Election Petitions in Uganda

ELECTION PETITIONS IN UGANDA
All power belongs to the people who shall exercise their sovereignty in accordance with this
Constitution. (2) Without limiting the effect of clause (1) of this article, all authority in the State
emanates from the people of Uganda; and the people shall express their will and consent on who
shall govern them and how they should be governed, through regular, free and fair elections of
their representatives or through referenda.1
Every citizen of Uganda of eighteen years of age or above has a right to vote, It is the duty of
every citizen of Uganda of eighteen years of age or above to register as a voter for public elections
and referenda. The State shall take all necessary steps to ensure that all citizens qualified to vote
register and exercise their right to vote.2
In Uganda, the politics is largely based on the multiparty system, which entails having
representatives from different political parties who contest for the electoral offices in the land.
A political party in the multiparty political system shall conform to the following principles— (a)
every political party shall have a national character; (b) membership of a political party shall not
be based on sex, ethnicity, religion or other sectional division; (c) the internal organisation of a
political party shall conform to the democratic principles enshrined in this Constitution; (d)
members of the national organs of a political party shall be regularly elected from citizens of
Uganda in conformity with the provisions of paragraphs (a) and (b) of this article and with due
consideration for gender; (e) political parties shall be required by law to account for the sources
and use of their funds and assets; (f) no person shall be compelled to join a particular party by
virtue of belonging to an organisation or interest group.3
1
Article, 1(1,2and 4), The Constitution of the Republic of Uganda 1995 as Amended ,
2
Article 59(1,2and 3), The Constitution of the Republic of Uganda 1995 as Amended
3
Article 71, The Constitution of the Republic of Uganda 1995 as Amended
luwubenson@gmail.com LLB .UCU, DLP. LDC Page 1

Every citizen has a right to form a political party of political organization so long as its in
conformity with the aforementioned principles.4
PRESEIDENTIAL ELECTION
There shall be a President of Uganda who shall be the Head of State, Head of Government and
Commander-in-Chief of the Uganda Peoples’ Defence Forces and the Fountain of Honour.5
A person is not qualified for election as President unless that person is (a) a citizen of Uganda by
birth; (b) not less than thirty-five years and not more than seventy-five years of age; and (c) a
person qualified to be a Member of Parliament.6
A person is qualified to be a Member of Parliament if that person (a) is a citizen of Uganda; (b) is
a registered voter; and (c) has completed a minimum formal education of Advanced Level
standard or its equivalent.7
A person is not qualified for election as a Member of Parliament if that person
(a) is of unsound mind; (b) is holding or acting in an office the functions of which involve a
responsibility for or in connection with the conduct of an election; (c) is a traditional or
cultural leader as defined in article 246(6) of the Constitution; (d) has been adjudged or
otherwise declared bankrupt under any law in force in Uganda and has not been
discharged; or (e) is under a sentence of death or a sentence of imprisonment exceeding
nine months imposed by any competent court without the option of a fine.8
The election of the President shall be by universal adult suffrage through a secret ballot. A person
shall not be a candidate in a presidential election unless (a) that person submits to the Electoral
4
Article 72, ibid
5
Article 98 ibid
6
Article 102, The Constitution of the Republic of Uganda 1995 as Amended, Section 2 of the Presidential Elections
Act Cap 142 as amended
7
Section 2(3) Presidential Elections Act Cap 142 as amended
8
Section 2(4) Presidential Elections Act Cap 142 as amended

Commission on or before the day appointed as nomination day in relation to the election, a
document which is signed by that person nominating him or her as a candidate; and (b) the
nomination is supported by one hundred voters in each of at least two-thirds of all the districts in
Uganda.9
The election of the President shall be held during the first thirty days of the last ninety days before
the expiration of the term of the President, except in the case of— (a) the first election under this
Constitution; (b) an election held under article 104(6) of this Constitution; (c) an election held
under article 109(2) of this Constitution; and (d) an election necessitated by the fact that a normal
presidential election could not be held as a result of the existence of a state of war or a state of
emergency, in which case, the election shall be held within such period as Parliament may, by
law, prescribe. (4) A candidate shall not be declared elected as President unless the number of
votes cast in favour of that candidate at the presidential election is more than 50 percent of valid
votes cast at the election.
Where at a presidential election no candidate obtains the percentage of votes specified in clause
(4) of this article, a second election shall be held within thirty days after the declaration of the
results in which election the two candidates who obtained the highest number of votes shall be the
only candidates.
(6) The candidate who obtains the highest number of votes in an election under clause (5) of this
article shall be declared elected President.
(7) The Electoral Commission shall ascertain, publish and declare in writing under its seal, the
results of the presidential election within forty-eight hours from the close of polling.
9
Article 103(1,2) The Constitution of the Republic of Uganda 1995 as Amended

(8) A person elected President during the term of a President shall assume office within twenty-
four hours after the expiration of the term of the predecessor and in any other case, within twenty-
four hours after being declared elected as President.10
The mandate to organize and handle election is vested in the independent electoral commission
Electoral Commission which shall consist of a chairperson, a deputy chairperson and five other
members appointed by the President with the approval of Parliament.11
The Electoral Commission shall have the following functions (a) to ensure that regular, free and
fair elections are held; (b) to organise, conduct and supervise elections and referenda in
accordance with this Constitution; (c) to demarcate constituencies in accordance with the
provisions of this Constitution; (d) to ascertain, publish and declare in writing under its seal the
results of the elections and referenda; (e) to compile, maintain, revise and update the voters
register; (f) to hear and determine election complaints arising before and during polling;
(g) to formulate and implement civic educational programmes relating to elections; and (h) to
perform such other functions as may be prescribed by Parliament by law.12
PRE- ELECTION REMEDIES
a) Lodging a complaint with the returning officer or commission
A party who is objecting to the nomination or academic qualifications of the proposed candidate
may lodge a complaint to the returning officer and returning officer is enjoined with power to
make a decision and give reasons for the decision made.13
The party aggrieved with the decision of the returning officer has a right to appeal to the Electoral
commission exercisable within 7 days from the date of the returning officers decision.
10
Article 103, (3,4,5,6,7,8)The Constitution of the Republic of Uganda 1995 as Amended
11
Article 60 and 62. The Constitution of the Republic of Uganda 1995 as Amended
12
Article 61, The Constitution of the Republic of Uganda 1995 as Amended
13
Section 16(a) The Parliamentary Elections Act 2005 As Amended

The electoral commission has power to reverse or confirm the decision of returning officer within
7 days from the date of receipt of the complaint.14
The procedure for lodging a complaint to the returning officer is by ordinary letter by a
registered voter or complainant. And appeal to the high court is by way of petition and evidence is
by way of affidavits.15
b) Failure to issue Academic Accreditation from National Council for Higher Education
A person aggrieved by the grant or refusal to grant a certificate of accreditation from National
Council for Higher Education may appeal to the High Court by way of petition against the
decision and the high court may confirm, modify or vary the decision.16
POST ELECTION REMEDIES
Mandatory recount before the returning officer
There can be mandatory recount before the returning officer as soon as the results are declared
and there is an equality of votes between two or more candidates obtaining the highest number of
votes. where the number of votes separating the candidates with the highest number of votes is
less than 50.
The returning officer may upon request in writing by the candidate, his agent or a registered
officer in the presence of a senior police officer do a mandatory recount but this is after giving
written notice of the intention to recount to all interested parties. 17 In cases of equality between
two or more candidates with the highest number of votes, there shall be a runoff election between
the two candidates and this shall take place no later than 30 days from the date of recount. 18
Recount by the chief Magistrate
14
Section 16(b) ibid
15
The Parliamentary Elections (Interim Provisions) (Appeals to the High Court from Commission) Rules, SI 141-1
16
Section 4(11) Parliamentary Elections Act 2005 As amended
17
Section 54(1) ibid
18
Section 54(2) Parliamentary Elections Act 2005 As amended

The aggrieved candidate may apply for a recount to the chief magistrate with 7 days from the date
of declaration of the candidate with the highest number of votes.
The chief magistrate may appoint time within 4 days from receipt of the application to conduct a
recount but the applicant has to deposit security for costs of 30CP.19
In Kasibante Moses v Katongole Singh &Anor Election Petition No 23 of 2011. It was stated
that, the recount is a court process, court sits as usual fully constituted with counsel and clerks to
assist the chief magistrate, the returning officer and his staff have to be in attendance to assist
court In handling electoral material, ballot boxes will be opened and contents duly examined
It’s the magistrate to determine which votes are valid or invalid and a usual court record shall be
recorded. In case of any adjournment, all electoral material shall be left in court house.
At the end of the court process, the magistrate will prepare and sign a certificate of recount under
the seal of court, this certificate ought to show what variations the court has found or made in the
results early tallied by the returning officer. It is also important to note that a recount is only
available before gazetting and swearing of the winning candidate
19
Section 55(1,2and 3) ibid

Presidential Election Petition
Article 104 (1) of the Constitution provides that: “Subject to the provisions of this article, any
aggrieved candidate may petition the Supreme Court for an order that a candidate declared by
the Electoral Commission elected as President was not validly elected.”
In the same line, section 59(1) of the Presidential Elections Act states that:
“An aggrieved candidate may petition the Supreme Court for an order that a candidate declared
elected as President was not validly elected.”
Therefore, the right to petition can only be exercised by an aggrieved candidate.
Parliamentary Elections
Section 60(2) of the Parliamentary Elections Act 2005 as Amended states that: “An election
petition may be filed by any of the following persons-
 A candidate who loses an election; or
 A registered voter in the constituency concerned supported by the signatures of not less
than five hundred (500) voters registered in the constituency in a manner prescribed by the
regulations”.
Therefore, the right to petition may be exercised by the losing candidate or a registered voter as
prescribed in that provision.
Local Council Elections
Section 138 (3) of the Local Governments Act 2006 states that: “An election petition may be filed
by any of the following persons (a) a candidate who loses an election; or (b) a registered voter
in the constituency concerned supported by the signatures of not less than five hundred voters
registered in the constituency.”
Therefore, the right to petition may be exercised by the losing candidate or a registered voter as
prescribed in that provision.
In the case of Hon. Kipoi Tonny Nsubuga v Ronny Waluku Wataka and Others, Election
Petition Appeal No. 7 of 2011, the Court of Appeal in determining whether the learned trial
judge erred in law and in fact when he held that Election Petition No. 32 of 2011 was good in law
and was properly before court, observed that:
“The gist in this issue is the appellant’s complaint that the learned trial judge erroneously found
that Election Petition No. 32 of 2011 was good in law and properly before court.
Section 60(2) of the Parliamentary Elections Act 2005 as amended provides: An election petition
may be filed by any of the following persons; a candidate who loses an election; or a
registered voter in the constituency concerned supported by the signatures of not less than
five hundred voters registered in the constituency in a manner prescribed by regulations.
The appellant’s complaint is based on the argument that the petition lacked the required not less
than 500 signatures of registered supporters of the petition from Bubulo West constituency.

The respondents argue that the consolidated petition over which the learned trial judge presided
complied with the requirements of the law in that Namatiiti was the petitioner and the other more
than 800 registered voters who were involved in the petition and whose signatures are on record,
although they originally were petitioners, are far more than the required minimum of 500
registered voters from Bubulo west constituency supporting it.
The learned trial judge held on this matter thus:
“Both 1st and 2nd respondents raise the point that under section 60 (2) (b) of the
Parliamentary Elections Act (PEA) a valid petition by a registered voter has to be
accompanied by the signatures of not less than five hundred voters registered. They insist
that the annexture “A” does not conform to the legal requirement of having the signatures
of the 500 or more registered voters and /or it is not certified.
I am not aware that any of the 800 voters represented have sworn an affidavit denying
involvement in the petition. This was the intention of the law that a voter should not be
made party to a petition which they would rather not be associated with. Since none of the
800 or so voters has disassociated themselves from the petition, it is assumed they are in
favour of it.
In my view, this is not a substantive defect but one of form and using judicial discretion and
Article 126(2) (e) of the Constitution I rule that this particular defect cannot be fatal to the
petition.
Even if it were, which I have ruled it is not, there are other petitioners who would still
continue with the petition. I don’t think Counsel for the two respondents are arguing that

the consolidation of the petitions should result in what they consider a defective petition
infecting the one or ones without defect. That would be a travesty.”
We have no cause to fault the learned trial judge’s finding on this issue. What the appellant
raised, are mere technicalities which must, in the interest of substantive justice, be treated as such
under Article 126(2)(e) of the Constitution. We, therefore, find in the negative on issue 4.”
FORUM
Presidential Elections
The forum for Presidential Election Petitions is prescribed under article 104(1) which states that:
“Subject to the provisions of this article, any aggrieved candidate may petition the Supreme
Court for an order that a candidate declared by the Electoral Commission elected as President
was not validly elected.” In the same vein, section 59(1) of the Presidential Elections Act sets out
the Supreme Court as the forum for Presidential Election Petitions.
Article 86(1)(a) of the Constitution states that the High Court shall have jurisdiction to hear and
determine any question whether a person has been validly elected a member of Parliament or the
seat of a member of Parliament has become vacant.
Article 140 of the Constitution provides that:
“(1) Where any question is before the High Court for determination under article 86(1) of this
Constitution, the High Court shall proceed to hear and determine the question expeditiously and
may, for that purpose, suspend any other matter pending before it.
(2) This article shall apply in a similar manner to the Court of Appeal and the Supreme Court

when hearing and determining appeals on questions referred to in clause (1) of this article.”
Clause 2 made the Supreme Court the final Court of Appeal in Election Petitions arising from the
High Court. However, section 66(3) of the Parliamentary Elections Act 2005 as amended by
section 14 of the Parliamentary Elections (Amendment) Act of 2010 provides that:
“Notwithstanding section 6 of the Judicature Act, the decisions of the Court of Appeal pertaining
to parliamentary elections petition shall be final.”
A question that arises is whether section 66(3) as amended does not conflict with the Constitution.
Section 60(1) of the Parliamentary Elections Act provides that Election petitions under the Act
shall be filed in the High Court.
Under the Local Governments Act, it is provided under section 138(1) that:
“An aggrieved candidate for chairperson may petition the High Court for an order that a
candidate declared elected as chairperson of a local government council was not validly elected.”
Section 138(2) states that:
“A person qualified to petition under subsection (3) who is aggrieved by a declaration of the
results of a councillor may petition the chief magistrate’s court having jurisdiction in the
constituency.”
A person who contested for chairperson may petition the High Court while a qualified person who
is aggrieved by the results of a councilor may petition the Chief Magistrates Court.
Appeals are provided for in section 145 of the Local Governments Act which provides that:

“(1) A person aggrieved by the determination of a lower court on hearing an election petition may
appeal to the High Court or Court of Appeal against the verdict.
(2) The High Court or Court of Appeal in case of a subsequent appeal shall proceed to hear and
determine an appeal under this section within three months (90 days) after the day on which the
petition was filed and may, for that purpose, suspend any other matter pending before it.
(3) The decision of the Court of Appeal in an appeal under this section shall be final.”
TIME
Presidential Election
Article 104(20 of the Constitution states that:
“A petition under clause (1) of this article shall be lodged in the Supreme Court registry within ten
days after the declaration of the election results.”
Section 59(2) of the Presidential Elections Act further states that:
“A petition under subsection (1) shall be in a form prescribed by the Chief Justice under
subsection (11) and shall be lodged in the Supreme Court registry within ten days after the
declaration of the election results.”
Section 60 (3) of the Parliamentary Elections Act 2005 as amended states that:
“Every election petition shall be filed within thirty days after the day on which the result of the
election is published by the Commission in the Gazette”.
Section 138(4) of the Local Governments Act provides that:
“An election petition shall be filed within fourteen days after the day on which the results of the

election have been notified by the Electoral Commission in the Gazette.”
In Kamba Saleh Moses v Namuyangu Jennifer, Election Petition Appeal No. 27 of 2011, the
Court of Appeal had to determine whether an election petition was time barred where court fees
were paid a day outside the time allowed for filing the petition . The Court stated that:
“…..this court has all the powers, authority and jurisdiction of the High Court to deal with
the question of payment of the court fees for Election Petition No.18 of 2011, under
Section 11 of the Judicature Act which provides:
Court of Appeal to have powers of the court of original jurisdiction
“For the purpose of hearing and determining an appeal, the Court of
Appeal shall have all the powers, authority and jurisdiction vested
under any written law in the court from the exercise of the original
jurisdiction of which the appeal originally emanated.”
Further, this court also has the duty to subject the entire evidence on record to a fresh
review, scrutiny and make its own inferences. In doing so, however, it has to take it into
account the fact that it did not see the witnesses testify and make allowance for that. See
Pandya vs R. 1957 E.A 336 and Rule 30 (1) (a) of the Judicature (Court of Appeal
Rules) Directions.
We shall therefore, proceed to consider the questions of the payment of the court fees and
compliance with the law on the presentation of an election petition to court as the second
matter raised in issue one.
Section 60 of the Parliamentary Election Petitions Act (PEA) provides:

S.60 Who may present election petition.
“1. Election petitions under this Act shall be filed in the High Court.
2. An election petition may be filed by any of the following persons-
(a) a candidate who loses an election; or
(b)..................................................................................
(3) Every election petition shall be filed within thirty days after the day on
which the result of the election is published by the Commission in the Gazette.
(4)................................................................................”
Rule 5 of the Parliamentary Elections (Election Petitions)Rules (PEEPR) Provides;
5. Mode of presentation of petition.
“1. Presentation of a petition shall be made by the petitioner leaving it in
person or by or through his or her advocate, if any, named at the foot of the
petition, at the office of the registrar within thirty days after the declaration of
the result of the election.
2. ................................................................................
3. The petitioner or the advocate of the petitioner shall, at the time of
presenting the petition, pay a fee of 150,000 shillings.
4. If sub rule (3) of this rule is not complied with, the petition shall not be
accepted.
5. ................................................................................
6. ................................................................................

7. ................................................................................
It is not in dispute that the petition was presented to court on the 6 th April 2011 which was
the last day for it to be presented. The appellant contends that the court fees were paid on
the 7th April 2011, a day after the lapse of the 30 days prescribed by Section 60(3) of the
PEA and Rule 5(1) of the PEER.
Notably, the PEA uses the word file while the PEEPR use the word present.
None of the two words is defined either in the Act or in the rules cited above.
In the absence of such a statutory definition, I have resorted to Black’s Law Dictionary, 9 th Edn,
which defines ‘file’ as:
“to deliver a legal document to the court clerk or record custodian for placement into the
official record”
The same dictionary defined present as:
“The delivery of a document to an issue or named person for the purposes of initiating
action.”
I understand the two words used in the Act and the Rules there under to mean the delivery to court
of an Election Petition at the commencement of a court action. The two words are, therefore, in
my view, used interchangeably in the Act and the Rules to mean the same thing.
Rule 5(3) requires the payment of court fees for the petition at the same time as the petition is
presented to court.

Rule 5(4) goes further to provide that failure to pay the fee should lead to a rejection of the
petition by the registrar.
In the instant case, the petition was presented to court on the last day and it was accepted without
protest by court over the nonpayment of court fees. Court went ahead to issue an assessment of
the fees payable and to direct counsel for the petitioner to proceed to deposit the money into the
bank. The money was actually paid into the bank though a day after the expiry of the 30 days
stipulated by the PEEPR for the presentation of a petition.
In these circumstances, however, court would treat that late payment of the court fees not as an
illegality but an irregularity a technicality that would not be accorded un due regard in endeavors
of the court to administer substantive justice over the matter. Court, therefore, invokes the
provisions of Article 126 2(e) of the Constitution. See also this Courts Election Petition
Application No. 20 of 2007, Electoral Commission vs Namboze Betty Bakireke and Lawrence
Muwanga and Stephen Kyeyune Supreme Court Civil Appeal No. 12 of 2001.
Consequently we find that the payment of the court fees on the 7 th April 2011 did not render the
petition presented to court on the 6th April 2011 time barred.
MODE OF CHALLENGING AN ELECTION
A reading of articles 104(1) and (2) of the Constitution, Section 59(1) and (2) of the Presidential
Elections Act, section 60 of the Parliamentary Elections Act and section 138 of the Local
Governments Act points to the fact that an election challenge has to be lodged by petition to the
court responsible court of law.

Section 62 of the Parliamentary Elections Act provides that:
“Notice in writing of the presentation of petition accompanied by a copy of the petition shall,
within seven days after the filing of the petition, be served by the petitioner on the respondent or
respondents, as the case may be.”
GROUNDS UPON WHICH AN ELECTION MAY BE CHALLENGED
An election petition is usually lodged with the aim of having the results annulled on the ground
that the candidate who won was not validly elected. Accordingly, the grounds upon which a
challenge may be based are those that would nullify an election. These relate usually to non-
compliance with electoral laws.
Article 104(9) of the Constitution states that:
“Parliament shall make such laws as may be necessary for the purposes of this article, including
laws for grounds of annulment and rules of procedure.”
Section 59(6) of the Presidential Elections Act, 2005 states that:
“The election of a candidate as President shall only be annulled on any of the following grounds
if proved to the satisfaction of the court—
 non-compliance with the provisions of this Act, if the court is satisfied that the election
was not conducted in accordance with the principles laid down in those provisions and
that the non compliance affected the result of the election in a substantial manner;
 that the candidate was at the time of his or her election not qualified or was disqualified
for election as President;
 that an offence under this Act was committed in connection with the election by the
candidate personally or with his or her knowledge and consent or approval.”

Section 61(1) of the Parliamentary Elections Act, 2005 provides that:
“(1) The election of a candidate as a member of Parliament shall only be set aside on any of the
following grounds if proved to the satisfaction of the court—
(a) non-compliance with the provisions of this Act relating to elections, if the court is satisfied
that there has been failure to conduct the election in accordance with the principles laid down in
those provisions and that the non-compliance and the failure affected the result of the election in
a substantial manner;
(b) that a person other than the one elected won the election; or
(c) that an illegal practice or any other offence under this Act was committed in connection with
the election by the candidate personally or with his or her knowledge and consent or approval; or
(d) that the candidate was at the time of his or her election not qualified or was disqualified for
election as a member of Parliament.”
On the other hand, Section 139 of the Local Governments Act provides that:
“The election of a candidate as a chairperson or a member of a council shall only be set aside on
any of the following grounds if proved to the satisfaction of the court—
(a) that there was failure to conduct the election in accordance with the provisions of this Part of
the Act and that the noncompliance and failure affected the result of the election in a substantial
manner;
(b) that a person other than the one elected purportedly won the election;
(c) that an illegal practice or any other offence under this Act was committed in connection with
the election by the candidate personally or with his or her knowledge and consent or approval; or

(d) that the candidate was at the time of his or her election not qualified or was disqualified from
election.”
In Col. Rtd. Dr. Kiiza Besigye V Yoweri Kaguta Museveni and Electoral Commission,
Presidential Election Petition No. 1 of 2006, Odoki, CJ observed that:
“The Court is not required to make a general inquiry into the Presidential Election as if it
was a Commission of Inquiry but to determine the issues and complaints raised in the
petition.”
In Presidential Election Petition No 1 of 2001, Rtd Col Dr Kiiza Besigye vs Yoweri Kaguta
Museveni and Electoral Commission, Odoki CJ, stated that:
“In my opinion the principles of the Act can be summarized as follows:
 The election must be free and fair
In Hajji Kirunda kivejinja v Abdul Katuntu Election petition appeal no 24 of 2006, it
was stated that
a) “an election is deemed free and fair when it is held in an atmosphere of freedom
and fairness that will permit will of the electorate to prevail.
b) an election which is manned by widespread violence, torture and intimidation
cannot be said to be free and fair.
c) That in its broader meaning, the term entails an election where there is sufficient
time given at all stages of the election.ie nominations, campaigns, voting and
counting of votes.

Professor Greg Godwin in his book Free and Fair Elections international law and
Practice 1994, opines that a successful election doesn’t depend on what happens
on ballot days, the totality of the process must be examined including pre-
liminary issues such as the nature of the electoral system, voter registers,
whether the voters have been able to cast their votes without fear and
intimidation.
 The election must be by universal adult suffrage, which underpins the right to register and
vote
 The elections must be conducted in accordance with the law and procedure laid down by
Parliament
 There must be transparency in the conduct of elections
 The result of the election must be based on the majority of the votes cast”.
CONDUCT OF AN ELECTION PETITION
Time for determination of petition
Presidential Election
Article 104(3) of Constitution provides that:
“The Supreme Court shall inquire into and determine the petition expeditiously and shall declare
its findings not later than thirty days from the date the petition is filed.”
That provision is re-enacted in Section 59 (3) of the Presidential Elections Act, 2005.
There seems no time limit for the trial of parliamentary Elections. However, section 63(2) of the

Parliamentary Elections Act provides that:
“The High Court shall proceed to hear and determine the matter expeditiously and may, for that
purpose suspend any other matter pending before it.”
Under section 66(1) of the Parliamentary Elections Act, Election Petition appeals from the High
Court are to be lodged by an aggrieved person to the Court of Appeal.
In the case of Election Petition appeals, section 66(2) of the Parliamentary Elections Act as
amended by section 14 of the Parliamentary Elections Act, 2010 provides that:
“The Court of Appeal shall proceed to hear and determine an appeal under this section within six
months from the date of filing of the appeal and may for that purpose suspend any other matter
pending before it.”
Section 142(2) of the Local Governments Act provides that:
“The High Court or chief magistrate shall proceed to hear and determine the matter within
three months after the day on which the petition was filed and may, for that purpose,
suspend any other matter pending before court.”
POWERS AND DUTIES OF COURT IN ELECTION PETITIONS
Presidential Elections
Article 104(5) of the Constitution states that:
“After due inquiry under clause (3) of this article, the Supreme Court may—
(a) dismiss the petition;
(b) declare which candidate was validly elected; or

(c) annul the election.”
That provision is reenacted in Section 59(5) of the Presidential Elections Act, 2005.
It is further provided in section 59(8) of the Presidential Elections Act that:
“Where upon hearing a petition and before coming to a decision, the Court is satisfied that
a recount is necessary and practical, it may order a recount of the votes cast.”
Section 63(4) of the Parliamentary Elections Act states that:
“After due inquiry the court hearing an election petition may—
(a) dismiss the petition; or
(b) declare that a candidate other than the candidate declared elected was validly elected; or
(c) set aside the election and order a new election.”
Under subsection 5, it is provided that:
“The High Court before coming to a decision under subsection (4), may order a recount of the
votes cast.”
In subsection 6, it is provided that:
“At the conclusion of the trial of an election petition the court shall determine whether the
respondent was duly elected or whether any, and if so which person other than the
respondent was or is entitled to be declared duly elected, and if the court determines that—
(a) the respondent was duly elected, the election shall be and remain as valid as if
no petition had been presented against the respondent’s election;

(b) the respondent was not duly elected but that some other person was or is
entitled to be declared duly elected—
(i) the respondent shall be ordered to vacate his or her seat; and
(ii) the court shall certify its determination to the Commission and the
Speaker, and the Commission shall thereupon, by notice published in the
Gazette, declare that other person duly elected with effect from the day of
the determination by the court.
(c) the respondent was not duly elected and that no other person was or is entitled
to be declared duly elected—
(i) the seat of the respondent shall be declared vacant; and
(ii) the court shall forthwith, certify its determination to the Clerk to
Parliament and the Commission.”
EVIDENCE AND STANDARD OF PROOF
Evidence in Election petitions is normally adduced by way of affidavit.
Section 60 of the Presidential Elections Act states that:
“(1) At the trial of an election petition—
(a) any witness shall be summoned and sworn in the same manner as a witness may
be summoned and sworn in civil proceedings;
(b) the court may summon and examine any person who in the opinion of the court
is likely to assist the court to arrive at an appropriate decision;
(c) any person summoned by the court under paragraph (b) may be cross-examined
by the parties to the petition if they so wish.

(2) A witness who in the course of the trial of an election petition willfully makes a
statement material to the proceedings-
(a) which he or she knows to be false; or
(b) which he or she does not know to be true; or
(c) which is false and in respect of which he is reckless whether it is true of false,
commits and offence and is liable on conviction to a fine not exceeding twenty four
currency points or imprisonment not exceeding one year or both.”
However, rule 14 of the Presidential Elections (Election Petition) Rules SI 13 of 2001 states that:
“(1) Subject to this rule, all evidence at the trial, in favour of or against the petition shall
be by way of affidavit read in open court.
(2) With leave of the Court, any person swearing an affidavit which is before the Court,
may be cross-examined by the opposite party and re-examined by the party on behalf of
whom the affidavit is sworn.
(3) The Court may, of its own motion examine any witness or call and examine or recall
any witness if the court is of the opinion that the evidence of the witness is likely to assist
the Court to arrive at a just decision.
(4) A person summoned as a witness by the Court under sub-rule (3) of this rule may, with
leave of the Court, be cross-examined by the parties to the petition.”
Section 64 of the Parliamentary Elections Act states that:
“(1) At the trial of an election petition—
(a) any witness shall be summoned and sworn in the same manner as a witness may
be summoned and sworn in civil proceedings;

(b) the court may summon and examine any person who, in the opinion of the court
is likely to assist the court to arrive at an appropriate decision;
(c) any person summoned by the court under paragraph (b) may be cross examined
by the parties to the petition if they so wish.
(2) A witness who, in the course of the trial of an election petition, willfully makes a
statement of fact material to the proceeding which he or she knows to be false or does not
know or believe to be true or in respect of which he or she is reckless whether it is true or
false, commits an offence and is liable on conviction to a fine not exceeding twenty four
currency points or imprisonment not exceeding one year or both.”
Section 143 of the Local Governments Act states that:
“(1) In the hearing of a petition, the powers of the court and the rules of procedure shall be
those which apply to a civil action in a court of law.
(2) A witness who, in the course of the hearing of an election petition, wilfully makes a
statement of fact material to the proceedings which he or she knows to be false or does not
believe to be true, commits an offence and is liable on conviction to a fine of ten
currency”.
Under section 59(6) of the Presidential Elections Act (2005), Section 61(1) of the Parliamentary
Elections Act, 2005 and section 139 of the Local Governments Act, the grounds for annulling an
election have to be proved to the satisfaction of the court.
In Presidential Election Petition No.1 of 2006, Odoki, reiterated that:

“One of the principles established in the Presidential Election Petition No.1 of 2001 was
that the burden of proof lies on the petitioner to satisfy the court on balance of
probabilities that the non-compliance with the law and principles affected the result of the
election in a substantial manner. The standard of proof is higher than in an ordinary civil
case and is similar to standard of proof required to establish fraud, but it is not as high as
in criminal cases where proof beyond reasonable doubt is required.
In the Presidential Petition No.1 of 2005 (supra), this Court referred to a number of
English, Nigerian, Tanzanian and Ugandan authorities defining the phrase “affected the
results in a substantial manner”. I shall refer to only a few of them.
In Mbowe v. Eliufoo (1967) EA 240, at page 242, Georges CJ, in the Court of Appeal of
Tanzania, said
“In my view in the phrase “affected the result,” the word “result”
means not only the result in the sense that a certain candidate won
and another lost. The result may be said to be affected after making
adjustments for the effect of proved irregularities, the contest seems
much closer than it appeared to be when first determined. But when
the winning majority is so large that even a substantial reduction still
leaves the successful candidate a wide margin, then it cannot be said
that the result of the election would be affected by any particular non-
compliance of the rules”
In Ibrahim vs. Shagari & Others (1985) LRC (Const) 1, the Supreme Court of Nigeria
considered a similar law which stated that “an election shall not be invalidated by

reason of the non-compliance with Part II of the Act if appears to the Court …. that
the election was conducted substantially in accordance with the provisions of the said
Part II and that non-compliance did not affect the result of the election.” The Court
observed, at page 21,
“The Court is the sole judge and if it is satisfied that the election has
been conducted substantially in accordance with Part II of the Act, it
will not invalidate it. The wording of Section 123 is such that it
presumes that there will be some minor breaches of regulations but
the election will only be voided if the non-compliance so resulting and
established in court by credible evidence is substantial. Further the
court will take into account the effect if any which such non-
compliance with the provisions of Part II of the Electoral Act 1982 has
had in the result of the election.”
In Clare Eastern Division Case (1892) 4 QM & H 162, at page 162, Ruffle v Rogers
(1982) QB 1220, it was held that the “result” means the success of one candidate over
another, and not merely an alteration in the number of votes given to each candidate. In
other words, the result of an election is the outcome of the election in terms of
performance by the candidates and the number of votes each obtained. The results of an
election are reflected in a return filed by the Electoral Commission.
In the Presidential Election Petition No.1 of 2001 I defined the phrase ‘substantial effect’
as follows:

“What then is a substantial effect? This phrase has not been defined
in the Statute or judicial decisions. But the cases of Hackney (1874)
XXX1 L.T. 69, and Morgan v Simpson (1974) 3 All ER 722, attempted
to define what the words substantial effect meant. I agree with the
opinion of Grove J (in the Hackney Case). The effect must be
calculated to really influence the result in a significant manner. In
order to assess the effect the court has to evaluate the whole process of
the election to determine how it affected the result, 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. The crucial point is that there must be cogent evidence
direct or circumstantial to establish not only the effect of non-
compliance or irregularities but to satisfy the court that the effect on
the result was substantial.”
In that case, I also observed that a value judgment is relevant in considering the process of
the election and the principles underlying the process. At the end of the elections a value
judgment can only be made that an election was not free and fair but that is not the result of
the election. It is only one of the principles of non-compliance which may render the
election to be set aside if it has affected the result in a substantial manner.

In his judgment in the Presidential Election Petition No.1 of 2001, Mulenga JSC explained
the meaning of the phrase “affected the result of the election in a substantial manner” as
follows:
“Issue No.3 in this petition relates to the application of paragraph (a) of
that subsection {58(6)}. It is centered on the meaning of the phrase
“affected the result of the election in a substantial manner”. The result
of an election may be perceived in two senses.
On one hand, it may be perceived in the sense that one candidate has
won, and the other contesting candidates have lost the election. In that
sense, if it is said that a stated factor affected the result, it implies that
the declared winner would not have won but for that stated factor; and
vice versa.
On the other hand, the result of an election may be perceived in the
sense of what votes each candidate obtained. In that sense to say that a
given factor affected the result implies that the votes obtained by each
candidate would have been different if that factor had not occurred or
existed.
In the latter perception unlike in the former, degrees of effect, such as
insignificant or substantial, have practical effect. To my understanding
therefore, the expression non-compliance affected the result of the
election in a substantial manner as used in S.58(6) (a)can only mean

that the votes candidates obtained would have been different in
substantial manner, if it were not for the non-compliance substantially.
That means that to succeed the Petitioner does not have to prove that
the declared candidate would have lost. It is sufficient to prove that the
winning majority would have been reduced. Such reduction however
would have to be such as would have put the victory in doubt.”
Karokora JSC agreed that numbers are important in considering the effect of the
irregularities;
“In my opinion, there is no way we can avoid considering numbers of
votes a candidate got over the other. If the numbers of votes were used
in determining the winner of the election how can we hear the election
petition, challenging the winner, that he unfairly won the election
without considering the numbers. For instance, if the 1 st Respondent
obtained 5,123,360 votes while the Petitioner got 2,055,795 votes how
can we hold that the 1st Respondent was not validly elected without
considering the numbers which he (1 st Respondent) obtained over the
petitioner because of non-compliance with the provisions of the Act?
We obviously have to consider the numbers got from each polling
station and District.”
On the other hand, Tsekooko JSC who was among the members of the Court, who wrote a
minority judgment said,

“In my considered opinion an accumulation or sum total of the non-
compliance with the provisions and principles of the Act is the value
yardstick for measuring the effect of non-compliance with the
provisions and principles laid down in the Act.”
The point to emphasize is that Sections 59(6) of the Presidential Elections Act anticipates
that some non-compliances or irregularities of the law or principles may occur during the
election, but an election should not be annulled unless they have affected it in a substantial
manner. The doctrine of substantial justice is now part of our constitutional jurisprudence.
Article 126(2)(e) of the Constitution provides that in adjudicating cases of both a civil and
criminal nature, the courts shall subject to the law, apply the principle, among others, that
“Substantial justice shall be administered without undue regard to technicalities”.
Courts are therefore enjoined to disregard irregularities or errors unless they have caused
substantial failure of justice. It is significant to note that a similar provision exists in
Section 61(1) (a) of the Parliamentary Elections Act requiring proof of substantial
effect on the result of the election as one of the grounds for annulling such an
election. The principle of substantial justice does not conflict with the principle of a
free and fair election. The fundamental or primary consideration in an election
contest should be whether the will of the people has been affected.”
In a nutshell the law on election petition has largely been tested in our litigation basing from
presidential to parliamentary, however some time the losing candidates fear to file petition

because they are very costly and have a short time frame with which to conclude them, this has
also hindered the process of gathering evidence as there is limited time to prepare.
BIBLIOGRAPHY
The Constitution of the Republic of Uganda 1995 as amended
The presidential Elections Act
The Parliamentary Elections Act 2005 as amended
The Local Government Act 2006 as amended
The Judicature Act Cap 13 as amended
Parliamentary Elections (Election Petitions) (Amendment) Rules No. 24 of 2006
Parliamentary Elections (Interim Provisions) (Election Petitions) Rules SI 141-2
The Parliamentary Elections (Interim Provisions) (Appeals to the High Court from Commission)
Rules, SI 141-1.

The Parliamentary Elections (Interim Provisions) (Election Petitions) (Production of Records of
Appeal) Directions, SI 141 -4.

Election Petitions in Uganda

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Election Petitions in Uganda

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ELECTION PETITIONS IN UGANDA

their representatives or through referenda.1

register and exercise their right to vote.2

virtue of belonging to an organisation or interest group.3

luwubenson@gmail.com LLB .UCU, DLP. LDC Page 1

conformity with the aforementioned principles.4

person qualified to be a Member of Parliament.6

standard or its equivalent.7

A person is not qualified for election as a Member of Parliament if that person

responsibility for or in connection with the conduct of an election; (c) is a traditional or

discharged; or (e) is under a sentence of death or a sentence of imprisonment exceeding

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votes cast at the election.

article shall be declared elected President.

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four hours after being declared elected as President.10

members appointed by the President with the approval of Parliament.11

perform such other functions as may be prescribed by Parliament by law.12

PRE- ELECTION REMEDIES

a) Lodging a complaint with the returning officer or commission

make a decision and give reasons for the decision made.13

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7 days from the date of receipt of the complaint.14

POST ELECTION REMEDIES

Mandatory recount before the returning officer

less than 50.

Recount by the chief Magistrate

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of declaration of the candidate with the highest number of votes.

available before gazetting and swearing of the winning candidate

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the Electoral Commission elected as President was not validly elected.”

elected as President was not validly elected.”

Therefore, the right to petition can only be exercised by an aggrieved candidate.

petition may be filed by any of the following persons-

 A candidate who loses an election; or

Local Council Elections

registered in the constituency.”

prescribed in that provision.

and was properly before court, observed that:

five hundred voters registered in the constituency in a manner prescribed by regulations.

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registered voters from Bubulo west constituency supporting it.

The learned trial judge held on this matter thus:

Parliamentary Elections Act (PEA) a valid petition by a registered voter has to be

of the 500 or more registered voters and /or it is not certified.

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infecting the one or ones without defect. That would be a travesty.”

the Supreme Court as the forum for Presidential Election Petitions.

seat of a member of Parliament has become vacant.

Article 140 of the Constitution provides that:

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section 14 of the Parliamentary Elections (Amendment) Act of 2010 provides that:

to parliamentary elections petition shall be final.”

shall be filed in the High Court.

Local Council Elections

Section 138(2) states that:

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appeal to the High Court or Court of Appeal against the verdict.

Article 104(20 of the Constitution states that:

days after the declaration of the election results.”

Section 59(2) of the Presidential Elections Act further states that:

declaration of the election results.”