Wakilii

Muwanga Kivumbi Muhammed v The Electoral Commission & Anor (Kampala Election Petition No. 018 of 2011)

High Court · [2011] UGHC 149 · 2011 Petition Granted — Election Set Aside AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition challenging the validity of Parliamentary election for Butambala Constituency following allegations of bribery by the successful candidate
Decision
Election of second respondent set aside; by-election ordered in Butambala Constituency

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 second respondent as Member of Parliament for Butambala Constituency after finding that he personally committed illegal practices by bribing voters with money, sodas, steamer lamps and other gifts at multiple campaign rallies across the constituency during the election period. The petitioner proved multiple instances of bribery through credible witness testimony and physical exhibits. A by-election was ordered.

Outcome

Election of second respondent set aside; by-election ordered in Butambala Constituency

Facts

The petitioner and second respondent were candidates in the 18 February 2011 Parliamentary election for Butambala Constituency. The second respondent won with 13,188 votes (48.21%) against the petitioner's 12,453 votes (45.53%), a difference of 735 votes. The first respondent (Electoral Commission) declared the second respondent winner. The petitioner filed an election petition alleging that the second respondent personally or through his agents bribed voters with money, cosmetics, steamer lamps, foodstuffs, cows and footballs during the campaign period. During trial, the petitioner withdrew the petition against the first respondent after conceding he had adduced no evidence of their failure to supervise the electoral process. Twenty-two specific allegations of bribery were raised, including donations of shs.100,000 at Gombe mosque distributed as shs.1,000 per voter, multiple steamer lamp donations to villages, and various cash gifts. The petitioner presented 62 affidavits in support; 23 deponents were cross-examined. The second respondent filed 69 affidavits denying all allegations; 22 deponents were cross-examined.

Issues

  1. Whether the second respondent committed any illegal practices or election offences personally or through his agents with his knowledge, consent or approval
  2. Whether the petitioner is entitled to the reliefs he seeks through the petition

Orders

  • The election of the second respondent as Member of Parliament for Butambala Constituency is set aside.
  • A by-election is ordered to be held in Butambala Constituency.
  • The petitioner shall recover his costs in relation to this petition from the second respondent.
  • As between the petitioner and the first respondent, the petition having been withdrawn, each party shall meet own costs.

Rules and key headnotes

Bribery — Standard of Proof — Balance of Probabilities with Higher Degree
In election petitions, proof of illegal practices must satisfy the court on the balance of probabilities, but the degree of probabilities required is higher than that which pertains ordinarily in civil suits, and the evidence must be substantial and cogent rather than merely raising suspicion.
Bribery — Essential Elements Under Parliamentary Elections Act s.68(1)
The essential elements of bribery under section 68(1) of the Parliamentary Elections Act are: (a) money or gift being given out by the candidate personally or through agents with the candidate's knowledge, consent or approval; (b) that the recipient was a registered voter; and (c) that the giving was with intent to influence the voter to vote or refrain from voting.
Illegal Practices — Single Illegal Practice Sufficient to Set Aside Election
Under section 61(1)(c) of the Parliamentary Elections Act, a single illegal practice or election offence, once proved by the petitioner to the satisfaction of the court, suffices to set aside an election, and the weight or significance of the bribe is immaterial as long as it was given for the purpose of influencing a voter.
Witness Credibility in Election Petitions — Need for Heightened Scrutiny
Courts must subject evidence in election petitions to a very high level of judicial scrutiny because witnesses on either side are often ardent supporters of the parties they represent and can be motivated by the continued desire to score victory to the political prize (power) through the judicial process, and may be tempted to peddle lies to achieve that objective.
Affidavit Evidence — Effect of Failure to Cross-Examine or Rebut
Where an affidavit containing material allegations is not challenged by any affidavit in rebuttal, is read out in court, and the deponent is not cross-examined on its contents, the inference to be drawn is that the contents of the affidavit are accepted as true by the opposing party.
Documentary Evidence — Annextures to Affidavits
Anything annexed to an affidavit presented before the registrar is part of that affidavit, and when the affidavit is read out in court in accordance with the Parliamentary Elections (Election Petition) Rules, the affidavit together with the annexture that forms part of it properly gets into evidence without need for separate exhibition.
Bribery — Gift to Village Community Versus Individual Recipients
Where a candidate donates a gift at a campaign rally to a village community generally rather than to specific individuals, and the motive for the donation in soliciting votes is clear, it is not necessary to prove that each recipient was a registered voter, as it is sufficient to establish that the gathering at the campaign rally included voters and that the gift was given to influence voting.

Legislation cited (8)

Cases cited (5)

  • Mbayo Jacob Robert v Electoral Commission & Talonsya Sinani (Election Petition Appeal No. 07 of 2006)
  • Opio John v Electoral Commission & Ogolla Jack (Election Petition No. 0019 of 2006)
  • Kadama E. Mwogezaddembe v Wambuzi Gagaggawala G.N. & Electoral Commission (Election Petition No. 02 of 2001)
  • Kasta Hussein Bukenya v Bukenya Balibaseka Gilbert & Electoral Commission (Election Petition No. 029 of 2011)
  • Mukasa Anthony Harris v Dr. Bayiga Michael Phillip Lulume (Supreme Court Election Petition No. 18 of 2007)

Full judgment

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

Muwanga Kivumbi Muhammed v The Electoral Commission & Anor (Kampala Election Petition No. 018 of 2011) [2011] UGHC 149 (12 October 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.