ELECTION PETITION PROCEDURE

LAW APPLICABLE

 Constitution

 The presidential Elections Act, 2005 (sections 59-63, 64 -79)

 The Presidential Elections Amendment Act, 2010

 The Parliamentary Elections Act, 2005

 The Parliamentary Elections (Amendment) Act, 2010

 The Presidential Elections (Election Petitions) Rules, 2001.

 The Parliamentary Elections (Election Petitions) (Amendment) Rules, 2006

 Local Governments Act, Cap. 287 (ss.138 to 146)

LOCUS STANDI

Presidential Elections

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 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 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.

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Local Council Elections

Section 138 (3) of the Local Governments Act 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 of the Parliamentary Elections Act provides:

60 Who may present election petition

(1) .........................................................

(2) 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 in a manner prescribed by regulations.
(3) ...................................................................

(4) ....................................................................

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:

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 “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 has 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.

Parliamentary Elections

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

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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.

Local Council Elections

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 after the day on
which the petition was filed and may, for that purpose, suspend any other matter
pending before it.

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 (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.”

Similarly, section 59(2) of the Presidential Elections Act 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.”

Parliamentary Elections

Section 60 (3) of the Parliamentary Elections Act 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”.

Local Council Elections

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 has 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
through and fresh review and 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

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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,
9th Edn, which defines ‘file’ as:
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 “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 thereunder 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:

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 “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:

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 “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

 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.”

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That provision is re-enacted in s.59 (3) of the Presidential Elections Act, 2005.

Parliamentary Elections

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.”

Local Council Elections

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 s.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.”

Parliamentary Elections
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.”

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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
crossexamined 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.”

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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
crossexamined 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

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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

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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 centred 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.

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 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 1 st Respondent was not validly elected without
considering the numbers which he (1st 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

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 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.”

RULES APPLICABLE TO ELECTION PETITIONS

Section 59 (11) of the Presidential Elections Act provides that:

“The Chief Justice shall, in consultation with the Attorney General, make rules providing
for the conduct of petitions under this Act.”

Rule 15 of the Presidential Elections (Election Petition) Rules 2001 provides that:

“Subject to the provisions of these Rules, the practice and procedure in respect of a
petition shall be regulated, as nearly as may be, in accordance with the Civil Procedure
Act and the Rules made under that Act relating to the trial of a suit in the High Court,
with such modifications as the Court may consider necessary in the interests of justice
and expedition of the proceedings.”

Section 93 of the Parliamentary Elections Act provides that:

“ (1) The Chief Justice, in consultation with the Attorney-General, may make rules as to
the practice and procedure to be observed in respect of any jurisdiction which under
this Act is exercisable by the High Court and also in respect of any appeals from the
exercise of that jurisdiction.
(2) Without prejudice to subsection (1) any rules made under that subsection may make
provision for—
(a) regulating the practice and procedure of the High Court, the Court of Appeal
and the Supreme Court for the purposes of hearing and determining petitions
under section 85 or as the case may be, for hearing and determining appeals
from decisions of the High Court under that section;
(b) the practice and procedure to be observed in the hearing and determining of
election petitions;
(c) service of an election petition on the respondent;
(d) priority to be given to the hearing of election petitions and other matters
coming before the courts under this Act.

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 (3) Rules made under this section may, in the case of the High Court, the Court of Appeal
and the Supreme Court, apply to the proceedings the rules of practice and applicable to
civil proceedings in the High Court, the Court of Appeal or the Supreme Court as the case
may be, subject to such modifications as may be specified in the rules.”

To this effect, the Parliamentary Elections (Election Petitions) (Amendment) Rules No. 24 of
2006 were made to amend the Parliamentary Elections (Interim Provisions) (Election
Petitions) Rules SI 141-2 which are the principal rules in relation to parliamentary election
petitions. Other applicable rules are:
(a) The Parliamentary Elections (Interim Provisions) (Appeals to the High Court from
Commission) Rules, SI 141-1.
(b) The Parliamentary Elections (Interim Provisions) (Election Petitions) (Production of
Records of Appeal) Directions, SI 141 -4.

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