Wakilii

Nyanzi Ssentamu v Electoral Commission and 2 Others (Election Petition No. 2 of 2021)

High Court · [2023] UGHCCD 6 · 2023 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition challenging the conduct and results of Member of Parliament elections for Kampala Central Constituency, following remittal by the Court of Appeal for hearing on merits after initial dismissal for non-service
Decision
Third respondent declared validly elected Member of Parliament for Kampala Central Constituency

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the petitioner failed to prove non-compliance with electoral laws or commission of electoral offences that substantially affected the election results. Irregularities in computation and categorization of votes on declaration forms did not invalidate the forms where endorsed by both presiding officers and candidates' agents without complaint. Alleged ballot stuffing and bribery not proved to required standard. Petition dismissed; third respondent declared validly elected Member of Parliament for Kampala Central Constituency.

Outcome

Third respondent declared validly elected Member of Parliament for Kampala Central Constituency

Facts

The petitioner and third respondent contested for Member of Parliament for Kampala Central Constituency in elections held on 14 January 2021. Third respondent was declared winner with 16,998 votes against petitioner's 15,975 votes. The petition was initially dismissed for non-service but remitted by the Court of Appeal for hearing on merits. Petitioner challenged results from 31 polling stations alleging non-compliance with electoral laws, falsification of results, ballot stuffing, multiple voting, bribery, and disenfranchisement. Petitioner's key witnesses on ballot stuffing included Lubega Hamza Kaziro who claimed to have participated in ballot stuffing, and witnesses alleging military interference at polling stations.

Issues

  1. Whether there was non-compliance with Electoral laws in the conduct of the election.
  2. Whether there were any Electoral offences committed by the 1st and 2nd Respondents.
  3. Whether there were any electoral offences committed by the 3rd Respondent.
  4. If so, whether it substantially affected the results of the elections.
  5. Whether there are remedies available to the parties.

Orders

  • Affidavits of petitioner's witnesses who failed to appear for cross-examination expunged from record.
  • Petition dismissed.
  • Third respondent (Nsereko Muhammad) declared validly elected Member of Parliament for Kampala Central Constituency.
  • Costs awarded to the Respondents.

Rules and key headnotes

Electoral Law — Declaration Forms — Validity — Essential Requirements
A declaration of results form is valid where it contains the essential ingredients of endorsement by the presiding officer, endorsement by the candidates' representatives or agents, the name of the polling station, and the number of votes cast in favour of each candidate, even if other details regarding computation of different categories of votes and ballot papers are incomplete or erroneous.
Electoral Law — Declaration Forms — Computational Errors — Effect on Results
Errors in the computation and categorization of votes and ballot papers on declaration forms do not invalidate the forms or affect the outcome of an election where the actual number of votes garnered by each candidate as counted in the presence of candidates or their agents is correctly recorded and endorsed without complaint.
Electoral Law — Complaints at Polling Stations — Failure to Complain — Effect
Where candidates' agents sign declaration forms without indication of any complaint at the polling stage, counting stage or on the form itself, such is sufficient evidence that the electoral process was satisfactory, and the candidate is estopped from later challenging the contents of the form.
Evidence — Trial by Affidavit — Cross-Examination — Failure to Appear
Where affidavits or witness statements are filed and the opposite party elects to cross-examine and the court grants leave, the affidavit or witness statement does not constitute evidence until the author mounts the witness box, takes oath, identifies the affidavit or witness statement and is subjected to cross-examination. Where a deponent fails to appear for cross-examination when ordered by court, the affidavit shall be expunged from the record.
Electoral Law — Burden and Standard of Proof — Election Petitions
The burden of proof in an election petition lies on the petitioner to prove the assertions on a balance of probabilities, but the standard of proof is higher than in ordinary civil suits because of the public importance and seriousness of allegations normally contained in election petitions. In proving electoral offences, the petitioner bears an even higher standard of proof than when dealing with ordinary irregularities.
Evidence — Audio-Visual Evidence — Language of Court — Translation Requirement
Where a party seeks to rely on audio or video recording that is in a language other than English, the evidence must be introduced by way of transcription of the recording and translation into English. Failure to accompany such evidence with a transcription and translation affects its admissibility and evidential value, rendering it unusable by the court.
Electoral Law — Electoral Offences — Ballot Stuffing — Standard of Proof — Corroboration
Evidence of ballot stuffing from a self-confessed criminal who admits to forgery and other criminal acts must be taken with caution and requires independent corroborating evidence before it can be safely relied upon by a court. Where such corroboration is lacking and the witness's testimony contains inherent improbabilities, the evidence must be rejected.

Legislation cited (21)

Cases cited (22)

  • Mukasa Anthony Harris v Dr. Bayiga Michael Phillip Lulume (Election Petition Appeal No. 18 of 2007)
  • Ocen Peter and Another v Ebil Fred (Election Petition Appeal No. 83 of 2016)
  • Rtd. Col. Dr. Kiiza Besigye v Y.K. Museveni and Another (Presidential Election Petition No. 1 of 2001)
  • Mugerwa Peter v Mudiobole Abedi Nasser (Election Petition Appeal No. 30 of 2011)
  • Freda Nanziri Mubanda v Mary Babirye Kabanda and Another (Election Petition Appeal No. 38 of 2016)
  • Kayanja Vicent De Paul v Rulinda Fabrice Brad and Another (Election Petition Appeal No. 14 of 2021)
  • Mugema Peter v Mudiobole Nasser (Election Petition Appeal No. 30 of 2011)
  • John Baptist Kakooza v Electoral Commission and Another (Election Petition Appeal No. 11 of 2007)
  • Birihariwe Eryeza v Bright Tom Amooti and 2 Others (Election Petition No. 10 of 2021) [2021] UGHCEP 45
  • Hon. George Patrick Kasaja v Fredrick Ngobi Guma and Another (Election Petition Appeal No. 68 of 2016)
  • Babu Edward Francis v Electoral Commission and Another (Election Petition No. 10 of 2002)
  • Babirye Jane v Bukenya Michael Iga and Another (Election Petition No. 2 of 2001)
  • Hellen Adoa and Another v Electoral Commission and Another (Election Petition Appeals Nos. 57 and 54 of 2016)
  • Betty Muzanira v Winnifred Matsiko and Another (Election Petition Appeal No. 65 of 2016)
  • Amoru and Another v Okello Okello (Election Petition Appeal No. 39 of 2016)
  • Toolit v Oulanya Jacob and Another (Election Petition Appeal No. 19 of 2011)
  • Robinson Simiyu & Anor. Vs Independent Electoral Commission & Boundary Commission of Kenya, EP No. 1/2017 at Kitale
  • Mugisha Vicent v Kajara Aston and 2 Others (Election Petition No. 4 of 2016) [2016] UGHCEP 30
  • Nakate Lillian and Another v Nabukenya (Election Petition Appeals Nos. 17 and 21 of 2016)
  • Nkalubo v Kibirige [1973] E.A. 102
  • Michael Mawanda v Electoral Commission and Another (Election Petition Appeal No. 8 of 2016)
  • Ntende v Isabirye (Election Petition Appeal No. 74 of 2016)

Full judgment

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

Nyanzi Ssentamu v Electoral Commission and 2 Others (Election Petition No. 2 of 2021) [2023] UGHCCD 6 (20 April 2023)
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.