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

Issue No. 1: Non-compliance with the Provisions of the Act:

The first issue was whether during the 2001 election of the President there was non-compliance with the provisions of the Presidential Elections Act 2000 Section 58 (6) (a) of the Act provides,

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

1. 
   non-compliance with the provisions of this Act, if the Court is satisfied that the election was not conducted in accordance with the principles laid down in those provisions and that the noncompliance affected the result of the election in a substantial manner.
   

Due to the manner in which the Section is drafted, four issues were framed arising from it relating to the non-compliance with provisions, non-compliance with principles and the effect of non-compliance on the result. I think that it would have been more convenient to combine the first and second issues because they are closely linked. Mere non-compliance with the provisions of the act does, not seem to be sufficient unless it resulted in a breach of the principles laid down in the Act.

The second difficulty with the Section arises out of the provisions of Section 2 (2) of the Act, which provides,

“The Commission Act shall be construed as one with this Act.”

This formula of drafting was explained in Craines on Statute Law 7th edn. 1 971 at page 1 38 as follows:

“Act to be construed as one with another

It is now a common Practice to insert clauses which make certain Acts one for the purposes of Construction i.e. certain Acts which are to be read with one another Act or Acts. The effect of enacting that an Act shall be construed as one with another is that the court must construe as one with another Act is that the court must construe every part of each of the Acts as it had been contained in one Act, unless there is some manifest discrepancy making it necessary to hold that the later Act has to some extent, modified something found in the earlier Act or that from internal evidence the reference of the later to the earlier Act does not effect a complete incorporation of the provisions of the two Acts.”

A similar interpretation and purpose is given in Halsburys Laws or England 4th edn. Para 890 page 544.

The Presidential Elections Act and the Electoral Commissions Act must therefore be read together and every provision of each of the Acts must be interpreted as if it has been incorporated in one Act, unless there is a clear inconsistency or ambiguity which is resolved by holding that the later Act modified the earlier Act. This technique of drafting is sometimes referred to as incorporation by reference and is not free from difficulties of interpretation.

It seems to me that the grounds for annulling a Presidential Election must be those contained only in the Presidential Elections Act. Therefore the phrase “non-compliance with the provisions of this Act” appears to mean non-compliance with the provisions of the Presidential Elections Act only. However when considering non-compliance with the principles of the Act, it seems to me necessary to take into consideration the provisions of the Electoral Commission Act which contain the principles relating to a free and fair election.

It was submitted for the Petitioner that failure to comply with the provisions of the Electoral Commission Act is a ground for annulling a Presidential Election.

The 2nd Respondent averred in the answered to the Petition that such noncompliance is not a ground for annulling a Presidential Election.

In my view non-compliance with the provisions of the Commission Act is not per se a ground for annulling a Presidential Election. Such non-compliance can be a ground if it affects the principles behind the provisions of the Presidential Elections Act, which govern the annulment of Presidential Elections.

The presentation of the case for the Petitioner on the first issue dealt with all the allegations of non-compliance with the provisions of the Act against the 2nd Respondent. For convenience of consideration of the issues and to avoid unnecessary repetition, I shall deal with the allegations of non-compliance with the Act under the first issue, and those of non-compliance with the principles of the Act under the second issue.