The republic of uganda in the supreme court of uganda at kampala

“(6) The election of a candidate as President shall only be annulled on any of the following grounds if proved to the satisfaction of the court –

3. 
   that an illegal practice or any offence under this Act was committed in connection with the election by the candidate personally or with his or her knowledge and consent or approval.”
   

There are two preliminary points that I wish to dispose of in respect of the scope of illegal practices as a ground for nullifying a presidential election. The first point is to emphasise that the three grounds specified in Section 6 are independent of each other. The effect of this is, in my judgment, that there is no requirement to prove that the illegal practice in Section 6 (c) affected the result in a substantial manner. There seems to have been a deliberate intention by Parliament to ensure that candidates conduct themselves in an exemplary manner during the elections and that the commission of illegal practices or election offences makes them unfit to hold the office for which they seek election. But is seems to me there is no bar to such a candidate standing again in a subsequent election. Whether any trivial illegal practice committed by a candidate should be sufficient to nullify an otherwise free and fair election where the illegal practice has not affected the election in a substantial manner, is a matter for future consideration.

The second point is about the principle of agency. Normally a principal or master is liable for the actions of his agent or servant committed in the Course of his employment either with actual, implied or apparent authority. It seems that this is the position under English electoral law.

Mr. Walubiri submitted that a candidate is liable for the actions of the agent done within the scope of his employment even when the agent was strictly prohibited from doing a particular act. He relied in Case Law 2nd edn. 1924 and Vol. 20 of the Digest: 1982 (Butterworth’s) para 646 page 72 where the concept of implied consent is discussed.

He contended that if a candidate employed a candidate who bribed, the candidate would lose his seat. Referring to Section 65 (c) of the Act, he argued that knowledge could be inferred from the fact of appointment and the fact that the agent was acting to solicit votes for the 1st Respondent.

Mr. Bitangaro for the 1st Respondent did not agree with the submissions of Mr. Walubiri. He contended that the authorities cited by Mr. Walubiri were irrelevant. If an Agent were to bribe without the knowledge and consent of the Candidate the latter would not be liable for the illegal practice. He argued that there must be express not implied or apparent authority. There must be evidence of agency.

He submitted that the crucial test is whether there has been employment or authorisation of the agent to do some election work. In the present case, the Respondent appointed his agents and the letters spell out the terms of agency.

With respect, I accept the submissions of Mr. Bitangaro on this point. The wording of Section 6 (c) is clear and unambiguous. It requires that the Candidate be liable for the actions of his agents only when they are committed with his knowledge and consent or approval. To this extent the general principles of the law of agency have been modified.