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.”
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.
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