Wakilii

Electoral Commission and Another v Bakireke (Election Petition Appeal Nos.1 And 2 of 2007)

Court of Appeal · [2009] UGCA 12 · 2009 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Consolidated appeal from a High Court decision allowing an election petition and annulling the election of a Member of Parliament
Decision
Appeal dismissed by majority; High Court order annulling the election of the 2nd appellant and directing a fresh election upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

By majority (Engwau JA, Byamugisha JA concurring), the Court dismissed the appeal, holding that the trial judge properly evaluated the evidence and correctly found that widespread bribery, disenfranchisement and falsification of results substantially affected the election result. The Court affirmed that bribery in an election petition may be proved by a single witness and that a donation to a village targets its registered voters. Kavuma JA dissented, holding that the general pleading of offences and late-filed affidavits denied the appellants a fair trial contrary to Articles 28 and 44 of the Constitution and rule 4(8) of the Election Petitions Rules, and that uncertified results forms lacked evidential value.

Outcome

Appeal dismissed by majority; High Court order annulling the election of the 2nd appellant and directing a fresh election upheld

Facts

In the 23 February 2006 national elections, Bakaluba Peter Mukasa (2nd appellant), Nambooze Betty Bakireke (respondent) and Kawadwa Dawood Katamba contested the Mukono North Constituency parliamentary seat. The Electoral Commission declared the 2nd appellant winner with 22,680 votes against the respondent's 22,232. Dissatisfied, the respondent petitioned the High Court, alleging non-compliance with electoral laws and commission of election offences and illegal practices by the 2nd appellant personally or through agents, including bribery, disenfranchisement of voters at Gwafu I and II polling stations, forgery and falsification of results, and inadequate lighting during counting. The petition and its accompanying affidavit stated allegations in general terms; particulars were supplied through affidavits of other witnesses filed about five months later. The High Court allowed the petition, found the 2nd appellant not validly elected, set aside his election, and ordered a fresh election with costs. The appellants appealed on grounds concerning fair trial and the evaluation of evidence.

Issues

  1. Whether the election of the 2nd appellant was conducted in compliance with the Constitution, the Parliamentary Elections Act 2005, the Electoral Commission Act and the principles laid down therein.
  2. If not, whether the non-compliance substantially affected the result of the election.
  3. Whether the 2nd appellant committed illegal practices and/or offences personally or by his agents with his consent, knowledge and approval.
  4. Whether the learned trial judge denied the 2nd appellant a fair trial by considering and relying on particulars of alleged bribery not specifically pleaded in the petition.

Orders

  • Appeal dismissed.
  • Costs of the appeal here and in the High Court awarded to the respondent.

Rules and key headnotes

Electoral Law — Bribery — Proof by a Single Witness and Standard Required
The allegation of bribery in an election petition is a serious matter requiring cogent evidence, but there is no fixed number of witnesses required and bribery may be proved on the strength of a single witness's evidence.
Electoral Law — Bribery — Requirement that Recipient Be a Registered Voter
For the offence of bribery under section 68 of the Parliamentary Elections Act, it must be proved that the person allegedly bribed was a registered voter; a donation to a village or group in a constituency targets the registered voters therein.
Human Rights — Fair Hearing — Pleadings and Particulars in Election Petitions
The right to a fair hearing under Articles 28 and 44 of the Constitution requires that a respondent be given precise, clear and timely particulars of the case against him; affidavits supplying particulars must accompany the petition under rule 4(8) of the Election Petitions Rules, and affidavits filed months later do not 'accompany' the petition and cannot be incorporated by reference to documents not yet in existence.
Evidence — Official Documents — Proof of Declaration of Results Forms by Certified Copies
Declaration of Results Forms and tally sheets are official documents under section 73 of the Evidence Act which must be proved by certified copies from the Electoral Commission or upon notice to produce; uncertified copies obtained from other sources lack evidential value.
Electoral Law — Non-compliance — Substantial Effect Test
A party seeking to overturn an election result on grounds of non-compliance or irregularities must, whether by the quantitative or qualitative test, prove not only the effect of the non-compliance but also that the effect on the result was substantial.
Civil Procedure — Estoppel — Statutory Rights and Admissions by Counsel
Statutory rights, such as the right to a fair trial and compliance with mandatory pleading rules, cannot be lost by estoppel, and incorrect admissions made by counsel on a matter of law during hearing cannot bind a client.

Legislation cited (23)

Cases cited (19)

  • De Souza v Tanga Town Council [1961] EA 377
  • Amama Mbabazi and Another v Musinguzi Garuga (Election Petition Appeal No. 12 of 2002)
  • Mukasa Anthony Harris v Dr. Bayiga Michael Philip Lulume (Election Petition Appeal No. 14 of 2006)
  • Castelino v Rodrigues [1972] EA 223
  • Idd Kisiki Lubyayi v Ssewankambo Musa Kamulegeya (Election Petition Appeal No. 8 of 2006)
  • Idd Kisiki Lubyayi v Kagimu Maurice Peter (Election Petition Appeal No. 6 of 2002)
  • Kirunda Kivejinja Ali v Katuntu Abdu (Election Petition Appeal No. 24 of 2006)
  • Kakooza John Baptist v Electoral Commission and Another (Election Petition Appeal No. 16 of 2006)
  • Interfreight Forwarders (U) Ltd v East African Development Bank
  • DFCU Bank Ltd v Dr. Nakate Lusejjere (Civil Appeal No. 21 of 2004)
  • Esso Petroleum Company Ltd v Southport Corporation [1956] AC 218
  • Bisuti v Busoga District Administration (Civil Suit No. 83 of 1969)
  • Pushpa v Fleet Transport Company [1960] EA 1025
  • Griffiths v Davies [1943] KB 618
  • Income Tax Commissioner v A.K [1964] EA 648
  • Halling Manzoor v Serwan Singh Baram (Civil Appeal No. 9 of 2001)
  • Matsiko Winifred Komuhangi v Winnie Babihuga (Election Petition Appeal No. 9 of 2002)
  • Kizza Besigye v Electoral Commission and Yoweri Kaguta Museveni (Presidential Election Petition No. 1 of 2006)
  • Kakooza John Baptist v Electoral Commission and Another (Election Petition Appeal No. 16 of 2006)

Full judgment

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Electoral Commission and Another v Bakireke (Election Petition Appeal Nos.1 And 2 of 2007) [2009] UGCA 12 (25 March 2009)
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.