Wakilii

Toolit Simon Akecha v Jacob Oulanyah L'okori & EC (Election Petition 1 of 2011)

High Court · [2011] UGHC 97 · 2011 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition challenging parliamentary election results for Omoro County Constituency
Decision
Election petition dismissed; 1st Respondent's election as Member of Parliament upheld

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 election of the 1st Respondent as Member of Parliament for Omoro County Constituency. The court found that the petitioner failed to prove non-compliance with electoral laws to the requisite standard or that any proven irregularities affected the result in a substantial manner. Allegations of ballot stuffing, invalid votes, bribery, and involvement of UPDF were not established with cogent independent evidence. Three unsigned declaration forms were identified, but their removal would not have changed the outcome. Each party was ordered to bear its own costs.

Outcome

Election petition dismissed; 1st Respondent's election as Member of Parliament upheld

Facts

On 18 February 2011, parliamentary elections were held for Omoro County Constituency in Gulu District. The 1st Respondent was declared winner with 11,044 votes against the petitioner's 9,088 votes. The petitioner applied for a recount before the Chief Magistrate on 24 February 2011, which was granted on 2 March 2011. The recount was deemed futile because ballot boxes had been tampered with. The petitioner filed an election petition on 17 March 2011 alleging non-compliance with electoral laws including ballot stuffing, voter bribery, involvement of UPDF, multiple voting, invalid votes, and unsigned declaration forms. The petitioner contended that irregularities affected the result substantially. Both respondents denied the allegations and challenged the propriety and substance of the petition.

Issues

  1. Whether the petition was duly served on the 1st Respondent.
  2. Whether the election of the 1st Respondent as MP for Omoro County was conducted in non-compliance with the Parliamentary election laws and principles governing elections in Uganda.
  3. Whether the non-compliance affected the results substantially.
  4. Whether the 1st Respondent personally or his agents with his knowledge and consent or approval committed any of the alleged illegal practices and offences in connection with the election.
  5. What are the remedies available to the parties.

Orders

  • Petition dismissed.
  • Each party to bear its own costs.

Rules and key headnotes

Election Petitions — Service of Petition — Substituted Service — Jurisdiction of Registrar
A judge of the High Court may delegate to the Registrar or, in the Registrar's absence, the Chief Magistrate, the hearing of an interlocutory application for substituted service in an election petition. Rule 24 of the Parliamentary Elections (Election Petitions) Rules 1996 is directory, not mandatory, and does not prevent such delegation in the interest of justice and expedition of proceedings. Order 50 Rule 5 of the Civil Procedure Rules and Section 17(2) of the Judicature Act empower a judge to delegate functions to court officers.
Election Petitions — Declaration Forms — Signing by Presiding Officer
The signing of declaration forms by the presiding officer is mandatory under Article 68(4) of the Constitution and Section 47(5) of the Parliamentary Elections Act. An unsigned declaration of results cannot be validly used as a basis for declaring results, and results from polling stations with unsigned declaration forms must be excluded from the final tally.
Election Petitions — Burden and Standard of Proof
In an election petition, grounds for setting aside an election must be proved on the balance of probabilities as required by Section 61(3) of the Parliamentary Elections Act 2005. The court must be satisfied to a high degree of preponderance before issuing an order setting aside the election of a member of Parliament.
Election Petitions — Non-Compliance Affecting Results Substantially
To succeed on the ground of non-compliance affecting the election result substantially, a petitioner must prove that the winning candidate's majority would have been reduced to such an extent as to put the victory in doubt. It is not necessary to prove that the declared winner would have lost. The alleged irregularities must be established first, and then their impact on the result must be assessed.
Election Petitions — Signed Declaration Forms — Effect of Agent's Signature
Where a candidate's polling agents sign declaration forms without recording any complaints or mishaps, and the candidate does not disown those agents, the court will treat the signed forms as correct reflection of what the voters decided. A candidate cannot subsequently challenge results that his agents accepted by signing declaration forms at the polling station.
Electoral Petitions — Proof of Bribery — Need for Independent Corroboration
Bribery being a serious criminal offence under Section 68 of the Parliamentary Elections Act, there must be cogent and independent evidence to prove it. Evidence from persons who concede to having been party to the commission of bribery must be handled cautiously and requires corroboration. Where there are accusations and counter-accusations of illegal practices such as bribery, the court needs independent evidence to establish what actually happened.
Electoral Petitions — Hearsay Evidence — Admissibility
In election petition proceedings, affidavit evidence based on what a witness was told by third parties who themselves did not swear affidavits constitutes inadmissible hearsay. Where material allegations depend on hearsay evidence without direct testimony from the persons with first-hand knowledge, the court will not accept such evidence as proof of the alleged facts.

Legislation cited (55)

Cases cited (12)

  • Col. Ret. Dr. Kiiza Besigye v Yoweri Kaguta Museveni (Presidential Petition No. 1 of 2001)
  • Hon. Abdu Katuntu v Kirunda Kiveijinja Ali (Election Petition No. 7 of 2006)
  • Bangirana Anifa Kawooya v Joy Kabatsi (Masaka Miscellaneous Application No. 28 of 2009)
  • Mathina Bwambale v The Electoral Commission and Crispus Kiyonga (Election Petition No. 7 of 2006)
  • Mukasa Anthony v Dr. Bayiga (Election Petition Appeal No. 18 of 2007)
  • Sadiq Nkutu v Asuman Kyafu & Another (Election Petition No. 7 of 2006)
  • Kakooza John Baptist v Electoral Commission & Another (Election Petition Appeal No. 11 of 2007)
  • Jacob Mbayo v Electoral Commission & Talobya Sinah (Election Petition Appeal No. 7 of 2006)
  • Electoral Commission & Bakaluba Mukasa v Betty Nambooze (Election Appeal No. 182 of 2007)
  • Joy Kabatsi v Anifa Kawooya (Supra)
  • Prof. Peter Anyang' Nyong'o & Others v The Attorney General of Kenya & Others (EACJ Ref. No. 1 of 2006)
  • Hon. Sitenda Sebalu v Secretary General of the East African Community & Others (EACJ Ref. 1 of 2011)

Full judgment

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

Toolit Simon Akecha Vs Jacob Oulanyah L'okori & EC (Election Petition 1 of 2011) [2011] UGHC 97 (21 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.