ELECTION PETITIONS

● Cross-Reference provisions of the Parliamentary Elections Act with the Local

Governments Act.
● Emphasis has been placed on drafting skills, because Electoral Petition are heard
expeditiously - and they are “heavily reliant on technicalities”.

WORKSHOP 1

Brief Facts:
- These are important: they must speak to the points of law which the party intends to
raise later.
Issues:
- The issues must specifically speak to the grounds for the remedies you intend to raise.
Pre-Election Remedies
- Whether Busingye Amooti can apply to recount of the votes before 7th April?
- a) before the Returning Officer (section 54)
- b) before the Chief Magistrate’s Court (section 55)
- What is the appropriate procedure, documents and forum to obtain the recount
above?
Resolution of Issues (before the 7th of April 2024)
- Whether Busingye Amooti can apply to recount the votes before 7th April 2024?
- Section 54 of the Parliamentary Elections Act governs Mandatory
Recount (which is a pre-election remedy):
It applies in two scenarios:
● Where the candidates with the highest number of votes have the
highest number of votes.
● Where the votes separating the candidate with the highest number
of votes and any other candidate is less than fifty.
On the facts, section 54(1)(b) applies:
Section 54 provides for two remedies:
- A mandatory recount (with written notice of intention to recount to all
interested parties).
 - The request for a recount is by a formal letter from a candidate,
their agent or a registered voter in the constituency.
- The request is made to the returning officer:
- At this stage, the results have not been transmitted to the
Electoral Commission.
- The right of appeal is to the Electoral Commission under section
15 of the Electoral Commission Act (this is in respect of
complaints on irregularities and appeals in the Electoral Process)
Procedure:
- Lodge a complaint to the returning officer (in practice, they
have to make a decision there and then).
- Appeal lies to the EC (under section 15(1) of the ECA) and
the right of appeal hereto, lies to the High Court.
A party can then lodge a petition for an enquiry before the High Court
(provided the results have not yet been gazetted). In this case, the petition
must indicate that there was an application to the Returning Officer and
the EC to resolve the matter (under section 15(1) of the ECA).
- A recount by formal application under section 55: this application is by
any candidate, within 7 days of announcement of the Election results by
the returning officer.
- The application is made after the votes have been transmitted:
that is the essential difference between a recount under section
54 and 55 of the Parliamentary Elections Act.
- Payment of the statutory fee is also important.
- The party proceeds by notice of motion, which must bring out the
grounds on which you rely; the date of the election & must
mention that the results have not yet been gazetted; the payment
of “security for costs” and make prayers i.e., seeking for a recount
and that the respondent (the Electoral Commission [applicant] and
the respondent [the winning candidate and the EC]) bear the costs
of the application.
- Keep especial note of the requirement that the results have not
been gazetted.
 Before a party proceeds under sections 54 & 55, the results must not have been
gazetted:

Case Law:
- Winnie Byanyima v Ngoma-Ngime, Civil Revision No. 9 of 2001: “That court, in effect,
would be assuming jurisdiction not vested in the Magistrate’s Court but in the High
Court. For the jurisdiction which is vested in the Chief Magistrate’s Court by section 56 is
clearly exhausted the very moment the counting segment of the electoral process is
completed. That is when the winning candidate is gazetted and subsequently takes up
his or her seat in Parliament.
- Moses Kasibante v Katongole Singh Marwaha (on a recount under section 55)

The applicant has to deposit 30 currency points - refer to the schedule of the PEA for the
quantum - Schedule 1: “A currency point is equivalent to twenty thousand shillings.”

Section 54 & 55 specifically apply to recounts: other irregularities are governed by section 15(1)
of the Electoral Commission Act.

- Nomination and complaints in respect thereof is governed by section 15 of the

Parliamentary Elections Act. This must be read with reference to Article 80 of the
Constitution.
● Read National Council for Higher Education v Hanifa Kawooya Bangirana on
qualifications.

Post-Election Remedies
Issues
- Whether there was non-compliance with Electoral Laws during the election process?
- Whether Birungi Gordon was validly nominated to contest for MP for Hoima West
Constituency?
- Whether there were any illegal acts or offences that were committed?
- Whether the non-compliance with the Electoral Laws during the elections affected the
results in a substantial manner?
- What are the available remedies?
 - What is the appropriate procedure, forum and documents to obtain the remedies above?

Note: The starting point on post-election remedies is section 61 of the Parliamentary Elections
Act on “Grounds for setting aside election”.
1. Non-compliance in respect of usage of the provisions of the PEA (nomination,
campaigning, voting, declaration of results, gazettement, etc) to conduct the election
and that the non-compliance and the failure affected the result of the election in a
substantial manner.
Remember to raise issues with reference to the grounds which have been disclosed in the facts.

Resolution of Issues
1. Whether there was non-compliance with Electoral Laws during the election process?
- Section 61 of the PEA provides the grounds for setting aside an election.
Kizza Besigye v Y. K. Museveni, Presidential Election Petition No. 1 of 2001.
a. Nomination
i. There is a requirement for certified academic documents (A’Level) - Article 80(c).
1. Section 4(5) & (6) of the PEA are relevant in how to establish academic
qualifications. The certificate must be pre-qualified by NCHE in
consultation with UNEB.
a. Case Law: NCHE v Hanifa Kawooya Bangirana.
b. (On the facts, there is need for additional information: the client
must apply for confirmation by UNEB that Birungi Gordon
completed his A’Level academic qualification).
ii. The requirement for resignation of public office before contesting for an election
- Section 4(3) of the PEA & Article 80(3) of the Constitution: the letter must be
received and accepted by the appointing authority.
1. Hon. Ssasaga Isias Jonny v Woboya Vincent & the Electoral Commission,
Election Petition No. 0009 of 2016: Resignation means “the act or an
instance of surrendering or relinquishing an office, right or claim…a formal
notification relinquishing an office or position.”
Note the Public Service Act - and Article 252(1) of the Constitution on
resignation of public officers, which requires a public servant to address
their resignation to their appointing authority.
 Read: Kevina Taaka Wanaha Wandera v Macho Geoffrey & 2 Others,
Election Petition Appeal No. 35 of 2016 decision on resignation.
Regardless of who receives the resignation letter, the resignation is valid.
“A wrong address or an error in the name of the offence is a mere
technicality that cannot vitiate nomination of a candidate in a
general election.”
Note: the letter must be received by the concerned office.
On the facts, Birungi Gordon purported to resign in July 2023.
iii. There is a discrepancy on the names “Birungi Gordon” and “Birungi Gordon
Kahwa” - section 12(2)(b) of the Parliamentary Elections Act. A nomination
cannot be accepted where there is a “major variation” in the name on the voter’s
roll and the nomination paper.
1. The first paragraph in the Election Petition must bear the name in the
Voters’ Register: “Birungi Gordon Kahwa”
Case Law: Ninsiima v Azairwe Nshaija Kabaraitsya & Electoral
Commission, Election Petition Appeal No. 5 of 2016: note the distinction
in this case.
On the facts, we do not need a deed poll.
iv. Prior conviction which disqualifies him under section 4(2)(f) of the Parliamentary
Elections Act (this establishes a time period of 7 years). Article 80(2)(e) of the
Constitution may also be relevant. However, on the facts, the conviction was
more than 7 years before the election - as such, he does
1. Offences involving dishonesty & moral turpitude (in line with section 236
of the Penal Code Act) are discussed in Luyimbazi & Another v
Bazigatirawo & Another, Electoral Petition No. 44 of 2011: “Moral turpitude
means, in general, shameful wickedness –so extreme a departure from
ordinary standards of honest, good morals, justice, or ethics as to be
shocking to the moral sense of the community. It has also been defined
as an act of baseness, vileness, or depravity in the private and social
duties which one person owes to another, or to society in general,
contrary to the accepted and customary rule of right and duty between
people.”
 Be careful to distinguish facts which disclose a conviction and a sentence, and
keep the timelines in mind.

There was no response to the complaint by the Returning Officer under section 15 of the PEA, in
respect of the above irregularities. Therefore, there was non-compliance, because the complaint
was neither heard nor responded to.
v. The Declaration of Results Forms were not signed, contrary to section 47(7)(a) of
the Parliamentary Elections Act. This is another case of noncompliance with
Electoral Laws.
1. Case Law:
vi. Illegal Acts and Electoral Offences by Birungi Gordon
1. Bribery c/s 68(1) and (2) of the PEA:
a. Keep note of the timelines: does a gift given before nomination
amount to bribery?
Read Babu Edward Francis v Electoral Commission & Erias
Lukwago, Election Petition No. 10 of 2006 (*this authority is not
verified)
- There is need to prove intention of giving the gift?
- Is the donor of the gift in an agent-principal relationship
with the contestant?
- Are the recipients of the gift actual voters in the
Constituency?
All the above must be proved, and it must be shown that the gift
affected the outcome of the election in a substantial manner.
2. Utterance of false statements concerning the character of the candidate
c/s 73(1) and (2) of the EPA. This can also amount to Defamation.
Case Law:
● Michael Mawanda & EC & Another
● Ibale Daniel v Abdul Katuntu
The statements must be directed to the voters. It must be shown that the
people at the campaign rally were registered voters.
Note: In election matters, where one offence is proved to the satisfaction of court - it suffices to
nullify the entire election - Mujuni Vincent Kyamadidi v Ngabirano, Election Petition Appeal No.
84 of 2016. This must be distinguished from illegalities, of which there may be many particulars.

2. Whether the non-compliance affected the election in a substantial manner?

Read Kizza Besigye v Y. K. Museveni & Electoral Commission on the substantiality test.

Amama Mbabazi v James Garuga Musinguzi, Election Petition Appeal No. 12 of 2002* has an
elaborate explanation on the substantiality test. The margin of votes has a significant bearing
on this.

3. What is the remedy available in the circumstances?

File a petition to the High Court under section 60 of the Parliamentary Elections Act.
● Note the different circumstances where you can obtain a remedy under section 64:
○ A by-election.
○ A declaration that the petitioner is the winner of the election.
■ Where the respondent was not validly nominated, the court will declare
that the petitioner is the winner.
The prayer (for declaration as winner) is informed by the wishes of the client. The evidence on
file and the way it is prepared do inform the prayers to be made).
Remember: the first ground of compliance with the Electoral Law speaks to nomination.
Each of the prayers must be supported by particular
Case Law: Kasibante Moses v Katongole Singh.