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Kabuusu v Lwanga and Anor (Election Petition No. 15 of 2011)

High Court · [2011] UGHCEP 20 · 2011 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Parliamentary election petition challenging election results for Kyamuswa County Constituency following February 18, 2011 elections
Decision
Election petition dismissed and election results upheld, with the 1st Respondent confirmed as the validly elected Member of Parliament for Kyamuswa County Constituency

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Holding

The High Court dismissed the election petition challenging the Parliamentary election results for Kyamuswa County Constituency. The Petitioner failed to prove allegations of illegal practices (bribery, false statements, voter intimidation), election offences, or electoral irregularities by the 1st Respondent or Electoral Commission to the required high standard of proof in election petitions. The Court found that the 1st Respondent was lawfully nominated, that allegations of bribery through distribution of life jackets, money, and T-shirts were not substantiated, and that the Electoral Commission conducted the election in substantial compliance with the law. The election return was upheld and costs awarded to the Respondents.

Outcome

Election petition dismissed and election results upheld, with the 1st Respondent confirmed as the validly elected Member of Parliament for Kyamuswa County Constituency

Facts

The 1st Respondent won the February 18, 2011 Parliamentary elections for Kyamuswa County Constituency with 3,753 votes (51.68%) against the Petitioner's 3,436 votes (47.31%). The Petitioner challenged the election alleging the 1st Respondent's unlawful nomination, bribery through distribution of life jackets, money, alcoholic drinks, T-shirts and feasts, publication of false statements about the Petitioner's withdrawal and character, prohibited activities on polling day including usurpation of presiding officers' powers, ballot pre-ticking and stuffing, disenfranchisement of voters, multiple voting, and unlawful relocation of polling stations. The Petitioner claimed these irregularities affected the results substantially. The 1st Respondent and Electoral Commission denied all allegations, maintaining the election was conducted lawfully and that any non-compliance did not affect the outcome.

Issues

  1. Whether the nomination of the 1st Respondent as a Parliamentary candidate was lawful under section 4(4)(a) of the Parliamentary Elections Act 2005 and Article 80(4) of the Constitution, given his status as a member of boards of the Broadcasting Council and Uganda Communications Commission
  2. Whether the 1st Respondent, by himself or through his agents with his knowledge, consent, or approval, procured his victory through commission of illegal practices including bribery of voters, procuring prohibited persons to vote, publication of false statements as to withdrawal of the Petitioner, and obstruction of voters
  3. Whether the 1st Respondent, by himself or through his agents with his knowledge, consent, or approval, committed election offences including false statements concerning the character of the Petitioner, unauthorised voting or voting more than once, undue influence, prohibited activities on polling day, and obstruction of election officers
  4. Whether the 2nd Respondent in connivance with the 1st Respondent and or their agents with their knowledge, consent or approval, effected ballot pre-ticking and ballot stuffing
  5. Whether the 2nd Respondent failed to conduct the election in compliance with the provisions and principles in the Constitution, Electoral Commission Act, and Parliamentary Elections Act, by disenfranchising eligible voters, permitting multiple voting, unlawfully changing polling stations, and making wrong returns of the election
  6. Whether the 2nd Respondent failed to conduct free and fair elections by failing to restrain armed personnel, police, civil servants, law enforcement officers from harassing voters during the electoral period, restrain the 1st Respondent from bribing and compromising voters and interfering with the electoral process, appoint neutral polling officials, and avail DR forms to the Petitioner
  7. Whether if issues 2 to 5 are resolved in the affirmative, the final results were affected in a substantial manner

Orders

  • Petition dismissed.
  • The 2011 election returns for Kyamuswa County Constituency upheld.
  • Costs of the petition awarded to the Respondents.

Rules and key headnotes

Election Petitions — Standard of Proof
The standard of proof in Parliamentary election petitions is on a balance of probabilities to the satisfaction of the Court as provided in section 61(3) of the Parliamentary Elections Act 2005, but at a premium higher than in ordinary civil suits, approaching but not reaching the criminal standard of beyond reasonable doubt, owing to the gravity and importance that attaches to elections and the impact on constituents and the entire population.
Election Petitions — Burden of Proof — Proof Required Where Allegations Are Serious
In proportion as an allegation in an election petition is serious or grave, so ought the proof to be clearer and more convincing. The more heinous the alleged electoral offence, the higher the minimum of proof necessary to support the accusation, and the progressive increase in the difficulty of proof corresponds with the gravity of the accusation.
Bribery — Mens Rea — Gift Made Upon Request
For an item given to a voter during the campaign period to constitute the illegal practice of bribery under section 68(1) and (4) of the Parliamentary Elections Act 2005, there must be proof of mens rea, namely express or discernible intent by the giver to influence the recipient to vote or refrain from voting in a particular manner. Where an item is given at the instance of the recipient who requested it, and there is no evidence of intention to influence the voter, the transaction does not offend the prohibition against bribery.
Bribery — Campaign Materials — T-shirts Bearing Candidate's Portrait or Party Symbols
T-shirts in party colours or bearing candidates' portraits or campaign messages serve the same purpose as campaign posters and do not constitute prohibited gifts or bribery under the Parliamentary Elections Act 2005, as they are campaign materials rather than items intended to corruptly influence voters.
False Statements Concerning Candidate — Fair Political Comment
In political contests, attack on an opponent's competence, suitability, personality, personal conduct or past performance is permissible within certain parameters as fair political comment. Courts must have regard to the substance rather than mere form of phraseology used in political speeches, and recognize that hyperboles, exaggerated language, metaphors and extravagance of expressions are not uncommon in attacking one's opponent, and that certain expressions which would otherwise be outright defamatory may be permissible in a political contest.
Election Petitions — Affidavits — Depositions Based on Information
In election petitions, affidavits in support of and accompanying the pleadings, although they are depositions, form part of the pleading, and it is therefore permissible for them to rely on matters based on information. Any other affidavit falling outside this category must be subjected to the rule regarding depositions based on information, namely that save in interlocutory matters affidavit depositions based on information are not permissible as they constitute inadmissible hearsay evidence.
Public Documents — Uganda Gazette — Judicial Notice — Admissibility
Under sections 77 and 80 of the Evidence Act, the Court must presume the genuineness of and take judicial notice of the Uganda Gazette printed by the Government Printer, and its authenticity and admissibility cannot be in dispute. Acts, orders or notifications of the Government published in the Gazette do not require formal proof in evidence, unlike other official documents which must first be adduced in evidence to prove authenticity.

Legislation cited (19)

Cases cited (9)

  • Col (Rtd) Kizza Besigye v Yoweri Museveni (Supreme Court Election Petition No. 1 of 2001)
  • Col (Rtd) Dr Kiiza Besigye v Yoweri Kaguta Museveni and Electoral Commission (Supreme Court Election Petition No. 1 of 2006)
  • Iddi Kisiki Lubyayi v Sewankambo Musa Kamulegeya (Court of Appeal Election Petition Appeal No. 8 of 2006)
  • Mukasa Anthony Harris v Dr Bayiga Michael Phillip Lulume (Supreme Court Election Petition Appeal No. 18 of 2007)
  • Ruhara v Ruhara (Divorce Appeal No. 1 of 1976)
  • Andrea Obonyo and Others v R [1962] E.A. 542
  • Bater v Bater [1950] 2 All E.R. 458
  • Hornal v Neuberger Products Ltd [1956] 3 All E.R. 970
  • Henry H Ilanga v M Manyoka [1961] E.A. 705

Full judgment

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

Kabuusu v Lwanga and Anor (Election Petition No. 15 of 2011) [2011] UGHCEP 20 (14 November 2011)
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