Wakilii

Ochieng Peter Patrick v. Mayende Stephen Dede & Anor (election Pet. No. 15of 2011)

High Court · [2011] UGHC 103 · 2011 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition challenging the validity of parliamentary election results in Bukholi South Constituency
Decision
Petition dismissed; certain individuals referred to the DPP for investigation of electoral offences

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that the election was not conducted in full compliance with the Parliamentary Elections Act, specifically regarding the failure to seal ballot boxes contrary to section 50(2). However, the petitioner failed to prove that this non-compliance affected the election result in a substantial manner. The petitioner also failed to prove that the 1st respondent committed illegal practices with his knowledge or consent, despite proving some acts of bribery and assault by third parties. The petition was dismissed, but several individuals were referred to the Director of Public Prosecutions for investigation of electoral offences.

Outcome

Petition dismissed; certain individuals referred to the DPP for investigation of electoral offences

Facts

On 18 February 2011, parliamentary elections were held in Bukholi South Constituency. The Electoral Commission declared the 1st respondent winner with 18,375 votes (46.87%) and the petitioner runner-up with 16,754 votes (42.7%). The petitioner challenged the validity of the election, alleging assault and intimidation of his supporters, inadequate security, ballot stuffing, participation of under-age and unregistered voters, endorsement of declaration forms under duress, disenfranchisement of voters, multiple voting, pre-ticking of ballot papers, transportation of unsealed ballot boxes, and ineffective representation by his polling agents. The evidence showed that at certain polling stations, ballot boxes were not sealed as required by law after vote counting and declaration of results. Several witnesses attested to acts of bribery and assault by persons identified as supporters of the 1st respondent, though there was no direct evidence linking these acts to the 1st respondent's knowledge or approval.

Issues

  1. Whether or not the parliamentary elections for Bukhooli South Constituency was conducted in compliance with the electoral laws.
  2. If not, whether the non-compliance affected the results of the election in a substantial manner.
  3. Whether or not the 1st Respondent committed any illegal practices, in person or through his agents with his consent and knowledge.

Orders

  • Petition dismissed.
  • Okeyo Matyansi, Sibumba and Tigana Wandera referred to the Director of Public Prosecutions for investigation of bribery allegations.
  • Kassim Abdullah, Isma Abdullah, Geoffrey Matiya and Oketcho Silver referred to the Director of Public Prosecutions for investigation of assault allegations.
  • A copy of this judgment to be served upon the office of the Director, Public Prosecutions.
  • The respondents jointly awarded two-thirds of the taxed bill of costs.
  • The petitioner awarded one-third of the taxed bill of costs.

Rules and key headnotes

Election Petitions — Standard of Proof — Balance of Probabilities and High Degree of Probability
In parliamentary election petitions, the standard of proof is on a balance of probabilities as prescribed by section 61(3) of the Parliamentary Elections Act, but owing to the intrinsic nature of election petitions and their critical implications for democratic governance, the grounds must be determined on the basis of a high degree of probability.
Election Petitions — Burden of Proof — Onus on Petitioner
The burden of proof in election petitions lies with the petitioner, who must satisfy the court on a balance of probabilities that the grounds cited in the petition did indeed manifest in the election in question.
Non-Compliance with Electoral Commission Act — Effect on Annulment of Election
Non-compliance with the Electoral Commission Act per se does not automatically nullify a parliamentary election. Section 61(1)(a) of the Parliamentary Elections Act restricts automatic annulment to non-compliance with provisions of the Parliamentary Elections Act itself. However, proof of non-compliance with the Electoral Commission Act may inform the court of the overall quality of the election.
Non-Compliance — Failure to Seal Ballot Boxes — Effect on Election Validity
The sealing of ballot boxes as required by section 50(2) of the Parliamentary Elections Act is critical to the electoral process. Failure to seal ballot boxes constitutes non-compliance with the Act. However, such non-compliance must be proved to have affected the election result in a substantial manner to warrant annulment of the election. The omission to seal ballot boxes after declaration of results has limited direct bearing on results declared before sealing.
Documentary Evidence — Declaration of Results Forms — Best Evidence Rule
Where section 50(1) of the Parliamentary Elections Act requires matters to be reduced to a Declaration of Results form, evidence of those matters may only be adduced by way of the form itself or secondary evidence of its contents where admissible, in accordance with section 91 of the Evidence Act. Oral evidence alone is insufficient where the document is required by law.
Illegal Practices — Commission with Candidate's Knowledge and Consent — Burden of Proof
To succeed under section 61(1)(c) of the Parliamentary Elections Act, a petitioner must prove both that an illegal practice or election offence was committed and that such illegal practice or offence was committed by the contested party or any other person with such party's knowledge, consent or approval. Proof of commission of an offence by third parties without proof of the candidate's privity is insufficient.
Affidavits — Defective Jurat — Non-Compliance with Oaths Act
While courts adopt a liberal approach to defective affidavits under Article 126(2)(e) of the Constitution, non-compliance with a statutory requirement is fatal to an affidavit. Where an affidavit jurat states that the affidavit was read over to a different person from the deponent named therein, this amounts to non-compliance with section 3 of the Oaths Act and renders the affidavit fatally defective.

Legislation cited (40)

Cases cited (14)

  • Mbowe v Eliufoo (1967) EA 240
  • Kiiza Besigye v Yoweri Museveni Kaguta & Anor (Election Petition No. 1 of 2001)
  • Karokora Katono Zedekia v Electoral Commission & Kagonyera Mondo (Election Petition No. 2 of 2001)
  • Blythe v Blythe (1966) AC 643
  • Kiiza Besigye v Electoral Commission & Yoweri Kaguta Museveni (Presidential Election Petition No. 1 of 2006)
  • Sarkar's Law of Evidence, 1993, 14th Edition at p. 924
  • Morgan v Simpson & Another (1974) 3 All ER 722
  • Mwiru v Nabeta & 2 Others (Election Petition No. 3 of 2011)
  • Hackney case (1874) 2 O'M & H 77
  • Ishington case (1901) 17 TLR 210
  • Gunn v Sharpe (1974) 2 All ER 1058
  • Suggan v Roadmaster Cycles (U) Ltd [2002] EA 25
  • Kasaala Growers Cooperative Union v Kakooza Jonathan & Another (Civil Application No. 19 of 2010)
  • Sarah Bireete & Another v Bernadette Bigirwa & the Electoral Commission (Election Petition No. 13 of 2002)

Full judgment

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Ochieng Peter Patrick Vs. Mayende Stephen Dede & Anor (election Pet. No. 15of 2011) [2011] UGHC 103 (28 July 2011)
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.