Wakilii

Galisonga v Katuntu and Another (Election Petition 10 of 2021)

High Court · [2021] UGHC 77 · 2021 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition challenging the declaration of the 1st Respondent as Member of Parliament for Bugweri County Constituency following the 14 January 2021 parliamentary election
Decision
Petition dismissed with costs to the 1st Respondent. The declaration of the 1st Respondent as Member of Parliament for Bugweri County Constituency stands.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed the election petition challenging the declaration of the 1st Respondent as Member of Parliament for Bugweri County Constituency. The Court held that the Petitioner failed to prove on a balance of probabilities that there was non-compliance with electoral laws affecting the results in a substantial manner, given the winning margin of 8,739 votes. The Court further held that the Petitioner failed to prove the alleged illegal practices and electoral offences (donation of tents, undue influence, defacing campaign materials, making false statements, and interference with electioneering activities) to the required standard. Several affidavits were expunged for non-compliance with the Illiterates Protection Act and the Oaths Act.

Outcome

Petition dismissed with costs to the 1st Respondent. The declaration of the 1st Respondent as Member of Parliament for Bugweri County Constituency stands.

Facts

The Petitioner and 1st Respondent were among eleven candidates in the 14 January 2021 parliamentary election for Bugweri County Constituency. The 1st Respondent obtained 17,813 votes while the Petitioner obtained 9,074 votes. The 2nd Respondent declared and gazetted the 1st Respondent as the winner on 17 February 2021. The Petitioner alleged violence and interference at Idudi and Namavundu, including attacks on his supporters, damage to vehicles, and the death of one supporter, Azedi Bunoga. The Petitioner also alleged that the 1st Respondent donated tents to villages, defaced campaign materials, made false statements calling the Petitioner a "pussycat" and "rabbit", and interfered with the Petitioner's campaign schedule. The Petitioner complained to the 2nd Respondent about interference, but the complaint was not investigated or determined before the election.

Issues

  1. Whether there was non-compliance with the electoral laws and the principles laid down therein and if so, whether the non-compliance affected the results in a substantial manner.
  2. Whether the 1st Respondent committed the alleged illegal practices and/or electoral offences personally or through his agents with his knowledge and consent or approval.
  3. What remedies are available to the parties.

Orders

  • Petition dismissed.
  • Costs awarded to the 1st Respondent.
  • No order as to costs for the 2nd Respondent due to its failure to handle the Petitioner's complaint.
  • Certificate issued for two Counsel for the 1st Respondent.

Rules and key headnotes

Election Petitions — Burden and Standard of Proof — Substantial Effect on Results
In election petitions, the burden of proof lies with the petitioner to prove allegations on a balance of probabilities, slightly above the ordinary civil standard, taking into account the great impact elections have on political and socio-economic aspects of the nation. To establish that non-compliance affected results in a substantial manner, the petitioner must adduce cogent evidence, direct or circumstantial, to satisfy the court that the effect on the result was substantial, which requires evaluation of the whole electoral process including the conditions that produced the numbers and the winning margin.
Affidavits — Illiterates Protection Act — Mandatory Requirements — Inadmissibility
Section 3 of the Illiterates Protection Act Cap 78 is couched in mandatory terms requiring that the jurat state the true and full name and address of the person who has written the document for, at the request, on behalf or in the name of any illiterate. Failure to comply with this statutory requirement renders the affidavit inadmissible and the defect is not curable under Article 126(2)(e) of the Constitution as it is a matter of substance, not form. A distinction must be made between a defective affidavit and failure to comply with a statutory requirement.
Affidavits — Expunged Affidavits — Viva Voce Evidence — Severability
Where an affidavit is expunged for non-compliance with statutory requirements but the witness was subjected to cross-examination, the viva voce evidence obtained during cross-examination remains valid. Only those parts of the expunged affidavit to which the viva voce evidence relates will be severed and considered by the court.
Illegal Practices — Bribery — Donation of Gifts — Proof Required
The offence of bribery under the Parliamentary Elections Act is complete when proved that: (i) a gift was given to a voter; (ii) the gift was given by a candidate or his agent; and (iii) the gift was given to induce the person to vote for the candidate. An allegation of bribery must be proved by unequivocal evidence and not mere suspicion. The petitioner must adduce cogent evidence including particulars of the villages, number of villages, and number of gifts allegedly donated.
Electoral Offences — Undue Influence — Violence — Proof Required
To establish the offence of undue influence under section 80(1)(a) of the Parliamentary Elections Act, the petitioner must prove that force or threat of violence was used to compel a person to vote or refrain from voting, or that violence was used on account of a person having voted or refrained from voting. Where the evidence of witnesses is riddled with contradictions and inconsistencies, the court cannot safely rely on it to establish the offence.
Electoral Offences — Interference with Electioneering Activities — Elements of Offence
Under section 24 of the Parliamentary Elections Act, to establish the offence of interference with electioneering activities, the petitioner must prove: (i) a person threatened a candidate or voter with injury or harm; (ii) this was done for the purpose of effecting or preventing the election of a candidate; and (iii) this occurred before or during elections. The petitioner must adduce cogent evidence that the alleged interference affected or prevented the election of the candidate. Mere allegations without credible evidence of obstruction and interference with free exercise of franchise are insufficient.
Electoral Offences — False Statements — Standard of Proof
To establish the offence of making false statements concerning the character of a candidate under section 73 of the Parliamentary Elections Act, the petitioner must prove that: (i) the statement was made; (ii) the person making the statement knew or had reason to believe it was false or was reckless; and (iii) the statement affected the election of the candidate. Facts admitted need not be proved, but the burden remains on the petitioner to prove that the statements affected the choice of voters and the election results.

Legislation cited (24)

Cases cited (19)

  • Lule Umar Mawiya v Ssempijja Vincent Bamulangaki and Electoral Commission (Election Petition No. 16 of 2011)
  • Dr Runumi Mwesigye v The Returning Officer and 2 Others (Election Petition No. 2 of 2002)
  • Kasaala Growers Co-operative Society v Kakooza Johathan and Another (Supreme Court Civil Application No. 19 of 2010)
  • Plan Virginia Mugyenyi v Hon. Tumwesigye Elioda and Another (Election Petition No. 1 of 2018)
  • Apolot Stella Isodo v Amongin Jacquiline (Election Petition Appeal No. 60 of 2016)
  • Masiko Winifred Komuhangi v Babihuga J. Winnie (Election Petition Appeal No. 9 of 2002)
  • Mukasa Anthony Harris v Dr. Bayiga Michael Philip Lulume (Election Petition Appeal No. 18 of 2007)
  • Muiya Vs Nyagah & others [2003] 2 EA 621
  • Peter Mugema v Mudiobole Abedi Nasser (Election Petition Appeal No. 30 of 2011)
  • Nakate Lilian Segujja and The Electoral Commission v Nabukenya Brenda (Consolidated Election Petition Appeals No. 17 and 21 of 2016)
  • Nambdowa Rashida v Bavekuno Mafumu Godfrey and Another (Election Petition Appeal No. 69 of 2016)
  • Col. (Rtd) Dr. Besigye Kizza v Museveni Yoweri Kaguta and Electoral Commission (Supreme Court Election Petition Appeal No. 1 of 2001)
  • Amama Mbabazi and Electoral Commission v Musinguzi Garuga James (Election Petition Appeal No. 12 of 2002)
  • Musinguzi Garuga James v Amama Mbabazi and Another (Election Petition No. 3 of 2001)
  • Hon Katuntu Abdu v Hon. Kirunda Kivejinja AH (Election Petition No. 7 of 2006)
  • Mufembuli Yusuf v Nagwomu Moses Musamba and Electoral Commission (Election Petition Appeal No. 43 of 2016)
  • Fed Badda v Prof. Muyanda Mulebi (Election Petition Appeal No. 25 of 2006)
  • Hackney (1874) XXXI L.T. 69
  • Morgan v Simpson (1974) 3 All ER 722

Full judgment

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

Galisonga v Katuntu and Another (Election Petition 10 of 2021) [2021] UGHC 77 (15 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.