By Edwin Tabaro
Introduction
On 14th January 2021, Uganda held Presidential and Parliamentary elections. This was followed by local government elections and election of special interest groups. Like any other exercise, there arose disputes. Some candidates who were dissatisfied with the results and the process of elections, prominent of which was the presidential petition Robert Sentamu Kyagulanyi vs Yoweri K Museveni Tibaruhaba and others presidential election petition 1 of 2021. It is the constitutional duty of courts to resolve such electoral disputes in a fair and transparent manner in regard to principles set out by the law. This paper however covers petitions at parliamentary and local government level which are governed by the same principles. The law governing election petitions is the Parliamentary Elections Act and the rules made thereunder, the Local Government Act which refers to the parliamentary elections act and the rules providing for rules of procedure in the PEA act and very limitedly the civil procedure rules where a procedure is not provided for by the PEA.
Free and fair elections
The law in Uganda does not define what amounts to a free and fair election; it is however inferred from chapter four of the constitution and case law. In Rtd Col Kizza Besigye v. HE Yoweri Museveni No.1 of 2001 and No.1 of 2006, the supreme court stated that:
”a free and fair election is one that is representative of the will of the electorate”. According to Article 1 of the 1995 Constitution, the people of Uganda are sovereign. This therefore means that the government derives its authority from the will of the people of Uganda. A country therefore cannot be truly democratic until its citizens have the opportunity to choose their representatives through elections that are free and fair. Critical development efforts cannot succeed without a legitimate and democratically elected government that is responsive and accountable to its citizens.”
Although the criteria for judging whether an election is free and fair have been developed in various contexts, developing such theoretical concepts into a comprehensive list of factors has proved difficult. The word “free” connotes freedom while “fair” connotes fairness. Fairness connotes impartiality both regularity (unbiased application of rules) and reasonableness (unequal treatment/ unequal distribution of relevant resources) An election is considered free and fair after considering all events before and after voting day.The pre-election period consists of campaigns, application of rules and guidelines and distribution of election material. Post-election period entails the counting of ballots, announcing of election results and handling of complaints”.
I shall consider key procedural issues and steps to take in filing a petition.
Burden of Proof
Like in many civil cases, the burden lies with the petitioner to prove the allegations in the petition. The Supreme Court in Col (Rtd) Kizza Besigye V Museveni Yoweri and Another Presidential Election Petition Number 1 of 2001 held that the burden of proof lies squarely with the petitioner to prove what he or she asserts. The court relied on Section 101 of the Evidence Act which stipulates that the onus is always on the plaintiff and if he makes out a case which entitles him to relief, the onus shifts to the defendant to prove those circumstances if any which would disentitle the plaintiff to the same.
The court highlighted that the party on whom the onus lies must prove his case to justify his case sufficiently to justify a judgment in his or her favor if there is no other evidence given to contradict it.
Standard of Proof
The standard of proof in Election petitions is higher than the one in other civil matters. This was highlighted in the case of Col (Rtd) Kizza Besigye V Museveni Yoweri and Another Presidential Election Petition Number 1 of 2001 where the court inter alia held that the petitioner has a heavier standard of proof than in ordinary civil suits because he or she is asking the court to annul the respondent’s election results. That the standard of to prove these charges is very high just near beyond reasonable doubt.
Substantiality test
This is provided for by S.61 (1) and states that an election of a member of parliament shall be set aside where failure to comply non with the electoral laws affected results in a substantial manner. Whereas it is true that in applying the substantiality test, the whole election process must be evaluated, one can still not run away from the numbers.
In BUSINGE FRED POLICE V KITHENDE KALIBOGHA & ANOR HCEP NO. 05/2006 while citing the decision of Col (Rtd) Dr. Kiiza Besigye v Yoweri Kaguta Museveni, SCEP No. 01/2001, Odoki CJ stated;
“For court to decide whether or not the non-compliance affected the results in a substantial manner, it must be proved to its satisfaction on a balance of probabilities that the non-compliance was calculated to really influence the result in a significant manner. In order to assess the effect, court has to evaluate the whole process of election to determine how it affected the results and then assess the degree of the effect. In this process of evaluation, it cannot be said that numbers are not important just as the conditions which produced those numbers, numbers are useful in making adjustments for the irregularities”. See Odoki C.J in Col (Rtd) Dr. Besigye Kiiza (supra at page 159)
Note that the substantiality test does not apply to b and c where an offence is found to have been committed.
Trial of election petitions
S. 64 of the parliamentary elections act provides for trial of election petitions to be heard in open court by the High Court and after due inquiry, dismiss the petition, declare that a candidate other the candidate declared elected was validly elected, set aside the election and order a new election. The procedure for trial is provided for by the in the matter of the Parliamentary Elections (interim provisions) (election petition) rules 141-2. Trial is by affidavit evidence and all affidavits are deemed to have been read at filing. The sequence include filing the petition accompanied by affidavits of the petitioner and his or her witnesses, which are replied to by the respondent who files an answer to the petition together with replies. The petitioner can file rejoinders. He can also file additional affidavits in case of new evidence not previously filed or supplementary affidavits to clarify or add to matters in an affidavit already filed.
Application for Recount:
Application for recount is made to a Chief Magistrate. Section 55 (1) of the Parliamentary Elections Act for provides for it to be made within seven days after the date on which a returning officer has, in accordance with section 58, declared as elected the candidate who has obtained the highest number of votes, any candidate may apply to the Chief Magistrate for a recount.
Subsection (2) provides that the Chief Magistrate shall appoint the time to recount the votes which time shall be within four days after receipt of the application under subsection (1) and the recount shall be conducted in accordance with the directions of the Chief Magistrate.
In the case of Kasibante Moses versus Katongole Sign and another Election petition 23 of 2011, it was held that the chief in this instance does not only order for a recount but also conducts the recount and at the end of the court process, the chief magistrate will prepare and sign a certificate of recount order with seal of court.
Common Electoral offences
Bribery and Illegal practices
Section 68 (1) of the Parliamentary Elections Act is to the effect that a person who before or during an election intending to influence another to vote or refrain there from for any candidate gives or causes to be given or provides any money, gift or other consideration to that person commits the offence of bribery.
The Supreme Court stated in Kizza Besigye v Y.K Museveni[1], held that for proof of bribery; the petitioner must prove the following ingredients to establish the illegal practice of offering gifts.
- That a gift was given to a voter.
- That the gift was given by a candidate or his agent
- That the gift was given to induce the person to vote for the candidate.
The effect of bribery is that the election can be set aside the under Section 61 (1) (c)[2], which provides for the nullification of the election on grounds that an illegality or offence has been committed. Note that one single incident alone can be relied on to nullify an election ( Odo Tayebawa vs Nasser Basajabala)
The offence of bribery is provided for by S.68 of the Parliamentary Elections Act. It provides:
section 68(1) of the parliamentary Elections Act provides that a person who, either before or during an election with intent, either directly or indirectly to influence another person to vote or to refrain from voting for any candidate, gives or provides or causes to be given or provided any money, gift or other consideration to that other person, commits the offence of bribery and is liable on conviction to a fine not exceeding seventy two currency points or imprisonment not exceeding three years or both.”
In Musinguzi Garuga James versus Amama Mbabazi and EC[3], Egonda-Ntende, J. at page 84 of his judgment para.307 gave the ingredients of the offence of bribery as the following:
Any person before or during an election with intent either directly or indirectly to influence another person to vote or refrain from voting for any candidate, gives or provides or causes to be given or provided any money or gift or other consideration to that other person.”
In the case of (Rtd) Dr.Besigye Kizza vs Museveni Yoweri Kaguta and EC, Odoki, CJ in his judgment at pages 164 and 165, while commenting on illegal practicesor offences, made two observations
(i) That there is no requirement to prove that the illegal practice affected the result in a substantial manner.
(ii) The provision requires that the candidate be liable for the actions of his agents only when they are committed with his knowledge and consent or approval. To this extent the general principles of the law of agency have been modified.
Concerning specifically the illegal practice of offering gifts Odoki CJ in his judgment at page 180 said:
“I accept the submission of Mr. Bitangaro that the petitioner must prove the following ingredients to establish the illegal practice of offering gifts: –
(i) that a gift was given to a voter
(ii) that the gift was given by a candidate or his agent
(iii) that the gift was given to induce the person to vote for the candidate.
It is trite law that the burden of proof lies on the petitioner to prove all the ingredients of the illegal practice under section 68 (i) of the Act.
On the question of the agency relationship between a candidate and his representatives or agents the law is that the candidate is liable only on proof that the agent acted on the candidate’s express or implied authority or that the candidate ratified the act after it was done or appointed the agent to do all acts legal or illegal which he might think proper to support the candidate’s interest.[1] An agent was defined in Odo Tayebwa vs Nasser Basajabalab as any person who puts himself in a place as to act for the candidate with his consent or approval.
“I do not think that prior knowledge and express consent or express permission or approval of a candidate is a necessary prerequisite to the Commission of an illegal practice or any other offences by a representative or an agent before a candidate’s election is rendered liable to annulment.
In the nature of things, no candidate would openly and in public give consent or approval to his agents to commit illegal practices or other electoral offences……
I think that once there is evidence of agency, gathered from the surrounding facts, the candidate should be held liable for the wrongful conduct of his agent/representative.”
Commenting on the statutory provision in S.58 (6) (c) of the Presidential Election Act (similar to S.61 (1) (c) of the Parliamentary Elections Act) Mulenga, JSC, said:
“Under that section, it is clear that an illegal practice or other offence which was not committed by the candidate, can be sustained as a ground for annulment of his election, only if it is proved to the satisfaction of the court that it was committed with the candidate’s “knowledge and consent”, or with his or her knowledge and approval.”
INTIMIDATING VOTERS
No candidate has a right to intimidate another, let alone any member of the electorate no matter his political shade or opinion. Article 1 of the constitution vests power in the people to express their free will in determining their political leaders through periodical elections. Threats or acts of intimidation interferes with the peaceful atmosphere and subverts the will of the electorate to choose leaders of their choice.
Section 80 of the Parliamentary Elections Act, provides for the offence of undue influence, that where a person directly or indirectly in person or through any other person makes use of, or threatens to make use of, any force or violence, inflicts or threatens to inflict in person or through any other person any temporal or spiritual injury, damage, harm or loss upon or against any person, in order to induce or compel that person to vote or refrain from voting, or on account of that person having voted or refrained from voting.
Section 76(j) of the Parliamentary Elections Act is to the effect that any person not being authorized so to do under this Act makes any mark on a ballot paper issued to a person, other than the person making the mark, with intent that the ballot paper shall be used to record the vote of that other person commits an offence.
The High Court in Musinguzi Garuga v. Amama Mbabazi & EC HCT-05-CV-EPA-0003 OF 2001 cited the decision of Musoke Kibuka, J., in Winnie Babihuga v Masiko Winnie Komuhangi and others H.C.T.00-CV-EPA-0004 of 2001 when he stated, “the election must be conducted under conditions that enable the voter to cast his or her vote as he or she wishes, purely on his or her own accord. The conditions must be such as enable the voter to cast his or her vote for whoever candidate he or she wishes to vote for. There must be no obstruction, harassment, hindrance, threats or intimidation. There must be no bribery to induce the voter one way or the other. There must be no conditions creating fear in the minds of voters for persecution or victimization after the elections have taken place.”
Fredrick M.S. Egonda-Ntende J., in Musinguzi Garuga v. Amama Mbabazi & EC(Supra) stated that “Intimidation in the electoral process may, as I have indicated manifest in diverse forms, from acts of violence and harassment, to invasion of secrecy of voting. It can affect the result in two ways. In one way, it may prevent fair competition between or among the contesting candidates. Secondly it may cause voters not to vote according to their free will, either by compelling them not to vote or vote for a candidate they do not freely choose.
The effect is that this is an offence which can lead to setting aside the election under Section 61(1) (c).
UTTERING FALSE STATEMENTS
Every person has a right to his or her good name. Therefore, no candidate or his supporter has a right to make defamatory remarks intended to dent the image of another among the eyes of the electorate.
In the case of Aggrey Awori Siryoyi versus Mugeni Stephen and Electoral Commission EP 5 of 2006 Justice katusti defined the word to “utter” inter alia as:
“….to publish or to put forth. “The word ‘publish’ is defined by the same dictionary as: “To make public; to circulate, to make known to people in general. To issue, to put in circulation. Top utter, to present…”
The words uttered / complained of must have meaning attached to it and must refer to the petitioner, in the case of Amama Mbabazi versus Yoweri K. Museveni and others Presidential Election petition 1 of 2016 the supreme court held that the standard of proof is on the balance of probabilities and that the words referred to must have the meaning attached to them against the petitioner. The court also held that a court must be cautious in distinguishing vulgar vebarations from defamatory marks since the political campaigns are hotly contested.
It should further be emphasized that the right to free speech, especially in election campaigns should not be stifled. Section 21 (2) of the PEA provides:
“Subject to any other law, every candidate shall enjoy complete and unhindered freedom of expression and access to information in the exercise of the right to campaign under this Act”.
The provision is couched in similar words as S. 23 (2) of the Presidential Elections Act, and in Rtd. Col. Dr. Kizza Besigye Vs E.C. and Another SC.EP No. 1 of 2006 the Supreme Court had occasion to consider the effect of that provision in the Presidential Elections Act, which is in material with S. 21 (2) of the PEA.
Ballot stuffing contrary to section 76 (f) of the Parliamentary Elections Act
The court in Suubi Kinyamatama Juliet v. Sentongo Robinah Nakasirye EPA 92 of 2016 expounded on this offence that, “Section 76 (f) PEA creates the offence of ballot stuffing. It provides that a person who knowingly and intentionally puts into a ballot box anything other than the ballot paper which he or she is authorized to put in, commits an offence.
Ballot stuffing was defined in Toolkit Simon Akecha v. Oulanya Jacob L’Okori and Another EPA No. 19 of 2011 as ‘Ballot stuffing therefore 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 did not exist at all or those who are dead or are absent at the time of voting and yet they are recorded to have voted. Ideally, 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.
Declaration of results (DR Forms)
S. 51 of the Parliamentary Elections Act, provides for a declaration form which shall be signed by a presiding officer of a polling station and agents of candidates. If a DR Form shows clearly that there were discrepancies and irregularities relating to the voting and declaration of results in the constituency which are sufficient to vitiate the results in the constituency, then the election in that polling station are annulled. Such discrepancies include wrong tallies, higher ballots cast than the registered voters at the polling station.
In KAKOOZA JOHN BAPTIST VERSUS ELECTOAL COMMISION AND ANR ELECTION APPEAL NO. 11 OF 2007 KANYEIHAMBA JSC stated that:
“On the contention that the returning officer or his agents failed to sign declaration forms, I agree with counsel for the appellant that it is a statutory requirement for the presiding officer at an election polling station to sign the DRForms and to fulfil all the requirements contained in Section 50 of the Parliamentary Elections Act, 2005. However, I do not agree that it is obligatory that each candidate or his or her election agent must first be supplied with or receive a copy of every declaration form before all the results are declared and validated. In my view, the election results should be declared immediately after the count and the signature of the DR Forms by the returning officer and other relevant persons in accordance with the relevant laws.”
In conclusion, the Presidential Elections Act is intended to further the objectives of the Constitution of Uganda by promoting free and unhindered freedom of expression by candidates in an election while advancing democracy.
In order to have confidence that elections are truly free and fair, voters need to be assured of more than just a well-managed day of polling but rather a free and fair election process in its entirety. For an election to be free and fair, there should be a society that encourages citizens to vote, that provides space for political parties to work and campaign freely, an independent media and civil society, and a judiciary capable of acting with impartiality.
The Author is a Partner at KTA Advocates and heads the dispute resolution practice groups (Litigation, arbitration and private mediation).
He was admitted to the bar in 2008 as an Advocate of the High Court of Uganda and has a right of audience in the superior courts of the partner states of the East African Community.
He has acted for Electoral Commission of Uganda in various election petitions as external counsel leading the team of KTA Advocates in defence of EC in 2011 AND 2016 round of elections. He has also prosecuted a number of petitions.
