Wakilii

Osisya Alemu v Koluo and Another (Election Petition No. 2 of 2021)

High Court · [2023] UGHC 3 · 2023 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition challenging the declaration of the 1st respondent as winner of the parliamentary election for Toroma County Constituency. The petition was previously struck out on a preliminary objection and remitted for retrial by the Court of Appeal.
Decision
Petition dismissed. The election of the 1st respondent as Member of Parliament for Toroma County Constituency stands.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed the election petition challenging the declaration of the 1st respondent as winner of the parliamentary election for Toroma County Constituency. The court struck out 20 affidavits due to manifest variations between signatures on the affidavits and attached National Identity Cards. The petitioner failed to prove allegations of tampering with Declaration of Results Forms, bribery, intimidation, multiple voting, and other electoral offences to the required standard. The court found that the petitioner's agents had signed the DR Forms without complaint, and the allegations appeared to be afterthoughts manufactured after the election. The petition was dismissed with no order as to costs.

Outcome

Petition dismissed. The election of the 1st respondent as Member of Parliament for Toroma County Constituency stands.

Facts

The petitioner and 1st respondent, together with 9 other candidates, participated in the parliamentary election for Toroma County Constituency in Katakwi District on 14 January 2021. The 1st respondent was declared winner with 9,179 votes; the petitioner came second with 8,013 votes. The petitioner filed an election petition on 15 March 2021 alleging non-compliance with electoral laws, including tampering with Declaration of Results Forms at 10 polling stations, bribery, intimidation, multiple voting, and other electoral offences. The petition was initially struck out on a preliminary objection regarding the competence of the supporting affidavit, but the Court of Appeal ordered a retrial. At trial, the 1st respondent raised a preliminary objection to 20 affidavits on grounds of suspicious identity due to signature variations. No witnesses were cross-examined. The court heard submissions on the competence of affidavits, alleged tampering of results, and various electoral offences.

Issues

  1. Whether there was noncompliance with the electoral laws and the principles laid down in them during the conduct of the election for Member of Parliament Toroma County constituency.
  2. Whether the noncompliance affected the results of the election in a substantial manner.
  3. Whether the 1st respondent committed any illegal practices and/or electoral offences personally or through his agents with his knowledge and consent or approval.
  4. Whether the 20 affidavits in support of the petitioner's petition ought to be expunged on account of variations of the witnesses' signatures on the attached photocopies of the National Identity Cards.

Orders

  • The following affidavits are struck off and shall not be relied upon: Amoding Jenifer; Amodoi Jane Frances; Amulen Josephine; Apolot Emachulet Nabyambi; Otimong Angella; Ogong Vicent; Ojakol Micheal; Olinga Tom; Onyede Joseph; Opio George Patrick; Oucho George; Wabwire John Musana; Ojakol Bernard for differing signatures.
  • The following affidavits of deponents whose jurat pages are signed and yet the attached National Identity Cards indicate that they are unable to sign are also struck off: Akorikin Adam; Ebileng Matayo; Elungat John Micheal; Ocero Paul; Okello Charles; Okiria Joseph; Ololomo Charles.
  • The petition fails and is dismissed.
  • No order as to costs.

Rules and key headnotes

Evidence — Affidavits in Election Petitions — Identity of Deponents — Signature Variations
Where signatures on affidavits manifestly differ from signatures on attached National Identity Cards, such affidavits are suspect, unreliable, and have no probative value. The identity and integrity of a deponent goes to the root of the substance and probative value of the affidavit and cannot be regarded as a mere technicality. Such affidavits must be struck out as they are inherently unreliable.
Electoral Law — Burden and Standard of Proof — Satisfaction of Court
The burden of proof in an election petition lies on the petitioner to prove allegations to the satisfaction of the court. The standard of proof is on the balance of probabilities, but it must be at a very high degree of probability because setting aside an election is a grave matter of both individual and national importance. The petitioner must adduce credible and cogent evidence; the petition cannot derive strength from the weakness of the respondent's case.
Electoral Law — Falsification of Results — Declaration of Results Forms
To prove falsification of election results, two sets of results—one genuine and the other false—must be put in evidence by the party making the accusation. A witness conversant with the entries must be called to prove how the results were falsified. Where a petitioner's agents signed Declaration of Results Forms without recording any complaint or irregularity, the petitioner is estopped from challenging the contents of those forms. The court will not accept allegations of tampering where the petitioner's own DR Forms show alterations but the total votes cast remain unchanged, suggesting the petitioner is responsible for the alterations.
Electoral Law — Electoral Offences — Bribery — Proof Required
Allegations of bribery must be specifically pleaded with full particulars including time, place, names of persons bribed, and details of the bribe. The petitioner must prove that the persons allegedly bribed were registered voters by producing voters' registers or certified extracts. Bribery is a criminal offence and must be proved to the satisfaction of the court. Evidence of bribery from partisan witnesses requires corroboration. The court must be cautious of allegations made after the election that were never reported to the Electoral Commission or police during the election period, as such allegations may be afterthoughts.
Electoral Law — Non-Compliance — Substantial Effect on Results
Non-compliance with electoral law per se is not enough to overturn an election. The non-compliance must be so significant as to substantially affect the results of the election. The court must evaluate the whole process of the election using both quantitative and qualitative approaches. The effect is substantial if the proven defects were such that the majority of voters were prevented from electing their preferred candidate, or the election was so flawed that the result could no longer reasonably be said to represent the true will of the majority of voters. An election should not be upset for informality or triviality; the objection must be something substantial calculated to affect the result.
Electoral Law — Complaints and Objections — Duty to Report During Election
The electoral laws provide mechanisms for candidates and agents to lodge complaints and objections during the election process. Where serious electoral offences such as intimidation, bribery, or tampering are alleged to have occurred but were never reported to Electoral Commission officials or police at the time, such allegations become highly suspect as being afterthoughts created to justify the loss of an election. It is unfair for a party to come up with scenarios after the election that were never brought to the attention of the authorities during the election period.

Legislation cited (65)

Cases cited (36)

  • Muyanja Simon Lutaaya v Kenneth Lubogo and EC (Election Petition Appeal No. 82 of 2016)
  • Makula International Ltd v Cardinal Nsubuga Wamala [1982] HCB 1
  • Kalazani Charles v Musoke Paul Sebulime (High Court Election Petition No. 17 of 2016)
  • George Patrick Kassaja v Fredrick Ngobi Gume and Electoral Commission (Election Petition Appeal No. 68 of 2016)
  • Paul Mwiru v Igeme Nabeta and EC (Election Petition No. 3 of 2011)
  • Besigye Kizza v Museveni Yoweri Kaguta and Electoral Commission (Election Petition No. 1 of 2001)
  • Besigye Kizza v Museveni Yoweri Kaguta and Electoral Commission (Election Petition No. 1 of 2006)
  • Blyth v Blyth [1966] AC 643
  • Karokora Katono Zedekia v Electoral Commission Kagonyera Mondo (HC-05-CV-EP No. 2 of 2001)
  • Masiko Winfred Komuhangi v Babihuga J. Winnie (Election Petition No. 9 of 2002)
  • Sarah Bireete and Another v Bernadette Bigirwa and Electoral Commission (Election Petition Appeal No. 13 of 2002)
  • Akurut Violet Adome v Emurut Simon Peter (Election Petition Appeal No. 40 of 2016)
  • Paul Mwiru v Igeme Nathan Samson Nabeta and 2 Others (Election Petition Appeal No. 6 of 2011)
  • Odo Tayebwa v Bassajjabalaba Nasser and Electoral Commission (Election Petition Appeal No. 13 of 2021)
  • Jeet Mohinder Singh v Harminder Singh Jassi AIR [2000] SC 256
  • Borough of Hackney Gill v Reed [1874] XXXI L.J. 69
  • Toolit Simon Akecha v Oulanyah Jacob L'Okori and Another (Election Petition Appeal No. 19 of 2011)
  • Gagawala Nelson Wambuzi v Electoral Commission and Kenneth Lubogo (HCT-03-CV-EP No. 8 of 2011)
  • Ocen Peter and Another v Ebil Fred (Election Petition Appeal No. 83 of 2016)
  • Nabukeera Hussein Hanifah v Kusasira Peace K Mubiru and Another (Election Petition Appeal No. 13 of 2016)
  • Simon Kinyera v Taban Amin and EC (Election Petition Appeal No. 3 of 2018)
  • Anderson Kambela Mazoka, Lt General Christon Sifapi Tembo & Godfrey Kenneth Miyanda vs Patrick Mwanawasa, The Electoral Commission & The Attorney General
  • Muhindo Rehema v Winifred Kiiza and Electoral Commission (Election Petition No. 29 of 2016)
  • Akugizibwe Lawrence v Muhumuza David and 2 Others (Election Petition Appeal No. 22 of 2016)
  • Abdulkarim and Others v Shinkafi and Others (2008) 2 LRECN 536 CA
  • Bantalib Issa Taligola v Electoral Commission and Wasugirya Bob Fred (Election Petition No. 15 of 2006)
  • Yorokamu Katwiremu Bategana v Elijah Dickens Mushemeza and Others (Election Petition No. 1 of 1996)
  • Nakate Lillian Segujja and EC v Nabukenya Brenda (Election Petition Appeals No. 17 and 21 of 2016)
  • Kamba Saleh v Namuyangu Jeniffer (Election Petition Appeal No. 27 of 2011)
  • Dhartipakar v Rajiv Ghandi AIR [1978] SC 1577
  • Daulat Ram Chauhan v Anand Sharma AIR [1984] SC 621
  • Babu Edward Francis v Electoral Commission and Elia Lukwago (Election Petition No. 10 of 2006)
  • Ngoma Ngime v EC and Winnie Byanyima (Court of Appeal No. 11 of 2002)
  • Shaban Sadiq Nkutu v Asuman Kyafu and EC (HC-03-CV-EP No. 8 of 2006)
  • Akileng Abu Meric v Olirah Peter Musao (Election Petition No. 27 of 2011)
  • Karokora v Electoral Commission and Kagonyera (Election Petition No. 2 of 2001)

Full judgment

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Osisya Alemu v Koluo and Another (Election Petition No. 2 of 2021) [2023] UGHC 3 (20 January 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.