General Elections Are a Process, Not a Single Event—So Too Must Be Election Petitions: An Analysis of the High Court’s Decision in Nambi Faridah Kigongo v Luyimbazi Elias Nalukoola & Anor

By

Tumuhirwe Paula

🔎 Introduction

Elections are more than just a polling day exercise, they are the heartbeat of representative democracy. As enshrined in Article 1(3) and (4) of the 1995 Constitution of Uganda (as amended), all political power originates from the people, who delegate authority to those elected in regular, free, and fair elections:

“All power and authority of Government and its organs derive from this Constitution, which in turn derives its authority from the people who consent to be governed in accordance with this Constitution.” “The people shall express their will and consent on who shall govern them and how they should be governed, through regular, free and fair elections of their representatives or through referenda.”

This foundational principle highlights that electoral processes are not merely administrative rituals but central mechanisms for legitimizing governance. It follows, then, that both elections and the petitions that challenge them must be treated with the utmost seriousness, as safeguards of constitutional democracy.

The Supreme Court of Uganda has long emphasized this in its jurisprudence. In the landmark case of Kabatsi v Kawooya & Another (Election Petition Appeal No. 25 of 2007) [2008] UGSC 16, the Court clearly stated:

“General elections are a process and not one event. The process covers a much wider scope than the appointment and removal of election officials. It involves a series of events.”

Further elaborating on this, the Court held:

“It is settled that an election is not an event but an elaborate process consisting of several stages which climax into voting, counting and tallying of votes, and final declaration of the winner by gazettement. As such, when faced with an Election Petition, the court has to analyse and evaluate the entire electoral process and not restrict itself to the polling day activities only.”

This broader lens requires courts to consider not only what happens on election day but also pre-election activities such as voter education, candidate nomination, campaigning, and the conduct of election officials.

This view has been echoed across the region. In Raila Odinga & Another v Uhuru Kenyatta & Others (Election Petition No. 1 of 2017, Supreme Court of Kenya), Kenya’s highest court annulled a presidential election, emphasising procedural fairness across the entire process.

Similarly, in Union of India v Association of Democratic Reforms (Supreme Court of India, Case No. 104 of 2002), the Indian Supreme Court stressed the importance of transparency and integrity at all stages of the electoral cycle.

In this legal and constitutional context, the High Court of Uganda has recently provided further guidance on a crucial question: under what circumstances should an election be nullified when the misconduct in question stems from the personal actions of the candidate versus the actions of their agents?

The rest of this essay explores this legal development, drawing on the High Court’s reasoning in Nambi Faridah Kigongo v Luyimbazi Elias Nalukoola & Electoral Commission [2025] UGHCCD 58. The judgment affirms not only the court's commitment to electoral integrity but also refines the threshold for attributing liability to candidates based on the conduct of their campaign agents.

⚖️ Latest Clarification by the High Court: Nambi Faridah Kigongo v Luyimbazi Elias Nalukoola & Electoral Commission

📍 Case: Election Petition No. 1 of 2025 [2025] UGHCCD 58

📅 Date of Judgment: 26 May 2025

🧑🏽‍⚖️ Before: Hon. Justice Benard Namanya

The High Court has reaffirmed these principles in the recent case of Nambi Faridah Kigongo v Luyimbazi Elias Nalukoola & Electoral Commission. The Electoral Commission conducted a by-election for Kawempe Division North Constituency on 13 March 2025. Luyimbazi Elias was declared the winner, while Nambi Faridah Kigongo emerged as the runner-up. The results were published in the Uganda Gazette, Vol. CXVIII No. 24, on 24 March 2025.

🧾 Petitioner’s Grievances

The petitioner alleged:

1. Non-compliance with the Parliamentary Elections Act (Cap 141);

2. Engagement in illegal practices and election offences by the respondent and his agents;

3. That these irregularities materially affected the election outcome.

🔍 Preliminary Objections

1. The respondent challenged the petitioner’s affidavit as hearsay. The Court found it admissible since sources were disclosed and supporting affidavits attached.

2. The petitioner argued that one of the respondent’s affidavits was obtained through bribery and predated the response to the petition. The Court overruled this objection.

3. An affidavit by Nabakooza was challenged under the Oaths Act (Cap 21), but the Court found no fatal defect.

🧩 Key Legal Issues

1. Whether any illegal practice or offence was committed by the respondent personally or with his knowledge, consent, or approval;

2. Whether there was non-compliance with the Parliamentary Elections Act and whether this materially affected the results;

3. Whether any remedies were available.

📖 Court’s Analysis & Findings

✅ Illegal Practices

1. Obstruction of voters (s. 90): Proven, but no evidence that the respondent consented or had knowledge.

2. Obstruction of Electoral Commission officials (s. 102): Not proven.

3. Bribery (s. 87): The petitioner failed to prove that the respondent or his agents, with his consent, distributed soap, salt, and tea leaves to voters.

4. Campaigning on election day (ss. 63 & 100): Proven against the respondent's agents but not linked to his consent, except for one instance. The Court found that the respondent himself campaigned on election day at Mbago Primary School, contravening section 100. This was held to be an election offence warranting nullification.

   
   

📌 Non-Compliance with Electoral Law

The disenfranchisement of 16,640 voters across 14 polling stations was found to have materially affected the result. The Court held that this undermined the margin of victory and the legitimacy of the election.

⚖️ Remedies

Under sections 80 and 82 of the Parliamentary Elections Act, the Court has power to:

1. Nullify an election for illegal practices committed by the candidate or with their consent;

2. Set aside results if statutory non-compliance substantially affected the outcome;

3. Declare the seat vacant and order a fresh election.

📢 Final Judgment

The High Court nullified the election of Luyimbazi Elias Nalukoola for two main reasons:

1. The disenfranchisement of over 16,000 voters, including the petitioner;

2. The respondent personally engaged in illegal campaigning on election day.

   
   

🧾 Court Orders

1. The election of Luyimbazi Elias is set aside;

2. The Kawempe Division North seat is declared vacant;

3. The Electoral Commission must conduct a fresh by-election;

4. Each party is to bear its own costs.

   
   

🧭 Commentary

The High Court’s decision presents a nuanced precedent on two fronts.

✅ The Positive Outlook

The judgment fortifies the principle that elections are intricate processes requiring integrity at every stage. By grounding the nullification on both personal misconduct and large-scale disenfranchisement, the Court signaled that democratic legitimacy demands procedural fidelity and personal accountability.

The decision’s timeliness is commendable and aligns with the Constitutional Court’s recent position in Galandi v Attorney General (Constitutional Petition 4 of 2021) [2025] UGCC 2.

In Galandi, Justice Moses Kazi Bwe Kawumi held that the failure to resolve an election appeal in a timely manner violated the right of citizens to be represented by a duly qualified leader, reinforcing that electoral disputes must be adjudicated expeditiously to preserve democratic legitimacy.

⚠️ The Unresolved Concerns

However, one might question whether this decision fully aligns with the spirit of Kabatsi v Kawooya. While the Court rightly scrutinized election-day misconduct, it appeared to sidestep broader systemic issues, such as pre-election violence and administrative failures by the Electoral Commission.

If elections are truly processes, then failure to hold the EC accountable for lapses before polling day risks narrowing the scope of judicial scrutiny to the "during and after," rather than embracing the entire electoral cycle.

📌 Final Thoughts

The judgment in Nambi Faridah Kigongo affirms a significant principle: both individual conduct and institutional processes are subject to legal accountability. Yet, it also invites critical reflection on whether our courts are consistently upholding that standard across the full spectrum of the electoral process.