Mbaju Jackson v Thembo Gideon Mujungu and Electoral Commission (Election Petition Appeal 46 of 2021) [2022] UGCA 309 (22 June 2022)

# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

[Coram: Egonda-Ntende, Modrama & Kawurna JJAJ

# ELECTION PETITION APPEAL NO. 0046 OF 2O2I

(Arisingfrom Election Petition No.0009 of 202 1)

#### BETWEEN

| Mbaju Jackson | | :Appellant | | |---------------|--|------------|--| |---------------|--|------------|--|

# AND

Thembo Gideon Mujungu-Electoral Commission: Itespondent No.l Respondent No.2

(On appealfrom the judgment of the High Court of Uganda, (Katamba, J.) delivered at Fort Portal on l4't' October 202 l)

### JUDGEMENT OF FREDRICK EGONDA-NTENDE JA

#### Introduction

- t I I The appellant. respondent no. I and 8 others contested lbr the seat of Member of Parliament for Busongora county South in Kasese district in the general elections held on l4th January 202 I . The Electoral Commission (respondent no.2) retumed respondent no.l as the validly elected Member of Parliament lbr the constituency. Dissatislied with that result, the appellant filed Election Petition No. 0009 of 2021 in the High Court ofUganda at Fort Portal challenging the outcome ofthe election. The lcamed trial .iudge delivcred judgment in favour ol'the respondents dismissing the petition. - 12) Dissatisfied with the decision of the leamed trial.iudge, the appellant now appeals on the fbllowing grounds:

'1. l'he [,eamed Trial Judge erred in law and f'act when she held that irregularities in the results from Katunguru Primary School polling station. Katunguru

Page 1 of 35

Market polling stalion and Busunga polling station did not afI'ect the entirc election in the constituency.

2. The Learned Trial Judge erred in law and l'act when she did not exclude the results ofthe election at Katunguru Primary School polling station. Katunguru Market polling slation, and Busunga polling station having been satisfied that lhere were irregularities in the conduct ofthe election at the said polling stations.

3. The Leamed Trial Judge erred in law and I'act when shc ruled that illegalities and irregularities at Katunguru Primary School polling station, Katunguru Market polling station and Busunga polling station had lo be altributed to the l'r Respondent to warrant the reversal ol'the election results whereas not.

4. The learned Trial Judge erred in law and facl when she did not exclude the results of Ouoran Primary School polling station from the final results tally sheet

5. The Learned 1'rial Judge erred in law and fact when she concluded that the Appellant and his agents were satisfied with the outcome ofthe election because there was no evidence to show any registered complaints by the Appellant on polling day.

6. The learned Trial Judge erred in law and fact when she failed to expunge the alfidavits deponed in support ofthe 2'd Respondent's answer to the petition by Soki Salimah. Ahimbisibwe Winnie. Katusabe Immaculate. Tumwesigye Joramu. Busingye Patrick Kiggundu Arod and Kacancu lvan Mulindwa in light of evidence that they did not take oath belbre a Commissioner for Oaths.

7. The Leamed Trial Judge erred in law and fhct when she declined to expunge the affidavits of Kacancu lvan Mulindwa. Soki Salimah and Biira Juliet in support of the l'r and 2nd Respondent's answer to the petition thereby arriving at a wrong conclusion.

8. The learned Trial Judge erred in law and l.act when she lhiled to make a ruling on the preliminary point of

law raised against the unsworn allidavits in support of the 2nd Respondent's answer to the petition deponed by Soki Salimah. Ahimbisibwe Winnie. Katusabe lmmaculate, Tumwesigye Joramu. Busingye Patrick Kiggundu Arod and Kacancu lvan Mulindwa thereby coming to a wrong conclusion.

9.'Ihe learned Trial Judge erred both in law and l'act by relying on the expunged evidence of Mbabazi Yesunamara. the l"'Respondent's witness and by anributing her evidence to the Appellant thereby arriving at a wrong conclusion.

10. The leamed Trial Judge erred in law and lhct when she held that evidence of Kacancu lvan Mulindwa and Kamukasa Karoli in respect of ballot staffing committed by Mbabazi Yesunamara and obstruction uas not corroborated. therebl coming to a wrong conclusion'

t3l Respondent no.l filed a cross appeal on the following ground:

'The Learned trialjudge erred in larv and t'act when she did not address and or resolve the issue as to whelher all the affidavits purportedly comrrissioned by Arinaitwe Peter. a pa(ner in the firm of Cuma & Co. Advocates. and a non-gazetted commissioner ofoaths are competent and admissible in evidence.'

t41 'fhe respondents opposcd the appeal.

### Submissions of Counsel

/

t5l At the hearing, the appellant was represented by Mr. Jude Byamukama and Mr. Phillip Mwesiga, respondent no.l was represented by Mr. Kenneth Sebabi and respondent no.2 was represented by Mr. Eric Sabiti. The parties opted to rely on their conferencing notes on record as their written submissions. Counsel for respondent no. I abandoned his skeleton arguments.

- t6l Counsel tbr the appellant set out the duty ofa lirst appellate court as was stated in Muzanira Bamukwatsa v Masiko and Anor t20l8l UGCA 236. Counsel submitted on grounds I,2, 3,4 and 5 together. Counsel lbr the appellant challenged the decision of the leamed trial judge in three aspects. Firstly, that the leamed trialjudge erred in law and lact when she held that the acts of non-compliance with electoral laws proved by the appellant did not atlect the outcome ofthe election in a substantial manner because they were not committed by respondent no.1. Secondly that it was an error to hold that irregularities at potling stations that were not won by the appellant or respondent no.l are irrelevant. T'hirdly that it was erroneous to hold that the proved irregularities had to be attributed to respondent no.1 . Counsel submitted that it is trite that results tiom polling stations where irregularities have been proved must not be included in the final results tally sheet. Counsel relied on Muzanira Bamukwatsa v Masiko and Anor (supra). Nabcta & Anor v Mrviru [20]{llL](iCA 2 and <sup>N</sup> akecho Annet v L,kan <sup>a</sup>Geo llie Election l)etition Aopcal Nos 28 & 30 of'2016 (unreported) - t7l Counscl lirr the appellant l'urther submitted that upon excluding those results tiom the tally sheet. the court must then determinc whether the winning margin is af'fected or not. If the excluded results affect the winning margin. the final result is decmed to have been substantially al'fccted. Counsel argued that the trial coun ought to have adopted the quantitative test as required by the law sincc the petition is challenging results from specific polling stations. - t8l Counsel lirr the appellant submitted that the l00o% voter tum up at Katunguru Primary school polling station was lraudulent since there were I I dead people on the voters' register fbr the polling station who purportedly votcd. Counsel ret'erred to pages 329-334 of volume I of the record of appeal fbr poolof death ol'Kambu Lafahirina, Kiiza Adila. Muhumuza Wilson. Ngambeki Alexander, Tibamwenda Abdallah. 'furwameru Godfiey, Korutraro Ndyoka, Kyomukama Grace, Kadogo Geolliey. Ziiwa Ramathan and Kabasinsinguzi Grace. Counsel also relied on the afldavit evidence of Kamukasa Karoli, Dr. 'l'eddy Achola. Kyahurugahi Shaban, Bin Said and Baluku l'adeo to provc this allegation. Counsel contended that much as these people had passed

\

away betbre the polling day, their names were still included on the voters' register lbr the polling station.

- t9l Counsel tbr the appellant submitted that there was evidence to show that at the time of voting two registered voters that is; Asiimwe Julius Emoro and Kihara Fredrick were in prison and therefore could not have been part ofthe 786 voters that voted. Counsel f'urther submined that the appellant adduced aftldavit evidence of Tumuhirwe Ronald. Thembo Emmanuel, Rutahigwa Mukidad and Byensi Abdalahziz who all stated that they did not vote on the polling day. Counsel further submitted that affidavit evidence was adduced to prove that 3 registered voters that is; Tusubira Abbas, Nakuya Benedeta and Nambogo Hanilah did not vote because they were out of the country on the polling day. - [0] It was counsel tbr the appellant's submission that the evidence of Kacancu Ivan Mulindwa corroborated by the aftidavit evidence of Odw'oru Vincent proved that there was massive ballot stufling in favour of respondent no. I by Mbabazi Yesunamara at the polling station. - I I ] Regarding Busunga Primary school, counsel for the appellant submitted that the national voters register shows that there were 313 registered voters at the polling station whereas the Declaration of Results form shows that 4l 1 people voted but the ballot papers cast were 3 I I . Counsel submitted that this means that the results at the polling station were fraudulent due to an excess of98 votes. Counsel submitted that the 99.36% tum up registered at the polling station was tiaudulent because the appellant led evidence to show that there were 5 registered voters out ofthe country and one registered voter who did not vote on the polling day. Counsel argued that leamed trialiudge ought to have excluded the results ofthe polling station tiom the final tally sheet upon finding that there were irregularities in the results. Counsel contended that this would have reduced respondent no. t 's winning margin by 7 votes. - Il2l Regarding Katunguru Market polling station, counsel for the appellant submitted that the national voters register for the polling station shows that the polling station is comprised of 361 voters, the Declaration of Results F'orm shows that 350 voters voted whereas 354 ballots were

cast. Counsel contended that the extra unaccounted fbr ballots indicates fraud in the results. Counsel also contended that the 98.06% tum up recorded at the polling station is fraudulent because there were 3 registered voters who did not vote because they were dead by the polling day. These included Akello Faridah, Nanyonjo, Akello Dorris and Rwabukonzo Cosmas. Counsel submitted that Mbambu Sarah, Boonabana Zulfa, O.iede Kadiri and Bin Iddi Abdul Swaburu adduced affidavit evidence to show that they did not vote which was supported by allidavit evidence ol Nanyonjo Zainab, Kazini alias Haruna. Kalinzi Moses and Ninsiima Ritah.

- [ 3] Counsel I'urther submitted that there were nvo registered voters u'ho did not vote because they were in prison on the polling day. I'hese included Baluku Geoflicy and Kananura William. Counsel rel'erred to the al'fidavit evidence olthe stated persons and that ofNanyonjo Zainab lo support his submissions. Counsel submitted that the appellant adduced evidence through the al'fidavit of Bin Iddi Abdul that Asiimwe Jamila, a registered voter was out of the country on the polling day which was collaborated with the affidavit evidence of Nanyonjo Zainab. Counsel l'urther submitted that the appellant adduced affidavit evidence ol Kalenzi Moses. Ninsiima Ritah and Kazini alias Haruna to prove that there was non compliancc at Katunguru market polling station. L^ounsel contended that the signature of Katongole Ahamada. the appellant's polling agent lor Katunguru market polling station was tbrged. That in light of the above. it is clear that the voter tum up at the said polling station contained in the l'inal results tally sheet is spurious and thus the results ofthe polling station should have been excluded liom the tally sheet. - <sup>I</sup>l4] In reply, counsel lor respondent no. I submitted that the leamed trial judge properly evaluated the evidence on record and conectly found that the irregularities. ifany, in respect of the 3 polling stations were not committed by respondent no.l and as such did not substantially afl'ect the outcome of the election theretbre there was no need to exclude the results of the polling stations lrom the llnal results. Counsel submitted that respondent no.l did not in any way whatsoever benellt liom the alleged inegularities and to exclude the results on that account would be

to dislianchise the mandate and will of the rest of the voters o1' Busongora County South constituency. Counsel relied on'l'oolit Simon Akecha v Oulanyah Jacobs L'okori & Anor [20121 UGCA 5 and Toolit Simon Akecha v Oulanyah Jacobs L'okori & Anor Election Petition No. 001 of 201 I (unreported) to support this submission.

- [5] Counsel submitted that there were unexplained contradictions and inconsistencies in the testimonies of the appellant's witnesses that is; Katongole Ahamada and Kacancu Ivan Mulindwa which poses questions as to whether the witnesses were at the same polling station and at the same time. Counsel relied on Tavebwa v Kakuunarinda & Anor [2017] UGCA 63 to support his submission. Counsel for respondent no.l submitted that since Declaration of Results lbrms tiom all the 4 contested polling stations were signed and authenticated by the appellant's agents at the polling stations. the appellant is therefbre estopped liom disowning the results authenticated by his own agents. Counsel relied on Ngoma Ngime v Electoral Commission & Winnie l]yanvima Election Petition Appeal No. I I ol'2002 (unreported) and IiDetait v Ismat [20121 LJGCA 3 t0 support this submission - [6] Counsel for respondent no.l also submitted that apart from Katongole Ahamada, no other agent at Katunguru Primary school deponed any affidavit to complain about the malpractices they saw at the polling station. Counsel submitted that the allegations olobstruction and disenfi'anchisement of a one Kamukasa Karoli were not proved to the satisfhction of court. Counsel also submitted that the appellant did not adduce any cogent evidence to prove that the said I'umuhairwe Ronald, 'l'hembo Emmanuel, Hussein Halima and Nambozo Harriet did not vote on l4th January 2021 at. Katunguru polling station. Tumuhairwe Ronald and Thembo Emmanuel did not adduce any credible evidence to prove that that they were at Kikorongo trading centre on the voting day. He submitted that no evidence was adduced to show that they were residents of Kikorongo trading centre by the polling day and that Katongole Ahamada who they ref'erred to as their brother did not rel'er to them in his affldavit. Counsel also submitted that Rutahingwa Mukidad and Byensi Abdalahziz who claim that they were in Katerera-

Rubirizi district and Ntoroko district rcspectively on 14rh January 2021 did not produce any evidcnce to that et'l'ect.

- U7) Counsel fbr respondent no.l l'urther submitted that there is no evidence on record to prove that Asiimwe Julius Emoro, Mutabazi Isaac and Kihara Fredrick who are registered voters did not vote because they were in prison. He submitted that the evidence on record shows that a one Asiimwe Julius and not Asiimwe Julius Emoro was in prison at the time of voting, that the evidence on record shows that Kihara Federiko was in prison and not Kihara Fredrick, the registered voter at Katunguru Primary School polling station. Counsel submitted that the re is no evidence to show that Mutabazi Isaac was in prison. - [ 8] Counsel lbr respondent no.l also submitted that no evidence was adduced to show that the votcs ofthe 9 people that had dicd by the election dav if at all were cast that their votes were cast in lavour of rcspondent no. l. Counsel relicd on Toolit Simon Akccha v Oulanvah Jacobs L'okori & Anor (surrra) and'foolit Simon Akccha v Oulanvah Jacobs L'okori & Anor t,lection Petition No.00l of 201 I to support this submission. Counsel submitted that even if the 9 votes allegedly cast by the dead werc to be removed tiom the tally. respondent no. l's victory would remain untainted. Counsel submitted that whereas the appellant pleaded 9 votes. he attributed I I votes to the dead which oftends order 6 rule I olthe Civil procedure rules that provides that <sup>a</sup> party is bound by their pleadings. Counsel rclied on Interfreight Forwarders (U) Limited v East Afiican Development Bank [1993'l UGSC l6 to support this submission. - [9] Further. counsel fbr respondent no. I submitted that the appellant did not plead that any registered voters fiom Katunguru Primary School were out of the country on the polling day yet it was submitted that Nakuya Benedata, Nambogo Hanil'ah and Tusubira Abasi were out of the country at the time olvoting. Counsel submitted that this of'fends order 6 rule I of the Civil Procedure rules. Nonetheless" counsel contendcd that there is no evidence to show that Nakuya Benedata and Nambogo Hanilah travelled and Tusubira Abaasi's travel history availed to court is not clear. Counsel also submitted that there is no evidence that if at all

these witnesses' votes were cast that they were cast in favour ol respondent no. L

- l20l Counsel tbr respondent no.l stated that that allegations that l00votes were cast by Mbabazi Yesunamara in lavour ofrespondent no.l are unsubstantiated, baseless and untenable and that the appellant's submission that the 100 votes should be deducted l'rom the 133 votes that respondent no.l obtained at the polling station should be re.iected - [21) In reply to counsel fbr the appellant's submissions regarding Katunguru market polling station, counsel lbr respondent no.l submitted that Nanyonjo Zainab who swore the affidavit as respondent no.2's polling assistant at Katunguru market is not the same as the actual polling assistant that was appointed. Counsel submined that respondent no.2 appointed Nanyonjo Zainabu and not Nanyonjo Zainab. He submitted that Nanyonjo Zainab lied in her aflidavit that Mbabazi Yesunamara is a resident of Kasubi whereas the latter is a resident of Kibati. Counsel submitted that Kacancu stated that she was given I ballot book containing 50 ballot papers whereas Kazini, Kalinzi and Ninsiima stated that they were 55 ballot papers. Counsel contended that the evidence of Kalinzi Moses and Kazini alias Haruna in respect of the extra ballot papers or 5 ballot papers is contradictory and inconsistent in material particulars at what time and who handed over the ballot papers as alleged. Counsel submitted that the appellant had two agents at the polling station; that is Majidu Byaruhanga and Nsubuga Abdul Rasheed but none of the agents confirmed the allegations against respondent no. I and they duly signed the Declaration of Results lbrm of the polling station without any complaint. Counsel submitted that it was t-ear of revealing the truth that counsel for the appellant did not procure affidavits fiom his own agents. - l22l Counsel referred to inconsistencies in the evidence ofNanyonjo Zainab. Kacancu Ivan Mulindwa, Kalinzi Moses, Kazini alias Haruna and Ninsima Rita and submined that the inconsistencies are material and render the evidence of the deponents unreliable . He relied on Kezaala v Batambuze and Another [20171 UGCA 221 to support this submission.

Page 9 of 35 - l23l Counsel lbr respondent no. I further submitted that apart from mere allegations, the appellant did not adduce any cogent evidence to prove that Mbambu Sarah, BoonabanaZulfa, Ojede Kadiri, Bin Idd Abdul Swaburu did not vote on the polling day. Counsel submitted that no evidence was attached to their al'fidavits to show that they are residents ol'the said places they stated in their af'fidavits. He stated that respondent no.l admits that Kananura William and Baluku Geolfrey were in prison but that no evidence was adduced to show that Twinomugisha John was in prison and did not vote at Katunguru market polling station. Counsel submitted that the 5 dead people whose names appear on the voters' register did not vote and if they did. they did not cast their vote in I'avour olrespondent no.1. Counsel submitted that even if the 5 votes were to be removed from the final tally sheet, respondent no.l 's victory would remain untainted. Counsel further submitted that there is no evidence to show that Asiimwe Jamila had travelled. the documents adduced in court were not certified and are therefbre of no evidential value. He submitted that the allegations that 55 votes were cast by Mbabazi Yesunamara in favour ofrespondent no.l are unattainable. - [24] In reply to counsel for the appellant's submissions regarding Busunga Primary School polling station. counsel for respondent no.l submitted that there was no evidence adduced in court to show that the people who allegedly travelled out ol'the country's votes were cast in l'avour of respondent no.l. He submitted that respondent no.2's polling assistant at Katunguru market was Nanyonjo Zainab and not Nanyonjo Zainabu who svvore the af]'idavit. Counsel submitted that the aspect of the number of male and female voters who voted being in excess of the total number o1'registered voters at the polling station was not pleaded but nonetheless, counsel submitted that the appellant's agents at the polling station duly signed the Declaration of Results lbrm without any complaint and that since the discrepancies did not change the results declared at the polling station, they could be attributed to human error. Counsel also submitted that the people of the constitucncy should not be disenfranchised on such a trivial human error because respondent no.l only obtained I I votes at the school polling station.

- l25l In reioinder. counsel lbr the appellant stated that the cases of Toolit Simon Akecha v Oulanyah Jacob L'O Kori and Anor (supra) and 'I'oolit Simon Akecha v Oulanyah Jacob L'O Kori and Anor ( supra ) are distinguishable fiom this instant case. The cases were conceming the validity of some declaration of results forms that were not signed by the presiding otficers, agents and candidates. Counsel submitted that the only reason this court did not exclude the results of the impugned polling stations where the agents had signed and not disowned their signatures was because there was no proof of existence ol irregularities. Counsel fbr the appellant submitted that this is distinguishable from this instant case where there is suflicient evidencc proving irregularities at 3 polling stations. - [26] Counsel also submitted that case olNsoma Nsime v Electoral Commi ion & Anor (supra) rclicd upon by the respondcnts is equally distinguishable liom this instant case because in that case there was no proof that irregularities had been committed at the contested polling stations. Counsel maintained that there was sulflcient proof that irregularities had been committed at Katunguru primary school polling station, Katunguru market polling station and Busunga primary school polling station to warrant the exclusion ofthe results of the stated polling stations from the record. - 127) Regarding grounds 4 and 5, counsel for the appellant submitted that the results in the tally sheet for Quran Primary School polling station were inconsistent with the results in the Declaration of Results Form for the polling station. The Declaration of Results Form shows that the appellant obtained 5 votes while the tally sheet indicates that the appellant obtained only one vote. Counsel submitted that the appellant was cheated of 4 votes which given the narrow margin of victory between the appellant and respondent no. I af-fected the outcome of the election once the other irregularities are taken into consideration. Counsel relied on Morqan and others v Simpson and Anor I19731 3 All ER 722 tbr the submission that court can declare an election invalid if the irregularities in the conduct ofthe election aflected the results. Counsel submitted that the leamed trial judge therefore erred in law

when she held that the irregularities in only 3 or 4 polling stations could not afi'ect the results of the entire constituency.

- [28] In reply, counsel fbr rcspondent no.1 submitted that the trialjudge rightly declined to strike out the affidavits of Biira Juliet and Mbabazi Yesunamara. Counsel also submitted that the trial .ludge rightly fbund that the evidence of Kacancu Ivan Mulindwa and Kamukasa Karoli in respect of ballot stulfing and obstruction allegedly committed by Mbabazi Yesunamara was not corroborated. He submitted that it is not true that the trial court relied on the expunged af'fldavit of Mbabazi Yesunamara. - I29l Regarding grounds 6 and 8, counsel fbr the appellant submitted that the affidavits deponed by Soki Salimah, Ahimbisibwe Winnie, Katusabe Immaculate, Tumwesigye Joramu, Busingye Patrick Kiggundu Arod and Kacancu Ivan Mulindwa on behalf of respondent no.l and respondent no.2 are invalid because the deponents did not appear befbre the commissioner fbr oaths. Counsel relied on thc alfidavit evidence of Kacancu lvan Mulindwa and Soki Salimah to support his allegations. Counse I for the appellant submitted that this evidence was not challenged by the respondents save lbr bare denials. Counsel relied on 'Iubo Christine Nakwans, <sup>v</sup>Akello Rose [.illv t20l 7l UGCA 223 fbr the submission that it is trite Iaw that a general denial is insufllcient. In addition. counsel tbr the appellant submitted that no evidence was adduced by the respondcnts to prove that Cosmas A Kateeba indeed administered the oath of the said witnesses in Kasese which left thc evidence of Kacancu Ivan Mulindwa unchallengcd. - [30] Counsel for the appellant cited section 5 and section 6 ofthe Commissioner lbr Oaths (Advocate)Act to support the submission that a commissioner fbr oaths before whom any oath or affidavit is taken or made has the duty to state truly in the jurat at what place and on what date the oath was taken. He contended that there is no evidence to prove that the said witnesses appeared before the commissioner of oaths on 8th May 2021 as fhlsely rel'lected in the jurat which is a violation of the law which warrants expunging the af fidavits of the said witnesses from the record.

- [3 l] Counsel submitted that this court and the Supreme Court have held in numerous cases that aflldavits that have been signed by deponents and tbrwarded to the commissioner lbr oaths fbr signing without the deponents bcing present to take oath should bc rcjected. Counsel lbr the appellant relicd on Nabukeera v Kusasira l20l7l []GCA 52 and Kakooza John Baptist v f:lectoral Commission & Anor 120081 UGSC <sup>8</sup> to support this submission. - l32l Regarding ground 7. counsel fbr the appellant submitted that the affidavit ofKacancu Ivan Mulindwa ought to have been expunged from the record on account ofvariation in the signature on the iurat page and that on his national identiflcation card. Counsel submitted that the leamed trial judge erroneously concluded that she could not expunge the said afldavit trom the record because the said deponent did not have identilication documents on the record to satisfy court that his identification was in question. Counsel submitted that the learned trial judge ought to have compared the signature on the letter attached to the appellant's affldavit in re.ioinder and that contained in Kacancu's affidavit. Counsel submitted that the difl-erence in signatures would bc sufficient to put the deponent's identity in question therefbre warranting expunging the said atlldavit liom court record. Counsel relied on Muyania Lutaaya v Lubogo & Anor I20l7l UGCA 64 and Kassaia v Ngobi and Another [20] tt] UGCA 237 to support this submission. - [33] Regarding grounds 9 and 10, counsel for the appellant submitted that the leamed trial judge erred when she relied on the aflidavit evidence of Mbabazi Yesunamara that had been expunged fiom the record fbr disparity in her signature on the national identification card and the jurat page. Counsel submitted that the evidence of the witness could not be attributed to the appellant because her evidence was not in support of the appellant's case but rather, she was respondent no.l's witness. Counsel tbr the appellant further submitted that the trial .iudge erroneously concluded that the evidence of Kamukasa Karoli in respect of ballot stut'fing committed by Mbabazi Yesunamara was not corroborated since it was corroborated by the affidavit evidence of Odworu Vincent and Katongole Ahamada.

Page 13 of 35

- [34] Counscl lbr rcspondent no.2 reitcrated the submissions ofrespondent no.l with a tbw additions. conceming the appellant's prayer to exclude the results ofthe tbur polling stations, counsel lbr respondent no.2 submitted that unlike in this instant case. in Muzanira Bamukwatsa v Masiko (supra). Igeme Nathan Nabeta & Elcctoral Commission v Mwiru Paul (supra) and Nyakccho Annct & Anor v Ekanya (ieollic-v (supra) which the appellant seeks to rely on. the quantum ofvotcs and or the ligures in controversy were exactly between the petitioning party and the other respondent who was declared as the winner of the election. Counsel submitted that in this instant case, respondent no.l did not win in any of the stated polling stations, that in fact thc parties perfbrmed poorly at the polling stations therefore it is unfair to distianchise the voters in the constituency on such results. Counsel relied on Apollo Kantinti v Sitenda Sebalu & Others Election Appeals No.3l & 33 ol20l6 (unreportcd) to support his submissions - [35] Counsel for respondent no.2 further submitted that the allldavits that were swom by its officials which came at a much later stage of the petition were an afte(hought and are not ofany worth. These included that atldavits of Zainab Nanyonjo, Kalinzi Moses, Kazini alias Haruna and Ninsiima Ritah. Counsel submitted that court cannot rely on the evidence ofthe self-confbssed wrong doers who raised the issue much later in the petition. Counsel relied on Kamba Saleh Moses v Namuvangu Jennifer [2012] UGCA 8 and Amama Mbabazi v Museveni Ors [20161 UGSC 3 where the courts did not consider the evidence of self:confessed wrong doers on the ground that their testimonies could not be relied upon. - [36] Regarding the cross appeal. counsel lbr the respondent no.l submitted that thc appellant's atfidavits in re.ioinder to respondent no.l and respondent no.2's answers to the petition. the atfidavits in reioinder of Kacancu Ivan Mulindwa, Katongole Ahamada. Mbambu Sarah. Odworu Vincent. Kamukasa Karoliand the supplementary aftidavits of Assimwe Julius llmoro are incompetent having been purportedly commissioned betbre a commissioner for oath who is a partner in the same law tirm that is representing the petitioner and who was not gazetled in accordance with the law. Counsel relied on section l(3) and

section 4( I ) of lhe Commissioner fbr Oaths (Advocates) Act to support his submissions. Counsel submitted that Arinaitwe Pcter is a partner in Guma & Co. Advocates. a law firm representing the appellant befbre court. Counsel relied on Mpanga v Ssenkubuge and Anothcr [2021] LiGHCCD I l2 and Suubi Kinvamatama v Senton () l20t nl <sup>U</sup>(icA <sup>240</sup> to support his submissions.

- [37) In reply, counsel for the appellant argued that the cross appeal is incompetent in light of rule 9t(1) of the rules of this court. Counsel submitted that belbre a cross appeal can be instituted, a llnal decision liom the High court settling the matter in controversy has to be in existence Iiom which the grievance arises. Counsel lbr the appellant submitted that there is no final decision from the trial court regarding the matter which renders the cross appeal an abuse ofcourt process. Counsel fbr the appcllant relicd on Attomey General and Anor v James Mark Kamoga and Anor 120081 IJGSC 4 to support this submission Counsel submitted that the respondent no.l would have had his grievance best heard under a notice of grounds fbr aflirming the decision provided under rule 92 of the rules of this court. - [38] Nonetheless, counsel for the appellant submitted that the allegations in the cross appeal are untbunded and lack merit. The respondents did not prove to the satisfaction of court that Arinaitwe Peter was at the time of commissioning. a partner at Guma & Co. Advocates. Counsel submitted that respondent no. I 's claim to have ioined the cross appeal without liling the necessary documents is redundant and should be disregarded.

## Analvsis

(

[39] As a t'irst appellate court, it is our duty to re-evaluate the evidence on record as a whole and arrive at our own conclusion bearing in mind that the trial court had an opportunity to observe the demeanour ofthe witnesses which we did not have. See Rule 30 of the Judicature (Court ofAppeal Rules) Directions S I 13-10, Banco Arabe Espanol v Bank ol Uganda il 9991 UGSC I . Rwakashaija Azarious and others v Uganda Revenue Authority [20101 UGSC 8 and Omunyokol v Attomey General t2012J UGSC 4.

## Grounds 6 & 8

- [40] Grounds 6 and 8 are essentially the same in substance and shall be handled jointly. Counsel fbr the appellant contended that the affidavits of Soki Salimah. Ahimbisibwe Winnie. Katusabe Immaculate. Tumwesigye Joramu, Busingye Patrick, Kiggundu Arod, Kacancu Ivan Mulindwa and Biira Juliet should have been expunged lrom the record because they were not sworn befbre a commissioner for oaths. Counsel relied on the at'tidavit in re.loinder for Kacancu Ivan Mulindwa and Soki Salimah to support this submission. Counsel for the appellant also contended that the additional af'fldavit in reply of Kacancu Ivan Mulindwa should have been expunged from the record on account of varialion in signature on the jurat page and on his national identity card. - [41] Kacancu Ivan Mulindwa stated in his additional af'fidavit in rejoinder that on 8rh May 2021, he was invited in his capacity as chairperson I.ocal Council ll by the chairperson l.ocal Council I Kibati village to join him at Katunguru Health centre I I in the patients waiting room fbr a meeting. He lbund the above stated deponents at the meeting plus two more persons that were introduced to him as lawyers fiom respondent no.2. He stated that he knows Cosmas A Kateeba and that the said Cosmas was not present at the meeting. Further. Kacancu stated that the lawyers gave to each of the deponents four copies of af'fldavits that were lbr signing and each of the deponents signed. He averred in his al'fidavit that none ofthe deponents signed their affidavits before Cosmas Kateeba. He stated that the commissioner did not travel to Katunguru or anywhere to commission the af'lidavits. - l42l Soki Salimah corroborated the evidence of Kacancu Ivan Mulindwa in her additional affidavit in re.ioinder. She stated that she was invited by Tumwesigye Joramu. the Katunguru parish supervisor ofrespondent no.2 to join him for a meeting at Katunguru health centre 1l on 811'May 2021 . The said meeting started at 2:00 pm and ended at 5:00 pm. She stated that Ahimbisibwe Winnie, Yunusu [-ubega. Tumwesigl'e Joramu. Kiggundu Arod and Katusabe Immaculate were present. She avcrred that they were.ioined by Kacancu lvan Mulindwa and Bwambale Amon Kisakye, the Local Council I o1'Kibati village shonly after the meeting started. She started that no advocate or commissioner fbr oaths by the

)

names of Cosmas A Kateeba was introduced to them during the meeting. She also averred that Ahimbisibwe Winnie, Yunusu Lubega, Tumwesigye Joramu, Kiggundu Arod and Katusabe Immaculate and herself signed their additional af'I'idavit in reply belbre the lawyer ol the E,lectoral Commission who had earlier on interviewed them. The af'fidavits were presented to them when they were already dralied.

- [43] It should be noted that Kacancu Ivan Mulindwa and Soki Salimah are recanting witnesses. Kacancu Ivan Mulindwa swore an additional afl'idavit in reply for respondent no.l denying all allegations against him that he was involved in pre-ticking of ballot papers. ballot stulfing and multiple voting at Katunguru market polling station and Katunguru primary school polling station but he later swore a suppleme ntary affidavit in rejoinder on behalf of the appellant in which he admits to the allegations. He contended that he did not sign the aflidavit in reply basing on the discrepancy in his purported signature on the jurat page and that in a letter addressed to the appellant attached to the appellant's affidavit in rejoinder in which Kacancu Ivan Mulindwa denied having signed the af'tidavit but states that he only put his name. - [44] Soki Salimah also swore an additional alldavit in reply on behalf of respondent no.2 denying the allegations by the appellant that there were irregularities at Katunguru primary school polling station and averred that the election was conducted in a fiee, l'air and transparent manner and in accordance with the electoral laws and principles. She later on swore an af'fidavit in rejoinder tor the appellant in which she denies the averments. - t45] 'fhere are 2 possible approaches to dealing with aflldavits of witnesses that switch sides and or recant their earlier affidavits. Firstly, it is wrong and unprofessional lbr an opposite party to approach the witness of the other party seeking to tum that person into the witness tbr his side. Once that party is aware that such person is witness tbr the other party the only option available to him or her is to meet in court and subject such witness to cross examination. Any other course undermines the concept of a lair trial where one party's witnesses are not safb fiom the

machinations ol'the opposite party. Alfidavits obtained this way should be struck out Ibr inliinging the right to a f-air trial.

I,16l This court in Kintu Alex Brandon v lllectoral Commission & Anor Election Petition Ap .., I No.0064 of l6 (unreported) while dealing with evidence of recanting witnesses statedl 0

> ' We wish to point out that the actions of the 2nd Respondent and his legal team in approaching the witnesses ofthe petitioner and obtaining further affidavits liom them was contrary to rule l9 of the Advocates (Protbssional Conduct) Regulations SI267i2 which not only renders counsel involved open to disciplinary proceedings fbr professional misconducl. but ought to have been sulJicient ground for re.jecting or striking out those affidavits lbr violating the tenets ofa fair trial. Our rules would have required that the challenge to such evidence would only be by way of cross-exam inalion to test the veracity oftheir evidence. An adverse side is prohibited tiom approaching witnesses for the other party with a view to including them to testity against that other party.

Rule l9 states.

' I 9. Advocates not hinder witness. etc. An advocate shall not- in order to benellt his or her clienl's case in any way, inlimidate or otherwise induce a witness who he or she knows has been or is likely to be called by the opposite party or cause such a witness to be so intimidated or induced frorn departing from the truth or abstaining from giving evidence.'

[47) The other approach is to view the evidence of such witnesses who swear atfidavits for both contending sides in a proceeding with zero crcdibility. In N keera v Kusasira 20I [J(icA 52. while dealing with a similar matter. this court stated as lbllows: h

> "... An affldavit is a solemn declaration that is made under an oath and belbre a commissioner lbr oaths. The integrity and probate value ofan atlldavit is the solemnity of the oath that is administered on the basis of which lhe deponent is bound. If a deponent comcs lbrth alier offering an aftidavit. having an oath administered, and then having had it commissioned turns around and confesses to have made a t'alse averment therein. that deponent has no credibility or integrity and cannot be relied upon to be truthl'ul as a witness. whatsoever, in any further affidavit. ln Election Petition No.008 of 2008 Qurum Okiror Sam vs EC and Ochwa David. the court ruled:

J

"The practice of witnesses in election petitions switching sides is becoming too common. The fact that they can state one thing on oath one day state a contradictory thing on oath the nexl day portends very bad news for the state of law and order in the country. As far as this petition is concerned. I agree with counsel for the 2nd respondent thal lbr a court of law to rely on the evidence of such a witness would be untenable. The credibility ofa witness who appears on both sides ofa case. stating contradictory statements is left considerably compromised. The safest course of action for court to take is to completely disregard his or her evidence.'

[48] 'fhe leamed trial judge approached this matter as under,

'When cross examined, Biira Juliet one ofthe deponents testified that she appeared before a man to draft the affidavit and the said man translated for her. Her evidence that she appeared in Fort Portal on 23'd August,202l. was not challenged. Counsel seeks to rely on the time difference between the filing ofaffidavits and having them drawn. However, this is mere speculation as it is not conclusive proofthat the deponents did not appear before a Commissioner for Oaths or that they were not in Fort Portal on the date ofswearing the affidavits. This argument is therelore disallowed as it does not affect the credibility and reliability ofthe affidavit evidence on record.'

[49] The appellant relies on the alfidavits ofwitnesses that have been shown to be turncoats whose evidence is wholly comprised and cannot be relied upon. The leamed trial judge, in rejecting the petitioner's objection, concluded that the petitioner had failed to show that

deponents to the impugned atfidavits had not swom them befbre a commissioner for oaths. I am not persuaded that she reached the wrong decision on this point. I rvould reject ground 6 and 8 of this appeal.

## Ground 7

- [50] As noted above it was wrongful lbr the respondent no.l to approach witness tbr the petitioner and obtain affidavits liom them to support the answer to petition and annex them to his answer. As a matter of principle a party is not authorised to approach witnesses of another party to persuade them to recant their evidence in f-avour ofthat party. For whatever reason ifhe objects to their evidence for the other party they should meet only in court and under cross examination establish whatever point or points he needs to establish. To permit the contrary to happen is to allow mayhem in civil proceedings. - [51] I would accordingly allow ground 7 and strike out the af'fidavits swom by the petitioner's witnesses and annexed to the respondents' answer to the petition.

## Ground I of the Cross Appeal

- l52l Counsel for respondent no.l contended that the leamed trialjudge erred in law and t-act when she did not address the issue as to whether the allldavits that were commissioned by Arinaitwe Peter, a partner in Guma & Co. Advocates are competent and admissible in evidence. The affidavits in question were the appellant's affidavit in rejoinder to respondent no.l and respondent no.2's answer to the petition, the affidavits in rejoinder of Kacancu Ivan Mulindwa, Katongole Ahamada, Mbambu Sarah, Odworu Vicent and Kamukasa Karoli and the supplementary a1'fidavit of Asiimwe Julius Emoro. Counsel contended that these affidavits were incompetent tbr having been commissioned by Peter Arinaitwe, a partner in the law firm representing the appellant. - t53l Counsel lbr the respondents also alleged that the said Arinaitwe Peter was not gazetled as a commissioner for oaths at the time of

\

commissioning which is contrary to section I (3) of the Commissioner for Oaths (Advocates) Act.

- [54] This allegation was raised in what the respondent no.l termed as an aflldavit in reply to the supplementary affidavits in rejoinder of the petition. There is no such thing in law as a reply to a rejoinder, without the express permission of the court. There must be an end to filing of pleadings and related at'fidavits. Not having shown that the aflldavit in question was filed with the permission of the court I would not f'ault the leamed trial judge tbr ignoring the same. - [55] With regard to the issue of non-publication in the Uganda Gazette of <sup>a</sup> commissioner for oaths' commission. it is not clear that it is the duty of the newly appointed Commissioner for Oaths to publish the appointment in the Uganda Gaz-elte. This duty may actually lie upon the Chief Registrar, and when he or she fails to do so, it need not necessarily result in the nullitlcation ofdocuments that have been commissioned by the Commissioner for Oaths. - [56] Secondly seeking to nullify such documents does not directly affect the commissioner but a third party who would not be aware whether or not the Chief Registrar or the Commissioner caused the publication of the commission in the Uganda Gazelle. Such third party is not sanctioned by the Commissioner for Oaths Act. Nulliflcation of documents commissioned by such a Commissioner does not advance the administration of the justice in anyway. It has nothing to do with the quality of the affidavit evidence so affected.'l'his attack is not directed to thc substance olthe cvidence before the court but is a side show intended to disquality evidence without attacking its value. - l57l ln my view there ought to be separate proceedings against the Commissioner in relation to whether or not he or she should have commissioned affidavits in light of whether or not the commission that appointed him was pubtished in the Uganda Gazelte or not in terms of section 6 of the Commissioner for Oaths (Advocates) Act. Until such proceedings are held and determined I would be loath to nullify affidavits which on their lace have been commissioned by a Commissioner for Oaths duly appointed by the appointing authority.

Page 21 of 35

l58l I would dismiss the cross appeal fbr lack of mcrit.

## Grounds 1,3, and 5.

- [59] Grounds l, 3 and 5 shall be handled together since they are interrelated. - [60] Counsel for the appellant contended that the leamed trial judge erred in holding that the irregularities at the polling stations that were not won by either the appellant or the respondent were irrelevant. Counsel also fbulted the leamed trial judge tbr holding that the irregularities proved had to be attributed to respondent no.l and that the learned trial .judge erred in law in Iinding that the irregularities did not afl'ect the outcome of the election. These irregularities were attributed to lbur polling stations that is; Katunguru Primary school polling station. Katunguru market polling station, Busunga Primary school polling station and Quran Primary school polling station. Counsel contended that the results from these polling stations ought to have been excluded tiom the final tally sheet by the leamed trialiudge fbllowing the irregularities that were proved at the said polling stations during the elections. - [6 <sup>I</sup>I Counsel for the appel lant d isputed the 1 00% voter tum up at Katunguru Primary School Polling station. The Declaration of Results Form for the polling station shows that 786 voters out of the 786 registered voters at the polling station voted. The petitioner alleged in his alldavit that 1007o voter tum at the polling station could only be as a result ofvote stuffing, ballot pre-ticking and multiple voting considering the fact that there is evidence that there were dead voters on the register. There were voters who were in prison on the polling day and did not vote. And there were some voters who did not vote at all. - 162l The appellant contended that there were 9 people who had died but were still on the voters' register fbr the polling station. Upon perusing the record of appeal. I have confirmed that they were 7 people that had passed on but were still registered as voters at the polling station. These included Kabasinguzi Grace, Tibamwenda Abdullah. Kamubu Lafahirina, Ngambaki Alexander, Turwameru Godfiey, Kiiza Adija and

Korutaro Ndyoka. The evidence on record also shows that Asiimwe Julius and Kihara f'redrick whose names appear on the voters' register fbr the polling station were in prison on l4th January 2021 when the elections were conducted. l'his is contirmed by the at'lidavit evidence of Odworu Vicent and Katongole Ahamada.

/

- [63] Counsel submitted that Tusubira Abbas. Nakuya Benedeta and Nambogo Hanifah were not in the country on the election day. I{owever, I note that the appellant did not plead this l-act in his petition therefbre I am not inclined to take it into consideration in light ofthe decision ol the Suprcme Court in Intcrtieight Forwarders (U) Limited v Ea Afiican Deve lo ment llank 1993 UGSC 16. Tumuhairwe Ronald and Thembo Emmanuel swore alfidavits in support of the petition stating that they did not vote on the polling day as they were not around They had not travelled back fiom Kikorongo trading centre. Rutahigwa Mukidad stated that he did not vote because he was involved in his private fishing work at Katerera. Byensi Abdalahziz also stated that he did not vote on the polling. All these people were registered voters at Katunguru Primary school polling. 'lheir evidence was unchallenged. - 164l Counsel contended that there was also evidence of massive ballot staffing at Katunguru polling station. This evidence was contained in the afildavit evidence of Kacancu Ivan Mulindwa and Odworu Vincent. The aflldavit evidence of Kacancu Ivan Mulindwa has already been rejected. - [65] Katongole Ahamada, the polling agent for the appellant, the vice chairperson LC I Kasubi Village Katunguru parish, Lake Katwe sub county Kasese district and a registered voter at Katunguru Primary School polling station stated in his aftdavit in support of the petition that at around midday, he saw the presiding of'ficer Yunusu Lubega picking up 8 ballot books and handing then over to Kacancu Ivan Mulindwa which he took, pre+icked and later inserted in the ballot box. He complained to the presiding olIcer but he was shut down. He stated that the presiding officer and police officer in charge of the polling station threatened him with arrest if he continued to complain about the illegality. He stated that in order to cover up the illegality, the presiding ollcer ticked all the registered persons on the voters' register as having

voted. He further stated that at around 2:30 pm. all ballot papers at the polling station were tlnished. A one Kamukasa Karoli arrived at 3:00 pm at the polling station to vote but was sent away on account that all persons supposed to vote at the polling station had voted and that the ballot papers were done. Kamukasa complained but he was sent away fbr causing commotion in the presence of the police constable. Kamukasa Karoli conllrmed this evidence in an additional aflldavit in support ol the petition.

- [66] He further stated that when the voting closed at 4:00 pm, upon counting all the cast ballot papers, they were 801 thus exceeding the number ol' registered voters by l5 votes and exceeding the number of ballot papers received at the polling station by I vote. When he complained, the presiding oflicer and Rubanza Andrew the police oI'ficer in charge ol Katunguru police station shifted the vote counting to an ungazetted f'enced house next 10 Katunguru police station. He stated that all the candidates' agents were not allowed to leave until they signed. They remained in the house with the other agents until 11:00 pm. He invited the intervention ofthe appellant's sub county supervisor, a one Thembo Paul Kimbcsa but he was chased away by police and some members of the UPDF. He stated that he did no1 sign but the Declaration of Results Form showcd that the deponent had signed. - 167) Upon cross examination, the deponent maintained his evidence that he did not sign the declaration of results lbrm lbr the polling station because ofthe stealing ofvotes that had happcned during the election. - [68] Odworu Vicent avened in his affidavit in reioinder to respondent no.2's aflldavits in reply to the petition that Kacancu Ivan Mulindwa received lrom Yunusu Lubega the presiding ol'llcer fbr Katunguru Primary school polling station 8 ballot paper booklets each containing 50 ballot papers for pre{icking in favour of the president and that Mbabazi Yesunamara equally received lrom the said Yunusu 2 ballot books containing 100 ballot papers which they pre-ticked and later stuffed in the ballot box in lhvour of the NRM presidential candidate and respondent no. I respectively.

- [69] Malick Bin Hussein, one of the polling agents fbr respondent no.l at Katunguru Primary School polling station denied the above allegation in his accompanying affidavit in reply. He averred that the electoral process was shifted to the building next to the police station for purposes of signing the declaration of results fbrms due to bad weather and that all the classrooms in the school were closed at that time. He stated that he witnessed Katongole Ahamada willingly sign the declaration of results fbrm. Respondent no.l also denied the above allegations is his al'fidavits in answer to the petition. - [70] Katusabe Immaculate. the polling assistant lbr respondent no.2 at Katunguru Primary school polling station denied the allegations stated above by Katongole Ahamada and Odworu Vicent. She stated that the election was conducted in a free and fair manner. She stated that all voters were verified through the BVVK machine before issuing to them ballot papers and that there was no preticking olballot papers, ballot stuffing and multiple voting at the polting station. She stated that Kamukasa Karoli was allowed to vote after verification of his details. Yunusu Lubega also denied thc allegations against him in his affidavit in support ofrespondent no.2's answer to the petition. He stated that the elections at the polling station were conducted in a free and fair manner and in accordance with the electoral laws and principles. He denied issuing out the said ballot boxes to Kacancu Ivan Mulindwa. He stated that he saw Kamukasa Karoli vote at the polling station. - [71 ] Upon evaluation of the evidence on record, I am unable to believe the evidence to the ef-fect that the election at Katunguru Primary school polling station was conducted in a fair and tiee manner in line with the principles ofconducting an election under our electoral laws. There is sufflcient evidence of ballot pre-ticking, balloting stuffing and multiple voting which is strengthened by the fact that the 1007o voter tum recorded at one polling station could not have been possible given the fact that there were people who had died and some who did not vote but were still on the voters' register. This implies that their votes were cast and at this point it does not matter in whose f'avour the votes were cast. What is evident is that the results of the polling station wcre not a reflection ofthe will of the people and cannot be relied upon.

- I72l In light of the above. I t'rnd that the election at the polling station was marred by irregularities and electoral malpractices. - [73] Regarding Katunguru market polling station. counsel tbr the appellant contended that the 98.06% of voter tum up recorded at the polling station was fraudulcnt. Of the 361 registered voters at the polling station, 354 ballots were cast while the total number of males and t'emales registered to have voted were 350. There was an excess of 4 votes that were unaccounted t'or. Counsel contended that the 98.06% was liaudulent owing to the lact that there were people who died but were still on the voters' register. some people were in prison, others were out of the country whereas some people did not vote on the polling day. - l7 4l There is sufficient evidence on the record to show that Akello Faridah Ateng, Akello Dorris and Rwabukonzo Cosmas. Nasasira Paul and Zizinga Abdul Karim whose names were still on the voters' register lbr Katunguru market polling station had died by the polling day. Kananura William and Buluku Geoffrey Kibati were in prison on the polling day. Bin Iddi Abdul Swaburu stated in his affidavit in support of the petition that his liiend Assimwe Jamila did not vote because he was out of the country. That the said person travelled on lOtl'February 2020 to the Kingdom of Saudi Arabia and came back in the country on lSth January 2021 . This is hearsay evidence and cannot be relied upon. Further, he also stated that he did not vote at the polling station. Mbambu Sarah stated that she did vote because she was in Kigo Wakiso district, Boonabana Zulfa was in Kampala on the polling day and Ojede Kadiri stated that he did not vote because he had shifted temporarily to Fort Portal tbr work. 'l'he people who did not vote stated that their names on the voters' register had been ticked indicating that they had voted. - [75] Counsel submitted that there was evidence showing non-compliance with the electoral laws by the olficials of respondent no.2. Counsel referred to the affidavit evidence of Kalenzi Moses. Ninsiima Ritah and Kazini alias Haruna. - l7 6l In his alfidavit in reioinder, Kalinzi Moses stated that he was appointed as the polling assistant for respondent no.2 lbr Katunguru market

Page 25 of 35

polling station responsible for the directly elected member of parliament firr the constituency. He stated that it was not true as alleged by Ahimbisibwe Winnie that the elections at the polling station were conducted in a frce and t-air manner. Kalinzi stated that he was aware of the events that transpired at the polling station because he arrived at the polling station at 6:00am and left at 9;00pm. Ile deponed in his af'fidavit that the voting started at about l0:00am but throughout the voting exercise the voter tum up was low. He stated that Bwambale Amon Kisakye. the chairperson LCI Kibati village (Kacancu Ivan Mutindwa) were some olthe people he knew who were present at the polling station but moving between the polling station and Katunguru primary school polling station because they are less than 100 meters away from each other. It was Kalinzi' s evidence that while at the polling station Mbabazi Yesunamara kept on telling people to vote fbr the president and respondent no.1. She was among the people who voted early when the voting exercise started and he gave her one ballot paper. Shortly after, she went back and asked fbr more ballot papers and he refused. This led to an exchange of rvords where she labelled him a National Unity Platform supporter. Mbabazi Yesunamara proceeded to the presiding of'ficer to whom she complained. The presiding oflicer gave her 5 ballot papers for Members of Parliament lrom the deponent's desk which she pre ticked and stutted in the ballot box fbr directly elected member of parliament.

l77l 1-he deponent further stated that at around midday Kacancu Ivan Mulindwa. Kisakye Amon and Mbabazi Yesunamara came from Katunguru primary school accompanied by two more people unknown to him and called Agaba Patrick, the presiding olllcer aside and engaged him. Because he was seated at a distance of less than 5 meter away, he heard the said pcrson persuade the officer to get ballot papers in favour of the NRM presidential and parliamentary candidates. 'fhe o1'ficer told them to first persuade the other candidates' agents and when they failcd they caused a standof'f at the potling station allcging that the electoral officials led by Agaba Patrick were working in the interests of NUP and the opposition in a predominantly NRM area. The presiding ol'ficer succumbed to pressure and handed over 5 ballot booklets to Kacancu Ivan Mulindwa in I-avour of the NRM candidate and that Agaba picked 50 ballot papers liom him and handed them over to Mbabazi Yesunamara. He stated that on the instruction of the presiding oftlcers, Daisy Singa and Kacancu Ivan Mulindwa, not being registered voters at the polling station picked ballot papers and voted.

- [78] Kalinzi Moses lurther stated that his attempts to restrain the presiding officer supported by Nanyonj o T.ainab and Kazini Haruna were in vain. He stated that shortly after 2:00pm, Kacancu lvan and Mbabazi Yesunamara came back and put the pre-ticked ballot papers into the ballot boxes in the company of Rubanza Andrew the ofllcer in charge of Katunguru polling station and they watched helpless in the presence of other police ol'ficers and constable deployed at the polling station. He stated thal all these irregularities were being committed as Rubanza Andrew had taken control of the polling station. - 179], Ninsiima Ritah stated that she was appointed as a polling assistant for respondent no.2 fbr Katunguru market polling station responsible for the Ink desk. She was to record whoever voted at the polling station. She corroborated Kalinzi Moses' evidence. In addition. she stated that she saw the presiding of'ficer pick one booklet containing 50 ballot papers which he took away and pre-ticked in favour of respondent no. I and later inse(ed the ballot papers in the ballot boxes. She stated that Nanyonjo Zainab, Kalinzi Moses and Kazini alias lJaruna tried to restrain the presiding of ficer but in vain. Kazini alias Haruna who stated that she was appointed as a polling assistant by respondent no.2 at Katunguru market polling station responsible standard operating procedures corroborated the evidence of Kalinzi Moses and Ninsiima Ritah. Nanyonio Zainab. the polling assistant ofrespondent no.l in charge ofthe women desk at the polling station also corroborated the above evidence. - [80] Ahimbisibwe Winnie, swore an additional afldavit in support of respondent no.2's answer to the petition. She stated that she was the BVVK o|lcer lbr Katunguru market polling station. She avened that the election was conducted in compliance with the principles laid down in the elcctoral laws. She stated that BVVK machine operated very well and that the entire proccss was fiee and fbir. Tumwesigye Joramu, the

supervisor tbr Katunguru parish stated the same in his evidence. Kalinzi Moses. Nanyoni o Zainab and Ninsiima Ritah stated in their aflidavits that Ahimbisibwe Winnie did not act as the olficer in charge of the BVVK machine at Katunguru market polling station on the polling day. That it was a one Sulait Ibrahim who had exchanged positions with the said Ahimbisibwe that operated the BVVK machine at Katunguru market polling station on the polling day. Respondent no.l denied Kacancu lvan Mulindwa as his agent but admitted Mbabazi Yesunamara was his Katunguru parish supervisor. He denied the allegations against Yesunamara Mbabazi of pre-ticking ballots and ballot stu l'fing.

- [81] Singa Deziranta. respondent no.l's polling agent at Katunguru market polling station stated in her afldavit that she did not see Kacancu Ivan Mulindwa at thc polling station on the polling. She generally denied the allegation by Kalinzi Moses, Ninsima Ritah and Kazini alias Haruna and statcd that Yesunamara Mbabazi did not pretick nor stulf ballots in f'avour of respondent no. l. Masiika Catherine. a polling agent tbr respondent no.2 at Katunguru market polling station stated the same as Singa Deziranta in her accompanying alfidavit in support of answe r to the petition. - [82] Upon evaluation olthe evidence above, I llnd that there was sufficient evidence of non-compliance with the electoral laws and irregularities at Katunguru market polling station. These irregularities coupled with the number of people that did not vote on the polling day for various reasons stated above renders the results ofthe polling station doubtl'ul. - [83] Regarding Busunga polling station, the national voters register indicated that they are 313 registered voters at Busunga Primary school polling station. a total of 3 I I votes were cast but the number of t-emale and males who voted is 4l l. This is in excess of 100 votes compared to the 3l I votes that were cast. I accept counsel for the respondent's submission that this discrepancy could be as a result of human error given the fact that the figures on the tally sheet are consistent. It is indicated that 350 ballot papers were issued to the polling station, 3l <sup>I</sup> ballot papers were counted, 3l I valid votes were cast whereas there was one re.iected or invalid vote.

Page 29 of 35

- [84] Counsel fbr the appellant also contended that the 99.36% tum up at the polling station was liaudulent on the ground that they were voters who were out ofthe country and those that did not vote. The petitioner alleged in his alfidavit in support of the petition that Kasatagara Yosia Rutemba, Musasizi Noah. Oyo Godfrey, Oyo Milton and Bitakome Edson who are registered voters at the polling station were away on the polting day. Evidence of the travel history of Milton Oyo shows that he left the country to Dubai on 25'h may 2019. Godfrey Oyo left the country fbr Dubai on 31'1 May 2020, Musasizi Noah telt the country for Dubai on l3th December 2020 and Bitakome Edson lefl the country on <sup>I</sup>4th December 2020. Nanyonj o Zainab deponed in her affidavit in support of the petition that as a registered voter at Busunga Primary school, she did not vote because she spent the entire day at Katunguru market polling station where she had been appointed as a polling agent. - [85] l'he f'act that it has been established that 4 people were out of the country and one person did not vote who are all registered voters at Busunga polling station raises doubt as to the accuracy of the results at that polling station. The results indicate that only 2 people did not vote whereas the evidence shows that 5 people did not vote. This shows that there was an irregularity in the results. - [86] Regarding Quran Primary school polling station. the appellant contended that the Declaration of Results form for the polling station showed that the appellant had obtained 5 votes whereas the Results Tally sheet indicated that the appellant had acquired only I vote. T'he certified copy of the declaration of Results fbrm of Quran Primary School (A-k) adduced into evidence by the appellant indicates that the appellant obtained 5 votes at the polling station while the certified copy of the Results Tally sheet indicates that the appellant obtained only I vote. RW3. Atwijukire Ismail Takira, the district retuming ot'licer upon cross examination stated that he entered into the tally sheet the results that he had on his copy of the Declaration of results fbrm which is the original form. He produced the said document in court. - [87] The appellant obtained fiom respondent no.2 a certified copy of the declaration of the results for the polling station showing that the

appellant obtained 5 votes at the potling station. l'his is sufficient to prove that the actual results that were obtained by the appellant at the polling station. It has been held in a number ofcases by this court and the Supreme Court that proof ol contents of Declaration of Results forms is by adducing the certified copy ofthe form into evidence except in excep tional circumstances. Scc Kakooza John Baptist v Electoral Commission and Anor t20081 TJGSC tl

- [88J In light of the above, I flnd that appellant no.l obtained 5 votes as opposed to I vote at Quran Primary School (A-K) polling station. - t89] Section 6 I ( I ) of the Parliamentary Elections Act sets out the grounds lbr setting aside an election. It states:

'The election ofa candidate as a member ol'Parliament shall only be set aside on any ofthe following grounds ifproved to the satisfaclion ofthe court- (a) non-compliance with the provisions of this Act relating to elections, if the court is satisfied that there has been failure to conduct the election in accordance with the principles laid down in those provisions and that the non-compliance and the failure affected the result ofthe election in a subslantial manner: (b) that a person other than the one elected won the election: or (c) that an illegal practice or any other offence under this Act was committed in connection with the election by the candidate personally or with his or her knowledge and consenl or approval: or (d) that the candidate was at the time of his or her election not qualified or was disqualilied for election as a member of Parliament.'

t90] Considering the above, the next question for determination would be if the above stated irregularities affected the results of the elections in a substantial manner which boils down to tlvo tests that isl the quantitative and the qualitative tests. In Kizza Besigl-e v Yoweri Kaguta Museveni (supra), Mulenga JSC (as he then was) explained the meaning of the phrase 'affected the results in a substantial manner as follows:

"lssue No. 3 in this petition relates to the application of paragraph (a) ofthat sub-section {58(6)}. lt is centred on the meaning ofthe phrase "af'fected the result ofthe election in a substantial manner". The result ofan election may be perceived in two senses. On one hand. it may be perceived in the sense that one candidate has won. and the other contesting candidates have lost the election. In that sense. if it is said that a stated factor atlected the result. it implies that the declared winner would not have won but for that stated factor: and vice versa. On the other hand. the result ofan election may be perceived in the sense ofwhat votes each candidate obtained. ln that sense to say that a given factor affected the result implies that the votes obtained by each candidate would have been different ifthat factor had not occurred or exisled.

In the latter perception unlike in the fbrmer, degrees of effect. such as insignificant or substantial. have practical effect. To my understanding theretbre, the expression non-compliance alfected the result ofthe election in a substantial manner as used in S. 58 (6) (a) can only mean lhat the votes candidates obtained would have been different in substantial manner. if it were not for the non-compliance substantially. That means that to succeed the Petitioner does nol have lo prove that the declared candidate would have lost. lt is sufficient to prove that the winning majority would have been reduced. Such reduction however would have to be such as would have put the victory in doubt."

[91 ] The leamed trial judge held, in part,

'l note that there are some ofthe polling stations where the petitioner alleges acts ofballot stufling. These are also the stations where neither the the Petitioner nor the l"' Respondent were winners. lt also goes to show that even if there was ballot stutling at those stations it cannot be attributed lo the I't Respondent and as such is not substantial enough to warrant the reversal oflhe election results.

'l'he Petitioners' agents did not report any electoral offences or irregularities on the voling day and although there are suf'ficient aflidavits proving some of the voters were away on the voting day, the results from the corresponding polling stations did not substantially affect the election results cannot be ground ibr annulling the election results. The petitioner has to prove that the alleged oflences or irregularities especially ballot stuffing. afl'ected the election results substantially and can also be attributed to the l"tRespondent.

ln the instant case, the Petitioner has not discharged that duty and it has nol been proved to the satisfaction ofcourt thal there were irregularities of ballot stuffing and substantially affected the election rcsults.'

- 192) It is true that neither the appellant nor respondent no.2 won at any of the disputed polling stations. However, this cannot lead to the conclusion that such malpractices did not aff'ect the final result in a substantial manner. The election is won by the total number of votes cast and not the number of polling stations at which a candidate wins. Whatever the number ofvotes received contributed to the total number ofvotes that determined who won. The respondent no.l won the election by a small margin of79 votes. Respondent no.l obtained 7, 601 votes in total whereas the appellant obtained 7,522 voles. The lact that the quality of elections at Katunguru Primary school and Katunguru market polling stations was poor, with dead people or persons absent on polling day voting, coupled with the discrepancy in results at Busunga Primary school and Quran Primary school (A-K) affects the results in <sup>a</sup> substantial manner. - t93l The law does not require that irregularities or unlawful actions be attributed to the successful candidate whose election is challenged. Section 6l (l) (a) of the Parliamentary Elections Act requires the court to be satisfied of2 things. Firstly, that there was a failure to conduct the election in accordance with the principles laid down in those provisions of the law. Secondly that the non-compliance or breach of the provisions of the law affected the result in a substantial manner.

- [94] In my view the evidence of the Petitioner was sufficiently credible in relation to the 4 polling stations complained to establish that electoral malpractices occurred at those polling stations perpetuated in part by the ollcers of'respondcnt no.2 and other persons named. It is true that no evidence of reports of these infiactions to the Police were produced. However. given the evidence available that police officers chose not restrain or take action against those perpetuating the same in their presence it was unrealistic to expect that a report would be made to the police or to the respondent no2's ol'llcers that were principal actors and a record would be made of the same. - [95] The 100% tum out at one ofthe polling stations where dead people and prisoncrs not available on polling day voted corroborates the evidencc of witnesses that witnessed ballot books being handed to individuals that ticked those voles and put them in ballot boxes for parliamentary elections. One ballot booklet contained 50 votes. With a margin of less than 100 votes this could be flipped by 2 ballot booklets. - 196l I would allow grounds I . 3 and 5.

#### Grounds 2, 4,9 and l0

- I97l In light of the f-act that I have allowed grounds l, 3 and 5, it is unnecessary to consider grounds 2. 4, 9 and 10. - l98l I would allow the appeal in part with costs here and below. - l99l I would dismiss the cross appeal with costs. - [ <sup>|</sup>00] I would set aside the election ol Thembo Gideon Mujungu as a Member of Parliament for Busongora county South, Kasese district. I would order the respondent no.2 to hold a bye-election lor Busongora County South Constituency in accordance with the law.

#### Decision

<sup>I</sup><sup>I</sup>0l ] As Madrama and Luswata, JJA, agree this appeal is allowed with costs here and below. The cross appeal is dismissed with costs. The election ol Thembo Gideon Mujungu as a Member of Parliament tbr Busongora county South, Kasese district is nullifled and set aside. Thc respondent no.2 is ordered to hold a bye-election lbr Busongora County South Constituency in accordance with the law.

-\$ Dated, signed and delivered at Kampala thisT day of

2022.

I:rcdrick Iigonda-Ntcndc Justice of Appeal

Page 35 of 35

## THE REPUBLIC OF UGANDA,

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

(CORAM: EGONDA NTENDE, MADRAMA AND LUSWATA JJA)

# ELECTION PETITION APPEAL NO 0046 OF 2021

(ARISING FRoM ELECTToN PETTTToN N0 0009 OF 20211

10 MBAJU JACKSON) APPELLANT

### VERSUS

- r. THEMBo G|DEoN MUJUNGU) - 2. ELECToRAL CoMMtSSt0N) RESPONDENTS

### JUDGMENT OF CHRISTOPHER MADRAMA, JA

- I have had the benefit of reading in draft the Judgment of my learned bother Hon. Mr. Justice Fredrick Edonga - Ntende, JA attowing the appeaI and <sup>I</sup> agree with the orders proposed and would like to add a few words of my own. 15 - I agree with the facts in the lead judgment and in my Judgment, I woutd tike to demonstrate from specific facts I set out below whether the irregularities affected the election results in a substantiaI manner. ln apptying the substantiaI effect test, the court ought to look at the overall outcome of the etection which involves assessment of the number of contestants, the total number of votes cast and an analysis of the effect of the irregutarities on the overall resutt. 20 25

<sup>I</sup>have also considered the meaning of the material statutory phrase "non compliance affected the results in a substantial mannel'under section 58 (6) (a) (now section 59 (6) (a) of the Presidential Etections Act 2005) as defined by Mutenga JSC in Besigye Kiiza v Museveni Yoweri Kaguta and Another (Etection Petition No. I of 2001) [200U UGSC 3 (21 Aprit 2001); the

t

# <sup>5</sup> Uganda Law Society Reports Election Cases Court Decisions 2001 - 20ll page 449 at page 483 where he stated inter aliathal:

To my understanding, therefore, the expression "non-compliance affected the result of the election in a subslantial mannel' as used in the S.58 (6) (a), can onty mean that the votes candidate obtained wou[d have been different in a substantial manner, if it were not for the non-compliance substantia[[y. That means that, to succeed, the petitioner does not have to prove that the declared candidate wou[d have [ost. lt is sufficient to prove that his winning majority would have been reduced. Such reduction however woutd have to be such as wou[d have put the victory in doubt.

- It is the [atter part of the definition that shows that it is materiaI to demonstrate that the irregularity or non-compliance with the provisions of the statute, affected the results substantially in that it affected the outcome of the etections. There has to be a quantitative test to see whether such reduction made by excluding the impugned votes would have put the victory 15 - of the winning candidate in doubt. This is essentialty a quantitative process as the outcome should affect the number of votes cast for each candidate. ln other words, the court should be satisfied that the outcome does not reflect the witt of the people in terms of the majority votes cast in favour of the winning candidate or that the outcome is very much in doubt. 20 - Election by majority votes is supposed to reflect the wilt of the people as enshrined under articte I (l) of the Constitution of the Repubtic of Uganda which provides that a[[ power belongs to the people who sha[[ exercise their sovereignty in accordance with the Constitution. Further, article 1 (4) of the Constitution provides that: 25 - 30 The people sha[[ express their wi[[ and consent on who shall govern them and how they should be governed, through regular, free and fair etections of their representatives or through referenda.

By providing for fair elections, it is imperative that the winning of <sup>a</sup> candidate in a contested etection shoutd be by majority of votes. This is 3s estabtished quantitativety in terms of the number of votes cast in favour of each candidate to establish who has the highest number of votes. ln any

<sup>5</sup> case any quatitative non-compliance with the electora[ laws or irregularities in the conduct of the elections shoutd be demonstrated to have had a quantitative effect on the outcome of the elections and to show what that outcome could be.

With the above in mind, I woutd tike to set out the facts relating to the voting <sup>10</sup> on the basis of the declaration of resutts.

The declaration of results sheet shows that l0 candidates contested and the foltowing are the names and declared results for atl the l0 candidates:

- l. Thembo Gideon Mujungu polted 7,501 votes accounting for 24.12% - <sup>15</sup> 2. Mbaju Jackson Mujungu potted 7,522 votes accounting for 23.87% - 3. KIGHEMA Atozious Baguma potted 6,956 votes accounting for 22.07%. - 4. Mutindwa David lsimba polled2,lt6l+ votes accounlinglorT. S2% - 20

5. Barozi Frank Asiimwe potted 2,392 votes accounting tor 7.59%

- 6. Businge Bendadet potted 1,318 votes accounting for 4.18% - 2s 7. Kafuda Boaz potted 1,187 votes accounting tor 3.77%

8. Bakutirahi Sedrack Mbaju Arinaitwe potted 803 votes accounting for 2.55%

<sup>30</sup> 9. Masereka Michaet potted 790 votes accounting for 2.51%

10. Munezero Juma polled 484 votes 1.54 %

The totat number of vatid votes cast is 31,517 votes. Secondty the totat number of invatid and rejected battot papers is stated to be 743 and the

<sup>5</sup> number of spoilt battot pages is 38. The number of tota[ bal[ot papers counted is32260

The difference of potting between the first two leading candidates is <sup>79</sup> votes. From the statisticat data, att the candidates obtained less than 25% of the votes cast. ln other words, it is onty under 25% of the registered voters who turned up who woutd decide who the elected [eader for the constituency would be. This has some cha[[enges in assessing the substantiaI effect the irregularities considered in the tead judgment woutd have in the outcome of the election.

The f irst cha[[enge is that there are 10 candidates who participated. Secondty, it is arbitrary to attribute the 79 votes of the difference between the leading candidate and the foltow-up candidate to the irregutarities or non-compliance in the etections. 15

I agree with the factual analysis in the Judgment of my learned brother Hon Justice Fredrick Egonda Ntende, JA and I have nothing usefut to add to those facts. For purposes of my additionaI words I need to regurgitate some of the facts. 786 voters out of 786 registered voters turned out at Katunguru primary school polling station. However, out of these it was proved that nine people had already died but remained on the voter's register. The 100% voter turnout was therefore a fraudulent entry. I agree that the election at the potting station was marred by irregularities and malpractices. 20 25

Secondly at Katunguru market potting station, out of 361 registered voters, 354 battot papers were cast. There was an excess of four votes that were unaccounted for. There was evidence of irregularity at this polting station as we[[.

Further, at Busunga potting station, the voters register showed that there were 313 registered voters at the primary school potting station out of which 3ll votes were cast but the number of female and male voters was 4ll and therefore in excess by 100 votes. lt was established that there were 30 irregularities at this potting station.

'I

<sup>5</sup> Fourthly, at Quran primary schooI potting station the appettant proved five votes but the result tatty sheet show that he had only one vote. This was a loss of four votes and an irregutarity at this potting station.

Simitar to the Presidential Elections Act 2005, section 51 (l) (a) of the Parliamentary Elections Act has the phrase that "lhe non-compliance and the failure affected the result of the election in a substantial mannel'.

ln a scenario of l0 candidates and proportionate distribution of votes, it is hard to subtract the impugned votes due to the irregutarity from one candidate in the absence of evidence that the impugned candidate was the direct beneficiary of the matpractice or irregularity. The three teading candidates had 2l+.12%, 23.87% and 22.07% respectively. The winner won against the runner-up candidate by 1.35%. Further the difference of 79 votes cast some doubts as to who the actual beneficiary of the malpractice coutd be in tight of the fo[[owing facts.

lf the impugned votes are arbitrarily subtracted from att the candidates, the results of the election wou[d not be affected in that the proportionate subtraction would resutt in the same proportions of votes in terms of percentages in favour of each candidate. The dilemma is how to attribute the malpractice to the winning candidate. 20

What we have is a reasonabte doubt as to the outcome of the elections. To make matters worse the Judgment of the court shows that the appeltant and the second respondent did not win at any of the disputed potting stations where there were malpractices. There is absence of evidence that the malpractices and irregularities were titted to favour the candidate who was dectared duty etected with a margin of 79 votes between him and the appellant. The effect of the proved malpractices affects votes in excess of 110. This coutd be attributed to any of the candidates. 25 30

Last but not least, where the court sets aside the election, woutd att the l0 candidates compete? White the quantitative substantiaI effect test is inconclusive, I woutd find that there is a reasonable doubt about the gin between the outcome of the etections because of <sup>35</sup> the narrow mar

<sup>5</sup> winning candidate and the runner-up candidate. I must add that it cannot be ascertained as to who would have won if there were no malpractices and therefore the question of whether the people exercised their sovereignty under article I of the Constitution of the Repubtic of Uganda in the free and fair election is in doubt. This means that the quatity of the election and the outcome in terms of accuracy has been substantially affected.

For the above reasons, it is more prudent to set aside the election and have the matter resolved through fresh elections.

Before conctuding, I wish to observe that five potiticat parties participated and were depicted in the declaration of results by the f ottowing abbreviations: DP, FDC, NUP, ANT and NRM. Five of the other candidates were independent candidates. The current dispensation of the potiticat system is a multiparty potiticat system under article 7l of the Constitution of the Repubtic of Uganda. Articte 7l (l) (c) of the Constitution provides that the internaI organisation of a politicaI party shatl conform to the democratic principles enshrined in the Constitution. ArticteT2 (4) of the Constitution of the Repubtic of Uganda further provides that: 15 20

> 'Any person is free to stand for an election as a candidate, independent of <sup>a</sup> potitical organisalion or politicat party.

0bviousty, those who participated in primary etections in a potiticaI party prior to any politicat party fietding them as candidates for election as MP operate under the democratic system which may be reflected under a duly registered potiticat party or organisation constitution that governs the retevant potiticat party in terms of articte 7l (l) (c) in the internaI organisation of the potiticat party. Their regulations may include how to fietd candidates for elections and such candidate after losing cannot again stand as independent candidates as this would water down the principle of democracy in the internaI organisation of the potiticat party to which they belong. lt woutd be disingenuous to be voted out in primary elections of a potitical party and in disregard of the democratic principtes of the politicat party or organisation again present oneself as an independent candidate to 25 30 35

<sup>5</sup> contest for nationaI elections against a duty etected member of a politicat party elected in the primaries of that potitical party or organisation. White there is no evidence that any of the independent candidates originatly contested in the primary elections of any potiticat party or organisation and lost, I woutd tike to categorica[[y declare generatly that any such person woutd not be entitted to contest against a candidate of their own party in nationaI elections. 10

ln the premises, I agree with the orders proposed in the tead judgment of my [earned brother Hon Justice Fredrick Egonda Ntende, JA and I have nothing usefuI to add.

<sup>15</sup> Dated at Kampala the day of 2022 .+vv{

Christopher Madrama

Justice of Appeat

{l

# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

[Coram: Egonda-Ntende, Madrama & I-uswata JJAJ

# ELECTION PETITION APPEAL NO. 0046 OF 2O2I

(Arisingfrom Election Petition No.0009 of 202 1)

### BETWEEN

| Mbaju Jackso | | Appellant | |--------------|--|-----------| |--------------|--|-----------|

### AND

| Thembo Gideon Mujungu::- | Respondent No.1 | |--------------------------|-----------------| | E,lectoral Commission | Rcspondent No.2 |

# JUDGMENT OF LUSWATA KAWUMA, JA

I have had the opportunity to read in draft the judgment ol my brother, E,gonda-Ntende, JA. I agree with him and have nothing useful to add.

\ Dated, signed and delivcrcd at Karnpala this.). day of .-( 2022 IrV K. t- A1'A Just f Appeal