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Kisirye v Bazigatirawo and Anor (Election Petition No. 8 of 2016)

High Court · [2017] UGHCEP 3 · 2017 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition challenging the outcome of the Local Council V (District Chairperson) election for Mubende District on grounds of non-compliance with electoral laws, defective nomination, and electoral offences
Decision
Election petition dismissed; first respondent's election as LCV Chairperson Mubende District upheld

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Holding

Held: The election petition was dismissed. The first respondent was validly nominated having obtained the required number of fifty registered voters from at least two thirds of the electoral areas of Mubende District. The alleged electoral offences of undue influence and bribery were not proved to the required standard. The alleged non-compliance with electoral laws concerning early closure of polling stations, even if proven at twelve polling stations out of 591, did not substantially affect the election outcome given the first respondent's margin of victory of 18,571 votes. Section 111(3)(b) of the Local Government Act requiring district residency for candidacy was found unconstitutional as contravening Article 29(2)(a) of the Constitution guaranteeing freedom of movement and residence throughout Uganda.

Outcome

Election petition dismissed; first respondent's election as LCV Chairperson Mubende District upheld

Facts

On 24 February 2016, the Electoral Commission conducted an election for chairperson of Local Council V (LCV) for Mubende District. Bazigatirawo Kibuuka Francis Amooti obtained 52,820 votes against Kasirye Zzimula Fred's 34,279 votes. The Electoral Commission declared and gazetted Bazigatirawo as the winner. Kasirye challenged the election on grounds that Bazigatirawo's nomination papers were defective (lacked fifty registered voters from at least two thirds of the electoral areas and contained forged signatures), that Bazigatirawo and his agents committed electoral offences including threats of violence, undue influence (threatening to exclude Mubende from government programmes like NAADS if not elected), and bribery, and that the Electoral Commission failed to ensure that voting continued until the official closing time of 4.00 p.m. at several polling stations. The matter had been previously dismissed on a preliminary objection regarding the petitioner's residential status, but the Court of Appeal overturned that decision and ordered a retrial on the merits.

Issues

  1. Whether the 1st respondent at the time of elections was qualified as a candidate in accordance with the provisions of the law.
  2. Whether the 1st respondent and his agents committed election offences personally or with his consent.
  3. Whether there was non-compliance with Electoral Laws if any and whether the non-compliance affected the outcome of the elections in a substantial manner.
  4. What are the available remedies to the parties.

Orders

  • Petition dismissed.
  • Costs awarded to the respondents in equal proportions.

Rules and key headnotes

Candidate Qualification — Nomination Requirements — Compliance with Local Government Act s.111(3)(g)
A candidate for district chairperson is validly nominated if the candidate provides at least fifty registered voters with names, signatures, physical addresses and voters' registration numbers from at least two thirds of the electoral areas of the district, even where some individual sub-counties fall below fifty nominators, provided the aggregate number of sub-counties meeting the threshold satisfies the two-thirds requirement.
Nomination Forms — Double Signing — Effect of Illegality under Local Government Act s.111(5)
Where a person signs nomination forms twice in support of the same candidate, this contravenes the mandatory provision of Section 111(5) of the Local Government Act which prohibits a person from subscribing to more than one nomination paper or giving support to more than one candidate for the same office. The double signing constitutes an illegality which infects the entire list of nominations from that electoral area, rendering all nominations from that sub-county invalid.
Electoral Offences — Undue Influence — Standard of Proof
To prove the offence of undue influence under Section 154 of the Local Government Act, a petitioner must establish (a) that force or violence was used or threatened, (b) that temporal or spiritual injury or damage was inflicted or threatened, and (c) that such acts were committed with the intention of inducing or compelling a person to vote or refrain from voting. Uncorroborated hearsay evidence of threats, particularly where the alleged victim continued campaign activities without reporting the threat to authorities, is insufficient to prove the offence.
Electoral Offences — Bribery — Essential Ingredients
The offence of bribery in an election requires proof that (i) a gift was given to a voter, (ii) the gift was given by a candidate or the candidate's agent, and (iii) it was given with the intention of inducing the person to vote for the candidate. A person must be proven to be a registered voter before evidence of alleged bribery directed at that person can be relevant. Further, where the alleged recipient of a bribe nevertheless voted for the opposing candidate, the essential element that the bribe was intended to and did influence the voting decision is not satisfied.
Non-Compliance with Electoral Laws — Substantial Effect Test — Quantitative and Qualitative Approach
Non-compliance with electoral laws per se is insufficient to overturn an election. The non-compliance must be of such significance as to substantially affect the results of the election. In assessing substantial effect, the court must apply both a quantitative approach (whether the numerical effect of the non-compliance could have altered the outcome) and a qualitative approach (evaluating the transparency of registration, chaos at polling stations, voter information, the process of counting, tallying and declaring results, and the ability of each voter to cast their vote).
Standard of Proof — Balance of Probability in Election Petitions
The standard of proof in an election petition is proof on a balance of probability, consistent with civil proceedings generally. The burden lies on the petitioner to prove the allegations in the petition. While the proof required is not beyond reasonable doubt as in criminal matters, it must not leave the court in doubt as to what is sought to be proved.
Freedom of Movement and Residence — Unconstitutionality of Residency Requirement for Local Council Candidacy
Section 111(3)(b) of the Local Government Act, which requires a candidate for district chairperson to be ordinarily resident in the district or to undertake to establish residence within six months of election, is unconstitutional. It contravenes Article 29(2)(a) of the Constitution which guarantees every Ugandan the non-derogable right to move freely throughout Uganda and to reside and settle in any part of Uganda. Once a person establishes citizenship and status as a registered voter, that person has the right to participate in any election in any part of Uganda without limitation based on residence.

Legislation cited (32)

Cases cited (9)

  • Paul Mwiru v Igeme Nabeta and Others (Election Petition Appeal No. 6 of 2011)
  • Mukasa Harris v Dr. Lulume Bayiga
  • Dr. Kiiza Besigye v Yoweri Kaguta Museveni and Another (Supreme Court Election Petition No. 1 of 2001)
  • Dr. Kiiza Besigye v Yoweri Kaguta Museveni and Another (Supreme Court Election Petition No. 1 of 2001)
  • Dr. Kiiza Besigye v Yoweri Kaguta Museveni and Another (Supreme Court Election Petition No. 1 of 2001)
  • Makula International Ltd v His Eminence Cardinal Nsubuga and Another (Civil Appeal No. 48 of 1981)
  • Borough of Hackney Gill v Reed [1874] XXXI L.J. 69
  • Muhindo Rehema v Winfred Kiiza and Electoral Commission (Election Petition Appeal No. 29 of 2011)
  • Dr. Kiiza Besigye v Yoweri Kaguta Museveni and Another (Supreme Court Election Petition No. 1 of 2001)

Full judgment

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

Kisirye v Bazigatirawo and Anor (Election Petition No. 8 of 2016) [2017] UGHCEP 3 (31 October 2017)
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.