Wakilii

Mudiobole Abedi Nasser v Mugema Peter & Anor (Jinja Election Petition No. 07 of 2011)

High Court · [2011] UGHC 121 · 2011 Petition Granted — Election Set Aside AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition challenging the parliamentary election results for Iganga Municipality Constituency held on 18 February 2011
Decision
Election of 1st Respondent set aside; fresh elections ordered

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court set aside the election of the 1st Respondent as Member of Parliament for Iganga Municipality Constituency after finding that he committed an illegal practice under s.68(7) of the Parliamentary Elections Act 2005 by carrying on fundraising and donating UGX 100,000 at a prison chapel fundraising during the campaign period. The Court dismissed the majority of the Petitioner's claims including multiple allegations of bribery and electoral malpractices for lack of sufficient evidence, but held that a single proven illegal practice was sufficient to annul the election. The Electoral Commission was directed to conduct fresh elections.

Outcome

Election of 1st Respondent set aside; fresh elections ordered

Facts

The Electoral Commission conducted parliamentary elections on 18 February 2011 for Iganga Municipality Constituency. The 1st Respondent, an NRM candidate, was declared winner with 7,288 votes while the Petitioner, an FDC candidate, obtained 6,652 votes—a margin of 636 votes. The Petitioner filed this election petition alleging multiple electoral offences including bribery, intimidation, violence, and non-compliance with electoral laws. Specifically, the Petitioner alleged that the 1st Respondent distributed money, Panadol tablets, sugar, soap and other items to voters during the campaign period, participated in fundraising activities during the campaign, made sectarian statements, and that the 2nd Respondent failed to conduct the election in accordance with the law through ballot stuffing, multiple voting, and disenfranchisement of voters. The 1st Respondent denied most allegations, admitting only to participating in fundraising but denying any intent to influence voters.

Issues

  1. Whether in the conduct of the election by the 2nd Respondent there was non-compliance with the electoral laws and the principles therein.
  2. If so, whether the non-compliance affected the results of the elections in a substantial manner.
  3. Whether the 1st Respondent personally committed any illegal practices and/or electoral offences as alleged in the Petition.
  4. Whether the agents of the 1st Respondent committed any illegal practices or electoral offences alleged in the petition with the knowledge, consent or approval of the 1st Respondent.
  5. What remedies are available and to which party.

Orders

  • The election of Mugema Peter as Member of Parliament for Iganga Municipality Constituency is set aside.
  • The Electoral Commission is directed to organize and conduct fresh elections for the Constituency pursuant to the provisions of the Law.
  • The 1st Respondent shall pay 40% of the Petitioner's taxed costs.
  • As between the Petitioner and the 2nd Respondent, each party shall bear its own costs.

Rules and key headnotes

Electoral Offences — Fundraising During Campaign Period — Strict Liability
Under s.68(7) of the Parliamentary Elections Act 2005, which prohibits a candidate from carrying on fundraising or giving donations during the period of campaigning, the intention or purpose of the candidate is not an ingredient of the offence. The law strictly prohibits fundraising or giving donations by candidates during the campaign period regardless of the candidate's intention or the absence of intent to influence voters.
Electoral Bribery — Requirements for Proof — Status of Receiver as Registered Voter
The offence of electoral bribery under s.68(1) of the Parliamentary Elections Act is not committed unless the money, gift or other consideration is given to a person who is proved to be a registered voter in the constituency. The receiver must be capable of voting and a high degree of specificity is required: the agent must be named, the receiver must be named and proved to be a voter, and the purpose must be to influence that voter.
Election Petitions — Burden and Standard of Proof — Balance of Probabilities to Satisfaction of Court
In election petitions, the burden of proof lies upon the Petitioner on a balance of probabilities to prove the grounds upon which he bases his petition to the satisfaction of the court. The standard of proof is higher than in an ordinary civil case and is similar to the standard required to establish fraud, though not as high as in criminal cases where proof beyond reasonable doubt is required. The subject matter of an election petition is of critical importance to the welfare of the people and their democratic governance.
Election Petitions — Single Illegal Practice Sufficient to Annul Election
Under s.61(1)(c) of the Parliamentary Elections Act, a single illegal practice or offence under the Act, if proved to the satisfaction of the court, is enough ground to set aside the election of a candidate as a Member of Parliament. The law does not require a combination of illegal practices or offences. As a general rule, due proof of a single act of bribery or illegal practice by a candidate, however insignificant the act may be, is sufficient to invalidate the election.
Affidavit Evidence — Proper Commissioning — Personal Appearance Before Commissioner for Oaths
For an affidavit to be valid, the deponent must personally appear and sign the affidavit before the Commissioner for Oaths who must satisfy himself that the person named as deponent and the person before him are the same and that the person is in a fit state to understand what he is doing. The Commissioner must administer the oath by having the deponent say or repeat the prescribed words. An affidavit signed before counsel rather than before the stated Commissioner for Oaths is incompetent and should be struck out.
Agency in Electoral Matters — Party Leaders and Officials Not Automatic Agents of Candidates
A leader of a political party or party official is not necessarily an agent of every candidate of that party. An agent is ordinarily a person authorized by a candidate to act on his behalf under instructions and control of the candidate. A party leader does not act under the instructions of a candidate or under his control. There is no such relationship of agency between a candidate and party leaders; the candidate is bound by acts of his agent because of authority given by the candidate to act on his behalf, but there is no such relationship between the candidate and party leaders.
Accomplice Evidence — Corroboration Requirement — Receiver of Alleged Bribe
Under s.68(2) of the Parliamentary Elections Act, a person who receives money, gift or other consideration as a bribe commits an offence. Evidence of a receiver who confesses to receiving a bribe is evidence of an accomplice and requires independent corroborative evidence to confirm what actually happened. Such evidence must be viewed with caution and cannot alone satisfy the court without corroboration from an independent source.

Legislation cited (19)

Cases cited (16)

  • Kizza Besigye v Museveni Yoweri Kaguta & Anor (Presidential Election Petition No. 1 of 2001)
  • Kizza Besigye v Electoral Commission & Anor (Presidential Election Petition No. 1 of 2006)
  • Masiko Winifred Komuhangi and Babihuga J Winnie (Election Petition Appeal No. 9 of 2001)
  • Checkunir Sungohor Christopher v Electoral Commission & Anor (Civil Application No. 5 of 2003)
  • Uganda Journalist Safety Committee & Others v Attorney General (Constitutional Petition No. 7 of 1997)
  • Kakooza John Baptist v Electoral Commission & Anor (Election Petition Appeal No. 1 of 2007)
  • Blyth Vs Blyth (1966) AC 643
  • Banatib Issa Taligola Vs EC and Wasugirya Bob Fred
  • Karokora v EC and Kagonyera (Election Petition No. 002 of 2001)
  • Paul Mwiru Vs Igeme Nathan Samson Nabeeta, EC & NCHE
  • Mbayo Jacobs v Electoral Commission & Anor (Election Petition Appeal No. 7 of 2006)
  • Nelson Vs A.G & Anor (1999) EA 160 (CAT )
  • Namboze Betty Bakireke v Bakaluba Peter Mukose & Anor (Election Petition No. 14 of 2006)
  • Fred Badda and EC v Prof Muyanda Mutebi (Election Petition Appeal No. 21 of 2007)
  • Shaban Sadeq Nkutu v Asuman Kyafu & Anor (Election Petition No. 08 of 2006)
  • Zambia Supreme Court Election Petition No. 1 of 2006, Anderson Kambela Mugooka & Others Vs Patrick Mwanawasa, EC & AG

Full judgment

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

Mudiobole Abedi Nasser Vs Mugema Peter & Anor (Jinja Election Petition No. 07 of 2011) [2011] UGHC 121 (19 August 2011)
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