Wakilii

Ntende v Isabirye and 2 Others (Election Petition No. 13 of 2021)

High Court · [2021] UGHCEP 34 · 2021 Petition Granted — Election Set Aside AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition challenging parliamentary election results held on 14 January 2021 for Bunya South Constituency on grounds of non-compliance with electoral laws and illegal practices
Decision
Election set aside and seat declared vacant; fresh election ordered

Observed later treatment

Cited — treatment unverified cited in 4 (treatment unverified) Sequitur — Uganda’s citator · Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

No adverse treatment recorded Cited 4 times with no adverse treatment recorded; not yet tested on the merits. Derived from citing cases in the Wakilii corpus — a deterministic signal, not legal advice.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

Held that the 1st Respondent personally committed illegal practices of bribery under sections 68(1) and (2) of the Parliamentary Elections Act by giving money to voters on three separate occasions to induce them to vote for him, and unlawfully gave donations during the campaign period under section 68(7). The 2nd and 3rd Respondents committed the electoral offence of making wrong returns by publishing incorrect results in the gazette. Although there was non-compliance with electoral laws at ten polling stations, the non-compliance did not affect the results in a substantial manner. The election of the 1st Respondent was set aside solely on the grounds of proven illegal practices.

Outcome

Election set aside and seat declared vacant; fresh election ordered

Facts

Parliamentary elections were held on 14 January 2021 for Bunya South Constituency, Mayuge District. Seven candidates contested. According to the Return Form for Transmission of Results, the 1st Respondent obtained 17,294 votes while the Petitioner obtained 14,913 votes. However, the Electoral Commission gazette dated 17 February 2021 published incorrect figures showing the 1st Respondent with 19,833 votes and the Petitioner with 14,364 votes. The Petitioner challenged the election on grounds of non-compliance with electoral laws, alleging widespread multiple voting and ballot stuffing at ten polling stations in Malongo Sub-County, and illegal practices including bribery and donations by the 1st Respondent. A preliminary objection was raised concerning 21 affidavits by illiterate deponents supporting the 1st Respondent's case, alleging non-compliance with the Illiterates Protection Act and Oaths Act.

Issues

  1. Whether there was non-compliance with the principles laid down in the electoral laws and if so, whether the non-compliance affected the results in a substantial manner
  2. Whether the 1st Respondent committed any illegal practices or electoral offences personally or through his agents with his knowledge and consent or approval during the election
  3. What remedies are available to the parties

Orders

  • Election petition allowed with costs against the Respondents.
  • Election of the 1st Respondent as Member of Parliament for Bunya County South Constituency, Mayuge District is set aside.
  • Seat for Bunya County South Constituency, Mayuge District is declared vacant.
  • Fresh election shall be held.
  • Certificate for two Counsel issued.

Rules and key headnotes

Affidavits by Illiterate Deponents — Compliance with Illiterates Protection Act
Where an interpreter of affidavits by illiterate deponents includes his full name and physical address in the certification and states that he read and explained the contents to the deponent who understood and signed, this substantially complies with section 3 of the Illiterates Protection Act Cap 78 notwithstanding the absence of a specific jurat confirming the interpreter took an oath, provided the certification implies that interpretation occurred and the illiterate deponent understood the document.
Bribery — Proof and Elements
To succeed in proving bribery under sections 68(1) and (2) of the Parliamentary Elections Act, the Petitioner must prove to the satisfaction of the court that: (a) the gift was given to a voter; (b) the money or gift was given by a candidate or through an agent; and (c) the giving of money or gift was with the intention to influence voters. The court does not require multiplicity of incidents; a single incident of bribery, once committed by the candidate, suffices if proved to the required standard.
Electronic Evidence — Chain of Evidence and Authenticity
Where electronic evidence in the form of a video recording is adduced, a clear chain of evidence must be established showing how the recording was obtained and transmitted to any expert who transcribed or translated it. A break in the chain of evidence raises issues of credibility and authenticity that affect the evidentiary weight to be attached to such evidence, even where the evidence is admissible.
Non-compliance — Substantial Effect on Results
Non-compliance with electoral laws affects the results in a substantial manner where the votes a candidate obtained would have been different in a substantial manner but for the non-compliance. Substantiality means the Petitioner need not prove the declared candidate would have lost, but must prove the winning majority would have been reduced such that it would put the victory in doubt.
Unchallenged Evidence — Effect of Failure to Cross-Examine
Where evidence of a witness is not subjected to cross-examination, no adverse inference may be drawn, but it is presumed that the evidence therein is accepted as true subject to that evidence being found intrinsically or inherently incredible. An omission or negligence to challenge evidence-in-chief on a material point by cross-examination leads to the inference that the evidence is accepted, subject to its being assailed as inherently incredible or probably untrue.
Standard of Proof — Election Petitions
The standard of proof in election petitions is slightly above the balance of probabilities, taking into consideration that an election has great impact on the political and socio-economic aspects of the nation affecting both the citizenry and the nation at large. The proof must be to the satisfaction of the court.
Illegal Practices — Effect on Election Outcome
Where a court finds that a candidate personally committed illegal practices of bribery and giving donations during the campaign period contrary to sections 68(1), (2) and (7) of the Parliamentary Elections Act, the election of that candidate shall be set aside pursuant to sections 63(4) and 61(1)(c) of the Act, even where non-compliance with electoral laws at polling stations did not affect the results in a substantial manner.

Legislation cited (36)

Cases cited (25)

  • Mugema Peter v Mudiobole Abedi Nasser (Election Petition Appeal No. 16 of 2016)
  • Muyanja Simon Lutaaya v Kenneth Lubogo and Electoral Commission (Election Petition Appeal No. 82 of 2016)
  • George Patrick Kassaja v Fredrick Ngobi Gume and Electoral Commission (Election Petition Appeal No. 68 of 2016)
  • Habre International Limited v Ibrahim Kassim and others (Supreme Court Civil Appeal No. 4 of 1999)
  • Odo Tayebwa v Gordon Kakuuna Arinda and Another (Election Petition Appeal No. 86 of 2016)
  • Namboowa Rashida v Bavekuno Mafumu Godfrey Kyeswa and Another (Election Petition Appeal No. 69 of 2016)
  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd [1969] 1 EA
  • Halima Nakawungu v Electoral Commission and Susan Namaganda (Election Petition No. 2 of 2011)
  • Mukasa Anthony Harris v Dr Bayiga Michael Philip Lulume (Election Petition Appeal No. 18 of 2007)
  • Mulya v Nyagah and others [2003] 2 EA 621
  • Masiko Winifred Komuhangi v Babihuga J Winnie (Election Petition Appeal No. 9 of 2002)
  • Betty Muzanirina Bamukwatsa v Matsiko Winnifred Komuhangi and 2 Others (Election Petition Appeal No. 65 of 2016)
  • Col (RTD) Dr Besigye Kiiza v Museveni Yoweri Kaguta and Electoral Commission (Supreme Court Presidential Election Petition Appeal No. 1 of 2006)
  • Kinyamatama v Sentongo and Kasirabo and Electoral Commission v Mpunga (Election Petition Appeal No. 92 of 2016)
  • Toolit Simon Akecha v Ounlanyah Jacob L'Okori and Electoral Commission (Election Petition Appeal No. 19 of 2011)
  • Kyamadidi Mujuni Vincent v Ngabirano Charles and Electoral Commission (Election Petition Appeal No. 84 of 2016)
  • Tubo Christine Nakwang v Akello Rose Lily (Election Petition Appeal No. 80 of 2016)
  • Interfreight Forwarders (U) Ltd v East African Development Bank (Civil Appeal No. 33 of 1992)
  • Michael Mawanda v Electoral Commission and Another (Election Petition Appeal No. 98 of 2016)
  • Amongin Jane Frances v Lucy Akello and Another (Election Petition No. 1 of 2014)
  • Bakaluba Peter Mukasa v Nambooze Betty Bakireke (Supreme Court Election Petition Appeal No. 4 of 2009)
  • Kikulukubyu Faisal v Muhammad Muwanga Kivumbi (Election Petition Appeal No. 44 of 2011)
  • Anthony Harris Mukasa v Dr Michael Lulume Mayiga (Supreme Court Election Petition Appeal No. 18 of 2007)
  • Lule Umar Mawiya v Ssempijja Vincent Bamulangaki and Electoral Commission (Election Petition No. 16 of 2011)
  • Dr Runumi Mwesigye v The Returning Officer and 2 Others (Election Petition No. 2 of 2002)

Cases citing this judgment (4)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

Full judgment

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Ntende v Isabirye and 2 Others (Election Petition No. 13 of 2021) [2021] UGHCEP 34 (15 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.