Wakilii

Sarah Bireete v Bernadette Bigirwa and Another (Election Petition No. 7 of 2001)

High Court · [2001] UGHC 135 · 2001 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition challenging the result of the parliamentary election for the woman seat of Bushenyi District held on 21 June 2001
Decision
Election of first respondent upheld; petition dismissed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the absence of the first respondent's photograph on the ballot paper, while constituting an irregularity, did not affect the outcome of the election in a substantial manner. The electoral college consisted of literate voters who could identify candidates by their printed names, and the first respondent won by a margin of 7,724 votes. The petitioner failed to discharge the burden of proving to the satisfaction of the court that the irregularities affected the results substantially. Petition dismissed.

Outcome

Election of first respondent upheld; petition dismissed

Facts

The petitioner, Sarah Bireete, challenged the results of the Parliamentary Election for the woman seat of Bushenyi District held on 21 June 2001. The first respondent, Bernadette Bigirwa, won the election with 14,510 votes against the petitioner's 6,806 votes, a margin of 7,724 votes. The ballot paper printed by the Electoral Commission (second respondent) bore a photograph of an unknown person instead of the first respondent's photograph, while the petitioner's photograph appeared correctly. The petitioner's photograph had been properly submitted at nomination. Both candidates' names were printed correctly on the ballot paper. The Electoral Commission made a radio announcement directing voters to vote by marking against the candidate's name despite the photographic error, invoking emergency powers under section 18 of the Electoral Commission Act to allow the election to proceed.

Issues

  1. Whether the absence of the first respondent's photograph on the ballot paper used in the election for Bushenyi District Woman Parliamentary Representative on 21 June 2001 affected the outcome of that election substantially.

Orders

  • The Petitioner's Petition is dismissed.
  • The first Respondent's Election as the successful Bushenyi District Women Parliamentary representative following the Election of 21 June 2001 is upheld.
  • The first Respondent is awarded all the costs incurred in this Petition against the Petitioner.
  • No costs are awarded to the second respondents against the Petitioner for the reasons stated.

Rules and key headnotes

Electoral Law — Burden of Proof — Election Petitions — Standard Higher than Balance of Probabilities
The burden of proof in election petitions is higher than the balance of probabilities applicable in ordinary civil cases but lower than the criminal standard of beyond reasonable doubt. The petitioner must prove the grounds raised in the petition to the satisfaction of the court.
Electoral Law — Non-compliance with Electoral Law — Substantial Effect on Results — Test
Where a petitioner alleges that an election was not conducted in accordance with the principles laid down in law, the petitioner bears the burden of proving both the non-compliance and that such non-compliance affected the result of the election in a substantial manner. The phrase 'in a substantial manner' creates a standard of proof higher than that in ordinary civil cases.
Electoral Law — Ballot Paper Defects — Wrong Photograph — Effect on Literate Electoral College
Where a ballot paper bears the wrong photograph of a candidate but correctly prints the candidate's name, and the electoral college consists predominantly of literate voters who can identify candidates by their written names, the absence of the correct photograph does not substantially affect the outcome of the election, particularly where the winning margin is large.
Electoral Law — Electoral Commission — Emergency Powers — Section 18 Electoral Commission Act
The Electoral Commission may invoke emergency powers under section 18 of the Electoral Commission Act to adapt electoral provisions where unforeseen circumstances arise, including directing an election to proceed despite defects in ballot papers, provided such action does not contravene fundamental electoral principles.
Electoral Law — Costs — Electoral Commission Negligence — Denial of Costs
Where the Electoral Commission's negligence or breach of statutory duty causes an electoral irregularity that leads to an election petition, the court may exercise its discretion to deny costs to the Electoral Commission even if the petition is dismissed, to avoid condoning negligence and to prevent injustice to innocent parties affected by the Commission's error.

Legislation cited (14)

Cases cited (18)

  • Re K.A. Thabit (Miscellaneous Civil Cause 5 of 1967)
  • Dr. Kiiza Besigye v Yoweri Museveni and the Electoral Commission (Election Petition No. 1 of 2001)
  • Mbowe v Eliufoo (Miscellaneous Civil Case No. 12 of 1965)
  • Peter v Peter (1950) 2 All E.R. 458
  • Civil Appeals 39 A B and C of 1997 - Chairman Electoral Commission, Margaret Zziwa v Catherine Naava Nabagesera
  • Abworera Tabitha Jane v The Returning Officer - Bundibugyo District and Aida Bikorenda (Election Petition No. UEP 1 of 1996)
  • C.B. Turyamureba v Attorney General, S.C.C.S 416/199 (1999-1) HCB 276
  • Kutner v The Minister of Pensions (1947) 2 A.E.R. 172
  • Sebuliba v Co-operative Bank (1982) HCB 129
  • Jovelyn Barugahare v Attorney General (Supreme Court Civil Appeal No. 29 of 1997)
  • Prince J.D.C. Ipuga Bukidi v Prince J.D.C. Ipuga Bukidi, Supreme Court Civil Appeal 31/1994
  • Ben Byabashaiia v Attorney General, U.C.C.S. 114/97 (1992) UCB 161
  • Akisoferi Michael Ogola v Akila Othieno and Another (Election Petition No. 2 of 1996)
  • Okello Henry John v Cosmas (Election Petition No. 1 of 1996)
  • Francis Butagira v Deborah Kikunga
  • Uganda Transport Company v Lutu (1985) HCB 27 (CA)
  • Kanoblis Group of Companies (U) Ltd v Scoul, Civil Appeal 13/94 (S.C.)
  • Donoghue v Stevenson [1932] A.C. 562

Full judgment

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Sarah Bireete v Bernadette Bigirwa and Another (Election Petition No. 7 of 2001) [2001] UGHC 135 (14 October 2001)
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.