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Katuntu Abdu v Kirunda Kivejinja Ali and Another (Election Petition No. 7 of 2006) (Election Petition No. 7 of 2006)

High Court · [2006] UGHC 3 · 2006 Petition Granted — Election Annulled AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition challenging Parliamentary election result for Bugweri County Constituency following 2006 general elections
Decision
Election of first respondent annulled; parliamentary seat declared vacant

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court set aside the election of the first respondent as Member of Parliament for Bugweri County Constituency on grounds of widespread intimidation, violence and torture of voters, failure to follow proper polling procedures, and commission of election offences including use of government resources, undue influence and training armed groups. The court applied the qualitative test and found that extensive non-compliance with electoral law principles affected the election result in a substantial manner, notwithstanding the relatively small margin of victory of 1,056 votes.

Outcome

Election of first respondent annulled; parliamentary seat declared vacant

Facts

National elections were held in Uganda on 23 February 2006. The petitioner and first respondent contested for the Parliamentary seat for Bugweri County Constituency. The first respondent won with 17,554 votes against the petitioner's 16,496 votes and was declared winner by the Electoral Commission. The petitioner alleged that the election was not conducted in compliance with the Parliamentary Elections Act 2005, that the first respondent deployed armed groups led by Lt. Mulindwa, Major Swaliki Kiswiriri and Pastor NRM who intimidated and tortured voters and agents throughout the campaign period, that some presiding officers used unlawful roll-call procedures instead of queuing, that the first respondent used government vehicles for campaigning, and that widespread violence and intimidation affected the electoral process. Multiple witnesses testified to being beaten, detained at the first respondent's home, or denied the right to vote. The Electoral Commission convened a meeting on 16 February 2006 where it noted that violence in Bugweri was the worst in the country.

Issues

  1. Whether there was non-compliance with the provisions and principles set out in the Parliamentary Elections Act 2005
  2. Whether the non-compliance affected the result of the election in a substantial manner
  3. Whether any illegal practice or election offence was committed by the first respondent personally or by his agents with his knowledge, consent or approval
  4. What remedies are available and to which party

Orders

  • The election of the first respondent as Member of Parliament for Bukooli County Constituency is annulled.
  • The Parliamentary seat for Bukooli County Constituency is declared vacant.
  • As between the petitioner and the second respondent, each party shall bear its own costs.

Rules and key headnotes

Standard and Burden of Proof in Election Petitions
The burden of proof in an election petition lies upon the petitioner. The standard of proof is upon the balance of probabilities, but to a high degree of preponderance given the critical importance of the subject matter to democratic governance. Where the legislature uses the phrase 'proved to the satisfaction of the court' in section 61(3) of the Parliamentary Elections Act 2005, it requires proof on the balance of probabilities to a high standard commensurate with the importance of setting aside an election, but does not require proof beyond reasonable doubt as in criminal proceedings.
Grounds for Setting Aside an Election — Non-Compliance with Electoral Law
Under section 61(1) of the Parliamentary Elections Act 2005, the election of a member of Parliament may be set aside where there is non-compliance with the provisions and principles of the Act and such non-compliance affected the result in a substantial manner. The effect must be calculated to really influence the result in a significant manner. Both quantitative and qualitative tests may be applied in evaluating whether non-compliance substantially affected the result, depending on the peculiar circumstances of each case.
Qualitative Test for Substantial Effect on Election Result
Where evidence establishes widespread and generalised malpractices constituting non-compliance with principles that safeguard a free and fair election, the court may apply the qualitative test to determine whether the non-compliance substantially affected the result. For the petitioner to succeed using the qualitative test alone, the only irresistible inference to be drawn from the evidence must be that the non-compliance affected the result in a substantial manner. Widespread intimidation, violence and torture calculated to affect the election result, even where the margin of victory is relatively small, may justify applying the qualitative test.
Intimidation, Violence and Freedom of Electoral Process
Under section 12(1)(e) of the Electoral Commission Act, the Electoral Commission has a duty to take measures to ensure that the entire electoral process is conducted under conditions of freedom and fairness. An election does not constitute a war of guns and sticks but is a civic activity that hinges upon the constitutional norms of freedom and fairness under Article 61 of the Constitution. Where armed gangs trained and deployed by or on behalf of a candidate engage in widespread intimidation, violence and torture of opponents' supporters throughout a campaign period, the overall quality of the election is so low that it cannot qualify as free and fair.
Election Offences — Use of Government Resources
Section 25(1) of the Parliamentary Elections Act 2005 prohibits the use of government resources for campaign purposes. Where a candidate uses a government vehicle for campaigning, he commits an election offence. A motor vehicle registration card is a document of title under Ugandan law, and official records from the Uganda Revenue Authority showing ownership constitute admissible evidence.
Election Offences — Undue Influence and Training Armed Groups
Under section 24(b) of the Parliamentary Elections Act 2005, it is an election offence for any person before or during an election, for purposes of effecting or preventing the election of a candidate, to organise a group of persons with the intention of training the group in the use of force or violence. Under section 80(1)(a) and (b), undue influence through intimidation, violence and torture of voters and agents constitutes an election offence. Where a candidate trains armed groups that engage in widespread beating, intimidation and unlawful detention of opponents' supporters, he commits election offences.
Admissibility of Police Reports as Public Documents
A certified copy of a police report is admissible as a public document under sections 64(1)(e) and 73(a)(iii) of the Evidence Act Cap.6. A police report by an election offences squad constitutes a public document and is distinguishable from inadmissible hearsay such as newspaper reports. The certification by the CID renders the document admissible.

Legislation cited (22)

Cases cited (5)

  • Col. Rtd. Dr. Besigye Kizza v. Museveni Yoweri Kaguta and The Electoral Commission
  • Blynth v Blynth (1966) AC 643
  • Amama Mbabazi and The Electoral Commission v Musinguzi Garuga James (Election Petition Appeal No. 12 of 2002)
  • Fred Kamanda v Uganda Commercial Bank (Supreme Court Civil Appeal No. 17 of 1995)
  • Major General D. Tinyefuza v Attorney General (Constitutional Appeal No. 1 of 1997)

Full judgment

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Katuntu Abdu v Kirunda Kivejinja Ali and Another (Election Petition No. 7 of 2006) (Election Petition No. 7 of 2006) [2006] UGHC 3 (31 December 2006)
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.