Wakilii

Kabanda Nalule v Electoral Commission and 2 Ors (Electoral Petition No. 17 of 2016)

High Court · [2016] UGHCEP 46 · 2016 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Electoral petition challenging election results for Woman Member of Parliament for Butambala District
Decision
3rd respondent's election as District Woman Member of Parliament for Butambala District upheld

Observed later treatment

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Holding

The High Court dismissed the electoral petition challenging the election of the 3rd respondent as Woman Member of Parliament for Butambala District. The Court held that the petitioner failed to prove allegations of electoral irregularities, non-compliance with electoral laws, or voter bribery to the required standard. The winning margin of 67 votes stood. No irregularities were established that affected the results in a substantial manner, and no disenfranchisement of voters occurred.

Outcome

3rd respondent's election as District Woman Member of Parliament for Butambala District upheld

Facts

The petitioner, one of three candidates in the February 18, 2016 election for Woman Member of Parliament for Butambala District, challenged the results after the 3rd respondent was declared winner with 14,760 votes against petitioner's 14,693 votes, a margin of 67 votes. The petitioner requested a recount which the Returning Officer declined on grounds that his statutory mandate was limited to recounts where the margin was 50 votes or less. The petitioner obtained a recount order from the Chief Magistrate's Court, Mpigi, which was subsequently stayed by the same court. The 3rd respondent was gazetted and took her seat in Parliament. The petitioner then filed an electoral petition alleging electoral irregularities including early closure of polling stations, voter disenfranchisement, failure to conduct a recount, and voter bribery through distribution of cash, hoes, wheelbarrows, plastic plates, goal posts, and other items.

Issues

  1. Whether the election of the Butambala District Woman Member of Parliament was conducted in compliance with the electoral laws and practices.
  2. Whether the non-compliance, if any, affected the results in the said elections in a substantial manner.
  3. Whether the 3rd respondent, either personally or through her agent(s) with her knowledge and consent or approval, committed or indulged in the commission of any election offences, and or malpractices.

Orders

  • The 3rd respondent declared validly elected District Woman Member of Parliament for Butambala District.
  • Petition dismissed with costs under s.63(4)(a) of the Parliamentary Elections Act, 2005.
  • Certificate of two Counsels issued for Counsel for the respondents.
  • Certificate of two Counsels issued for M/S Kanduho Frank and M/S Celia Nagawa, Counsel for the petitioner.
  • Mr. Kiwanuka Abdallah Advocate denied certificate of two Counsels for absconding duty without leave of court after his application to withdraw was rejected.

Rules and key headnotes

Electoral Law — Recount — Mandatory Recount by Returning Officer — Statutory Limitations
A Returning Officer's mandatory duty to conduct a recount under section 54(1)(b) of the Parliamentary Elections Act is limited to cases where the winning margin is fifty votes or less. Where the margin exceeds fifty votes, the Returning Officer has no jurisdiction to conduct a mandatory recount and the proper remedy is to petition court.
Electoral Law — Non-compliance with Electoral Laws — Substantial Effect on Results Required
Alleged irregularities and non-compliance with electoral laws will not warrant annulment of election results unless the petitioner proves on the balance of probabilities that such irregularities affected the results of the election in a substantial manner. The mathematical impact of non-compliance and the nature of non-compliance must both be considered.
Electoral Law — Bribery Allegations — Standard of Proof — Evidence of Partisan Witnesses
Allegations of voter bribery, being serious criminal offences, must be proved to the satisfaction of court on the balance of probabilities. Where evidence is adduced by partisan witnesses who are likely to exaggerate, the court should look for independent evidence from independent sources to support the allegations. A self-confessed bribe taker under section 68(2) of the Parliamentary Elections Act cannot be regarded as a credible witness against the alleged bribe giver.
Electoral Law — Petitions — Pleadings — Departure from Pleaded Case
A petition is the petitioner's pleading in court and like a plaint, a party cannot be allowed to depart from nor succeed on any matter not pleaded in the petition. Evidence of matters not pleaded cannot found a basis for granting relief.
Electoral Law — Judicial Restraint — Democratic Will of the Electorate
In a democracy, the election of a leader is the preserve of the voting citizenry and courts should not rush to tamper with results which reflect the expression of the population's electoral intent. Courts must avoid upholding an illegitimate election result but must equally avoid annulling an election result that reflects the free will of the majority of the electorate.
Evidence — Witness Credibility — Contradictory and Inconsistent Evidence
Where a witness's evidence is contradictory and inconsistent in material respects, and where the witness demonstrates poor demeanour and appears hesitant and unsure in cross-examination, the court may reject such evidence as unreliable and lacking credibility.

Legislation cited (10)

Cases cited (5)

  • Inter freights Forwarders Ltd v East African Development Bank Ltd (Civil Appeal No. 33 of 1992)
  • Dr Epetait Francis v Dr Isamat Abraham (EP Appeal No. 12 of 2011)
  • JB Kakooza v Electoral Commission & Yiga Anthony (EP Appeal No. 11 of 2007)
  • Masiko Winifred Komuhangi v Winnie Babihuga J (EP Appeal No. 9 of 2002)
  • Amama Mbabazi v Yoseri Kaguta & Others (EP No. 1 of 2016)

Full judgment

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

Kabanda Nalule v Electoral Commission and 2 Ors (Electoral Petition No. 17 of 2016) [2016] UGHCEP 46 (2 September 2016)
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.