliamentary Elections Act has three ingredients: (1) a gift was given to a voter; (2) the gift was given by a candidate or his agent; and (3) it was given with the intention of inducing the person to vote. The petitioner must lead evidence from those allegedly bribed to show who bribed them, what they were bribed with, and how the bribery affected who they voted for.
Electoral Law — Polling Time — Counting of Votes
Section 29(2) of the Parliamentary Elections Act provides that polling time shall close at five o'clock in the afternoon. Section 47(1) provides that votes shall be counted immediately after the presiding officer declares polling closed. It is humanly impossible for voting and counting to have ended by 5pm and it is not a requirement of law. The time on declaration forms shows when the returning officer signed the forms after counting the votes, not when voting ended.

Legislation cited (29)

Cases cited (10)

  • Acheing Sarah Opendi & Anor v Ochwo Nyakecho Keziah (Election Petition Appeal No. 39 of 2011)
  • Kiyimba Noor v John Nagenda Mulinde (HCCA No. 23 of 2014)
  • Mudiobole Abed Nasser v Mugema Peter (Election Petition No. 13 of 2016)
  • Tamale Julius Konde v Ssenkubuge Isaac & Electoral Commission (Election Petition Appeal No. 75 of 2016)
  • Mashate Magomu Peter v Electoral Commission & Anor (Election Petition Appeal No. 47 of 2016)
  • Kakooza John Baptist v Electoral Commission & Anor (Election Petition Appeal No. 11 of 2007)
  • Dr Kiiza Besigye v Yoweri Museveni (Supreme Court Election Petition Appeal No. 1 of 2001)
  • Kabuusu Moses Wagabo v Lwaiga Timothy Mutekanga & EC (Election Petition No. 15 of 2011)
  • Apolot Stella Isodo v Amongin Jacquiline (Election Petition Appeal No. 0060 of 2016)
  • Mbayo Jacob Robert v Electoral Commission & Talisunya (Election Petition No. 07 of 2006)

Full judgment

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

Chelangat v The Electral Commission & Another (Election Petition 6 of 2021) [2021] UGHC 70 (26 October 2021)
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.