Wakilii

Ochwo Nyakecho Keziah v Achieng Sarah Opendi & Anor (HCT-00-CV-EP-0028-2011)

High Court · [2011] UGHC 142 · 2011 Petition Granted — Election Set Aside AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition challenging results of parliamentary election for Woman Member of Parliament for Tororo District
Decision
Election set aside and new election ordered

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Election petition allowed. The court found that the Electoral Commission excluded results from 17 polling stations affecting 8,144 registered voters (more than the winning margin of 7,679 votes), constituting disenfranchisement contrary to Article 59 of the Constitution. The court also found errors in the tallying process that denied the petitioner 307 votes. Additionally, the court held that the first respondent's agent committed bribery with her knowledge and approval. The election was set aside and a new election ordered.

Outcome

Election set aside and new election ordered

Facts

The petitioner and first respondent were among nine candidates in the February 18, 2011 election for Woman Member of Parliament for Tororo District. The Electoral Commission declared the first respondent the winner with 41,165 votes against the petitioner's 33,486 votes, a margin of 7,679 votes. The Returning Officer excluded results from 17 polling stations with 8,144 registered voters. Two polling stations (Bendo Nursery and Panyangasi Primary School B) had results cancelled due to irregularities: at Bendo Nursery, votes cast exceeded registered voters; at Panyangasi, only two candidates' results were recorded instead of nine. For the remaining 15 polling stations, Declaration of Results forms were missing from envelopes. The Returning Officer concluded that even if all votes from the 15 stations went to the petitioner, she would still lose by 374 votes. Evidence also showed tallying errors where the petitioner's votes on DR forms were incorrectly recorded on tally sheets at three polling stations, denying her 307 votes. Additionally, evidence established that an agent of the first respondent gave money to voters at Akadot Primary School polling station.

Issues

  1. Whether there was non-compliance with electoral laws and principles in the conduct of elections for Woman MP for Tororo District.
  2. Whether such non-compliance affected the results of the election in a substantial manner.
  3. Whether any illegal act or offence was committed by the 1st respondent personally or by her agents with her knowledge and consent or approval.
  4. What remedies are available to the parties.

Orders

  • Petition allowed.
  • The election of Woman Member of Parliament for Tororo District is set aside.
  • A new election is ordered.
  • The 2nd respondent shall pay the costs of the petitioner.
  • The 1st respondent shall meet her own costs.

Rules and key headnotes

Electoral Law — Right to Vote — Disenfranchisement — Exclusion of Polling Station Results
The right to vote under Article 59 of the Constitution goes beyond casting the ballot paper on polling day and includes the right that the ballot paper cast shall be counted and the vote counted given equal treatment as all others. Failure to count votes cast amounts to disenfranchisement of voters as they are denied the right to choose a candidate of their choice.
Electoral Law — Ascertainment of Results — Statutory Procedure — Statistical Manipulation Prohibited
The results of an election must be based on majority votes cast and ascertained from Declaration of Results forms following the procedure set out in Part IX of the Parliamentary Elections Act. The law does not provide the Returning Officer with the option of statistical manipulation and speculative conclusions to arrive at the results of an election.
Electoral Law — Non-Compliance — Substantial Effect — Test
The consideration whether non-compliance had a substantial effect on the result is not whether the winner would have lost, but whether the result would have changed such as to put the result of the election in doubt. Where the number of disenfranchised voters exceeds the winning margin, the non-compliance affects the results in a substantial manner.
Electoral Law — Agency — Proof of Knowledge and Consent
To prove agency in election petitions, it is not necessary to show that the agent was actually appointed by the candidate or paid. The crucial test is whether there has been employment or authorisation of the agent by the candidate to do some election work or adoption of his work when done. A candidate is liable for acts of agents whom she has appointed or authorised, and for acts of agents employed by her election agent or any other agent having authority to employ others.
Electoral Law — Bribery — Knowledge and Consent — Inference
The requirement that an illegal act be committed with the candidate's knowledge and consent or approval does not mean the candidate must give written instructions to agents to commit offences. Where an agent is appointed by the candidate and given authority to supervise elections and deploy other agents, the inference is that the agent has full authority to act in the best interests of the candidate with her knowledge and approval.
Evidence — Documentary Evidence — Public Documents — Certification — Exception
Public documents to be used in court ought to be certified. However, there is an exception where a party demands certified documents and these are not availed; such a party may tender uncertified copies in court.

Legislation cited (11)

Cases cited (3)

  • Besigye Kizza v Museveni Yoweri Kaguta & Anor (Election Petition No. 1 of 2001)
  • Kakooza John Baptist v Electoral Commission & Anor (Election Petition No. 11 of 2007)
  • Halsbury's Laws of England 4th Edition Vol. 15 paragraph 698

Full judgment

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

Ochwo Nyakecho Keziah v Achieng Sarah Opendi & Anor (HCT-00-CV-EP-0028-2011) [2011] UGHC 142 (22 September 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.