Just days to the February 18 elections, Uganda’s courts of law face a dual challenge over their capacity to determine the substantiality of electoral malpractices in order to uphold or nullify the outcome of the elections.

However, civil society groups say the polls are already tainted by several abuses, the basis on which two petitions have already been filed at the High Court against the Electoral Commission.

In addition, with intimidation, confrontations and breach of electoral laws by different camps during the campaign period, it is almost certain that one of the losing contenders in the presidential race will go to the Supreme Court to challenge the outcome.

As in the 2001 and 2006 petitions by Kizza Besigye, it is the Supreme Court’s interpretation of one word, rather than the grounds of the petition, that provides the basis of the ruling one way or the other.

In an interview with The EastAfrican, Chief Justice Bart Katureebe concurs that the word “substantial” is subjective, and compared it to the challenge judges face in criminal matters where a case must be proven beyond reasonable doubt. Yet, in some cases, the Supreme Court bench has failed to agree in those cases.

No formula

“It would have been so much easier for the court to say once the malpractice is proved, nullify the elections. There is no formula on what is reasonable doubt. The court must look at the body of evidence and nature of malpractices and determine the case. The discretion has been left to the court,” said Justice Katureebe, adding that it would make work easier if parliament amended the law. 

However, last week at a training for judges and magistrates on how to handle election petitions, Court of Appeal Judge Remmy Kasule said the standard of proof for all election petitions should be uniform for all elective positions; instead, a higher burden of proof is placed on presidential election petitions.

The judge questioned why a petitioner in a presidential election must prove to the satisfaction of the court that the non-conformity with electoral laws substantially affected the results, yet decisions in parliamentary election petitions are taken based on a balance of probabilities.

This is what worries civil society groups represented by Citizens Election Observer Network (CEON), who say they are armed with evidence of high level violence, lack of voter education and voter bribery, but it is not clear whether the courts will determine them sufficient grounds for the presidential election to be nullified.

The justices of the Supreme Court in 2001 and 2006 declined to nullify the presidential election on the basis that non-compliance with an electoral law did not substantially affect the outcome.

The Presidential Elections Act says the election of a candidate as president shall only be annulled if non-compliance with the provisions of the Act has been proved; if the court is satisfied that the election was not conducted in accordance with the principles laid down in the law and that non-compliance affected the results of the election in a substantial manner.