Mr. Walubiri persuasively invited us to give value judgment, because he contended that non-compliance with the law cannot in most case be arithmetically quantified. I must say with respect, Mr. Walubiri never cited any authority locally or from outside to support his argument. He instead invited us not to rely on the decision of Ibrahim v Shagari & Others (1985) LRC 1 from Nigeria.
In my opinion, there is no way we can avoid considering numbers of votes a candidate got over the other. If the numbers of votes were used in determining the winner of the election, how can we hear the election petition, challenging the winner, that he unfairly won the election without considering the number& For instance, if the 1st respondent obtained 5,1 23,360 votes while the petitioner got 2,055,795 votes, how can we hold that the 1St respondent was not validly elected without considering numbers of votes which he (the 1st respondent) obtained over the petitioner because of non-compliance with the provisions of the Act? We obviously have to consider the numbers of votes each candidate got from each polling station and District. In the case of George W Bush & others v Albert Gore & others Supreme Court of the United States No. 00-949 the US
Supreme Court considered the grounds for contesting an election under US to include receipt of a number of illegal votes or rejection of a number of legal votes sufficient to change or place in doubt the result of the election.
Likewise I think in the instant case, we cannot ignore numbers of votes the 1st respondent got over that of the petitioner. I think that the onus was on the petitioner to prove to the satisfaction of this court that on each of the complaints of non-compliance with the law, the l respondent unfairly got a substantial number of votes which, if there was no such non-compliance, those votes would have gone to the petitioner. I would in that respect accept the approach of Ntabgoba PJ., in the case of Henry Adetta v Omeda Omax High Court election Petition No. 001 of 1996 where he held inter alia:
“The petitioner had onus to prove to the satisfaction of the court that whatever non-compliance with the provisions of the Act, must have affected the result of the election in a substantial manner. It was not enough to allege and even prove that there was harassment, chasing away of petitioner’s polling agents etc. The petitioner had a burden to go further than that and show that the result of the election was thereby affected in a substantial manner.”
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