Wakilii

Nabukenya v Nakate and Anor (Parliamentary Election Petition No. 26 of 2016)

High Court · [2016] UGHCEP 16 · 2016 Petition Granted — Election Annulled AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Parliamentary election petition challenging the results of the District Woman Member of Parliament election for Luwero District held on 18 February 2016
Decision
Election annulled; fresh election ordered

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court annulled the parliamentary election results for Luwero District Woman Member of Parliament. The court found that the 1st Respondent's affidavit in reply was invalidly sworn, non-compliance with electoral law occurred at polling stations through voter intimidation and hijacking of vote counting, and bribery was committed by the 1st Respondent. The Electoral Commission failed to conduct a free and fair election, and the irregularities affected the results in a substantial manner.

Outcome

Election annulled; fresh election ordered

Facts

The petitioner, Nabukenya Brenda, lost the parliamentary election for District Woman Member of Parliament for Luwero District held on 18 February 2016. The Electoral Commission declared the 1st respondent, Nakate Lilian Segujja, as the winner. The petitioner alleged illegal practices, bribery, voter intimidation, and non-compliance with electoral laws. Evidence showed that at Galikwoleka Polling Station, the Presiding Officer was intimidated and fled, and the LCI Chairman Mugwanya Tofiri hijacked the vote counting process. At Kizito Polling Station, the village Chairperson voted multiple times with the connivance of the Presiding Officer. The 1st respondent attended a savings group meeting at Vumba Village and contributed UGX 100,000, which the court found to be bribery. The 1st respondent's affidavit in reply was rejected because cross-examination revealed she never appeared before a Commissioner for Oaths to swear it.

Issues

  1. Whether there was non-compliance with the provisions of the Parliamentary Elections Act, the Electoral Commission Act and the democratic principles governing the conduct of elections.
  2. Whether the non-compliance, if any, affected the elections in a substantial manner.
  3. Whether the alleged illegal practices or any of the electoral offences under the Parliamentary Elections Act were committed by the 1st Respondent personally or her agents with her knowledge and consent or approval.
  4. What are the remedies available to the parties?

Orders

  • The election of Nakate Lillian Segujja as District Woman Member of Parliament for Luwero District is annulled and set aside.
  • A new election shall be conducted in accordance with Section 61(2) and Section 3 of the Parliamentary Elections Act.
  • The Respondents shall jointly and severally pay the costs of this Petition.
  • Right of Appeal explained.

Rules and key headnotes

Electoral Law — Evidence — Affidavit Requirements — Validity of Affidavit Not Sworn Before Commissioner for Oaths
An affidavit signed but not sworn before a Commissioner for Oaths is a mere plain statement that cannot pass as a validly sworn affidavit. Where cross-examination reveals the deponent never appeared before a Commissioner for Oaths, the affidavit must be rejected regardless of where the venue is stated on the affidavit.
Electoral Law — Grounds for Setting Aside Election — Non-Compliance with Electoral Laws — Substantial Effect on Results
An election may be set aside on grounds of non-compliance with electoral laws where the court is satisfied there has been failure to conduct the election in accordance with the principles laid down in those provisions and that the non-compliance affected the results in a substantial manner. The substantial effect depends on the type of non-compliance or illegal practice, not merely numerical impact.
Electoral Law — Electoral Offences — Voter Intimidation and Hijacking of Polling Station — Loss of Electoral Commission Control
Where the Electoral Commission loses control of a polling station to violent citizens who intimidate and chase away the Presiding Officer and hijack the vote counting exercise, the results of that polling station cease to be credible election results and the election cannot be upheld as free and fair.
Electoral Law — Electoral Offences — Bribery — Campaign Contributions to Savings Groups
Where a parliamentary candidate during campaign period attends a savings group meeting and contributes money to the group while soliciting votes, such conduct constitutes bribery prohibited under the Parliamentary Elections Act regardless of the ostensible purpose of the contribution.
Electoral Law — Electoral Offences — Substantial Effect of Bribery — Democratic Principles
A single incident of bribery may have a far-reaching substantial effect on elections compared to validating a few invalid votes. Courts must condemn any single act of corruption and bribery as it affects not only results in the ballot boxes but also the minds and hearts of voters, and undermines democratic principles.
Electoral Law — Burden and Standard of Proof — Satisfaction of Court — Balance of Probabilities
In parliamentary election petitions, grounds for setting aside an election must be proved on a balance of probabilities to the satisfaction of court, meaning without leaving room for the court to harbor any reasonable doubt. The balance of probabilities is slightly higher than in ordinary civil cases.
Evidence — Affidavit Evidence — Cross-Examination — Viva Voce Evidence Confirming Defect in Affidavit
Where an affidavit is rejected on technical grounds, viva voce evidence given on oath before the trial judge during cross-examination is proper and valid evidence that the court must consider together with the fact that the affidavit has been rejected. Such oral evidence may confirm the invalidity of the affidavit.

Legislation cited (10)

Cases cited (3)

  • Col (Rtd) Kizza Besigye v Museveni Yoweri Kaguta and Another (Supreme Court Presidential Election Petition No. 1 of 2001)
  • Kakooza John Baptist v Electoral Commission and Yiga Anthony (Supreme Court Election Petition Appeal No. 11 of 2007)
  • Mugema Peter v Mudiobole Abed Nasser (Election Petition Appeal No. 30 of 2011)

Full judgment

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

Nabukenya v Nakate and Anor (Parliamentary Election Petition No. 26 of 2016) [2016] UGHCEP 16 (17 June 2016)
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.