A Comparative Review of

Presidential Election
Court Decisions
in East Africa

Contributors
F. Ssempebwa
E. Munuo
L. Tibatemwa-Ekirikubinza
Busingye Kabumba

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 Contents

Contributors................................................................................. v
Foreword..................................................................................... vi
1. Introduction........................................................................... 1
2. The Background.................................................................... 10
The Quest for Free and Fair Elections........................................ 10
Kenya........................................................................................ 13
Uganda..................................................................................... 18
The Judiciary and Previous Presidential Court Petitions............ 26
Summary and Conclusion......................................................... 28
3. Role and Impact of Various Stakeholders.............................. 30
Introduction.............................................................................. 30
The Role and Impact of Various Actors in the Electoral Process.31
Summary and conclusion ......................................................... 62
4. Legal Framework and Context of the Disputes
over Presidential Elections.................................................... 64
Introduction.............................................................................. 64
International Instruments.......................................................... 65
Regional Standards.................................................................... 71
Sub-Regional Standards............................................................. 77
The Domestic Laws of Uganda and Kenya................................ 80
Summary and conclusion.......................................................... 93

iii
5. Nature of Petitions and Evidence Involved............................ 95
Introduction.............................................................................. 95
Pleadings in Presidential Elections Petitions.............................. 96
Significant Peculiarities of Presidential Election Petitions........ 103
Summary and Conclusion....................................................... 109
6. Analysing the Process And Outcomes in
The Two Decisions.............................................................. 111
Introduction............................................................................ 111
Proof in Presidential Election Petitions: Burden of Proof and
Standard of Proof.................................................................... 114
Procedural Justice vs Substantive Justice.................................. 122
Judicial Restraint vs Judicial Activism...................................... 127
What is substantial effect?....................................................... 137
The Need for Reform of Election Laws.................................... 149
Summary and Conclusion....................................................... 150
7. Conclusions and Recommendations .................................. 152
Conclusions ........................................................................... 152
Recommendations................................................................... 154
8. Appendices.......................................................................... 159

iv
 Contributors

The Hon. Lady Justice Eusebia Munuo is a retired Justice of the

Supreme Court of Tanzania.
Prof. Frederick Ssempebwa is a renowned constitutional lawyer
and Senior Partner, M/s Katende, Ssempebwa & Co. Advocates,
Kampala, Uganda.
The Hon. Lady Justice Prof. Dr Lillian Tibatemwa-Ekirikubinza
is Justice of the Constitutional Court of Uganda.
Dr Busingye Kabumba is a constitutional lawyer and lecturer,
School of Law, Makerere University, Kampala, Uganda.

v
 Foreword

Free and fair elections constitute one of the cardinal tenets of

democracy. Elections are a means through which, the people
(the governed) ensure popular representation by choosing their
leaders. Although the new wave of democratisation of the 1990s
brought along with it regular elections, elections in East Africa
(EA), like is the case in most parts of the continent, have not
been free and fair. They have been characterised by widespread
vote rigging, violence and in some instances killings. As a result,
elections are often contested - both informally and formally, the
latter including through courts of law. In EA, the legal regimes
in Uganda, Kenya and Burundi allow presidential results to be
challenged. However, presidential results have been tested more
comprehensively in Uganda and Kenya. Uganda registered the
first presidential election petition in 2001, and the second one
in 2006. Both were brought by presidential contestant, Rtd. Dr
Kizza Besigye, against the incumbent, President Yoweri Kaguta
Museveni. In Kenya, the case came most recently in 2013 in Raila
Odinga v. The Independent Electoral and Boundaries Commission,
Issack Hassan, Uhuru Kenyatta & William Ruto (No. 5 of 2013)].
In both countries, the petitioners lost, and in Uganda court
favoured the incumbent.
Underpinning this project is the dearth of regional jurisprudence
on presidential elections in the region, coupled with the limited

vi
 Foreword vii

accessibility to it by majority of East Africans because of legalese.

The project aims to provide East Africans with collated, analysed,
summarised and simplified information about the key legal issues,
the basis of and final decisions in the election decisions in EA as
well as recommendations based on precedents from elsewhere.
It is Kituo cha Katiba: Eastern Africa Centre for Constitutional
Development’s (KcK) earnest belief that the project will lead to
increased awareness among East Africans about the key issues
and decisions of, as well as the commonalities and differences
between the lead presidential election decisions in the region;
enrich regional jurisprudence on presidential election decisions
in the region; and ultimately, improve future legal decisions and
electoral practice relating to presidential elections in the region.
The project is in line with KcK’s overall goal of providing critical
and up-to-date information to East Africans on constitutionalism,
good governance and democratic development, which work aims
to empower East Africans to hold their governments answerable
in order to influence the way they are governed so that there is
ultimately a respectful relationship between the leaders and the led.
I wish on behalf of KcK, to extend our special gratitude to
our partner, The Ford Foundation, for supporting this project.
Our sincere appreciation also goes to the team of experts from
Tanzania and Uganda comprising Prof. Frederick Ssempebwa,
Rtd. Lady Justice Eusebia Munuo, Hon. Lady Justice Prof. Dr
Lillian Tibatemwa-Ekirikubinza and Dr Busingye Kabumba,
whose invaluable knowledge, powerful analysis, and commitment
led to this excellent scholarly piece. Iam also very much appreciate
the contribution of Dr Christopher Mbazira, who edited the
viii A Comparative Review of Presidential Election Court Decisions in East Africa

work and authored the editorial. I thank the KcK secretariat for
conceiving the project and for seeing to its successful conclusion.
It is my sincere hope that KcK’s contribution through this
publication will be of benefit to a wide range of East Africans
and stakeholders beyond.

Robert Turyahebwa
Chairperson, Kituo Cha Katiba
September 2015
 Chapter 1

Introduction*

With similar (though not the same) colonial histories, Uganda

and Kenya share a lot in common. Although the struggle for
independence in Uganda was never punctuated with violent
means as was the case in Kenya, the transition to independence
in both countries followed the same path. There was a smooth
transfer of power from the colonial state to independent Kenya
and Uganda.1 As a matter of fact, in both countries, expectations
were high, the leaders of the struggle for self-rule having portrayed
the colonial state as the source of all problems the populace faced.
However, with independence, the promises for better life did not
fully materialise, thus social and economic transformation did not
come in the manner anticipated.
Ironically, with independence, each of the two countries faced
its own unique challenges. In the case of Uganda, although it
has been indicated that the colonial administration spent much
of the 1950s preparing the country for self-rule, this was not
enough to place independent Uganda on stable ground. For

* Dr Christopher Mbazira is an Associate Professor, School of Law, Makerere

University.
1
See Arnold G. Africa: A Modern History (2005), Atlantic Books, pp. 257 – 8.

1
2 A Comparative Review of Presidential Election Court Decisions in East Africa

instance, although the administration allowed for the election to

the Legislative Assembly to be contested through political parties,
multi-party democracy did not take root. Political party affiliation
notwithstanding, elections were mainly contestations between
individuals.2 It is, therefore, not surprising that the country has
faced challenges running a political system based on multi-party
democracy. In Kenya, just as was the case in Uganda, the state
quickly degenerated into a one-party (or later no-party) system.
The state machinery was used to force opposition parties out of
existence.
As a short cut to building a unified state away from the fragile
federal and semi-federal state the colonial state had bequeathed
in Uganda, Prime Minister Apollo Milton Obote, using his
executive powers excessively, abrogated the 1962 Independence
Constitution. Consequently, dictatorship, civil wars and military
coups later gripped the country considering that power had
become a personal enterprise, and coercive force the means of
maintaining this power.3 In Kenya, a 1982 amendment of the
Constitution turned the country into a one-party state. To contest
for political office, one had to subscribe to the ethos of the Kenya
African National Union (KANU),4 the ruling-party. Subsequently,
oppression of opposition politicians became part of official policy
as did ethnicity, which became a tool of gaining state control.
Although Kenya and Uganda have since the 1990s experienced
constitutional reforms, which among others introduced multi-
party democracy, elections based on this system have been flawed.
In Kenya, the 2007 post-election violence was the final indicator
of a failed state. While in Uganda, although the period since
2
Thompson G. Governing Uganda: British Colonial Rules and its Legacy (2003).
3
See Ravenhill F J. Military Rule in Uganda: The Politics of Survival (1974), 17
African Studies Review, pp. 229-260.
4
See the Constitution of Kenya (Amendment) Act, No. 7 of 1982.
 Introduction 3

1986 has witnessed relative political stability, all presidential and

parliamentary elections have been characterised by state inspired
violence and intimidation, ballot box stuffing and vote buying
and rigging. The 2005 reversion to multi-party democracy,
discarding the movement system, is yet to bear fruit; there is a
variance between the constitution and the state’s preparedness to
allow multi-party democracy to thrive.
It is against the above background that the relevance of this
publication should be understood. One of the prescriptions of the
doctrine of separation of powers is the existence of the legislature,
executive and judiciary, as independent organs, but with checks
and balances. It is within this context that the checks and balances
emanating from the judicial organ as an arbiter of disputes should
be understood. Judicial checks are sometimes the most powerful,
albeit controversial on some occasions. In election matters, it is
the duty of the judiciary, when approached, to decide whether
the law has been followed in the conduct of an election.
This publication reviews the lead presidential election judicial
decisions in Uganda and Kenya, and assesses the performance of
the courts and the impact of their decisions. Tanzania, one of the
traditional East African countries, has not been the subject of this
review. This is because the Tanzanian law in its current form does
not provide for court petitions against presidential election results.
In Uganda, the 2001 and 2006 Kizza Besigye petitions against
Museveni and the Electoral Commission (EC), are the cases the
publication has reviewed, while the 2013 Raila Odinga petition
against Uhuru Kenyatta, is the basis of the Kenyan review. Rather
than being presented as a mechanical technical review of judicial
decisions, the Report places the review within the broader quest
for free and fair elections, measured against international standards
as detailed, among others, in the Universal Declaration of Human
4 A Comparative Review of Presidential Election Court Decisions in East Africa

Rights (UDHR), the International Covenant on Civil and Political

Rights (ICCPR) and the Kenyan and Ugandan constitutions.
The publication profiles the different elections which have
been held both in Uganda and Kenya, highlighting the challenges
faced. Although Kenya is profiled as having had more elections
than Uganda, some of the challenges relating to these elections are
similar. It is true that unlike the Ugandan case, Kenyan elections
have had the ethnicity influence. In spite of this, the commonality
in both countries has been the quest by political forces to influence
the outcomes of the elections, independent of the wishes of the
population. This is in addition to the questions surrounding,
not only the extent of impartiality, but also the efficiency of
the election management bodies. It is these challenges which
have resulted in disputed elections, sometimes with disastrous
outcomes. In both countries, and during different elections,
different methods have been used to contest the outcome of the
elections. On some occasions, violence has been used as a means,
so have appeals to the public and inciting popular uprisings. On
the other hand, unsatisfied parties have sought the intervention of
judicial organs by filing cases to contest the outcomes of elections.
However, as indicated in this publication, with regard to recourse
to judicial process, there is an interesting divergence between
Uganda and Kenya. For a long time, resort to judicial process
was not considered an option in Kenya. In 2007, Raila Odinga, a
candidate who considered his votes to have been “stolen”, ruled out
the possibility of seeking redress from the judiciary. Yet, around
the same time, Kizza Besigye in Uganda in 2006 approached the
Supreme Court, as he had done in 2001. Later in 2013, Odinga
expressed confidence in the court, yet in 2011 Besigye ruled out
judicial means and trusted that a public uprising would provide
redress. In the case of Kenya, the initial lack of confidence in the
 Introduction 5

judiciary resulted from public perceptions regarding the judiciary.

The judiciary was perceived as lacking independence, corrupt and
executive-minded. However, by 2013, following various reforms
heralded, among others, by the 2010 Kenya Constitution, to
a large extent, confidence in the institution was restored.5 In
contrast, the judiciary in Uganda is still largely considered an
‘executive-minded one’, which is why Besigye in 2011 declared
that he never expected justice from the institution.
Notably, the fact that this publication is the first study of its
kind to comprehensively analyse the presidential election petitions
in Uganda and Kenya, makes it unique. Yet, the study does this
in a contextually holistic and comparative manner, which, among
others, reviews the electoral related legal framework and the role
and impact of different stakeholders/actors in the electoral process.
The actors reviewed in Chapter Three of the publication include
the electorate; the political parties and candidates involved; the
Electoral Management Bodies (EMBs); the various branches
of government – executive, judiciary and legislature; domestic,
regional and international election observers; civil society
organisations (CSOs); development partners; and the military.
Indeed, it is illustrated that the conduct of these stakeholders, if
contrary to acceptable standards and best practices, can be a recipe
for disputed elections. The conclusion drawn with regard to the
stakeholders is that while both countries have made significant
progress in terms of their electoral processes, challenges still
remain regarding the extent to which the key stakeholders in these
processes understand and execute their roles.

5
See Halakha, AB.“R2P in Practice”: Ethnic Violence, Elections and Atrocity
Prevention in Kenya’ Global Centre for the Responsibility to Protect, Occasional Paper
Series No. 4, December 2013 available at <http://www.globalr2p.org/media/files/
kenya_occasionalpaper_web.pdf> (accessed on 31st May 2015).
6 A Comparative Review of Presidential Election Court Decisions in East Africa

In Chapter Four, the legal framework for free and fair elections,
looking at the international, regional and domestic laws applicable
in both Uganda and Kenya is reviewed. Focus in this section is
on key issues which have arisen in the adjudication of election
disputes in the two countries. The issues here include: locus standi
(the right to bring action or challenge a decision in a court of law),
with divergences between Uganda and Kenya being pointed out,
especially as regards the question of who can approach court to
dispute an election. The chapter also considers the issue of forum
and time limits for filing and determination of petitions, with
the right forum in both countries being the Supreme Court, but
with divergences in time periods prescribed for determination
of disputes, being 14 days in Kenya and 30 days in Uganda. In
Uganda, the aggrieved party (a contestant) has up to ten days to file
a petition, while in Kenya it is seven days for the aggrieved party
(any aggrieved person). Also, considered are the possible findings
and orders by court. In Uganda, the constitution is much clearer,
specifying the power to dismiss a petition, annul the election or
declare a winner. This is not the case in Kenya, where these powers
are only derived from a deductive reading of the law.
Furthermore, the chapter addresses the issue of burden and
standard of proof, indicating that in both countries, the burden
of proof rests on the petitioner. The publication highlights the
problem of the constant nature of this burden throughout the
trial, even in those cases where the evidence to prove wrongs and
shortfalls such as fraud or incompetence may squarely be in the
hands of the ‘accused’ institution and not easily obtainable by the
petitioner. On standard of proof, the critique in the publication
shows that the standard of proof is “beyond reasonable doubt”.
This is arguably faulted for creating room for shielding both
errors and fraud.
 Introduction 7

Chapter Four also reviews the standards as far as they describe

the consequences of annulment of an election. In Uganda, a fresh
election has to be held within 21 days, while 60 days apply to
Kenya. The obvious question here is whether 21 days are adequate
to organise a presidential election. The last issue discussed is the
legal obligations of the electoral commissions, and particularly the
use of technology. Discussed here is the obligation to manage a
credible voters’ register and to maintain the integrity of the results
in the face of the use of technology. The Kenyan experience shows
that the improper/perceived improper use of technology can be a
source of controversy. Although the Supreme Court of Kenya held
that there was no legal obligation to use technology, it is advanced
in the publication that to abandon the technology, in which so
much was invested, would go against expectations.
In Chapter Five, the publication discusses the nature of
pleadings (these are court papers or the formal written statement
made by one who brings a law suit (plaintiff/petitioner) and one
against whom a law suit is brought (defendant/respondent) and
evidence involved in presidential elections petitions in Uganda and
Kenya. The publication reviews the nature of pleadings in both
countries, particularly the statement of claim. The conclusion is
that in both countries, a petitioner is well advised to concentrate
on attacking the validity of the conduct of the election rather than
focus on an election offence. This is because of the difficulties of
proving an electoral offence. Yet, even with respect to the validity
of conducting of elections, the burden is almost insurmountable.
The challenges associated with filing pleadings that state facts
and provide evidence with precision are highlighted. The biggest
challenge being the limited nature of the time within which the
petition must be filed; being ten days in Uganda and seven days
in Kenya. Compiling precise affidavits (an affidavit is a written
8 A Comparative Review of Presidential Election Court Decisions in East Africa

statement and is made on oath before someone authorised to

administer oaths, and is used as evidence in a court of law) of
precise evidence, proving irregularities that substantially impact
on the outcome of the election, is an overwhelming task.
Additionally, Chapter Six analyses decisions and outcomes
of the presidential election petitions in Uganda and Kenya,
concentrating on the 2006 petition in Uganda (Kizza Besigye v.
Electoral Commission and Kaguta Museveni (2006)) and the 2013
petition in Kenya (Raila Odinga and Others v. the IEBC and Others
(2013)). In the Ugandan case, while the justices of the Supreme
Court unanimously agreed with the petitioner that the various
electoral laws had not been followed, the court held that it had
not been proved that the irregularities affected the outcome of
the election in a substantial manner. Equally, the court held that
there was no proof provided for the purported electoral offences.
Similarly, in Kenya, the court held that although the conduct of
the election could not be said to have been perfect, it had not
been proved that the irregularities disturbed the outcome of the
election. In the chapter, the publication illustrates how the courts
dealt with some of the issues highlighted in Chapter Five, such as
the burden and standard of proof. In the same measure, the chapter
reviews the decisions by looking at such issues as procedural
justice versus substantive justice; judicial restraint versus judicial
activism; and how the courts have dealt with the question of what
constitutes substantial effect. Additionally, the chapter highlights
some of the suggestions made by the courts regarding the need for
law reform. It is indicated that this happened in the Ugandan case,
where some judges made suggestions to review the law, especially
as regards the short time of filing a petition, and the restriction
of the court to rely on affidavit evidence.
 Introduction 9

In Chapter Seven, the publication, based on the discussions in

the other chapters, outlines a number of recommendations, which
if effected, would improve the conduct of elections in Uganda
and Kenya to ensure free and fair elections. The recommendations
include: (a) extending the transitional period in case of annulment
and having more realistic adjudication timelines; (b) the need for
courts to give reasons for their decisions at the time the decision
is delivered; (c) allowing oral evidence in addition to affidavit
evidence; (d) Uganda having more liberal rules that allow anyone
aggrieved by the outcome of an election to approach the court as is
the case in Kenya; (e) ensuring more independent, competent and
resourced election management bodies; (f ) ensuring more robust
and continuous civic education; (g) demilitarising the political
space; (h) more objective neutrality by actors such as the media
and development partners; and (i) ensuring timely amendments
of the legal framework.
 Chapter 2

The Background

The Quest for Free and Fair Elections

The historical setting against which presidential elections have
been held in both Kenya and Uganda is important in analysing
and appreciating the judicial function in upholding the rule of
law in the context of free and fair elections. Regular free and fair
elections are a necessary component of democracy and the rule
of law. The importance of elections for democracy is confirmed
by various international and domestic instruments.
According to Article 21(1) of the Universal Declaration of
Rights 1948 (UDHR):
Everyone has the right to take part in the government of his
country, directly or through freely chosen representatives.
And Article 21 (3) of the same Declaration states:
The will of the people shall be the basis of the authority of
government: this will be expressed in periodic and genuine
elections which shall be by universal and equal suffrage and shall
be held by secret vote or by equivalent free voting procedures.

10
 The Background 11

The African Charter on Human and Peoples’ Rights (ACHR) also,

in different wording, emphasises the significance of free and fair
elections to democracy. It states in Article 13(1) that:
Every citizen shall have the right to participate freely in the
government of his country, either directly or through freely
chosen representatives in accordance with the provisions of the
law.
Similarly, Article 25 of the International Covenant on Civil and
Political Rights is to the effect that:
Every citizen shall have the right and the opportunity, without
any of the distinctions mentioned in Article 2 and without
unreasonable restrictions:
a. To take part in the conduct of public affairs, directly or
through freely chosen representatives;
b. To vote and to be elected at genuine periodic elections which
shall be by universal and equal suffrage and shall be held by
secret ballot, guaranteeing the free expression of the will of
the electors;
c. To have access, on general terms of equality, to public service
in his country.
The principles in the international instruments are reflected in
the respective national constitutions. The Constitution of Kenya
follows Article 25 of the ICCPR in providing that:
Every citizen has the right to free, fair and regular elections based
on universal suffrage and free expression of the will of electors for-
a. Any elective public body or office established under this
constitution; or
b. Any office of any political party of which the citizen is a
member.6

6
Article 38(2) Constitution of Kenya 2010.
12 A Comparative Review of Presidential Election Court Decisions in East Africa

Article 38(3) goes on to provide that:

Every adult citizen has the right, without unreasonable
restrictions-
a. To be registered as a voter;
b. To vote by secret ballot in any election or referendum; and
c. To be a candidate for public office, or office within a political
party of which the citizen is a member and, if elected, to hold
office.
Similar civic rights are enshrined in less elaborate provisions
of the Uganda Constitution. Nevertheless, the Constitution
is emphatic that “all authority in the State emanates from the
people of Uganda”, and “the people shall be governed through
their will and consent.” The will and consent is expressed through
regular, free and fair elections of their representatives or through
referenda (Article 1(2) and (4)). Further, according to Article 59
(1), every citizen of Uganda of eighteen years of age or above has
a right to vote.
The quest for democracy through free and fair elections has
a chequered history throughout East Africa. The pre-colonial
societies had no elections. Governance revolved around either
a decentralised clan system, or a system centralising the clans
under a paramount chieftaincy. In either case, there were inbuilt
rules for accountability, which in extreme cases of impunity,
led to the overthrow of the chiefs or kings.7 Colonial rule did
not countenance a vote, at least not for the majority under its
rule. Towards their departure, the colonisers realised that the
investments made in the colonial states would be better protected
through democratic governance. Even then elections for the
7
See Lonsdale J. “The Moral Economy of Mau Mau: Wealth, Poverty and Civic
Virtue”, in Barman B and Lonsdale J (eds) -Unhappy Valley: Conflict in Kenya and
Africa Book 2 (1992), James Curry, London.
 The Background 13

majority were begrudgingly adopted. The first representatives of

the majority in the colonial legislatures were appointed rather
than elected. Therefore, the leadership at independence were
thrust, but not civilised, into competitive party politics, which,
they conveniently abandoned. Kenya, Tanzania and Uganda have
experimented with governance based on one party system, de facto
or de jure. Monolithic political systems were rationalised on the
basis of doubtful assumptions. One of these was the existence
of a distinct African form of democracy based on consensus
without competitive party politics.8 Through such ideology,
the ruling parties institutionalised themselves through regular
elections, assimilation of social organisations such as the labour
and women movements, and controlling the management of the
economy. The result of the experiments was decades of regular
elections without a threat to the party and its regime, which, is
the hallmark of free elections.

Kenya
In Kenya, the first competitive elections on a party basis were
held in 1961. Kenya African National Union (KANU) won these
elections. Observably, the two largest ethnic groups, the Kikuyu
of central Kenya and the Luo of western Kenya, dominated
KANU. On the other hand, the Kenya African Democratic
Union (KADU) was the second largest party. KADU was formed
over apprehension of dominance by the majority ethnic groups.
Therefore, it mainly represented the minority groups. It was
also viewed as more liberal and a better custodian of colonial
investments than the more radical KANU. A pre-independence
8
Munishi G.K. “Competition, Liberalisation and Democratic Transition in Tanzania”
in Oloka Onyango et al (eds) Law and The Struggle for Democracy in East Africa
(1996) Clairpress Ltd., Nairobi pp.11-26.
14 A Comparative Review of Presidential Election Court Decisions in East Africa

general election was held in 1963 under a constitution designed

for an independent Kenya. At the insistence of minorities led by
KADU, the Independence Constitution had provided for a quasi-
federal structure consisting of regional governments, in addition
to a central government. Again, KANU won the majority of seats
in a bicameral legislature of representatives and senators. Barely
a year after independence in 1963, KADU merged with KANU
to form one party. In order to be in line with the liberal leanings
brought in by KADU, the party started to purge itself of the radical
elements, who left and set up the Kenya Peoples Union (KPU),
a party which was led by Oginga Odinga, and drew its support
mainly from the Luo, Oginga’s ethnic group.
In 1969, KPU was banned, thereby giving rise to a de facto one
party state under KANU. There followed a period of repression
of opposition forces partly through legal measures and partly
through denial of political space. By then, the quasi-federal
arrangement put in place by the Independence Constitution
had been abolished, together with the Senate. Constitutional
amendments had made it impossible for opposition political
parties to be formed or to operate. The liberal concepts of the
supremacy of the constitution and the law, plus the separation of
powers, were virtually abandoned as KANU concentrated power
in the presidency. In 1982, the constitution was amended to
make Kenya a one party state de jure. Elections were conducted
under the one party system, whereby the incumbent president
was always returned. The elections were far from free and fair.
The whole electoral process was under the surveillance of the
president. However, because of growing opposition to oppression,
the government in 1991 conceded to the repeal of the one party
 The Background 15

provisions of the constitution.9 The effect of this was the other

political parties, besides KANU, could register and operate.
The first general elections after the resumption of multi-
partyism were held in 1992. By then, new political parties had
been registered the most prominent being The Forum for the
Restoration of Democracy (FORD) and the Democratic Party
(DP). FORD soon broke up into two factions; FORD A (Asili)
and FORD K (Kenya). Many handicaps were placed by the
KANU government against the opposition. It rejected proposals
to amend electoral laws to ensure a fair election, rejecting the
restructuring of the Electoral Commission (EC) and to appoint
to it persons of integrity.10
The opposition was nevertheless united in the single purpose
of defeating the KANU regime. They had the potential to do so.
However, the ethno-based character of Kenya’s politics scuttled the
opposition’s resolve. This is because several opposition presidential
candidates were fielded, all hoping to draw support from their
ethnic base. The candidates represented FORD-A and DP, both
Kikuyu based, and FORD-K, the Luo based faction. The result
was that KANU’s candidate won by a minority of votes (36% as
against the 63% garnered by the combined opposition candidates)
(See Appendix 1 for the result of the 1992 election)
The 1997 presidential elections followed a similar pattern,
except that besides KANU, fourteen other political parties fielded
candidates. KANU’s Moi faced “four serious tribal candidates:
Odinga for the Luo, Charity Ngilu for the Kamba, Wamalwa
for the Luhya, and Kibaki for the Kikuyu, Embu, and Meru.”
9
See Makau Mutua, Kenya’s Quest for Democracy: Taming Leviathan (2008), Fountain
Publishers, Kampala, pp. 67-69.
10
For a catalogue of unfair acts and hurdles, see Willy Mutunga, Building Popular
Democracy in Africa: Lessons from Kenya in Joseph Oloka Onyango, et al., op cit,
pp.223-224.
16 A Comparative Review of Presidential Election Court Decisions in East Africa

KANU won by a better margin, but still with a minority vote

(See Appendix 2 for the results of 1997 elections). It is at the
2002 election that a united opposition was formed. Besides the
lessons learnt from the previous two elections, unity was driven
by the fact that KANU’s Moi, the successful candidate in the
previous elections, was not eligible to stand. Moi sponsored Uhuru
Kenyatta, whom many considered a political novice, to contest
for the presidency on the KANU ticket. As a result, long standing
party leaders left the party in protest of Moi’s move and joined
the coalition of parties representing the major ethnic groups in
the opposition to KANU. KANU’s candidate was resoundingly
defeated.
Prior to this election, the government had bowed to pressure
for constitutional reform. A Commission chaired by a prominent
scholar, Professor Yash Ghai, had been set up to consult the people
and to draft a new constitution. A Draft was prepared, discussed,
and approved by a National Conference that convened at the
Bomas Conference Centre.11 Thus, the Draft came to be known as
the Bomas Draft. The Bomas Draft did not go over the next phase
of constitution making, which was an adoption by the Parliament.
This was due partly to squabbles over its design, especially the
provisions relating to the powers of the executive. The other reason
for the failure of the process was the increasing polarisation of
society by which the government became more isolated, and its
proposals became suspect. Eventually, the government, elected
under the 2002 elections, prepared another Draft Constitution.
The Draft, which was baptised the Wako Draft (to associate with
Amos Wako, the Attorney General who was believed to be the
architect) was submitted to a referendum, where it was rejected.
The referendum had significant consequences for the subsequent
11
The Final Report of the Constitution of Kenya Review Commission (2005).
 The Background 17

presidential elections. This was because the 2002 coalition had

developed cracks over disagreements on power sharing. The
dissenting elements in the coalition, largely along factional lines,
campaigned for the rejection of the Draft Constitution. The
campaign and voting took on an ethnic tinge, with the government
drawing support mainly from central and eastern parts of Kenya,
while most groups from the rest of the country rejected the Draft.
In fact, because the rejection of the draft was driven mostly by
political differences rather than demerits, the referendum made
little contribution to constitutional development. Instead, it
achieved a further polarisation of the Kenyan society.
This was the social context for the 2007 elections. The only
post-independence election that could be described as free and
fair was the 2002 election. The results were never disputed by the
loosing presidential candidate. In 2007, new alliances of ethno-
based parties were formed to support the main candidates, Raila
Odinga of the Luo and Mwai Kibaki of the Kikuyu led alliances.
These alliances were a mirror of the polarisation of the 2005
referendum on the Draft Constitution. The tightly contested
election erupted into violence. It can be said that the 2013
Presidential Election, that gave rise to the court dispute under
review, was a replay of the 2007 election. The perception was that
Raila Odinga did not lose fairly in 2007. He had been reported as
leading the contest by opinion polls. There were even speculations
in his favour as the tally was in progress. But, all of a sudden,
Kibaki was declared winner and sworn in hurriedly, giving rise
to further doubts on the genuineness of his win. Therefore, there
was apprehension as to what might happen if he lost the second
time in 2013, especially since the forecasts placed him ahead with
18 A Comparative Review of Presidential Election Court Decisions in East Africa

a slight edge over his opponent, Uhuru Kenyatta.12 The vote could
be rejected without more ado. Alternatively, it could be challenged
in court and the verdict rejected. In either case, the potential for
violence was very high; violence that could not even surpass that
which accompanied the 2007 elections. Acceptance of the results
or the verdict was the least likely option. These are matters that
could not have been lost on a new court handling a presidential
election petition for the first time, under a new constitution that
was expected to put a close to tyranny, including judicial tyranny.

Uganda
Uganda differs from Kenya since it has held fewer elections. In
1961, pre-independence parliamentary elections were held. The
Uganda People’s Congress (UPC) and the Democratic Party
(DP), both parties led by the educated elite aspiring to replace
the colonial establishment, were the main contesting parties.
The formation of DP had been inspired by grievances over the
marginalisation of Catholics by colonial rule which resulted from
a long violent conflict between the English (Protestant) and the
French (Catholic) camps, each seeking for superior influence
over the colony.13 The marginalisation was most pronounced in
Buganda Kingdom, where Catholics were considered to be the
defeated camp. DP won, aided by a minority vote in Buganda
which boycotted the election. Buganda was central to political
governance because it considered itself as an autonomous entity
within Uganda. Throughout the 1950s, Buganda was in direct
communication with the Colonial Government over cessation of
12
Ryan Cumming R. Kenya’s 2013 Election: Will History Repeat Itself (November 2012)
Think Africa Press. Sourced at www.thinkafrica-press.com/Kenya/Projectiions-
upcoming-2013-elections
13
On this conflict see, Anthony Low and Cranford Pratt, Buganda and British Overrule
(1970- Oxford University Press).
 The Background 19

British protection, under the perception that the kingdom had

voluntarily acceded to the protection. Buganda was therefore
apprehensive over incorporation in an independent Uganda; a
Uganda led by a national party, particularly the Catholic leaning
DP.
Faced with the reality of an independent Uganda in which it
was to be an integral part, Buganda sought to assert its influence
by negotiating out of direct elections for its representatives to
Parliament. Resulting from this, Buganda did not participate
directly in the 1962 elections. Instead, the Lukiko, appointed
all its representatives to Parliament under what was described as
Kabaka Yekka (KY), translated, “the King only”. KY formed an
alliance with UPC to form the first government of an independent
Uganda.14 However, this alliance, seen by many as a marriage of
convenience, did not last long, it disintegrated over disagreements
on several issues. These included the holding of a referendum that
resulted in Buganda losing part of its territory. The ruling UPC
also broke up into factions, some of which sponsored measures
to replace the leadership. The then Prime Minister, Milton
Obote, quickly moved to arrest the situation by abrogating the
1962 Constitution and replacing it with two others (1966, and
1967) in quick succession. The 1967 Constitution abolished
the kingdoms and their quasi-federal design and introduced
an executive presidency, diluting the separation of powers and
declaring Uganda a Republic.
After the abrogation of the Constitution in 1966, Uganda did
not hold any direct elections, whether presidential or otherwise,
until 1980. The 1967 Constitution provided that the president
would be the person whose party commanded a majority in
14
Peagram R.C. Uganda National Assembly Elections, 1962 (1962), Government Printer,
Entebbe.
20 A Comparative Review of Presidential Election Court Decisions in East Africa

Parliament. However, it went on to deem the prime minister under

the abrogated constitution (Milton Obote) as having been elected
president under the new constitution. The president continued
in power until overthrown by the military in 1971. This plunged
the country into eight years of military rule in which the Idi
Amin regime countered real and imagined opposition through
repression, abuse of civil and political rights, including state
inspired murders. In 1979, Ugandan exiles with the assistance
of Tanzania forces overthrew this military regime. The Idi Amin
regime had invaded Tanzania in claim of alleged lost territory.
Tanzania retaliated by assisting Ugandan exile forces to capture
power from the military.
Before the overthrow of the military regime, Ugandan
exiles had agreed to a unity government under their umbrella
organisation, the Uganda National Liberation Front (UNLF).
Under this agreement, an interim legislature, the National
Consultative Council (NCC), was established with a nucleus of
membership from the exile groups. The NCC nominated the
person to act as president. The NCC was expanded through
elections of additional members by local government councils.
The UNLF Government consisted of a loose coalition of factions
that had fought or claimed to have fought against the military
dictatorship. The groups professed to differing ideologies and
carried different agendas. The coalition collapsed and leadership
was assumed by the lead partner which was sympathetic to UPC.
General elections were hastily arranged to take place in December
1980. UPC won the election and Milton Obote, who did not
participate as parliamentary candidate, assumed power under
the 1967 Constitution as the leader of the winning party. The
fairness or otherwise of these elections has been debated widely.
What is not in doubt is that they were held under conditions of
 The Background 21

insecurity in the aftermath of the war against the military regime.

They were organised by a partisan Electoral Commission under
the surveillance of a partisan government. Many candidates were
forcefully prevented from nominations. For no apparent reason,
the partisan government announced by legislative fiat that it was
assuming responsibility for the final tally and announcing of the
results.15 As a result of these events, the general perception was
that the election had been rigged. This forced some groups which
had participated in the elections to start an armed rebellion which
ended in the overthrow of the UPC government, and the eventual
military victory of the National Resistance Movement (NRM)
the main rebel group.
The proclamation for the legalisation of the NRM regime
provided that its council, the National Resistance Council
(NRC), appoints the president. The first election under the NRM
was for expansion of the NRC to add to the numbers of the
“historicals” that constituted it during the rebellion. Most of the
usual requirements for a free election were not followed. There
was no registration of voters. Voting was by lining up behind
candidates or their agents. The presidency was not subjected
to a vote. The election was devoid of any threat of change of
regime. The first presidential election was held in 1996. This
was after the promulgation of a new constitution in 1995, and
one which had resulted from wide consultation of the people
and the adoption by popularly elected delegates, the Constituent
Assembly (CA). Political parties did not participate directly in
the election because, by law, competition was on the basis of
individual merit. Nevertheless, two distinct factions emerged; the
pro-NRM faction and the faction that supported the immediate
15
Khiddu-Makubuya. E. “Law and Practice of Elections in Uganda: Prospects for the
Future”, in Oloka-Onyango et al. (eds) as above (note 10) pp.545-584.
22 A Comparative Review of Presidential Election Court Decisions in East Africa

resumption of political party activities. The pro-party faction

enlisted the support of some of the fundamentalist federalist
from Buganda who were disgruntled over the failure of the new
constitution to grant Buganda the federal status which it enjoyed
up to 1966. The NRM, on the other hand, rallied support by
decampaigning political parties as the cause of past conflicts. The
pro-party candidate, the DP leader, had enlisted the support of
the UPC group that had decided to participate. The alliance, was
strange because it is UPC that is believed to have stolen victory
from DP in 1980, proved a liability because UPC was unpopular,
especially in the central and other kingdom areas, whose cultural
institutions had been abolished in 1967. Yoweri Museveni of
NRM won the election convincingly (See Appendix 3 for the
results of the 1996 elections).
The next presidential election in 2001 was again held under the
no-party individual merit system. It was hotly contested between
Yoweri Museveni and Kiiza Besigye, who defied the NRM silent
agreement that NRM would field one candidate. Besigye had
participated in the rebellion and had thereafter served in different
capacities in the NRM government. He revolted against what he
perceived to be a departure from the ideals of the resistance against
the UPC/Obote regime. Besigye’s desertion was not taken lightly.
He was harassed into exile after his loss in the 2001 election and
only returned in time to participate as a candidate in the 2006
elections. The context of this and the previous election could
have a bearing on perceptions about the fairness or otherwise of
the results. It could also have influenced, even if subconsciously,
judgment over the results. What is the context?
First is the electoral geomorphology. The central region of
Buganda has the most populous electorate. In 1996, the strongest
contender against the NRM candidate was Paul Ssemogerere from
 The Background 23

Buganda. The expectation was that he would secure a majority

support from Buganda. Further, in the 1980 general election,
Buganda had voted strongly in favour of DP, then led by the
same candidate. The north, previously supportive of UPC, was
now believed to be anti-NRM because of the perception that the
government was deliberately marginalising it. Instability caused
by rebel activities had persisted with no indication that the
government was in earnest in ending the rebellion. The Western
part of the country was generally supportive of Museveni, but it
was expected that the traditional DP leaning regions of Western
Uganda such as Toro, would turn out in favour of the opposing
candidate. It seems, however, that the political landscape had
altered against regional and religious based voting. Ssemogerere
lost in most parts of Buganda. His strongest support expectedly
came from the northern districts of Apach, Arua, Gulu, Kitgum
and Lira.
Second, are the campaign issues or the lack of them. In both
elections, a major issue, though not openly canvassed, was the
resumption of multiparty politics. In 1996, the political mood
was still inclined against multipartyism. The NRM government
had succeeded in convincing a large section of the population
that party politics was responsible for the country’s problems.
In 2001, the mood had changed slightly. But it was evident that
because of the concept of individual merit that the electorate could
exploit, what mattered to them was the candidate rather than the
party. Another issue that was canvassed particularly over the 2001
elections was the alleged failure of the NRM government to adhere
to the ideals for which the rebellion was conducted. Corruption
and sectarianism were at the forefront. Another was the allegation
that although NRM had claimed that the rigging of elections was a
major reason for the rebellion, it had engaged in the same practice
24 A Comparative Review of Presidential Election Court Decisions in East Africa

in 1996. The 1996 election was not contested in court. However,

Semogerere, the candidate who came second after Museveni, never
accepted the results as free and fair. Some issues were not of a
national nature, but were important. An example is the Buganda
question. Buganda leaders felt that the new constitution did not
address their demand for autonomy. But, candidates had to tread
carefully over such issues since positive promises of redress could
cause loss of support in other regions. But, all these were not
treated by Museveni and the NRM as serious matters of concern
to the people. In the context of both elections, a win was almost
assured through reminding the public of the achievements since
NRM assumed power; peace and stability, rapid economic growth,
a good human rights record relative to the past, and promotion
of affirmative action for women. Overall, therefore, it can be said
that although grievances existed, they had not developed to the
extent of being serious electoral issues to convince the electorate
that Museveni’s NRM was incapable of redressing them. A win for
NRM and Museveni in both elections could safely be predicted.
The 2006 Presidential Election, to the extent that the major
contenders were the same as in 2001 and the campaign issues
not having changed fundamentally, can be said to be a replay
of the contest. But, that is precisely one rationalisation of the
context that might have influenced perceptions. Besigye was the
candidate of the Forum for Democratic Change (FDC) which
started as an alliance of disgruntled members of parliament and
the opposition outside parliament. FDC was later registered as a
political party. Besigye’s return from exile in South Africa in order
to contest the 2006 election was amidst pomp and jubilation
from supporters. This must have sent signals to the government
of Besigye’s potential and wide support. Besigye was arrested and
charged with treason and rape. Even after his release, he lost a lot
 The Background 25

of ground in the campaigns due to the court proceedings. The

general perception was that this candidate was being deliberately
incapacitated from contesting. The NRM regime, apprehensive
of the apparent support the opposition was gathering, and
recalling the unexpected strong turnout for Besigye in 2001, had
become more repressive. Besigye’s campaigns were not as free
as those of the incumbent Museveni, there were characterised
by unnecessary interference by security forces and the arrest of
supporters. Inevitably, a strong sympathy vote was expected for
Besigye. On the other hand, the power of incumbency wielded
by Museveni was unparalleled, having been president for twenty
years. Museveni had prevailed over parliament to introduce
perpetual eligibility for presidential candidates by amending the
constitution to remove the presidential term limits. The long stay
in power was expected to cost him votes. However, incumbency
ensured him the use of the entire state machinery, which was an
advantage to his campaign.
The results of the 2001 election had been contested in court
with the petitioners citing a number of irregularities.16 These
ranged from failures on the part of the Electoral Commission to
conduct free and fair elections, to illegalities and malpractices on
the part of candidate Museveni. The allegation against Museveni
included intimidation through the use of security forces and
bribery. Some of the malpractices were proved before the court
which held that nevertheless, their impact was not sufficient
to affect the results. That was the final signal for the nature of
judicial intervention over presidential elections. The results of the
first election to carry a threat of change of regime had obtained
a judicial seal. Another election is then held evoking a similar
16
For an extensive analysis of the court dispute, see Tumwine Mukubwa G P., Free
and Fair Democratic Elections – A Commentary on the Uganda Case of Kizza Besigye
v. Kaguta Museveni (2004), East African Law Watch, Kampala.
26 A Comparative Review of Presidential Election Court Decisions in East Africa

dispute with similar allegations as between the same candidates

before the same court. In a country with a poor history of free and
fair elections, and a high potential for acrimony, if not violence,
what would be the response of the court?

The Judiciary and Previous Presidential Court

Petitions
Historically, there have been several attempts to challenge
presidential elections in Kenya. The petition in Moi v. Matiba
and others17 is of no consequence because it was dismissed on a
technicality. In Orengo v. Moi and 12 others,18 President Moi’s
success in the 1992 elections was contested on the ground
that having served as president for more than two terms, the
constitution barred him from another term. Moi had in fact
served a total of three five year terms before the term limits
were introduced. The court held that the amendment of the
constitution to introduce term limits was intended to focus on
the future and not the past. In effect, the court was reasoning that
term limits would not cover terms already enjoyed by previous
presidents, Moi being the only beneficiary of the judgment. Mwai
Kibaki v. Moi and two others19 did not go far. The respondents
swore affidavits that they had not been served with the petition.
The court ruled that personal service was necessary. The petition
was, therefore, dismissed.
Raila Odinga, the losing candidate in the 2007 presidential
election, declined to resort to court. He was reported as having
intimated that he had no confidence in the Kenya Judiciary. In
fact, in the years prior to this election, the Kenya Judiciary had
17
(2008) 1 Kir(ep) 627.
18
Election Petition 8 of 1993.
19
(2008)2 Kir(ep)307.
 The Background 27

faced serious allegations of misconduct, including corruption. A

2002 Report by “The Advisory Panel of Eminent Commonwealth
Judicial Experts”20 had come to that conclusion. There had been
attempts to purge the judiciary of the alleged corrupt elements, but
the exercise was mishandled. The perception over incompetence
and corruption persisted to the extent that the constitutional
review process had to address the issue. It was recommended
that all judicial officers serving at the time of the Constitution be
subjected to a vetting process to weed out those who are found
to have been involved in malpractices. The process is ongoing. It
should be recalled that there had been attempts by the executive to
erode the independence of the judiciary. In 1988, the constitution
was amended to remove the security of tenure of judges. It is in the
same period that the executive moved to reduce the discretion of
judges to release suspects on bail. Although these measures were
abandoned due to domestic and international pressure, the signal
to the judiciary must have been registered.
By the time of the 2013 election, there had been two significant
developments. First, the new constitution had established a
Supreme Court of Kenya and vested it with original and final
jurisdiction to handle petitions against results in presidential
elections. Secondly, judges of the Supreme Court had been
appointed through a competitive and transparent process. The
new judges included persons who had identified themselves
with the struggles against what they perceived to be tyranny and
oppression, the new chief justice being one of them. The public
was confident that this was a tribunal that had the potential to
dispense justice without fear or favour.
The first presidential election petition in Uganda was before the
Supreme Court in 2001. Just as in Kenya, the Constitution made
20
www.commonlii.org/Ke/other/KECKR/2012/8.html
28 A Comparative Review of Presidential Election Court Decisions in East Africa

the Supreme Court the original and final court in presidential

election petitions. The panel that presided over the petition
included one post-constitutional judge who had been in private
practice. He also had had a stint in politics as an official in one
of the major parties. The rest of the panel, including the chief
justice, were career judges. The panel that presided over the
2006 petition comprised the Chief Justice, B.J. Odoki, Justices
Oder, Tsekooko, Karokora, Kanyeihamba and Katureebe. Justices
Kanyeihamba and Katureebe were not part of the panel for the
2001 petition. Both of them, just as Justice Mulenga, had been
involved in politics. They had all served in the NRM government
as ministers. The others, except for Justice Tsekooko who is said
to have been associated with UPC before his appointment, had
not been involved in politics. But, all the judges had a proven
record of integrity and independence. There was little doubt that
they would come to a just verdict.

Summary and Conclusion

The common factor in Uganda and Kenya is the quest for
democracy, spanning over three decades. From the 1960s up to
the 2000s, neither Kenya nor Uganda had experienced a freely
contested presidential election on a multi-party basis. In Kenya,
the first election of the kind was in 2002, when an alliance of
political organisations defeated the candidate fielded by KANU,
the party in power. This election was expected to usher in a new era
for democracy. But, the context of loose party alliances in which
the election was fought did not create an appropriate environment
for electoral democracy to take root. The subsequent presidential
election was accompanied by widespread violence. No doubt the
2013 election was held in an atmosphere of apprehension as to
whether it would be a factor in consolidating the gains made out
 The Background 29

of constitution making or throw the country back to situations

similar to the post 2007 election near collapse of the state. Every
person who had the authority and power, including the courts,
must have felt duty bound to ensure that the new constitution
was implemented in conditions of stability. Similarly, in Uganda
the first multi-party presidential election was the 2006 one. The
other two presidential elections under the “one organisation/
Movement” system were controversial, with the 2001 one being
hotly contested in court. To make 2006 the initiation of effective
multi-party democracy was the concern of all stakeholders.
 Chapter 3

Role and Impact of Various

Stakeholders

We have pointed out 20 stakeholders who are supposed to play a

role each if we are to have a free and fair election. I will not point
out what stakeholder but I urge each listed stakeholder to step back
and look at their role, including the media. What can you do that
can make a free and fair election real? It cannot only be me.
–Eng. Badru Kiggundu, Chairperson Uganda Electoral
Commission21

Introduction
As noted in Chapter One of this publication, genuine and periodic
elections are fundamental to the cultivation of a democratic
political order.
There are a number of stakeholders whose interests whenever
an election is contemplated and organised, come into play.
These include: the electorate; the political parties and candidates
involved; the Electoral Management Body (EMB) in question;
the various branches of government – the executive, judiciary and
21
See Sulaiman Kakaire, ‘The President is Uganda’s Chief Finance Minister – EC
Chairman’, Interview with the EC Chairperson, in The Observer, Friday January
23-25, 2015, p.5.

30
 Role and Impact of Various Stakeholders 31

legislature; domestic, regional and international election observers;

CSOs; development partners and, increasingly, the military.22
This chapter analyses the role and impact of these various
stakeholders in the context of the Ugandan and Kenyan elections
that gave rise to the presidential election decisions under review.

The Role and Impact of Various Actors in the

Electoral Process
The success or failure of an election is never the result of the
action(s) of one actor. Rather, it necessarily arises from the actions
of a variety of stakeholders, whose commitment and goodwill is
crucial if the process is to be accepted as a genuine reflection of
the will of the electorate.
Below, we assess the extent to which each of the various
stakeholders highlighted above either undermined or supported
the elections that gave rise to the presidential election challenges
in Uganda and Kenya.

The Electorate
The electorate has a special role to play if genuine and credible
elections are to be held. The right to vote is an important
mechanism through which the people decide who may govern
them, as well as the terms under which that governance is to be
exercised. Indeed, in some contexts, the right to vote has been
accompanied by the expression of a duty to vote.
If citizens are to play this vital role in the democratic life of
the country, however, it is important that they be engaged, active
and informed. A disengaged, apathetic and under or misinformed
citizenry cannot be expected to support the exercise of credible,
legitimate and genuine electoral processes.
22
http://aceproject.org/ace-en/topics/em/emh/emh01 (accessed 1st October 2014).
32 A Comparative Review of Presidential Election Court Decisions in East Africa

Unfortunately, in many parts of Africa and the developing

world, the challenge precisely is that of a resigned and apathetic
electorate, which is backed by the persistence of low voter
information and the lack of adequate civic education. These
observations were powerfully made by Justice Lugakingira in
the case of Rev. Christopher Mtikila v. Attorney General,23 which,
although made in the context of Tanzania, may resonate with the
situation in a number of post-colonial African countries:
The relevance of public interest litigation in Tanzania cannot
be over-emphasised. Having regard to our socio-economic
conditions, this development promises more hope to our people
than any other strategy currently in place. First of all, illiteracy
is still rampant. We were recently told that Tanzania is second
in Africa in wiping out illiteracy but that is statistical juggling
which is not reflected on the ground. If we were that literate it
would have been unnecessary for Hanang District Council to
pass bye-laws for compulsory adult education which were recently
published as Government Notice No. 191 of 1994. By reason
of this illiteracy, a greater part of the population is unaware of
their rights, let alone how the same can be realised. Secondly,
Tanzanians are massively poor. Our ranking in the world on the
basis of per capita income has persistently been the source of
embarrassment. By reason of limited resources, the vast majority
of our people cannot afford to engage lawyers even where they
were aware of the infringement of their rights and the perversion
of the Constitution. Other factors could be listed, but perhaps
the most painful of all is that over the years since independence
Tanzanians have developed a culture of apathy and silence.
This, in large measure, is a product of institutionalised mono-
party politics which in its repressive dimension, like detention
without trial, supped up initiative and guts. The people found
contentment in being receivers without being seekers. Our
23
Civil Case No.5 of 1993 (unreported).
 Role and Impact of Various Stakeholders 33

leaders very well recognise this, and with the emergence of

transparency in governance they have not hesitated to affirm it.
Given all these and other circumstances, if there should spring
up a public-spirited individual and seek the Court`s intervention
against legislation or actions that pervert the Constitution, the
Court, as guardian and trustee of the Constitution and what it
stands for, is under an obligation to rise up to the occasion and
grant him standing.
The Uganda Situation
The Ugandan electorate in the period under review closely mirrors
the situation described by Justice Lugakingira above.
In the first place, Uganda’s literacy rate (persons 15 years old
and above, who can read and write) stood at 73.2% as of 2014
compared to the world average rate of 84.1%.24 Moreover, as
of 2009, only 28% of persons of the requisite age were actually
accessing secondary education.25 Poverty is also an important
factor, with at least 24.5% of the population living below the
poverty line as of 2009.26
Also, problematically, there are increasing indications of
resignation and disengagement in the Ugandan population.
According to the results of an Afrobarometer Survey, for instance:
On average, seven out of 10 respondents said they strongly agree
that sometimes politics and government seem too complicated
to understand. Citizens are, thus increasingly losing interest in
public affairs. Seven years ago, 74 per cent of those questioned

24
https://www.cia.gov/library/publications/the-world-factbook/fields/2103.html
(accessed 1st October 2014).
25
http://data.worldbank.org/indicator/SE.SEC.ENRR (accessed 1st October 2014).
26
https://www.cia.gov/library/publications/the-world-factbook/fields/2046.html
(accessed 1st October 2014).
34 A Comparative Review of Presidential Election Court Decisions in East Africa

said they were very interested in the day-to-day issues. Now, only
63 per cent are interested.27
As the graph below demonstrates, this apathy is manifesting itself
in an increasing trend towards civil disobedience, as indicated
in refusal to pay taxes and other fees levied by the state, which
also has implications for the willingness of citizens to engage in
processes such as elections:28
Here is a list of actions that people sometimes take as citizens. For each of these, please tell me
whether you personally, have done any of these things during the past year?

79
80 Attended a community meeting.
69 69 Percent once or twice. ‘Several
70 64 64 times’ or ‘Always’
60 55 Got together with others to raise.
Percent once or twice. ‘Several
50 times’ or ‘Always’
Percent

40 Refused to pay a tax or fee to

goverment. Percent once or twice.
30 ‘Several times’ or ‘Always’
15 Attended a demonstration
20 13 11 match. Percent once or twice.
11 8 ‘Several times’ or ‘Always’
10
Used violence for a political
0 cause. Percent once or twice.
2005 2008 2012 ‘Several times’ or ‘Always’

Source: Daily Monitor, Thursday, April 19, 2012

The above characteristics have manifested themselves in the
nature of elections held in Uganda, with these being marred, on
the whole, by a high number of invalid votes, a clear trend of
decrease in voter turnout in each succeeding election, and high
incidences of voter bribery and intimidation. Indeed, both the
2001 and 2006 elections that are the subject of the present study
exhibited these features in abundance.
The nature of the Ugandan electorate, therefore, presents
a fundamental challenge to the prospect of holding a truly
representative election in the country.
27
John Njoroge, ‘Ugandans in State of Apathy, survey reveals’ http://www.monitor.
co.ug/News/National/-/688334/1389448/-/aw12l7z/-/index.html (accessed 1st
October 2014), citing a 2012 Report from a survey conducted by Afrobarometer.
28
As above.
 Role and Impact of Various Stakeholders 35

In assessing the irregularities that had marred the 2006 election,

Chief Justice Odoki noted in his judgment that it was not the
sole obligation of the Electoral Commission to ensure a credible
process, but that other actors, including voters, were enjoined
to play their requisite roles. The judge noted, for instance, that
voters had a duty to participate in the updating of the register
and to ensure that their names were on the register, as well as to
ascertain whether they were expected to vote.29
The Kenyan Situation
The electorate in Kenya appears to be more active and engaged
than the Ugandan one. For instance, a number of observers of
the 2013 election noted the patience and zeal demonstrated by
Kenyan voters who queued for long hours to ensure that they
voted.30 In addition, the literacy rate of the Kenyan population
stood at 87.4% as of 2014, which was more than 3% above the
world average of 84.1%.31 Moreover, as of 2009, about 50%
of persons qualified to attend secondary school education were
accessing it.32 Although this is still a low figure, it is about twice
that of Uganda. This points, overall, towards a better educated
population, with a significantly better chance of engaging with the
increasingly complex platforms presented by competing political
actors. At the same time, it reveals much of the same dynamics

29
Judgment of Odoki CJ at p.152.
30
See for instance, EU Election Observation Mission, Preliminary Report,
6 Ma rc h 2 0 1 3 , h t t p : / / w w w. e u e o m . e u / f i l e s / p re s s re l e a s e s / e n g l i s h /
EUEOMPreliminaryStatement6March2013.pdf (accessed 1 October 2014)
observing that ‘Kenyans should be congratulated for their civic pride and
responsibility, queuing patiently for long hours to cast their vote.’ – at p.1.
31
https://www.cia.gov/library/publications/the-world-factbook/fields/2103.html
(accessed 1st October 2014).
32
World Bank (2009): EdStats Database 2009 http://go.worldbank.org/ITABCOGIV1
(accessed 1st October 2014).
36 A Comparative Review of Presidential Election Court Decisions in East Africa

as the Ugandan one with regard to poverty, with 43.4% of its

population living below the poverty line as of 2012.33
The 2013 elections of Kenya demonstrated the role that the
electorate can play in demanding for and obtaining higher quality
elections. The Kenyan citizens demanded for genuine elections
and maintained pressure on the relevant political actors to ensure
that this demand was delivered.
After an impressive turnout in Monday’s presidential elections,
one thing is clear about Kenya: citizens are energised and ready
to participate in shaping the future of their country. Despite
concerns of violence, voters in Kenya were undeterred and turned
out in historic numbers on Monday, over 70% cast ballots in the
country’s first presidential election, since 2007. The remarkable
level of participation had election officials calling the turnout
‘tremendous’ as polling places were kept open hours later than
scheduled to accommodate lines that stretched ‘nearly a mile
long.’ Voters formed lines at polling places well before 6:00 am
when the polls opened and many waited for up to 10 hours to
cast their ballots.34
A critical challenge, however, facing the Kenyan population,
and one that is not readily apparent from the statistics cited above,
is the trend towards identification, in the first instance, in terms
of ethnicity rather than in national terms. This trend meant that a
lot of the campaigning, and eventual voting, made much of ethnic
difference rather than policy or ideological platforms, which does
not bode well for the stability of the country.
33
https://www.cia.gov/library/publications/the-world-factbook/fields/2046.html
(accessed 1st October 2014).
34
R. Hunja and F. Estefan, ‘Open government sees promise after Kenya’s elections’,
7 March 2013 available at http://www.opengovpartnership.org/blog/robert-hunja-
and-felipe-estefan/2013/03/07/open-government-sees-promise-after-kenya-elections
(accessed 1st October 2014).
 Role and Impact of Various Stakeholders 37

The Political Parties and Candidates Involved

Political parties and their candidates have special obligations as
far as maintaining the integrity of elections is involved. Arguably,
dominant or ruling parties have an even higher obligation in so far
as by their action or inaction; the elections may actually be or be
perceived to be neither free nor fair on the basis of this. However,
members of the opposition must also act to maintain a clean and
credible electoral process. In the case of any subsequent electoral
disputes, it is important that the petitioner(s) come to the court
with clean hands, rather than presenting the dispute resolution
panel with a choice between two evils.
The Ugandan Situation
As of 2014, the ruling party in Uganda had been in power
for more than 28 years, which is more than half of the post-
independence life of the country. The party came to power in
1986 as a liberation movement, after a successful military struggle,
and has been subjected to nationwide elections four times since
the promulgation of the 1995 Constitution. The 2001 and 2006
elections were particularly unique in so far as the challenge to the
president came from a former colleague in the military struggle,
who had served as his personal doctor during that time. Col
(Rtd) Dr Kiiza Besigye had risen to the critical role of national
political commissar and was in all respects a respected soldier
who, therefore, represented a real threat to the incumbent. This
historical and present reality is an important context in terms
of understanding the roles of the various political players in the
elections. For the most part, there appeared to be a fusion between
the State and the ruling party, which is itself informed by the
longevity of the NRM as a presence in Uganda’s politics, combined
with the challenge that was posed by the FDC led by Besigye.
38 A Comparative Review of Presidential Election Court Decisions in East Africa

The Kenyan Situation

The position in Kenya during the 2013 elections was markedly
different from the Ugandan one described above. For the most
part, the main challengers – Uhuru Kenyatta and Raila Odinga
– appeared to enjoy a level playing field, at least in so far as there
was no overt state interference with the conduct of the campaigns.
Political organisation continued on the basis of alliances of ethnic
dominated groups with none having a pronounced dominance
over the others. Another important feature of the election was
that the incumbent, President Mwai Kibaki, was not a contender
for the elections, so in a sense he was able to stay out of the fray
and allow the candidates room to contend against each other.
On the whole, therefore, it could be said that the political parties
and candidates in Kenya have made serious efforts towards
contributing to the growth and development of the democratic
tradition in general, and the conduct of genuine elections in
particular.

The Electoral Management Body (EMB)

Electoral management bodies carry the specific mandate of
planning and delivering genuine elections that can win the
confidence of all political actors involved and the electorate.
Traditionally, EMBs had majorly focused on civic and voter
education, as well as the provision of adequate monitoring and
supervision on the electoral day(s) to prevent fraud and other
irregularities. More recently, a number of EMBs have also
started looking at an increased use of technology as a means of
determining better the intention of the voters and reducing the
scope for human error in the process.
 Role and Impact of Various Stakeholders 39

The Ugandan Situation

The Electoral Commission (EC) has tried to execute its mandate
of delivering credible elections. Unfortunately, these efforts do not
appear to have been done with the greatest success. In many ways,
this may be due to the broader social and political context within
which the EC operates. However, some of the weaknesses of the
EC are structural and legal in nature. At a symposium on electoral
management held in Mauritius in 2013, the EC chairperson, Eng.
Badru Kiggundu, noted that the EC faced a number of challenges
in terms of delivering on its constitutional mandate: delayed
reform of electoral laws, leading to insufficient voter education and
related activities; delayed and insufficient funding that militates
against adequate remuneration of staff, leading to recruitment
of poorly qualified staff who are more vulnerable to corruption.
Similarly, he pointed out voter apathy; poor perception of the
EC by the Ugandan public; non-compliance by various political
parties with requisite rules and regulations such as declaration of
assets and liabilities, as well as funding sources; inordinately long
procurement procedures and the lack of clear progress regarding
use of technology. These very problems, if not well addressed,
might affect the 2016 elections as the case has been in light of the
previous elections.35 These are very important concerns which,
to the EC’s credit, demonstrate that a process of introspection
is being undertaken by the Commission, which will hopefully
result in deliberate reform ahead of the 2016 elections. At the
same time, they point towards the real challenges that have been
faced in the past, including during the conduct of the 2001 and
2006 elections.

35
https://www.electoralnetwork.org/docs/electoral-affairs-2013/Uganda-experience-
Elexn-Mgt-in-Uganda.pdf (accessed 1st October 2014).
40 A Comparative Review of Presidential Election Court Decisions in East Africa

The other important challenges not addressed by the EC

chairperson in the above statement, relate to the inadequate
legal and other mechanisms to ensure the independence and
competence of the commission itself.
The EC came under particular scrutiny for its deficiencies
leading up to the shortcomings in the 2006 elections. A number
of justices of the Supreme Court in Rtd. Col. Dr Kizza Besigye
v. Electoral Commission and Yoweri Kaguta Museveni36 made a
number of adverse comments regarding the role the EC had
played. A majority of the Supreme Court judges found that the
EC had failed to comply with the provisions of the constitution,
the Presidential Elections Act and the Electoral Commission Act,
in the conduct of the 2006 presidential election. For instance, the
EC was found to have disenfranchised many voters by deleting
their names from the voters register, thus denying them the right
to vote.37 The Court also found that at a number of polling
stations, the EC failed to comply with the law in respect of the
counting and tallying of results.38 In addition, it was found that
the principles of equal suffrage, transparency of the vote and
secrecy of the ballot had been undermined by multiple voting
and vote stuffing.39
The following observations of Chief Justice Benjamin Odoki
are particularly exhaustive regarding the role of the EC and we
set these out at some length:
The second matter was the massive disenfranchisement of voters
by deleting their names from the voters’ register, without their
knowledge or being heard. While there was marked improvement
in the compilation of the voters’ register, the 1st Respondent
36
Presidential Election Petition No.1 of 2006 (unreported).
37
Judgment of Odoki CJ at p.13.
38
Judgment of Odoki CJ at p.30.
39
Judgment of Odoki CJ at p.71.
 Role and Impact of Various Stakeholders 41

should take measures to ensure that the procedure for de-

registration of voters is fair and transparent and that efforts are
made to publish in good time new polling stations so that voters
are able to ascertain where they are expected to vote …
The third matter was the apparent partisan and partial conduct
of some electoral officials like presiding officers and other polling
officials, who engaged in electoral malpractices like multiple
voting and vote stuffing. The 1st Respondent needs to provide
suitable training as well as effective supervision of such officials.
The fourth matter of concern was the apparent inadequacy
of voter education. This appears to have contributed to the
disenfranchisement of voters who should be empowered through
civic competence to better exercise their rights and meet their
obligations during the electoral process.
The Court also noted with dismay the failure of the 1st
Respondent to avail to the Court reports of Returning Officers on
the ground that they were not available while it is mandatory for
the Returning Officers to transmit them to the 1st Respondent. I
think that the reports should be submitted as soon as the elections
are completed. The 1st Respondent should determine the period
having regard to the need to have the reports available in case
results of the election are challenged in Court and the reports
are required as evidence.40
Justice George Kanyeihamba similarly remarked upon the failures
of the EC in the following terms:
The partisan nature of the national electoral agents … to the
extent of showing bias and, in some instances, open animosity
while actively working for and favouring one set of candidates, as
was clearly shown in many affidavits, annextures and observers’
reports during the hearing of this petition, can only be of the
greatest national concern.41
40
Judgment of Odoki CJ at pp.152-153.
41
Judgment of Kanyeihamba JSC at p.324.
42 A Comparative Review of Presidential Election Court Decisions in East Africa

The Kenyan Situation

The Kenyan Independent Electoral and Boundaries Commission
(IEBC) is relatively superior to Uganda’s EC.
Following the post-election violence of 2007, the Kenyan
political establishment deliberately designed an EMB that would
be competent enough to organise and manage the electoral
process to the magnitude of creating no room for a repeat of that
unfortunate incident. This was highlighted and noted by the
following scholarly account:
A major institutional reform to emerge out of the new
constitution was an overhaul of the electoral system. Following
the National Peace Accords, a commission that came to be
known as the Kriegler Commission, sought to determine what
had gone wrong with the electoral process that triggered the
PEV in 2007-2008. Identification of serious shortcomings of
the Electoral Commission of Kenya (ECK) led to its disbanding
and to the creation of the Independent Electoral and Boundaries
Commission (IEBC) instead in 2011. The ECK had been the
national body in charge of administering the 2007 elections and
as a result, its disbanding was an indispensable step to moving
forward, as many Kenyans held it responsible for the vote-rigging
and voter intimidation which had occurred.42
The institutional product of this electoral reform was the
IEBC, established under the 2013 Constitution, with elaborate
mechanisms to ensure that the most qualified persons serve as
commissioners. For instance, the chairperson of the IEBC is
supposed to be a person qualified for appointment as a justice
of the Supreme Court of Kenya. Moreover, as an institution,
the independence of the IEBC is guaranteed in terms of clear
42
B Lumsdaine, T Akpedonu and A Sow (2013) ‘Keeping the peace: lessons learned
from preventive action towards Kenya’s 2013 elections’, Geneva Peacebuilding
Platform, Paper No.10, at p.6.
 Role and Impact of Various Stakeholders 43

provisions for removal of commissioners and a more elaborate

process in this regard.
Indeed, surveys taken just prior to the 2013 presidential polls
indicated that the IEBC enjoyed in some instances as much as 90%
confidence rating among the Kenyan population.43 Nevertheless,
the IEBC did not fully live up to this high expectation. A notable
failure was the breakdown of the technology employed during the
2013 elections, and the ensuing failure to electronically transmit
election results as planned. This has severely dented public trust
in the IEBC, with a May 2015 survey by the research firm Ipsos
reporting as few as 2 out of 10 Kenyans indicating confidence in
the institution.44 In the Kenyan context, however, the challenge
does not seem to be so much a case of a disabling legal framework
as much as it is the failure of the commissioners and the staff of
the IEBC to faithfully discharge their constitutional mandate to
deliver free, fair and transparent elections.

The Branches of Government

The three branches that constitute government (the executive,
legislature and judiciary) have a duty to ensure credible elections
because such elections are a major factor in ensuring and
promoting political continuity and peaceful transfer of power.
In the same measure, the executive and parliament should work
together to ensure that all the necessary logistical and other
facilities for the conduct of credible elections, are available in good
time and must, very importantly, also create an enabling legislative
environment for this purpose. This is in addition to ensuring
43
See, for instance, Kenya National Dialogue and Reconciliation Monitoring Project
(2013) Kenya’s 2013 General Election: A Review of Preparedness at p.6
44
See Aggrey Mutambo ‘IEBC urged to repair “broken” public trust ahead of 2017
elections’ The Daily Nation, 1st June 2015 available at http://www.nation.co.ke/news/
IEBC-repair-broken-public-trust/-/1056/2735842/-/format/xhtml/-/ep75mxz/-/
index.html (accessed 15th June 2015).
44 A Comparative Review of Presidential Election Court Decisions in East Africa

that the appropriate laws are in place, moreover in a timely

manner. The judiciary must be trusted and capable of fulfilling
its mandate as a neutral arbiter in any disputes that might arise
from the election, while the executive again, must demonstrate
the willingness to abide by the outcomes of that process.
The Ugandan Situation
As noted earlier, Uganda is in a unique position in terms of the
longevity of the ruling political party, which has implications for
the proper and effective realisation of separation of powers and
the independent operation of each of the branches of government.
This reality was apparent in the conduct of the 2001 and 2006
elections, especially in the latter where a deliberate attempt to
use the judicial system, in particular, to disable the capacity of
the main presidential challenger, including through rape charges
relating back to several years. Indeed, Justice Bosco Katutsi, who
presided over the rape trial in summarily dismissing the charges
against Dr Besigye, noted:
The evidence before court was inadequate even to prove a debt;
impotent to deprive of a civil right; ridiculous for convicting of
the pettiest offence; scandalous if brought forward to support
a charge of any grave character; and monstrous if to ruin the
honour of a man who offered himself as a candidate for the
highest office of this country.45
As noted above, the executive and the legislature were also
apparently unwilling or unable to enact required reform of the
electoral laws, particularly in 2006, notwithstanding the challenges
that had attended the 2001 elections. This is also notwithstanding
the clear call for such reforms contained in the various opinions
of the justices of the Supreme Court who handled the 2001
presidential challenge.
45
Col (Rtd) Dr Kiiza Besigye v. Uganda, High Court Criminal Session No. 149/2005.
 Role and Impact of Various Stakeholders 45

This failure on the part of the parliament was, especially noted

by Justice Katureebe in the 2006 case, wherein he observed:
There are those matters I have already referred to which were
not raised in the petition but were highlighted by the various
observers as having impacted negatively on the election. In
my view, every organ of the State must play their part in the
organisation of elections. It is wrong to conceive of elections
as being solely the responsibility of the Electoral Commission.
Article 66 (1) of the Constitution, for example, states: ‘Parliament
shall ensure that adequate resources and facilities are provided to
the Commission to enable it perform its functions effectively.’
Article 66 (2) makes the commission one of the self-accounting
institutions that deals with Ministry of Finance directly on
matters of its finances. Yet all the observers point out that
money to organise elections was given to the Commission very
late. In my view, Parliament must pass the budget in time and
government must provide funds necessary to organise elections
that are truly free and fair.
Reports indicate that an important aspect of the election, i.e.
voter education, was not carried out due to lack of funds. The
relevant organs of the State must address this matter and ensure
that it does not happen again at subsequent elections. There is
evidence that some of the problems and malpractices that had
occurred at some polling stations were due to a lack of voter
education. In some instances, returning officers had to suspend
the exercise while they gave voter education to the voters and
election officials before the exercise reportedly proceeded
smoothly. There was evidence of this in Ntungamo district.46
Justice Katureebe also condemned the failure by the parliament
to pass requisite laws in good time for the elections. He noted
in this regard:
46
Judgment of Katureebe JSC at p.402.
46 A Comparative Review of Presidential Election Court Decisions in East Africa

Another aspect pointed out by the observers is the late passing

of the necessary electoral legislation in time. Again this is a
matter that the Government and Parliament must address. All
the necessary legislation must be put in place in good time to
enable the Electoral Commission to organise a truly free and fair
election. When the electoral laws are passed late and with little
or no time to correct anomalies and contradictions in them,
the Electoral Commission is left with no time to attend to all
the issues and problems that arise since it is trying to beat the
Constitutional deadline of holding the elections. State organs
must, in my view, perceive of elections as an event that must be
preceded by deliberate processes carefully thought through and
put in place to ensure that the event does produce free and fair
results. 47
The sentiments expressed by Justice Katureebe mirror the views
held by scholars who have studied electoral processes, including
the 2006 elections. For instance, Kiiza et al are of the view that
analyses of elections are best undertaken using an ‘institutional
electoral cycle analysis’, which combines both institutional analysis
and electoral cycle analysis.48 The institutional analysis, in their
view, involves examining ‘the rules of the game and the interaction
of the four main institutions guiding electoral processes, namely
the election management unit (the EC), the political parties,
the legislature and the courts’.49 The electoral cycle dimension
requires an examination of the ‘broader process’ that culminates in
the actual voting, ‘starting with the formulation of the rules for

47
Judgment of Katureebe JSC at p.403.
48
Kiiza J., Makara S. and Rakner, L. (eds) Electoral Democracy in Uganda:
Understanding the Institutional Processes and Outcomes of the 2006 Multiparty
Elections (2008), Fountain Publishers, Kampala, pp. 6-7.
49
Kiiza, Makara and Rakner (2008), as above, p.7.
 Role and Impact of Various Stakeholders 47

political contestation and the registration of voters and political

parties, and ending with the handling of election complaints.’50
Seen from this perspective, indeed, the process continues even
after the polling date, in so far as the management of election
complaints and reform of requisite laws to cure deficiencies
observed in the preceding polls are concerned.
In this regard, Justice Katureebe in the 2006 petition reflected
on the need for Parliament to reform a number of aspects of the
electoral law so as to avoid a repeat of the challenges faced in the
2006 polls:
… I am of the view that Parliament must take a fresh look at the
Constitutional provisions regarding the challenging of election
results. There appears to be constraints of time in respect of filing
and hearing the Petition. Reasonable time is needed to enable the
parties file their pleadings and for the Court to have reasonable
time to inquire into all the matters alleged. Also, the provision
that where the Presidential Election is nullified by Court, a fresh
election must be held within twenty days should be examined. It
may well be that at the time the framers of the Constitution made
this provision, there was an assumption that all the fundamental
processes would have been put in place, e.g. the relevant laws were
in place at the time, funds were provided in time, voter education
was done, the electoral register had been properly prepared and
was not open to challenge, etc. Where all these were inadequate
and a subject of challenge, it may be too much optimism to
expect that the Electoral Commission would then organize a
truly fair and free election within 20 days of the nullification
of an election. A situation where a subsequent election ends up
being the same or worse than the one being challenged, should
be avoided. Parliament should therefore consider a longer period,
realistic enough for the Electoral Commission to address what
50
Kiiza, Makara and Rakner (2008), as above, p.7.
48 A Comparative Review of Presidential Election Court Decisions in East Africa

had gone wrong and make adequate preparations for a free and
fair election superior to the one nullified. Perhaps an expansion
on the principle contained in article 104 (7) should be studied.51
In similar vein, Chief Justice Odoki took note of a number of
challenges in the legislative framework requiring reform by a
number of state institutions, primarily the legislature, so as to
create an enabling environment for truly free and fair elections:
The Court found that certain provisions in the electoral law were
contradictory and inadequate, such as Sections 24 (5) and 59
(6) (a) of the Presidential Elections Act, and Section 25 of the
Electoral Commission Act, and recommended that they should
be reviewed. The Court was of the considered opinion that all
institutions should urgently address the above concerns in order
to improve electoral democracy in the country.
In my view, there is also a need to review and increase the period
of ten days within which to file the petition and the period of
thirty days within which the Court is to declare its findings, as
provided for in Article 104 of the Constitution and Sections 59
of the Presidential Elections Act. The period within which the
petition should be determined should be increased to at least sixty
days to give the parties and the Court sufficient time to prepare,
present, hear and determine the petition. The Presidential
Elections (Electoral Petition) Rules 2001, which require evidence
at the hearing of the petition to be presented by affidavit,
should be reviewed to provide for the calling and examination
of witnesses instead of relying on affidavits, many of which
may be false or are made under suspicious circumstances and,
therefore, not safe to be relied upon, without cross examination
of the deponents.52

51
Judgment of Katureebe JSC at pp.403-404.
52
Judgment of Odoki CJ at pp.152-153.
 Role and Impact of Various Stakeholders 49

The above view implicates not just the role of parliament, but that
of the Uganda Law Reform Commission, and all other agencies
of the state charged with the enactment and reform of legislation.
At the same time, the role of the judiciary also merits some
consideration. Justice Kanyeihamba, in particular, made a number
of pointed observations in his decisions, regarding the Supreme
Court’s own role as an arbiter of high level election disputes.
Remarking on the import of Article 104 of the Constitution,
Justice Kanyeihamba was of the view that it merited greater
industry and commitment to the determination of a presidential
election petition that the apex court had demonstrated:
The implications of Article 104 are easily discernible. An inquiry
into a Presidential election must be conducted, concluded and its
findings and reasons given within the period prescribed by the
Constitution. The idea that the Supreme Court can summarise
its findings and give a decision that and then give reasons outside
the period prescribed by the Constitution is indefensible. It could
not have been the intention of the makers of the Constitution that
if an election is annulled, a fresh one could follow immediately
without regard to the reasons that may be given by all or
any of the judges on the panel. To suggest that the Electoral
Commission and the parties concerned could meaningfully carry
out or participate in a fresh election, following the annulment
of another by the Supreme Court and before the reasons for the
decision of that Court are known, is to indulge in speculation.
It is only logical to expect that the Electoral Commission and
other actors in the Presidential Election to act correctly and
legally after reasons for the annulment of the previous election
are known and publicised. To do otherwise would be putting
the cart before the horse. It is imperative that reasons why one
election is upheld and another is nullified, should be clearly
spelt out and known before a fresh election is held. Only this
50 A Comparative Review of Presidential Election Court Decisions in East Africa

way can the mistakes made in the previous election be known

and subsequently avoided.
In my opinion, the delay to give reasons for the finding of
the Supreme Court was never contemplated by the makers
of the 1995 Constitution. Such delay is democratically and
constitutionally unacceptable. In my view, it is imperative that
the nation should be informed expeditiously why any disputed
Presidential election was upheld or nullified by this Court and
this can only be discerned from the reasons given by the Court …
I investigated into the petition, compiled and assessed the
evidence availed to the Court, wrote my reasons, circulated the
same to my colleagues of the Supreme Court in early May last
year, that is 2006. I was guided and in some cases, compelled by
the reasons I have so far advanced with regard to the necessity
that Presidential election petitions be dealt with and concluded
expeditiously. As a matter of fact, it is only in the second week
of January of this year that my colleagues except one who did so
earlier, released and circulated their own draft reasons. This is
notwithstanding that had the Court allowed the petition, a fresh
Presidential election would have had to be held within twenty
days from the date of the Court’s decision. It cannot have been
the intention of the makers of the Constitution that a fresh
election would be held by the Electoral Commission or allow
others to participate in it without knowing the reasons why the
previous election had been cancelled. Nor can it be suggested
that findings and reasons for a dismissed petition are different
from those advanced for an allowed petition and that whereas the
latter must be disclosed immediately, the former can be delayed
for an indefinite period.53
Later in his decision, the learned judge also appeared to be of the
view that the approach adopted by some on the bench constituted
in some ways an abdication of the judicial function:
53
Judgment of Kanyeihamba JSC at pp. 291-294.
 Role and Impact of Various Stakeholders 51

There can be no justification for the view that the irregularities,

malpractices and illegal acts were few and far in between. Judges
have the responsibility to pronounce themselves on a disputed
matter guided only by the Constitution and laws of Uganda. In
my view, to prove that the results of a presidential election were
affected in a substantial manner, all that a petitioner needs to
show is that both the Constitution and the laws of the land were
substantially violated. It is also my view that thereafter the Court
must come out bravely and vigorously to protect the Constitution
and legitimate laws of Uganda.
Failure to protect and defend the Constitution and the laws of
the country would tantamount to the abdication of the judicial
function just as to travel outside them in search of an answer to
a petition would be embarking on a voyage of discovery beyond
the realm of constitutional and legal boundaries. 54
The Kenyan Situation
Unlike Uganda, Kenya appears to have learnt from its recent tragic
history, and to have taken serious steps to ensure that elections
do not threaten the cohesion and stability of the nation again.
As noted in Chapter Two of this publication, in the wake of the
2007 post-election violence, the nation appears to have undergone
a deliberate process of national catharsis and healing, including,
reforming the judiciary to enhance its capacity to safeguard and
oversee the broad processes of democratic participation, and in
particular, the electoral process.
The branches of government appear to have played their
requisite roles during the 2013 elections in terms of providing the
requisite regulatory framework and logistical necessities required
for a credible election, including, staying above the arena of
political contestation.
54
Judgment of Kanyeihamba JSC at pp. 324-325.
52 A Comparative Review of Presidential Election Court Decisions in East Africa

Domestic, Regional and International Election Observers

The function of election observation is an important one; it
ensures that the various actors in the electoral arena recognise
themselves as being under scrutiny and might contribute to
restraint of those who might have otherwise taken active steps to
undermine the quality of the electoral process.
In both the Ugandan and Kenyan situations, observers appear
to have played the requisite roles in overseeing the conduct of
elections. The European and African Unions, in particular, have
been important players in terms of issuing independent and
impartial assessments of the electoral processes in both countries.
Several Justices of the Supreme Court of Uganda in the 2006
decision, for instance, made extensive references to the reports of
various observer groups, especially regarding the ‘substantiality’
test, which was critical to the decision, but also in terms of a
general qualitative assessment of the 2006 election.
It would appear that greater reliance was placed upon those
groups which demonstrated particularly rigorous and scientific
methods of assessment, as opposed to broad generalities. For
instance, Justice Katureebe was particularly impressed by the
Parallel Vote Tabulation (PVT) adopted by the DEMGROUP,
which allowed it to assess the election using a nationwide weighted
sample of 383 polling stations. On the basis of the strength of
this methodology, and the independent character of the Observer
Group in question, he was able to draw a key finding regarding
substantiality:
In my view, the above statistical analysis by an independent
observer group appears to be reliable. It is to be noted that the
given outcome is not too distant from the official results declared
by the 1st Respondent. In the absence of any other evidence, I
 Role and Impact of Various Stakeholders 53

am unable to put any reliance on Dr Odwe’s assertion that no

candidate obtained more than 50% of the vote.
Having considered all the evidence, the various reports of
observer groups and the submissions of counsel, I am of the
view that malpractices such as intimidation, bribery and violence
did occur in some areas of the country, and this amounted to
non-compliance with the law. But, those areas were limited in
relation to the whole country. In most areas of the country and in
absence of evidence to the contrary, the election appears to have
been conducted smoothly and substantially in accordance with
the law. I therefore answer Issue No.3 in the negative, that is to
say, the non-compliance did not affect the result of the election
in a substantial manner.55
Chief Justice Odoki similarly relied much on the DEMGROUP
methods and result, citing particularly the PVT system they
had employed and the nation-wide nature of their polling, and
noted like Justice Katureebe the fact that the result of this process
broadly resonated with the official results declared by the Electoral
Commission.56 On this basis, he similarly made a key finding in
respect of the ‘substantiality’ test:
The DEMGROUP report therefore confirms that the results
announced by the 1st Respondent were accurate. The report
thus throws serious doubts on the claims by Dr Odwee that the
petitioner lost one million votes through inaccurate counting
and tallying or other malpractices.57
This may be contrasted with Odoki’s treatment of a more critical
press statement on the 2006 general elections issued by the Human
Rights Network Uganda (HURINET-U), which he considered
less helpful:
55
Judgment of Katureebe JSC at pp.387-388.
56
Judgement of Odoki CJ at pp.110-111.
57
Judgement of Odoki CJ at pp.111.
54 A Comparative Review of Presidential Election Court Decisions in East Africa

This statement deals with both Presidential and Parliamentary

elections. Therefore, it is more generalised and some of its
criticisms, like barring certain candidates from freely participating
in the process, may not be applicable to the Presidential election.
Certainly, there was no complaint about this aspect in the
petition.58
The consistent critique of observer missions, however, has been
that they are only able to assess the events of a few days, yet the
actual voting is only part of a longer chain of events which, taken
together, provide the basis for a more accurate assessment of the
credibility or otherwise of the electoral processes.

Civil Society Organisations

CSOs have a vital role to play in advocating for genuine and
credible elections and in sensitising all other stakeholders to
struggle to achieve the same. These organisations may also help the
EMB in executing certain functions, in particular, voter and civic
education, although this must be on the basis of the understanding
that the EMB has the primary responsibility in this regard, and
with the caveat that any such education be scrupulously delivered
so as not to intentionally or unwittingly mislead the electorate.
Civil society in both the Ugandan and Kenyan contexts has
been a vibrant feature of the democratic processes, although the
Kenyan community has been more active and engaged. According
to the EU Election Observer Mission, for instance:
Civil society played a positive role in Kenya’s electoral process
by managing voter education campaigns, awareness raising
programmes and peace promotion events. Special road shows,
caravans, debates and trainings were organised throughout the
country to promote peace by religious leaders, non-governmental
organisations as well as public bodies, mainly via Peace
58
Judgement of Odoki CJ at pp.112.
 Role and Impact of Various Stakeholders 55

Committees. Moreover, many mass prayers took place, including

one which gathered six presidential candidates and was widely
covered in the media.59
Indeed, the Ugandan civil society appears to have acknowledged
that it could have done more to support more credible elections in
2001 and 2006, in so far as they came together in 2009 to form a
stronger coalition to achieve this purpose – the Citizens Coalition
for Electoral Democracy in Uganda (CCEDU). CCEDU today
claims a membership of over 600 CSOs.

Development Partners
Development partners, by their action or inaction, may support
or undermine credible electoral processes in the countries which
receive assistance. Development partners should ensure that any
assistance they provide to any of the political actors is transparent
and that it is used to further, rather than subvert, the legitimate
aspirations of citizens for genuine elections.
In the Ugandan and Kenyan contexts, development partners
appear to have supported rather than undermined efforts towards
conducting credible elections.
The traditional partners, the United States (US), the United
Kingdom (UK), the European Union, the Nordic countries, and
other entities supported, both state and non-state institutions
towards the goal of achieving electoral democracy. It is noteworthy
in this regard that while the Kenyan 2013 election appeared to

59
EU Election Observation Mission, Preliminary Report, 6 March 2013, http://www.
eueom.eu/files/pressreleases/english/EUEOMPreliminaryStatement6March2013.
pdf at p.6.
56 A Comparative Review of Presidential Election Court Decisions in East Africa

attract significant direct support to the state,60 this was not the
especially the case with regard to the Ugandan elections. In the
run up to the 2006 elections in particular, there appears to have
been a recognition on the part of the donor community that a
high degree of direct support to the state would hinder rather than
facilitate the process of democratisation in Uganda.61 Either way,
it would appear that, through extending or withholding support
as the case warranted, the donor community expended good faith
efforts towards fostering credible and transparent elections in
Uganda and Kenya during the periods under review.

The Media
The media is sometimes generally referred to as the ‘Fourth Estate’,
and with good reason. The media has an important role to play
in enhancing or diminishing the quality of the electoral process.
The media can assist in civic and voter education, and crucially,
is a major platform through which the various political actors
can present their manifestos to the electorate. As far as possible,
therefore, the media should strive to present voters with the truth,
the whole truth and nothing, but the truth, so as to ensure that
voters make informed choices on the voting day.
60
For an overview of United States government support towards the Kenyan electoral
process see, for instance, L.Garber, E.Dallas and J.Wilkie (2014) USAID Support
for Kenya’s 2013 Elections: Rapid Assessment Review available at http://www.usaid.
gov/sites/default/files/documents/1866/Kenya%2527s%25202013%2520Elections.
pdf (accessed 1st June 2015).
61
See S.Makara, L.Rakner and S.Rwengabo (2008) ‘Administering Uganda’s 2006
Multiparty Elections: The Role of the Electoral Commission’ CHR Michelsen
Institute Working Paper No.5, who report that ‘The EC commissioners suggested
in interviews that the withdrawal of donor funding linked to political developments
outside the control of the EC affected voter education. According to the
commissioners, some funding for voter education arrived after the elections, and
lack of predictability of donor funding hampered the process’ at p.8.
 Role and Impact of Various Stakeholders 57

The Ugandan Situation

Uganda has a vibrant media landscape comprising several private
broadcasters. However, in both the 2001 and 2006 elections, there
was a clear disparity in terms of access to state media in favour
of the ruling NRM than the opposition. As noted earlier in this
chapter, the fusion of the state and the NRM appeared to be
vindicated by the inordinate coverage of the NRM campaigns as
opposed to time allocated to the FDC and other parties.
The misuse of state media was of particular concern to the
Supreme Court in the 2006 decision. Justice Katureebe, for
instance, invoked the provisions of the Constitution that would
have required equity in media coverage of the candidates:
The other aspect commented on is that of the use of the public
media. Article 67 (3) of the Constitution provides as follows: ‘All
Presidential Candidates shall be given equal time and space on the
state-owned media to present their programmes to the people.’
In my view, this is a constitutional command to the State organ
concerned. It is not a matter for the Electoral Commission to
negotiate on. The people in charge of the state-owned media
have the duty to ensure compliance. Perhaps in future petitions,
the law should provide for the Government (Attorney General)
to be made a party to the petition so that such complaints, if
pleaded by a petitioner, can be answered and be fully inquired
into by the Court.62
Similarly, Justice Kanyeihamba pointed out the government press
and other media as one of the agencies of the state which had
demonstrated a ‘partisan nature and behaviour … to the extent
of showing bias, and in some cases, open animosity while actively
working for and favouring one set of candidates.’63

62
Judgment of Katureebe JSC at p.403.
63
Judgment of Kanyeihamba JSC at p.324.
58 A Comparative Review of Presidential Election Court Decisions in East Africa

In addition, there was significant evidence that even private

media houses were intimidated into either not hosting opposition
politicians or dedicating as limited time as possible to their
campaigns.
The Kenyan Situation
As noted earlier, the Kenyan political establishment appears to
have learnt the lessons of 2007, which was also reflected in the
media coverage during the 2013 elections. According to the
Report of the Commission of Inquiry on Post-Election Violence
(‘the Waki Report), vernacular radio stations played a ‘negative
and inflammatory role’ in the run up to the election of 2007.64
For instance, KASS FM particularly incited violence in the Rift
Valley, while a number of Kikuyu FM stations were alleged to have
promoted incendiary messages against certain ethnic groups.65
Indeed, one of the persons indicted by the International Criminal
Court (ICC) in March 2011 for crimes committed during the
2007-2008 violence in Kenya, was a journalist, Mr. Joshua Arap
Sang, who hosted an influential morning show called ‘Lene
Emet’.66
In the run up to the 2013 elections, there was an understanding
on the part of the various media houses that they had a critical role
to play if a repeat of 2007-2008 was to be avoided. In fact, this
caution was so much that a number of observers felt that the media
had gone too far down the road of self-censorship at the expense
of an in-depth coverage of the election. This notwithstanding,
a critical area where the media scored was the equal coverage of

64
See Report of the Commission of Inquiry on Post Election Violence, 15th October 2008,
at p.295.
65
As above.
66
http://www.haguejusticeportal.net/index.php?id=12477 (accessed 1st June 2015).
 Role and Impact of Various Stakeholders 59

the main political actors and platforms. According to the EU

Observer report:
Freedom of speech in the media was respected. Overall, the media
gave extensive coverage of the elections, voters were able to access
information about key contestants and they could also compare
presidential and gubernatorial candidates in the televised debates.
Broadcast media were very active in promoting voter education
in the last two weeks of the campaign … The state-owned
Kenya Broadcasting Corporation (KBC) gave more coverage
to the two major alliances, but it also offered free significant
segments of time to other contesting parties and maintained
generally equitable coverage of the presidential candidates. KBC
provided free airtime to key contestants and parties, but it was
not organised in such a way that all parties could benefit.67
Of particular note was the first ever live televised presidential
debate, held on February 11, 2013. The debate, which brought
together all eight candidates, was watched by millions of Kenyans68
and went a long way in allowing the electorate to better understand
the choices offered by the various candidates. The position in
Kenya with regard to the role of the media in ensuring credible
elections is, therefore, demonstrably more positive than that in
Uganda.

Security Agencies
The military is not a traditional or obvious stakeholder in the
conduct or outcome of electoral processes. However, given the
continuing reality of inordinate military involvement in the
political processes of many countries around the world, and
67
EU Election Observation Mission, Preliminary Report, 6 March 2013, http://www.
eueom.eu/files/pressreleases/english/EUEOMPreliminaryStatement6March2013.
pdf at p.5.
68
http://www.aljazeera.com/news/africa/2013/02/2013211173320423496.html
(accessed 1st October 2014).
60 A Comparative Review of Presidential Election Court Decisions in East Africa

Africa in particular, the special obligations of the army and other

security forces with regard to the conduct of credible elections
deserve attention.
In the first place, the army must act and be perceived to be a
neutral party throughout the electoral process, whose allegiance
is to the state and not any of the actors in the election. The army
must be understood as being ready to support the outcome of
the democratic process regardless, and to be willing to defend
the genuine and expressed will of the people against internal or
external attempts to subvert it.
The Ugandan Situation
As noted above, Uganda has a unique history in which the army
has played a significant role in the political life of the country.
Indeed, Uganda is perhaps only second to Pakistan in terms of
contributing to the jurisprudence on extra-constitutional changes
of government. This is reflected, in part, by the provision for army
representation in Parliament as one of the ‘special interest’ groups.
The army was an ever present shadow in the 2001 and
2006 elections. In the first place, there were indications of the
involvement of the army in voter intimidation, rigging and other
irregularities. Moreover, a concern as to how the army might react
to a negative result might have played a part in influencing the
outcome of the presidential election petitions in both instances.69
The army was the subject of a number of specific observations
by the justices of the Supreme Court in the 2006 decision.
According to Chief Justice Odoki:
In our summary judgment announcing our decision in this
petition, we observed that we were constrained to comment
69
See, for instance, the account by Rtd Justice George Kanyeihamba of the 2006
Supreme Court decision-making process in his memoirs, George Kanyeihamba: The
Blessings and Joy of Being Who you Are (2012).
 Role and Impact of Various Stakeholders 61

on a number of matters which had given us grave concern.

The first matter was the continued involvement of the security
forces in the conduct of elections where they committed acts
of intimidation, violence and partisan harassment. While the
involvement of the security was lesser than in 2001, I think that
every effort be made to reduce their involvement, except where
they are required to provide security necessary to ensure free and
fair elections. The security agencies should strictly carry out their
duties in accordance with the law.70
Justice Kanyeihamba similarly decried the ‘partisan nature and
behaviour’ exhibited by, among others, the security forces,
including the police and the Uganda Peoples’ Defence Forces
(UPDF), during the 2006 elections.71
Justice Katureebe also condemned the role played by security
forces during the election, which had tainted the legitimacy and
credibility of the results:
The government must address the question of the military or
any armed groups in elections. No one denies the responsibility
of government to provide security for the country where the
situation warrants it, even during the election period. In my view
the Police Force should be adequately trained and equipped to
handle elections. It may only be supplemented by other security
forces, where the situation clearly warrants it. But, where there is
no clear cause for it, the army should be kept away from election
counters. 72
The Kenyan Situation
The army in Kenya largely stayed out of the 2013 elections and,
in this sense, acted with requisite professionalism and deference
to the established civilian authority and the will of the people.
70
Judgment of Odoki CJ at p.152.
71
Judgement of Kanyeihamba JSC at p. 324.
72
Judgement of Katureebe JSC at pp. 402 – 403.
62 A Comparative Review of Presidential Election Court Decisions in East Africa

There does not appear to have been any serious doubt regarding
the army’s willingness to pay allegiance to the winner of the
elections, regardless of its outcome, which is a significant factor
in the defence and growth of Kenya’s democratic culture.

Summary and Conclusion

This chapter has analysed the important roles that various actors
play with regard to the planning and delivery of credible elections.
In each case, an attempt has been made to identify the applicable
standards regarding the nature and conduct of the stakeholders,
followed by an examination of the situations in Uganda and
Kenya, both broadly, as well as with reference to their recent
electoral processes in particular.
On the whole, it is noted that while both countries have made
significant progress in terms of their electoral processes, challenges
still remain regarding the extent to which the key stakeholders
in these processes understand and execute their roles in these
contexts.
Uganda has to continue to work to enhance the capacity of the
EC to deliver legitimate elections, as well as to sensitise, especially
the local actors regarding the functions they can and should play
to realise this shared goal. Crucially, the country has yet, legally,
institutionally and attitudinally, to transition from the movement
or ‘no party’ system of democracy to the multiparty dispensation
that currently prevails. This challenge was aptly captured by Justice
Kanyeihamba in the 2006 decision, thus:
Before concluding these reasons, however, I am constrained
to observe that the non-compliance with and violations of
the principles of the Constitution, the Presidential Elections
Act and the Electoral Commissions Act, which this court has
unanimously found to have occurred, were caused principally
 Role and Impact of Various Stakeholders 63

by the continued existence and sustenance of electoral structures

created and personnel appointed originally to serve one political
organisation, being called upon and entrusted with, in 2006,
to organise and conduct elections in which more than one
political party, including that one organisation, were seriously
and acrimoniously competing for power.73
Kenya has made considerably more progress than Uganda in terms
of its democratic tradition, although like Uganda, it still has work
to do, especially in terms of nation-building and ensuring that
the various actors understand their efforts to be directed at the
achievement of a common destiny, rather than the triumph of
more insular interests.

73
Judgement of Kanyeihamba JSC at p.324.
 Chapter 4

Legal Framework and Context

of the Disputes
over Presidential Elections

Introduction
This chapter examines the legal framework and context for the
adjudication of disputes arising from presidential elections.
The chapter begins with an examination of relevant standards
and norms under international, regional and sub-regional law
binding or applicable to Uganda and Kenya. An examination of
the broader legal framework is especially important since both
Uganda and Kenya have ‘international law friendly’ legal systems.74
This chapter also surfaces the salient provisions of the electoral
law of the two jurisdictions.

74
See, generally, Kabumba, B.“The Application of International Law in the Ugandan
Judicial System: A critical enquiry”, in Magnus Killander (ed) International Law
and Domestic Human Rights Litigation in Africa (2009), Pretoria University Law
Press, Pretoria; Orago, N.W. ‘The 2010 Kenyan Constitution and the Hierarchical
Place of International Law in the Kenyan Domestic Legal System: A comparative
perspective’ (2013), 13 African Human Rights Law Journal, pp. 415-440.

64
 Legal Framework and Context of the Disputes over Presidential Elections 65

International Instruments
There are a number of international covenants and declarations
that are of critical importance to the conduct and management
of elections. These include the Universal Declaration of Human
Rights (UDHR), the International Covenant on Civil and
Political Rights (ICCPR), the Convention on the Elimination of
All forms of Discrimination Against Women (CEDAW) and the
Convention on the Rights of Persons with Disabilities (CRPD).
We consider each of these in turn.

The Universal Declaration of Human Rights

The UDHR was proclaimed by the United Nations General
Assembly on 10th December 1948, as a ‘common standard of
achievement for all peoples and all nations’.75 Although the
Declaration is not a binding document in terms of traditional
international law, it carries significant normative weight, especially
in so far as a number of its provisions can be considered to
constitute customary international law.
Under Article 10 of the Declaration, everyone is entitled
in full equality to a fair and public hearing by an independent
and impartial tribunal in the determination of his rights and
obligations and of any criminal charge against him. In the same
vein, under Article 8, it is provided that everyone has the right to
an effective remedy by the competent national tribunals for acts
violating the fundamental rights granted him by the constitution
or by law.
According to Article 21 of the UDHR, everyone has the right
to take part in the government of his country, directly or through
freely chosen representatives.76 In terms of Article 21 (3), the will
75
Preamble to the Declaration.
76
Article 21 (1).
66 A Comparative Review of Presidential Election Court Decisions in East Africa

of the people must be the basis of the authority of government;

and this will must be expressed in periodic and genuine elections,
which must be by universal and equal suffrage and must be held
by secret vote or by equivalent free voting procedures.

The International Covenant on Civil and Political Rights

The protection under the ICCPR is framed in general terms as
that under the UDHR.
Under Article 25 of the ICCPR, it is provided, among other
things, that every citizen must have the right and the opportunity,
without distinction77 and without unreasonable restrictions: to
take part in the conduct of public affairs, directly or through
freely chosen representatives;78 and to vote and to be elected at
genuine periodic elections which must be by universal and equal
suffrage and must be held by secret ballot, guaranteeing the free
expression of the will of the electors.79
The ICCPR also guarantees the right of all persons, in the
determination of their rights and obligations in a suit at law, to a
fair and public hearing by a competent, independent and impartial
tribunal established by law.80
In addition, under Article 2(3) of the Covenant, each state party
undertakes: to ensure that any person whose rights or freedoms as
recognised in the Covenant are violated has an effective remedy,
notwithstanding that the violation has been committed by persons
acting in an official capacity;81 to ensure that any person claiming
such a remedy has their right to it determined by competent
77
Article 25 makes reference, in this regard, to Article 2 of the Covenant, which
prohibits discrimination on the basis of ‘race, colour, sex, language, religion, political
or other opinion, national or social origin, property, birth or other status.’
78
Article 25 (a).
79
Article 25 (b).
80
Article 14 (1).
81
Article 2 (3) (a).
 Legal Framework and Context of the Disputes over Presidential Elections 67

judicial, administrative or legislative authorities, or by any other

competent authority provided for by the legal system of the state,
and to develop the possibilities of judicial remedy;82 as well as to
ensure that the competent authorities shall enforce such remedies
when granted.83
The United Nations Human Rights Committee (HRC) in its
General Comment No.25,84 had occasion to reflect on the scope
and significance of Article 25 of the ICCPR. In that General
Comment, the HRC notes that Article 25 lies at the core of
democratic government based on the consent of the people
and in conformity with the principles of the Covenant.85 The
Committee further points out that any conditions which apply
to the exercise of the rights protected by Article 25 should be
based on objective and reasonable criteria.86 The exercise of these
rights by citizens may not be suspended or excluded, except on
grounds which are established by law and which are objective and
reasonable.87 Similarly, the right to vote at elections and referenda
must be established by law and may be subject only to reasonable
restrictions, such as setting a minimum age limit for the right to
vote.88 To this end, states must take effective measures to ensure
that all persons entitled to vote are able to exercise that right.89

82
Article 2 (3) (b).
83
Article 2 (3) (c).
84
Human Rights Committee, General Comment 25, General Comments under
Article 40, paragraph 4, of the International Covenant on Civil and Political Rights,
Adopted by the Committee at its 1510th meeting, U.N. Doc. CCPR/C/21/Rev.1/
Add.7 (1996).
85
Paragraph 1.
86
Paragraph 4.
87
Paragraph 4.
88
Paragraph 10.
89
Paragraph 11.
68 A Comparative Review of Presidential Election Court Decisions in East Africa

Where registration of voters is required, it should be facilitated

and obstacles to such registration should not be imposed.90
The Committee further observes that freedom of expression,
assembly and association are essential conditions for the effective
exercise of the right to vote and must be fully protected.91 In this
regard, positive measures should be taken by states to overcome
specific difficulties, such as illiteracy, language barriers, poverty
or impediments to freedom of movement which prevent persons
entitled to vote from exercising their rights effectively.92
In addition, the HRC observes that the effective implementation
of the right and the opportunity to stand for elective office ensures
that persons entitled to vote have a free choice of candidates.93 Any
restrictions on the right to stand for election, such as minimum
age, must be justifiable on objective and reasonable criteria.94
Persons who are otherwise eligible to stand for election should
not be excluded by unreasonable or discriminatory requirements
such as education, residence or descent, or by reason of political
affiliation.95 Similarly, conditions relating to nomination dates,
fees or deposits should be reasonable and not discriminatory.96 In
particular, the right of persons to stand for election should not be
limited unreasonably by requiring candidates to be members of
parties or of specific parties.97 If a candidate is required to have a
minimum number of supporters for nomination, this requirement
should be reasonable and should not inhibit candidacy.98
90
Paragraph 11.
91
Paragraph 12.
92
Paragraph 12.
93
Paragraph 15.
94
Paragraph 15.
95
Paragraph 15.
96
Paragraph 16.
97
Paragraph 17.
98
Paragraph 17.
 Legal Framework and Context of the Disputes over Presidential Elections 69

To the Committee, the import of Article 25 (b) of the

ICCPR is that elections must be conducted fairly and freely on
a periodic basis within a framework of laws guaranteeing the
effective exercise of voting rights.99 Persons entitled to vote must
be free to vote for any candidate for election and for or against
any proposal submitted to referendum or plebiscite, and free
to support or to oppose government, without undue influence
or coercion of any kind which may distort or inhibit the free
expression of the electors’ will.100 Voters should be able to form
opinions independently, free of violence or threat of violence,
compulsion, inducement or manipulative interference of any
kind.101 Reasonable limitations on campaign expenditure may
be justified where this is necessary to ensure that the free choice
of voters is not undermined or the democratic process distorted
by the disproportionate expenditure on behalf of any candidate
or party.102 The results of genuine elections should be respected
and implemented.103
Importantly, the Committee observes that an independent
electoral authority should be established to supervise the electoral
process and to ensure that it is conducted fairly, impartially and
in accordance with established laws which are compatible with
the ICCPR.104 States should take measures to guarantee the
requirement of the secrecy of the vote during elections, including
absentee voting, where such a system exists.105 This implies
that voters should be protected from any form of coercion or
compulsion to disclose how they intend to vote or how they voted,
99
Paragraph 19.
100
Paragraph 19.
101
Paragraph 19.
102
Paragraph 19.
103
Paragraph 19.
104
Paragraph 20.
105
Paragraph 20.
70 A Comparative Review of Presidential Election Court Decisions in East Africa

and from any unlawful or arbitrary interference with the voting

process.106 The Committee emphasises that waiver of these rights
is incompatible with Article 25 of the Covenant.107 The security
of ballot boxes must be guaranteed and votes should be counted
in the presence of the candidates or their agents.108 There should
also be independent scrutiny of the voting and counting process
and access to judicial review or other equivalent process so that
the electorate has confidence in the security of the ballot and the
counting of the votes.109 In all cases, the electorate should be fully
informed of these guarantees.110

Convention on the Elimination of All Forms of

Discrimination against Women
Under Article 7 of this Convention, state parties must take all
appropriate measures to eliminate discrimination against women
in the political and public life of the country and, in particular,
must ensure to women, on equal terms with men, the right: to
vote in all elections and public referenda and to be eligible for
election to all publicly elected bodies;111 as well as to participate
in the formulation of government policy and the implementation
thereof and to hold public office and perform all public functions
at all levels of government.112

Convention on the Rights of Persons with Disabilities

In terms of Article 29 of the CRPD, state parties must guarantee
to persons with disabilities political rights and the opportunity
106
Paragraph 20.
107
Paragraph 20.
108
Paragraph 20.
109
Paragraph 20.
110
Paragraph 20.
111
Article 7 (a).
112
Article 7 (b).
 Legal Framework and Context of the Disputes over Presidential Elections 71

to enjoy them on an equal basis with others. State parties must,

among other things, ensure that persons with disabilities can
effectively and fully participate in political and public life on
an equal basis with others, directly or through freely chosen
representatives, including the right and opportunity for them to
vote and be elected. Specifically, states must ensure that voting
procedures, facilities and materials are appropriate, accessible
and easy to understand and use;113 protect the right of persons
with disabilities to vote by secret ballot in elections and public
referendums without intimidation, and to stand for elections,
to effectively hold office and perform all public functions at all
levels of government, facilitating the use of assertive and new
technologies where appropriate;114 as well as guaranteeing the free
expression of the will of persons with disabilities as electors and
to this end, where necessary, at their request, allowing assistance
in voting by a person of their own choice.115
States are further enjoined to promote actively an environment
in which persons with disabilities can effectively and fully
participate in the conduct of public affairs, without discrimination
and on an equal basis with others, and encourage their participation
in public affairs.116

Regional Standards
In addition to the above global standards, a number of
covenants and declarations have been concluded at the African
level, establishing a normative continental framework for the
management of elections.

113
Article 29 (a) (i).
114
Article 29 (a) (ii).
115
Article 29 (a) (iii).
116
Article 29 (b).
72 A Comparative Review of Presidential Election Court Decisions in East Africa

These include: the African Charter on Human and Peoples’

Rights (ACHPR); the African Charter on Elections and
Governance and the African Union Declaration on the Principles
Governing Democratic Elections in Africa.

African Charter on Human and Peoples’ Rights

The ACHPR is rather muted as compared to the more affirmative
language in the UDHR.
Under Article 13 (1) of the Charter, every citizen must have the
right to participate freely in the government of his country, either
directly or through freely chosen representatives in accordance
with the provisions of the law.

African Union Declaration on the Principles Governing

Democratic Elections in Africa
The paucity of provisions in the ACHPR, with regard to
the conduct and management of elections, was to an extent
ameliorated by the terms of the African Union Declaration on the
Principles Governing Democratic Elections in Africa117 adopted
by the Heads of State and Government of the Organisation of
African Unity (as it then was), meeting in Durban, South Africa,
at the 38th Ordinary Session of the Assembly of the OAU.
Under the Declaration, states endorsed a number of principles
regarding democratic elections in Africa. In the first place, states
recognised that: democratic elections are the basis of the authority
of any representative government;118 regular elections constitute
a key element of the democratisation process and, therefore, are
essential ingredients for good governance, the rule of law, the
maintenance and promotion of peace, security, stability and

117
AHG/Decl.1 (XXXVIII), 2002.
118
Principle II (1).
 Legal Framework and Context of the Disputes over Presidential Elections 73

development;119 and that the holding of democratic elections is

an important dimension in conflict prevention, management and
resolution.120 According to the Declaration, states’ democratic
elections should be conducted freely and fairly; under democratic
constitutions and in compliance with supportive legal instruments;
under a system of separation of powers that ensures in particular,
the independence of the judiciary; at regular intervals, as provided
for in national constitutions; and by impartial, all-inclusive and
competent accountable electoral institutions staffed by well-
trained personnel and equipped with adequate logistics.121
In this regard, the states committed themselves to: take necessary
measures to ensure the scrupulous implementation of the above
principles, in accordance with the constitutional processes of their
respective countries;122 establish, where none exist, appropriate
institutions, where issues such as codes of conduct, citizenship,
residency, age requirements for eligible voters, compilation of
voters’ registers, etc. would be addressed;123 establish impartial,
all-inclusive, competent and accountable national electoral bodies
staffed by qualified personnel, as well as competent legal entities,
including effective constitutional courts, to arbitrate in the event
of disputes arising from the conduct of elections;124 safeguard the
human and civil liberties of all citizens, including the freedom of
movement, assembly, association, expression, and campaigning as
well as access to the media on the part of all stakeholders during
electoral processes;125 and promote civic and voters’ education on

119
Principle II (2).
120
Principle II (3).
121
Principle II (4) (a) – (e).
122
Principle III (a).
123
Principle III (b).
124
Principle III (c).
125
Principle III (d).
74 A Comparative Review of Presidential Election Court Decisions in East Africa

the democratic principles and values in close cooperation with the

civil society groups and other relevant stakeholders.126
In addition, states are required to take all necessary measures
and precautions to prevent the perpetration of fraud, rigging or
any other illegal practices throughout the whole electoral process,
in order to maintain peace and security;127ensure the availability
of adequate logistics and resources for carrying out democratic
elections, as well as ensure that adequate provision of funding for
all registered political parties to enable them organise their work,
including participation in the electoral process;128 ensure that
adequate security is provided to all parties participating in the
elections;129 ensure the transparency and integrity of the entire the
electoral process by facilitating the deployment of representatives
of political parties and individual candidates at polling and
counting stations and by accrediting national and/other observers/
monitors;130 as well as to encourage the participation of African
women in all aspects of the electoral process in accordance with
the national laws.131
In the same vein, the states reaffirm a number of rights and
obligations under which democratic elections are conducted,
including the recognition, among other things, that: every citizen
has the right to participate freely in the government of his or her
country, either directly or through freely elected representatives in
accordance with the provisions of the law;132 every citizen has the
right to fully participate in the electoral processes of the country,
including the right to vote or be voted for, according to the laws
126
Principle III (e).
127
Principle III (f ).
128
Principle III (g).
129
Principle III (h).
130
Principle III (i).
131
Principle III (j).
132
Principle IV (1).
 Legal Framework and Context of the Disputes over Presidential Elections 75

of the country and as guaranteed by the constitution, without

any kind of discrimination;133 every citizen has the right to free
association and assembly in accordance with the law;134 individuals
or political parties have the right to appeal and to obtain timely
hearing against all proven electoral malpractices from competent
judicial authorities in accordance with the electoral laws of the
country;135 every individual and political party participating in
elections must recognise the authority of the electoral commission
or any statutory body empowered to oversee the electoral process
and, accordingly, render full cooperation to such a commission/
body in order to facilitate their duties;136 and that every citizen
and political party must accept the results of elections proclaimed
to have been free and fair by the competent national bodies
as provided for in the constitution and the electoral laws and,
accordingly, respect the final decision of the competent electoral
authorities or, challenge the result appropriately according to the
law.137

African Charter on Democracy, Elections and Governance

The normative framework articulated in the above Declaration
was crystallised by the terms of the African Charter on Democracy,
Elections and Governance.
Under Article 14 of the Charter, state parties must strengthen
and institutionalise constitutional civilian control over the armed
and security forces to ensure the consolidation of democracy and
constitutional order.138

133
Principle IV (2).
134
Principle IV (3).
135
Principle IV (6).
136
Principle IV (12).
137
Principle IV (13).
138
Article 14 (1).
76 A Comparative Review of Presidential Election Court Decisions in East Africa

In terms of Article 15 of the Charter, state parties must

establish public institutions that promote and support democracy
and constitutional order.139 States must also ensure that the
independence or autonomy of the said institutions is guaranteed
by the constitution;140 that these institutions are accountable to
competent national organs;141 and they must also provide these
institutions with resources to perform their assigned missions
efficiently and effectively.142
In Article 17 of the Charter, state parties re-affirm their
commitment to hold transparent, free and fair elections regularly
in accordance with the African Union’s Declaration on the
Principles Governing Democratic Elections in Africa. To this
end, state parties must: establish and strengthen independent and
impartial national electoral bodies responsible for the management
of elections;143 establish and strengthen national mechanisms that
redress election-related disputes in a timely manner;144 ensure fair
and equitable access by contesting parties and candidates to state
controlled media during elections;145 and ensure that there is a
binding code of conduct governing legally recognised political
stakeholders, government and other political actors prior, during
and after elections.146 This code must include a commitment
by political stakeholders to accept the results of the election or
challenge them through exclusively legal channels.147 In addition,
under Article 22, states are enjoined to create a conducive
139
Article 15 (1).
140
Article 15 (2).
141
Article 15 (3).
142
Article 15 (4).
143
Article 17 (1).
144
Article 17 (2).
145
Article 17 (3).
146
Article 17 (4).
147
Article 17 (4).
 Legal Framework and Context of the Disputes over Presidential Elections 77

environment for independent and impartial national monitoring

or observation mechanisms.
At a broader systemic level, in terms of Article 32 of the
Charter, states must strive to institutionalise good political
governance through: accountable, efficient and effective public
administration;148 strengthening the functioning and effectiveness
of parliaments;149 an independent judiciary;150 relevant reforms of
public institutions, including the security sector;151 harmonious
relationships in society, including civil-military relations;152
consolidating sustainable multiparty political systems; 153
organising regular, free and fair elections;154 as well as entrenching
and respecting the principle of the rule of law.155

Sub-Regional Standards
In addition to the continental instruments, a normative framework
governing the conduct of elections in the East African Community
(EAC) has been established, although parts of it are still under
development.
We consider, in this regard, the Treaty Establishing the East
African Community, and the Draft East African Community
Principles on Election Observation, Monitoring and Evaluation.

148
Article 32 (1).
149
Article 32 (2).
150
Article 32 (3).
151
Article 32 (4).
152
Article 32 (5).
153
Article 32 (6).
154
Article 32 (7).
155
Article 32 (8).
78 A Comparative Review of Presidential Election Court Decisions in East Africa

The Treaty Establishing the East African Community

The Treaty Establishing the East African Community (the ‘EAC
Treaty’) contains a number of provisions binding upon member
states in the context of the East African cooperative endeavour.
In the first place, in terms of Article 3(3)(b) of the EAC Treaty,
one of the matters to be taken into account by partner states
in considering an application by a foreign country to become
a member of, be associated with, or participate in any of the
activities of the community, is that foreign country’s adherence to
universally acceptable principles of good governance, democracy,
the rule of law, observance of human rights and social justice.
This commitment to democratic principles is further reflected
in Article 6 of the EAC Treaty, which outlines the fundamental
principles of the Community. Key among these is the value of
good governance, which is defined as including the adherence
to the principles of democracy, the rule of law, accountability,
transparency, social justice, equal opportunities, gender equality, as
well as the recognition, promotion and protection of human and
peoples’ rights in accordance with the provisions of the ACHPR.156
In addition, under Article 7 of the Treaty, which articulates the
operational principles of the Community, it is provided that the
partner states should undertake to abide by the principles of good
governance, including adherence to the principles of democracy,
the rule of law, social justice and the maintenance of universally
accepted standards of human rights.157
Finally, under Article 123(3), it is stipulated that one of the
common foreign and security policies of the community shall be

156
Article 6 (d).
157
Article 7 (2).
 Legal Framework and Context of the Disputes over Presidential Elections 79

to develop and consolidate democracy and the rule of law and

respect for human rights and fundamental freedoms.158

Draft East African Community Principles on Election

Observation, Monitoring and Evaluation
The EAC is in the process of developing principles on election
observation, monitoring and evaluation.
This process is in line with best practices, particularly, the
Southern African Development Community (SADC) Principles
for Election Management, Monitoring and Observation in
the SADC region, to which the Draft EAC principles make
specific reference. The EAC Draft principles are also expressed
to be informed by the UDHR, the ICCPR, CEDAW and
AU principles. As such, although the Draft is yet to be legally
adopted, its clauses are relevant and should be respected insofar
as they reflect best practices and principles contained in binding
international standards.
Under the Draft principles, the EAC would adopt a number
of key principles for the conduct of democratic elections, that is
to say: free expression of the will of the people; genuine elections;
periodic elections; universal suffrage; equal suffrage; the right
to participate in public affairs; the right to vote; the right to be
elected; secret ballot; and the right to an effective remedy (fair
and impartial resolution of elections related disputes).159
In addition to affirmatively setting out a number of underlying
benchmarks for the conduct of a free and fair electoral process,
the Draft principles also provide extensive guidance regarding a
whole range of issues, including: the electoral management body;
voter registration; registration of political parties; the nomination
process; campaign process; media; use of public resources; political
158
Article 123 (3) (c).
159
At pp. 4-5.
80 A Comparative Review of Presidential Election Court Decisions in East Africa

violence and intimidation; role of security forces; political party

financing; civic and voter education; polling stations; secrecy
of the ballot; election materials; counting; announcement of
overall results; acceptance of results; post-election review and
post-election disputes.160
With regard to post-election disputes, in particular, the Draft
principles provide that there should be clear legal provisions for
petitions against the results and any other matters related to the
conduct of elections; that the legal provisions for petitions should
be flexible enough to accommodate alternative dispute settlement
mechanisms; and that, for the presidency, there should be at least
thirty days between the announcement of results and swearing
in of the winner.161

The Domestic Laws of Uganda and Kenya

This chapter examines the municipal law of the two countries that
are the subject of this study. This analysis is done with respect
to a number of key issues which have arisen in the context of
adjudication of the disputes arising out of presidential elections.

Locus Standi
Under Article 104 (1) of the Uganda Constitution, the right to
challenge the results of a presidential election is reserved to ‘any
aggrieved candidate’. Presumably, although the 2001 and 2006
petitions were brought by the runner up, the challenge could have
been brought by any candidate who was validly nominated as such.
The 2010 Kenyan Constitution is more liberal in the sense
that under Article 140 (1), it refers to the right of ‘a person’ to
challenge the election of the president-elect. Indeed, of the six
160
At pp. 9-15.
161
At p.15.
 Legal Framework and Context of the Disputes over Presidential Elections 81

petitioners who challenged the 2013 presidential elections, only

one had been a candidate in those elections.162
The Kenyan position appears to be more progressive in so far
as it presents a higher likelihood of the Supreme Court being
given the opportunity to pronounce itself on the management
and conduct of elections. Arguably, this is healthy because it
allows dialogue between the branches of government and supports
the development of jurisprudence from which the electoral
commission and other key stakeholders can derive guidance for
the better management of future elections. The more liberal locus
standi requirements are more in keeping with the greater public
interest implicated by an election, especially a presidential election,
and constitute a recognition that the interested parties in such a
significant event are not just the candidates in that election but,
indeed, all the citizens of the country.

Forum and Time Limits for Filing and Determination of

Petitions
In both jurisdictions, the proper forum for the determination of
presidential election petitions is the Supreme Court.163
In Uganda, presidential election petitions must be filed within
ten days after the declaration of the election results.164 For its part,
the Supreme Court must ‘inquire into and determine the petition
expeditiously’ and is obligated to declare its ‘findings’ not later
than thirty days from the date the petition is filed.165

162
The petitions, which were consolidated, were brought by Raila Odinga (runner-
up), Moses Kiarie Kuria, Denis Njue Itumbi, Florence Jematiah Sergon, Gladwell
Wathoni Otieno and Zahid Rajan.
163
Constitution of Uganda, Article 104 (1); Constitution of Kenya, Article 140 (1).
164
Constitution of Uganda, Article 104 (2).
165
Constitution of Uganda, Article 104 (3).
82 A Comparative Review of Presidential Election Court Decisions in East Africa

In Kenya, such petitions must be lodged within seven days after

the date of the declaration of the results of the election.166 The
Supreme Court of Kenya must ‘hear and determine’ the petition
within fourteen days after the petition is filed.167
In the past, both the Supreme Courts of Uganda and Kenya
have chosen to respect the time limits for the determination of
petitions in terms of declaring the findings, with the reasons for
such findings being delivered at a later date. As indicated above, in
Uganda this approach has been criticised by Justice Kanyeihamba,
who is of the opinion that the constitutional imperative with
respect to the declaration of findings requires that the Supreme
Court also provide reasons for its determination within the
constitutional time limits.168

Possible Findings and Orders by the Court

In Uganda, after duly inquiring into the petition, the Supreme
Court is empowered to: dismiss the petition; declare which
candidate was validly elected or to annul the election.169
In the Kenyan context, the options open to the Supreme Court
are not as specifically stated in the Constitution as they are under
the Ugandan Constitution. From a reading of Article 140 of
the Constitution of Kenya, however, it appears that the Kenyan
Supreme Court may only either dismiss the petition or invalidate
the election. More guidance is provided, in this respect, by the
Supreme Court (Presidential Election Petition) Rules of Kenya.170
Under Rule 22, at the conclusion of the hearing of an election
166
Constitution of Kenya, Article 140 (1).
167
Constitution of Kenya, Article 140 (2).
168
Rtd. Col. Dr Kizza Besigye v. Electoral Commission and Yoweri Kaguta Museveni,
Presidential Election Petition No.1 of 2006 (unreported), Judgment of Kanyeihamba
JSC at pp. 291-294.
169
Constitution of Uganda, Article 104 (5).
170
Legal Notice No.15.
 Legal Framework and Context of the Disputes over Presidential Elections 83

petition, the Supreme Court may make an order dismissing the

petition;171 declaring the election of the president-elect to be
valid or invalid;172 invalidating the declaration made by the IEBC
under Article 138(5) of the Constitution;173 order payment of
costs174 as well as any other order ‘as it may deem fit and just in
the circumstances’.175
It is unclear whether the final limb of Rule 22(1), which
empowers the Supreme Court to make any order as it may deem
fit and just in the circumstances, would allow that court, at the
conclusion of the hearing, to declare which candidate was validly
elected as the Ugandan court is allowed to do under Article 105(5)
(b) of the Uganda Constitution. This reading would, however, be
problematic in so far as it would constitute an expansion, through
subsidiary legislation, of the powers of the court as stipulated
under the Kenyan Constitution.

Burden and Standard of Proof

Burden of Proof
The courts in both petitions are in agreement that the burden
of proof rests upon the petitioner to prove his/her case to the
satisfaction of the court. There is, however, doubt whether the
burden shifts to the respondent in the course of the trial. In the
Canadian case of Opitz v. Wrzesnewskyj,176 the opinion was that a
petitioner who seeks to annul an election bears the legal burden of
proof throughout. The Nigerian case of Abubakar v. Yar’Adua177
also supports the proposition that the burden is on the petitioner
171
Rule 22 (1) (a).
172
Rule 22 (1) (b).
173
Rule 22 (1) (c).
174
Rule 22 (1) (d).
175
Rule 22 (1) (e).
176
2012 SCC 55
177
[2009] All FWLR (Pt.457)1 SC
84 A Comparative Review of Presidential Election Court Decisions in East Africa

to prove not only non-compliance with the election law, but also
that the non-compliance affected the results of the election. In the
Nigerian cases of Buhari v. Obasanjo,178 and Ibrahim v. Shagari,179
it was observed that the burden shifts when the petitioner has
adduced sufficient evidence to prove the allegations in the petition.
It then becomes the respondent’s responsibility to show that the
non-compliance is not such as would convince the court to annul
the election. Those cases were referred to with approval by the
Kenya court and it concluded:
There is, apparently, a common thread in the foregoing
comparative jurisprudence on burden of proof in election cases.
Its essence is that an electoral cause is established much in the
same way as a civil cause: the legal burden rests on the petitioner,
but on the effectiveness with which he or she discharges this,
the evidential burden keeps shifting. (Paragraph 195 of the
judgement)
It seems, however, that in applying the law, it is easy for the court to
shift the entire burden onto the petitioner. In the Kenya petition,
the court observed that because it is conceivable that the election
law can be infringed through incompetence, malpractices and
fraud attributable to the responsible agency, the burden must rest
on the petitioner to produce the necessary evidence in the first
place. The evidence of incompetence, malpractices, or fraud is
usually in the hands of the electoral body which is the first culprit
before court. It is unfair to place the burden on the petitioner
not only to fish out the evidence from the culprit’s pockets, but
also to ensure that the catch is sufficient to satisfy the judges that
the results have thereby been affected. It is fair and just that the
petitioner’s burden stops at producing credible evidence in proof
178
(2005) CLR 7(k)
179
(1985) LRC (Const) 1
 Legal Framework and Context of the Disputes over Presidential Elections 85

of the allegations, so that it shifts to the respondent to show why

the evidence should not lead to the nullification of the results.
Standard of Proof
As to the standard to which the initial burden must be discharged,
judicial opinions vary as to whether it is on a balance of
probabilities, or some standard higher than that. The two Zambian
cases cited before the Kenya court illustrate the divergences.
In Lewanika and Others v. Chiluba,180 it was observed that in
election disputes, the standard should be higher than a balance
of probabilities. Specifically, in presidential election disputes, the
allegations must be established to a fairly high degree of convincing
clarity. On the other hand, in Anderson Kambela Mazoka and
Others v. Levy Patrick Mwanawasa and Two Others,181 the Supreme
Court of Zambia was of the opinion that the standard of proof
may vary depending on the issues that are before the court. The
question that will remain canvassed for a long time is whether
there is a standard of proof between a “balance of probabilities”
and “beyond reasonable doubt”. The Supreme Court of Kenya
in the petition under review suggests that such a midway position
exists when it opts for a standard above a balance of probability,
though not as high as beyond-reasonable-doubt—save that this
would not affect the normal standards where criminal charges
linked to an election are in question.
It is difficult to visualise such a midway standard and how
it can be applied in practice. What can be gathered from the
judgments in many election petitions is that courts would exert a
high standard of proof in respect of electoral fraud, and a corrupt
or other illegal practice. This standard has never been clearly
elucidated beyond pointing out that it is higher than the balance
180
(1999) 1 LRC 138
181
(2005) Z.R 138
86 A Comparative Review of Presidential Election Court Decisions in East Africa

of probability. It can be argued that the midway position does not

exist, and if it does, it will not be applied in presidential election
petitions where proof beyond reasonable doubt appears to have
been adopted. This is evident in the judgment of the Supreme
Court of Uganda in the first presidential election petition. In
this petition, Justice Mulenga referred to Section 59(6) of the
Presidential Election Act by which the election of the president
can be annulled only if an alleged ground for annulment is proved
to the satisfaction of the court. He then made three poignant
statements:
• The standard of proof is that which leaves no reasonable
doubt in the court’s mind because a court is not satisfied
that a matter is proved if it retains reasonable doubt;
• Parliament set the high standard of proof in recognition of
the importance that every nation attaches to the election of
its President, and the realisation of the gravity of annulling
such an election;
• In arriving at its decision, the court has the onerous duty to
avoid upholding an illegitimate election result or annulling
an election result that reflects the free will of the majority of
the electorate.
The standard set appears to be proof beyond a reasonable doubt.
It was reiterated by Justice Mulenga in the petition under review
and also by the majority of the justices although couched in not
so clear terms. The court also adopted the same standard of proof
at least as far as the mathematical thresholds for a presidential
win are concerned.
Standard of Proof That Election Was Affected
That the petitioner has to prove the case beyond doubt is most
evident from the judicial opinions on the issue. In Kenya, the
list of irregularities in the data and information capture did not
 Legal Framework and Context of the Disputes over Presidential Elections 87

impress the court. The judges in Uganda had more elaborate

opinions on the degree of proof. Karokora JSC rejected the
invitation to assess the overall substantial effect on the basis of
irregularities in 189 out of about 19,786 polling stations in the
following terms:
I cannot base my decision on a mere speculation that the
irregularities were in more than 189 polling stations in order to
determine the substantial effect the wrongs/malpractices had on
the results of the election.
According to Mulenga JSC, “the result of the election” in the
context of the law means the votes secured by each candidate. The
petitioner must show that the winning candidate wrongly secured
a substantial number of votes and the unsuccessful candidate
wrongfully lost a substantial number of votes. The judicial stand
leads to peculiar difficulties in at least two instances, where the
petitioner has pleaded either disenfranchisement or intimidation.
In the Uganda petition, it was proved that at least 153,000 voters
did not vote because their names did not appear on the register.
The question though is, who gained and who lost by this omission?
That the answer cannot be clear cut was recognised by the same
judge when he said:
The difficult task, however, is to quantify the votes lost by the
petitioner by reason of disenfranchisement and the illicit votes
gained by the second respondent through the said malpractices,
in order to determine whether or not the losses and the gains
affected the results in a substantial manner.
In the end, Justice Mulenga concluded that there was no way the
court could apportion to any of the candidates the lost votes of ... the
153,000 votes or so disenfranchised.
By calling upon a candidate to shoulder the next to impossible
task of proving the number of the disenfranchised that would have
88 A Comparative Review of Presidential Election Court Decisions in East Africa

voted for him or her, the court disables itself from doing justice
in two respects. First, numbers of votes lost may never count. If
it was impossible to apportion 153,000 votes, it would also have
been impossible to apportion one million votes. But, what if it is
one million votes that divide the candidates? Secondly, the court
does not do justice in failing to take into account the interests
of voters that were denied the right to vote. If the magnitude of
disenfranchisement is great, should not that in itself be a reason
for annulling an election without having to inquire as to who lost
or gained from the omission?
On the effect of intimidation, Mulenga JSC further illustrates
the difficulties:
...there is bound to be invisible effect of intimidation which is
not seen or perceived. That, however, would not be reason for
the court readily to conclude that any amount of intimidation
affected the result. Nor conversely should it be ground for the
court to lightly dismiss evidence of intimidation because its effect
on the result is not established in figures and numbers. Ultimately,
what the court must determine judicially is whether, in view
of proved intimidation, the election result is a consequence of
intimidation or despite the intimidation, the result is a choice
made freely by the voters.
That is the crux of the matter. Number of votes gained or lost
cannot be the deciding factor in all instances. The court should
retain discretion to determine, on a balance of probabilities, that
due to the proved irregularities, the election was so affected that
it did not constitute a free and fair process.
The stance taken by both courts over the standard of proof is,
with due respect, not wholly tenable. First, it is not convincing
to suggest that proof to the satisfaction of the court implies proof
beyond a reasonable doubt. From the above discussion, although
 Legal Framework and Context of the Disputes over Presidential Elections 89

judicial opinion appears to favour a middle ground between proof

above the balance of probabilities and beyond reasonable doubt,
in fact the higher standard of beyond reasonable doubt seems to
be applied. The courts are daily deciding civil disputes on the basis
of the preponderance of evidence (weight of evidence required).
When a court decides on a balance of probabilities, surely it is
satisfied that the claimant has proved the issues before it. There
is no legal basis for extending a higher standard to an election
petition. Second, it is unfair not only to the petitioner, but also
to the entire electorate, to exact such a high burden. The state
with all its resources fails, in many cases, to prove that a crime has
been committed. How is an individual expected to prove beyond
a doubt, within the timeframes of the law, that an election has
been rigged? The burden in criminal trials was conceived to ensure
that an innocent person does not pay for a crime she/he never
committed. In election petitions, the possibility of conviction and
sentence does not exist. Finally, at least in Kenya, a candidate may
in future be required to prove beyond reasonable doubt that she/
he won the election, a very problematic situation.
It seems that the real reason behind a high standard of proof
is the reluctance to upset an apparent decision of the people and
to prevent the dangers of a political vacuum; the realisation of
the gravity of annulling such an election, as put across by Justice
Mulenga. But, there is a real danger that the high standard may
shield not only errors, but also deliberate electoral frauds. It may
lead to impunity, whereby candidates will cheat well knowing
that it will be difficult to prove their misdeeds.

Consequences of Annulment
In the Ugandan context, where an election is annulled, a fresh
election must be held within twenty days from the date of
90 A Comparative Review of Presidential Election Court Decisions in East Africa

the annulment.182 If, after such a new election is held, there is

another successful petition, then the presidential election must
be postponed, and upon the expiry of the term of the incumbent
president, the speaker must perform the functions of the office of
president until a new president is elected and assumes office.183
In Kenya, if the Supreme Court determines the election of the
president-elect to be invalid, a fresh election must be held within
sixty days after the determination.184 No guidance is provided
under Kenyan law as to what happens where the second election
is itself also successfully challenged. As such, it appears to be that
in Kenya, an invalid election must be repeated as many times
as required until such time as one is held which is either not
challenged, or whose challenge is dismissed by the Supreme Court.

Legal Obligations of the Electoral Commissions–Use of

Technology
A major cause of disputes over elections revolve around the
integrity of the voters’ register. To maintain a register of voters
serves two main purposes. One is to determine the persons eligible
and, therefore, entitled to vote. The register should, therefore, be
updated to ensure that only eligible and living persons are added
or maintained on it. If the register is not properly managed, it
could give rise to several malpractices. Eligible persons could be
disenfranchised by being irregularly omitted from the register.
Dead or fictitious voters (ghost voters) could appear on the
register. This could make it possible to perpetrate frauds such as
ballot stuffing; voting in the names of fictitious voters or voters
who have not turned up.

182
Constitution of Uganda, Article 104 (6).
183
Constitution of Uganda, Article 104 (7).
184
Article 140 (3).
 Legal Framework and Context of the Disputes over Presidential Elections 91

Technology is increasingly being employed to ensure the

integrity of the voters’ register and to prevent such malpractices.
For the 2013 Kenya elections, the IEBC applied or tried to apply
the Biometric Voters Registration (BVR) and the Electronic
Voter Identification Device (EVID). BVR is an information
system that enables election organisers to register and identify
millions of voters quickly and accurately. The system can be used
to identify personal features such as fingerprints, iris and voice.
Once the data on voters has been captured and processed, it can
be accessed through the EVID. A voter could, for example, offer
a fingerprint and the device will trace data concerning him to
determine whether he is the voter that he claims to be.
Transmission of provisional results from polling stations to a
tally centre, where the final tally is made, is another frequent cause
of election disputes. In the 2013 presidential election of Kenya,
an attempt to transmit provisional results electronically was made.
The process was managed through the use of cell phones and the
computer server at the national tally centre. Uganda is trying to
advance to the same level in the use of technology by employing
a BVR registration system. The previous elections were managed
through manual processes.
Notably, some of the disputes before the Supreme Court of
Kenya arose out of the failure of technology. The petitioners
alleged that the IEBC had failed to maintain a credible voters’
register. It so happened that the in many instances, the BVR and
EVID systems failed to function and were complimented by a
special register of voters that were unable to use the biometric
system, plus a manual (handwritten) register that was referred to
as the Green Book. This, the petitioners alleged, was responsible
for the varying official total of voters, both nationally and in
particular constituencies that were strongholds of the two main
92 A Comparative Review of Presidential Election Court Decisions in East Africa

candidates. The failure of the EVID, it was argued, prevented

millions of voters from having their votes counted accurately and
consequently inhibited a foolproof final tally of the votes.
It was also argued by the petitioners that it was a requirement of
the elections law (Elections Act 24 of 2011, Section 39 and Rule
82 of the Elections (General) Rules 2012) that provisional results
be transmitted electronically. Without electronic transmission,
there could not have been a valid basis for verification because
verification involves comparing the provisional with the final
results.
Interestingly, the Supreme Court agreed with the responses of
the respondents. First, it held that there was no obligation that the
Kenya presidential elections of 2013 be held solely by electronic
means. Secondly, it held that the results transmitted electronically
remain provisional. Verification of the results is still possible
by comparing the results transmitted by paper. The election
law seemed to support the court’s conclusion that electronic
management of the elections was, as yet, not compulsory.
However, circumstances showed that Kenya had gone out of its
way to employ technology in elections in order to avoid a lack
of transparency that led to the post-election violence of 2007. It
could, therefore, be argued that there was a legitimate expectation
that technology would be applied to subsequent elections in a
manner that enhanced their integrity. The expectation was that the
well organised referendum of 2010, to approve the constitution,
was a precursor to better transparency in the future.
For the court to condone the abandonment of the electronic
systems on the ground that some polling stations were dilapidated
and lacked electricity does not assist in building confidence in
measures that are designed to enhance transparency and integrity.
Why did the IEBC not provide for such foreseeable deficiencies?
 Legal Framework and Context of the Disputes over Presidential Elections 93

In fact, voters expect literally no solace from electoral technology

in view of the court’s dicta (court’s observation with respect to a
point of law) that such technology has been inherently undependable
and cannot as yet be considered a permanent or irreversible foundation
for conducting elections. It is not entirely true to argue, as the
court concluded, that the failure of technology did not affect the
integrity of the election. In the presidential election, the margin of
success out of the votes cast nationally, which according to Article
138(4)(a) of the Constitution is more than half of all votes cast in
the election, can be very low. Indeed, Uhuru Kenyatta was declared
the winner having polled 50.07% of the total votes cast. Under
the circumstances, any discrepancies in the votes cast compared
to the number of registered voters, which according to evidence
adduced, varied according to the register that was used, creates
a perception of tinkering with the results. The court ought to
have analysed the discrepancies to determine their effect, if at all,
on the result. It did not do so, which makes its conclusion that
the integrity of the register had no effect on the result, appear
presumptuous.

Summary and Conclusion

Important guarantees for the conduct of credible elections exist at
the international, regional and sub-regional levels. A number of
these protections are reflected in the constitutions and statutory
laws of Uganda and Kenya. In both jurisdictions, the Supreme
Court is entrusted with the mandate of resolving presidential
election disputes. Equally, the legal frameworks of both countries
provide guidance regarding the procedure of presenting and
adjudicating such disputes.
Significant questions have arisen, however, regarding the
standard of proof in presidential election cases. Although it now
94 A Comparative Review of Presidential Election Court Decisions in East Africa

appears settled that the burden of proof rests upon the petitioner to
establish their case, a divergence of opinion exists as to whether this
burden may be discharged by proof on a balance of probabilities
or on an even greater standard. While judicial opinion appears
to favour a middle ground, that is to say, proof above the balance
of probabilities, but not as high as beyond reasonable doubt, in
fact the higher standard of beyond reasonable doubt seems to be
applied.
In general, both written and case law appear to be founded on
appreciation of the high stakes involved in a presidential election
dispute, with the result that a high threshold stands in the way of
persons who seek to challenge the results of presidential elections.
 Chapter 5

Nature of Petitions and

Evidence Involved

Introduction
In electoral disputes, the core documents submitted by parties
to support their positions are the petition and the reply. The
petition is a statement of claim filed in court by a person who is
not satisfied with the results of an election. The petition states
the claimant’s particulars, plus the capacity in which the party is
approaching the court for relief. It also discloses the grounds upon
which the petitioner is asking the court to review the results and
the relief claimed. A wide range of reliefs are available, including
annulment of the election, declaring another candidate to be the
winner or ordering a recount in some constituencies. A reply is
filed by the person or persons who are named as being responsible
for the grounds upon which court is being requested to review
the elections, the respondents. The reply will normally refute
the grounds in the petition and request the court to uphold the
results. On serving the reply, the petitioner may file a rejoinder
(an answer to a reply) with the objective of showing that the
response has no merit.

95
96 A Comparative Review of Presidential Election Court Decisions in East Africa

Pleadings in Presidential Elections Petitions

In Kenya, The Supreme Court (Presidential Election Petition)
Rules 2013 provide that a petition may be filed to challenge
either the validity of an election or a declaration by the Electoral
Commission of a fresh election on the ground that no candidate
has been validly elected in a concluded election. The grounds
upon which the petition may be based are:
a. The validity of the conduct of the election;
b. The validity of the qualifications of a presidential
candidate;
c. The commission of an electoral offence; and
d. Any other ground that the court deems sufficient.
In Uganda the grounds are stated in Section 57(6) of The
Presidential Elections Act 2000 (Cap. 142):
a. Failure to conduct the election in accordance with the
principles laid down by the Act, if the non-compliance
affected the results in a substantial manner;
b. If the candidate did not have the requisite qualifications;
and
c. If an election offence under the Act was committed in
connection with the election by the candidate personally
or with the candidate’s knowledge and consent or approval.
Judging by the petitions so far filed in both Kenya and Uganda,
and the opinions of the courts in their judgments, a petitioner is
well advised to concentrate on attacking the validity of the conduct
of the election rather than an election offence. This is what the
petitioners in Kenya, possibly with knowledge of the authority
over the virtual impossibility of proving an offence, did. In the
Kenya Petition of 2013, the grounds inter alia were that:
 Nature of Petitions and Evidence Involved 97

a. The register of voters was so flawed that it could not be

said that there was a valid register;
b. The entire election process was fundamentally flawed; and
c. The tender for supplying electronic equipment was
awarded to an unqualified supplier leading to total failure
of the system, and hence, inaccuracies in counting and
tallying of the results.
The Uganda petition on the other hand, included allegations of
offences or illegal practices against candidate Museveni, namely
that he:
a. Made malicious statements against the petitioner;
b. Uttered statements containing sectarian words or
innuendos;
c. Used abusive, derogatory, insulting, and defamatory
statements against the petitioner; and
d. Bribed voters before and during elections by dishing out
domestic ware plus foods and beverages.
These were in addition to wide ranging allegations intended to
show that there was failure to conduct the election in compliance
with the law and that the failure affected the results in a substantial
manner. The allegations included a flawed register that led to
disenfranchisement of some voters, intimidation, multiple voting,
ballot stuffing, and illegal cancellation of some results. It may be
noted that under the law, an electoral offence or illegal practice,
if proved, leads to nullification of the results. Failure to conduct
the election in compliance with the law may lead to nullification
of the results, only where the court is satisfied that the failure
affected the results in a substantial manner.
98 A Comparative Review of Presidential Election Court Decisions in East Africa

Peculiarities of Pleadings in Presidential Election Petitions

One outcome of the decisions in presidential election petitions is
that a petitioner has an almost insurmountable burden of proving
a case against a winning candidate. The burden commences at
the phase of the pleadings as is most evident from the judgments
in the Uganda case. A high degree of preciseness is expected in
pleading to the three main grounds for invalidating an election,
which are that the election was not validly conducted, or, there was
non-compliance with the law, that the non-compliance affected
the results in a substantial manner, and or, that an election offence
was committed by a candidate personally or with his knowledge
and consent or approval. On the first ground, the element to be
pleaded is that there was non-compliance with the principles laid
down by the law. This is the easier part in that the petitioner needs
to identify and bring to the attention of court several infractions
of the principles implicit in the law. What are these principles?
They were stated by Odoki CJ in the first Besigye petition of 2001:
a. The election must be free and fair;
b. The election must be by universal adult suffrage which
underpins the right to register and vote;
c. The election must be conducted in accordance with the
law and procedure laid down by Parliament;
d. There must be transparency in the conduct of the election;
and
e. The results in the election must be based on the majority
of votes cast.
By pleading to the various infractions, including disenfranchisement
of voters, violence and intimidation, bribery, ballot stuffing, and
multiple voting, the petitioner in the Besigye petition brought
himself within the ambit of the ground. In the same way, the
petitioner in the Kenya case pleaded disenfranchisement of voters
 Nature of Petitions and Evidence Involved 99

due to gross errors in the tallying of results because of a flawed

register and faulty equipment. This was to show that the election
was not validly conducted.
The main problem about this ground is the likelihood that
the court will require the petitioner to disclose substantial non-
compliance with the law. The likelihood is implicit from the dicta
of the Uganda case. Substantial no-compliance is not required
by Uganda law. However, the judges cited with approval at least
two authorities which dealt with the point. One is Morgan v.
Simpson.185 The case is not entirely applicable to Uganda because
it interpreted a law which provided that an election would not be
invalidated if it was conducted substantially in accordance with
the law and that the acts or omissions committed did not affect
the result. To that extent, the dicta by the English court that “if
an election was conducted so badly that it was not substantially
within the law as to the elections, the election would be vitiated,
irrespective of whether the result was affected or not”, would not
be relevant to Uganda. Neither is it commanded by Kenya law,
where again the same case was cited with approval. Nevertheless,
the petitioner will be expected to list an impressive alley of
infringements. Alleged discrepancies in the total number of
registered voters appearing in the operational registers, failure of
the electronic system, mismatches between the results declared by
the IEBC and those reflected in county tallies, the total number
of registered voters, inflation of votes of the winning candidate,
and deflation of the votes of the losing candidate, plus inaccuracies
in tallying of results, did not impress the court. What the court
considered more relevant was the substantial compliance that the
respondents pleaded and proved.

185
[1975] 1Q.B. 151
100 A Comparative Review of Presidential Election Court Decisions in East Africa

While pleading substantial compliance may benefit the

respondent, pleadings by the petitioner, aimed at portraying
a global picture of unfairness or no-compliance, is unlikely
to advance the petitioner’s case. This unfortunate position of
restraint is best expressed in the words of Mulenga JSC in the
second Besigye petition. He said:
I am constrained to say at the outset that while from an ethical
point of view the result of an election which is marred by
non-compliance with provisions and principles of the electoral
law ought not to be upheld, to my understanding the law I
have to apply falls short of that standard ... Although this may
sound objectionable, in effect that law tolerates a degree of
no-compliance and prescribes a cut-off point at which non-
compliance invalidates an election.
The cut-off point is the “substantial effect” on the result of the
election. Since, according to the judge, the result of an election
is the number of votes secured by each candidate, the pleadings
should disclose the actual number of votes affected so as to show
that the winning candidate would not have won, but for the
non-compliance.
Pleadings in Respect of Election Offences
A point that was contested in the 2006 petition of Uganda was
whether the election offences of bribery and defamation were
adequately pleaded. It was argued that no sufficient particulars
were given to put the respondents on notice of what to defend. An
analogy with charges in criminal proceedings and plaints of civil
defamation was made. Section 24(5) of the Presidential Elections
Act prohibits a candidate, while campaigning, from making: false
statements knowing them to be false or, reckless as to their truth,
malicious statements, abusive, insulting or derogatory statements,
and those that ridicule other candidates. Pursuant to that law, the
 Nature of Petitions and Evidence Involved 101

petitioner listed several statements alleged to be abusive, malicious,

or defamatory. These included the winning candidate referring to
the petitioner as a false prophet, a liar, a person who works with
terrorists, unpatriotic and an opportunist. Odoki CJ noted two
aspects which, according to him made the pleading defective. One
is that the petitioner did not reproduce the exact words used by
the respondent. The second is that no labels were placed on the
statements. He concluded:
As a result, I do not know which statements were malicious,
abusive, insulting, derogatory, exaggeration, divisive, mudslinging,
defamatory, or insulting.... For instance in the statement that
the 2nd Respondent referred to him as a false prophet and the
opposition as night dancers, the Petitioner did not state whether
such statement is abusive, malicious, derogatory or defamatory.
Justice Odoki then accepted the submission of counsel for the
respondents that, just as in civil proceedings for defamation, the
petition should have set out verbatim the alleged defamatory
material and that, therefore, the charges in the petition were
defective. With the greatest of respect, the analogy with civil
proceedings for defamation is inappropriate. First, in the instant
election petition, there is a specific law prohibiting the making of
the categorised statements. All that the petitioner is required to do
is allege that the respondent has made the prohibited statements
and that the statements are malicious, abusive or derogatory, which
the petition did. Attaching labels to each of the statements is not
necessary. Second, in civil proceedings, the claimant is seeking
damages for injury as a result of an untrue statement. It is crucial
that the actual wording of the alleged defamatory material is set
out to notify the defendant of the case to be defended. In an
election petition on the other hand, compensation is not in issue.
What is in issue is the violation of a law. Third, there seems to be
102 A Comparative Review of Presidential Election Court Decisions in East Africa

a contradiction in the standards that were set by the learned Chief

Justice. While dealing with objections as to affidavits that were not
perfectly compliant, the judge applied the standard of substantial
justice as opposed to sticking to fine points of procedure. But, in
the case of electoral offences, the judge was easily persuaded to
the view that the pleading must be perfect. Finally, presidential
election disputes are determined under specific rules. The rules
do not permit the incorporation of other procedures, particularly,
those that place a more onerous burden on the parties.186 The
conclusion that there was restraint in finding an election offence,
because that would have led to annulling of the election, is almost
irresistible.
Katureebe JSC agreed with Justice Odoki that, at least, the
allegation of bribery should have contained particulars naming
the person that bribed and the one (a voter) that received the
bribe, plus the nature of the bribe. Referring to Section 64 of the
Presidential Elections Act, which defines the offence of bribery,
he reasoned that if proved, the offence can lead to prosecution
of offenders. It is therefore not enough for the petitioner or any
person to allege that agents gave money to voters. A high degree
of specificity is required. The agent must be named, the receiver
of the money must be named and he/she must be a voter. The
purpose of the money must be to influence his vote. Whereas
Section 64 of the Act refers to a “person” giving a bribe to another
“person” to influence his vote, it is an unduly strict interpretation
that requires the pleading to name the person who physically
handed over the gift or the person who received it. It is well known
that candidates move around handing the people assembled gifts
which the people distribute amongst themselves. The petition
186
Rules 22 of the Presidential Elections (Election Petition) Rules. See also Order 45
Rule 4 of the Civil Procedure Rules whereby the Rules enacted for specific causes
prevail over the CPR Rules.
 Nature of Petitions and Evidence Involved 103

pleaded that the 2nd respondent (candidate Museveni) bribed

voters just before and during elections by giving out tarpaulins,
saucepans, water containers, salt, sugar and beverages. It was
sufficient that the person alleged to have bribed was named. It
was also sufficient by way of pleadings to state that the gifts were
given to voters generally rather than to a named person, who must
be a voter. How can a petitioner determine conclusively that a
person is a voter?
The approach of Tsekooko JSC was more in accord with
substantial justice. According to him, the petition had to be read
together with the affidavits as well as the summary of evidence,
all of which named the candidate as the culprit. It was also his
view that the respondents could have sought further particulars
if they were in doubt.

Significant Peculiarities of Presidential Election

Petitions
The Timeframes
Both in Kenya and Uganda, the process of filing and hearing
petitions has two significant peculiarities, for example, the time-
frame within which they must be filed and heard, and the nature
of the evidence that must be adduced by both parties to the
dispute. First, is the time-frame. In Kenya, the petition must be
filed within 7 days after declaration of the presidential election
results. In Uganda, it is 10 days. In Kenya, the court must hear
and determine the petition within 14 days after filing it, while
in Uganda, the determination must not exceed 30 days.187 The
reasons for prescribing such a short period include the fact that:

187
Article 140(1) and (2), Constitution of Kenyan and Article 104(1) (2), Constitution
of Uganda.
104 A Comparative Review of Presidential Election Court Decisions in East Africa

a. The petition seeks to challenge what is prima facie, a

decision of the electorate which is the entire country.
The evidence must be readily available to be availed to
the court;
b. The duration of the petition in court is a period of political
uncertainty as there is a vacuum because of absence of
leadership in the country. The determination must be
concluded quickly in order to put an end to anxiety which
can elapse into political violence;
c. By reason of the importance of the election, the evidence
must be collected quickly while it is still fresh in the
minds of the people and utilised by the court as soon as
it is adduced.
Quickening the process of filing and ruling over the petition is,
therefore, in the public interest. But, the public interest in quick
disposal must be balanced against the public interest in fair
disposal of the dispute. In ordinary civil suits, the dispute must
have developed gradually in the course of the interactions of the
parties. By the time a decision is made to refer the civil dispute
to court, the material evidence is usually available. In election
disputes, the immediate causes of grievance occur during the
last stages of the campaigns, the casting of votes, plus counting,
transmission to, and final tally at the tally centre. Every candidate
and elector anticipates success. It is the declaration of failure that
will normally jolt an aggrieved party into reviewing the entire
process in search of infractions. If it is a parliamentary or local
election, the search for infractions is limited to the constituency.
In a presidential election dispute, a petitioner must search the
entire country. Numerous reports of infringements can originate
from every constituency, some with facts and others based on
rumours. In the 2006 elections of Uganda, there were over 200
 Nature of Petitions and Evidence Involved 105

constituencies and about 20,000 polling stations. Petitioners

must rummage through the reports from all those voting points
so as to select credible evidence. The main problem arising from
the timeframe, therefore, is that the period accorded to collect
the evidence and compile it into affidavits is too short to ensure
fairness. As experience has shown, the affidavits may be in
hundreds. In the first presidential petition of Dr Besigye Kizza v.
Museveni Yoweri Kaguta and Another (No 1 of 2001), the petitioner
compiled and filed 174 affidavits, while the respondents replied
with 133, a feat that could be accompanied by problems as will
appear below.
Affidavit Evidence
It is because of the short timeframe that evidence has to be by
affidavit. The court in Besigye Kizza v. Museveni (No. 1) lamented
that “this mode of trial may not be suitable for an important
and controversial case like this, where the court is denied the
opportunity to see the witnesses and to subject them to cross
examination, so that the court can properly and fairly assess the
credibility and veracity of ” those witnesses.188
Tsekooko JSC put it more succinctly in his judgment over the
2006 petition. He said:
I believe that the dictates of democratic governance require that a
dispute challenging the validity of a presidential election should
be heard and expeditiously determined within a practically
reasonable time. Such reasonable time should be such that parties
are able to assemble relevant evidence, lodge a petition and
answer thereto, do research and have ample time to present their
respective cases. Thereafter the court should have sufficient time
to adequately consider materials presented by the parties before

188
Judgment of Odoki CJ.
106 A Comparative Review of Presidential Election Court Decisions in East Africa

giving its judgment........The office of the President is the highest

in the land. So the contest for it court should be properly done...
On the part of the litigant on whom the burden lies, the problems
are enormous as pointed out above. In addition, the litigant has
to contend with judicial ambivalence as to whether the court may
make its own judgment on the strength of the evidence adduced
or it has to take into account numbers of votes to be satisfied
that the results were affected in a substantial manner. If numbers
are material, a petitioner would need a lot of time to comb every
polling station for numbers of votes affected by irregularities.
This is impossible within the time limits of the law. If a petitioner
had the capacity to comb every polling station for evidence, the
affidavits would be so many that the court would be unable to
analyse them sufficiently to accord justice.
The quality of the affidavits is another problem. In the Besigye
Kizza v. Museveni (No.1) petition, several affidavits were contested
as inadmissible. The main ground was that the affidavits were not
confined to facts within the knowledge of the deponents but on
hearsay. Another, quite technical ground of challenge was that
many affidavits did not distinguish facts, within the knowledge of
the deponent, from facts based on information obtained or even
the source of the information. Affidavits based on information
are admissible only in interlocutory proceedings (preliminary
applications made before the hearing of the case starts). It is fortunate
that the Supreme Court took a liberal view of defective affidavits.
The court noted that the affidavits had been prepared in a hurry
to comply with time limits, and thus ruled that it would cause
great injustice to reject all the affidavits that did not conform to
the rules of procedure. Only the affidavits containing pure hearsay
were rejected. Affidavits containing both facts and hearsay were
admitted, but the hearsay aspects ignored.189
189
Judgment of Odoki CJ.
 Nature of Petitions and Evidence Involved 107

In Besigye Kizza v. Museveni (No.2), again the quality of

affidavit evidence was questioned. The court again took notice
of the concerns expressed by counsel that the time available to
assemble the evidence was too short. It concluded that, while
shortage of time is not a good excuse for shoddy work, the
concerns were genuine and must be taken into account in assessing
the value of the evidence available.190
Sufficiency of the Evidence
In some instances, it may not be possible to garner all the credible
evidence until after the timeframe for closure of pleadings. The
dilemma of insufficient evidence was faced by Raila Odinga in
the Kenya petition. Raila commissioned a forensic investigation
over the quality of the technology sourced by the IEBC for the
purposes of the election. The results came when his petition
and supporting affidavits had been filed and replied to by the
respondents. The court rejected his attempt to file a supplementary
affidavit to incorporate the results of the investigation on the
ground that it was a disguised attempt to introduce new material
after closure of pleadings. This, according to the court, would
have conflicted the time bound and disciplined trial process. It
was an unfortunate verdict because the evidence might have cast
doubt over the evidence of the IEBC that electoral technology is
generally unreliable; evidence that led to the same conclusion by
the court. It could also have made some revelations as to the type
of the technology, the manner in which it was sourced, and the
capabilities of the human intervention. It is possible that evidence
of some manipulation of the results would have emerged. This
was extremely important in view of the fact that a strong ground
of the petition was that the IEBC sourced electronic equipment
from an unqualified supplier. But, the main point made here is that
190
Judgment of Tsekooko JSC.
108 A Comparative Review of Presidential Election Court Decisions in East Africa

the timeframe for presidential petitions constrains the capacity to

adduce all relevant evidence.
The rejection of Raila Oginga’s evidence brings into focus
the whole issue of expert evidence when it is not tested by cross-
examination. The courts are ill-suited to pass judgment over
the competence of experts.191 The Kenya court found a way of
avoiding an analysis of expert opinions. The Uganda court in
Besigye Kizza v. Museveni (No.2) had to deal with such evidence.
The petitioner commissioned Makerere University senior lecturer
of statistics to make in all constituencies, an analytical study of
the voters’ register, tally sheets, returning officers’ reports, and
the forms for declaring results. The expert witness testified that
results in some constituencies were manipulated by increasing
the final as compared to the provisional results, and that tally
sheets in many polling stations distorted the results. The affidavit
evidence of the expert on the respondents’ side cast doubt on the
accuracy of the findings. In summary, it was indicated that the
petitioner’s expert failed to disclose the sampling method used,
which should have been by “Simple Random Method”, and that
he did not secure sufficient materials to support his conclusions.
While it appeared that the petitioner’s analysis was not perfect, in
assessing its veracity the court would have been greatly aided by
evidence on cross-examination. Justice Mulenga was very much
alive to the problems in such a situation. He said:
In a highly politicised litigation such as this petition, however,
where nearly all material facts are in dispute and witnesses are
prone to exaggeration and even give false testimony, the court
ends up having to weigh the word of one side against the word
of the other side, without the benefit of testing the veracity of

191
J.H.Friednthal, “Discovery and Use of an Adverse Party’s Expert Information” (1962),
14 Stanford Law Review , p.455.
 Nature of Petitions and Evidence Involved 109

the testimony through examining, hearing and observing the

deponents.
The task is next to impossible in the case of expert evidence, over
which without proper guidance, the court lacks competence.
All the same, the court assumed competence, by siding with
the expert evidence from the respondents’ side, adopting it
wholesale as if there was no grain of research from the opposite
side. It is also surprising that the court accepted the submission
that the petitioner’s expert was biased because he used the words
“manipulated “and “fabricated”. These were mere words chosen to
express an opinion. Perhaps a better rationalisation of the court’s
stand is judicial prejudice against expert evidence. The attitude
is evident in the authority cited with approval to the effect that
expert witnesses are often partisan, ‘are reluctant to tell the whole
truth’ and ‘are too far prone to take upon themselves the duty of
deciding the questions in issue.’192

Summary and Conclusion

The remarkable similarity between Uganda’s 2006 and Kenya’s
2013 presidential election petitions is that the pleadings in both
sought to portray the election as not being free and fair due to failure
to comply with the law. While the Uganda petition concentrated
on pleading election malpractices such as intimidation of voters,
bribery, and disenfranchisement of voters, the main thrust of
the Kenya petition was a complaint over the electronic election
system whose failure was alleged to have affected the validity of
the voters’ register, the transmission and tally of the results. It is
evident from judicial opinion in both cases that a high degree of
preciseness is required to disclose the acts or omissions by either
the electoral commission or the candidates. Even greater precision
192
Sarkar on Evidence 14th edition 1993, Vol.1, p.820.
110 A Comparative Review of Presidential Election Court Decisions in East Africa

is expected of pleadings that are seeking to show that the acts or

omissions affected the results to the extent that a court would be
convinced to annul the most important decision of the people.
As against the high standard exacted by the court is the fact that
all litigants are constrained by the short time frames, plus the fact
that pleadings must be accompanied by affidavit evidence. The
Supreme Court of Uganda, unlike the Kenya court, has expressed
concern over the time frames and made recommendations which
are worth considering. The recommendations are that:
a. The period within which to file a petition should be
increased beyond the ten days;
b. Equally, the period within the court must determine the
petition should be revised upwards. According to Odoki
CJ, the period should be sixty days instead of thirty days
currently provided by the Constitution; and
c. Oral evidence should be allowed to supplement affidavit
evidence.
While there is merit in the recommendations, it is also necessary to
address the reasons behind the tight time frames; the perception of
political catastrophe if an elected president does not assume power
immediately upon the declaration of results. This has to do with
the degree of constitutionalism that enables some jurisdictions to
arrange an orderly succession without a threat of political collapse.
The constitution should provide for a reasonable period of at least
ninety days between the election and the assumption of power
by the president-elect. The period would enable the outgoing
president to wind up towards handing over power. Within this
period, an election dispute should be finalised.
 Chapter 6

Analysing the Process and

Outcomes in the Two Decisions

Introduction
In analysing the outcome of each petition, several concepts/
principles appear to have guided each court in arriving at a
particular decision and, consequently, the result of the cases. This
was based on the perception that the way each of these concepts
was interpreted was critical to the resolution of an issue. The
concepts are:
• Burden and standard of proof (in a presidential election
petitition);
• The meaning and role of substantive justice and procedural
justice;
• What constitutes substantial effect;
• Judicial restraint and judicial activism.
We have also made mention of what the judges opined as regards
areas of the election law(s) which need reform.

111
112 A Comparative Review of Presidential Election Court Decisions in East Africa

In Raila Odinga and Others v. the IEBC and Others (2013), the
issues as agreed on for trial were as follows:
a. Whether the 3rd and 4th respondents were validly elected
and declared as president-elect and deputy president-elect,
respectively in the presidential elections held on the 4th of
March, 2013.
b. Whether the presidential election held on March 4 th,
2013 was conducted in a free, fair, transparent and
credible manner in compliance with the provisions of the
Constitution and all relevant provisions of the law.
c. Whether the rejected votes ought to have been included
in determining the final tally of votes in favour of each of
the presidential-election candidates by the 2nd respondent.
The court held that although the conduct of the election could
not be said to have been perfect, the broad test that guided the
court in deciding whether it would “disturb” the outcome of the
presidential election was: “Did the petitioner clearly and decisively
show the conduct of the election to have been so devoid of merits,
and so distorted as not to reflect the expression of the people’s
electoral intent?”
In a unanimous decision, the Supreme Court of Kenya
disallowed the petition and upheld the presidential election results
as declared by the IEBC.
In Kizza Besigye v. Electoral Commission and Kaguta Museveni
(2006), the issues that were framed by the court were as follows:
1. Whether there was non-compliance with the provisions of
the Constitution, Presidential Elections Act and Electoral
Commission Act in the conduct of the 2006 presidential
election.
2. Whether the said election was not conducted in accordance
with principles laid down in the Constitution, Presidential
Elections Act and the Electoral Commission Act.
 Analysing the Process and Outcomes in the Two Decisions 113

3. Whether if either issue 1 or 2 or both, are answered in

the affirmative, such non-compliance with the said laws
and principles affected the results of the election in a
substantial manner.
4. Whether any illegal practices or electoral offences alleged
in the petition were committed by the 2nd respondent
personally, or by his agents with his knowledge and consent
or approval.
5. Whether the petitioner is entitled to the reliefs sought.
The following is a summary of the court’s decision:
Issue No.1: Court unanimously found that there was non-
compliance by the 1st respondent with the provisions of the
Constitution, Presidential Elections Act, and the Electoral
Commission Act in the conduct of the 2006 Presidential Elections
in the following instances:
a. in disenfranchisement of voters by deleting their names
from the voters register or denying them the right to vote,
and
b. in the counting and tallying of results.
Issue No. 2: Court unanimously found that there was non-
compliance with the principles laid down in the Constitution,
the Presidential Elections Act, and the Electoral Commission Act
in the following areas:
a. the principle of free and fair elections was compromised
by bribery and intimidation or violence in some areas of
the country (emphasis added).
b. the principles of equal suffrage, transparency of the vote
and secrecy of the ballot were undermined by multiple
voting and vote stuffing in some areas (emphasis added).
Issue No. 3: By a majority decision of four to three, court found
that it was not proved to its satisfaction that the failure to comply
114 A Comparative Review of Presidential Election Court Decisions in East Africa

with the provisions and principles, as found on the first and

second issues, affected the results of the presidential election in
a substantial manner.
Issue No. 4: By a majority decision of five to two, court found
that no illegal practice or any other offence was proved to the
satisfaction of the court to have been committed in connection
with the said election by the 2nd respondent, personally or by his
agents, with his knowledge and consent or approval.
In the result, by a majority decision of 4:3, the petition was
dismissed.

Proof in Presidential Election Petitions: Burden

of Proof and Standard of Proof
As indicated in Chapter 5, in the law of evidence, the burden of
proof is the imperative or duty on a party to produce or place
evidence before court, evidence that will shift the conclusion
away from the default position to one’s own position. It is the
necessity of affirmatively proving a fact in dispute on an issue
raised between parties in a cause. The concept is associated with
the Latin maxim simper necessitas probandi incumbit ei qui agit,
loosely translated to mean that the necessity of proof always lies
with the person who lays a charge or claim.193
On the other hand, the standard of proof refers to the level of
proof demanded or required to prove an allegation. In essence, it
is the quantum (the nature of evidence) of evidence that must be
presented before a court in order to prove that a fact exists. The
standard of proof required depends on the type of case before a
court. In common law, two standards of proof were recognised –
beyond reasonable doubt, which courts adopted in criminal trials
193
See Black’s Law Dictionary, 6th Edition, see also “Legal burden of proof ”, Wikipedia,
the free encyclopedia.
 Analysing the Process and Outcomes in the Two Decisions 115

and proof based on the balance of probabilities, which was applicable

in civil cases.194
For a case to have been proved on a balance of probabilities
means that the court has, after listening to the evidence submitted
by the parties, come to the conclusion that “it is more probable
than not” that the allegation is true. But, if the probabilities are
equal, then the burden has not been discharged.195
However, it is becoming common for courts to declare that,
where allegations of a criminal nature crop up in civil proceedings,
a third standard of proof is required. For example, in instances
where fraud is alleged in a civil suit, courts may require a higher
degree of probability than that required when asking if negligence
has been established. The court will not adopt so a high a degree
as would be required in a criminal trial, but will still require a
degree of probability which is commensurate with the occasion.196
In Chapter 4 of this Report, doubt was cast on whether a distinct
standard of proof between “a balance of probabilities,” and
“beyond a reasonable doubt,” exists. What follows is a look at
how the court sought to elaborate on that standard and to apply
it if at all.
Kenya
In the Raila Odinga petition, the Supreme Court adopted the
holding in the Ugandan election case of Col. Dr Kizza Besigye v.
Museveni Yoweri Kaguta and Electoral Commission, Election Petition
No. 1 of 2001 and held thus:
... the burden of proof in election petitions … lies on the
petitioner to prove his case to the satisfaction of the court.
194
See “Criminal or civil standard of proof ” at http://www.lawteacher.net/criminal-law/
essays/criminal-or-civil-stand (Accessed on 6th September 2014.)
195
See Phipson on Evidence, 1990, 4th Edition, Sweet and Maxwell.
196
See Denning J. in Miller v. Minister of Pensions [1947] 2 All E.R. 372, pp. 373-374.
116 A Comparative Review of Presidential Election Court Decisions in East Africa

The Kenyan Supreme Court held further that in an electoral cause,

the legal burden rests on the petitioner, but depending on the
effectiveness with which he or she discharges this, the evidential
burden keeps shifting and that nevertheless, it is ultimately the court
to determine whether a firm and unanswered case has been made.
Furthermore, the court held that, where a party alleges non-
conformity with the electoral law, the petitioner must not only
prove that there has been non-compliance with the law, but that
such failure of compliance did affect the validity of the elections.
It is on that basis that the respondent bears the burden of proving
the contrary.
The court supported its holding with the common law
approach in respect of alleged irregularity in the acts of public
bodies expressed in the Latin maxim: Omnia praesumuntur rite et
solemniter esse acta - all acts are presumed to have been done rightly
and regularly. The effect of this principle is that the petitioner
must adduce firm and credible evidence that the public authority
has departed from the prescriptions of the law.
Further still, the court held that while it is conceivable that the
law of elections can be infringed, especially through incompetence,
malpractices or fraud attributable to the responsible agency, the
person who alleges that such infringement has occurred must
produce the necessary evidence in the first place, and thereafter,
the evidential burden shifts and keeps shifting.
The question then is: did the petitioner fail to discharge the
burden of proof? Did the burden ever shift?
In court’s view, the petitioner ably proved that many
irregularities occurred during the capturing of data and
information during the registration process. The effect of this
finding is that indeed the petitioner succeeded in shifting the
assumption that all acts by the IEBC were done correctly, the
 Analysing the Process and Outcomes in the Two Decisions 117

petitioner successfully discharged the initial burden of proof.

Nevertheless, the court further held that the irregularities were not
so substantial as to affect the credibility of the electoral process.
It can, thus be concluded that in the opinion of the court, the
respondents’ response to the allegations was cogent enough to
shift back the evidential burden to the petitioner.
On the issue of standard of proof, the Supreme Court of
Kenya observed that the practice varies from one jurisdiction to
another. It then held that, consequently, the court should freely
determine its standard of proof on the basis of the principles of
the constitution, and of its concern to give fulfillment to the
safeguarded electoral rights. The court affirmed that as a public
body responsible for elections, the court is subject to the “national
values and principles of governance” declared in the Constitution
[Article 10] and judicial practice must not make it burdensome
to enforce the principles of properly-conducted elections which
give fulfillment to the right of franchise. But, at the same time,
a petitioner should be under obligation to discharge the initial
burden of proof before the respondents are invited to bear the
evidential burden. The threshold of proof should, in principle,
be above the balance of probability, though not as high as beyond
reasonable doubt, save that this would not affect the normal
standards, where criminal charges linked to an election, are in
question. In the case of data-specific electoral requirements (such
as those specified in Article 38(4) of the Constitution, for an
outright win in the presidential election), the party bearing the
legal burden of proof must discharge it beyond any reasonable
doubt.
In effect, the court established varying standards of proof
within the same case, depending on the allegation brought by
the petitioner.
118 A Comparative Review of Presidential Election Court Decisions in East Africa

Having held that the standard of proof was higher than that in
civil cases, it was no surprise that the court came to the conclusion
that although the conduct of the election could not be said to
have been perfect, the evidence adduced by the petitioner did
not decisively show the conduct of the election to have been so
devoid of merits and so distorted, as not to reflect the expression
of the people’s electoral intent. As a matter of fact, it was the first
respondent in possession of all the information relating to the
handling of the election process, but the petitioner was required
to collect incriminating evidence in a very limited time frame and
be armed with the “requisite” quantum (and perhaps quality) of
evidence to prove each relevant fact, which was next to impossible.
Uganda
In the 2006 Uganda presidential election petition, Justice Odoki
upheld what the Supreme Court in Kizza Besigye v. Yoweri Museveni
and Electoral Commission Petition No I of 2001 established as the
standard of proof required in a presidential election petition: the
burden of proof lies on the petitioner to prove his allegations and
that the standard of proof is above balance of probabilities, but
not beyond reasonable doubt.
Similarly, Justice Katureebe observed in his judgment that all
counsel agreed that the burden (sic) of proof is that set out in
Section 59(6) of the Presidential Elections Act, for example, that
proof must be to the satisfaction of the court. He then observed
that one has to determine as to what amounts to “satisfaction of
the court” and what sort of evidence would indeed satisfy the
court. Katureebe agreed with the Supreme Court’s earlier decision
in Kizza Besigye v. Yoweri Museveni and Electoral Commission
Petition No I of 2001, where Odoki CJ (as he then was) held
that “satisfaction of the court” means that the court may not be
 Analysing the Process and Outcomes in the Two Decisions 119

satisfied if it entertains a reasonable doubt. Justice Odoki had

further held that the decision will depend on the gravity of the
matter to be proved and that in a presidential election petition,
the standard of proof must be very high because the subject matter
is of critical importance to the welfare of the people of Uganda
and their democratic governance.
Having agreed with the above position, Justice Katureebe
added that the election of a president is a matter that affects the
life of the country as a whole. That if it is a fraudulent election, it
is not only the petitioner who has been aggrieved, but the whole
country is aggrieved in that a person they have not freely chosen
by their “will and consent” is to govern them. He stated further
that in his view, the evidence must be strong and cogent and must
satisfy the court without leaving any reasonable doubt that the
result declared by the 1st respondent is unsustainable given the
level of non-compliance with the act in the country as a whole.
Additionally, Justice Katureebe held that a decision to annul a
presidential election must be based on hard concrete evidence. If
court still entertains a doubt, it cannot annul the election. One
can, thus conclude that the standard set by Justice Katureebe was
proof beyond reasonable doubt.
Justice Katureebe also expounded on the “nature” of evidence
which would be expected by court and stated that the court
must take care that flimsy or exaggerated evidence is not allowed
to nullify a decision made by the people as a whole. And, that
one has to consider the nature of the alleged non-compliance,
the extent of occurrence in the country, and determine whether
it was so grave and so widespread that it must have affected the
majority of the voters.
Chapter Four of this publication noted the extremely difficult
task of collecting adequate evidence within the timeframes of the
120 A Comparative Review of Presidential Election Court Decisions in East Africa

law in order to prepare and file credible pleadings. It is reiterated

here that the standard set by the courts is impossible to achieve
on the side of the petitioner. The difficulty must have influenced
Justice Kanyeihamba when he held that:
… once the court finds that the provisions of the Constitution
had been extensively violated, court cannot go on to hold that
the violations had not affected the result in a substantial manner.
He opined that in holding that it was necessary to prove that the
illegalities which occurred affected the results in a substantial
manner, the majority on the panel:
… would be raising the standard of proof required for an
annulment of a presidential election far beyond the capabilities
of petitioners and the expectations of this nation (Our emphasis).
Justice Kanyeihamba said that:
… for a result of a presidential election to be flawed, the
petitioner need only produce sufficient evidence to prove that the
Constitution and laws of Uganda were violated in a substantial
way and this finding alone should lead the court to hold that
the results were affected in a substantial manner. There can be
no mathematical formula to be used by Justices of the Supreme
Court in reaching any decision on such petitions. There can
be no justification for the view that since these illegalities,
irregularities and malpractices were few and far in between, they
did not constitute enough evidence. Such justification would,
in my opinion, be fallacious. Judges cannot be expected to use
speculative or doubtful mathematical calculations on the evidence
presented and then turn round and say that their decision is an
accurate and acceptable one. The only credible, constitutional
and legitimate basis on which such a decision can be made is
the extent to which, deliberately or otherwise, the Constitution
and laws of Uganda were substantially violated. In my opinion,
 Analysing the Process and Outcomes in the Two Decisions 121

this should be the only concrete criterion upon which the court
should safely act.
Justice Kanyeihamba also observed that due to the rigid timelines
set by the law, the parties have little time in which to collect
evidence and materials in support or against the petition. In his
view, if the framers of the Constitution had intended the hearing
of presidential elections to be like a criminal trial and the court
to use mathematical numbers in their verdict:
… the Constitution would have made a provision for the
necessity of collecting all the results in the whole country and
giving more time to all parties to analyse the materials.
Based on the above, Justice Kanyeihamba concluded that once
the court finds that the provisions of the constitution had been
extensively violated, court must order for a re-election.
Justice Tsekooko stated that the standard of proof required to
nullify an election of a president after a presidential election is
proof to the satisfaction of the justices trying the petition, proof
so that the trial justices are sure that on the facts before them, one
party and not the other party, is entitled to judgment.
Justice Tsekooko went on to hold that whether a petitioner
has discharged the burden or not, will invariably depend on
the evidence adduced by the petitioner. And that in cases of
commission of an electoral offence or an illegal electoral practice,
where proof of such offence justifies nullification of the election
of a president, the burden of proof might be lighter than the
burden of proof that non-compliance with the provisions of the
Presidential Elections Act affected election results in a substantial
manner. Thus, proof of a single case of bribery would suffice for
the nullification of the election of a president, while proof that
non-compliance with the provisions of the Presidential Elections
122 A Comparative Review of Presidential Election Court Decisions in East Africa

Act had affected election results in a substantial manner required

evidence of many incidents.
The challenges that a petitioner in an election cause faces
in accessing evidence which is in the possession of the electoral
commissions is perhaps best reflected in the words of Justice
Kanyeihamba when he observed that the commission either
adamantly refused or was unable to comply with the request of
counsel for the petitioner and the directive of this court to produce
returning officers reports from electoral districts.

Procedural Justice versus Substantive Justice

Procedural law is the body of legal rules that govern the process
for determining the rights of parties, and the notion that fair
procedures are the best guarantee for fair outcomes is a popular
one.197 Procedural justice is, thus concerned with making and
implementing decisions according to fair processes.
However, it is now universally accepted that some degree of
flexibility in application of procedural rules may be necessary and
appropriate, if strict adherence to procedure leads to an apparent
injustice. In the Kenyan case of Githere v. Kimungu, Justice
Hancox stated that:
The relation of rules of practice to the administration of justice
is intended to be that of a handmaiden rather than a mistress
and that court should not be too far bound and tied by the
rules, which are intended as general rules of procedure, as to be
compelled to do that which will cause injustice in a particular
case.198
It is in line with this universal acknowledgement that modern
constitutions often provide that courts shall not give undue
197
Michelle M. Procedural Justice, at http://www.beyondintractability.org/essay/
procedural-justice
198
[1976-1985] E.A 101.
 Analysing the Process and Outcomes in the Two Decisions 123

regard to technicalities. (See Article 126(2) of the Constitution

of Uganda:
In adjudicating cases of both a civil and criminal nature, the
courts shall, subject to the law, apply the following principles
– (e) substantive justice shall be administered without undue
regard to technicalities.
Article 159(2)(d) of the Constitution of the Kenya provides:
In exercising judicial authority, the courts and tribunals shall
be guided by the following principles – ... (d) justice shall be
administered without undue regard to procedural technicalities....
Kenya
In the Kenyan case, the question of technicalities and substantive
justice came into play in regard to the rigid timelines. The
respondents asked court to strike out an affidavit filed by the
petitioner on the ground that it had been filed out of time and
without leave of court. The petitioner in reply urged court to be
guided by the constitutional obligation that courts should not
give undue regard to procedural technicalities.
The Supreme Court struck out the affidavit and held that
the import of Article 159 (2) (d) of the Constitution was
not to establish that procedural technicalities imposed by the
constitution or written law may be ignored. The court went on to
hold that the rigid time-frame for the resolution of presidential-
election disputes was not conceived in vain by the framers of the
constitution. That expeditious determination of petitions relating
to presidential elections is of essence because of the nature of
the dispute. As the electoral process had, in this case, led to the
declaration of a winner, but one who could not assume office
pending the determination of the petition, the protracted holding-
on of a president-elect as well as a retiring president, would in
our opinion, present a state of anticipation and uncertainty which
124 A Comparative Review of Presidential Election Court Decisions in East Africa

would not serve the public interest. Expedition in the resolution

of the dispute was all-important: if the court affirmed the election
of the president-elect, then the transition process would be
responsibly accomplished; and if the court annulled the election,
the electorate would pacifically attune itself to setting for fresh
elections – to be held within sixty days.
Notwithstanding such considerations of merit, which led the
court to exclude belatedly-introduced papers, counsel argued on
the basis of Article 159(2)(d) of the Constitution which, thus
provides: “In exercising judicial authority, the courts and tribunals
shall be guided by the following principles – ... (d) justice shall be
administered without undue regard to procedural technicalities....”
The essence of that provision is that a court of law should not allow
the prescriptions of procedure and form to trump the primary
object of dispensing substantive justice to the parties. It may be
argued, however, that the principle of merit bears no meaning
cast-in-stone and which suits all situations of dispute resolution;
that the time-lines for the lodgment of evidence, in a case such as
this, the scheme of which is well laid-out in the constitution are
material to the opportunity to accord the parties a fair hearing
and to dispose of the grievances in a judicial manner. Moreover,
the constitution, for purposes of interpretation, must be read
as one whole: and in this regard, the terms of Article 159(2)(d)
are not to be held to apply in a manner that ousts the provisions
of Article 140 as regards the fourteen-day limit within which a
petition challenging the election of a president is to be heard and
determined.
Another point in favour of a strict timeline is found in Kenya’s
Supreme Court link of procedural rules to the mandate of court
in issues political. It was emphasised that the court’s jurisdiction
 Analysing the Process and Outcomes in the Two Decisions 125

is not boundless in scope – it is circumscribed in extent and in

time. Court stated that:
A Petition contesting the election of a President does not set off
an open ended course of litigation without time frames. The
applicable time frame within which any challenge must inter
alia be determined was not only prescribed by the Constitution
but the requirement of such a disciplined trial framework fully
justifies the Court’s Order that the affidavit which had been filed
out of time be excluded from the proceedings.
That notwithstanding, it cannot be denied that the timelines set
in both instances hinder, rather than facilitate justice. They have
no objectives other than to perpetuate the perception of political
catastrophe if a president-elect does not assume office within days
of the declaration of the result. Yet, as was pointed out in Chapter
4 of this publication, alternatives exist.
Uganda
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.
Accordingly, the Presidential Elections (Election Petitions) Rules
2001, which provide for the procedure regulating the conduct
of a petition seeking annulment of a presidential election, were
made. Rule 14 deals with evidence at trial and 14 (1) provides
that: 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.
In line with the above regulation, each party gave evidence
by way of affidavits of deponents for each side. As a preliminary
matter, one counsel for the 2nd respondent raised a number of
objections to some of the affidavits. His objections were framed
on provisions of certain statutes.
126 A Comparative Review of Presidential Election Court Decisions in East Africa

Discussing whether the objections to the affidavits were mere

technicalities, Hon. Justice Katureebe held that although in line
with Article 126 of the Constitution, substantive justice must be
done without undue regard to technicalities, in a case of great
importance (such as a challenge to results of a presidential election)
and furthermore, a case in which evidence is required to be by
way of affidavit, it is important that the affidavits conform to the
law particularly as to substance. In other words, procedural justice
was critical to substantive justice.
Of further interest is the manner in which Justice Odoki
interpreted the concept of substantive justice in this petition.
Odoki opined that to annul an election on the basis that some
irregularities had occurred, without considering the mathematical
impact of the irregularities, would amount to the court having
undue regard to technicalities at the expense of substantial justice.
A better view is put by Justice Tsekooko in his dissenting
judgment, when he stated that in light of the fact that the time
available to prepare a case in a presidential election petition is very
limited, undue reliance on technicalities may lead to injustice.
He held:
… the trial of election petitions is governed by a special Act and
special rules of procedure ... These laws emphasise expeditious
disposal of a presidential election petition. Therefore, placing
undue reliance on technicalities can lead to unwarranted injustice.
In reference to affidavits submitted by the petitioners and
challenged by the respondents, Tsekooko opined that while
shortage of time within which parties were able to assemble
evidence is no good excuse for shoddy work, such complaints,
if genuine, must be taken into account in assessing the value of
evidence available. To him, striking out affidavits that did not
 Analysing the Process and Outcomes in the Two Decisions 127

conform to evidential rules would tantamount to undue regard

to technicalities at the expense of substantive justice.

Judicial Restraint versus Judicial Activism

What constitutes judicial restraint? Judicial restraint is a judicial
attitude of how a judge interprets the law. By the attitude, the
judges limit the exercise of their power. Proponents of restraint
argue that the judiciary should not interfere with the workings of
other branches of government. The view is inter alia based on the
fact that unlike what it is with the members of the legislature and
with the executive, judges do not get into office through elections/
popular vote. It is, thus opined by advocates of judicial restraint
that arising from the above, judges have no popular mandate to act
as policy makers. Judges should, thus defer to the decision of the
elected political branches. In the view of the promoters of restraint,
where a court is called upon to decide questions of constitutional
law, it is expected that a judge will go to great lengths to defer to
the legislature. It is further advanced that in regard to political
questions, courts should decline to rule in certain categories of
politically controversial cases.
It is argued by proponents of restraint that judicial activism
gives the judiciary too much power and enables a judge to settle
cases on grounds extrinsic to the constitution.
What constitutes judicial activism?
On the other hand, advocates of judicial activism argue that
this judicial approach is a type of judicial review which ensures
that the courts use powers granted to them to contribute to
the development of the law, to breathe life into abstract legal
concepts. This, it is argued, enables the judiciary to ensure that a
constitution is implemented. Advocates of judicial activism argue
128 A Comparative Review of Presidential Election Court Decisions in East Africa

that activism is a necessity when the other branches of government

do not act to bring about social change. Judicial activism seeks
to determine what is “just” and in the area of constitutional law,
judicial activists view the constitution as a living and dynamic
document which must necessarily be interpreted to meet the needs
of modern times. Proponents of activism opine that courts have
an obligation and the power to invalidate legislative or executive
decisions which in the view of court do not result in achieving
the purpose of the constitution.
Kenya
Learned counsel for the 2nd respondent, Ahmednasir Abdullahi,
called upon court to adopt restraint in its dealing with the
presidential-election matter, (judicial) restraint in considering
whether or not to nullify the process. He based his argument on
inter alia the fact that as many as 86% of the electorate – a high
turnout by any standards – voted in the election and the will of
the electorate, by which the 3rd respondent was entrusted with
the presidential mandate, ought to be upheld.
The learned counsel submitted that Kenya is at a sensitive stage
of establishing the institutions of democracy and constitutionalism,
and that this requires a certain degree of public confidence, which
for the judicial process is a treasure, which can only be nurtured
through restraint. Counsel recalled, as a comparative perspective,
that judicial restraint had similarly been urged in the American
case of Bush v. Al Gore199 in aid of the argument that even though
the Supreme Court has constitutional authority to invalidate a
presidential election, restraint was paramount since the issues
involved are essentially political in nature. Counsel invoked the
following passage in the American case:
199
531 U.S. (2000)
 Analysing the Process and Outcomes in the Two Decisions 129

None are more conscious of the vital limits on judicial authority

than are the members of this Court, and none stand more in
admiration of the Constitution’s design to leave the selection of
the President to the people...and to the political sphere. When
contending parties invoke the process of the courts, however, it
becomes our unsought responsibility to resolve the federal and
constitutional issues which the judicial system has been forced
to confront.
Counsel also cited the South African case of Minister of Health v.
Treatment Action Campaign200 in which it was, thus held:
Courts are ill-suited to adjudicate upon issues where court orders
could have multiple social and economic consequences for the
community. The Constitution contemplates rather a restrained
and focused role for the courts, namely, to require the state
to take measures to meet its constitutional obligations and to
subject the reasonableness of these measures to evaluation. Such
determination of reasonableness may in fact have budgetary
implications.... In this way the judicial, legislative and executive
functions achieve appropriate constitutional balance.
It was counsel’s argument that by such restraint, the court would
be contributing to national stability by preserving its “political
capital” for those rare occasions when, as history unfolds, it may
become appropriate to deploy it. And so, for day-to-day situations,
the Supreme Court ought to limit the “number of major principled
interventions” it can make.201
In agreement with the foregoing line of reasoning, counsel for
the 3rd respondent, submitted that: “what is before the Court is
a political contest”; “for all politicians, their business is to offer
themselves for elections; that of IEBC is to conduct elections;
200
2002 (5) SA 721 (CC).
201
See A.M.Bickel, ‘The Supreme Court, 1960 term — forward: the passive virtues,’
Harvard Law Review, Vol. 75 (1961), pp.40, 75.
130 A Comparative Review of Presidential Election Court Decisions in East Africa

that of the people is to decide.” Counsel submitted that in an

electoral contest such as the instant one, “the Court should have
a very limited role.”
In reaction to the call for restraint, the Supreme Court
responded as follows:
Without as yet deciding the main question in the contest, we
express the opinion that, in the special circumstances of this
case, an insightful judicial approach is essential. There may be
an unlimited number of ways in which such an approach is to
guide the Court. But the fundamental one, in our opinion, is
fidelity to the terms of the Constitution, and of such other law
as objectively reflects the intent and purpose of the Constitution.
In its unanimous decision, the court opined that the court was
“at the centre of the governance processes established under the
Constitution …” and that the judges were being called upon “to
declare their perception of their role in a fundamentally political-
cum- constitutional process.” The court emphasised the critical
importance of its role in the dispute by pointing to the fact that
“the subject of dispute is the most crucial agency of the executive
branch, namely the presidency” and that: “the new Constitution
will not be fully operational, without the presidential office being
duly filled, as provided by the Constitution and the ordinary law.”
The court stressed the constitutional principle that all powers
of governance emanate from the people, and that the people
may exercise their sovereign power directly or through their
democratically elected representatives. Court further pointed
out that:
What is now before the Court is a case in which the people,
as makers and main beneficiaries of the Constitution, have
employed the prescribed machinery, and cast their votes, in
 Analysing the Process and Outcomes in the Two Decisions 131

exercise of their political will to elect the leading member of the

Executive Branch.
Although the court emphasised its duty as “the ultimate judicial
forum, … to ensure that individuals accede to power … only in
compliance with the law regarding elections” and also declared
its readiness to pronounce on the validity of the occupancy of the
presidency, if there is any major breach of the electoral law, the
court seems to have been more guided by the fact that the office
of president was in a democratic system constituted strictly on
the basis of majoritarian expression through the popular vote.
Consequently, it stated that as a basic principle, it should not be
for the court to determine who comes to occupy the presidential
office.
It can, thus be safely stated that the Supreme Court was heavily
guided by the need for restraint. Thus, despite the fact that the
Court acknowledged that “… by no means can the conduct of
this election be said to have been perfect”, it went on to hold that
the broad test which would guide the court in deciding whether
to disturb the outcome of the presidential election was whether
the petitioner had clearly and decisively shown that the conduct
of the election was so devoid of merits, and so distorted, as not
to reflect the expression of the people’s electoral intent.
In answer to the question it had posed, court then said: “Firstly,
we have considered the extent to which any breach of the law
would have been occasioned in the several areas of operation, and
whether such would disclose reprehensible conduct having the
effect of negating the voters’ intent.”
Secondly, we have considered the evidence which came by
way of depositions, and which was vigorously canvassed by the
parties. It was then held: In summary, the evidence, in our opinion,
does not disclose any profound irregularity in the management
132 A Comparative Review of Presidential Election Court Decisions in East Africa

of the electoral process, nor does it gravely impeach the mode

of participation in the electoral process by any of the candidates
who offered himself or herself before the voting public. It is not
evident, on the facts of this case, that the candidate declared as
the president-elect had not obtained the basic vote-threshold
justifying his being declared as such.
Court, consequently, disallowed the petition and upheld the
presidential election results as declared by IEBC on March 9,
2013.
Uganda
The Kenya court’s attitude of restraint was veiled in technical
justifications that the election was held substantially in accordance
with the law. It was, therefore, less articulated than in the Ugandan
Supreme Court judgment. It is the dissenting judgments that
clearly preferred the opposite attitude.
In his dissenting judgment and before delving into the
issues framed by court, Justice Kanyeihamba acknowledged the
sensitivity of presidential election petitions thus:
I am fully aware and I was acutely mindful of the fact that to
hold that a Presidential election is in some way flawed, is not
an easy thing to contemplate, for to do so may lead to serious
consequences for both the winning candidate and the nation.
For this reason, every judge and every court will not make such
a decision lightly or without compelling evidence. …
Kanyeihamba nevertheless held that a decision to annul a
presidential election must be reached if after careful consideration
of substantial evidence, court finds that such a decision can be
amply justified. In his view, since court had unanimously found
that provisions of the supreme law of the land - the constitution
 Analysing the Process and Outcomes in the Two Decisions 133

had been flouted substantially, there was no alternative, but to

hold that the result of the election had been affected substantially.
Justice Kanyeihamba was of the view that having found that
there was non-compliance with the provisions of the Constitution,
Presidential Elections Act and the Electoral Commission Act, and
that there was non-compliance with the principles laid down in
the Constitution, the Presidential Elections Act, and the Electoral
Commission Act, it was imperative that issue No.3 be answered
in the affirmative also.
In his view “to decide otherwise would manifestly conflict with
the unanimous findings of the court on issues No.1 and 2.” Once
a court finds that the constitution, which is the supreme law of
the land and other laws have been flouted, that court must do its
bounden duty and grant the remedy sought – order the holding
of a fresh election.
He emphasised that constitutionality and legality, as provided
for in our constitution, are matters on which compromise
should never be permitted. And thus, once court finds that the
Constitution has been contravened, it must annul the election.
In the opinion of Justice Kanyeihamba:
to find otherwise would be tantamount to holding that whenever
any person or body is exercising powers derived from or delegated
by the Constitution, such exercise can result in measures or acts
which override the provisions of that same Constitution. A result
of that kind cannot have been contemplated by the makers of
the Uganda Constitution for this would be the effect if it were
to be held that the purpose and effect of section 59(6)(a) of the
Presidential Elections Act, 2005 is to direct the Supreme Court
to ignore the consequences of what this court found unanimously
in issues No.1 and 2 including violations and breaches of the
Constitution and laws of the country provided that they did not
134 A Comparative Review of Presidential Election Court Decisions in East Africa

affect the result in a substantial manner which holding would,

in my opinion, be based purely on conjecture and personal
inclinations of judges.
Referring to specific constitutional provisions, Justice Kanyeihamba
observed that the Constitution provides that elections must be
by universal adult suffrage and through a secret ballot and court
found that this provision was violated. He held that, consequently,
it should follow that even if the breach did not affect the result in
a substantial manner, the election must be nullified.
Furthermore, the Constitution provides in Article 103(1) that
the election of the President shall be by universal adult suffrage
through a secret ballot. This court found unanimously, that this
provision was violated. Justice Kanyeihamba, thus concluded:
… It matters not whether there was no additional evidence that
these violations which affected many areas of the country did
not spread to many more others. I have found no provision in
the Constitution nor was any cited before this Court other than
a similarly decided Presidential Election Petition No.1 of 2001,
that in any election where breaches of the Constitution and laws
have blatantly occurred, they should be ignored or tolerated by
the Supreme Court provided the Court is satisfied that those
breaches did not affect the result of that election in a substantial
manner. In my view, if there were such a law it would deserve
to be struck down because it would be existing as a claw back
provision from the provisions of the Constitution which is the
supreme law of this country.
Justice Kanyeihamba also made specific mention of Article 59 of
the Constitution, which provides that every citizen of Uganda of
eighteen years of age and above, has a right to vote, that he or she
has a duty to register as a voter for public elections and referenda,
and that the state shall take all necessary steps to ensure that all
 Analysing the Process and Outcomes in the Two Decisions 135

citizens qualified to vote, register and exercise their right to vote.

He then held that since “voting is not compulsory in this country
... this is a good reason why those who have taken the trouble to
be registered as voters should be given every encouragement and
assistance to vote.”
He noted that there is no provision in the constitution or in
any other law which states that violations of the constitution
should be ignored by court provided the breach did not affect
the result in a substantial manner, and went on to state that: “if
such a law exists, it should be struck down as a claw back to the
Constitution.”
Justice Kanyeihamba also referred to the fact that the unanimous
findings of the court indicated quite clearly that Article 1(4) of
the Constitution, which provides that all the people of Uganda
shall express their will and consent on who shall govern them
through regular, free and fair elections of their representatives,
was infringed in many instances, deliberately. Furthermore, there
were several other malpractices such as multiple voting, vote
stuffing, bribery, intimidation, violence and partisanship on the
part of officials and security forces, all supposed to be neutral in
an election which was conceived on the basis of multipartism.
The people’s right to express their will, as to who should govern
them through fair elections, was infringed in many instances.
Justice Kanyeihamba further held that constitutionality and
legality, as provided for in the constitution, are matters on which
compromise should never be permitted.
It is clear that Justice Kanyeihamba did not adopt the attitude
of judicial restraint, he did not subscribe to the view that in regard
to political questions, courts should decline to rule on certain
categories of politically controversial cases.
136 A Comparative Review of Presidential Election Court Decisions in East Africa

Kanyeihamba dissented from the majority because he could

not accept the view that a court can find that the Constitution
was violated, but decline to act. Kanyeihamba did not adopt the
view that a judge called upon to decide questions of constitutional
law must go to great lengths to defer to the legislature. Instead,
he held that Section 59(6)(a) of the Presidential Elections Act,
which “appears to have no other purpose than to force judges to
consider and reflect on possible political consequences of their
decision before making it”, is bad law.
Justice Tsekooko, too, did not subscribe to the notion of
restraint in cases political. Tsekooko held that judges have a
constitutional duty to annul an election, where there is clear
evidence of patent violations of the principles of free and fair
democratic elections such as the evidence of intimidation, threats
and violence or the violation of the principle of one-man-one-vote
or the violation of the principle of transparency. He held that in
such circumstances, a judge in a constitutional democracy would
not, by annulling an election, be interfering with a decision made
by voters who are given power to choose who is to govern them.
On the other hand, Justice Katureebe opined that court must
defer to the legislature and be guided by its intent. In his discussion
of the import of Section 59(6) (a) of the Presidential Elections
Act, which provides that the election of a president shall only be
annulled if non-compliance with the provisions of the Act had
affected the results in a substantial manner, Katureebe opined:
… the legislature must have addressed its mind to the great
importance to the life of the country of the election of a president
and decided that there must be grave reason to annul the
election. Indeed the framers of the Constitution had themselves
left it to Parliament (Article 104 (9)) to determine the grounds
upon which a Presidential Election may be nullified. … I do
 Analysing the Process and Outcomes in the Two Decisions 137

not believe that the framers of the Constitution or Parliament

expected that at all times there would be 100% compliance with
the provisions of the law and principles therein. I believe it was
reasonably envisaged that failures to comply with the law might
inevitably occur, but it is the extent to which these failures might
impact on the result of the election that was to be of concern if
the country was to have to undergo another period of campaigns,
expense, etc to have another election. It is a sort of proportionality
test that if an important exercise like a Presidential election had
to be nullified, the level of non-compliance had to be to a high
threshold.

What is substantial effect?

Uganda
Section 59(6) of the Presidential Elections Act provides the
grounds upon which a presidential election may be annulled as
follows:
59(6) 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
a. 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;
b. that the candidate was at the time of his or her election not
qualified or was disqualified for election as president; or
c. 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.
The requirement in Section 59(6)(a) of the Presidential Elections
Act is that to annul the election of a candidate as president, it
138 A Comparative Review of Presidential Election Court Decisions in East Africa

must be proved to the satisfaction of the court that the non-

compliance with the law and principles thereof affected the result
in a substantial manner.
In dealing with the concept of substantial effect, counsel for
the petitioner argued that non-compliance with the principles
of the law must in itself be taken to have affected the results in a
substantial manner.
In dealing with the same concept, Chief Justice Odoki did not
accept the argument of the petitioner. Odoki emphasised that the
burden of proof lies on the petitioner to satisfy the court on the
balance of probabilities that the non-compliance with the law
and principles affected the result of the election in a substantial
manner.
Odoki went on to hold that “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 defining the phrase “affected the result in a substantial
manner”, Justice Odoki cited with approval several authorities
from other jurisdictions indicated below: In Mbowe v. Eliufoo202,
where Georges CJ in the Court of Appeal of Tanzania said:
… 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”(Emphasis added).

202
(1967) EA 240, at p. 242.
 Analysing the Process and Outcomes in the Two Decisions 139

In Ibrahim v. Shagari & Others,203 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 it 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 Nigerian 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” (Emphasis added).
In Clare Eastern Division Case204 and Ruffle v. Rogers205 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 (Emphasis
added).
Odoki then stated that in defining the phrase substantial effect,
he was in agreement with the opinion of Grove J. in Hackney206
that:
203
(1985) LRC (Const) 1.
204
(1892) 4 QM & H 162, at p.162.
205
(1982) QB 1220.
206
(1874) XXX1 L.T. 69
140 A Comparative Review of Presidential Election Court Decisions in East Africa

… 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” (Emphasis added).
Justice Odoki went on to further state that, as was pointed out
in the Hackney case:
… 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” (Emphasis added).
Odoki also cited with approval Mulenga JSC’s explanation of the
phrase “affected the result of the election in a substantial manner”
in Presidential Election Petition No.1 of 2001, where it was stated:
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
 Analysing the Process and Outcomes in the Two Decisions 141

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 …
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.
Odoki also quoted with approval the holding of Karokora JSC
in Presidential Election Petition No.1 of 2001 that numbers are
important in considering the effect of the irregularities thus:
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?
… We obviously have to consider the numbers got from each
polling station and district.
Justice Odoki went on to emphatically hold:
Section 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.
Odoki also resorted to the doctrine of substantive justice, which
he rightly observed, was now part of constitutional jurisprudence
as clearly enshrined in Article 126(2) (e) of the Constitution.
142 A Comparative Review of Presidential Election Court Decisions in East Africa

He observed that courts are therefore enjoined to disregard

irregularities or errors unless they have caused substantial failure
of justice. He went on to hold that the principle of substantive
justice does not conflict with the principle of a free and fair
election and that the fundamental or primary consideration in an
election contest should be whether the will of the people has been
affected (Emphasis added).
Odoki then went on to further state:
In determining the effect of the irregularities on the result of
the election, the court should consider whether there has been
substantial compliance with the law and principles and the
nature, extent, degree and gravity of non-compliance. The court
should also consider whether the irregularities complained of
adversely affected the sanctity of the election. The court must
finally consider whether after taking all these factors into account the
winning majority would have been reduced in such a way as to put
the victory of the winning candidate in doubt (Emphasis added).
Justice Odoki quoted with approval a Supreme Court of Zambia
decision (Anderson Kambela Mazoka and 3 Others v. Levy Patrick
Mwanawasa and 3 Others,207 where it had considered whether the
defects in the presidential election had substantially affected the
result and where the Court had observed:
The bottom line, however, was whether given the national
character of the exercise where all the voters in the country formed
a single constituency, it can be said that the proven defects were
such that the majority of the voters were prevented from electing
the candidate whom they preferred or that the election was so
flawed that the defects seriously affected the result which could
no longer reasonably be said to represent the true will of the
majority of the voters.

207
Presidential Petition No. SCZ/01/02/03/2002
 Analysing the Process and Outcomes in the Two Decisions 143

The Zambian Supreme Court went on to hold as follows:

We are satisfied on the evidence before us that the elections,
while not being totally perfect as found and discussed, were
substantially in conformity with the law and practice. The few
partially-proved allegations are not indicative that the majority of
the voters were prevented from electing the candidate whom they
preferred or that the election was so flawed that the dereliction
of duty (by Electoral Commission) seriously affected the result
which could no longer reasonably be said to reflect the free choice
and free will of the majority of the voters.
Having quoted these court holdings, Justice Odoki “agreed with
the principles enunciated in the above decisions.” Having “found”
that the total number of those disenfranchised were about 150,000
and further that the petitioner had lost 962 votes as a result of
errors in the tallying process, Odoki held that the total number of
the said votes could not have affected the results in a substantial
manner given the margin of votes between the petitioner and the
2nd respondent which were over 1.5 million.
In other words, Odoki opined that to annul an election on the
basis that some irregularities had occurred, without considering
the mathematical impact of the irregularities, would amount to
the court having undue regard to technicalities, at the expense of
substantial justice. He was of the view that such an annulment
by the court would tantamount to the court usurping the will
of the people, the majority, in their determination of who their
leader should be.
Justice Katureebe held a similar view – the mathematical
impact of the non-compliance with the law or principles was of
essence and had to be specifically proved. He based his argument
on the fact that the (election) result is itself expressed in numbers.
It is based on the total number of votes cast in all the constituencies
144 A Comparative Review of Presidential Election Court Decisions in East Africa

and polling stations in the whole country. The constitution itself

provides for a mathematical formula as to how one wins the
presidential election.
Similarly, Justice Katureebe was also in agreement with
Justice Odoki on the need to prove that violation of the law had
substantial effect on the result. He opined that if one removed the
need to prove that the non-compliance had affected the results
in a substantial manner, it would mean that mere proof of any
non-compliance with the provisions of the Act and principles
therein, however slight this may be, would be sufficient to annul
a presidential election. It would mean that if there was non-
compliance in a single constituency or electoral district, but full
compliance with the law and principles in all other districts, the
presidential election would still be annulled.
Justice Katureebe stated that in his view, the legislature must
have addressed its mind to the great importance to the life of the
country of the election of a president and decided that there must
be grave reason to annul the election. That it could not be that
the framers of the constitution or parliament expected that at all
times there would be 100% compliance with the provisions of
the law and principles therein. That it was reasonably envisaged
that failures to comply with the law might inevitably occur, but
it is the extent to which these failures might impact on the result
of the election that was to be of concern if the country was to
have to undergo another period of campaigns, expense, etc. to
have another election. Katureebe referred to the said ‘rule’ as “a
proportionality test that if an important exercise like a presidential
election had to be nullified, the level of non-compliance had to be
to a high threshold.” He held that mere proof that principles of
the law had been violated, without proof that the said irregularities
had a substantial effect on the result of the election, would not
constitute grave enough reason to annul the election.
 Analysing the Process and Outcomes in the Two Decisions 145

According to Justice Katureebe, if it had been the intention

of the framers of the constitution that the slightest infringement
nullifies the election, then the Constitution would have said
so. Likewise, if parliament had wanted non-compliance per
se to be a ground for nullification of a presidential election it
should have said so. Katureebe concluded that the reason for
parliament not having legislated that the slightest infringement
nullifies the election was to avoid absurd and dire consequences.
In essence, Justice Katureebe concluded that for each and every
malpractice, irregularity, etc. proved, a question must follow: did
the irregularity have a substantial effect on the election result?
As earlier indicated, a question which must, however, be
considered is: in light of the very limited time granted to a person
dissatisfied with the results to gather the relevant data, how feasible
is it for such a person to collect enough data to satisfy statistical
imperatives of adequacy of evidence?
The opinions of Justices Odoki and Katureebe were in contrast
to the opinion of Justice Tsekooko. In the opinion of Tsekooko:
… 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.
In Tsekooko’s opinion, the question of affecting the result of an
election “in a substantial manner” was not clear cut, not obvious
because first it appears to depart from Article 104(5) which
provides that after due inquiry into a petition challenging a
presidential election, the Supreme Court may:
a. dismiss the petition; or
b. declare which candidate was validly elected; or
c. annul the election.
146 A Comparative Review of Presidential Election Court Decisions in East Africa

Tsekooko pointed out that the clause does not prescribe that
a decision of the Supreme Court shall be made on basis of
substantial effect and that furthermore:
… by requiring that the non-compliance with the principles
should affect the result of an election in a substantial manner,
members of the court are driven into applying subjective tests
which can even involve moral judgment.
Justice Tsekooko took issue with Section 59(6)(a) of the
Presidential Elections Act which in his view:
… appears to imply a licence to candidates to cheat or flout
the law but do it in such way that the cheating or flouting ought
not to be so much as to amount to creating a substantial effect
on the election result. The cheating must be such as can be
tolerated by the courts!!
Justice Tsekooko observed that the notion of “substantial manner”
could be a recognition of many things such as the argument
that an election exercise such as that of a president of a country
involves a lot of preparations by many actors and that preparation
for election should end soon or that the exercise even though it is
done once in every so many years, is costly and, therefore, some
violation of the law need not be treated as fatal. The notion could
be in support of the argument that a repeat of such an election
is bound to cost the country more resources. However, Justice
Tsekooko opined that as against the above possible arguments,
there are considerations of virtues of a free and fair democratic
election. If the principles enshrined in our laws, and especially
the constitution, are properly observed during a free and fair
democratic election, losing candidates and their supporters will
surely be satisfied and, therefore, allow the country to develop
peacefully. But, if a presidential election is won through fraud,
cheating or through the flouting of the law and the constitution,
 Analysing the Process and Outcomes in the Two Decisions 147

dissatisfied candidates and their followers may create instability

and disaffection among the population.
In other words, Tsekooko was of the view that court should
be exclusively guided by constitutional imperatives of a free and
fair election rather than reflecting on other factors such as the
economic consequences of a re-run.
The judge emphasised that allowing candidates licence to cheat,
even as little as cannot affect results, would render the election
exercise a farce, a play thing or frivolous. Indeed, tolerating,
cheating and fraud in elections can imply that holding elections
itself is not desirable or necessary and yet proper election should
give legitimacy to winners.
Justice Tsekooko then asked: “So how does a judge arrive at the
conclusion, as I did, that non-compliance affected the result in a
substantial manner? Or how does a judge arrive at the conclusion
that the non-compliance did not affect the election results in a
substantial manner?”
In Tsekooko’s opinion, before answering these questions, a
judge must evaluate and appraise all the evidence of both sides,
not only in relation to this issue, but also to the first two issues
in order to reach his own conclusions.
Like Justice Tsekooko, Justice Kanyeihamba took issue
with Section 59(6)(a) of the Presidential Elections Act. Justice
Kanyeihamba was of the opinion that for a petitioner to prove
that the results of a presidential election were affected in a
substantial manner, all that was needed was to show that both
the constitution (the supreme law of the land) and the laws of the
land were substantially violated. Once a court establishes this, it
must order for fresh elections.
Justice Kanyeihamba based his opinion on the fact that it was
the constitution which provides that the people will exercise their
148 A Comparative Review of Presidential Election Court Decisions in East Africa

power through elections on the one hand and it was also the same
constitution which obliges the same people to exercise that power
while complying with the constitution. Kanyeihamba emphasised
that the two principles are co-equal, neither is subordinate nor
superior to the other. Arising from this, Justice Kanyeihamba
opined that if in the process of people exercising their right,
some other constitutional principles are violated, the result of the
exercise of the power is necessarily null and void.
Once there was proof that a constitutional provision was
violated, it was not necessary to prove that such violations spread
to many more areas. For example; once court makes a finding that
the constitutional provision that the election of the president shall
be by universal adult suffrage had been flouted, or that in many
instances the people’s right to express their will as to who should
govern them had been infringed, it was not necessary to prove
that the violations occurred in many more areas in the country.
In Kanyeihamba’s opinion, Section 59(6)(a) has no purpose
other than to force judges to reflect on possible political
consequences of their decision before making them. In his view,
the effect of this is that the section creates a subjective test for
the manner in which judges may use their discretion in reaching
decisions that may result in controversial consequences. Justice
Kanyeihamba objected to such a law because ‘Constitutional
principles and rules should always be interpreted objectively and
impartially without regard to consequences … It would be an
error to construe constitutional provisions on the basis of what
that construction might lead to’.
Justice Kanyeihamba was of the opinion that in exercising its
discretion, a court should not decline to grant a remedy sought on
the basis of extraneous issues rather than issues which are judicial
and constitutional. He, thus concluded that Section 59(6)(a) is
 Analysing the Process and Outcomes in the Two Decisions 149

bad law and that since the constitution is the supreme law of the
land, parliament, which was empowered to make laws to amplify
a constitutional provision, had no authority to make laws which
are ultra vires (beyond) the same constitution. In other words,
Justice Kanyeihamba found the Section unconstitutional.
In the need to be guided by nothing other than constitutional
imperatives, Justice Kanyeihamba was squarely in agreement with
Justice Tsekooko concluding that Section 59 (6) (a) was bad law.
One can, thus conclude that in the opinion of the dissenting
judges, once it is proved that constitutional imperatives and
principles of electoral laws had been violated, an election loses
legitimacy and should be annulled. In their view, non-compliance
with the principles of the law must be taken to have affected the
results in a substantial manner.

The Need for Reform of Election Laws

Both the majority and the dissenting judgments in Uganda’s
presidential election petition called for reform of the law. Court
was of the view that parliament must take a fresh look at the
constitutional provisions regarding the handling of election
petitions. More specifically, the time frame within which a
dissatisfied candidate must file a petition and the time frame
within which the court must hear the petition, were in the opinion
of the judges, unreasonably short.
Court was also of the view that the requirement that evidence
at the hearing of the petition be presented by affidavit should be
reviewed to provide for the calling and examination of witnesses
instead of relying on affidavits, many of which may be false,
exaggerated or are made under suspicious circumstances and,
therefore, not safe to be relied upon without cross examination
of the deponents.
150 A Comparative Review of Presidential Election Court Decisions in East Africa

In the opinion of Kanyeihamba, by enacting Section 59(b)

(a) into the Presidential Elections Act, 2005, parliament created
a clog on Article 104(1) of the Constitution. In essence, Justice
Kanyeihamba found Section 59 (b)(a) unconstitutional.
In stark contrast to calls for law reform by Uganda’s Supreme
Court, the Supreme Court of Kenya applauded the limited time
frames within which any challenge to the elections must be filed,
served, heard and determined. Court justified the prescriptions
and referred to them as “a disciplined trial framework”. The court
stated that the rigid time frame for the resolution of presidential
election disputes were not conceived in vain and “expedition is
of essence … Expedition in the resolution of the dispute was all
important.” Court was of the view that “the timelines for the
lodgment of evidence were … most material to the opportunity
to accord the parties a fair hearing.” In other words, the time
frame could not be looked at as a mere technicality which had to
succumb to the need for substantive justice, the time frames were
in themselves an issue of justice.

Summary and Conclusion

In scrutinising the two presidential petitions, we followed the
meanings and importance which the judges assigned to three
major concepts: the burden and standard of proof; substantive
justice; substantial effect. We are convinced that in ascribing a
particular meaning to each of these concepts, the unanimous
decision of Kenya’s Supreme Court and the majority decision of
Uganda’s Supreme Court were heavily guided by the philosophy
that in a democracy, the election of a leader is the preserve
of the voting public; and that courts should not tamper with
results which reflect the expression of the populations’ electoral
intent. In this, both courts succumbed to the ideology of judicial
 Analysing the Process and Outcomes in the Two Decisions 151

restraint which emphasises the limited nature of the courts’ power.

Consequently, although the courts acknowledged the fact that the
conduct of the elections was glaringly far from perfect, they came
to the conclusion that in each of the elections, the deficiencies did
not warrant “disturbing” the outcome of the vote.
 Chapter 7

Conclusions and
Recommendations

Conclusions
As noted in Chapter 2, the histories of Uganda and Kenya have
both been marked by decades-long struggles for democracy, human
rights and good governance. These struggles have witnessed many
setbacks and false dawns. The violence that followed the 2007
election in Kenya, for instance, was in marked contrast to the
promise of the post-2002 elections. In Uganda, the post-1986
period and the promise of a fundamental change in the country’s
governance were dimmed by the adoption of a ‘no-party’ system
of governance and similarly problematic democratic indicators.
The legal framework in both jurisdictions in some ways reflects
an effort to transcend the chequered narratives above. They also
reflect established and evolving standards regarding the conduct
of credible elections, established at the international, regional and
sub-regional levels.
Although stronger normative and procedural guarantees of
credible elections, including effective resolution of presidential

152
 Conclusions and Recommendations 153

elections, have been established, important challenges remain both

within the law and in practice. In terms of the legal framework,
a key area of uncertainty relates to the standard of proof required
in presidential election disputes. It would appear that, in both
Uganda and Kenya, the standard of proof in these cases is above
the balance of probabilities, but below proof beyond reasonable
doubt. While the apex courts in both jurisdictions have paid lip-
service to this approach, in fact a higher standard – proof beyond
reasonable doubt – seems to be applied. This approach reflects a
tension between a concern to maintain the credibility of elections
on the one hand, and a consideration of the implications for
the peace and stability of the state if a presidential election is to
overturned on the other.
Indeed, as pointed out in Chapter Three, the credibility of
elections, including that of the means established to adjudicate
any disputes that might arise therefrom, depends in large measure
upon a complex interaction between various extra-legal actors
and stakeholders. In the Ugandan case, for example, the military
remains an important actor, for better or worse, in terms of the
conduct and management of elections. In both jurisdictions,
alongside the EMBs, a number of stakeholders, including the
legislature, the media, civil society, development partners and
other actors, have key roles to play in ensuring free and fair
elections which are a true reflection of the will of the population.
Seen from this perspective, an election might be irrevocably
tainted long before the first vote is cast and the judiciary might
be so emasculated that petitions against any elections are broadly
deemed to be exercised in futility.
As noted in Chapter 6 of the publication, judges faced with the
determination of presidential elections have struggled with finding
the right balance between fidelity to legal text and sensitivity to
154 A Comparative Review of Presidential Election Court Decisions in East Africa

extra-legal realities. They appear to have adopted an attitude

of restraint, placing a high standard of proof upon the person
who would challenge the outcome of presidential contests. On
the one hand, this approach reflects the gravity implicated by a
presidential election and is in keeping with a global judicial trend
not to lightly deal with such monumental political events. On the
other hand, especially in the context of young and transitional
democracies, this approach may send a message to would-be
petitioners that judicial solutions to high-stakes political disputes
are exercises in futility. Indeed, it is noteworthy that no challenge
was presented before the Ugandan judiciary following the 2011
presidential elections. This development does not bode well for
the development of a truly democratic tradition. It has even graver
implications for sustainable peace and stability.
In this chapter of the publication, therefore, following upon
the conclusions we have reached in the preceding chapters, we
suggest a number of recommendations aimed at enhancing the
framework for the effective management and adjudication of
presidential elections and disputes arising therefrom.

Recommendations
Extended Transitional Period and More Realistic
Adjudication Timelines
More reasonable time should be provided within the constitutions
of the jurisdictions and, by extension, the relevant statutory laws
to provide for a smooth transition following presidential elections.
Specifically, a transition period of at least 90 days should be
provided between the conclusion of the presidential election and
the assumption of power by the president-elect. This would allow
 Conclusions and Recommendations 155

sufficient time for more considered and credible presentation and

adjudication of presidential election disputes.
In this regard, at least 20 days should be allowed for aggrieved
persons to present petitions before the apex courts – as opposed
to the current 10 days (Uganda) and seven days (Kenya) allocated
for this. This would allow for better collection and presentation
of evidence required to establish a sound case, especially in light
of the high standard of proof that the courts have adopted in
such cases.
Related to this, the apex courts should be allowed at least 60
days within which to hear and determine presidential disputes.
This would similarly allow for a more deliberate consideration
of presidential election petitions, in keeping with the gravity and
significance of such disputes.

Presentation of Reasons at Time of Decision

Following from our first recommendation above, courts should
give full reasons for their decisions at the time such decisions are
rendered. This is more in keeping with the significant political
questions implicated by presidential election disputes, touching as
they do on the proper and legitimate acquisition of the supreme
executive power in the state.
The candidates, voters and other stakeholders are entitled to
know, not just the decision of the apex courts, but the reasons
for this determination as a means of achieving a final settlement
of the political dispute and start towards a healing of the wounds
incurred in the process.
Moreover, in the event that the election is annulled, the
reasons provided would permit the EMB and other stakeholders
to appreciate the deficiencies in the impugned election and to
take effective steps towards remedying the same so as to increase
156 A Comparative Review of Presidential Election Court Decisions in East Africa

the likelihood of holding an election that would pass the

constitutional muster.

Oral Evidence in Addition to Affidavit Evidence

Also in keeping with our first recommendation, parties to
the petition should be permitted to call witnesses and cross-
examine them. This would allow the apex courts to better assess
the credibility of evidence presented rather than solely rely on
affidavits, which are often of doubtful authorship and veracity.
This, too, would be in line with the importance of the stakes
involved in an election for the office of the president. The losing
candidate (s) and the persons who voted for them might also be
better able to accept the court’s decision if they feel it was reached
after a sufficiently rigorous process.

More Liberal Standing Requirements

In keeping with the recognition that the stakeholders in an election
are not just the candidates to the election, but include a wide range
of parties, the requirements of locus standi under the Ugandan
law should be more liberal. In particular, instead of the right to
challenge the results being the preserve of ‘any aggrieved candidate’
as is the case under Article 104 (1) of the Ugandan Constitution,
this right should be extended to ‘a person’ as provided under
Article 140 (1) of the 2010 Kenyan Constitution.

More Independent, Competent and Resourced EMBs

Uganda would also do well to adopt the model taken in Kenya,
Ghana, South Africa and a host of other countries which have
more credible EMBs. In particular, the Constitution and the
Electoral Commission Act should be amended to provide for a
 Conclusions and Recommendations 157

more independent and competent Electoral Commission in terms

both of commissioners and staff.
Provisions regarding qualifications of commissioners, mode of
their appointment and remuneration, tenure and related matters
should be amended to ensure that the electorate can have an EMB
that they can trust.
The requisite funds for the conduct and management of
elections should also be provided in good time to allow the
EMBs to adequately prepare for and execute their constitutional
mandates.

More Robust and Continuous Civic Education

Civic education, in addition to voter education, should be carried
out on a continuous basis as opposed to a few weeks or months
to the election, if at all.
It is important for the population to appreciate the importance
of exercising the right to vote as well as the important role they
can play in ensuring credible elections.

Demilitarising the Political Space

The problem of military involvement in politics remains a
significant hurdle in Uganda’s transition to a genuine and robust
democracy.
A process of de jure and de facto demilitarisation of the public
arena and political space is critical to ensuring a credible electoral
process.
It is also an important minimum requirement for the effective
exercise by the judiciary of its constitutional role as the final
arbiter in presidential election disputes. Where the judiciary is
forced to look over its shoulder or to consider extra-legal factors
in the determination of such high-stakes political disputes, the
158 A Comparative Review of Presidential Election Court Decisions in East Africa

authority of that body in the eyes of the political contestants will

be substantially diminished, which does not bode well for the
peace, security and stability of the state.

More Objective Neutral Actors

The media, development partners, election observers and related
stakeholders must retain a high standard of objectivity and
impartiality if they are to play a constructive role in ensuring
credible elections.
As noted in Chapter Three of this publication, the views of
election observers are more authoritative, where they are based
on rigorous methods of scientific enquiry rather than mere
speculation. Of course, important space remains for qualitative
observations and findings. However, as much as possible, these
should be combined with tools of analysis that leave little, if any,
room for impeachment on the basis of bias and partiality.

Timely Amendments of Legal Framework

Finally, important amendments to laws must be passed well before
the time of the election.
The judiciary’s hands are tied where they have to adjudicate
disputes based on laws which are inconsistent with the spirit of
popular democracy and good governance.
The EMB and other stakeholders are similarly handicapped,
where requisite amendments to the law are either not passed or
are enacted too late in the day to have any meaningful impact on
the quality of the electoral process.
It is, thus important for the legislature and the executive to
demonstrate an appropriate level of good faith by timely and
comprehensive law reform, in accordance with the greater public
purpose for which political power at all levels is exercised.
 Appendices

Appendix 1: Kenya Presidential Election Results 1992

National Results
Candidate Party Votes %
Daniel Arap Moi Kenya African 1,962,866 36.4
National Union
Kenneth Matiba Ford–Asili 1,404,266 26.0
Mwai Kibaki Democratic 1,050,617 19.5
Party
Jaramogi Oginga Ford–Kenya 944,197 17.5
Odinga
George Anyona Kenya National 15,393 0.3
Congress
John Harun Mwau PICK 6,449 0.1
David Mukaru Kenya Social 14,253 0.3
Ng’ang’a Congress
Total 5,398,037 100
Source: https://en.wikipedia.org/wiki/Kenyan_general_election,_1992

159
160 A Comparative Review of Presidential Election Court Decisions in East Africa

Appendix 2: Kenya Presidential Election Results 1997

National results
Candidate Party Votes %
Daniel arap Moi Kenya African 2,500,856 40.60
National Union
Mwai Kibaki Democratic Party 1,911,742 31.00
Raila Odinga National 667,886 10.80
Development Party
Kijana Wamalwa Ford-Kenya 505,704 8.20
Charity Ngilu Social Democratic 488,600 7.90
Party
Martin Shikuku Ford-Asili 36,302 0.60
Katama Mkangi Kenya National 23,484 0.39
Congress
George Anyona Kenya Social 16,294 0.27
Congress
Kimani wa Ford-People 8,564 0.14
Nyoike
Koigi wa Kenya National 7,463 0.12
Wamwere Democratic
Alliance
Munyua Waiyaki United Patriotic 6,103 0.10
Party of Kenya
Godfrey M’ Green African 4,555 0.07
Mwereria Party
 Appendices 161

Wangari Maathai Labour Party of 4,133 0.07

Kenya
Stephen Oludhe Independent 3,653 0.06
Economic Party
David Waweru Umma Patriotic 3,526 0.06
Ng’ethe Party of Kenya
Total 6,096,479 100
Source: https://en.wikipedia.org/wiki/Kenyan_general_
election,_1997#Presidential_election
162 A Comparative Review of Presidential Election Court Decisions in East Africa

Appendix 3: Uganda Presidential Election Results 1996

Candidate Votes %
Yoweri Museveni 4,428,119 74.2
Paul Ssemogerere 1,416,139 23.7
Kibirige Mayanja 123,290 2.1
Invalid/blank votes 196,130 -
Total 6,163,678 100
Source: Nohlen et al at https://en.wikipedia.org/wiki/Ugandan_
presidential_election,_1996
 Index

adjudication timelines 9 civil society organisations (csos)

affidavit evidence 9, 107, 108, 110 5, 31
affirmative action for women 24 colonial
African Charter on Democracy 75 legislatures 13
African Charter on Human and state 1, 2
Peoples’ Rights 11, 72 competitive party politics; see
Amin, Idi 20 multi-party politics 13
arbitrary interference 70 Constituent Assembly (CA) (Ugan-
armed rebellion 21 da) 21
ballot box stuffing 3 constitution abrogation (Uganda),
Besigye, Kizza iii, 3, 4, 5, 8, 22, 24, 1966 19
25, 37, 38, 40, 44, 82, 98, 100, constitutional
105, 106, 107, 108, 112, 115, democracy 136
118, 119 development 17
bicameral legislature 14 mandate 39, 43
biometric voter registration (BVR) order 75, 76
91 principles 148
Bomas draft 16 reform(s) 2
Buganda kingdom 18 constitution promulgation (Ugan-
burden of proof 6, 83, 84, 94, 114, da), 1995 21
116, 117, 118, 121, 138 Convention on the Rights of Per-
campaign expenditure 69 sons with Disabilities (CRPD)
Citizens Coalition for Electoral 65
Democracy in Uganda (CCE- credible elections 31, 39, 43, 44,
DU) 55 54, 55, 59, 60, 62, 93, 152, 157,
civic 158
civil war(s) 2 criminal charges 85, 117
dispute 104 decentralised clan system 12
education 9, 32, 54 defamatory
liberties 73 material 101
-military relations 77 statements 97
proceedings 101, 115 demilitarising political space 9,
rights 12 14, 157

163
164 A Comparative Review of Presidential Election Court Decisions in East Africa

democratic offences 8, 102, 113

constitutions 73 process 5, 14, 37, 41, 42, 51,
governance 12, 105, 119 52, 54, 56, 60, 69, 74,
Democratic Party (DP) (Kenya) 75, 79, 117, 124, 132,
15, 18, 159, 160 157, 158
derogatory statements 100 Electoral Commission of Kenya
development partners 5, 9, 31, 55, (ECK) 42
153, 158 Electronic Voter Identification
direct elections 19 Device (EVID) 91
disenfranchisement of voters; see equal suffrage 10, 11, 40, 66, 79,
election malpractices 40, 41, 113
98, 109, 113 ethnicity influence 4
disputed elections / election dis- ethno-based parties (Kenya) 17
putes 4, 5 evidential burden; see burden of
dispute settlement mechanism(s) proof 84, 116, 117
80 executive presidency 19
East African Community (EAC) extra
77 -constitutional changes 60
economic -legal realities 153
growth 24 federal state 2
transformation 1 fictitious/ghost voters 90
election FORD A (Asili) 15
annulment 7 FORD K (Kenya) 15
malpractices 109 forensic investigation 107
management bodies (EMBs) Forum for Democratic Change
4, 9 (FDC) 24
materials 80 Forum for the Restoration of De-
observation 52, 79 mocracy (FORD) 15
-related disputes 76 fourth estate (media) 56
rigging 23 fraudulent election 119
electoral free and fair elections vii, 10
cycle analysis 46 fundamental freedom 79
democracy 28, 48, 55 fundamentalist federalist (Bugan-
frauds 89 da) 22
geomorphology 22 global judicial trend 154
laws 8, 15, 39, 44, 46, 75, 149 good governance iv, 72, 78, 152, 158
 Index 165

Human Rights 3, 53, 64, 65, 67 Kenya African Democratic Union

Human Rights Network Uganda (KADU) 13
(HURINET-U) 53 Kenya African National Union
inbuilt rules 12 (KANU) 2, 13
incendiary message(s) 58 Kenyatta, Uhuru iii, 3, 16, 18, 38,
independence constitution (ug) 93
1962 2 Kibaki, Mwai 15, 17, 26, 38, 159,
Independent Electoral and Bound- 160
aries Commission (IEBC) Kiggundu, badru (Engineer) 30,
(Kenya) 42 39
individual merit 21, 22, 23 Kikuyu ethnic group (Kenya) 13
interim legislature (Uganda) 20 KY-UPC alliance 19
International Covenant on Civil labour movements 13
and Political Rights (ICCPR) language barriers 68
4, 65 Legislative Assembly 2
international election observers 5, liberal leanings 14
31 Lukiiko (Buganda’s legislature) 19
invalid votes 34 Luo ethnic groups (Kenya) 14
judicial malicious statements 97, 100
activism 8, 111, 127, 128 manipulative interference 69
opinion 89, 94, 109 military coup(s) 2
remedy(ies) 67 military rule / military regime,
restraint 8, 127, 128, 135, 151 1971 (Uganda) 20
tyranny (Kenya) 18 military struggle, 1981-5 (Uganda)
kabaka yekka (KY) king only 19 37
Kanyeihamba, George (Justice) 28, minimum age 67, 68
41, 42, 49, 50, 51, 57, 60, 61, minority
62, 63, 82, 120, 121, 122, 132, groups 13
133, 134, 135, 136, 147, 148, vote 16, 18
149, 150 Moi, Arap Daniel 159
Karokora (Justice) 28, 87, 141 monolithic political system(s) 13
Katureebe (Justice) 28, 45, 46, 47, monumental political events 154
48, 52, 53, 57, 61, 102, 118, movement system; see one-party
119, 126, 136, 144, 145 system 3
Katutsi Bosco (Justice) 44 mudslinging 101
166 A Comparative Review of Presidential Election Court Decisions in East Africa

Mulenga, (Justice) 28, 86, 87, 88, one-party

89, 100, 108, 140 state 2
multi system 2
-party democracy 2, 3, 29 oral evidence 9
party dispensation 62 Parallel Vote Tabulation (PVT) 52
multiple voting 40, 41, 97, 98, 113, paramount chieftaincy 12
135 parliamentary elections 3, 18
Museveni Yoweri Kaguta iii, 3, 8, partisan electoral commission(s)
22, 23, 24, 25, 40, 82, 97, 103, 21
105, 106, 107, 108, 112, 115, partisan harassment 61
118, 119, 162 periodic elections 11, 30, 66, 79
National Consultative Council political
(NCC) 20 capital 129
National Resistance Council catastrophe 110, 125
(NRC) (Uganda) 21 commissar 37
National Resistance Movement continuity 43
(NRM) 21 party activities 22
Ngilu Charity 15, 160 party affiliation 2
nomination dates 68 party financing 80
non-compliance (with law) 39, 53, Rights 4, 11, 65, 66, 67
62, 84, 96, 98, 100, 112, 113, uncertainty 104
116, 119, 121, 122, 133, 136, polling
137, 138, 139, 140, 141, 142, officials 41
144, 145, 146, 147, 149 stations 40, 41, 45, 52, 80, 87,
nullification of the results 85, 97 91, 92, 105, 108, 144
Obote, Milton Apollo 2, 19, 20, 22 popular uprisings 4
observer post-election
groups 52, 53 review 80
mission; see observer groups 54 violence, 2007 (Kenya) 2, 42,
Odinga, Raila iii, 3, 4, 8, 14, 15, 51, 92
17, 26, 38, 81, 107, 112, 115, power sharing 17
159, 160 pre-colonial societies 12
presidential
Odoki, Benjamin J. (chief justice) debate 59
28, 35, 40, 41, 48, 53, 54, 60, election disputes 85, 93, 102,
61, 98, 101, 102, 105, 106, 110, 150, 153, 154, 155,
118, 119, 126, 138, 140, 141, 157
142, 143, 144, 145
 Index 167

election petitions 5, 8, 28, 60, Ssemogerere, Paul 22, 23, 162

81, 86, 98, 109, 132, standard of proof 6, 8, 85, 86, 88,
155 89, 93, 111, 114, 115, 117, 118,
Elections vii, viii, 40, 48, 62, 119, 120, 121, 138, 150, 153,
64, 96, 100, 102, 112, 154, 155
113, 118, 122, 125, state
133, 136, 137, 138, controlled media 76
141, 146, 147, 150 machinery 2, 25
Elections act 2000 (Uganda) sub-regional law 64
96 subsidiary legislation 83
term limits 25 substantial justice 102, 103, 126,
principle of transparency 136 143
private broadcasters 57 substantive justice 8, 111, 123, 124,
procedural justice 8, 111, 126 126, 127, 142, 150
Procedural law 122 transitional democracies 154
public Tsekooko (Justice) 28, 103, 105,
affairs 11, 34, 66, 71, 79 107, 121, 126, 136, 145, 146,
interest litigation (Tanzania) 147, 149
32 Uganda Electoral Commission 30
quasi-federal structure(s) 14 Uganda Law Reform Commission
rebel activities 23 49
regional governments; see qua- Uganda National Liberation Front
si-federal structures 14 (UNLF) 20
Returning Officers 41 Uganda People’s Congress (UPC)
Sang Joshua Arap 58 18
secondary education 33 Uganda Peoples’ Defence Forces
secret ballot 11, 12, 66, 71, 79, 134 (UPDF) 61
self universal and equal suffrage 10,
-accounting institutions 45 11, 66
-rule 1 Universal Declaration of Human
semi-federal state 2 Rights (UDHR) 3, 65
separation of powers 3, 14, 19, 44, universal suffrage 11, 79
73 vernacular radio stations 58
social justice 78 vote buying 3
Southern African Development voter
Community (SADC) 79 apathy 39
special interest’ groups 60 bribery 34
168 A Comparative Review of Presidential Election Court Decisions in East Africa

education 38, 39, 41, 45, 47, vote-threshold 132

54, 56, 59, 80, 157 Wako, Amos 16
intimidation 42, 60 Wako draft (Kenya) 16
voters’ register(s) 73 women movements 13