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 quantification 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)
Quantifiability refers to the ability to refer to or describe something in terms of numbers, rather than in terms of qualitative descriptions. Since not everything is quantifiable, some times we have to carry out a qualitative analysis. One of the strengths of qualitative research is its ability to explain processes and patterns of human behavior that can be difficult to quantify. Phenomena such as experiences, attitudes, and behaviors can be complex to capture accurately and quantitatively. In contrast, a qualitative approach allows participants themselves to explain how, why, or what they were thinking, feeling, and experiencing at a particular time or during an event of interest. Quantifying qualitative data certainly is possible, but at its core, qualitative data is looking for themes and patterns that can be difficult to quantify, and it is essential to ensure that the context and narrative of qualitative work are not lost by trying to quantify something that is not meant to be quantified.
Quality of the election.
A free and fair election is one where conditions are such that every voter is free to cast their vote for whichever candidate they want without intimidation or oppression or bribery and with free, timely and quick assess to the ballot paper and where each candidate is able to freely compaign and reach voters and every vote is counted transparently and openly. It encompasses access to the ballot paper, free compaigns, transparent counting and tabulation of votes and reporting of results. Per Musoke Kibuka, J in Winnie Babihuga v Masiko Winnie Komuhangi and others H.C.T.00-CV-EPA-0004 of 2001 a free and fair election is one conducted under conditions that enable the voter to cast his or her vote as he or she wishes, purely on his or her own accord. The conditions must be such as enable the voter to cast his or her vote for whoever candidate he or she wishes to vote for. There must be no obstruction, harassment, hindrance, threats or intimidation. There must be no bribery to induce the voter one way or the other. There must be no conditions creating fear in the minds of voters for persecution or victimization after the elections have taken place.” How should court quantify the subjective qualities of a good election such as display of heavily armed army personnel near and within to the vicinity of polling stations? How should court quantify the effect of brutalization of opposition supporters? How should court quantify the effect of state agencies taking the side of the incumbent party during the election period?
Use of state resources
The incumbent in Uganda has access to state resources including finances, the police, the army and the public service bureaucracy. The President of Uganda can siphon state resources to finance his campaign and that of his allies. There is no oversight to prevent such an outcome and more than twenty trillion of the national budget are lost through corruption every year in Uganda. Some of this money is siphoned and diverted to fund the incumbent party. There is no way the opposition in Uganda can account for this access to public funds because combating corruption is the job of the government in power. There is no way to prove that the incumbent government plunders public resources to finance its campaigns and stay in power. While the opposition is constrained by finances the ruling party has so much money that it can pay for anything and bribe voters and opponents.
The incumbent party also has control and access to the police, army and the public service bureaucracy. The ruling party often manipulates these institutions to do its bidding including oppressing and frustrating the opposition. For example opposition Presidential candidate was arrested and allegedly tortured by security forces during the campaigns just before the president election in 2021. So how should court quantify the effect of the use of state resources by the incumbent party?
Access to the ballot paper
Per the EC in 2021, 17,782,594 Ugandans registered to vote but only ten million Ugandans voted in the election. This is a voter turnout of less than 60 percent. This means seven million Ugandans failed to access the ballot paper either due to barriers imposed by the conditions in which the election was run or by disillusionment with the outcome of the election. How should court quantify the effects of barriers to accessing the ballot paper such denial of early voting or voting by mail to avoid long lines and congestion? What percentage of the votes should be awarded to the affected candidate where ballot materials are dispatched late to opposition strong holds.
By 2026, there were 21,649,608 registered voters in Uganda and only 7,946,772 (36.7%) of Ugandans voted President Yoweri Kaguta Tibihaburwa Museveni in the 2026 Presidential Elections. This means that 13,702,836 (63.3%) Ugandans that were eligible to vote either didn’t vote for Yoweri Kaguta Tibihaburwa Museveni or failed to vote due to lack of confidence in the election or barriers to voting imposed by the government of Yoweri Kaguta Tibihaburwa Museveni. How much weight should court attach to the barriers to voting and the loss of confidence in the credibility of the election that prevent many people from participating in the election?
Ability to compaign freely
How should court quantify the effect of blocking opposition candidates from compaigning in some parts of the country? How should court quantify the effect of denial of access to radio and televisions to the opposition candidates that want to compaign on radio and television? How much weight should be attached to the actions of security agencies in interrupting and disorganizing the events organized by opposition candidates?.
Incumbent influence over the electoral commission
The body in charge of running the election is manned and controlled by individuals chosen by the very person that is campaigning to retain the presidential office. The members of the electoral commission are appointed by the president and his party. They are beholden to him and chosen with the mandate to entrench the ruling party in power. In most instances they are party loyalists whose appointment the opposition has or had no influence over. Their decisions and actions often favor the incumbent party and they reject all measures that are meant to ensure transparency. How should court quantify the effect of the incumbent control of the electoral commission on the election? In the banana republic of Uganda where jobs are a rare commodity like Gold, where the rule of law is none existent and where corruption is glorified, how can anyone expect the Electoral Commission to decide against their boss and patron. It’s almost laughable.
Read More
- Ideal Amendments that should be included in the Magistrates Courts Amendment Bill 2026 of Uganda
- President Yoweri Kaguta Tibihaburwa Museveni is a minority President voted by only 7,946,772 (36.7%) out of 21,649,608 eligible Ugandan voters in the 2026 Presidential Elections
- Four years of IGG Beti Kamya drowned the Inspectorate of Government (IG) deeper into oblivion and irrelevancy but it Can be redeemed
- The Proposal to Make Magistrates Grade Ones Chief Magistrates is an efficient use of resources that will improve service delivery in Uganda
- If Magistrates Courts in Uganda are less competent and more prone to corruption does it mean that the poor deserve inferior justice to the rich.
