The Substantiality Test in Election Petitions in Uganda is unsound and illogical
The Substantiality Test in Election Petitions in Uganda is unsound and illogical because it requires a subjective assessment of conduct or actions or omissions whose effect is impossible to quantify. For example, how should court quantify the effect of parading military hardware in streets of Kampala a day before elections on the election results? How should court quantify the effect of using state resources by the incumbent on the election results?.
The substantially test is the statutory judicial test for setting aside an election under S. 61 (1) (a) of PEA. It provides that an election of a member of parliament shall be set aside where failure to comply with the electoral laws affected results in a substantial manner. It was interpreted by Supreme Court in the Col. (Red) Dr. Besigye Kizza v Museveni Yoweri Kaguta and The Electoral Commission. Per the Court’s decision, the alleged non compliance and failure is said to effect the results in a substantial manner if the evidence presented to the court during the trial of the Petition raises some significant probability that if it were not for the non- compliance and failure, the election could have been worn by a candidate other than the one who worn it.
In BUSINGE FRED POLICE v KITHENDE KALIBOGHA & ANOR HCEP NO. 05/2006 while citing the decision of Col (Rtd) Dr. Kiiza Besigye v Yoweri Kaguta Museveni, SCEP No. 01/2001, Odoki CJ stated;
“For court to decide whether or not the non-compliance affected the results in a substantial manner, it must be proved to its satisfaction on a balance of probabilities that the non-compliance was calculated to really influence the result in a significant manner. In order to assess the effect, court has to evaluate the whole process of election to determine how it affected the results 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”. See Odoki C.J in Col (Rtd) Dr. Besigye Kiiza (supra at page 159)
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