Tuesday, March 11, 2008


Why different medicine for same sickness?
Legal scholars have come to question why different judges, applying similar legal tests, have in some cases made ' strange' decisions to settle presidential and parliamentary election petitions.

The qualitative and quantitative tests which are applied by courts to determine election petitions are now a subject of intense debate in legal circles and the wider public. The two tests, for easy understanding, refer to the quality and numbers respectively in determining whether an election was held in accordance with the provisions of the law.

Ironically though, the two tests have been employed with varying degrees when determining election petitions. For instance in the last two presidential election petitions between Dr Kizza Besigye on the one hand and the Electoral Commission and President Yoweri Museveni on the other, the Supreme Court applied the quantitative test (numbers) to rule that the malpractices couldn't have affected the out come of the elections in a substantial manner.

The argument was that candidate Museveni had won the election by so big a margin that even if his opponent, Dr Besigye were to claim his stolen or missed votes- say due to multiple voting or intimidation of his supporters- still he could not overcome his rival’s lead.

However, the lower courts ( High Court) while determining the parliamentary and other local council election petitions, and this is the paradox, have differed and strictly applied the qualitative test ( the quality or fairness) of an election. To the lower court the issue is whether the election is held according to the provisions of the law. By applying the qualitative test therefore, the courts are not bothered by the game of numbers.

They are only interested in the parties alleging fraud to prove that the law was flouted to the extent that the election was nor free and fair and is thus a nullity. This was the case in the Abdu Katuntu vs Kirunda Kivejinja parliamentary petition.

Court held that there were proved election malpractices to warrant fresh elections. In the 2006 presidential petition, Justice George W. Kanyeihamba, was one of the three dissenting judges that did not subscribe to the application of the quantitative test to determine whether a party's chances of winning an election should be settled by looking at the numbers of votes stolen or gained rather than the circumstances and application of the law in the management of an election.

While warning himself about the ramifications of annulling a presidential election due to malpractices, he said that such a decision must be reached after careful consideration of substantial evidence that would amply justify the decision.

In Kanyeihamba’s opinion, there was sufficient evidence presented in the petition to enable the Supreme Court to decide that the results of the presidential election of 2006 had been fatally affected by the irregularities and illegalities.

He criticised section 59 (6) of the Presidential Elections Act, which in effect propagates for the quantitative test and provides that the courts of law must be satisfied that the result was not affected in a substantial manner as to warrant nullification.

The learned judge reasoned that the provision to use his words, “was to transport the judge(s) from the heights of legality and impartiality to the deep valleys of personal inclinations and political judgment.”

He further stated that the provision appears to have been inserted in the Act to militate against decisions which arguably may be correct and constitutional but might appear to be awkward and unacceptable because of their possible consequences to the nation.

And this is why circumventing the natural rules and principles of law whether legislative or otherwise is simply not a good idea for our democracy. This practice also sets a bad precedent and makes politicians and their supporters alike, to discard the judicial system in settling election disputes. Kenya is a good example.

In fact, Justice Kanyeihamba referred to the decision of the Supreme Court of South Africa in the case of Speaker of the National Assembly vs De Like 1999, where the court stated that the constitution is the ultimate source of all lawful authority.

That no parliament , however bona fide or eminent its membership, no president, however formidable be his reputation or scholarship and no official, however efficient or well meaning, can make any law or perform any act which is not sanctioned by the constitution.

That any citizen adversely affected by any decree, order or action of any official or body which is not properly authorised by the constitution is entitled to the protection of the court. It's been argued in this column earlier that there is need for the peace loving citizens of this country to re-examine our electoral laws to avoid bloodshed in future elections.

The writer is a journalist and advocate

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