Wakilii

Kwijukye Geoffrey v Electoral Commission & anor (Masaka Election Pet No. 07 of 2011)

High Court · [2011] UGHC 112 · 2011 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition challenging Local Council III elections for Chairperson on grounds of non-compliance with electoral laws and illegal practices
Decision
Petition dismissed; second respondent's election as LC III Chairman upheld despite findings of some electoral irregularities

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Election petition dismissed. Court found that while some irregularities occurred including cancellation of voting at one polling station and one instance of ghost voting, the petitioner failed to prove on a balance of probabilities that non-compliance with electoral laws or illegal practices substantially affected the election outcome. The second respondent was validly elected as Chairman LC III Ntutsi Sub-county with 3117 votes against the petitioner's 2657 votes.

Outcome

Petition dismissed; second respondent's election as LC III Chairman upheld despite findings of some electoral irregularities

Facts

Local Council III elections for Chairperson of Ntutsi Sub-county, Lwemiyaga Constituency, Sembabule District were held on 7 March 2011. Two candidates contested: the petitioner and the second respondent (both NRM supporters, though the petitioner contested as independent). The Electoral Commission declared the second respondent winner with 3117 votes against the petitioner's 2657 votes. The petitioner alleged multiple irregularities including unsealed ballot boxes, ballot stuffing, multiple voting, tampering with results, denial of Declaration of Results forms to his agents, and arrests and intimidation of his supporters and agents. The petitioner also alleged the second respondent committed illegal practices including bribery of voters and undue influence through detention and intimidation of the petitioner's campaign team and agents. Evidence was by affidavit with cross-examination of deponents.

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 offence was committed in connection with the election by the second respondent personally or with his knowledge, consent and 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.
  • The 1st respondent's officials committed some negligent acts leading to cancellation of elections at Kaishebwongyera polling station and multiple voting at Ntyazo, but such acts did not affect the results of the elections in any substantial manner.
  • Each party to bear their own costs.

Rules and key headnotes

Electoral Law — Burden and Standard of Proof — Balance of Probabilities with Slight Elevation
In an election petition, the petitioner bears the burden of proving the grounds to the satisfaction of the court on a balance of probabilities, although the standard is slightly higher than in ordinary civil cases because an election is of greater importance both to the individuals concerned and the nation at large, and the petitioner has a duty to adduce credible or cogent evidence.
Electoral Law — Non-Compliance — Substantiality Test
An election should not be annulled for minor errors, informalities 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 is of such a nature as to be fairly calculated in a rational mind to produce a substantial effect.
Electoral Law — Declaration of Results Forms — Effect of Signature by Agents
Signature by a candidate's agent of the Declaration of Results form confirms what transpired at the polling station. Whatever the agent does is on behalf of the candidate and binds that candidate. Where agents sign DR forms without indicating complaints, subsequent allegations of irregularities at those polling stations are undermined.
Electoral Law — Complaints Procedure — Written Complaints to Presiding Officer
Under the Parliamentary Elections Act (applicable to local council elections by virtue of 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, and a presiding officer must not refuse to receive such complaint and shall initial it and annex it as part of the official record. Where no written complaints were made to presiding officers and no reports made to police of alleged illegal detentions or irregularities, the credibility of subsequent allegations by agents who duly signed DR forms is put in issue.
Electoral Law — Illegal Practices — Bribery — Proof of Voter Status
To prove the illegal practice of bribery in an election petition, it must be established that the person allegedly bribed was a registered voter. Absence of evidence that the person alleged to have been bribed was a voter (by production of voter ID card and evidence on the polling day register) is a serious flaw, because unless one is a voter, he or she cannot be influenced to vote for a candidate. An allegation of being a registered voter without proof by attachment of voter ID card or reference to voter registration number is insufficient.
Electoral Law — Illegal Practices — Personal Commission or Knowledge and Consent Required
Under section 139(1)(c) of the Local Governments Act, an election will be set aside only if an illegal practice or offence was committed by the candidate personally or with his or her knowledge, consent and approval. Actions by supporters or third parties without proof that they were agents of the candidate acting with the candidate's knowledge, consent or approval are insufficient to establish liability of the candidate for illegal practices.
Evidence — Affidavits — Hearsay and Information-Based Evidence
Under Order 19 rule 3(1) of the Civil Procedure Rules, affidavits must 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 grounds are stated. An election petition is not interlocutory but final proceedings aimed at determining the merits of the case. Therefore affidavits admissible in such 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.

Legislation cited (12)

Cases cited (3)

  • Col. (Rtd) Dr. Kizza Besigye v Museveni Yoweri Kaguta and the Electoral Commission (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)

Full judgment

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

Kwijukye Geoffrey v Electoral Commission & anor (Masaka Election Pet No. 07 of 2011) [2011] UGHC 112 (7 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.