Wakilii

Mawanda V Electoral Commission & Anor (Election Appeal No. 98 of 2016)

Court of Appeal · [2017] UGCA 32 · 2017 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal to the Court of Appeal from a High Court decision dismissing an election petition
Decision
Election of the 2nd respondent annulled and fresh parliamentary elections ordered for Igara County East Constituency

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Holding

The Court of Appeal allowed the appeal against the 2nd respondent. It held that the 2nd respondent committed bribery contrary to s.68(1) of the Parliamentary Elections Act by causing an agent to pay a voter, and made a false statement about the appellant's character contrary to s.73 by causing distribution of defamatory flyers. Either offence, once proved, is sufficient under s.61(1)(c) to annul the election. The Court also found the Electoral Commission breached its mandatory duty under s.28A(2), but this non-compliance was not shown to have substantially affected the results. The election was annulled and fresh elections ordered.

Outcome

Election of the 2nd respondent annulled and fresh parliamentary elections ordered for Igara County East Constituency

Facts

The appellant contested as an independent candidate for the Igara County East parliamentary seat. The 2nd respondent polled 15,983 votes and was declared winner, while the appellant polled 15,091. The appellant petitioned the High Court to annul the election, alleging non-compliance by the Electoral Commission and bribery and publication of false defamatory statements by the 2nd respondent. Evidence included affidavits and electronic recordings. The trial court found the recording media empty and dismissed the petition. On appeal, the Court of Appeal examined the DVDs and CDs, finding they were not actually empty but contained untranscribed and untranslated vernacular recordings. The Court found the 2nd respondent hired a boda boda rider to transport a person who distributed defamatory flyers (B1 and B2) alleging the appellant was wanted in India, and that an agent, Barirere James, paid a voter Shs.20,000 on the 2nd respondent's instructions. The Electoral Commission failed to supply serial numbers of ballot papers and seals under s.28A(2), but this was not shown to have substantially affected results.

Issues

  1. Whether there was non-compliance with the provisions of the Parliamentary Elections Act, the Electoral Commission Act and the principles therein.
  2. Whether the non-compliance affected the results of the elections in a substantial manner.
  3. Whether the 2nd respondent personally or through his agents with his knowledge, consent or approval committed any illegal acts and/or electoral offences.
  4. Whether the evidence covered in the videos and audio recordings is credible and authentic.
  5. What remedies are available to the parties.

Orders

  • Appeal allowed with costs against the 2nd respondent.
  • The election of the 2nd respondent is annulled.
  • Fresh parliamentary elections are ordered for the Igara County East Constituency.
  • The appellant shall pay the 1st respondent's costs here and below, as the appeal against the 1st respondent failed.

Rules and key headnotes

Electoral Law — Bribery — Candidate liability for acts of agents under s.68(1) Parliamentary Elections Act
Where an agent, on the instructions of a candidate, pays money to a voter to induce a vote, the candidate is liable for the illegal act of bribery contrary to section 68(1) of the Parliamentary Elections Act.
Electoral Law — False statements — Causing publication of defamatory material under s.73 Parliamentary Elections Act
A candidate who causes the publication of a false statement concerning the personal character of an opposing candidate, knowing or having reason to believe it to be false, commits an offence under section 73 of the Parliamentary Elections Act; causing distribution through a hired third party amounts to causing publication even where the candidate did not author the statement.
Electoral Law — Grounds for annulment — Sufficiency of a single illegal practice under s.61(1)(c)
The commission of an illegal practice or electoral offence by a candidate personally or with his knowledge, consent or approval, once proved to the satisfaction of the court, is in itself sufficient under section 61(1)(c) of the Parliamentary Elections Act to annul the election of a candidate as a Member of Parliament.
Electoral Law — Electoral Commission duties — Mandatory supply of ballot serial numbers under s.28A(2)
Section 28A(2) of the Parliamentary Elections Act imposes a mandatory duty on the Electoral Commission to supply serial numbers of ballot papers and seals to candidates within twenty-four hours before polling day; this duty is not contingent on a request by a candidate.
Electoral Law — Non-compliance — Requirement to prove substantial effect on results
Non-compliance by the Electoral Commission with the electoral law does not annul an election unless the petitioner proves that the non-compliance affected the results in a substantial manner; a mere suggestion that non-compliance made malpractice possible is insufficient.
Evidence — Documents admitted for identification — Reliance requires proof in the ordinary way
Documents admitted merely for identification cannot be relied upon as evidence unless subsequently proved in accordance with the law of documentary evidence; a court errs in treating identified but unproved and irrelevant documents as substantive evidence.
Evidence — Electronic recordings — Requirement of transcription and translation into the language of the court
A party seeking to rely on video or audio recordings not in the language of the court must produce transcripts and certified translations supported by affidavits; recordings not so transformed cannot be assessed by the court even where they are shown not to be empty.

Legislation cited (6)

Cases cited (4)

  • Ashmore v Corporation of Lloyd's [1992] 2 All ER 486
  • Fredrick Zaabwe v Orient Bank Ltd (Civil Appeal No. 4 of 2006)
  • Col (Rtd) Kiiza Besigye v Electoral Commission (Election Petition No. 1 of 2006)
  • Kirunda Kivejinja Ali v Electoral Commission (Election Petition Appeal No. 24 of 2006)

Full judgment

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

Mawanda V Electoral Commission & Anor (Election Appeal No. 98 of 2016) [2017] UGCA 32 (3 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.