Wakilii

Nabakooba v Electoral Commission and Anor (Election Petition No. 1 of 2021)

High Court · [2021] UGHCEP 33 · 2021 Petition Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition challenging the validity of the Woman Member of Parliament election for Mityana District held on 14 January 2021
Decision
Election set aside; by-election ordered

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court found that the 2nd Respondent through her agents committed the electoral offence of bribery with her knowledge and approval, and that non-compliance with electoral laws occurred at 11 polling stations, though this did not affect the result in a substantial manner due to the 16,311-vote winning margin. Nevertheless, the court set aside the election solely on the proven ground of bribery, as a single electoral offence once proved is sufficient to annul an election under the Parliamentary Elections Act 2005 s.61(1)(c).

Outcome

Election set aside; by-election ordered

Facts

On 14 January 2021, elections for Woman Member of Parliament for Mityana District were held. The 2nd Respondent polled 64,633 votes, the Petitioner 48,322 votes, and a third candidate 1,515 votes. The Electoral Commission declared the 2nd Respondent the winner. The Petitioner challenged the election, alleging non-compliance with electoral laws and illegal practices including bribery, unauthorized voting, forcing agents to sign Declaration of Result forms before voting commenced, failure to use biometric voter verification machines, and multiple voting at various polling stations. Multiple polling officials testified they allowed unregistered voters to vote and gave multiple ballot papers to voters on instructions from supervisors. Several voters and polling officials testified to receiving or distributing money from Francis Butebi Sembusi and other agents to voters to influence them to vote for the 2nd Respondent. Evidence showed Hon. Francis Zaake, who campaigned for the 2nd Respondent, also distributed money to voters.

Issues

  1. Whether there was non-compliance with the electoral laws and the principles laid down in the electoral laws during the conduct of elections for Woman Member of Parliament Mityana district in the 2021 general elections.
  2. Whether the non-compliance affected the result of the election in a substantial manner.
  3. Whether the 2nd Respondent personally or through her Agents, with her knowledge or consent and approval committed the alleged electoral offences and illegal acts.
  4. Whether the Petitioner is entitled to the remedies sought.

Orders

  • The election of the 2nd Respondent as Woman Member of Parliament for Mityana District Constituency is set aside.
  • A by-election is ordered to be held in Mityana District Constituency for the Woman Member of Parliament.
  • The Petitioner is awarded the costs of this Petition.

Rules and key headnotes

Electoral Law — Election Petitions — Burden and Standard of Proof
The burden of proof in an election petition lies on the petitioner to prove the case to the satisfaction of court, and the standard of proof is on a balance of probabilities under s.61(3) of the Parliamentary Elections Act 2005, though slightly higher than in ordinary civil cases but lower than beyond reasonable doubt.
Electoral Law — Preliminary Objections — Fair Hearing — Timing of Objections
Preliminary objections to the competence of an election petition on grounds of illegality must be raised at the hearing stage to afford the other party an opportunity to respond, and cannot be raised for the first time through written submissions after the hearing has closed, as this violates the Constitutional right to a fair hearing under Article 28(1).
Electoral Law — Non-Compliance — Substantial Effect on Results
Non-compliance with electoral laws per se is not enough to overturn an election; the non-compliance must be so significant as to substantially affect the result of the election under s.61(1)(a) of the Parliamentary Elections Act 2005, requiring evaluation of the whole electoral process and the degree of effect including numerical impact.
Electoral Law — Bribery — Essential Elements and Proof
The essential elements of bribery are that money or a gift was given to a voter by the candidate personally or by an agent, with intent to influence the voter to vote in a certain way or refrain from voting, and direct first-hand evidence with sufficient detail is required to prove bribery given its dire consequences.
Electoral Law — Agency — Liability of Candidate for Acts of Agents
Any person whom the candidate puts in his or her place to do a portion of the task of procuring election as a Member of Parliament is an agent for whose acts the candidate will be liable, and where a candidate concedes that a person campaigned on their behalf, the candidate is liable for that person's electoral offences.
Electoral Law — Electoral Offences — Single Offence Sufficient to Annul Election
A single electoral offence or illegal practice under the Parliamentary Elections Act, once proved under the requisite standard of proof, is a sufficient ground for setting aside an election under s.61(1)(c), and court does not require a multiplicity of incidents to annul an election.

Legislation cited (36)

Cases cited (22)

  • Col (RTD) Dr. Kiiza Besigye v Yoweri Museveni Kaguta (Election Petition No. 1 of 2001)
  • Odo Tayebwa v Basajjabalaba Nasser and Electoral Commission (Election Petition Appeal No. 13 of 2011)
  • Mukasa Anthony Harris v Dr. Bayiga Michael Philip Lulume (SCCA No. 18 of 2007)
  • Fred Badda and Another v Prof Muyanda Mutebi (Election Petition Appeal No. 25 of 2006)
  • Inid Tumwebaze v Mpweire Stephen and Another (CV-CA No. 39 of 2010)
  • Makula International Ltd v His Eminence Cardinal Nsubuga and Another [1982] HCB 11
  • Suubi Kinyamatama Juliet v Sentongo Robinah Nakasirye (Election Petition Appeal No. 92 of 2016)
  • Abala David v Acayo Juliet Lodou and Another (HC EP No. 4 of 2021)
  • Apama Amato Boroa v Obiga Kania and Electoral Commission (HC EP No. 2 of 2021)
  • Mutembuli Yusuf v Nagwomu Moses Muamba and Electoral Commission (Election Petition Appeal No. 43 of 2016)
  • MS Fang Min v Belex Tours & Travel Ltd (SCCA No. 6 of 2013)
  • Pontrilas Investments Ltd v Central Bank of Kenya and Another (EACJ Ref No. 8 of 2017)
  • Akugizibwe Lawrence v Muhumuza David and Others (Election Appeal No. 22 of 2016)
  • Betty Muzanira Bamukwatsa v Masiko Winifred Komuhangi and Another (Election Appeal No. 65 of 2016)
  • Kyakulaga and Electoral Commission v Waguma (EPA No. 15 and 20 of 2016)
  • Ernest Kiizza v Labwoni Masiko (EPA No. 44 of 2016)
  • Mujuni Vincent Kyamadidi v Charles Ngabirano and Electoral Commission (EPA No. 20 of 2016)
  • Tunde Mary v Kunihira Agnes and Electoral Commission (EPA No. 36 of 2016)
  • Kintu Alex Brandon v Electoral Commission and Walyomu Moses (EPA No. 64 of 2006)
  • Odo Tayebwa v Nasser Basajjabalaba (EPA No. 13 of 2001)
  • Kikulukunyu Faisal v Muwanga Kivumbi Mohammed (Election Petition Appeal No. 44 of 2011)
  • Odo Tayebwa v Arinda Gorson Kakuuna and Electoral Commission (Election Petition Appeal No. 86 of 2016)

Full judgment

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

Nabakooba v Electoral Commission and Anor (Election Petition No. 1 of 2021) [2021] UGHCEP 33 (22 October 2021)
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.