Wakilii

Halima Nakawungu Electoral Commission & anor (Masaka Election Pet No. 02 of 2011)

High Court · [2011] UGHC 114 · 2011 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition challenging Parliamentary election results following declaration of opponent as winner
Decision
Petition dismissed. 2nd respondent's election as Woman MP for Bukomansimbi District stands.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Election petition dismissed. Petitioner failed to prove on balance of probabilities that non-compliance with electoral law affected results substantially. While 1,810 votes were invalidated, court found no credible evidence that these predominantly belonged to petitioner. Mass-produced affidavits by polling agents claiming wrongful invalidation lacked corroboration and credibility. Unsigned Declaration of Results forms at eight polling stations reduced winning margin from 461 to 304 votes, but this reduction was insufficient to put the winner's victory in doubt within the meaning of Parliamentary Elections Act s.61.

Outcome

Petition dismissed. 2nd respondent's election as Woman MP for Bukomansimbi District stands.

Facts

On 18 February 2011, Halima Nakawungu and Susan Namaganda contested the Parliamentary election for Woman MP for Bukomansimbi District. The Electoral Commission declared Namaganda the winner with 15,537 votes against Nakawungu's 15,076 votes, a margin of 461 votes. A total of 1,810 votes (4.7% of valid ballots) were declared invalid. Nakawungu filed a petition alleging partisan polling officials, deliberate invalidation of her valid votes, incompetent officials, and alteration of results. She filed 46 supporting affidavits, including 37 nearly identical affidavits from polling agents claiming wrongful invalidation. Nakawungu sought a recount before the Chief Magistrate, but examination revealed broken or missing seals on 13 of 118 ballot boxes, preventing the recount. At trial, agents signed Declaration of Results forms at virtually all polling stations, confirming the results.

Issues

  1. Whether the election for Woman MP for Bukomansimbi District was not conducted in compliance with the electoral law.
  2. Whether such non-compliance affected the results of the election in substantial manner.
  3. What remedies are available to the parties.

Orders

  • Petition dismissed with costs to the 2nd respondent.
  • Certificate of 2 Counsel granted in respect of the 2nd respondent.
  • 1st respondent to meet their own costs due to irregularities attributed to them.

Rules and key headnotes

Election Petitions — Burden and Standard of Proof
The burden to prove the grounds of an election petition lies on the petitioner who must establish the facts on which judgment is sought. The standard of proof is to the satisfaction of the court on the balance of probabilities, although slightly higher than in ordinary civil cases because elections are of greater importance to both individuals and the nation.
Non-Compliance — Substantiality Test
An election is not to be upset for minor errors, informalities, or trivialities. Non-compliance with electoral law will only void an election if it is substantial and calculated to affect the result of the election in a substantial manner. The court must look to the substance of the case and not be swayed by trifling objections.
Affected Results in Substantial Manner — Meaning
The phrase 'affected the result of the election in a substantial manner' means that the votes obtained by each candidate would have been different in substantial manner if it were not for the non-compliance. A petitioner need not prove that the declared winner would have lost; it is sufficient to prove that the winning majority would have been reduced in a manner that puts the victory in doubt.
Election Petitions — Mass-Produced Affidavits — Credibility
Where affidavits filed in support of an election petition are word-for-word identical save for names and polling stations, differing only in the deponent's name and alleged numbers of invalidated votes, the court may reject them as cosmetic, manufactured evidence lacking credibility. It is implausible that different people at different polling stations would perceive irregularities in exactly the same way and express them identically.
Declaration of Results Forms — Signature by Presiding Officer
The requirement under the Parliamentary Elections Act s.50(4) that a Declaration of Results form be signed by the Presiding Officer is mandatory. Declaration of Results forms not signed by the Presiding Officer are invalid, and votes recorded therein must be deducted from the respective candidates' tallies when determining whether non-compliance affected the result substantially.
Declaration of Results Forms — Signature by Agents — Estoppel
When a candidate's agent signs a Declaration of Results form, the agent confirms the truth of its contents, including the number of invalid votes. The candidate is estopped from challenging the contents of the form, as the agent acts on behalf of the candidate. If agents were not satisfied with the results declared, they could have declined to sign.
Election Petitions — Recount — Discretion of Court
The court's discretion to order a recount under the Parliamentary Elections Act s.63(5) must be exercised in accordance with law and without inordinate delay. Where parties previously agreed that broken or missing seals on ballot boxes compromised their integrity and no recount could proceed, the court will respect that agreement and decline to order a recount at petition stage, particularly where the petitioner did not seek recount relief in the petition itself.

Legislation cited (7)

  • Parliamentary Elections Act 17/2005 s.61(1)
  • Parliamentary Elections Act 17/2005 s.61(3)
  • Parliamentary Elections Act 17/2005 s.63(5)
  • Parliamentary Elections Act 17/2005 s.48
  • Parliamentary Elections Act 17/2005 s.54
  • Parliamentary Elections Act 17/2005 s.50(4)
  • Evidence Act Cap.6 s.101-103

Cases cited (9)

  • Col. (Rtd) Dr. Kizza Besigye v Museveni Yoweri Kaguta and the Electoral Commission (Presidential Election Petition No. 1 of 2001)
  • Borough of Hackney Gill Vs Reed [1874] XXXI L.J. 69
  • Masiko Winnie Komuhangi v Babihuga Winnie (Election Petition Appeal No. 9 of 2002)
  • Besweri Lubuye Vs Electoral Commission and Anor
  • Mbabaali Jude Vs Sekandi and Electoral Commission
  • Musa Anthony Hamis v Dr. Lulume Bayiga M. Philip (High Court Election Petition No. 15 of 2006)
  • S. Sebagala v Tito Damulira & Another (High Court Election Petition No. 11 of 2002)
  • Babu Edward Francis v Electoral Commission and Elias Lukwago (High Court Election Petition No. 10 of 2006)
  • Ngoma Ngime v Electoral Commission and W. Byanyima (Court of Appeal No. 11 of 2002)

Full judgment

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

Halima Nakawungu Electoral Commission & anor (Masaka Election Pet No. 02 of 2011) [2011] UGHC 114 (9 August 2011)
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