Wakilii

Nabukeera Hussein Hanifah v Kusasira Peace K. Mubiru (Election Petition Appeal No. 67 of 2016)

Court of Appeal · [2017] UGCA 52 · 2017 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from the High Court dismissal of an election petition challenging a parliamentary election result
Decision
Election result upheld; appeal partly succeeded on grounds 2, 3, 7 and 9 but failed overall on grounds 1, 4, 5, 6, 8 and 10

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal partly allowed the appeal, holding that the trial Judge did not apply a higher standard of proof and correctly relied on the balance-of-probabilities standard. It struck out affidavits procured through intimidation and disregarded improperly commissioned affidavits the trial Judge had wrongly relied on. However, the court held that proof a recipient was a registered voter requires the National Voters' Register, not merely a National ID; consequently none of the bribery allegations were proved. Non-compliance in cancelling results at five polling stations was not shown to have substantially affected the result. The election result was upheld despite several grounds succeeding.

Outcome

Election result upheld; appeal partly succeeded on grounds 2, 3, 7 and 9 but failed overall on grounds 1, 4, 5, 6, 8 and 10

Facts

The appellant, the 1st respondent and three others contested the Woman Member of Parliament seat for Mukono District on 18 February 2016. The 1st respondent was declared winner by the Electoral Commission. The appellant petitioned the High Court alleging non-compliance with electoral laws and that the 1st respondent committed voter bribery personally and through agents at several locations including Namuganga S.S.S, Namasumbi-Ntonto, Kasangalabi, Kyanika P/S, Kasiso-Kitale and Kabumba Village. Some of the petitioner's witnesses first swore affidavits alleging bribery, then swore affidavits recanting, then swore rejoinders alleging they had been coerced by the 1st respondent's lawyers into recanting. Results at five polling stations were cancelled by the Returning Officer due to discrepancies in ballot papers. Allegations of ballot box tampering and violence at Bamuzale Gardens were also raised. The trial Judge dismissed the petition, prompting this appeal.

Issues

  1. Whether the trial Judge placed a higher burden of proof on the petitioner than required by law.
  2. Whether affidavits procured through intimidation could operate to recant the witnesses' earlier evidence.
  3. Whether the trial Judge erred in relying on affidavits he had already expunged.
  4. Whether attaching a National Identity Card is sufficient proof that a person is a registered voter for purposes of proving bribery.
  5. Whether the 1st respondent committed voter bribery personally or through agents with her knowledge and consent.
  6. Whether the elections were substantially conducted in compliance with the electoral laws and whether any non-compliance affected the result in a substantial manner.

Orders

  • The elections for the Woman Member of Parliament for Mukono District and subsequent declaration are upheld.
  • The respondent is entitled to half of the costs of this Appeal and full costs in the High Court.

Rules and key headnotes

Election Petitions — Standard of Proof — Proof to the Satisfaction of Court
In a parliamentary election petition the burden lies on the petitioner and the standard of proof is on a balance of probabilities under section 61(3) of the Parliamentary Elections Act; the phrase 'proved to the satisfaction of court' connotes absence of reasonable doubt but does not require proof beyond reasonable doubt as in criminal matters.
Affidavits — Recantation Procured by Intimidation — Advocates' Professional Conduct
Affidavits procured from opposing witnesses through intimidation or coercion, in contravention of rule 19 of the Advocates (Professional Conduct) Regulations, cannot operate to recant the witnesses' earlier properly sworn evidence and must be struck out.
Affidavits — Improper Commissioning — Inadmissibility
Affidavits that are undated or that are commissioned contrary to the Oaths Act and the Commissioner for Oaths (Advocates) Act are inadmissible, cannot form part of the record, and a court that purports to expunge them cannot later rely on their contents.
Bribery — Proof of Registered Voter Status
To prove voter bribery it must be shown that the recipient was a registered voter; conclusive proof is evidence of the person's name appearing in the National Voters' Register, and a National Identity Card alone is insufficient.
Election Petitions — Gathering of Evidence After Declaration of Results
An aggrieved party has a right to gather evidence in support of an election petition after the results are declared, and subsequent or additional affidavit evidence is admissible; it is speculative to fault a petitioner for collecting such evidence or to treat it as fabrication without proof.
Non-Compliance — Substantial Effect Requirement — Declaration of Results Forms
Under section 61(1)(a) of the Parliamentary Elections Act a petitioner must prove both non-compliance and that it affected the result in a substantial manner; where agents sign the Declaration of Results Forms without complaint, this is conclusive evidence that the election at that station was free and fair.

Legislation cited (14)

Cases cited (18)

  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Bank of Uganda v Banco Arabe Espanol (Civil Appeal No. 8 of 1998)
  • Mukasa Anthony Harris v Bayiga Michael Philip Lulume (Election Petition Appeal No. 18 of 2007)
  • Masiko Winifred Komuhangi v Babihuga J. Winnie (Election Petition Appeal No. 9 of 2002)
  • Paul Mwiru v Igeme Nathan Nabeta and 2 Others (Election Petition Appeal No. 6 of 2011)
  • Besigye Kizza v Museveni Yoweri Kaguta (Presidential Election Petition No. 1 of 2001)
  • Blyth v Blyth [1966] AC 643
  • Kamba Saleh Moses v Namuyangu Jeniffer (Election Petition Appeal No. 27 of 2011)
  • Kintu Alex Brandon v Electoral Commission and Walyomu Moses (Election Petition Appeal No. 64 of 2016)
  • Ourum Okiror Sam v Electoral Commission and Ochwa David (Election Petition No. 8 of 2011)
  • Mutembuli Yusuf v Nagwomu and the Electoral Commission (Election Petition No. 13 of 2016)
  • Chebrot Stephen Chemoiko v Soyekwo Kenneth and the Electoral Commission (Election Petition Appeal No. 56 of 2016)
  • Amama Mbabazi v Yoweri Museveni (Presidential Election Petition No. 1 of 2016)
  • Kabuusa Moses Wagaba v Lwanga Timothy (Election Petition Appeal No. 53 of 2011)
  • Otada Sam Amooti Owor v Tabani Idi Amin and the Electoral Commission (Election Petition Appeal No. 93 of 2016)
  • Bantalibu Issa Taligola v Wasugirya Bob Fred (Election Petition Appeal No. 11 of 2006)
  • Sekigozi Stephen v Sematimba Peter and Electoral Commission (Election Petition No. 10 of 2016)
  • Mbagadhi Frederick Nkayi and Another v Nabwiso Frank Wilberforce (Election Petition Appeals No. 14 and 16 of 2011)

Full judgment

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

Nabukeera Hussein Hanifah v Kusasira Peace K. Mubiru (Election Petition Appeal No. 67 of 2016) [2017] UGCA 52 (20 November 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.