Wakilii

Komuhangi Masiko v Bamukwatsa aka Muzanira Betty and Another (Election Petition No.004 of 2018)

High Court · [2019] UGHC 104 · 2019 Preliminary Objections Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Ruling on preliminary objections in an election petition challenging the results of a parliamentary by-election
Decision
Preliminary objections partly upheld — 17 of 22 petitioner's affidavits struck off; petition to proceed on remaining affidavit evidence

Observed later treatment

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Holding

Held that affidavit evidence in election petitions may be filed subsequent to the answer to the petition as no rule restricts such filing, though late service may prejudice the petitioner's preparation. Held that affidavits which fail to show that contents were read over and explained to illiterate deponents in the presence of the Commissioner for Oaths offend the Oaths Act and Illiterates Protection Act and must be struck off as the defect goes to substance not form. Held that uncertified exhibits are defective but the defect is curable. Held that a petition supported by some compliant affidavits cannot be struck out merely because other affidavits have been ruled incompetent.

Outcome

Preliminary objections partly upheld — 17 of 22 petitioner's affidavits struck off; petition to proceed on remaining affidavit evidence

Facts

The Petitioner and 1st Respondent contested for Woman Member of Parliament for Rukungiri District in a by-election held on 31st May 2018. The 1st Respondent won with 50,611 votes against the Petitioner's 46,379 votes. The Petitioner filed an election petition alleging electoral malpractice including voter bribery, intimidation, sectarianism, and irregularities by the 2nd Respondent's officials. At the commencement of the hearing, the Petitioner objected to affidavits filed by the 1st Respondent as filed out of time. The 1st Respondent objected to 17 of the Petitioner's 22 affidavits, contending they failed to comply with the Illiterates Protection Act and Oaths Act as they did not show proper certification that contents were read and explained to illiterate deponents in the presence of the Commissioner for Oaths.

Issues

  1. Whether the 1st Respondent's affidavits in support of her reply should be allowed on the record.
  2. Whether the affidavits and annexures filed by the Petitioner in support of the petition are valid and tenable under the Illiterates Protection Act and the Oaths Act.
  3. Whether uncertified exhibits attached to affidavits should be expunged from the record.
  4. Whether the petition should be struck out for lack of supporting evidence after striking off non-compliant affidavits.

Orders

  • The objection to the 1st Respondent's affidavits filed subsequent to the answer is dismissed.
  • The preliminary objections by the 1st Respondent are allowed in part.
  • Save for the affidavits of Twinomujuni, Mucunguzi, Twijukye, Asiimwe, Mpanga and the Petitioner, all other affidavits filed by the Petitioner are struck off the record.
  • The Petitioner is at liberty to file and serve affidavits in re-joinder to those served on her team on 28th January 2019 before 7th February 2019 in preparation for the hearing scheduled for 12th February 2019.

Rules and key headnotes

Electoral Law — Election Petitions — Procedure — Filing of Affidavit Evidence
Rule 8(3)(a) of the Parliamentary Elections (Interim Provisions) Rules provides for the filing of an affidavit in support of the answer to the petition within the prescribed time period, but nothing in the Rules restricts the respondent from filing additional affidavit evidence subsequent to the answer to the petition.
Evidence — Affidavits — Illiterate Deponents — Requirements under the Illiterates Protection Act and Oaths Act
Where an affidavit is sworn by an illiterate person through a third party who reads the contents to the deponent, the Commissioner for Oaths must certify that the affidavit was read over in his or her presence to the deponent and that the nature and contents were explained to the deponent. Failure to comply with this requirement of the Oaths Act renders the affidavit void as the defect goes to substance not form.
Evidence — Affidavits — Distinction between Preparation and Translation
Preparation of an affidavit and translation of its contents to an illiterate deponent are two different things and one cannot suffice for the other. The law requires strict compliance to preserve the sanctity of affidavit evidence and protect illiterate deponents.
Civil Procedure — Affidavits — Exhibits — Certification by Commissioner for Oaths
Exhibits attached to affidavits must be certified and sealed by the Commissioner for Oaths as required by the Commissioners for Oaths Advocates Rules. Failure to certify exhibits vitiates the annexures, though this defect may be rectified if it occasions no injustice to the opposing party.
Electoral Law — Election Petitions — Striking Out — Effect of Non-Compliant Affidavit Evidence
An election petition cannot be struck out merely because some of the supporting affidavits are found to be incompetent, provided the petition remains supported by other compliant affidavit evidence sufficient to sustain it.

Legislation cited (7)

Cases cited (9)

  • Bamukwatsa Betty v Winfred Masiko (Election Petition Appeal No.65 of 2016)
  • Bantalib Issa Taligola v The Electoral Commission and Wasugirya Bob Fred (Election Petition Appeal No.11 of 2006)
  • Mugema Peter v Mudyobole Nasser (Election Petition Appeal No.16 of 2016)
  • Lumu Richard v Makumbi Kamya Henry (Election Petition Appeal No.109 of 2016)
  • Nabukeera v Ronald Kibuule (Election Petition No.17 of 2011)
  • Lumu Richard Kizito v Makumbi Kamya Henry & Another (Election Petition Appeal No.0109 of 2016)
  • Nsubuga Silvest Ssekutu v Kalibala Charles & Electoral Commission (Election Petition Appeal No.70 of 2016)
  • Mugema Peter v Mudiobole Abedi Nasser (Election Petition Appeal No.0016 of 2016)
  • Egypt Air Corporation t/a Egypt Air v Suffish International Food Processors Ltd & Another (Supreme Court Civil Appeal No.14 of 2000)

Full judgment

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

Komuhangi Masiko v Bamukwatsa aka Muzanira Betty and Another (Election Petition No.004 of 2018) [2019] UGHC 104 (5 February 2019)
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.