Wakilii

Spenser George William v Abas Agaba Mugisa and Anor (Election Petition No. 6 of 2016)

High Court · [2016] UGHCEP 38 · 2016 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Parliamentary election petition challenging election result from 18th March 2016 Kitagwenda County Constituency elections
Decision
Petition dismissed — election result upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the petitioner failed to prove allegations of bribery, intimidation, ferrying of voters and other electoral malpractices to the required standard. Many supporting affidavits were defective for lack of proper commissioning or contained inadmissible hearsay. Allegations were pleaded in general terms without proper particularization, denying respondents the opportunity to adequately respond. The petitioner did not establish that the 1st respondent committed malpractices personally or through agents with his knowledge or consent, or that any noncompliance affected results in a substantial manner. Petition dismissed with costs.

Outcome

Petition dismissed — election result upheld

Facts

The petitioner and 1st respondent contested parliamentary elections for Kitagwenda County Constituency on 18th March 2016. The 1st respondent won with 20,510 votes against the petitioner's 8,015 votes. Results were gazetted on 23rd March 2016. The petitioner challenged the election alleging bribery of voters and agents, intimidation by security forces, ferrying of voters, signing of empty declaration forms, and other malpractices committed by the 1st respondent personally or through agents. He sought annulment of the election, a declaration he was the winner, or alternatively fresh elections. The petitioner filed numerous affidavits from witnesses alleging various forms of electoral malpractice including distribution of money, threats, and intimidation by security personnel.

Issues

  1. Whether election offences were committed by the 1st respondent personally or by his agents with his knowledge, consent or approval during elections for Member of Parliament for Kitagwenda Constituency.
  2. Whether malpractices were committed by the 1st respondent personally or by his agents with his knowledge, consent or approval.
  3. Whether the elections for Member of Parliament for Kitagwenda Constituency were properly conducted by the 2nd respondents.
  4. Whether there was noncompliance with provisions and principles laid down in election laws and whether any such noncompliance affected the results of the elections in a substantial manner.
  5. Whether parties are entitled to remedies prayed.

Orders

  • Petition dismissed with costs to the respondents.

Rules and key headnotes

Electoral Law — Burden and Standard of Proof — Election Petitions
In an election petition, the burden lies upon the petitioner to prove every allegation contained in the petition to the satisfaction of the court. Under section 61(3) of the Parliamentary Elections Act 2005, the standard of proof required is on the balance of probabilities. However, the standard of proof is slightly higher than the preponderance of probabilities but short of proof beyond reasonable doubt.
Electoral Law — Pleadings — Particularity Required for Allegations of Electoral Malpractices
Allegations of electoral malpractices and election offences must be specifically pleaded to provide the respondents with adequate opportunity to answer. Failure to specifically plead particulars of malpractices and various charges of election offences gravely prejudices the respondents, causes a miscarriage of justice, and renders the petition fatal.
Electoral Law — Affidavit Evidence — Petition Not Particularized in Affidavits
Allegations of non-compliance contained in affidavits but which are not particularized in the petition do not form part of the complaints raised in the petition. Accordingly, such allegations will not be considered by the court.
Electoral Law — Bribery — Essential Ingredients to Prove
To prove the election offence of bribery under section 68 of the Electoral Commission Act, there must be evidence that: (1) money, a gift or other consideration was given; (2) the recipient is a voter; (3) it was given with intent to influence the voter to vote or refrain from voting for any candidate; and (4) the bribery was committed by the respondent personally or through agents with his knowledge, consent or approval.
Electoral Law — Bribery — Evidence of Recipient as Accomplice — Corroboration Required
A person who receives a bribe in electoral matters becomes an accomplice. The evidence of such a person must be corroborated by independent corroborative evidence before the court can rely on it.
Electoral Law — Bribery — Proof That Recipient Was a Registered Voter
To establish the offence of bribery of voters, it is not enough for a deponent to swear an affidavit that one is a registered voter. It is necessary to produce the voters register showing the name of the person bribed. However, where the Electoral Commission is represented at the hearing and does not contest the fact that a witness is not a registered voter, the court may accept that the witness is a registered voter.
Evidence — Affidavit Evidence — Defective Jurat — Court's Power to Cure
A defect in the jurat or any irregularity in the form of an affidavit cannot be allowed to vitiate an affidavit in view of Article 126(e) of the Constitution 1995. A Judge has the powers to order that an affidavit be dated in court or that it may be resworn and may penalize the offending party in costs.

Legislation cited (11)

Cases cited (13)

  • Saggu v Road Master Cycles (U) Ltd [2002] 1 EA 258
  • Kizza Besigye v Electoral Commission and Yowert Museveni (Election Petition No. 1 of 2006)
  • Kizza Besigye v Electoral Commission and Yowert Museveni (Election Petition No. 1 of 2006)
  • Odo Tayebwa v Bassajabalaba Nasser and Another (Election Petition Appeal No. 13 of 2001)
  • Masiko Winfred Komuhangi v Babthuga T. Winnie (Election Petition Appeal No. 9 of 2012)
  • Kikukunyu Farsal v Muwanga Kivumbi Mohammed (Election Petition Appeal No. 44 of 2011)
  • Mukasa Anthony Harris v Dr. Bayiga Michael Philip Lulume (Election Petition Appeal No. 18 of 2007)
  • Kabusu Moses Wagaba v Lwanga Timothy (Election Petition Appeal No. 53 of 2011)
  • Paul Mwiru v Nathan Igeme Nabeta and 2 Others (Election Petition Appeal No. 6 of 2011)
  • Kabusu Moses Wagaba v Lwanga Timothy and Electoral Commission (Election Petition Appeal No. 53 of 2011)
  • Sale Kamba v Namuyangu Jenifter (Election Petition Appeal No. 2017)
  • Busingye Fred v Katende Kariboge and Another (Election Petition No. 5 of 2006)
  • Beatrice Mputrwe v Nvendoha Bigirwa (Election Petition Appeal No. 18 of 2011)

Full judgment

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

Spenser George William v Abas Agaba Mugisa and Anor (Election Petition No. 6 of 2016) [2016] UGHCEP 38 (4 June 2016)
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.