Kyotasobora v Kabakumba Masiko and Another (Election Petition Appeal No. 54 of 2011) [2012] UGCA 63 (23 November 2012)

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

## ELECTION PETITION APPEAL NO.54 OF 2011

(Arising from Election Petition No.003 of 2011 of ffie High court of ugancta

5 at Masindi)

;

KYOTASOBORA PHINEHAS PELLANT

VERSUS

KABAKUMBA LABWONI MASIKO

THE ELECTORAL COMMISSION RESPONDENTS

10 CORAM: HON. JUSTICE A. S. NSHIMYE, JA

HON. LADY JUSTICE M. S. ARACH AMOKO, JA

HON. JUSTICE REMMY KASULE, JA

## JUDGEMENT OF THE COURT

15 This judgement is in respect of an appeal from the judgement of Hon. Justice Wilson Kwesiga dated 6th June 2011 in Etection Petition No. OO3 of 2011 in the High court of Uganda at \*.-/ Masincli.

The appellant, first respondent and four others were candidates for the Parliamentary seat of aujenje county constituency, Masindi District, in the countrywicle parliamentary elections held on 18th February 2011. The second respondent by law conducted the said elections.

At the conclusion of the election, the second respondent declared and gazetted the first respondent as the winner with 10,165 votes while the appellant was runner-up with 9,413 votes.

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Dissatisfiecl with the result of the etection, the appeilant petitioned the High Court at Masindi against both respondents for orders, amongst others, that the first respondent's election as the Memher of Parliament for Bujenje County Constituency be set aside and fresh elections be hetd.

The grouncls for setting aside the election were that the first respondent had committed illegal practices and election offences directly andlor through her agents with her knowledge and consent. Further, that the election was conducted without complying with the provisions of the electora! laws as provided in the Constitution, the 20

Parliamentary Elections Act, The Electoral commission Act and the principles set out thereunder which affectecl the results in a substantial manner.

5 The respondents to the petition denied the atlegations stated in the petition

The learned trial judge conducted a full trial of the petition and on 6th June, 2011, delivered judgement. He found that the appellant, then petitioner, had not proved all the allegations in the petition to the satisfaction of the court, and as such he was not entitled to any of the remedies he had prayed for. The petition was dismissed with costs. 10

- The appellant then todged this appeat to this court on two grounds, namely:- 15 - 7. The learned trial iuclge erred in taw and fact in conclading that the appeilant faitecl to prove that there was non-compliance with the provisions and principles laicl down in the constitution of Uganda, the Parliamentary Elections Act ancl the Etectorat

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Commission Act ancl came to the wrong conclusion that the election was conducted in accordance with the electoral laws.

2. fihe learnecl trial iudge erred in law ancl fact when he failecl to properly evaluate the evidence of the Appellant and that of the Respondents on record and came to the wrong conclusion that the Appeilant failed to prove all the allegations in the petition to the satisFaction of the court

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At the hearing of the appeal, learned counsel Meclard Lubega Ssegona appeared for the appellant, while John paul Baingana represented both respondents.

15 20 Counsel for the appellant argued hoth grounds of appeat together on two separate premises: first: whether or not bribery and/or other electoral offences had been proved to have been committed by the first respondent directly, and/or through other persons with her knowledge, consent or approval. Second: whether there was non-compliance with the provisions and principles of the electoral laws in the conduct of

this election, and if so, whether the non-compliance affected the results of the election in a substantial manner.

Counsel submitted that the learned trial judge erred when he found that the allegation of bribery had not been proved to s the satisfaction of the court. The evidence of Baguma tbrahim that the first respondent gave him money at Kitamba poiling Station on the day of elections should have been believed. Asaaba Lawrence's evidence to the effect that on his way to Bulima he witnessecl money being distributed to voters at 10 Nyakojo's compound with instructions that they vote for the first respondent and that fuel was being given to boda boda riders to take voters to polling stations to vote for the first respondent, and that he saw the army personnel campaign for the first respondent also provicled proof of bribery. Further, 1s sauda Kiiza Amooti's evidence that on 17ffi February, <sup>2011</sup> agents of the first respondent gave her money to vote for the first respondent and that the said first respondent campaigned on voting clay was cogent enough to have proved that the first respondent committed bribery andlor some other electoral 20 offence.

The learned trial juclge was therefore not justified in clisbelieving those above witnesses who were illiterate, ordinary

' people staying in rural villages excited by someone giving them some little money, possibly to service for a day. Accordingly Baguma lbrahim ought to have heen excused for not being able to identify his signature on his affidavit filed in support of the s Fetition. Likewise the eviclence of Asaba Lawrence ancl Sauda Kiiza Rmooti should not have been rejected on the basis that it put the first respondent to be in different places at the same time of the day which the trial court found to be impossible. According to counsel, these were such type of witnesses who 10 had no sophistication to tell the exact time. This explainecl why they placed the first responclent in different places at the same time. lt was also for the same reasons that they gave contradictory evidence as to the registration number of the vehicle the first respondent was alleged to have been moving in ls when campaigning and on the day of the election.

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As to the second premise, counsel adopted the submissions of counsel for the 2nd respondent before the High court and contended that the trial judge ought to have found that the election was conducted without comptying with the provisions ancl principles enshrined in the electoral laws.

He submitted that the trial court, in order to properly appreciate the evidence, had to apply both the qualitative and quantitative tests to the overall evidence adduced. Quantitatively, the winning majority vote was a paltry 690 votes. This narrow winning majority ought to have been consiclered against the qualitative test of instances of non-compliance with the electoral laws raised by the appellant. There was failure to account for ballot papers at Katugo, Kyabafoto, Kasongoire and elsewhere throughout this election. The trial judge ought to have resolved the question as to where the missing ballots went and in whose candidate's favour was the excess of the ballot papers. The trial judge erred by not resolving these questions hefore concluding that the petitioner had not proved the petition.

The trial juclge also ought to have considered the evidence establishing other forms of non compliance with the electoral laws by tne respondents. These included the first respondent campaigning on election day when she moved in a vehicle all covered with her campaign photographs, as well as the intimidation of the electorate bv the army soldiers carriecl out for and on behalf of the first respondent. Counsel thus submitted that the trial judge grossly erred when he failed to

address the above statecl issues ancl prayed for the appeal to be allowed.

5 counsel for the respondents strongly opposed the appeal. He submitted that the trial juclge properly evaluated the evidence that was before him and arrived at the correct conctusion that the petition had not been proved.

Baguma lbrahim was not a truthful witness when he claimed that the three signatures on the affidavit he claims he deponed to were all his. Yet they were not, as only one belonged to him, and the others were of the Commissioner for Oaths and the translator respectively. This led to an inference that he was not the author of the contents of the affidavit and the tria! judge was right to regard him as untruthfut. 10

The trial judge properly analyzed the evidence, hoth affidavit ancl otherwise, of witnesses Rsaba Lawrence and Saucla Kiiza Amooti and came to the reasonable conclusion that the first respondent could not have been carrying out electoral offences and illegal practices in two different ptaces of Kanga and Rubanda at the same time and on the same day.

It was also concedecl on the part of the appettant that the registration number of the vehicte given as the one that the first appellant is alleged to have travelled in to campaign and to brihe voters with money during the election, was incorrect, yet the appellant gave no exptanation how this mistake of the wrong registration number of this motor-vehicle could have been carried out in all the appellant's witnesses affidavits on this point. This led to an inference that this evidence had been manufactured to support the appellant's case. The learned trial judge was thus correct not to believe this evidence.

As to the non compliance with the electoral laws, counsel submitted that as tong as the Taily sheet figures were in conformity with the figures obtained f rom the Declaration forms of the results from the different Folling stations ctuly signed by tne presiding officers and the candidates' agents as the correct results, then it cannot be said that the concluct of the election was done without complying with the electorat laws. This is because the presiding officers as welt as the candidates' polling agents coulcl not have signed as correct, results that had been obtained without comptying with the taw. 15 20

-a counsel invited court to hold on the basis of court of Appeal Election Petition Appeal No. E8 of 2011 Hon. Oboth Marlrsons Jacob vs Dr. Otiam Otaala Emmanue!, that irregularities that are not substantial do not necessarily result in setting aside the result of an election. tn this case any irregularities that might have happened were not substantial and accordingly the election should not be set aside. Counse! prayed that the appeal be dismissed with costs.

Appellant's counsel in reply still maintainect that the appeilant had provecl the allegations in the petition. Counsel submitted that it was not established as to what were the distances of the different places where the first respondent was supposed to have been at the same time and on the same day. Thus the trial judge had no basis to conclude that this could not be possible. 10

Further, as there was no explanation from the second respondent as to where the missing ballots were taken, then the election was conducted contrary to the electoral laws. As to the army soldiers, these were not supposed to be in the Constituency, so their being there was part of intimidation for which the first respondent, whose spouse was a high ranking army officer in UPDF, should bear the blame. Counse! referred court to court of Appea! election petition Rppeal No. 2g ot

2011: Muhindo Rehema V Winnie Ritza ancl Another and prayed that the appeal he allowecl.

5 We have carefully consiclered the submissions of respective counsel, the proceedings of the court below as well as the statutory law and court case authorities referred to us. We now proceed to state our findings and conclusions.

The learned tria! judge considered the issue of hurden of proof 10 as stated in Mbowe Vs Eliofu 119671 EA <sup>2</sup> , a case from Tanzania, that the burden of proof in an election petition is on the petitioner rather than the respondent because it is the petitioner who seeks to have the election declared void. This principle had been applied in uganda in Kiiza Besigye vs Yoweri Museveni Kaguta, supreme court presidential Election petition No.1 0J 2001where odoki, c. J. held:- 15 I

> "ln my view the burden of proof in election petitions as in other civil Gases is setfled. It Iies the petitioner to prove his case to the satisfaction of the court".

The learned judge then had also addressed himsetf to the English case of BATER V BATER (195O) 2 ALLER 458 where Lord

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Denning, in resolving as to what amounts to "proof to the satisfaction of the court" in a divorce case, expounded that one cannot be satisfied where one is in cloubt. Where <sup>a</sup> reasonable doubt exists then it is impossible to say that one is satisfied.

The trial judge related the above principles to sections 61(11 and (51 of the parliamentary Elections Act that provide that any ground to set aside an election specified in section 61(1t shall be proved on the basis of a balance of probabilities. The trial juclge reverted to Riiza Besigye v. yoweri Museveni Kaguta (scl (supral where chief lustice odoki elaborated on the standard of proof in an election petition that:

".... ....since the legislature chose to use the words "proved to the satisfaction of the court", it is my view that is the standard of proof required in an election petition of this kind. tt is a standard of proof that is very high because the subiect matter of the petition is of critical importance to the wetfare of the people of Uganda and their democratic governance".

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After consiclering the above principle, the trial judge directed himself on the issue of burden and standard of proof thus:

"l do appreciate the tools of analysis or evaluation of evidence in an election petition to he not as high as proof beyond reasonahle doubt as required in criminal cases and at the same time it is as appticable to ordinary civil suits. Therefore this court shall follow and apply the statutory provisions above stated and the principles of law settled in the above leading iudgements in settling the issues raised in this case".

From the foregoing, we are satisfied that the learned trial judge properly and appropriately directecl himself as to the burden and standard of proof at the commencement and throughout the trial of the election petition from which this appeal arises.

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The appellant's counsel has faulted the learned trial judge for not finding that the appeilant had proved that the first respondent committed the electoral offence of bribery and/or some other electoral offence in the course of the election. Appellant's counsel submitted that the trial judge ought to have accepted the evidence of witnesses Baguma tbrahim, Asaba Lawrence and Sauda Kiiza Amooti as having proved the electora! offence of bribery against the first respondent.

The learned trial judge deatt in ctetait with the evidence of Baguma lbrahim. Under cross-examination of this witness he could not identify his signature on the afficlavit he stated was his own and had been translated to him into Lunyoro, his native language, before he signed the same. The witness claimed the three signatures of the deponent, translator ancr of the commissioner for oaths to be ail his. when asked to supply <sup>a</sup> signature in court, he supplied one and court found it was totally different from the three. The tria! juclge observed him as very shifty and uncomfortabte with what he was saying.

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As for Sauda Kiiza Rmooti, the learned tria! judge observed that her evidence was that Dan Musinguzi had told her that money was being distributed to voters on the instructions of the first respondent. she assertecl that she knew that some people were given money. The trial judge found her evidence to be hearsay as she did not disclose as to how she came to know how these people were given money. 15

The leaned trial juclge dict not specif icaily deat with the evidence of Asaba Lawrence which was, as far as bribery was concerned, to the effect that on lgth February 2011 while going to Bulima, he met one Mahmoocl distributing money to voters 20

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in lvyakojo's compound and telling them to go and vote the 1\$ respondent. The same witness also stated that he met Haji Nuru giving fuel to boda bocla men asking them to take voters to vote for the first respondent.

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ln our appreciation and appraisal of this evidence, we find that there is no number of voters disclosed by the witness. He did not claim that Mahmood and Haji Nuru were agents of the first responclent or that the first responclent knew, authorized and consented to what they were doing.

ln connection with bribery, the learned trial judge considered the evidence of Odong Cosmas who claimecl to have received Shs.500/: to vote for the bus. He was tolcl that this was "chai" from the first respondent. The trial juclge found this evidence to be of no value as the one who claimed that the first responclent was the one giving the money was never disclosed.

The learned judge also considerecl the aff idavits of Patricl( Kajura, Byarugaba Victor, Kamanyi Xavier and wlugisha William and found that all of them had made general allegations of bribery without giving particulars as who was paid, how much 20

was paid ancl for what purpose. The judge atso found that Muhiru Steven and Olivia Atugonza clenied being agents of the first respondent or paying money on her behalf.

5 We have also ourselves subjectecl the evidence that was before court as regards the bribery allegations and we find that the learned trial juctge property deatt with the same and came to the right conctusion that it did not prove on the balance of probahilities that the offence of bribery or some other electoral offence had been committecl by the first respondent. 10

we have found that the learned triat judge property apptiect the principles statecl by l. D. Dua,J., in the tndian case of GIANSHAND vs sM. ou pRABuA, AIR 1g5g PUNJAB 66 (V 46C.21t, <sup>66</sup> applied with approvat by the Uganda Supreme Court in the Besigye Kiiza vs Museveni yoweri Kaguta and Electoral commission, Election petition No.l 0f 2001, (suprat that: 15

"lt has often been stressed that it is in the interest of iustice not to throw out an etection petition on hypertechnical grounds and in the triat of etection petitions, where the purity of election is questioned, and the

Tribunal trying the petitions should afford every possibte facility, in its power, to ensure such inquiry.

5 ! am not unmindful of the undesirabitity of lighfly setting aside elections on inadequate, flimsy or frivolous grounds, at the same time it is, in my opinion, of the uttermost importance for the healthy growth of parliamentary system of Government and of true democracy that the purity of the election process shoutd be iealously safeguarded, and people should not be allowed to get elected by flagrant breaches of the Iaw of elections and by corrupt practices. =nquiry into allegations of corrupt practices, therefore, should not be throtfled by dismissing election petitions on unsubstantiat or highry technical grounds". 10 15

Like the learned trial judge, we too, come to the conclusion that the petitioner, now appellant, adduced no suff icient evidence in the court below to prove the electora! offence of bribery by payment of money to voters against the first respondent. 20

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The learned trial judge, apart from deating with the allegations of bribery by payment of money to voters, also considered the evidence adduced in respect of other alleged electoral offences stated to have been committed by the first respondent of campaigning during voting time anct employment of army soldiers and others to intimidate the electorate.

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As to the alleged electoral offence of campaigning cturing election time, the learned trial juclge considered the meaning 10 ancl effect of section 81 of the parliamentary Etections Act which prohibits campaigning on the eve of and cturing elections, and rightly in our considered opinion, held that the section does not prohibit the general public from tatking about the election candidates while the said public is away from the 1s Polling station and members of the public are in their homes, coffee shops or bars. We note, in this regard, that the section only prohibits a person from canvassing votes, uttering slogans, distributing leaflets, singing, dancing and using a band on polling day within one hundred metres of the poiling station. 20 The section also prevents anyone from influencing a voter in any way, or selling intoxicating liquor within two hundred metres of a polling station when the polling station is open on the polling day. Hardly any evidence was adducect at triat in our view to prove that the provisions of this section had been contravenecl.

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5 The learned trial juclge also considered the evidence relating to campaigning on the eve and during election. The evidence as to the registration number of the vehicle that the petitioner's witnesses stated was used by tne first respondent was shown not to be unreliable as the number was proved to be not of the first responclent's vehicle, but of a tipper lorry belonging to SPENCON SERVICES LTD, and was not at ail seen in the constituency on the eve or on polting day of the election. 10

The learned judge also considered the fact that the f irst appellant could not have been campaigning in ctifferent ptaces, far apart of each other, at the same time and on the same day. He therefore rejected the evidence to this effect as unreliable. we find that the tearned triat juoge property anatyzed this eviclence and further that the reasons he gave for rejecting the same were proper and souncl. Accordingly, we too, agree that the allegations of campaigning on the eve and on the day of polling were not proved against the first respondent. 15 20

The eviclence as to the allegation that the first respondent employecl armY soldiers of UPDF and other voters to intimidate the electorate was also considered by the trial juclge. He found the evidence of victor Byaruhanga who claimed to have seen s two army jeep5 on the night of 17th February zo11at g:00p.m at Bulima Town, full of UPDF solcliers who explainecl to him that they had been sent to keep peace, law and orcler and one of the solcliers said they had been sent by the Minister, to be incapable of proving this allegation. This witness asserted that 10 people got scared without explaining what these solctiers did to scare the people. We agree with the triat juctge that this evidence clid not prove intimidation against the f irst respondent.

15 20 The allegation that the first respondent usect Government resources to campaign stated in paragraph 6(b) of the petition was not in any way substantiated by tne petitioner as there was no eviclence at which inciclent and what Government resources were actually used. The learned trial juOge was thus correct to find that this allegation was not proved.

All in all, on the first premise of submissions of counsel for the appellant, we agree with the trial judge that there was no such

strong and cogent evidence to prove, on the balance of probabilities, that the first responclent committed bribery/or any other electoral offence(s), or illegal practice(s) in the course of the election, the subject of this appeat.

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The second premise of the agpellant's counsel's submission was that the trial judge ought to have found, on the evictence that was before him, that the election in question had been conductecl without compliance by both responctents with the provisions and principles of the electoral laws; and that this non-compliance affected the result of the election in <sup>a</sup> substantial manner.

The learnecl trial judge clirected himself as to the law that in order to prove non compliance with the electoral !aws, the Petitioner must prove, on a balance of probabilities, that there was contravention of the provisions anct principles of the Parliamentary Elections Act, 17 of 2005, and that the contravention or non-compliance affected the result of the election in a substantial manner. we only hasten to add that the learnecl trial judge ought also to have directed himsetf that apart from the partiamentary Etections Act 17 ot 2005, the conduct of elections must also comply, as much as it is relevant, 15 20

with other election laws such as the Constitution and the Electoral Commission Act, cap.140, as well as the Rules made thereunder.

The learned trial judge, however, rightly in our view, further $\mathsf{S}$ directed himself that compliance, as a whole concept, requires that the election must be free and fair, be of universal adult suffrage and must be based on the majority of the valid votes cast. The trial judge reminded himself of **Article 1 (4)** of the **Constitution** that the people shall express their will and $10$ consent as to who is to govern and how they want to be governed through regular, free and fair election of their representatives or through referenda. He then directed himself to the holding of Chief Justice Odoki in Besigye Kiiza Vs Museveni Yoweri Kaguta and Another, (supra) to the effect 15 that:-

> "The entire election **brocess** should have $an$ atmosphere of free of intimidation, bribery, violence, coercion or anything intended to subvert the will of the people. The election procedure should guarantee the secrecy of the ballot, the accuracy of counting and announcement of results in a timely manner.

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...... . Fairness ancl transparency must be adhered to in all stages of the electoral process,,.

It was alleged, inter alia, that there was non compliance with the electoral laws because a number of Declaration of Results forms for various polting stations were alleged to have been forged. 5

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The trial judge examined the eviclence as regards these 10 documents and found that the forms had been signed by tne candidates' agents ancl no agent denied his/her signature thereon. The respective presiding officers had atso signed the same. Further, the particulars on these forms as to valid votes and each canclidate's votes were identical, there was no other ls evidence of forgery or alteration of these forms. tt is from these forms that data was obtainect to comptete the Tally Sheets. The trial judge concluded on the basis of this evidence that there was no proof of forgecl or altered documents. we are unable to fault the trial judge on the conctusion he reached 20 on this point, after having re-appraised this evidence.

5 As to the complaint that computation of the Dectaration of the Results forms showed excess ballot papers at some poiling stations, the learned trial juclge reviewecl the evidence adduced on the point and found that it had not been proved on <sup>a</sup> balance of probabilities that any excess bailot papers had been ferried to any other polting stations and that if any excess votes were there, there was no evidence as to who of the candidates had benefitecl from such excess votes. The juclge therefore held that the allegation of non compliance with the etectorat laws in the conduct of this election had not been proved. we find that the learned triat juctge properly considered the taw ancl the evidence on this issue and he arrived at the correct conclusion on this matter. 10

ln the fina! analysis, we too agree with the learned trial judge, that the appellant as petitioner did not prove the anegations in the petition to the satisfaction of court and as such he was not entitled to any of the remedies he prayed for. The learned tria! juclge was right to dismiss the petition with costs. 15

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> Accordingty this appeat stands dismissed. W MASIKO remains the Elected Member of Parliament, Bujenje county constituency, Masindi District. 3

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The first and second respondents are awarded costs of this appeal as well as those in the court below as against the appellant on appeal and petitioner in the court below.

We so hold and order. $\mathsf{S}$

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Dated at Kampala this ....................................

S. Nshimve

## **JUSTICE OF APPEAL**

## M. S. Arach Amoko

## **JUSTICE OF APPEAL**

Remmy. K. Kasu

**JUSTICE OF APPEAL.** The 1WQZ $\Delta$ hs $\sim$ runsel abose