Babirye v Bukenya (Election Petition No. 2 of 2021) [2021] UGHCEP 35 (12 September 2021)

Key Facts

Issues

• If so, did that substantially affect the result of the election
• What remedies accrue to the parties
• Whether there was non-compliance with the electoral laws in the conduct of the election
• Whether there were any electoral offences committed by the respondents or their agents
• Whether there were any illegal practices committed by the 1st respondent personally or by his agents with his knowledge and consent or approval

Holdings

• The court held that even if non-compliance and irregularities occurred, the quantitative margin of victory (9,143 votes) and qualitative factors (agents' failure to report issues, lack of widespread intimidation) rendered their impact non-substantial. Adjustments for irregularities would not have changed the outcome.
• The court found non-compliance with electoral laws in the arrest of the petitioner's agents and irregularities at three polling stations (Nabagabe, Kisiita, Kamusenene A-M). However, it concluded that these irregularities did not substantially affect the election result due to the large margin of victory (9,143 votes) and lack of evidence linking the respondents to the arrests or tampering.
• The court determined that allegations of bribery by the 1st respondent (Bukenya) were not proven to the required standard. Evidence of bribes was deemed unreliable, uncorroborated, and inconsistent with the harmonized campaign schedule. The NRM's mobilization funds were not classified as bribery.
• The court dismissed the issue of electoral offences as the petition failed to properly categorize them, with most claims already addressed under non-compliance and illegal practice allegations. No specific offences were substantiated.

Remedies

Legal Principles

• The petitioner must prove non-compliance with electoral laws and that such non-compliance substantially affected the election result under Section 61 of the Parliamentary Elections Act (PE Act). The burden remains with the petitioner throughout the proceedings.
• For illegal practices like bribery, a higher standard of proof is required—cogent, truthful, and free from inconsistencies—proven to the court's satisfaction. This standard is higher than ordinary civil cases but not criminal beyond reasonable doubt.
• Non-compliance or irregularities must significantly affect the election outcome. The court applied a quantitative and qualitative test to assess whether errors or irregularities invalidated the results, considering the margin of victory.
• Elections must be free, fair, and conducted in accordance with the law and constitutional principles. The court emphasized adherence to electoral laws and the importance of reflecting the will of the people without intimidation or fraud.
• The Illiterates Protection Act requires specific safeguards for illiterate deponents, including translation and certification of affidavits. Failure to comply with these mandatory provisions (e.g., missing translation certificates) led to expunging certain affidavits.

Precedent Name

• Col (Rtd) Dr. Kizza Besigye Vrs Yoweri Kaguta Museveni
• Nabukeera Hussein Hanifa Vs Kusasira Peace Mubirr
• Mbayo Jacob Robert Vs Talisonya Simon
• Nakate Mary Annet Vs Babirye V. Kadogo
• Kisirye Vs Bazigatirawo
• Helen Adoa & EC vs Alice Alaso
• Mukasa Anthony Harris Vs Dr. Bayiga Michael Phillip Lulume
• Kasta Hussein Bukenya Vs Bukenya Balibaseka Gilbert
• Oyo Tayebwa Vs Basajjabalaba
• Kabuusu Moses Wababo Vs Lwaiga Timothy Mutekanga
• Paul Mwiru Vs Hon Igeme Nathan Nabeta Samson
• Mbowe Vs Eliuffo
• Amama Mbabazi Vs Yoweri Museveni

Cited Statute

• Parliamentary Elections Act
• Electoral Commission Act
• Illiterates Protection Act
• Oaths Act

Judge Name

Passage Text

• The recorded and proven incidences in this particular election are no match of the above. I would thus agree with Bukenya's counsel that although incidences of intimidation were recorded in this election, there were not the type that affected the final result in a substantial manner.
• I find therefore that none of the allegations of bribery were proved to the required standard.
• I find that although there was noncompliance in the conduct of the election of the member of Parliament for Bukuya Constituency, such non-compliance did not affect the result of the election in a substantial manner.