Mpeirwe Kashaija v Kangwagye Rwakanuma and 2 Others (Election Petition Appeal No. 51 of 2021) [2022] UGCA 165 (8 June 2022)

Full Case Text

### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

## ELECTION PETITION APPEAL NO. 51 OF 2O2L

5 (Aristng from Mbarara Hrgh Court Dlection Petition No. 005 of 202 1 before Moses Kawumi Kaztbwe J.)

### MPEIRWE MOSES KASHAIJA : : : : : : : : : : : : : : : : : : : : i : : : : : : : : : APPELLANT

#### VERSUS

| 1. STEPHEN KANGWAGYE RWAKANUMA ) | | |----------------------------------|---------------| | 2. ELECTORAL COMMISSION | ) | | 3. THERETURNTNGOFFTCER | ) RESPONDENTS | | ISINGTRO ELECTORAL DTSTRTCT | ) |

# CORAM: HON. JUSTICE GEOFFREY KIRYABI[IIRE, JA HON. JUSTICE STEPHEN MUSOTA, JA HON. JUSTICE GASHIRABAKE CHRISTOPHER, JA

### JUDGMENT OF COURT

### Background

The l"t Respondent and the appellant contested for the position of Member of Parliament for Bukanga County Constituency in an election organized by the 2"a Respondent and the 3.d respondent was the Returning Officer. The 1"t Respondent was returned winner with 18,406 votes. The appellant was aggrieved by the above decision and filed Election Petition No. 5 of 2021, at the High Court Mbarara

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seeking for a declaration that the first Respondent was not validly elected and that the said election be nullified. The High Court dismissed the Petition and declared the 1"t Respondent the validly elected Member of Parliament for Bukanga County Constituency.

The Appellant, being dissatisfied with the decision of the High Court, filed this appeal on the following grounds;

- l. The learned trial Judge erred in law when he found that the l st Respondent herein was properly nominated. - 2. The learned trial Judge erred in law and fact when he found that the Appellant herein waived his right to challenge the l"t Respondent's nomination. - 3. The learned trial Judge erred in law and fact when he held that the 1"t Respondent had not disowned his official agent, Bagumya Freddie Rwakaizi thereby wrongly pronouncing himself on the mandatory nomination requirements on the part of a person seeking nomination. - 4. The learned trial Judge erred in law and fact when he found that the Appellant's visual-audio evidence and its attendant transcribed and translated version were inadmissible thereby reaching a wrong conclusion which occasioned a miscarriage of justice. - 5. The learned trial Judge erred in law and fact when he held that the content of the compact discs relied upon by the Appellant herein remained unknown to court notwithstanding the transcribed and translated version thereof.

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- 6. The learned trial Judge erred in law and fact when he faulted the Appellant herein for not availing Dr. Ssentanda for crossexamination. - 7. The learned trial Judge erred in law and fact when he whimsically feigned ignorance of annexture LTS to the affidavit of the Appellant herein thereby occasioning a miscarriage of justice. - 8. The learned trial Judge erred in law and fact when he dismissed the evidence of pre-ticked ballot papers, annexture FS to the affidavit of Assimwe Precious Victor and thereby occasioned a miscarriage of justice. - 9. The learned trial Judge erred in law and fact when he found annextures TRS and EVR to the affidavit of the Appellant herein inadmissible. - 10. The learned trial Judge erred in law and fact when he sustained on record, considered and believed defective and offensive affidavits of the Respondents. - 11. The learned trial Judge erred in law and fact when he determined the Petition basing on the 1"t Respondent's additiona-l affidavit in sur-rejoinder which aflidavit contained averments strange to the 1 "t Respondent's answer to the Petition.

12. The learned trial Judge erred in law and fact when he held that the Appellant herein did not produce evidence of closure of polling before time.

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- 13. The learned trial Judge erred in law and fact when he believed the materially contradictory evidence of the 1"t Respondent and Wilson Tumuhairwe and thereby occasioned a miscarriage of justice. - 14. The learned trial Judge erred in law and fact when he decided the Petition on the basis of witnesses' strange to the record thereby occasioning a miscarriage of justice. - 15. The learned trial Judge erred in law and fact when he decided the Petition on the basis of evidence extraneous to the record thereby occasioning a miscarriage of justice. - 16. The learned trial Judge erred in law and fact when he misdirected himself on the mandatory obligation of the 2"a Respondent to provide seals and serial numbers of seals to the Appellant herein thereby occasioning a miscarriage of justice. - 17. The learned trial Judge erred in law and fact when he dismissed the evidence of the Appellant herein regarding the 1"t Respondent approaching Nyamarungi Primary School polling station and Kyabahesi Primary School polling station armed with a pistol thereby occasioning a miscarriage of justice. - 18. The learned tria-l Judge erred in law and fact when he believed the materially discredited evidence of Aine Godfrey Kaguta Sodo thereby occasion a miscarriage of justice. - 19. The learned trial Judge erred in law and fact when he handed down his decision on the electoral offence of defacing campaign posters basing on the substantiality test thereby occasion a miscarriage of justice.

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- 20. The learned trial Judge erred in law and fact when he held that the Appellant herein did not prove defamation thereby occasioning a miscarriage of justice. - 21. The learned trial Judge erred in law and fact when he held that the Appellant herein had a duty to prove that he was not a thief and a munyarwanda, infact and thereby reached a wrong conclusion which occasioned a miscarriage of justice. - 22. The learned trial Judge erred in law and fact when he dismissed the evidence of the Appellant herein regarding giving donations at Kihanda playground and Bugango Catholic Church during the campaign period. - 23. The learned trial Judge erred in law and fact when he held that the 1"t Respondent herein did not bribe Kakama Godfrey Mugume with a sum of 2OO ,OOO / =. - 24. The learned trial Judge erred in law and fact when he misapplied the test and standard of proving the electoral offence of bribery to the electoral offence of giving a donation during the campaign period thereby reaching a decision which occasioned a miscarriage of justice. - 25. The learned trial Judge erred in law and fact when he dismissed the evidence of the Appellant herein on 100%o voter turn up and the dead people voting on polling day thereby reaching a decision which occasioned a miscarriage of justice. - 26. The learned trial Judge erred in law and fact when he dismissed the evidence of the Appellant herein on the inclusion

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of pseudo names into the voters register thereby handing down a decision which occasioned a miscarriage of justice.

- 27. The learned trial Judge erred in law and fact when he held that the notice to produce documents for inspection made by the Appellant herein was not served on the 2"d Respondent thereby occasioning a miscarriage of justice. - 28. The learned trial Judge erred in law and fact when he found against the Appellant herein on disruption of his campaign meeting at Bugango town. - 29. The learned trial Judge erred in law and fact when he held that the l"t Respondent did not canvass for votes on poling day thereby reaching a decision which occasioned a miscarriage of justice. - 30. The learned trial Judge misdirected himself on the law when he held that witnesses of the Appellant herein who were his polling agents on polling day were required to prove that they are registered voters and thereby handed down a decision which occasioned a miscarriage of justice. - 31. The learned trial Judge misdirected himself on his duty to subject the petition to an inquiry and thereby failed to appreciate the uncontroverted evidence of the 2nd and 3rd respondents' election officials who presented evidence impeaching the quality of the elections at their respective polling stations thereby handing down a decision which occasioned a miscarriage of justice.

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- 32. The learned trial Judge erred in law and fact when he found that the 1"t Respondent did not serve alcohol to voters on polling day thereby occasioning a travesty of justice in his decision. - 5 33. The learned trial Judge erred in law and fact when he tailed in his duty to evaluate and scrutinize the evidence before him thereby reaching a wrong decision which occasioned a miscarriage of justice. - 34. The learned trial Judge erred in law and fact when he awarded costs to the respondents on a strange pro-rata.

### Representation

At the hearing of the appeal, Mr. Brian Tinyefunza appeared for the Appellant while Mr. Kuteesa Ronald appeared for the 1"t Respondent and Eric Sabiiti appeared for the 2"d Respondent.

# 15 Appellant's submissions

Counsel for the Appellant argued grounds l, 2 and 3 concurrently and submitted that Section 11 of the Parliamentary Elections Act (hereinafter referred to as "PEA") lays out the requirements for nomination and that the name of the person who proposed the l"t Respondent for nomination does not appear on the voter's register for Bukanga County Constituency where the 1"t Respondent was seeking nomination. That this contravened Section I I (1) (c) of the PEA so far as the said Kagumire P. was not a registered voter in Bukanga County Constituency. Counsel argued that the 1"t Respondent's nomination 25 paper ought to have been invalidated. In addition, that the

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nomination paper had the name Kyarimpa William, a registered voter in Bukanga North Constituency, which is different from Bukanga County Constituency. The trial Judge ought to have found that the addition by the 1"t Respondent of an extra page seeking to increase the number of signatures from 1O to 18 was a fraudulent play. That the 1"t Respondent fell short of the requisite 10 signatures before nomination. That whereas the 3'd Respondent insisted that one Kagumire P. and Kyarimpa William were registered to vote, no such evidence was proved. There were glaring irregularities surrounding the 1"t Respondent's nomination which should have been addressed by the trial judge.

Counsel submitted on grounds 4, 5 and 6 that the point of contestation in Amongin Jane Francis Okili Vs Lucy Akello & another EP No. OOO1 of 2O14 is different from the present case because of the time and place in terms of when and where the footages were captured. The 1"t Respondent is among the persons named in the video footages along with Bangumya Freddie and Toyota Michael and none of them claimed that the content of the video footages was adulterated. That the learned trial Judge's finding that the content of the compact discs was unknown to court was misconceived. The discs were introduced through the evidence of Ndibarema in his affidavit. Dr. Sentanda was instructive in his affidavit evidence about how the discs were transcribed and translated. 15 20

Page 8 of 32 Counsel submitted further that the learned trial Judge misdirected himself on the ingredients of the electoral offence of giving a donation during campaign period. That the 1"t Respondent, along with Toyota Michael Nuwagira Kaguta donated money and a cow at Kihanda PIay

5 ground on January 2"d 2027 in contravention of Section 68(7) and (8) of the Parliamentary Elections Act. The affidavit evidence of voter bribery at Kihanda piay ground was never impeached. Munanura Brighton, a team Captain of Kihanda II football team testified that he personally received a cash donation of Shs. 3.000.000/= and Shs. 1.000.000/= from the l.t Respondent and Toyota respectively. 10

Counsel argued that the tournament at Kihanda playground conveniently fell within the campaign period to afford an opportunit5r to the 1"t Respondent to award trophies and cash prizes in contravention of Section 68 (7) and (8) of the Parliamentary Elections Act. Counsel contended that this section does not envisage a situation where a donation ought to be proved to have been made to a voter but rather that a candidate engaged in donations during the period of campaigns.

Counsel argued that evidence was led by Mirembe Alex, a polling official, that at his polling station, gun wielding men commanded by one Sodo Aine Kaguta stormed the polling station, put him on handcuffs and took 9 unused ballot paper books accounting for 450 ballot papers. The evidence of Sodo was contradictory as he stated that he was well conversant with the English language yet in his 20

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afhdavit, he claimed it was translated to Runyankore after which he proceeded to sign the same.

Counsel submitted further that the l"t Respondent and his agent Bangumya Freddie Rwakaizi defaced the campaign posters of the appellant at Nyamarungi round about on January 7th 2021. That the testimonies of the Appellant's witnesses squarely placed the 1"t Respondent's agent at the scene of the crime. In addition, that the 1"t Respondent made defamatory statements when he referred to the Appellant as a tractor thief and a candidate suffering from mental illness.

Counsel argued that there were a number of glaring instances of election fraud at Mbaare P/S polling station on the number of voters who purportedly voted uis-a-uis the registered voters on the register. At Mbaare P/S polling station, there are 677 registered voters yet the

DR form showed a total of 700 voters at the polling station. Counsel submitted that the learned trial Judge ought to have found that the petitioner had discharged the burden of proof against the Respondents. 15

# 1", 2'd and 3"r Respondent's submissions

Counsel submitted that the Appellant's grounds of appeal were not in compliance with Rule 86 of the Judicature (Court of Appea-l Rutes) Directions and referred to this court's decision in M/s Kampala Associated Advocates Vs Al Shafi Investment Group LLC Civil Appeal No. 284 of 2O2O. In that case, it was held that: - "... it is the dutg of counsel to assist the Judge bg simplification and concentration 20 2s

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and not to aduance a multitude of ingenious arguments in hope that out of the 10 bad points, the Judge will be capable of fashioning a winner...."

- 5 Counsel argued that the 35 grounds of appeal are many, repetitive and argumentative. That the entire Memorandum of Appeal and its 35 grounds of appeal is littered with grounds on each and every statement made by the Judge even when it had no bearing on the outcome of the matter. Counsel prayed that the grounds that offend Rule 86(1) of the rules of this court be struck out. - 10 While arguing grounds 1, 2 and 3, counsel submitted that the nomination of the l"t Respondent was seconded by a total of 20 persons as evidenced by annexture SKI. That even though the signatures of Kyarimpa William and Kagumire P. were found not to be valid for not being registered voters, the minimum of 10 voters - 15 20 would still be met by the 1"t Respondent. Counsel argued that the requirement of 1O nominees is a minimum requirement and not the fixed and maximum number as contended by the Appellant. That the contention of the Appellant regarding the numbering of the pages of the nomination form of the first appellant is inconsequential to the content submitted during the nomination. Further, that there was no evidence adduced by the Appellant to prove that the nomination forms adduced in court is not what was submitted to the 2nd

Respondent at nomination and on basis of which the 1st Appellant was duly nominated.

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Counsel submitted that the Appellant's contestation of the l"t Respondent's nomi.nation was an afterthought and considering that the Appellant failed to raise these pre polling matters, he was considered to have waived his right to object. Counsel relied on the decision in Kasirye Zirnwla Fred Vs Bazigatirawo Kibuuka Amooti and Electoral Commission Election Petition Appeal No. OO1 of 2018 in which this court held that failure to raise a complaint at nomination as provided under Section 15 of the Parliamentary Elections Act 2005 meant that he was estopped from raising it at the petition stage.

Counsel submitted that the rules governing the admission of the electronic evidence are stipulated in Sections 7 and 8 of the Electronic Transactions Act, 2011 that the foundation of the evidence must be led to ascertain the manner in which the basic data contained in the medium of relaying the evidence was entered and the method of storing the data. The Appellant should have produced the affidavits of the people who received and transferred the evidence from one electronic medium to another. In absence of the chain of evidence being established to support the electronic evidence, the evidence contained was inadmissible. To ascertain if the audio visual evidence is what is transcribed, the copies must be viewed before the court to show that the transcription is a reflection of the audio-visual evidence created.

25 Counsel relied on the Electoral Commission decision in Mashate Magomu Peter Vs and another Court of Appeal Election

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Petition Appeal No. 47 of 2O16 in which this court held that DR forms are public documents and therefore a part5r wishing to rely on them ought to have them certified as per Section 75 and 76 of the Evidence Act. That the learned trial Judge was justihed in finding that annextures EVR and TRF were not admissible in evidence for lack of certification. Counsel argued further that the 2nd and 3rd Respondents produced the documents they believe had been requested for by the notice to produce and the Appellant was satisfied.

- Counsel submitted further that to prove the alieged illegal practice of giving donations, the Appellant is required to furnish some concrete evidence that was independent. The evidence must identify the recipients of the donations, show that the donation was given by the 1't Respondent or his agent and also that the recipients were registered voters. Illicit donation operates like a bribe and court has applied the same standard of proof for giving donations in a similar way to bribery. The affidavits adduced to evidence the alleged illegal practice of giving donations were those of the Appellant's supporters and no independent evidence was adduced at all. 10 15 - Counsel argued that the evidence of the lst Respondent was to the effect that the alleged football tournaments at Kihanda Playground were not an event of the 1.t Respondent. Toyota Kaguta was very clear when he stated that he had always organized football tournaments in the villages and the alleged event was part of the 9-year continuous 20 - process. Mr. Toyota was not an agent ofthe 1"t Respondent and thus 25

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could not have handed over the donations on behalf of the 1st Respondent.

Counsel submitted that there was no evidence adduced by the Appellant to prove that closure of Mbaare Primary School polling station was before the requisite closure time of 4:O0pm. That the error by the presiding ofhcer of indicating 1O instead of 4 was in the local language translation.

Counsel submitted that the provision of seals and serial numbers of ballots and seals of ballot boxes is governed by Section 28A of the

Parliamentary Elections Act 2OO5 (as amended) and such serial numbers and seals are provided as soon as practicable after dispatch of election materials. The provision of the serial numbers and seals by the 2',d Respondent was arranged during the dispatch. 10

## Appellant's submissions in rejoinder

- Counsel submitted that the grounds of appeal were set forth concisely and under distinct heads without argument or narrative and clearly state the grounds of objection to the decision being appealed against. Counsel relied on the decision in Makula International vs His Eminence Cardinal Nsubuga & another CACA 15 - No. 4 of 1981 (1982) HCB 11, while arguing that the pre-nomination irregularities can be brought to court at the High Court, and submitted that an illegality can be brought to court's attention at any stage of the trial. 20

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### Court's consideration of the Appeal.

This being, inter alia a first and last appellate Court in election Appeals, we are alive to Courts duty as such. The cases of Kifamunte Henry v Uganda Supreme Court Criminal Appeal No. 1O of L997 and Pandya v. R [1957] EA 336, and Bogere Moses and Another v. Uganda, Supreme Court Criminal Appeal No. I of 1997 held that a lirst appellate court has a duty to review/reappraise the evidence and consider all the materials which were before the trial Court and come to its own conclusion regarding the facts, taking into account, however, the fact that it neither saw nor heard the witnesses testify and that in this regard, it should be guided by the observations of the trial court on the demeanour of witnesses.

The duty of this court is set out in Rule 30 of the Judicature (Court of Appeal Rules) Directions which provides:

"3O. Power to reappraise euldence @nd to take ad.ditional evid.ence

(1) On ang appealfrom a d.ecision of the lligh Court actlng in the exercise of its original jurisdiction, the court mag-

(a) Reappraise the euldence dnd drau inferences of fact; and

(b)...'

The appellate court must make up its mind after carefully weighing and considering the evidence that was adduced at trial. See Mugema

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# Peter Vs Mudiabole Abedi Nasser Election Petition Appeal No.30/2O11

The burden of proof lies on the Petitioner (Presidential Petition No. LI2OOL Dr. If,,iiza Besigye V. Y. K. Museveni & Anor, Section 61

5 of the Parliamentary Elections Act) and the standard of proof in Election Petitions is on the balance of Probabilities.

Bearing the above in mind we proceed to consider the issues for determination before this court.

The appeliant raised 35 grounds of appeal in the Memorandum of Appeal. The respondents jointly filed their submissions and raised a preliminary point of law on the validity of the Appellant's grounds of appeal under Rule 86 of the Judicature Court of Appeal Rules Directions. The Respondents argued that the 35 grounds of appeal are many, repetitive, argumentative and largely submissions. 10

#### Rule 86 of the Judicature (Court of Appeal Rules! Directions: 15

86. Contents of memorandum of appeal.

(1) A memorandum of appeal shall setforth conciselg and under distinct heads, without argument or narratiue, the grounds of objection to the decision appealed against, specifging the points which are alleged to haue been wrongfully decided, and the nature of the order which it is proposed to ask the court to make.

In National Insurance Corporation Vs Pelican Senrices CACA No. 5 of 2OO3, this court while interpreting the cited rule 86, relied on the Supreme Court decision in Sietco Vs Noble Builders (U) Ltd

Page 16 of 32 SCCA No. 5 of 1995 and held that a ground of appeal must challenge a holding, a ratio decidendi, and must specify the points which were wrongly decided. This court, in M/s Kampala Associated Advocates Vs Al Shafi Investment Group LLC Civil Appeal No. 284 of 2O2O, stated that;

"I am reminded in this regard of the speech of Lord Templeman in Ashrnore V Corporation of Lloyds [1992] Al,L ER 486; he stated: -

It is the dutg of counsel fo asslst the judge bg simplification and concentration and not to aduance a multitude of indigenous a.rguments in the hope that out of the 10 bad points Judge will be capable of fashioning a tuinner."

The grounds contained in the memorandum of appeal are indeed repetitive and argumentative and should primafacie, fall foul of Rule 86(1) of the rules of this court. This being an election petition, we shall exercise discretion and take the exceptional position not to strike out the appeal but raise concise issues to resolve the appellant's appeal. We shall use our powers under Rule 2 (2) of this Court and in the interests of justice to cluster the grounds and accordingly raise issues as follows. 15 20

- 1. Whether the 1"t Respondent was validiy nominated as Member of Parliament for Bukanga County Constituency as required by law? - 2. Whether the audio-visual evidence and the transcribed version produced by the Appellant was inadmissible?

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- 3. Whether the affidavits of the Respondents were defective? - 4. Whether there were electoral mal-practices in the election of Member of Parliament for Bukanga County Constituency?

5 We trust that this set of issues clearly show the fallacy of drawing up a multiplicity of issues instead of concentrating on a few core areas of disagreement with the decision being appealed from.

# Whether the 1st respondent was validly nomlnated as Member of Parliament for Bukanga County Constituency as required by law?

The appellant's contention is that the 1"t Respondent's nomination was invalid as 2 of the persons who seconded him were not registered voters of Bukanga County Constituency. 10

#### Section 15 of the Parliamentary Elections Act provides that;

15. Inspection of nomination papers and lodging of complaints.

#### Any uoter registered on the uoters' roll of a constttuencg may- 15

- (a)During office hours on the nomination dag at the office of the returning officer, inspect anA nomination paper filed with the returning officer in respect of the constituencA; - (b)After the closure of the nomination time and during such peiod as maybe prescribed, inspect any nomination paper in respect of the constituency at such time and subject to such conditions as magbe prescribed and

lodae anu como\aint with the returnino officer or the commission in relation to antl nomination in respect of the constitue ncu Page 18 of 32

challenqinq the qualification of anu person nominated. lDmphasis added)

In the case of Kasirye Zzinrwla Fred v. Bazigatirawo Kibuuka Francis Amooti and Electoral Commission, Election Petitlon

- 5 Appeal No. O1 of 2O18, this court held that; issues of nomination should be lodged with and resolved by the Electoral Commission before the election and where the petitioner does not challenge the nomination, he or she is deemed to have waived his or her right and is therefore estopped from challenging the nomination after the - election. Likewise, in Akol Hellen Odeke v. Okedel Umar, Election Petition Appeal No. 6 of 2O2O, it was held that; the High Court does not have jurisdiction to hear and determine disputes arising before and during the polling day, (including nomination), as a court of first instance. 10 - 15 Therefore, a Petitioner in an election Petition who did not bring complaints within the stipulated time under Section 15 of the Electoral Commission Act is estopped from doing so after the election because he is deemed to have waived his/her rights to complain. We therefore find no reason to fault the learned trial Judges finding that - the Petitioner/Appellant waived his right of challenging the nomination of the l"t Respondent after an election. There is an elaborate procedure provided for under the Electoral Commission Act on the power of the commission to resolve complaints and where to appeal if not satisfied. Under S. 15 (2) of the Act, an appeal lies to the 20

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High Court against the decision of the Commission, and under S. 15 (4), the decision of the High Court is final.

Having found as we have that the Appellant was estopped from raising matters of nomination, we find no reason to determine whether the persons that seconded the 1st Respondent were indeed registered voters of Bukanga County Constituency or not.

## Whether the audio-visual evidence and the transcribed version produced by the appellant was inadmissible.

10 At the trial court, the learned trial Judge found that the Appellant's audio-visual evidence and its attendant transcribed and translated version were inadmissible and that the contents therein remained unknown to court. The trial Judge also faulted the appellant for not availing Dr. Ssentanda for cross-examination.

15 At the trial court, the Petitioner (now Appellant) sought to rely on audio visual evidence in form of compact discs to support claims of ballot stuffing at Obugaaga and bribery at Kihanda playground polling stations. This evidence was not viewed in court but a transcription and translation were done by a person who was never produced in court.

20 Section 7 of the Electronic Transactions Act, 2O11 provides that;

7. Authenticttg of data message

(1) Where a law requires infonnation to be presented or retained tn its original fonn, the requirement is fulfilled bg a data message tf-

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(a) the integritg of the information from the time when it was first generated in its final forrn as a data message or othenuise has passed assessment in terrns of subsection (2); and

(b) that information is capable of being displaged or produced to the person to whom it is to be presented.

(2) For the purposes of subsection 1(a), the authenticity of a data message shall be assessed-

(a) bu considerinq whether the information has remained complete and unaltered , except for the addition of an 10 endorsement and anA change which anses in the normal course of communication, storage or displag;

> (b) in ltght of the purpose for which the information was generated; and

In the instant case, the electronic evidence was by way of phone recordings done by Ndibalema Patrick (PW2) and Mugisha Enoth (PW3) who are supporters of the appellant. PW2 claimed to have transferred the data to a compact disc while the appellant also claimed to have transferred the data himself in Wandegeya and thereafter took the same to Makerere University for transcription and translation. The transcription and translation was however done by a 3'd party who was never produced in court. The translation from

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Makerere University was from the local language to English and was attached to the affidavit of Dr. Ssentanda.

It is our considered view that the absence of the person who transferred the data from the phones to compact discs and the one who transcribed the data amounts to a break in the chain of handling the electronic evidence. In addition, the said Dr. Ssentanda, who translated the data was never produced in court except for his affidavit. Whereas evidence in election petitions is by way of affidavits, such deponents ought to be produced in court for crossexamination on the contents of their affidavits. It is therefore imperative for those wishing to rely on electronic evidence to foliow this strict code to ensure that the chain of evidence is not broken and that the resultant evidence is credible.

For the reasons given above, we find no reason to fault the learned trial Judge's finding that the contents of the compact discs were inadmissible. 15

# Whether there were electoral mal-practices in the election of Member of Parliament for Bukanga County Constituency?

We have categorized the electoral malpractices in the foltowing categories as argued by the appellant. 20

#### a) Pre-ticked ballot papers

The Appellant's witness, Asiimwe Precious Victor, stated in her afhdavit that on l4tt Januar5z 202 1, she went to Burigi Church polling station to vote and saw a man named Rutukana, a brother to

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the 1"t Respondent in the company of Barebwiiha Fred LCl1 Chairperson bending at a certain point pre-ticking ballot papers in favour of the 1"t Respondent and plucking them off the booklets. She grabbed Rutukana by his shirt and wrestled him down. After an exchange, he dropped some of the pre-ticked ballots and when she counted them later, she found that they were 58 in number. Barebwooha stuffed the ballot papers into a box and yet a\_ll the election ofhcials were unbothered about the malpractice.

Ballot stuffing is an election malpractice created by Sections 31(l),

76lf-Jl and,77 of the Parliamentary Elections Act. In Toolit Simon Aketcha Vs Oulanyah Jacob L'Okori & EC Ep Appeal No. L9l2Ol1. It was held that: 10

> "... Ballot stuffing is therefore an election malpractice which inuolues uoting more than once at a polling stc"tiorr or moutng to uarious polling sfafions casting uotes etther in the names of people tuho do not exist at all or those who are dead or absent at the time of uoting and get theg are recorded to haue uoted

Ideallg at the end of the polling exerci.se, the number of uotes cast ought to be equal to the number of people who phgsicaltg turned up to uote;

Under our uoting sAstem, euery regbtered uoter is authorized to cast one uote. Therefore, ballot str{fing occurs uhen someone intentionally and knowinglg causes unauthorized uotes to be put in the ballot box for purpose of rigging the poll in fauour of some candidate."

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Also see Ninsiima Boaz Kasirabo & EC Vs Mpuuga David Ep Appeal No. 55/2O16 and Suubi Kinyamatama Juliet Vs Sentongo Robinah Nakasirye EP Appeal No. 92 OF 2016

5 The said ballot papers marked FS were passed on to the petitioner by his agent, Asiimwe Precious Victor. The Petitioner however stated that he did not know who ticked the ballots and he was not sure if they were forgeries. Annexture FS was never annexed to the afhdavit of Asimwe Precious Victor but were annexed to the affidavit of the Petitioner verifying the allegations in the petition. These annextures were thus evidence of the petitioner yet he stated in cross examination that he had no knowledge of the authenticitSr of the ballots. These allegedly pre-ticked ballots were taken by the appellant and were not considered in computation of the finat result. We find no reason to fault the finding of the learned trial Judge that the Appellant's evidence of the ballot papers was unreliable since he had adduced documents which he was oblivious of the particulars. 10 15

### b) Gtving donations during campaign period and voter bribery.

The Appellant alleged that one Toyota Kaguta gave donations on behalf of the lst Respondent and organized football tournaments. It is alleged that Toyota bribed various sports teams with cash and cows through football tournaments. The l"t Respondent denied having Toyota as his official agent and denied knowledge and participation in the bribery acts. 20

The offence of bribery is created by Section 68 (f ) of the pEA. It is provided that:- 25

Page 24 of 32 "A person who, either before or duing an election with tntent, either directlg or indirectlg to influence another person to uote or to refrain from uoting for ang candidate, giues or prouides or causes to be gtuen or prouided anA moneA, gift or other 5 consideration to that other person, commits the offence of bribery

It has been established that the offence has three ingredients:

- a. A gift was given to a registered voterwho under Section 1(1) of the Parliamentary Elections Act is described to be one whose name is entered on the voters register. - b. The gift was given by a candidate or their agent and, - c. It was given with the intention of inducing the person to vote for a particular candidate or in a certain manner.

See: Odo Tayebwa Vs Basa\$abalaba Election Petition Appeal No.

15 L3lzOLl and Isodo Vs Amongin Election Petition No. O06 of 2O16 ctting Col (Rtdl Dr. Kizza Beslgye Vs Yoweri Kaguta Museveni & EC (Supreme Court Presldentlal Electlon Petition No. 1/2oo1).

20 Bribery is considered a grave illegal offence and a single offence which once proved, is sufficient to set aside an entire election. See: (Odo Tayebwa Vs Arinda Gordon Kakuuna & EC EP Appeal No. 8612016l. It must in all cases be given serious consideration and scrutiny and will require cogent evidence that is truthful and free from contradictions proved to the satisfaction of the court. See

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Amuru & EC Vs Okello Okello (supra), citing Bakaluba peter Mukasa Vs Nambooze Betty Bakireke Supreme Court Ep No. 4l2OO9l. Given the gravity of the offence, the Court should only consider direct evidence given first hand, see: (Kiiza vs. Kabakumba

5 Masiko citing KwtJuka Geofrey Vs EC & Anor EP. No T lZOLLI.

The courts have further held that it is necessary that persons said to have committed the offence and those said to have been bribed be clearly identified, and such evidence corroborated. See Hellen Adoa & EC Vs Alaso Nice Election Petition Appeal -2OL6l57l12OL|, UGCA 3. It follows therefore that the actual act of bribery needs to be described with precision, or at least with sufficient detail for the Court to determine what happened.

There is no evidence that the said Toyota was an agent of the l"t Respondent nor that he was aware of the said illegal donations given in the football tournaments. It was submitted that the said Toyota had organized community football tournaments even before elections. No evidence was adduced by the Appellant to prove that the alleged donations were given on behalf of the 1"t Respondent. The allegation of a donation at a service given to Dr. Kule was not proved in evidence and the alleged Dr. Kule was not called as a witness. 15 20

# c) Closure of polling stations before time

The Appellant's contention through the evidence of Nyabuturi Van Geoffrey was that at Kibate/Mbaare III Polling station, voting closed as early as midday and closed before the stipulated time of 4:00pm. That the Declaration of Results Form for this particular polling

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station, which was later withdrawn by Tindimwebwa Amon RW7, the presiding officer, showed that polling was closed at 1O:O0am.

The 2"d and 3.d Respondents denied that the poling closure was before time. The evidence of RW7 was that people were still voting by 4:00pm when RW7 instructed the polling constable to stand behind the last voter. The indication of 10.00 pm instead of 4pm was a vernacular translation of the time. The Appellant did not however furnish any evidence to support this attegation of closing the polling station before time. We find that this allegation, too, was never proved by the Appellant and cannot be sustained.

### dl Defacing campaign posters

The Appellant alleges that the l"trespondent, in the company of Bangumya defaced a campaign poster of the Appellant at Nyamarungi road round about on 7th Januar5z 2021. The two were seen by Kakama Godfrey who informed the petitioner about what he had witnessed.

The learned trial Judge found that the Petitioner did not adduce evidence that he had posters and did not make any report of the alleged incident to the 2"a Respondent or to the police since this was an electoral offence. There was also no defaced poster adduced in evidence of the appellant.

The offence of defacement of posters is criminal in nature and ought to have been reported to the police. This was however not done. In absence of such evidence, it would be unjust for court to decide that

PaEe 27 of ?2

the offence was indeed committed. We find no reason to interfere with the learned trial Judges finding on this allegation.

#### e) Defamation

5 The appellant alleged in paragraph 1S(vii) of the petition that the 1"t respondent at Katojo, Koranorya and Rwambaga Trading Centers indulged in a campaign and encouraged voters not to vote for the Appellant for reasons that he is a Rwandan refugee and also a tractor thief. That the Appellant stole a tractor and a lorry belonging to Bukanga Diary Farmer's Cooperative Society and he was also a mad 10 man.

The evidence of the above statements was in the affidavits of Muhwezi Nicholas, Kubakuringi Gordon, Mwijukye Sam and Nyabutuuri Van Godfrey in support of the petition.

### Section 73 of the Parliamentary Elections Act provides that:-

- A person who, before or duing an election for the purpose of effecting or preuenting the election of a candidate, makes or publishes or causes to be made or publish.ed bg words whether written or bg song in relation to the personal character of a candidate a statement which is false; 15 - a. Which he or she knows or has reason to belteue to be false; or b. In respect of which he or she is reckless whether it is tnte or false,

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commits an offence and is liable on conuictton to afine not exceeding twelue currency points or impri.sonment not exceeding sk months or both

5 It is trite that defamation is with respect to personal character. The words stated to be defamatory must also be proved to be untrue. It is very unfortunate that the person whose character was alleged to have been lowered in the eyes ofvoters by the said allegations chose not to produce evidence before court as to whether what was attributed to him is true or false; or that those who uttered them had no reasonable grounds to utter them. 10

The test used to determine whether a statement is capable of giving defamatory meaning is among others, that it should be a false statement. The Appellant thus had a duty to prove to court that the statements made are false. Being a Rwandese is not, in our view, a

- defamatory statement. It is a nationality that by no means amounts to defamation, if made against a person. On the statement of stealing a lorr5r and a tractor from a Cooperative Society, the Appeliant ought to have produced evidence from the members of the society to prove that the said items where indeed never stolen by the Appellant. None 15 - of this was done. We thus agree with the learned trial Judge that the illegal practices in Sections 70 and 73 of the Parliamentary Elections Act are quasi-criminal offences under the Parliamentary Elections Act and the burden of proof was not discharged by the appellant. 20

It is trite law that the burden of proof on election petitions lies on the Petitioner. Section 61 (1) and (3) of the Parliamentary Elections

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Act, [17 of 2OO5l provides that the grounds for setting aside an election shall be proved to the satisfaction of court on a ba\_lance of probabilities. In Supreme Court of Uganda Presidential Election Petition No. 1 of 2OO1: Col. (Rtdf Dr. Kizza Besigye Vs Museveni Yoweri Kaguta and the Electoral Commission, the then Learned Chief Justice Odoki, cited with approval the case of Borough of Hackney Gill Vs Reed [874] XX)il L. J. 69, where Grove, J emphasized that an election should not be annulled lor minor errors or trivialities thus:

"An election is not to be upset for informalitg or for a tiuiality. It is not to be upset because the clock at one of the polling booths was fiue minutes too late or because some of the uoting papers were not deliuered in a proper way. The objection must be something substantial, something calculated to affect the result of the election. ......... so far as it appears to me the rationale and fair meaning of the section appears to be to preuent an electton from becoming uoid by trifling objections on the ground of informality, but the Judge is to look to the substctnce of the case to see whether the tnfonnality is of such a nature as to be fatrlg calculated in a rational mind to produce a substcLntial effect." 10 15 20

If the Petitioneris to succeed, therefore, he has to prove the grounds of the Petition to the satisfaction of court, on a ba.lance of probabilities. His evidence must be such as will satisfy the Court that there is a real grievance, a real breach of the Law and that the will of

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the people has not been reflected in the result of the election. We find that this burden has not been discharged by the appeilant.

We must state that the Appellant simply placed numerous allegations before, during and after the election and failed to support the same with cogent evidence. The principle in Kampala Associated Advocates Vs A1 Shafi Investment Group LLC (supra) that it is the duff of counsel to assist the Judge by simplilication and concentration and not to advance a multitude of indigenous arguments in the hope that out of the 10 bad points Judge will be capable of fashioning a winner, ought to be taken cognizance of by counsel.

In the final result, we hnd that this Appeal is void of merit and is accordingly dismissed. We make the following orders;

1. The 1"t respondent Stephen Kangwagre Rwakanuma is the duly elected Member of Parliament for Bukanga County Constituency.

2. We award costs of this Appeai to the respondents.

20 We so order

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Hon. Justice Geoffrey Kiryabwire, JA.

@;u\*

## Hon. Justice Stephen Musota, JA.

Hon. Justice Gashirabake Christopher, JA.