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Wesonga Kamana Edward v Electoral Commission and Another (Mbale Election Petition Number 0014 of 2006) (Mbale Election Petition Number 0014 of 2006)

High Court · [2006] UGHC 42 · 2006 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition challenging the election of the second respondent as Member of Parliament for Bubulo County West Constituency
Decision
Petition dismissed with costs; second respondent's election as Member of Parliament confirmed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that the petitioner failed to prove the election petition. The second respondent was not a public servant at the time of nomination, having been removed from the office of Town Clerk on 20 September 2005. While there was non-compliance with electoral laws at eight polling stations where results were cancelled or not submitted, this did not affect the election result in a substantial manner given the winning margin of 5,784 votes. The petition was dismissed with costs and a certificate for two counsel awarded to the second respondent.

Outcome

Petition dismissed with costs; second respondent's election as Member of Parliament confirmed

Facts

The petitioner challenged the election of the second respondent as Member of Parliament for Bubulo County West Constituency held on 23 February 2006. The second respondent was declared the winner with 16,426 votes against the petitioner's 10,642 votes, a margin of 5,784 votes. The petitioner alleged that the Electoral Commission had improperly accepted the second respondent's nomination while he still held the office of Town Clerk, Mbale Municipal Local Government Council, and that election malpractices including ballot stuffing and over-voting occurred. The Electoral Commission had cancelled results from seven polling stations due to over-voting and one polling station's results were not submitted. The evidence showed that the second respondent's services as Town Clerk had been terminated by the District Service Commission on 20 September 2005, following a resolution of Mbale Municipal Council on 20 December 2004. The petitioner's witnesses gave contradictory evidence, with several retracting their initial affidavits supporting the petitioner.

Issues

  1. Whether or not there was non-compliance with the electoral laws by the first Respondent in conducting the contested election.
  2. Whether the second Respondent was, at the time of his nomination for election as a Parliamentary candidate, a public servant in the office of Town Clerk, Mbale Municipal Local Government Council.
  3. Whether there were election malpractices by the Respondents, or one of them, and whether such malpractices affected the result of the election in a substantial manner.
  4. Whether the Petitioner is entitled to the remedies prayed for in the petition.

Orders

  • Petition dismissed as against both Respondents.
  • Respondents to have the costs of the Petition.
  • Certificate for costs for two Counsel awarded to Counsel for the second Respondents.

Rules and key headnotes

Electoral Law — Burden and Standard of Proof — Balance of Probabilities
In an election petition under the Parliamentary Elections Act, the petitioner must prove every ground on the balance of probabilities, although slightly higher than in ordinary civil cases, because elections are of greater importance to both individuals and the nation; the petitioner must adduce credible or cogent evidence to prove the allegations at the required standard of proof.
Electoral Law — Qualification of Candidates — Public Officers — Resignation Requirement
Under the Constitutional Court decision in Darlington Sakwa v Attorney General (Constitutional Petition No. 8 of 2006), the requirement in Article 80(4) of the Constitution for public officers to resign at least 90 days before nomination day was not legally applicable to candidates for the 2006 Parliamentary General Elections because the Parliamentary Elections Act commenced on 21 November 2005, leaving insufficient time to comply with the mandatory 90-day requirement.
Electoral Law — Qualification of Candidates — Public Officers — Termination of Employment
A candidate who has been lawfully removed from a public office by the competent authority is not required to resign from that office; where the District Service Commission terminated a Town Clerk's services effective 20 September 2005 following a resolution of the Municipal Council, the candidate held no public office to resign from at the time of nomination on 12 January 2006.
Electoral Law — Non-Compliance with Electoral Laws — Substantial Effect on Results
To succeed in setting aside an election on grounds of non-compliance with electoral laws, it is not enough for a petitioner to prove that non-compliance occurred; the petitioner must prove to the satisfaction of the court that the non-compliance and failure to conduct the election in accordance with the provisions and principles of the electoral laws affected the result of the election in a substantial manner.
Electoral Law — Non-Compliance — Assessment of Substantial Effect
In assessing whether non-compliance with electoral laws affected the result in a substantial manner, the court must evaluate the whole process of election to determine how it affected the result and assess the degree of the effect; while arithmetical numbers are important, they are not the only determining factors — the court must make a value judgment based on the accumulated effect of the non-compliance and whether the contest was so close that the balance was swung by the irregularities.
Evidence — Credibility of Witnesses — Contradictory Affidavits
Where a witness swears an affidavit supporting a petitioner and subsequently swears a second affidavit retracting the contents of the first affidavit and supporting the respondent, the court is unable to rely on the evidence of such a witness as establishing any fact.
Electoral Law — Cancelled Election Results — Substantial Effect
Where election results at eight polling stations with 5,302 registered voters were cancelled or not submitted due to over-voting or non-submission, but the winning margin was 5,784 votes, and even if all votes from the cancelled stations were given to the petitioner, the second respondent would still have a winning majority of 482 votes, the cancellations did not affect the election result in a substantial manner.

Legislation cited (8)

  • Constitution of the Republic of Uganda Article 80(4)
  • Parliamentary Elections Act [17 of 2005] s.61(1)
  • Parliamentary Elections Act [17 of 2005] s.61(3)
  • Parliamentary Elections Act [17 of 2005] s.4(4)
  • Electoral Commission Act Cap.140 s.12
  • Local Governments Act Cap.243 s.65
  • Local Governments Act Cap.243 s.68
  • Constitution (Amendment) Act 11 of 2005 Article 200

Cases cited (7)

  • Col. Dr. Kiiza Besigye v Yoweri Kaguta Museveni and Another (Supreme Court Election Petition No. 1 of 2001)
  • Winnie Matsiko v Babihuga Winnie (Election Petition Appeal No. 9 of 2002)
  • Darlington Sakwa and Another v Attorney General and Others (Constitutional Petition No. 8 of 2006)
  • Anthony Kanyike v Electoral Commission and 2 Others (Election Petition No. 1 of 2006)
  • Pollo K. House Ltd v Nairobi Whole Sellers Ltd [1992] EA 172
  • Hackney (Supra)
  • Morgan Vs. Simpson (Supra)

Full judgment

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Wesonga Kamana Edward v Electoral Commission and Another (Mbale Election Petition Number 0014 of 2006) (Mbale Election Petition Number 0014 of 2006) [2006] UGHC 42 (13 October 2006)
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