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Tumwesigye v Museveni and Another (Election Petition No. 3 of 2021)

High Court · [2021] UGHC 36 · 2021 Petition Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Parliamentary election petition challenging the declaration of the first respondent as winner of Buwekula South Constituency Member of Parliament election held on 14 January 2021
Decision
Election nullified and set aside. Fresh elections ordered for Buwekula South Constituency Member of Parliament position.

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Holding

The High Court found that the election for Member of Parliament for Buwekula South Constituency was not conducted in compliance with electoral law. The court identified ballot stuffing, wrong entries in Declaration of Results forms, and failure to verify voters using the Voters' Register at six polling stations as serious breaches. These irregularities introduced 2,690 unexplained votes into the final tally and affected 1,512 voters at stations where no Voters' Register was used. Given the winning margin was only 596 votes, the court held the noncompliance affected the result in a substantial manner. The election was nullified and fresh elections ordered.

Outcome

Election nullified and set aside. Fresh elections ordered for Buwekula South Constituency Member of Parliament position.

Facts

On 14 January 2021, elections were held for Member of Parliament for Buwekula South Constituency in Mubende District. Three candidates contested: Tumwesigye Fred on an NRM ticket, Museveni William as an independent, and Ainebyona Ronald on an NUP ticket. The Electoral Commission declared Museveni William the winner with 8,075 votes against Tumwesigye Fred's 7,479 votes, a margin of 596 votes. Total votes cast per the Return Form for Transmission of Results were 17,779. Tumwesigye filed a petition alleging that the election was characterised by illegalities, electoral offences, and irregularities including ballot stuffing, multiple voting, voter intimidation, disenfranchisement, and manipulation of electoral materials. He further alleged that voters' registers were missing from six polling stations and that Declaration of Results forms at multiple polling stations contained contradictory entries. One of Tumwesigye's polling agents, Tumusimme Charles, was attacked, assaulted, and kidnapped while heading to his polling station, preventing him from arriving in time to perform his duties.

Issues

  1. Whether this Honorable Court should strike out the 2nd respondent's additional affidavits for having been filed out of time
  2. Whether there were illegal practices and electoral offences that were committed by the respondents and by other people, with the respondents' knowledge, consent and approval
  3. Whether the election was not conducted in compliance with the electoral laws, and if so, whether such noncompliance affected the results in a substantial manner
  4. What remedies are available to the parties

Orders

  • Declared that the election for Member of Parliament for Buwekula South Constituency held on 14 January 2021 was not conducted in compliance with the electoral law and principles governing elections, and such noncompliance affected the election in a substantial manner.
  • Declared that Museveni William was not validly elected as the Member of Parliament for Buwekula South Constituency in Mubende District.
  • Nullified and set aside the election of Museveni William as Member of Parliament for Buwekula South Constituency in Mubende District.
  • Ordered that fresh elections be conducted for Member of Parliament for Buwekula South Constituency in Mubende District.
  • Awarded costs of the petition to Tumwesigye Fred, with costs attendant to the rejection of four preliminary objections to be met by Museveni William, and costs in respect of the petition in general to be met by the Electoral Commission.

Rules and key headnotes

Electoral Law — Noncompliance with Electoral Laws — Substantiality Test
An election should not be nullified unless the irregularities or noncompliance with the electoral law affected the results of the election in a substantial manner. The substantiality test entails both quantitative and qualitative methods. The quantitative approach takes the numerical approach to determine whether noncompliance significantly affected the results. The qualitative approach looks at the overall process of the election including voter information, the process of counting and tallying and declaring results, and the ability of each voter to cast their vote.
Electoral Law — Ballot Stuffing — Definition and Proof
Ballot stuffing is an election malpractice which involves voting more than once at a polling station or moving to various polling stations casting votes either in the names of people who do not exist at all or those who are dead or absent at the time of voting and yet they are recorded to have voted. At the end of the polling exercise, the number of votes cast ought to be equal to the number of people who physically turned up to vote. Unexplained votes cast over and beyond the registered voters constitute evidence of ballot stuffing. Ballot stuffing occurs when someone intentionally and knowingly causes unauthorized votes to be put in the ballot box for purpose of rigging the poll in favour of some candidate.
Electoral Law — Declaration of Results Forms — Duty of Accuracy
Declaration of Results forms must be treated not as a mere formality, but a check on the system that prevents fraud and ensure propriety. The forms must tally and be properly certified by the presiding officers at each polling station. Failure to accurately state facts in the Declaration of Results form is an electoral offence under section 78(a) and (b) of the Parliamentary Elections Act. Mistakes in computation found in a substantial proportion of polling stations, especially where the numerical differences are very high, raises suspicion and points to deliberate manipulation or reckless negligence.
Electoral Law — Voter Verification — Use of Voters' Register
Under Section 30(5)(a) of the Parliamentary Elections Act, each voter who arrives at the polling station must first be verified and then ticked against the Voters' Register, given a ballot paper, and only then allowed to vote. The Voters' Register is the principle identifier at polling stations. The number of ticked voters in the Voters' Register at each polling station should tally with the number of ballot papers counted at the end of the voting exercise, or at least be less where a voter chose not to vote all categories. Allowing voting without verification against the Voters' Register contravenes fundamental electoral law requirements.
Electoral Law — Bribery — Elements and Standard of Proof
The offence of bribery under Section 68(1) of the Parliamentary Elections Act has three ingredients: a gift was given to a registered voter; the gift was given by a candidate or their agent; and it was given with the intention of inducing the person to vote for a particular candidate or in a certain manner. Bribery is considered a grave illegal offence and a single offence once proved is sufficient to set aside an election. It requires cogent evidence that is truthful and free from contradictions proved to the satisfaction of the court. Persons said to have committed the offence and those said to have been bribed must be clearly identified, and such evidence corroborated. A Voters' Register must be attached to show that the person bribed was a voter.
Civil Procedure — Preliminary Objections — Timing of Raising Objections
It is the spirit of Order 6 rules 28 and 29 of the Civil Procedure Rules that objections that go to the root of any proceedings, even if not pleaded, are best raised and argued in the preliminary stages. At that point the complainant is given a chance to present or rebut them and the Court has the opportunity to consider whether it is a matter which is a question of law or one that will require first adducing evidence. Final submissions are mere summations of evidence already tendered in Court and should not be used as an avenue to introduce new matters, including objections. Raising objections in final submissions employs ambush tactics, a procedure now much deplored in all courts.
Electoral Law — Late Filing of Affidavits — Extension of Time
Rule 8(1) of the Parliamentary Elections (Interim Provision) Rules mandates that a respondent who wishes to oppose a petition must file an answer within ten days after service. Rule 19 provides that the Court may enlarge or abridge the time appointed by the Rules for doing any act if there exist special circumstances that make it expedient to do so. Courts have adopted a liberal approach when dealing with affidavits in election matters given the short statutory time frame, but as long as the individual affidavits are filed before the scheduling conference is conducted, it is usually acceptable, as no prejudice would be occasioned to the respondents even if no leave of Court is obtained. Where no leave has been sought, the Court must be satisfied that there exist special circumstances to allow enlargement of time.

Legislation cited (36)

Cases cited (53)

  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributers Ltd (1969) 1 EA 696
  • NAS Airport Services Ltd v Attorney General of Kenya (1959) 1 EA
  • Muyanja Simon Lutaaya v Kenneth Lubogo and Electoral Commission (Election Petition Appeal No. 82 of 2016)
  • Nakivubo Road Old Kampala (Kisekka) and 4 Others v URSB and 4 Others (HCMC No. 109 of 2015)
  • Byanyima Winnie v Ngoma Ngime (Civil Revision Cause No. 9 of 2001)
  • Kakooza JB v Electoral Commission and Yiga Anthony (SC Election Petition Appeal No. 11 of 2007)
  • Departed Asians Property Custodian Board v Jaffer Brothers Ltd (Civil Appeal No. 8 of 1998)
  • Mukasa Anthony Harris v Dr. Bayiga Michael Phillip Lulume (SCCA 18 of 2007)
  • Paul Mwiru v Hon Igeme Nathan Nabeta Samson and 2 Others (Court of Appeal Election Petition No. 6 of 2011)
  • Karokora Katono Zedekiya v Electoral Commission and Kagonyera Mondo (Election Petition No. 2 of 2001)
  • Freda Nanziri Kase Mubanda v Mary Babirye Kabanda and Electoral Commission (Election Petition Appeal No. 38 of 2016)
  • Ernest Kiiza v Kabakumba Masiko (Election Petition Appeal No. 44 of 2016)
  • Kiiza Besigye v Yoweri Kaguta Museveni (Presidential Election Petition No. 1 of 2001)
  • Amoru and Another v Okello (Election Petition Appeal No. 39 of 2016)
  • Twinamasiko Onesmus v Agaba Aisa (Election Petition No. 7 of 2021)
  • Mutembeli Yusuf v Nagwomu and Another (Election Petition Appeal No. 43 of 2016)
  • Ibaale Daniel Joseph v Katuntu Abdu and Electoral Commission (Election Petition Appeal No. 41 of 2016)
  • Tamale Julius Konde v Senkubuge Isaac and Electoral Commission (Election Petition Appeal No. 75 of 2016)
  • Oyo Tayebwa v Basajjabalaba (Election Petition Appeal No. 13 of 2011)
  • Isodo v Amongin (Election Petition No. 6 of 2016)
  • Col (Rtd) Dr. Kizza Besigye v Yoweri Kaguta Museveni and Electoral Commission (Supreme Court Presidential Election Petition No. 1 of 2001)
  • Odo Tayebwa v Arinda Gordon Kakuuna and Electoral Commission (Election Petition Appeal No. 86 of 2016)
  • Amuru & EC Vs Okello Okello (supra)
  • Bakaluba Peter Mukasa v Nambooze Betty Bakireke (Supreme Court Election Petition No. 4 of 2009)
  • Kwijuka Geofrey v Electoral Commission and Another (Election Petition No. 7 of 2011)
  • Hellen Adoa and Electoral Commission v Alaso Alice (Election Petition Appeal No. 57 of 2016)
  • Kabusu Moses Wagaba v Lwanga Timothy and Electoral Commission (Election Petition Appeal No. 53 of 2011)
  • Kyamadidi Mujuni Vincent v Ngabirano Charles and Electoral Commission (Election Petition Appeal No. 84 of 2016)
  • Mbayo Jacob Robert v Electoral Commission and Talisunya (Election Petition No. 7 of 2006)
  • Helen Odoa Vrs Alaso Alice (supra)
  • Kirunda Kivejinja v Abdu Katuntu and Electoral Commission (Election Petition Appeal No. 24 of 2006)
  • Kananura v Independent Electoral Commission and Another (Election Petition No. 8 of 2016)
  • Ngoma Ngime v Electoral Commission and Winnie Byanyima (Election Petition Appeal No. 11 of 2002)
  • Muhindo Rehema v Winfred Kiiza and Another [2012] UGCA 18
  • Waguma v Electoral Commission and Another (Election Petition No. 11 of 2016)
  • Toolit Simon Aketcha v Oulanyah Jacob L'Okori and Electoral Commission (Election Petition Appeal No. 19 of 2011)
  • Ninsiima Boaz Kasirabo and Electoral Commission v Mpuuga David (Election Petition Appeal No. 55 of 2016)
  • Suubi Kinyamatma Juliet v Sentongo Robinah Nakasirye (Election Petition Appeal No. 92 of 2016)
  • Betty Muzanira Bamukwatsa v Masiko Winnifred Komuhangi and the Returning Officer (Election Petition Appeal No. 65 of 2016)
  • Col. (Rtd) Dr. Kiiza Besigye v Museveni Yoweri Kaguta and Electoral Commission (Presidential Election Petition No. 1 of 2001)
  • Borough of Hackney Gill v Reed [1874] XXXI L.J. 69
  • Amama Mbabazi v Yoweri Museveni (Election Petition No. 1 of 2016)
  • Kisirye v Bazigatirawo and Another (Election Petition No. 8 of 2016)
  • Morgan v Simpson and Another (1974) 3 All ER 722
  • Hackney Case (1974) 2 O'M & 77
  • Islington West Division Case (1901) 17 TLR 210
  • Gunn v Sharpe (1974) QB 808
  • Masiko Winfred Kyomuhangi v Babihuga J (Election Petition Appeal No. 9 of 2002)
  • Michael Mawanda v Electoral Commission and Andrew Martial (Election Petition Appeal No. 98 of 2016)
  • Ocan Peter and Electoral Commission v Ebil Fred (Election Petition Appeal No. 83 of 2016)
  • Eng. Ibaale Daniel Joseph v Hon. Abdul Katuntu and Electoral Commission (Election Petition Appeal No. 41 of 2016)
  • Acire Christopher v Regan Okumu and Electoral Commission (Election Petition Appeal No. 9 of 2016)
  • Hon. Ocen Peter & Anor v Hon Ebil Fred (supra)

Full judgment

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Tumwesigye v Museveni and Another (Election Petition No. 3 of 2021) [2021] UGHC 36 (22 September 2021)
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.