Wakilii

Kwijuka v Electoral Commission and Anor (Election Petition No. 7 of 2011)

High Court · [2011] UGHCEP 5 · 2011 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition challenging the results of Local Council III Chairperson elections for Ntutsi Sub-county
Decision
Petition dismissed; 2nd respondent's election declared valid; no order as to costs despite dismissal due to finding of some genuine complaints and need to reduce tensions in the electoral area

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that although the Electoral Commission's officials committed some negligent acts leading to cancellation of elections at one polling station and evidence showed one instance of multiple voting, these irregularities did not affect the election results in a substantial manner. The petitioner failed to prove allegations of bribery to the required standard as witnesses did not prove they were registered voters. The petitioner failed to prove that the 2nd respondent personally committed or had knowledge, consent or approval of alleged illegal practices. Petition dismissed, election of 2nd respondent as Chairman LC III Ntutsi Sub-county declared valid.

Outcome

Petition dismissed; 2nd respondent's election declared valid; no order as to costs despite dismissal due to finding of some genuine complaints and need to reduce tensions in the electoral area

Facts

Local Council III elections for Chairperson Ntutsi Sub-county, Lwemiyaga Constituency, Sembabule District were held on 7 March 2011. The Electoral Commission declared the 2nd respondent (NRM candidate) the winner with 3117 votes against the petitioner's 2657 votes. The petitioner, an NRM supporter who contested as an independent, filed a petition alleging non-compliance with electoral laws, ballot stuffing, multiple voting, tampering with results, bribery, and undue influence. Evidence was by way of affidavits with cross-examination. The petitioner alleged irregularities at multiple polling stations including delivery of unsealed ballot boxes, ballot stuffing, denial of DR forms to agents, and intimidation and arrest of his agents. The Returning Officer cancelled results at Kaishebwongyera polling station due to ballot stuffing. The petitioner alleged the 2nd respondent bribed six voters with cash between UGX 10,000 and UGX 100,000 on the eve of elections.

Issues

  1. Whether there was failure to conduct the election in accordance with the provisions of the Local Governments Act and whether such non-compliance affected the result of the election in a substantial manner.
  2. Whether an illegal practice or any other offence under the Local Governments Act was committed in connection with the election by the candidate personally or with his knowledge and consent or approval.
  3. What remedies are available to the parties.

Orders

  • Petition dismissed.
  • The 2nd respondent was validly elected as Chairman L.C. III Ntutsi Sub-county, Lwemiyaga Constituency, Sembabule District.
  • Although the 1st respondent's officials were found to have committed some negligent acts leading to cancellation of elections at Kaishebwongyera polling station and multiple voting at Ntyazo, such acts did not affect the results of the elections in any substantial manner.
  • Each party shall bear their own costs.

Rules and key headnotes

Electoral Law — Election Petitions — Burden and Standard of Proof
In an election petition, the petitioner bears the burden of proving the grounds of the petition to the satisfaction of the court on a balance of probabilities, although at a standard slightly higher than in ordinary civil cases, because an election is of greater importance both to the individuals concerned and the nation at large. The petitioner has a duty to adduce credible or cogent evidence to prove allegations at the required standard of proof.
Electoral Law — Grounds for Setting Aside Elections — Substantial Effect Required
An election should not be annulled for minor errors or trivialities. The objection must be something substantial, something calculated to affect the result of the election. The court must look to the substance of the case to see whether the informality or irregularity is of such a nature as to be fairly calculated in a rational mind to produce a substantial effect on the result.
Electoral Law — Election Petitions — Complaints During Polling — Mandatory Written Record
Under the Parliamentary Elections Act (as applicable to local council elections under section 172 of the Local Governments Act), candidates' agents and voters present at a polling station may raise and present in writing complaints relating to voting at the polling station. A presiding officer shall not refuse to receive a complaint and must initial every such presentation and annex it as part of the official record of the polling station. Where polling agents sign Declaration of Results Forms without registering written complaints despite alleged irregularities, this significantly undermines the credibility of subsequent allegations in an election petition.
Electoral Law — Illegal Practices — Bribery — Proof of Voter Status
To prove the illegal practice of bribery in an election petition, the petitioner must establish: (1) that a gift was given to a voter; (2) the gift was given by a candidate or his agent; and (3) it was given with the intention of inducing the person to vote. A person alleged to have been bribed must be proved to be a registered voter in the relevant electoral area. This is proved by attaching a voter ID card to the affidavit and the polling day register to ensure actual registration for the polls in issue. Mere allegation of being a registered voter without proof is insufficient.
Electoral Law — Illegal Practices — Knowledge, Consent or Approval of Candidate
Under section 139(1)(c) of the Local Governments Act, an election will be set aside if an illegal practice or offence was committed by the candidate personally or with his or her knowledge and consent or approval. Where alleged electoral offences such as intimidation, arrest or detention of agents are committed by police or supporters, the petitioner must adduce evidence establishing a link between those acts and the candidate's personal involvement, knowledge, consent or approval. The candidate cannot be held responsible for actions of police or unnamed supporters without proof of such connection.
Evidence — Affidavit Evidence — Hearsay and Information Not Admissible
Under Order 19 rule 3(1) of the Civil Procedure Rules, affidavits shall be confined to such facts as the deponent is able of his or her own knowledge to prove, except on interlocutory applications where statements of belief may be admitted provided the grounds thereof are stated. An election petition is not interlocutory proceedings but final proceedings aimed at determining the merits of the case. Therefore affidavits admissible in election petition proceedings must be based on the deponent's own knowledge, not on information and belief. Affidavits containing allegations obtained from information from others are incurably defective.
Electoral Law — Election Petitions — Parties Bound by Pleadings
Parties are bound by their pleadings under Order 6 Rule 7 of the Civil Procedure Rules. A party cannot prove what was not pleaded except through amendment with leave of court. Where the petition does not plead bribery but it is mentioned only in the supporting affidavit, this is a departure from the petition, although the court may still examine the evidence.

Legislation cited (18)

Cases cited (4)

  • Kizza Besigye v Museveni Yoweri Kaguta and Anor (Presidential Election Petition No. 1 of 2001)
  • Borough of Hackney Gill Vs Reed [1874] XXXI L.J. 69
  • Masiko Winnie Komuhangi v Babihuga Winnie (Election Petition Appeal No. 9 of 2002)
  • Kizza Besigye v Museveni Yoweri Kaguta (Presidential 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.

Kwijuka v Electoral Commission and Anor (Election Petition No. 7 of 2011) [2011] UGHCEP 5 (8 August 2011)
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.