Ayena v Wacha & Another (Election Petition 2 of 1996) [1996] UGHC 44 (10 October 1996)

Full Case Text

## THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA WOLDEN AT LIRA

ELECTION PETITION NO. 2 OF 1996 MR: AYENA ODONGO K. C. PETITIONER $...$ -VERSUS-

The Hon. Mr. Justice Egonda Ntende

$1'$ . MR. BEN WACHA **RESPONDENTS** THE RETURNING OFFICER APAC) $2.$

## BEFORE: THE HONOURABLE JUSTICE G. M. OKELLO

## JUDGEMENT

This election petition was brought by the Petitioner, Ayena $\cup$ Odongo $K. C.$ ; as the loser in Oyam North Constituency Parliamentary Election held on 27th June 1996. There were three contestants for the parliamentary seat in that constituency during the election. They were Arwata Joe, Ayena Odongo K. C., and Wacha Ben. Wacha Ben was declared the winner in that contest with the Petitioner as the runner up. According to the Petitioner's evidence the winner had polled about 14,357 votes while the runner up got 7,575 giving the vote margin of about 8,000 votes. In this petition the Petitioner now seeks to set aside the results of that election on the grounds which may be summarised as follows:-

$\mathsf{1})$ that there was non compliance with the provisions of the parliamentary election (interim provisions) statute No. 4 of 1996.relating to campaign and voting (paragraph 3(c), (d) and (e) of the petition).

The non compliance was particularised as under:-

- that the 2nd Respondent failed to restrain or stop partisan $\mathbf{a}$ and sectarian campaign. - b) that the 2nd Respondent or his Agents abandoned, refused, neglected or failed to conduct candidates meetings in 7 of

the 20 Parishes in the Constituency (paragraph 3(d) of the Petition) •

c) that the 2nd Respondent failed to secure secrecy in polling booths (paragraph 3(c) of the Petition),

2) Commission- of Electoral Malpractices;

That the Election was characterised by a series of malpractices committed by the 1st Respondent either personally or through his Agents with his knowledge, consent or approval (paragraph 3(f) of the Petition), The malpractices are categorised as under

- a) That the first Respondent conducted his campaign throughout cither by himself or through his agents with his knowledge, consent or approval on partisan or sectarian basis of multiparty -vs- movement. - b) that the first Respondent either personally or through his agents with his knowledge, consent or approval during the campaign indulged in the use of false, insulting, defamatory and derrogatory language against the petitioner.

## 3) Commission of Electoral Offences:

That the election was marred by illegal practices committed by the first Respondent wither personally or through his Agents with his knowledge, consent or approval. The illegal practices were categorised as follows

- a) that the first Respondent either personally or through his Agents with his knowledge, consent or approval committed briberies of voters at various places. - b) that at various polling stations the first Respondent either personally or through his Agents with his knowledge, consent or approval committed intimidation of voters (paragraph 3(h) (v) (vi) of petition)

c) that the first Respondent either personally or through his agents with his knowledge, consent or approval during **the** election committed undue influence on voters.

4) That the non compliance, and the illegal and malpractices affected the results of the election in a substantial manner. Thotpctition was supported by an affidavit sworn by the pcti . tionor on 29th July 1996 and by 11 other affidavits sworn by his Agents or supports.

In their answer to the petition, the Respondents both denied that there was any non compliance, malpractices or illegal practices during the election in question. They contended that the election was conducted smoothly in a free and fair atmosphere. They averred that if there was **any** such non compliance or malpractices and illegal practices, which they denied, such irregularities did not affect the result of the election in a substantial manner..

In Uganda, the relevant laws governing Parliamentary Elections ; and the Petitions arising from them arc to be found in Parliamentary Elections (Interim Provisions) Statute 4 of 1996 and the Parliamentary Elections (Election Petitions) Rules 1996 (SI No. 27 of 1996).

Section 90 (1) of the Parliamentary Elections (Interim Provisions) Statute No. 4 of 1996 defines the court in which election petitions must be filed. Section 90 (2) of the same statute defines who has the right to bring such petitions. Then section 91 (1) of the Statute defines the only grounds upon which an election petition shall be set aside and sets the standard of proof required to secure the order to set aside an Election Petition.

Mr. Ayena Odongo who prosecuted his petition in person attempted to argue that the statute sets two standards of proof. Mr. Katuntu

who appeared for the first Respondent did not agree with that argument. I agree with him. The crucial sentence in section 91 (1) which relates to the standard of proof is - proved, to the satisfaction, jpf the court. This clause already has judicial consideration in the case of Mboxe- --vs- Eliufoo (.1967) EA where the defunct court of Appeal for Eastern African defines the term "proved, tp the satisfaction of the .court" to mean proof beyond reasonable doubt^ The parliamentary Election (Interim Provisions) Statute No« 4 of 1996 therefore does not set two standards of proof as Mr. Ayena Odongo wanted this court to believe. There is only one standard of proof in Election Petition proceedings. It is proof beyond reasonable doubt.

Prom the petition it is clear that the Petitioner brought his petition under section 91 1(a) and (c) of the Parliamentary Election Statute 4 of 1996. Under section 101 and 102 of the Evidence Act Cap. 43 laws of Uganda, he who would fCiJsif no evidence at all were given on either side has the burden to prove his case, or he who wishes the court to believe in the existence of--a particular fact. The petitioner who would fail if no evidence were given on either side or who wishes court to believe that there had been non-compliancp malpractices or illegal practices in the Election in question. So he has the duty to prove his case. The burden of proof is on him and the standard'is beyond reasonable doubts. No lessor standard of proof shall suffice.

Having stated the position of the law as above, I now turn to consider each of the issues vis-a-vis the evidence on record to determine whether each ground is proved to the standard required. At the commencement of the submission, the following issues wore agreed on and were framed for guidance as follows

- 1) whether there were election malpractices - 2) whether they wore committed by the Respondents personally or through their agents with the Respondents' knowledge, consent or approval.

3) whether the results of the Election was affected in a substantial manner.

4) whether the petitioner is entitled to the remidios sought in the petition.

On whether there were election malpractices, the petitioner's case was that the election was marred by numerous malpractices committed either by the Respondents personally or by their agents with their knowledge, consent or approval. The malpractices complained of v/ere categorised into the followings

- a) Non compliance - b) Use of Partisan or Sectarian Campaign - c) Use of false, insulting or defamatory language - d) Bribery of voters - e) Intimidating of voters and - d) undue influence

The evidence on which the petitioner relied to prove the above were provided by the affidavits sworn by the following persons

- 1) Ayena-Odongo (PW 1) Petitioner - 2) Tommy Obote (PW 2) of Atek Ober Parish Acaba - 3) Vincent Akol-Odongo (PW 3) of Iccrne Comer - 4) Odongo Ryerikede (PW 4) of Aringo Lworo Sub County - 5) Wilson Elur (PW 5) of Otwal Sub-County - 6) Ogwang Robert (PW 6) of Aungu Parish Iceme - 7) Quinto Ayo (PW 7) of Gombolola Ngai in Oyam County - 8) John Otucu (PW 8) of Gombolola Acaba - 9) Vincent Ojok (PW 9) of Ajerjer Parish Ngai Sub-County - 10) Waswa (PW 10) of Otwal Railway Station and - 11) Mzee Omara Wil Acek (PW 11) of Gombolola Ngai

The Respondents denied that the alleged malpractices were committed at all. That there was no credible evidence to prove the commission of any of those malpractices beyond reasonable doubt#

It was submitted for the Respondents that the affidavits of the above witnesses were not worthy of belief because they either contained falsehood or hearsay whose sources were not disclosed.

It is trite law that affidavit as a document on oath must not be treated lightly. If it contains falsehood it is bound to be rejected. It was indeed hold in Bataitano -vs- Kananura (1977) HCB 33 that inconsistencies in affidavit can not be ignored however minor because an affidavit as a sworn document must not be treated lightly. If it contains falsehood it all becomes suspect.

I considered the affidavit of Tommy Obote (PW 2). He was the campaign Agent and Co-ordinator of the Petitioner in the June 27th 1996 Parliamentary Election. He deponed about wrong doings allegedly committed by agents of the 1st Respondent without disclosing facts which would show that the 1st Respondent had knowledge, consent or approval of those wrong doing. For example he deponed in paragraph 17 of his affidavit that at Te-Gacia Polling station, Mr. Epet Polling Agent of Ben Wacha assculted him and intimidated the Presiding Officer and the Petitioner's Supporters. Yet no where in the Affidavit did he deponed to the facts which would show that the 1st Respondent had knowledge, consent or approval of that wrong doing. The cffidevit also contained falsehood. He deponed in paragraph 13 that in his presence John Otucu (PW 8) stopped and talked to eight agents of the 1st Respondent at Corner Anyeke when the agents were coming from the direction of the home of the 1st Respondent and were each carrying iron sheets which they suspected were for bribe. But John Otucu who swore an affidavit himself never made a mention about that incident.

Even the affidavit of John Otucu is not any better. He contradicted it when he was subjected to cross examination. Under crossexamination he was asked whether Ben Wacha was a Movementist or Mal**tipartist since his affidavit contradicted the evidence of Ayena**

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Odongo who had told court under cross examination that Ben Wacha too was a Movementist. Tn response Otucu told court tha.t what he deponed to in that regard could be wrong because Aycna Odongo knew Wacha better because they both live in Kampala. That suggested that Otucu John was not sure of what he deponed to in his affidavit. Such an affidavit in which the deponent is himself not sure of can not be relied on.

The affidavit of Mzee Omara Wil Acek too contained falsehood. He deponed that he was the joint constituency campaign chairman for the petitioner. Paragraph 14 of his affidavit indicated that Ben Wacha bribed so many voters especially in Oma,ch Parish and Ajori jeri Parish. When he was asked in cfoss examination to confirm thi truth of the statement in that paragraph, Mzoe Omara Wil Acek denied knowledge of that assertion,. It meant that the statement of facts in that paragraph of his affidavit was false. This rendered the whole affidavit suspect.

Vincent Ojok (PW 9) of Ajeri jeri also filed an affidavit in support of the petition. He deponed about wrong doings by some agents of the 1st Respondent but did not include facts which would show that the 1st Respondent had knowledge, consent or approval of those wrong doings. Paragraph 9(a) of his affidavit alluded to an address by the 1st Respondent in which he allegedly used Kony Rebel scare to intimidate voters.. When that was put to him in cross examination, the deponent denied knowledge of the statements contained in that paragraph. Paragraph 5 of his affidavit stated that Ben Wacha told the electorates that the petitioner in collaboration with the President had sold away ell the papyrus vegetation in Oyam North Constituency and that soon nobody would be allowed to go and cut the papyrus for making mats. When that was put to him in cross examination, the deponent similarly denied knowledge of those assertion. The conclusion is that this affidavit too contained falsehood which

rendered the whole document suspect,

I had also perused the affidavits of Vincent Akol-Odongo (PV7 3) of Tceme Comer, of Qdongo Nyerikede (PW 4) of Aringlworo subparish,, Aungu Parish Iceme Suh-County and of Ogwa'/'g Robert (PW 6) of Aungu Parish Iceme Suh-County. Th those affidavits the deponents deponed to the wrong doings hy agents of the 1st Respondent - particularly in connection with the interpretation of the tape containing the recorded speech of President Museveni on the occassion of the promulgation of the constitution on 8th of October 1995; allegation of bribing of voters and the allegation of theft of 4m.= by the petitioner with conniving with the sub-county Chief of Ngai. The affidavits iowevor, did not include facts that v/ould show that the 1st Respondent had knowledge, consent or approval of those wrong doings by his agents. Lack of such facts rendered the affidavit of no help as a proof against the 1st Respondent.

Quinto Ayo (PW 7) the Sub-County Chief of Ngai, Oyam County also filed an affidavit in support of the petition. His affidavit was to show that malpractices had been committed by the 1st Respondents Agents vzith the Respondent's knowledge, consent or approval. But the affidavit was based on informations he received from sources he did not named. Example of this is paragraph 5 thereof . It reads:

''That I was further told by various sources that the above swear campaign was being spread by the campaign agents and managers of Wacha with his knowledge, consent and approval throughout the constituency especially in Iceme, Otwal and Acabd,'. This is hearsay. The source of such information was necessary to be named in the affidavit. The facts that would show that -the Respondent had knowledge, consent or approval of the wrongdoing needed to be included in the affidavit. It is not enough to merely state

that ''with his kiswledge, consent or approval". That phrase would

not prove existence of knowledge, consent or approval. Such affidavit is not of any evidential value.

The above pattern of the affidavits applies to that of Wilson Elur (PW 5) of Acikara Parish and that of Waswa (PW 10) of Otwal Railways Station. The affidavit of Wilson Elur was about malpractices committed by the agents of the 1st Respondent but ho did not depone to the facts to show that the wrong doings wore committed by the agents with the knowledge, consent or approval of the Respondent Paragraph 4 of the affidavit is an example of that defect. It reads:

"4. That on 26th June 1996 throughout the night Agents of Wacha Ben, Ocok Clestino, Alunyu Albino and Ocen Peter distributed money ranging from 200.= in the whole of Acokora parish. The money distributed to every voters as far as polling day 27th June 1996 around morning hours."

No where in the affidavit was there any facts showing that the distribution of the money was done with the knowledge, consent or appro vol of the ?st Respondent, lot alone the fact that the distribution was to influence voters to vote for the 1st Respondent.

Tlie affidavit of Waswa (PW 10) was based on information whose sources were not disclosed. A good example of this defect is paragraph 4 of the said affidavit. It reads:

"4\* That I inquired as to why the people were swearing never

to vote for K. C. Ayena Odongo and I was told by among very many people one A.tjm Moses Ejigwe that the minds of the people were converted by some campaign agents of Wacha Ben who had all been moving in the whole of Otwal Sub-County addressing rallies".

A brief particulars of the said Atim Moses-Eigw<\* ought to have been given to enable cross-checking possible. This was not given. Affidavits which are based on informations whose sources are not disclos amount to hearsay and have no evidential value.

As indicated above, each of the affidavits filed by the petitioner and his witnesses in support of the petitioner's case had deficiencies in one form or another; either it contained falsehood, lacked facts to show that the Respondent had knowledge, consent or approval of a wrong doing committed by his agent, or is based on informations whose sources were not disclosed\*.

Tile Petitioner had strongly submitted that the affidavit which the 1st Respondent filed in support of his answer to the petition too was incurably defective and should be struck out. He ar.gued that the affidavit which accompanied the 1st Respondent's answer to the petition was not an affidavit in support of the answer but was headed ''affidavit in reply". According to the petitioner, this did not comply with the rule 8 (3) a) of the Parliamentary Elections (Elections Petitions) Rule 1996 (SI 27/96).

In response, Mr. Katuntu for the 1st Respondent contended that the affidavit in question was not defective in any way because it contained facts which supported the answer of the 1st Respondent to the petition. In the alierna.tivc the learned counsel submitted that want of form does not defeat pleadings.. He cited the case of Casteliiio -vs- Rodrgues (15.7.2)EA.

In reply the petition submitted that the affidavit was defective both in form and in substance. He cited paragraph 23 of the affidavit which reads:

"tha-t I' swear this affidavit in reply to that sworn, by Ayona Odongo"•

He finally reiterated his prayer that the affidavit be struck out.

It is pertinent to point out that rule 8 (3) a) of the Parliamentary Elections Petitions Rules 1996 enjoins a Respondent when filing his/her answer to a petition to accompany it with an affidavit stating the facts upon which the Respondent relies in support of

his/her answer. In the instant case, the affidavit which accompanied the 1st Respondent's answer to the Petition was headed "Affidavit in Reply". That heading is in my view an irregularity of form since the affidavit should have been headed Affidavit in Support of an Answer to the Petition. But it is trite law that irregularities of form may be ignored or our ed by ammendment. Judtice Spry Vice President of the Defunct Court of Appeal for Eastern Africa said on page 226 of his judgement in the case of Castalino -vs- Rodrigues above that,

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"of course rules are made to be observed, but irregularities

of form may be ignored or cured by amumendment when they occasioned no prejudice. In these matters of form, courts are much less strict today than formedy".

Indeed courts are today much less strict on matters of form than formerly, more particularly when they have caused no prejudice. The Petitioner argued that paragraph 23 of the affidavit indicated that the substance as well as the form of the affidavit were defective. I disagree with that argument, because the contents of paragraph 23 was part of the form of the affidavit.

I have perused the entire affidavit and found that while some paragraph contained flat denials to serve brevity, some paragraph contains facts on which the Respondent would rely to support his enswer to the petition. Paragraph 5 thereof reads:-

"that it is not true as alleged in paragraph 4 that I conducted malicious propaganda against Mr, Ayena Odongo".

The above is an example of those paragraph which suffered the defect of too much brevity. It is a flat denial. Be that as it may, it is important to note that whether the 1st Respondent had filed no answer to the petition, the petitioner would still have been expected to prove his petition beyond reasonable doubt. The 2nd Respondent's affidavit had not been materially shaken. Deficiency in the evidence of the 1st Respondent does not in anyway enhance the

case of the petitioner who must depend on his evidence to prove his case beyond reasonable doubt.

As shown earlier in this judgement, all the affidavits filed by the petitioner and his witnesses in support of the petition suffered deficiencies. They are not credible. They are therefore unable to prove the allegations contained in the petition beyond reasonable doubt. There was therefore no sufficient proof that there were malpractices. This answers issues No1. 1 in the negatived In view of the answer in issue No. 1, the answer in issue No. 2 too is in the negative.

Then there is issue No, 3 - whether the results of the Election was affected in a substantial manner.

It was the case for the petitioner that the malpractices which marred the election affected the results thereof in a substantial manner. The phr.se affected the results woe considered in Igbqwo. >-\*vs-Eliiifoo above and was defined to mean,

''not only the result in the sen S3 that a certain candidate won and another lost. The result may be said to be affected if after making adjustments for the effect of proved irregularities the contests seem much closer than it appeared to be when first determined. But when the winning majority is so large that . even a substantial reduction still leaves the successful cwdida.te with a wide margin then it can not be said tha.t the results of the election would be affected by any particular non compliance". '

In the instant case, there was no evidence of the effect of any alleged irregularities on the results that could be adjusted from the result. All that there is on the record is an address by the petitioner from the Bar, that the effect of the communication of the malpractices to the voters, affected the result of the election in

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a substantial manner 10001130 they changed the minds of tie voters in favour of the first Respondent. That' is no evidence.

As was pointed out earlier in this Judgement, the vanning margin hero is 8,000 votes. That is quite a substantial margin. Without any evidence of the effect of the alleged irregularities proved, to be adjusted to the ab^ve figure, it is difficult to say that the irregularities affected the result of the election in a substantial manner\*. In any case none of the alleged irregularities had been proved. So this issue No. 3 is also answered in the negative.

This leads me to issue No. 4. It is whether the Petitioner is entitled to the remidies sought in the petition. The Petitioner sought a number of remedies including setting aside the election. Under Section 91 (1) of the Parliamentary Election (Interim Provisions) Statute No. 4 of 1996, the court can only award the remedies sought if the grounds or any of them relied on were proved to the satisfaction of the court. That is proved beyond reasonable doubt. In the instant case, the petitioner has liot proved any of the grounds he relied on to the satisfaction of the court, Nor that reason, he is not entitled to the remedies he sought in the petition.

Instead the Petition shall and is hereby dismissed with cost.

G. M. OKELLO Judge 8/10/1996

10th October 1996 9'\*35 ri.m1.

Petitioner absent 1st Respondent Present 2nd Respondent present

Katuntu for 1st Respondent and also holding brief for Byamugisha Kamugisha Counsel for 2nd Respondent.

COTRT: Judgement delivered in open court

GODFREY NAMUIWI DISTRICT REGISTRAR 10/10/1996