Wakilii

Eriyo v Ababiku & Anor (Election Petition No. 0002 of 2012)

High Court · [2012] UGHC 40 · 2012 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition challenging the results of the 2011 parliamentary election for Woman Member of Parliament for Adjumani District
Decision
Election petition dismissed with costs; 1st respondent's election as Woman MP for Adjumani District upheld

Observed later treatment

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Holding

The High Court dismissed an election petition challenging the 2011 parliamentary election for Adjumani District Woman MP. The court held that the petitioner failed to prove on a balance of probabilities that the 1st respondent was disqualified under Parliamentary Elections Act s.4(4)(a), as the requirement to resign 90 days before nomination applied only to public officers and government employees, not elected district councillors. The petitioner also failed to prove allegations of character assassination, defamation, and electoral malpractices, as her evidence relied on hearsay and violated evidentiary rules requiring first-hand affidavit evidence from affected voters and witnesses. The court found limited non-compliance (12 illegal voters at one polling station) but this did not substantially affect the result given the 2,806 vote margin of victory.

Outcome

Election petition dismissed with costs; 1st respondent's election as Woman MP for Adjumani District upheld

Facts

On 18 February 2011, the Electoral Commission held parliamentary elections for Woman MP for Adjumani District. The 1st respondent, running as an independent candidate, won with 17,037 votes against the petitioner's 14,231 votes (NRM candidate), a margin of 2,806 votes. The petitioner challenged the election, alleging: (1) the 1st respondent was disqualified because she remained a district councillor for NRM and did not resign 90 days before nomination as allegedly required by Parliamentary Elections Act s.4(4)(a); (2) the 1st respondent made defamatory, sectarian, and character-assassinating statements during campaigns; (3) multiple electoral malpractices including voter disenfranchisement, illegal voting, falsification of results forms, and polling beyond official hours. The petitioner sought to be declared the winner or, alternatively, for the election to be set aside and a fresh election ordered.

Issues

  1. Whether the 1st respondent was at the time of election qualified and/or disqualified for election as a Member of Parliament
  2. Whether the 1st respondent personally and/or with her knowledge, consent and approval committed illegal practices and offences in connection with her election under the PEA 17 of 2005
  3. Whether the election of the District Woman Member of Parliament held on 18/2/2011 was conducted in compliance with the provisions of the Parliamentary Elections Act 17 of 2005
  4. If not, whether the non-compliance with the law affected the result of the election in a substantial manner
  5. Whether the Petitioner and not the 1st respondent won the election for District Woman Member of Parliament of Adjumani District held on 18.02.2011

Orders

  • Petition dismissed.
  • Costs awarded to the respondents.
  • Certificate for two counsel refused.

Rules and key headnotes

Electoral Law — Candidate Qualification — Resignation Requirements for Elected Representatives
Parliamentary Elections Act s.4(4)(a) requires public officers and government employees wishing to stand for parliamentary election to resign 90 days before nomination, but this requirement does not extend to elected district councillors, as the statute does not list elective offices and Parliament cannot be presumed to have intended that constituents remain without elected representation for such an extended period.
Constitutional Law — Parliamentary Membership — Article 83 Scope
Constitution Article 83 requiring vacation of a parliamentary seat upon leaving a political party applies only to sitting Members of Parliament, not to district councillors or other elected officials seeking parliamentary office, and the provision cannot be extended by judicial interpretation to cover positions not expressly mentioned in the constitutional text.
Evidence — Affidavit Evidence — Personal Knowledge Requirement
Civil Procedure Rules O.19 r.3(1) requires that affidavits be confined to facts the deponent can prove of his or her own knowledge, except on interlocutory applications where belief may be stated with grounds; an affidavit stating facts not within the deponent's personal knowledge, particularly regarding alleged defamatory statements at rallies the deponent did not attend, violates this rule and carries little evidential weight.
Evidence — Documentary Evidence — Primary Evidence Rule
Under Evidence Act ss.61, 63, and 64, documents must be proved by primary evidence (the document itself) except in specified circumstances; where original video recordings are converted to DVDs and CDs, and the original recordings are not accounted for or produced, the secondary evidence in DVD/CD form offends the primary evidence rule and is inadmissible absent satisfaction of statutory exceptions.
Electoral Law — Burden of Proof — Standard and Quantum of Evidence
In election petitions, Parliamentary Elections Act s.61(3) statutorily establishes the standard of proof as balance of probabilities; the petitioner bears the burden to prove every allegation to the court's satisfaction, and where the petitioner alleges voters were disenfranchised, the burden is discharged by adducing credible affidavit evidence from the affected voters themselves that they turned up to vote and were turned away, not by the candidate's hearsay evidence or production of the voters roll alone.
Electoral Law — Declaration of Results Forms — Effect of Agent's Signature
When a candidate's agent signs a declaration of results form without reservation or use of the space provided to state reasons for refusal, the agent confirms the truth and correctness of what transpired at the polling station, and the candidate is estopped from subsequently challenging the contents of that form absent affidavit evidence from the agent explaining that the signature was forged or obtained under duress.
Electoral Law — Illegal Practices — Independent Corroboration Requirement
In election petitions involving allegations of character assassination, defamation, and sectarian statements during campaigns, where the evidence consists of contradictory affidavits from the petitioner's supporters and the respondent's supporters, the court requires independent evidence from neutral observers to determine the truth; where independent election observers depone that no such statements were made and the petitioner relies only on partisan witnesses, the petitioner fails to discharge the burden of proof.

Legislation cited (27)

Cases cited (18)

  • George Owor v William Oketcho and Attorney General (Constitutional Petition No. 38 of 2010)
  • Mukasa Anthony Harris v Dr. Bagiya Michael Lulume (Election Petition Appeal No. 18 of 2007)
  • Dr. Kiiza Besigye v Electoral Commission and Yoweri Kaguta Museveni (Presidential Election Petition No. 1 of 2006)
  • Dr. Kiiza Besigye v Yoweri Kaguta Museveni and Electoral Commission (Presidential Election Petition No. 1 of 2001)
  • Bantalibu Issa Taligola v Electoral Commission and Wasugirya Bob Fred (Election Petition No. 15 of 2006)
  • Karokora Katoro Zedekia v Kagonyera Mondo HC-05-CV-EP-0002-2001
  • Masiko Winfred Komulangi v Babihuga J. Winnie (Election Petition No. 9 of 2012)
  • Sarah Bireete and Another v Bernedette Bigirwa and Electoral Commission (Election Petition Appeal No. 13 of 2002)
  • Interfreight Forwarders (U) Ltd v East African Development Bank Ltd (SC Civil Appeal No. 33 of 1993)
  • Uganda Breweries Ltd v Uganda Railways Corporation (CS CA No. 6 of 2001)
  • Sitenda Sebalu v Sam Njuba and Electoral Commission (Election Petition No. 25 of 2006)
  • Ngome Ngime v EC & W. Byanyima CA No. 11/02
  • Babu Edward Francis v Electoral Commission and Erias Lukwago (Election Petition No. 10 of 2006)
  • Nyakecho Kezia Ochwio v E.C & Grace Oburu H.C Election Petition 11/06
  • Mbayo Jacob Robert v Electoral Commission and Talonsya Sinah (Election Appeal No. 007 of 2006)
  • Jovelyn Barugare v Attorney General (SC Civil Appeal No. 28 of 1993)
  • Oddo Jobs v Mubia [1970] EA 476
  • Constantine Line case

Full judgment

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Eriyo v Ababiku & Anor (Election Petition No. 0002 of 2012) [2012] UGHC 40 (29 February 2012)
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