Bashaija Kazoora John v Electoral Commission & Anor (Mbarara HCT Election Petition No. 4 of 2011) [2011] UGHC 88 (7 July 2011)

Key Facts

Issues

• Whether such contempt of Court as mentioned above is ground for the nullification of the election for the directly elected MP for Mbarara Municipality.
• If not, whether non-compliance with the national electoral laws affected the results of this election substantially.
• Whether the election for the directly elected MP of Mbarara Municipality conducted on 18 February 2011 was held in compliance with the National Electoral Laws.
• Whether in the conduct of the elections of the directly elected Member of Parliament for Mbarara Municipality, there was disobedience of a Court Order and if so whether it amounted to contempt of court.
• What remedies, if any, are available to the parties.
• Whether the 2nd Respondent was involved in any illegal practice under the Act.

Holdings

• The court quashed the decision of the Electoral Commission allowing voters from Kashari Constituency to be included in Mbarara Municipality's voter roll. It declared this action illegal and prohibited future inclusion of these voters in Mbarara elections.
• The court found that non-compliance with the Court Order and electoral laws occurred but concluded this non-compliance did not substantially affect the election outcome due to the minimal impact on vote margins.
• The court ordered the Electoral Commission to bear all costs of the petition, emphasizing the need for strict compliance with legal procedures and court orders.

Remedies

• The court quashed the decision of the Electoral Commission which included the names of voters in Kashari Constituency on the voter's Roll of Mbarara Municipality, as it was found to be illegal.
• The court ordered the 1st Respondent to bear all the costs of this Petition.
• The court declared that the Electoral Commission's decision to allow voters in Makenke Army Barracks to vote in Mbarara Municipality was contrary to the law and therefore null and void.
• The court ordered the Electoral Commission to pay the costs incurred by the petitioner in respect of the Petition.
• The court ordered that the 1st Respondent shall suffer by way of costs.
• The court prohibited the Electoral Commission from allowing voters residing in Makenke Army Barracks, which falls under Kashari County, from voting in Mbarara Municipality.

Legal Principles

• Election petitions require proof on a balance of probabilities, as outlined in Section 61(3) of the PEA. The court clarifies this is a heightened standard compared to routine civil cases, ensuring the evidence demonstrates a reasonable degree of probability that irregularities occurred.
• The petitioner is required to prove the grounds for invalidating the election to the satisfaction of the court, as stipulated in Section 61(1) of the Parliamentary Election Act. This standard differs from criminal cases, emphasizing a balance of probabilities to establish substantial non-compliance affecting the election outcome.
• The court criticizes the Electoral Commission's press release for being shallow and ineffective, highlighting the principle that substantive compliance with court orders is more important than mere formal adherence. The press release failed to ensure voters from Makenke Barracks did not vote in Mbarara Municipality, undermining the order's purpose.

Precedent Name

• Miller v Minister of Pensions (1974) 2 all E.R 372
• Singura Robert Rwomushojwa and 2 others v the Electoral Commission HCT-05-CV-MA-0160-2010
• Joy Kabatsi Kafura v Anifa Kawooya Bangirana & Anor Election Petition Appeal No. 25/2007
• Besigye v Museveni Kaguta & Anor. Election Petition No. 1 of 2001
• Kizza Besigye v Yoweri Kaguta Election Petition No. 1 of 2001
• Kiiza Besigye v Electoral Commission and Yoweri Kaguta Museveni Presidential Election Petition No. 1 of 2006
• Amama Mbabazi & EC v Garuga Musinguzi Election Petition Appeal No. 12 of 2002
• Chris Bigirwa Rutaremwa v Godfrey Ngobi Uni-Engineers and Co. HCT-00-CC-CS 247/2003

Cited Statute

• Parliamentary Election Act
• Constitution of the Republic of Uganda
• Electoral Commission Act

Judge Name

Passage Text

• Court finds that the 1st Respondent failed to give effect to the Court Order dated 4th February, 2011, and failed to comply with National Election Laws.
• I therefore find that the Petitioner has not proved to the satisfaction of Court that non-compliance with the Court Order substantially affected the result of the election for the directly elected MP of Mbarara Municipality.
• 2. That the 1st Respondent shall bear all the costs of this Petition. Court so orders.