Tumuheirwe v Muhwezi Jim Katugugu and Another (Election Appeal 71 of 2021) [2022] UGCA 341 (14 May 2022)

Full Case Text

## **5** THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

ELECTION APPEAL NO. 71 OF 2021

Election Petition No. 003 of 2021 delivered by Hon. Justice io Phillip Odoki on the 1st November 2021) **(Arising from the ruling of the High Court sitting at Kabale in**

# TUMUHEIRWE FRED TURYAMUHWEZA APPELLANT

#### VERSUS

## **15** 1. MUHWEZI JIM KATUGUGU

**2. ELECTORAL COMMISSION RESPONDENTS**

#### **BEFORE: HON. MR. JUSTICE CHEBORION BARISHAKI, JA**

#### **HON. MR. JUSTICE STEPHEN MUSOTA, JA**

**20 HON. MR. JUSTICE CHRISTOPHER GASHIRABAKE, JA**

#### **JUDGMENT OF COURT**

This is an appeal arising from the Judgment and orders of the High Court at Kabale dismissing the appellant's Petition seeking to **25** annul/set aside the election of the 1st Respondent as Member of Parliament for Rujumbura Constituency in Rukungiri District.

## **Background to the appeal:** -

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**10** On the 14th day of January, 2021, the 2nd Respondent conducted general Parliamentary Elections where the Appellant, the 1st-Respondent and 2 others contested for the position of Member of Parliament of Rujumbura Constituency in Rukungiri District. The 2nd Respondent declared the 1st Respondent the winning candidate with 25,799 votes against the Appellant's 20,556 votes. His name having been published in the Gazette as the winner, the 1st Respondent took oath and assumed office as a Member of Parliament.

**15 20** Being dissatisfied with the outcome of the election, the Appellant petitioned the High Court at Kabale challenging the said election results and seeking to annul and set aside the same. He raised allegations of non-compliance with the provisions of the electoral laws and that the 1st Respondent had committed illegal practices and offences under the Parliamentary Elections Act, during this election. Pie further alleged that when he complained to the 2nd Respondent, the 2nd Respondent failed to reign in on the 1st Respondent. Specifically, the Appellant made the following allegations: -

1. Illegal practices of fundraising and giving donations during the campaign period contrary to Section 68(7) of the Parliamentary Elections Act.

2. Bribery of voters by the 1st Respondent, contrary to section 68(1) of the Parliamentary Elections Act.

- 3. The 1st Respondent making a false statement at a campaign rally, that the Petitioner had contracted COVID-19 illness and urging people to shun him contrary to Section 70 of the Parliamentary Elections Act. - complaint to the 2nd 1st 4. During the campaign, he made a Respondent about illegal practices committed by the Respondent, but the 2nd Respondent failed to restrain the 1st Respondent from committing the illegal practices, thereby giving the 1st Respondent an unfair advantage over the other candidates.

The appellant sought the following remedies: -

- as a 1. A declaration that the 1st Respondent committed illegal practices during the campaign period and was therefore not validly elected a Member of Parliament for Rujumbura County Constituency. - 2. An order annulling the election of the 1st Respondent and fresh election be conducted in the said directing that a constituency.

3. The Respondents pay the costs of the petition jointly and severally to the Appellant.

**10** The 1st Respondent filed an answer to the petition where he denied all the allegations raised by the Appellant against him. He denied any involvement, consent, approval or connivance in the commission of the alleged illegal practices or electoral offences. It was his contention that the election was conducted in compliance with the law and the results reflected the true will of the people of Rujumbura County Constituency. **5**

The 2nd Respondent in its answer to the Petition contended that the election for Member of Parliament for Rujumbura County Constituency was conducted in compliance with the law, and that the 1st Respondent was validly declared the winner of the election.

The following issues were agreed upon by the parties for determination by the trial Court;

1. Whether the Petitioner's electronic evidence is admissible.

- **20** 2. Whether the 1st Respondent committed any illegal practices or election offences personally or through his agents, with his knowledge and consent or approval during the said election. - 3. Whether the 2nd Respondent conducted the election in accordance with the provisions and principles laid down in the electoral laws and if not, whether the non-compliance affected the results of the election in a substantial manner. - 4. Whether the Petitioner is entitled to the reliefs sought.

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- At the conclusion of the trial, the trial Judge answered all the issues in the negative and dismissed the petition with costs to the Respondents. The Appellant, being dissatisfied with the decision of the trial Judge, filed this appeal raising .10 grounds of appeal as follows: - - **10** 1. The trial Judge erred in law and fact when he adopted a onesided evaluation of evidence and came to wrong conclusions that the Appellant had not proved that the 1st Respondent committed the offence of giving donations during the campaign period in respect of the following incidents; - **a. Donation of Five Million Shillings at Kajwamushana Church of Uganda on the 18th October 2020.** - **b. Donation of Five Hundred Thousand Shillings to the family of the late Jane Nshemereirwe on the 5th November 2020** - **c. Donation of Five Million Shillings to Kyabahanga Bataka Kweterana Association on the 5th January 2021 at a meeting held at Bugarama Church of Uganda.** - **d. Donation of Two Hundred Thousand Shillings to the youth of Bugarama Church of Uganda on the 5th January 2021.**

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- **e. Donation of one million Shillings and a promise of 50 bags of cement at Kateramo Church ofUganda on the 10th January 2021.** - **f. Promised a donation of 100 iron sheets at Kateramo Revival Mission Church on the 10th January 2021 which were duly delivered on 13th January 2021.** - **respectively. g. Promised a donation of sports related items such as balls and jerseys on the 11th November 2020 at Nyakanyinya playground which were delivered on the 17th November 2020 and 14th December 2020** - **20** 2. The learned trial judge erred in law and fact when, through an adoption of a one-sided evaluation of evidence, he held that the Appellant had not proved that the 1st Respondent committed the offence of voter bribery in respect of the following incidents. - **a) Bribery of voters at the home of Moses Kwijuka on the 6th January 2021 with Five Hundred Thousand Shillings.**

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- **b) Bribery of voters at Nyakinengo Secondary School on the 10th of January 2021 with One Million Eight Hundred Thousand Shillings.** - **c) Bribery of Voters at the home of Canon John Matongo on the 12th January 2021 with Two Million Shillings and Two Hundred Thousand Shillings Respectively.** - **d) Bribery of Glorious Kyabasaaki on the 5th January 2021 at Bugrama Church of Uganda at the meeting of Kyabahanga Bataka Kweterana Association with Three Hundred Thousand Shillings.** - **20 25** 3. The trial Judge erred in law and fact when he failed to consider that the actions of the 1st Respondents legal team in soliciting for an affidavit from a witness, Ahabwe Ivan Matongo, who the Petitioner had disclosed in the joint scheduling memorandum, was illegal and pointed to guilt on the part of the 1st Respondent in regard to the voter bribery incident at the home of Canon John Matongo.

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4. The learned trial Judge erred in law and fact when he misconstrued provisions of the Electronic Transactions Act and held that the Appellant's electronic evidence corroborating evidence of commission of election offences by the 1st Respondent was inadmissible.

- 5. The learned trial Judge erred in law and fact when he held that the Appellant had not proved that the 1st Respondent made a false statement at a rally at Bigaaga ward that the Appellant had contracted Covid illness. - 6. That the learned trial Judge erred in law when he held that the 1st Respondent's 40 affidavits of illiterate deponents did not violate the provisions of the Illiterates Protection Act and Oaths Act. - 7. The trial Judge erred in law in holding that there is no legal requirement for the oath of the interpreter of the 1st Respondent's 40 affidavits of illiterates to be recorded in the affidavits despite the absence of the interpreters jurat required by the Oaths Act. - 8. That the learned trial Judge erred in law and fact when he relied on the affidavit of Ndyabaijuka Africano who testified in vernacular having sworn his affidavit in the English language as a literate deponent. - 9. That the learned trial Judge erred in law in holding that Counsel Derrick Muhumuza's translation/interpretation of the 1st

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Respondent's 40 affidavits of illiterate deponents did not violate the Advocates (Professional Conduct) Regulations S. I. 267-2.

10. The trial Judge erred in law and fact when he faulted the Appellant for failure to follow up the police complaint regarding the incidents of voter bribery by the 1st Respondent and exonerated the 2nd Respondent.

## **Representation:** -

At the hearing of the appeal, the Appellant wasjointly represented by Mr. Jude Byamukama and Mr. Phillip Mwesiga , the 1st Respondent was jointly represented by Senior Counsel Mwesigwa Rukutana and Mr. Muhumuza Mwene Kahima , Mr. Peter Nkurunziza, Mr. Ronald Tusingwire and Mr. Ahmed Kalule Mukasa while Mr. Eric Sabiiti and Ms. Angella Kanyiginya represented the 2nd Respondent.

**20** Counsel for either party had earlier filed their respective conferencing notes that are rather erudite and lengthy. With the consent of Court the same were adopted as their submissions..

In their submissions, Counsel for the 1st Respondent raised a preliminary objection challenging the competence of some of the grounds of appeal. We shall proceed to address the preliminary objection before delving into the merits of the appeal.

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**Preliminary objection: -**

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**5 10** Counsel for the 1st Respondent contended that grounds 3,4,7,8 and 10 of the Memorandum of Appeal should be struck out for contravening Rule 86(1) of the Rules of this Court. They submitted that the impugned grounds were imprecise, argumentative and that they constitute narrative. To support their arguments, they relied on the Supreme Court authority of **Betuco (U) Ltd and Another vs Barclays Bank of Uganda Limited and Another Supreme Court Civil Appeal No.01 of 2017** wherein the decision of this Court striking out a ground of appeal for being imprecise was upheld.

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- **15 20** In response, Counsel for the Appellant submitted that properly framed grounds of appeal should specifically point out errors observed in the course of the trial, including the decision. They contended that the decision of **Betuco (U) Ltd and Another vs Barclays Bank of Uganda Limited and Another(supra)** relied on by Counsel for the 1st Respondent is distinguishable from the instant case and that it actually supports the Appellant's grounds of appeal as they set forth concisely the areas of objection to the impugned decision by the trial Judge. They further contended that 1st Respondent is not prejudiced in any way as he had an opportunity to respond to the grounds. - **25** In relation to ground 10, they contended that the 2nd Respondent did not object to the ground in their conferencing notes and that there was no justification whatsoever for the 1st Respondent to object to the same. They concluded that the preliminary objection has no merit and ought to be overruled.

# **5 Resolution of preliminary objections:** -

We have considered the submissions of Counsel for both parties on the preliminary objection. We shall reproduce the grounds in contention for clarity;

Ground 3

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**10 15** *The trial Judge erred in law andfact when hefailed to consider that the actions of the 1st Respondents legal team in soliciting for an affidavitfrom a witness, Ahabwe Ivan Matongo, who the Petitioner had disclosed in the joint scheduling memorandum, was illegal and pointed to guilt on the part of the 1st Respondent in regard to the voter bribery incident at the home ofCanon John Matongo.*

Ground 4

**20** *The learned trial Judge erred in law and fact when he misconstruedprovisions ofthe Electronic Transactions Act and held that the Appellant's electronic evidence corroborating evidence of commission of election offences by the 1st Respondent was inadmissible.*

## Ground 7

**25** *The trial Judge erred in law in holding that there is no legal requirement for the oath of the interpreter of the 1st Respondent's 40 affidavits of illiterates to be recorded in the affidavits despite the absence ofthe interpretersjurat required by the Oaths Act.* ### **5** Ground 8

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*That the learned trial Judge erred in law and fact when he relied on the affidavit ofNdyabaijuka Africano who testified in vernacular having sworn his affidavit in the English language as a literate deponent.*

#### **io** Ground 10

*The trial Judge erred in law and fact when he faulted the Appellant for failure to follow up the police complaint regarding the incidents of voter bribery by the 1st Respondent and exonerated the 2nd Respondent.*

- **15** In resolving the preliminary objection, it is imperative to appreciate that Rule 86 (1) of the Rules of this Court of Appeal is instructive on the content and form of grounds in a Memorandum of Appeal. It provides: - *ut d memorandum of appeal shall set forth concisely and under distinct heads, without argument or narrative, the grounds of objection to the decision appealed against, specifying the points which are alleged to have been wrongfully decided, and the nature of the order which it is proposed to ask. the Court to make. "* (emphasis added) - **25** Grounds of appeal should be concise, without argument or narrative to comply with Rule 86 (1) of the Rules of Court. The Supreme Court and this Court have in the past guided on the proper way of drafting

**5** grounds of appeal. Nonetheless, lawyers continue to draft ineligible grounds in contravention of the rule.

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The authority of the Supreme Court in **Betuco (U) Ltd and Another vs Barclays Bank of Uganda Limited and Another(supra)** cited by Counsel for the 1st Respondent and that of this Court in **National**

**10 15 Insurance Corporation vs Pelican Air Services Civil Appeal No. 15 of 2003** is illustrative on the matter. The two cases and many others emphasize that a Memorandum of Appeal should set forth concisely and under distinct heads, without argument or narrative, the grounds of objection to the decision appealed against, specifying the points which are alleged to have been wrongly decided and the nature of the order which is proposed to Court to make. A ground of appeal must challenge a holding, *ratio decidendi* and must specify

the point which was wrongly decided.

**20 25** Looking at the grounds of appeal in the instant appeal and the very instructive authorities, we find that, except for ground 3, the rest of the grounds comply with the Rule, considering the nature of the proceedings. In specific reference to ground 3, the same constitutes a lot of narrative, is very argumentative and contravenes Rule 86(1) of the Rules of the Court. We agree with Counsel for the 1st respondent that the same is like a submission. The ground itself as set forth constitutes an entire argument. In this ground, Counsel for the Appellant calls upon this Court to fault the 1st Respondent for alleged solicitation of evidence from a witness, arguing that because he had been listed as the Appellant's witness in the joint scheduling

**5** memorandum, it was illegal for the 1st Respondent to get an affidavit from him in support of his case. In this one ground, it is clear that Counsel is raising an allegation, narrating his view point and making an argument he wants the Court to believe. Such sloppy formulation of grounds of appeal is in breach ofthe Rules ofthis Court and cannot

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Consequently, ground 3 of the Memorandum of Appeal is struck out. Before we take leave of this issue, we note, like this Court did in **Woboya Vincent V. Ssasaga Isaias Jonny Election Appeal No 11 of 2016** that *fit has become notorious for Appellants in Election Petition Appeals to list a multitude of grounds [some repetitive in nature) with the hope that the Court will be able to extract winners out of these grounds shopping exercise whereas the concentration and simplification of them lead to one or two issues.... This though not illegal ,is bad practice which should be stopped as is slows down the resolution process .*

Being that the consequences of drafting such grounds are averse to their clients' interests, it is necessary that due attention should be paid to avoid the grounds being struck out.

## **Resolution of the Appeal:** -

**25** We have carefully read the submissions of all Counsel. We have also read the Court record and the authorities cited to the Court which we find very helpful.

**5** In deciding this appeal, we are mindful of the duty of this Court as a first and final appellate Court for election matters .

# **Duty of the first and final appellate Court.**

Rule 30(1) of the Rules of this Court imposes on this Court a duty, when sitting as a first appellate and final Court, to exhaustively reappraise all the evidence that was adduced in the Court below and draw inferences of fact therefrom. This Court in **Betty Muzanira Bamukwatsa vs Matsiko Winfred Komuhangi and 2 Others Election Appeal No. 65 of 2016,** put this duty of the first appellate Court as follows: -

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*"...being the first appeal in this matter, we are required by Rule 30 of the Rules of this Court to re-evaluate the entire evidence which was available before the trial court and come up with our own conclusions. However, we are alive to the fact that we did not see or in any way perceive the witnesses as they testified in the court offirst instance."*

**In Pandya vs R (1957) EA 336,** the Court ofAppeal for Eastern Africa affirms the above position, observing that the principles declared therein are basic and applicable to all appeals within itsjurisdiction.

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an Election Petition Appeal In the present Election Petition appeal, the gist of the Appellant's case, as we understand it, is that the 1st Respondent committed various electoral offences and illegal practices and that the 2nd Respondent failed to investigate the same despite receiving his complaint. Alive to the fact that this is

**5** arid that such appeals are highly contentious, it is imperative that we set out the burden and standard of proof required.

## **Burden and Standard of Proof**

The burden and standard of proof in Election Petitions are well established under the provisions of the Parliamentary Elections Act, 2005 (as amended) and in numerous decisions regarding election petitions.

**In Ntende Robert vs Isabirye Iddi Election Petition Appeal No.74 of 2016,** it was held;

- **15** *"It is now trite law in electoral petitions that the petitioner must adduce cogent evidence to prove their case on a balance of probabilities to the satisfaction of Court... It must be a kind ofevidence that isfree from contradictions and truthful so as to convince a reasonable tribunal to give judgment in the party'sfavour."* - **20 of 2016** on the subject instructive. It stated: I find the position of the Supreme Court in **Amama Mbabazi vs Yoweri Museveni and Another Presidential Election Petition No. 1**

*"In an election Petition, as in a civil case, it is the petitioner who has to convince the Court to take action on allegations in the Petition. The legal burden remains with the Petitioner throughout. The evidential burden initially rests upon the party bearing the legal burden (that is the Petitioner), but as the weight of evidence given by either*

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*side during the trial varies, so will the evidential burden shift to the party who wouldfail withoutfurther evidence. (See Halsbury's Laws, 4th Edition, Vol 17, para. 15)*

The Court further cited with approval **Re B (Children) (Fc) UKHL 35,** where Lord Hoffman stated:

**20** *"If a legal rule requires a fact to be proved (a "fact in issue"), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did it not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden ofproof. Ifthe party who bears the burden ofproof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened. "*

*We* are also cognizant of the nature of evidence in election petitions. In **Mugema Peter vs Mudiobole Abedi Nasser Election Petition Appeal No.30 of 2021,** this Court stated:

*"The Court must be alive to the fact that in election petitions, witnesses, though not necessarily always, tend to be partisan in supporting their candidates against rivals in the election contest. This may result in deliberate false testimonies or exaggerations and to make the*

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# *evidence adduced to be very subjective. This calls upon the court to have the authenticity ofsuch evidence to be tested from an independent and neutral source by way of corroboration"*

we **10** With the aforesaid in mind, we shall proceed to address the remaining 9 grounds of appeal. However, we shall deal with ground 4 first since the same has a bearing on other grounds.

Ground 4

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*The learned trial Judge erred in law and fact when he misconstrued provisions ofthe Electronic Transactions Act and*

**15** *held that the Appellant's electronic evidence corroborating evidence of commission of election offences by the 1st Respondent was inadmissible.*

On this ground of appeal, Counsel for the Appellant submitted that the trial Judge misapplied and misinterpreted provisions of the Electronic Transactions Act. He also faults the trial Judge for not distinguishing between admissibility and cogency of evidence.

While citing the authority of *Sematimba Peter Simon versus Sekigozi Stephen Election Petition Appeal No. 08 and 10 of 2016,* Counsel for the Appellant submitted further that "the Court of 25 Appeal urges a liberal standard in handling electronic evidence."

On the other hand, Counsel for the 1st Respondent agreed with the findings of the trial Judge that the electronic evidence adduced by the Appellant was not authenticated. It was submitted for the 1st **5** Respondent that authentication of an electronic data record or data message is a condition precedent for admissibility.

**10** *versus versus* In the resolution of this ground of appeal, first and foremost, we reject the submission by Counsel for the Appellant that the Court of Appeal has urged for a liberal standard in handling electronic evidence. The authorities of *Sematimba Peter Simon Andrew Martial, Appeal No. 98 of2016* are cited out of context. *Sekigozi Stephen (Supra) and Micheal Mawanda Electoral Commission and Hon. Election*

**15** *The Electronic Transactions Act, 2011* and *The Electronic Transactions Regulations, S. L 42 of 2013* sets out a criterion of admitting electronic data and records in evidence in legal proceedings. The statutory provisions therein are instructive and cannot be subjected to a liberal standard as submitted by Counsel for the Appellant.

**20** Counsel for the Appellant faults the trial Judge for misapplying and misinterpreting provisions of the Electronic Transactions Act. To properly analyse the submission of both Counsel on this issue, we find it useful to reproduce some of the relevant sections verbatim. Section 7(1) provides:

**25** *"Authenticity of data message.*

> *(1) Where a law requires information to be presented or retained in its original form, the requirement is fulfilled by a data message if*—

*(a) the integrity of the information from the time when it was first generated in its final form as a data message or otherwise has passed assessment in terms ofsubsection (2); and*

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

*(2) For the purposes ofsubsection 1(a), the authenticity of a data message shall be assessed*—

*has (a) by considering whether the information remained complete and unaltered, except for the addition of an endorsement and any change which arises in the normal course of communication, storage or display;*

*(b) in light ofthe purposefor which the information was generated; and*

**20** *(c) having regard to all other relevant circumstances."*

Section 8 (2) of the Electronic Transactions Act provides:

*"A person seeking to introduce a data message or an electronic record in legal proceeding has the burden of proving its authenticity by evidence capable of supporting afinding that the electronic record is what the person claims it to be."*

The proper interpretation of the sections reproduced above is that before any electronic data is admitted in evidence, its

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- **5** authenticity must first be established and the burden of proving its authenticity lies on a person seeking to introduce it in evidence. Section 7 (1) of the Electronic Transactions Act upholds the principles of the best evidence rule. The opening statement of the section is couched as follows: - *"Where a law requires information to be presented or retained in its originalform, the requirement is fulfilled by a data message if..."*

**15 20** The true and correct construction of the above phrase is that, for electronic data (in this case the videos and audios of the Appellant's witness) which is not in the original form, to be admitted and relied on in evidence, its authenticity must be established as provided under that Section. Prior authentication of electronic evidence is an exception to the rule that all documents must be in their original form. Authentication makes admissible, a document which ordinarily would not be.

In his judgment, after examining the above sections, the learned trial Judge held:

*to it, proof of its authenticity has to be established "The position of the law on electronic evidence in legal proceedings in Uganda has been settled by The Electronic Transactions Act, 2011 and The Electronic Transactions Regulations, S. I. 42 of2013. Before any data message or electronic record is admitted in evidence and evidential value attached*

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*by the court. The burden ofproof lies on the person seeking to introduce electronic evidence in legal proceedings, to prove the authenticity of the electronic evidence. Proofofauthenticity is by way of adducing evidence capable ofsupporting the finding that the data message or electronic record is what the person seeking to introduce it in evidence claims it to be. See Section 8(2) of The Electronic Transactions Act, 2011."*

**15** We therefore agree with the above interpretation of the law and find that the learned trial Judge properly interpreted the relevant sections of the Electronic Transactions Act, 2011.

**20 25** The other part of contention by the Appellant is that the sections were misapplied to the facts relating to the electronic record (audios and videos). To determine whether the Appellant's electronic records or data were authentic, the learned trial Judge had to carefully examine, most especially, the affidavits of Peter Niwagira, in testimony for the Appellant and Wehire Laumech, for the 1st Respondent. The former was ideally supposed to establish the authenticity of the data or record sought to be admitted in evidence while the latter was to demonstrate the unauthenticity/inadmissibility of the data or records.

We have carefully read the affidavits of the two deponents, the analysis and evaluation of their evidence by the trial Judge and

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Ti **5 10** totally agree with his findings on this issue. As properly found by the learned trial Judge, we also find Peter Niwagira's expertise in computer evidence terribly wanting. We also find that he never explained any computer system he employed to ensure that the information was complete and unaltered. This goes to the integrity of the data or records attached to his affidavit and therefore, casts a lot of doubt on its authenticity.

Peter Niwagira's affidavit does not provide any of the information required under section 7 of the Electronic Transactions Act and Regulation 3(1) of the Regulations. This fortifies the trial Judge's finding that the evidence is inadmissible.

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On the other hand, the affidavit of Wehire Laumech is detailed on his expertise in digital forensics, provides for the protocols and the software used. His evidence is not only useful in determining the authenticity of the recordings but also buttress the finding that Peter Niwagira expertise is extremely lacking.

In light of Section 7 of the Electronic Transactions Act, the appellant's electronic records were not authenticated and therefore could not be relied upon by the trial Court. We find no reason to depart from the trial Judge's finding on this issue. We agree with it and uphold the same.

Counsel for the Appellant also contends that the trial Judge placed heavy reliance on the affidavit of Wehire Laumech yet he did not compare the CDs he examined with those presented in the petition. The trial Judge in rejecting this argument rightly

**5 10** found that there was no evidence to suggest that the CDs examined by Wehire Laumech were different from those accompanying the petition. Having found hereinabove that the evidence is not authentic, even without the affidavit of Wehire Laumech, Peter Niwagira's affidavit is not sufficient to shift the evidential burden to the Respondents. This ground is therefore resolved in the negative.

### Ground 1

**15** *The trial Judge erred in law and fact when he adopted a onesided evaluation of evidence and came to wrong conclusions that the Appellant had not proved that the 1st Respondent committed the offence ofgiving donations during the campaign period in respect of the following incidents;*

> *a. Donation of Five Million Shillings at Kajwamushana Church of Uganda on the 18th October 2020.*

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- *b. Donation of Five Hundred Thousand Shillings to the family of the late Jane Nshemereirwe on the 5th November 2020* - c. *Donation of Five Million Shillings to Kyabahanga Bataka Kweterana Association on the 5th January 2021 at a meeting held at Bugarama Church of Uganda.*

- *d. Donation of Two Hundred Thousand Shillings to the youth of Bugarama Church of Uganda on the 5th January 2021.* - *e. Donation of one million Shillings and a promise of 50 bags of cement at Kateramo Church of Uganda on the 10th January 2021.* - *f. Promised a donation of 100 iron sheets at Kateramo Revival Mission Church on the 10th January 2021 which were duly delivered on 13th January 2021.* - *respectively. g. Promised a donation of sports related items such as balls and jerseys on the 11th November 2020 at Nyakanyinya playground which were delivered on the 17th November 2020 and 14th December 2020*

**25 30** was that the trial Judge adopted a On this ground, the complaint one-sided evaluation of the evidence. Counsel for the Appellant submitted that it is trite law that each allegation of an electoral offence or illegal practice as pleaded by the Petitioner must be evaluated by the trial Judge and that it is important for the learned Judge to state why the evidence of a witness is preferred against another or which particular evidence needed corroboration. They cited the authority of this Court in **Paul Mwiru vs Igeme Nathan Nabeta Election Petition Appeal No.6 of 2011** to back that assertion.

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- **5** It was further submitted that whereas it appears as though the trial Judge evaluated each allegation, the evaluation fell short of the required standard as it was one sided and also imputed contradictions in the Appellant's evidence that did not exist. - **10** On their part, counsel for the 1st Respondent adopted their submissions on all the allegations in the lower Court and invited this Court to uphold the trial Judge's findings. They submitted that they are bound by the position of the law in **Paul Mwiru vs Igeme Nathan Nabeta(supra)** in relation to evaluation of evidence and contended that the trial Judge ably performed the task. - **15** We shall now proceed to address each of the allegations in the order in which they were raised and tackled in the conferencing notes.

# *a. Donation of Five Million Shillings at Kajwarnushana Church of Uganda on the 18th October 2020.*

**20 25** On this allegation, Counsel for the Appellant adduced 9 witnesses to prove that the 1st respondent donated 5,000,000/= shillings at Kajwarnushana Church of Uganda on the 18Lh day of October, 2020. Wycliffe Musinguzi, Boaz Tumugabirwe, Beatrice Tumusiime, Moses Tukamuhebwa, Monica Kyarisiima, Esther Nuwamaya, Jennifer Kembabazi, Kumanya Jackson and Ainembabazi Christine all deponed affidavits in favour of the allegation.

It was submitted that all the aforementioned witness are consistent in confirming the attendance of the church service which the 1st respondent does not deny. Counsel cited the authority of **Col (Rtd)**

**5 Dr. Kizza Besigye vs Yoweri Kaguta Museveni and Another Presidential Election Petition No.l of 2011** where Oder JSC (as he then was) stated:

*"...this kind of behaviour applies to all human beings. Accusations of wrongdoing or criminal conduct are normally vehemently denied by the person unless there is absolutely no choice for doing so. It becomes a question of evidence given in self-serving interest. This is common knowledge for which proof is unnecessary. It is on that basis that I shall consider the credibility or otherwise of the deponents of the affidavits in this case on individual basis. "*

**20 25** It was further submitted that all the Appellant's witnesses confirmed that, when given an opportunity to speak, the 1st Respondent reminded the congregation of his role in roofing the church and that he had come to fulfil his pledge. It was contended that when the 1st Respondent realised that he was being recorded, he alluded to Hon. Winnie Matsiko who was thrown out of parliament for donating during the campaign period. That nonetheless, he proceeded and handed over the money to the church treasurer. Four of the Appellant's witnesses testified that the money was in denominations of 20,000/=.

The learned trial Judge is further faulted for finding that there was no evidence to explain why the church officials would have denied receipt of the money if indeed they received it. They submitted that

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**15**

**5** the 1st- Respondent's witnesses were partisan as they worked with him and the National Resistance Movement (NRM).

In regard to the inconsistencies pointed out by the trial Judge as to who received the money, Counsel for the Appellant submitted that the inconsistences in relation to the name of the treasurer are minor as "John Mbwizana" and "John Mugisha" meant one and the same person. They relied on the authority of **Alfred Tajor vs Uganda, EACA, Criminal Appeal No. 167 of 1969** for the proposition that contradictions and discrepancies which are minor ought to be

**10**

**25**

**15 20** Lastly, counsel for the appellant faulted the trial Judge for finding that it is inconceivable that the 1st Respondent would proceed to commit an electoral offence after articulating its consequences. Counsel's conclusion on this allegation was that there is no hard and fast rule that people do not make mistakes even when they are aware of the consequences and that the finding of the trial Judge was

ignored unless they point to deliberate falsehoods.

conjectural.

In reply, counsel for the 1st Respondent agreed with the finding of the trial Judge on the allegation. They submitted that the finding was arrived at after due evaluation of the evidence and finding grave inconsistencies. It was submitted that at the trial, the 1st Respondent produced five witnesses who confirmed being in the congregation on the given date and that no money exchanged hands. It was contended that John Mbwizana, the church treasurer denied receiving the money and his evidence was corroborated by that of Kemigisha

**5** Peace, the church warden and a one, Kamuhangire David who requested for the donation.

On the contention that the Appellant's witnesses in particular, Byamukama Purtazio and Beinobwengye Topher Katuramu were partisan, counsel submitted that the evidence was corroborated by

**10** three other witnesses and that the Appellant had an opportunity to test their credibility in cross examination which he did not avail himself.

With regard to the contradictions, it was submitted that the same were grave and fatal especially in light of the fact that the Appellant's

- **15** witnesses claim to have attended the same event, at the same time and in the same place. In specific further reply to the submission that there is no hard and fast rule that people do not proceed to make mistakes even when they know them, it was submitted that the opposite is equally conjectural and that in the instant case, there was - 20 no evidence that the 1st respondent made the donation.

In conclusion, counsel submitted that the 1st Respondent was cross examined on the allegation but remained firm, unshaken and truthful.

**25** In rejoinder, counsel for the Appellant submitted that the 1st Respondent publicly announced the donation and that it is what informed the Appellant's witnesses of the amount that was donated. Counsel referred to the video recording attached to Wycliffe Musinguzi's affidavit and submitted that his affidavit was still **5** relevant since the trial Judge did not expressly expunge it from the record.

In regard to the 1st Respondent reminding the congregation of the consequences of donations during campaigns, it was submitted that this was done after he realized that he was being recorded. On contradictions in the evidence, Counsel reiterated the earlier position on minor inconsistencies and maintained that they are not fatal.

**10**

**15**

**25**

Counsel further contended that the evidence of the 1st- respondent's witnesses on the allegation was rejoined and rebutted by Kumanya Jackson and that he was not cross examined, rendering his evidence uncontroverted.

We have considered the submissions of both Counsel, the authorities cited and the record of the lower Court. Since we have already resolved issue no.4 that the electronic evidence tendered by the Appellant is inadmissible, in deciding on the allegations and any subsequent grounds involving electronic evidence, we need not

**20** repeat ourselves resolving submissions touching the same.

The law on illegal practices in parliamentary elections in respect to carrying out fundraising and giving donations is contained in section 68(7) and (8) of the Parliamentary Elections Act, 2005 (as amended). Section 68(7) provides:

*"A candidate or agent of a candidate shall not carry-on fundraising or giving of donations during the period of campaigning."*

#### **5** Section 68(8) provides ;

### *"A person who contravenes subsection (7), commits an illegal practice"*

We **10 15** agree with the contention by the trial Judge that the above sections have to be read together with Section 61 (1) (c) of the same Act. The section provides that the offence must be committed by the candidate personally or with his knowledge and consent or approval and that in order for a Petition to succeed in setting aside an election on the ground of an illegal practice of giving a donation, the following ingredients have to be proved to the satisfaction of Court;

- *1. The 1st Respondent was a candidate on the date of the alleged donation.* - *2. The 1st Respondent personally or through his agent with his knowledge and consent or approval carried out fundraising or giving of donations.*

**20**

*3. That the fundraising or the giving of the donation was during the period of campaigning.*

**25** In the instant case, whereas it is not in contention that the 1st Respondent was a candidate and that he attended the church service, the second and most important ingredient of the illegal practice is lacking. The inconsistencies in the evidence of the Appellant are major. Considering the nature of evidence in election petitions where it is oath against oath and all parties lead self-serving evidence, cogent evidence must be led to prove a particular assertion.

**5** Consequently, inconsistencies of the nature Appellant's evidence cannot be wished away. as those in the

In circumstances where the witnesses allege to have attended the same event, at the same time and date, it would be expected that they would be the most consistent. Inconsistencies as to the name of the

**10** treasurer cut across. Furthermore, it is not indicated anywhere that the money was counted for the Appellant's witnesses to ascertain that it was in denominations of 20,000/= and there is no record of receipt of the money.

**15** Due to the inconsistencies indicated above, the trial Judge preferred the evidence of church leaders who denied receipt of the money as the Appellant failed to adduce evidence to prove that they falsely denied the same. The allegation that two of the 1st Respondent's witnesses were biased does not help the appellant's case as their evidence was duly corroborated by three other witnesses.

- **20** In effect, there was enough evidence on the record to create doubt as to whether the alleged donation was made. While there is no fast and hard rule that people do not proceed to make mistakes when they know the consequences, we agree with counsel for the 1st Respondent that the reverse is equally conjectural. - **25** The second ingredient is therefore not proved. Keeping in mind that all ingredients must be proved, failure to prove one disposes off the entire allegation. We uphold the trial Judge's finding that the Appellant failed to prove this allegation with cogent evidence.

# *b. Donation of Five Hundred Thousand Shillings to the family ofthe late Jane Nshemereirwe on the 5th November 2020*

**10** On this allegation, counsel for the Appellant faulted the trial Judge for holding that it was not proved to the required standard that the lsl Respondent gave out a donation. The Appellant led nine witnesses who all alleged that the 1st Respondent gave a speech at the burial and gave Ugx. 500,000/= to Turyomurugyendo Wilson, husband to the deceased.

**5**

**15** Counsel for the Appellant further submitted that the 1st Respondent talked about his party, the NRM and also criticised Martin Byomuhangi, the FDC flagbearer who had spoken before him and criticised the government. He referred to the audio recording adduced in evidence and reproduced the cross examination of the 1st Respondent which we shall not labour to reproduce.

- **20** Counsel further submitted that he disagrees with the trial Judge's view that it would be uncultured for the 1st Respondent not to give a condolence at such a ceremony based on his relation with the family. They contended that there was no evidence on record to support the claim of an existing culture where donations to the bereaved must be - **25** contributions. loudly announced and proclaimed in the middle of a campaign speech. The sum up of their submissions is that the money was intended to influence voters and cannot be construed as funeral **5 10** On their part, counsel for the 1st Respondent agreed with the finding of the trial Judge on the allegation that it was usual for a person making a speech at a burial ceremony to assist the bereaved family in burial expenses. They cited the case of **Kabuusu Moses Wagaba vs Lwanga Timothy Mutekanga and Another Election Petition No. 15 of 2011** wherein Justice Alfonse Chigamoy Owiny-Dollo J (as he then was) stated: -

"I *am of the view that prohibiting giving of gifts and donations during the election period, parliament did not intend that during the campaign period candidates become heartless beasts of the Jungle, acting with abandonment of rationality and absolutely averse to the need to be human even in a situation that melts the heart."*

**20 25** They invited this Court to take judicial notice of the fact that it is common custom amongst Ugandans to give funeral contributions in form of gifts and money during burial ceremonies. They relied on the authority of the Supreme Court in **Arim Alex Clive vs Stanbic Bank Civil Appeal No. 03 of 2013** wherein it was stated that judicial notice is a doctrine and/or process by which Courts take cognisance of a matter which is so notorious or clearly established that there is no need for a party seeking for its recognition by Court, to adduce formal evidence for its proof.

In relation to proof of custom, counsel cited **Mifumi (U) Ltd & 12 Others vs Attorney General and Another, Constitutional Appeal No. 02 of 2014** wherein it was stated:

**15**

*by their it is not "where a custom is so notorious that judges are regular interaction aware of its existence, necessary that such practice is formally proved in order for the court to take judicial notice of it. "*

**10** In conclusion, they submitted that there was no body to influence as the lsl Respondent was at the burial of his supporter and could not influence his own supporter.

**5**

meant to influence voters. In rejoinder, counsel for the Appellant emphasised that the donation could not be construed as funeral contributions because it was

**15** Having considered the submissions of both Counsel, the record of the trial Court and the authorities cited, we are inclined to uphold the trial Judge's finding for the reasons indicated hereunder.

**20 25** It is indeed judicially noticeable that during burial ceremonies in Uganda, people give funeral contributions in form of money and gifts as sign of solidarity with the deceased. It is also equally true that during such ceremonies, politicians make speeches. In this particular case, the evidence on record indicates that other politicians spoke at the burial. In fact, the Appellant's own witness, a one Martin Byomuhangi who was the FDC flag bearei" for Chairperson LC5 also gave a speech.

Whereas the authority of **Kabuusu Moses Wagaba vs Lwanga Timothy Mutekanga and Another(supra)** is not binding on this Court, We are highly persuaded by the reasoning ofJustice Alphonse

- **5** Chigamoy Owiny-Dollo J (as he then was). The law could not have been intended to turn politicians into mean beasts during the campaign period. Applying such a radical approach would render the law oppressive, which could not have been the purpose of the framers. Since people do not cease to die during campaigns, it cannot - **10** be said that the law was intended to bar politicians from identifying with their constituents whenever they are faced with grief as was in the instant case.

Noteworthy is the fact that the 1st Respondent gave the money to his known supporter. He could not be said to have intended to influence his own supporter and there is indeed no evidence to prove that

**15** anyone was influenced.

**20**

We find the authority of **Mifumi (U) Ltd & 12 Others vs Attorney General and Another** applicable to the instant case. As indicated hereinabove, it is indeed customary for people to condole with fellow members of their communities by giving money and gifts which are read out publicly and proof of this was not necessary as it is so notorious.

It is our finding that this allegation too was not proved to the required standard.

**25 c. Donation of Five Million Shillings to Kyabahanga Bataka Kweterana Association on the 5th January 2021 at a meeting held at Bugarama Church of Uganda.**

**5 10** On this allegation, the trial Judge is faulted for finding that the 1st Respondent was not placed at the scene and that the impugned donation was made to the association. Counsel for the Appellant submitted that all his witnesses who are members of the association placed the 1st Respondent at the scene and that after requesting for votes, he donated 5,000,000/= to the association and that the same was received by a one Ben Byakatonda.

It was further submitted that witnesses of the 1st Respondent who denied his attendance of the meeting had connived to shield him from his actions. Counsel further submitted that in cross examination, the

**15 20** 1st Respondent admitted to knowing Ben Byakatonda and that he remembered campaigning at Kyabahanga in Bwambara. Further, it was contended that all the witnesses of the Appellant had signed the attendance book and that failure to sign the same by the Chairperson was evidence that not all people in attendance, including the 1st Respondent had signed the attendance book.

On the inconsistencies found by the trial Judge as to where exactly the money was paid, counsel contended that it was at the 1st Respondent's car, after the meeting.

**25** In reply, counsel for the 1st Respondent pointed out the inconsistencies in the evidence of the Appellant. They submitted that while Akankwatsa Liason and Byaruhanga Amos stated that the money was donated in cash during the meeting, Tumuhimbise Seperiano stated that it was received after the meeting at the 1st respondent's car. It was further submitted that Bernard Byamukama

**5** who testified that 1st respondent arrived at the meeting at 12;00pm noon but in his affidavit in rejoinder, stated that he arrived at 10:30am.

**10** Counsel further submitted that in regard to the 1st Respondent's testimony that he knows Ben Byakatonda and the area of Kyabahanga and Bwambara, it is inevitable having been area Member of Parliament before for over 20 years. The 1st Respondent had campaigned in the area before and his knowledge of the same cannot be attached to that particular meeting. The 1st Respondent in cross examination maintained that he did not attend the meeting.

**15 20** In regard to the attendance book, counsel submitted that Ben Byakatonda in cross examination stated with clarity that everybody at the meeting signed with the exception of himself, the chairperson and that chairperson and chairman are the same. It was further contended that the witnesses of the appellant had connived to victimise the 1st Respondent.

In conclusion, counsel argued that the association, by its nature, is a record keeping entity accountable to its members and that no evidence was adduced to prove that the donation reflected in the accounts of the association.

**25** In rejoinder, counsel for the Appellant emphasised that on this particular incident, Court should take note of three allegations to wit; donation to the association, donation of 200,000/= to Bugarama **5** Youth and bribery to Kyabasasaki Glorious since they all arose from the same transaction.

**10** attendance He submitted that the appellant's witnesses had placed the 1st Respondent on the scene, disapproving his defence of alibi and that they were not cross examined to controvert their evidence. With regard to the list, counsel submitted that Ben Byakatonda could not rely on a list he had not signed himself as the chairperson of the Association.

**15** are As to the contradiction on the time of the 1st respondent's arrival, counsel submitted that the same is minor as 10:30 am and 12;00pm all mid-morning hours. They submitted that minor inconsistencies, unless the Court thinks that they point to deliberate untruthfulness, should be ignored. They relied on the case of **Sgt Baluku Samuel & Another vs Sarapio Tinkamalirwe vs Uganda, Criminal Appeal No. 27 of 1989** to support that proposition.

- **20** We have carefully considered the submissions of both Counsel,the record of appeal and the authorities of both counsel on the allegation. From the onset, we agree with the position of the law as cited by the trial Judge in **Ernest Kiiza vs Kabakumba Labwoni Matsiko Election Appeal No. 44 of 2016** wherein this Court stated: - **25** *"the petitioner in an Election Petition has the burden to prove their case, not the Respondent. Even where the Respondent raised the defence of alibi, the Petitioner still had the burden to place the witness at the scene."*

**5 10** money. In the instant case, the appellant has the duty to place the 1st Respondent at the scene of the alleged donation. All the witnesses of both parties on this allegation are members of the same Association. The 1st Respondent who was cross examined maintained throughout his evidence that he neither attended the meeting nor donated

Ben Byakatonda, the treasurer who allegedly received the money testified on behalf of the 1st Respondent and denied seeing him at the meeting or receiving the donation.

**15** a **20 25** The evidence of the Appellant on this allegation is marred with inconsistencies that point to the possibility that the 1st Respondent did not attend or donate money at the meeting. There was contradiction as to where the money was paid. Some witnesses testified that it was handed over during the meeting while others testify that it was handed over after the meeting at the 1st Respondent's car. It is not stated anywhere that the money was counted and ifso, by who. Bernard Byamukama contradicted himself as to the time the 1st Respondent arrived at the meeting. While counsel argues that 10:30am and 12:00pm are all mid-morning hours, there is a full one hour and thirty minutes in between. This cannot be said to be minor as it points to a deliberate falsehood that Court cannot ignore. If indeed the witnesses attended the same meeting, they would not have been inconsistent on such major and crucial details.

**5 10** As rightly submitted by counsel for the 1st Respondent, no evidence was adduced to prove that the donation reflected in the accounts of the Association. Consequently, we uphold the finding that the appellant failed to place the 1st Respondent at the scene ofthe alleged donation. That being the case, it cannot be proved that he personally donated money in a place where he did not appear on the impugned date.

## **d. Donation of Two Hundred Thousand Shillings to the youth of Bugarama Church of Uganda on the 5th January 2021.**

**15 20** In their submission on the donation at Kyabahanga Bataka Kweterana Association, counsel for the Appellant contended that this allegation arose out of the same transaction as it was committed during the same meeting. In line with our earlier finding that the 1st Respondent was not placed at the scene of the meeting, we find it unnecessary to address this ground.

## **e. Donation of one million Shillings and a promise of 50 bags of cement at Kateramo Church ofUganda on the 10th January 2021.**

**25** On this allegation, counsel for Appellant faulted the trial Judge for holding that the same was not proved. They submitted that it is not in dispute that 1st Respondent was at Kateramo Church of Uganda on the 10lh of January 2021 and that it is only the donation in contention. It is further submitted that all the Appellant's witnesses

- **5** construction. were consistent in their evidence that the 1st Respondent donated Ugx. 1,000,000/= and promised 50 bags of cement towards the construction of the church when he was informed by Reverand Mwebaze that they needed contribution towards church - **10** Counsel for the 1st Respondent further submitted that, the 1st Respondent claimed that he could not donate since this was during the campaign period and that it is not a coincidence that in all such scenarios, it is the people who do the solicitation that depone affidavits denying the donation. - **15 20** The trial Judge is faulted for believing the evidence of the church leaders who testified in support of the 1st Respondent even when they had an interest to protect. Counsel submitted that the Appellant's witnesses were neither partisan nor was their credibility shaken. He added that having donated the money publicly, it was not necessary to count the money to ascertain its quantum.

**25** In reply, counsel for the 1st Respondent submitted that the contention that the witnesses of the 1st Respondent were partisan is unfounded. They contend that almost all the witnesses who testified for the Appellant and the Respondents are registered voters who did not state which candidate they supported and that it would be presumptuous to allege that because the 1st Respondent's witnesses were leaders, they had an interest to protect.

**5** They further submit that like in the first allegation at Kajwamushana Church of Uganda, the 1st Respondent warned the congregation of the consequences of donations during the campaign period. It was also submitted that the witnesses of the Appellant could not have ascertained how much the money was in the absence of evidence of counting.

**10**

**25**

In rejoinder, counsel for the Appellant reiterated his main submissions and maintained that the Appellant's witnesses were consistent in what transpired at the church on the impugned day.

**15 20** Upon careful examination of the submissions, the record of Appeal and the authorities availed by both counsel, we agree with the learned trial Judge that the evidence on this allegation was basically the words of the Appellant's witnesses against the words of the 1st Respondent's witnesses. The trial Judge who had an opportunity to observe the witnesses preferred the evidence of the church leaders who testified for the 1st Respondent. Save for making a bare allegation that the church leaders had an interest to protect, counsel for the Appellant does not lead evidence to substantiate this claim.

This leaves the evidence of the Appellant's witnesses uncorroborated. Consequently, we find this allegation is without merit. One credible witness' evidence is enough to prove an offence

> **f. Promised a donation of 100 iron sheets at Kateramo Revival Mission Church on the 10th January 2021 which were duly delivered on 13th January 2021.**

- **5** In regard to this allegation, counsel for the Appellant reproduces the contents of a recording which as earlier held in ground 4 above, as inadmissible. As such, we shall limit the resolution to the evidence outside the scope of the recording. - **10 15** Counsel submitted that at the trial, his witnesses uniformly testified that the 1st Respondent donated 100 iron sheets to the church which were delivered on the eve of the election day by a one Frank Rwenzengye in his truck. That the delivery was in the presence of three of the Appellant's witnesses. They challenge the credibility of the lsl Respondent's witnesses especially Pastor Edson Mwebaze, the head ofthe church whom they allege had an interest to protect unlike their witnesses who are ordinary witnesses.

On inconsistencies as to the number of iron sheets delivered, they submit that this was a drafting mistake which should not be visited on an innocent deponent. To support this proposition, they rely on the authority of this Court in the case of *Hon. Oddo Tayebwa vs Gordon Arinda and Another Election Petition Appeal No. 86 of 2017.* It is their contention that Article 126(2) of the Constitution applies in such circumstances.

**20**

**25** It is further submitted that the petition clearly indicated 100 iron sheets and that affidavits in support of petitions give substance to issues raised in the petition. They cited the authority of **Chebrot Stephen Chemoiko vs Soyekwo Kennneth and Another Election Petition Appeal No. 56 of 2016** to fortify their position and to buttress the need for cross examination. **5 10** In reply, counsel for the 1st Respondent submitted that the evidence of the Appellant is not clear on whether the 1st Respondent donated iron sheets or promised to roof the church, how the witnesses got to know of the date of delivery, the exact number of the iron irons donated and that there was no evidence on record of the person who allegedly delivered the iron sheets. They further submit that the evidence of Pastoi\* Edson Mwebaze who denied receiving the donation was corroborated by that of another witness, a one Byamukama Gideon.

**15** It was further submitted that the authority of **Chebrot Stephen Chemoiko vs Soyekwo Kennneth and Another (supra)** was cited out of context as it does not suppose that cross examination is the only way to challenge evidence. It was contended that in proceedings such as electoral petitions where the standard of proofis on a balance of probabilities, evidence of one side can be rebutted by the evidence of the other side.

**20**

In summing up on this allegation, Counsel further contended that it is not a rule of thumb that once a witness is not cross examined, their evidence remains unchallenged. They submitted that under **Rule 15(1) and (2) of the Parliamentary Elections (Interim Provisions) Rules,** cross examination is only in exceptional

**25** circumstances where Court has granted leave. In effect, the Court is expected to determine the case solely by looking at the affidavit evidence of all the parties.

**5 10** In rejoinder, counsel for the Appellant reiterated their submission in support and added that the evidence of the truck driver, if required, was only to prove that the iron sheets were from the lsl Respondent but that the delivery had been proved. They contend that the truck driver was merely delivering what had earlier been promised and that this alone confirmed him as an agent of the 1st Respondent.

In resolving this issue, we note that this is another instance of the Appellant's witnesses' word against that of the 1st Respondent's witnesses. In the circumstances, we find the submission by Counsel for the Appellant that delivery was proved rather strange. In any case,

**15** whether delivery was made or not, what is pertinent is proof that it was on account of the 1st Respondent. We do not find any proof to prove so in this case.

The Pastor who led the service denied ever receiving the iron sheets or a promise from the 1st Respondent. We agree with the trial Judge's

**20** finding that the truck driver was the best placed person to testify whether the iron sheets were delivered and whether the delivery was on behalf of the lsl Respondent.

**25** examined as failure to prove that the delivery, if any, was on account of the 1st Respondent would suffice to dispose of this allegation. Consequently, we find that the Appellant failed to prove all the ingredients of this illegal practice to the required standard of proof. We do not find it necessary to address the issue of the weight of evidence attached to evidence of a witnesses who was not cross

- **g. Promised a donation of sports related items such as balls and jerseys on the 11th November 2020 at Nyakanyinya playground which were delivered on the 17th November 2020 and 14th December 2020 respectively.** - **10 15** On this allegation, counsel for the Appellant submitted that the trial Judge was heavily biased against the Appellant's evidence and failed to evaluate it properly. They submitted that the six witnesses who testified in support of the Appellant confirm that the 1st Respondent personally made a promise to them to deliver the sports related items on 11th November, 2022 and that the same were delivered on 14th day

**5**

**20** of November, 2022 by a one Ndyabijuka Africano on behalf of the 1st respondent. A one Otafiire Hamlet stated that he still had his uniform labelled "Jim Muhwezi, Rujumbura" and that the same applied to the balls. They fault the 1st Respondent's witnesses for not cross examining him.

**25** They submitted that of the three witnesses of the 1st Respondent, Ndyabijuka Africano and Byamukama Purtazio are agents of the 1st Respondent, hence biased. Counsel also submitted that Tumukunde Peter was coached, albeit, without any evidence. They relied on the authority of **Oddo Tayebwa vs Nasser Basajabalaba Election Petition Appeal No. 13 of 2011** to buttress their submission that Ndyabijuka Africano was acting in furthering the election of the 1st Respondent and was working to get him votes.

- **5** In reply, counsel for the 1st Respondent submitted that the finding of the trial Judge on this allegation is correct. They submitted that it is not possible to tell the manner in which and to whom the impugned items were delivered, how the items were received and that the 1st Respondent was the source. - **10** In regard to failure to cross examine Otafiire Hamlet, they submitted that it was not necessary to cross examine the said witness because his evidence was sufficiently rebutted by the evidence of Africano Ndyabijuka. They further stated that failure to produce the jersey and the balls at the hearing clearly showed that they never existed. - **15 20** On the question of Africano Ndyabijuka being an agent of the 1st Respondent, they submitted that there was no evidence that the two were connected, at all. In summing up this issue, it was contended that this Court ought to be alive to the fact that in election petitions, witnesses tend to be partisan in supporting their candidates against their rivals.

In rejoinder, counsel for the Appellant maintained that Ndyabaijuka Africano was an agent of the 1st Respondent, having asked their witnesses to vote the 1st respondent on two occasions and that he delivered the promised donations. On Otafiire Hamlet failing to deliver the jersey and the balls at the hearing, they submitted that the submission by counsel for the 1st Respondent did not make any logical sense as he was not summoned for cross examination.

**25**

**5** Having carefully perused the submissions, the record of appeal and the authorities, it is our firm view that this allegation was not proved to the required standard.

**10 15** The allegation revolves around Ndyabaijuka Africano who denied being an agent of the 1st Respondent or delivering any sports items. The authority of **Oddo Tayebwa vs Nasser Basajabalaba (supra)** is distinguishable as in that case, it was established that the Respondent's brother had actually delivered on an earlier pledge by his brother with a view ofinfluencing voters. In the instant case, there is no evidence linking Ndyabaijuka Africano to the 1st Respondent or that the items were delivered at all.

The submission by counsel for the Appellant that Otafiire Hamlet did not produce the jersey in Court because he was not summoned for cross examination is, with all due respect, misleading. The burden lay on the Appellant to prove that the donations had been made, not

**20** the 1st Respondent. Considering that all, except two of the witnesses summoned for cross examination showed up in Court does not make matters better for the Appellant.

Having found that all the allegations hereinabove were not proved to the satisfaction of Court, this ground is resolved in the negative.

**25 GROUND 2: The learned trial judge erred in law and fact when, through an adoption of a one-sided evaluation of evidence, he held that the Appellant had not proved that**

**the 1st Respondent committed the offence of voter bribery in respect of the following incidents.**

- **a. Bribery of voters at the home of Moses Kwijuka on the 6th January 2021 with Five Hundred Thousand Shillings.** - **b. Bribery of voters at Nyakinengo Secondary School on the 10th of January 2021 with One Million Eight Hundred Thousand Shillings.** - **c. Bribery of Voters at the home of Canon John Matongo on the 12th January 2021 with Two Million Shillings and Two Hundred Thousand Shillings Respectively.** - **d. Bribery of Glorious Kyabasaaki on the 5th January 2021 at Bugarama Church of Uganda at the meeting of Kyabahanga Bataka Kweterana Association with Three Hundred Thousand Shillings.**

**25** numerous On this ground, counsel for the appellant submitted that they proved that the 1st Respondent personally and in some instances through his agents with his knowledge, consent and approval committed acts of voter bribery contrary to Section 68(1) of the Parliamentary Elections Act.

ingredients of the offence of bribery, to wit; They cited the case of **Dr. Kizza Besigye vs Yoweri Museveni & Another Presidential Election Petition No.l of 2001** on

**10**

**5**

**20**

**15**

1. That a gift was given to a voter

**5**

- 2. The gift was given by the candidate or his agent - 3. The gift was given with the intention of inducing the person to vote - **10** On the standard of proof in electoral petitions, after admitting that the same is well settled by section 61 (3) of the Parliamentary Elections Act and case law, they proceeded to cite the case of **Blyth vs Blyth [1966] 1 ALLER** on the definition of "to the satisfaction of court" which was interpreted to mean a preponderance of probability. Having already cited **Amama Mbabazi vs Yoweri Kaguta Museveni** - **15 and Other(supra)** which is not only vivid on the subject, but binding, we shall not labour to reproduce the contents of the above authority, being that it is in tandem with the authorities by our local Courts.

**20** On their side, counsel for the 1st Respondent adopted their submission in the trial Court and contended that the trial Judge judiciously arrived at his findings after due evaluation and assessment of the evidence as a whole and application of the law on the same.

They submitted that whereas they agree with the principles enunciated by the Supreme Court in the **Dr. Kizza Besigye vs**

**25 Yoweri Museveni & Another (Supra)** on the ingredients of bribery, they contend that counsel for the Appellant is deliberately trying to apply the same to wrong and empty allegations.

**5** We shall now proceed to address each of the allegations independently.

## **a. Bribery of voters at the home of Moses Kwijuka on the 6th January 2021 with Five Hundred Thousand Shillings.**

- **10** On this allegation, counsel for the Appellant submitted that the trial Judge erroneously held that the Appellant's witnesses contradicted themselves and that such finding was as a result offailure to evaluate the evidence and applying a higher standard. They submitted that the Appellant adduced five witnesses, to wit, Kashumbusha Julius, - **15 20** Muhwezi Amon, Byaruhanga Kenneth, Twinamatsiko Annet and Orikiriza Anniset in the lower Court who all deposed that on 6th January 2021 in the morning hours, the 1st Respondent addressed voters at the home of Kwijuka Moses. That after his speech, he gave out money amounting to Ugx. 500,000/= to Kwijuka Moses to distribute among the voters gathered at his home.

They further submitted that the evidence of Kashumbusha Julius who testified that he received the money remained uncontroverted. It was further contended that Kwijuka Moses in cross examination admitted to being a friend of the 1st Respondent, making him an agent.

**25**

witnesses. Counsel further submitted that Byaruhanga Kenneth and Muhwezi Amon who declined to receive the money qualify as independent

- **5** In reply, counsel for the 1st Respondent submitted that the allegation seems to be grounded on the fact that Kwijuka Moses is a friend of the 1st Respondent and that he would lie to protect him. They contended that this allegation is based on conjecture. They also submitted that whereas it was alleged that there were so many people - **10** at Kwijuka Moses' home, the Appellant's witnesses only identified themselves and the host and that they did not demonstrate how they ascertained that the money was Ugx 500,000/=.

**15 20** It was also submitted that there were glaring contradictions and inconsistencies in the Appellant's evidence. For example, while Kashumbusha Julius and Twinamatsiko Annet alleged that everybody got money, Muhwezi Amon and Byaruhanga Kenneth stated that they did not receive any money which suffices to create doubt as to whether there was such a meeting or distribution of money thereat. They concluded by emphasizing that Kashumbusha Julius was an accomplice whose evidence carried no weight.

**25** uncontroverted. In rejoinder, counsel for the Appellant reiterated their argument that Kwijuka Moses was a partisan witness with motivation to lie and that the two witnesses who did not receive the money were independent witnesses and that Orikiriza Anniset's evidence remained

After careful consideration of the submissions, the Court record and authorities, we agree with the trial Judge that there were inconsistencies in the Appellant's evidence. Two of the witnesses testified that everybody at the meeting received money while two

**5** other witnesses testify that they were at present but, did not receive any money.

We also find it inconceivable, that out of over 100 people at the meeting, the witnesses only identified themselves and the host. We also doubt the Appellant's evidence specifically on how the witnesses ascertained that the money was Ugx. 500,000/= and how the meeting was conducted i.e., how the guests were invited, by what means etc.

Suffice it to note that Kwijuka Moses denied hosting the 1st Respondent at his home, at all, on the impugned day. The trial Judge found him truthful and found no reason to disbelieve his evidence.

**15** Keeping in mind that he had the opportunity to assess his demeanor at the trial, we have no reason to depart from this finding. On the basis of the aforesaid, we hold that the Appellant failed to prove the allegations of bribery at Kwijuka Moses' home.

**20**

**10**

## b. **Bribery of voters at Nyakinengo Secondary School on the 10th of January 2021 with One Million Eight Hundred Thousand Shillings.**

**25** Counsel for the Appellant faulted the trial Judge for holding that the evidence of the Appellant's witnesses was not believable and was uncorroborated in respect to this allegation. Counsel contended that the Appellant led evidence of 5 witnesses who confirmed being present and receiving the money. That the Appellant's witnesses provided the material circumstances of how the offence was committed and that it is not necessary that there must be

**5** confirmation of all circumstances of the illegal offence by all witnesses in a unison manner. They cited *Rwalinda John vs Uganda, Supreme Court Appeal No. 03 of 2015.*

**10** In conclusion, it was submitted that corroboration of accomplice evidence is a rule of practice and not of law. They cited *Sgt. Baluku Samuel & Another vs Uganda (supra)* in support of the contention and contended that the trial Judge erroneously raised the standard of proof of election offences, to beyond reasonable doubt from the usual which is to the satisfaction of Court.

**15 20** money. In reply, Counsel for the 1st Respondent submitted that the evidence of the Appellant on this allegation was disregarded by the trial Judge for two reasons; first, that the witnesses would be accomplices, having admitted to taking the money. Secondly, that the evidence was lacking in a material particular with regard to the number of people that attended the meeting and the denominations of the

On lack of evidence ofsolicitation, it was submitted that this evidence was volunteered by the Appellant's witnesses themselves and that bribery is double edged in which case evidence of solicitation is not necessary as it involves receiving on the other hand.

**25** In regard to the requirement for corroboration, it was submitted that the requirement for corroboration for accomplice evidence is settled law that has evolved from judicial precedents over the time. Kiiza

**55** **5 Besigye vs Yoweri Kaguta Museveni (Supra)** was cited to fortify this proposition.

In relation to the standard of proof, it was submitted that the trial Judge was alive to the proper threshold when he alluded to the authority of *Bwino Fred Kyagulaga and Another versus Badogi*

**10** *Ismail Waguma Election Petition Appeal Nos. 15 and 16 of2016* at page 4 of hisjudgment.

In conclusion, they submitted that there was independent evidence of a one, Asiimwe Julius Actor, the director of the school whose hall was used. He testified that the 1st Respondent distributed money on

**15** the impugned day.

> uncontroverted. In rejoinder, counsel for the appellant reiterated the submissions and held that the evidence of the 1st Respondent was rejoined by Ayebare Nickson who was never cross examined which left his evidence

- **20** In addressing this allegation, we are alive to the fact that evidence of solicitation is indeed not necessary to prove the offence of bribery as it also involves receiving, making both the giver and the receiver culpable. We are also alive to the fact that accomplice evidence requires corroboration. **Refer to Spencer William vs Abbas Agaba** - **25 Mugisha and Another Election Petition Appeal No. 6 of 2016**

In the instant case, all the appellant's witnesses were accomplices, having admitted receiving the bribe. This makes their evidence, in the absence of corroboration, weak. On the other hand, the allegations

**5** of being partisan notwithstanding, the evidence of the 1st respondent was corroborated by the evidence of an independent witness, Asiimwe Julius Actor.

On the basis of the aforesaid alone, we hold that this allegation was not proved to the required standard.

**10 c. Bribery ofVoters at the home of Canon John Matongo on the 12th January 2021 with Two Million Shillings and Two Hundred Thousand Shillings Respectively.**

**15** On this allegation, counsel for the Appellant submitted that the trial Judge erroneously held that the Appellant failed to satisfy the Court that the 1st Respondent bribed voters at the home of Canon John Matongo. They contended that the 6 witnesses for the Appellant placed the 1st Respondent at the home of Canon John Matongo where he gave Ugx. 2,000,000/= to be shared among the individual voters and Ugx. 200,000/= to Canon John Matongo.

- **20** They further submitted thatJulius Tukakira admitted organizing the meeting at the home of Canon John Matongo and that he was a supporter of NRM and a coordinator of the 1st Respondent in Nyakagyeme Sub County and that this qualifies him as an agent of the 1st Respondent which renders him a partisan witness. Counsel - **25 REFERENDUMS (VOLUME 15 (3) 2007** where it is noted: cited **Halsbury's Laws of England, ELECTIONS AND**

*"A candidate's liability to have an election avoided under the doctrines ofelection agency is distinctfrom, and wider*

*than, his liability under the criminal or civil law of agency. Once the agency is established, a candidate is liable to have his election avoided for corrupt or illegal practices committed by his agents even though the act was not authorised by the candidate or was expressly forbidden. The reason for this stringent law is that candidates put forward agents to act for them; and if it were permitted that these agents should play foul, and that the candidate should have all the benefit oftheirfoul play without being responsible for it in the way of losing his seat, great mischiefwould arise."*

**15**

**5**

**10**

**20 25** In regard to the evidence of Ahebwa Ivan Matongo, counsel implored this Court to declare him an unreliable witness. They submitted that this witness was initially meant to testify on behalf of the appellant but switched sides which only confirms the guilt of the 1st respondent. It was further contended that his name was listed in the witnesses of the Appellant in the joint scheduling memorandum and that the 1st Respondent's lawyers had constructive notice of this which the Court ignored. In conclusion, it was submitted that if the trial Judge had evaluated the evidence, he would have come to a different conclusion that the 1st Respondent committed the said illegal practice.

In reply, counsel for the 1st Respondent submitted that the evidence on this allegation is the most incoherent of all. It was submitted that the host of the gathering, an 80-year-old lay church Canon, who

*»*

**5** clearly has no reason to tell lies denied receiving any money or money being distributed at his home and his evidence was corroborated by his two sons including Reverend Ahebwa Ivan Matongo.

Counsel further submitted that the inconsistencies in the Appellant's evidence on this allegation were so grave that the trial Judge rightly concluded that it is doubtful whether they attended the same event. The evidence on bribery on behalf of the Appellant was led by selfconfessed accomplices and it remained uncontroverted.

**10**

On the issue agency, counsel submitted that, after failing to impute actions of Julius Tukahirwa on the 1st Respondent, he attempted to

**15 20** misapply the law, which to the best of his knowledge, is inapplicable. It was contended that the proposition in **Halsbury's Laws of England, ELECTIONS AND REFERENDUMS (VOLUME 15 (3) 2007,** if applied would have the effect of amending a statutory provision contained in sections 68 and 61(l)(c) of the Parliamentary Elections Act where knowledge and consent or approval of the candidate is an integral element. They concluded that the evidence on this allegation

In rejoinder, counsel for the appellant submitted that there is no requirement of law to corroborate accomplice evidence especially in

is a hub of falsehoods which ought to be dismissed.

**25** bribery. They cited the case of *Aligawesa Phillip vs Byandala Abraham James and Another Election Petition Appeal No. 24 of 2011.*

**5** Counsel reiterated their earlier submissions that the trial Judge generally applied the standard of proof in criminal cases in error.

In conclusion, it was reiterated that Julius Tukakira acted with the consent and approval of the 1st Respondent in relation to the allegations at Canon Matongo's home.

- **10** We have considered the submissions on record, the record of Court and the authorities cited by Counsel. In relation to Ahebwa Ivan Matongo. While the Appellant and the witness could have been in communication, there is no evidence to suggest that the two ever agreed that he would testify in his favour. - **15** Ultimately, mere listing of a person as a witness in a joint scheduling memorandum does not make such a person a witness. One can act speculatively without seeking consent of the listed person.

**20** On inconsistencies in the evidence, we uphold the trial Judge's finding on the same. If witnesses had attended the same function, there is no reason as to why they were inconsistent on whether they were counted. This, in addition to the fact that the evidence was being led by self-confessed accomplices in favour of the appellant against the host (Canon John Matongo) and two of his children, one being a religious leader, makes the evidence of the latter group more believable than that of the former group. On account of this alone, this allegation would fail.

**25**

In regard to the agency relationship between the 1st Respondent and Julius Turyakyira, we find that the Appellant's evidence did not

**5 10** establish that Julius Turyakyira distributed the money at the meeting, let alone with consent of 1st Respondent. We agree with Counsel for the 1st Respondent that **Halsbury's Laws of England^ ELECTIONS AND REFERENDUMS (VOLUME 15 (3) 2007** cannot stand in the face of an express provision of **the Parliamentary Elections act ,S.68** & **S.61.** The position of the law as it is, is that the agent must act with the knowledge and consent or approval of the candidate.

**e. Bribery of Glorious Kyabasaaki on the 5th January 2021 at Bugarama Church of Uganda at the meeting of Kyabahanga Bataka Kweterana Association with Three Hundred Thousand Shillings.**

As already indicated hereinabove, this particular allegation arises from the same series of events as the two other allegations at the Kyabahanga Bataka Kweterana Association. Having held that the lsL

20 Respondent was not placed at the scene and the evidence being the same, we do not find it necessary to address this allegation.

In conclusion, this ground is also entirely resolved in the negative.

*Ground 5*

**15**

**25** *The learned trial Judge erred in law andfact when he held that the Appellant had not proved that the 1st Respondent made a false statement at a rally at Baigaga ward that the Appellant had contracted Covid illness.*

**5 10** Counsel for the Appellant faulted the trial Judge for finding that he was not satisfied that the 1st Respondent had said the words and that the Appellant needed to have set out the very words used by the 1st Respondent to enable the Court to determine the purpose of the publication. They referred to the audio recording of an interview between the Appellant and a radio presenter and stated that the trial Judge did not take the same into account in arriving at his decision.

After referring this Court to Section 70 of the Parliamentary Elections Act which is the basis ofthe illegal practice and wherein "publication" is central, they cited the Black's Law Dictionary, 8Lh Edition wherein it was defined as;

## **"the act of declaring or announcing to the public"**

**15**

**20 25** In support, it was submitted that the narrative of the Appellant's witnesses simply proves that the 1st Respondent verbally and publicly made a false statement about the illness of the Appellant who was a candidate in the election for Member of Parliament for Rujumbura County constituency and that the said statement was intended to promote or procure the election of the 1st Respondent. Counsel further submitted that the authority of **Kizza Besigye vs Yoweri Kaguta Museveni (supra)** is distinguishable because the Respondent therein admitted to making the statement as opposed to the instant petition where the 1st- Respondent made bare denials.

**5** Counsel concluded his submission that the Appellant's evidence was sufficient in confirming that the false statement was intended to ruin the appellant's candidature.

In reply, Counsel for the 1st Respondent supported the trial Judge's finding and contended that he properly evaluated the evidence and correctly applied the law.

On the issue of the recordings of contemporaneous news interviews which the trial Judge is faulted for not relying on, Counsel reminded the Court that the said recordings are inadmissible for dearth of authenticity.

- **15** Counsel further submitted that a person alleging illegal practice under *Section 70 ofthe Parliamentary Elections Act* as a ground for nullifying the election of a Member of Parliament has to plead and prove the following ingredients; - 1. That the statement was published, - **20** 2. That the statement was false, - 3. That the statement concerned illness, death or withdrawal of a candidate, - 4. That the maker knew that the statement was false, or knew or believed it on reasonable ground not to be true, - 5. That the statement was made for the purpose of promoting or procuring the election of another candidate.

Counsel contended that the trial Judge rightly found that the Appellant did not prove any of the above ingredients.

**25**

**5 10** In specific reply to the Appellant's claim that the 1st Respondent simply made bare denials, Counsel submitted that the 1st Respondent specifically and firmly stated in his affidavit that he did not make the statement and that the allegation was also ably controverted by the affidavits of Bamuhiga Clesi, Katabazi David and Muyambi Milton.

In rejoinder, Counsel for the Appellant stated that all the ingredients as set in the **Kizza Besigye vs Yoweri Kaguta Museveni (supra)** were proved and that the 1st Respondent's utterances at Bigaaga campaign meeting amounted to publication.

**15 20** It was submitted that the argument by the 1st- Respondent that the Appellant had the burden to prove that he did not contract Covid-19 is misconceived. That the evidential burden shifted to the 1st Respondent when the Appellant proved that the statement regarding his health was false. Counsel stated that the 1st Respondent, in his defence, ought to have proved that he made the statement on

reasonable grounds that it was true and that this would be the equivalent of the defence ofjustification in defamation actions.

Counsel further submitted that there is overwhelming evidence that the statement of the 1st Respondent was meant to undermine the

**25** candidature of the Appellant before the electorate through demoralizing his supporters and that there is evidence that on account of the false statement, several voters called him seeking answers regarding his health.

- **5** appellant's candidature. In summing up the rejoinder, Counsel submitted that the 1st Respondent had never diagnosed the Appellant or tested him and found him with Covid and that the statement was meant to ruin the - **10** We have considered the submissions, evidence and authorities cited by Counsel. It is important to note on the onset that the audio recording that is alluded to by Counsel for the Appellant is of no value, having held earlier that it is inadmissible. In any case, even if it had been admissible, it would not help the Appellant's case as it is an interview between the Appellant and a radio presenter who neither - **15** disclosed his source, nor swore an affidavit. We agree with the trial Judge that this makes the evidence inadmissible.

Further, as pointed out by the trialJudge, the witnesses did not state exactly what the 1st Respondent is purported to have said at the rally in Bigaaga. It is no wonder that all the witnesses of the Appellant

**20** used different words to describe the words allegedly used by the 1st Respondent as pointed out by the trial Judge in paragraph 339 of the Judgment.

On the other hand, all the three witnesses adduced by the 1st Respondent stated that they were at Bigaaga Ward on the impugned day and that the 1st Respondent never made any such allegations. The inconsistence in the Appellant's evidence as to what exactly was said leaves a great doubt as to whether it was published at all. As stated in **Amama Mbabazi vs Yoweri Kaguta Museveni (supra),** there is no room for a finding that it might have happened, the law

**5** operates on a binary system in which the values are 0 and 1. We are inclined to agree with the trialJudge that the Appellant failed to prove that the lsl Respondent published the statement.

Having held as we have done above, we find it unnecessary to consider the rest ofthe ingredients since these are all dependent

**10** on the first ingredient. Consequently, this ground is also answered in the negative.

Ground 6

## **15** *That the learned trial Judge erred in law when he held that the 1st Respondent's 40 affidavits of illiterate deponents did not violate provisions of the illiterates Protection Act and Oaths Act.*

**20** On this ground of appeal, Counsel for the Appellant submitted that *Section 3* of the *Illiterates Protection Act* imposes the duty on the draftsman to ensure that the contents of the affidavit are read over and explained to the illiterate deponent. Counsel also contended that if a document is drafted by a third party for an illiterate, the affidavit must also contain the true and full names and address of the drafter. Counsel relied, among others, on the authority of *Mugema Peter versus Mudiobole Abedi Nasser, Election Petition Appeal No. 16 of 2016* and case law from Ghana.

**25**

On the other hand, it was submitted for the 1st Respondent that the verification contained in the 40 affidavits deponed on behalf of the 1st Respondent fully complied with the Illiterates Protection Act. That the **5 10** Illiterates Protection Act does not provide for a specific form of verification. Counsel relied on the authorities of *Namboowa Rashidah versus Bavekuno Mafumu & Electoral Commission, Election Petition Appeal No. 69 of 2016* and *Stanbic Bank Uganda Ltd versus Ssenyonjo Moses & Anor CACA No. 147 of 2015.*

Its trite law that documents (affidavits) prepared for and on behalf of illiterates must comply with the Illiterates Protection Act. This law was intended to protect illiterate persons and Section 3 is couched in mandatory terms. *See Kasaala Growers Co-operative Society*

**15** *versus Kakooza Jonathan and Another, SCCA No. 19 of 2010.*

In determining this issue, the learned trial Judge labored to reproduce *Section 3* of the *Illiterates Protection Act* and the certificate of translation on the affidavits, to examine whether the 1st Respondent's affidavits by illiterates comply with the law. In doing so,

**20** the learned trial Judge observed as follows:

> *"The IPA however does notprovidefor any specificform in which the verification should be made. Consequently, there is no unanimity on the form of verification. Different Advocates or persons who draft documents for illiterate persons adopt the form of verification which in their view meets the requirements of Section 3 ofthe IPA."*

We agree with the learned trial Judge's observations. The same observation was made by the Court of Appeal in *Natnbowa Rashida*

## **5** *versus Bavekunda Mafumu Godfrey Kyeswa and Another, Election Petition Appeal No. 69 of 2016.*

This therefore implies that, the verification so adopted by Advocates and drafters of documents (affidavits) prepared on behalf of illiterate persons, must be examined on a case-by-case basis to determine whether it meets the requirements envisaged under Section 3 of the Illiterates Protection Act.

**10**

**15**

**25**

verification is insufficient in disclosing the information required under Section 3, such document or affidavit cannot be admitted in evidence. Once court is satisfied that the verification so adopted sufficiently complies with the law, then that affidavit will have passed the test, thus admissible. If no verification is recorded at all or such

**20** Before reaching a conclusion, the learned trial Judge examined a plethora of authorities of this Court on this issue. First, is the decision of this Court in *Nsubuga Silvest Ssekutu versus Kalibala Charles and Another, Court ofAppeal Election Petition Appeal No. 70 of 2016.* This case also involved a similar verification as the one in the instant case. It was argued, as in this case, that the affidavits did not comply with the Illiterates Protection Act. The Court held:

> *"A careful reading ofSection 3 ofthe Illiterates Protection Act reproduced above reveals that upon a translator affixing his name and address on the certificate of translation, the deponent's instruction to write the document are implied. We*

*find that, the certificate oftranslation set out in the impugned affidavits complied with the law. "*

**5**

**10**

The Court of Appeal also followed the same reasoning in, *Tamale Julius Konde versus Ssenkubuge Isaac and Another, Court of Appeal Election Petition Appeal No. 75 of 2016, Nambowa Rashida versus Bavekunda Mafumu Godfrey Kyeswa and Another, Election Petition Appeal No. 69 of2016* and *Hon. Otala Sam Amooti Owor versus Taban Idi Amin and Another, Court of Appeal Election Petition Appeal No. 93 of 2016.*

After studying the above-mentioned authorities, the learned trial 15 judge then held:

*"From the above authorities, it appears to me that the Court ofAppeal has been consistent in their decisions that since the IPA does not provide for a specific form in which the verification should be made, an affidavit ofan illiterate which*

**20** *has a certificate of translation containing the name of an illiterate deponent and also the true and full name of the translator or witness, complies with the requirements of Section 3 ofthe Illiterates Protection Act."*

**25** of the translator. The authority of *Mugema Peter (Supra),* relied on by Counsel for the Appellant, is clearly distinguishable from the above authorities. The verification in that case contained no true and full names and the true and full address of the translator. In the instant case, the certificate of translation contains the true and full names and address

**5** Equally, we are fortified by the authorities above, that there is no error of law in the learned trial Judge's findings on this issue. We uphold it.

This ground therefore fails.

Ground 7.

- **10** *The trial Judge erred in law in holding that there is no legal requirement for the oath of the interpreter of the 1st Respondent's 40 affidavits of illiterates to be recorded in the affidavits despite the absence ofthe interpreter'sJurat required by the Oaths Act.* - **15** Counsel for the Appellant submitted that it was erroneous for the trial Judge to hold that there is no legal requirement to include the interpreter's oath in the jurat of an affidavit of an illiterate deponent. He relies on *Section 5* of the *Commissionerfor Oaths (Advocates) Act.* - **20** On the other hand, Counsel for the 1st Respondent, while agreeing with the finding of the trial Judge, submitted that there is no mandatory requirement that the interpreter's oath should be included in the affidavit. Counsel submitted that what is required to be included in the affidavit is the jurat. He relied on *Section 6* of the - **25** *Oaths Act Cap. 19* and *Section 5* of the *Commissionerfor Oaths (Advocates) Act Cap. 5.* That it is the duty of the person administering oath to ensure that the interpreter takes oaths as

**5** required by law before interpreting the contents of the affidavit to the deponent.

In resolution of ground 7, we totally agree with the learned trial Judge that there is no legal requirement for the oath of the interpreter to be included in the affidavit. A proper reading of *Section 6 of* the *Oaths*

**10 15** *Act* and *Section 5* of the *Commissionerfor Oaths (Advocates) Act,* imposes a duty on every commissioner for oaths before whom any oath of affidavit is taken or made, to state truly in the jurat or attestation at what place and what date the oath or affidavit is taken or made. Therefore, what is to be included in the affidavit is a jurat not an oath.

Counsel for the Appellant argues that the jurat which should have been recorded in the 1st Respondent's affidavits is that provided for in **Form E** in the first Schedule of the Oaths Act. He contends that without it, there is no proof that the interpreter took oath before carrying out the interpretation.

With all due respect to Counsel, we disagree with this presumption. The person to testify as to whether proper oath was administered to the deponent is the Commissioner for Oath. In absence of such evidence, Counsel for the Appellant's contention cannot stand since

**25** it lacks evidential basis.

**20**

We therefore agree with the trial Judge that there is no evidence on record to show that a one Muhumuza Derrick was not sworn as the interpreter. The jurat recorded in the 1st- Respondent's affidavits is provided for in **Form** B, First Schedule to the Oaths Act. It is a form

**5** of a jurat which is recorded when a third person, not being the Commissioner for Oaths, reads the affidavit to the deponent if he/she is illiterate or blind.

We have read the affidavits in issue, and it is clear that Muhumuza Derrick is the translator, the jurat as recorded by the Commissioner

**10** for Oaths indicates that the affidavit was read over to the deponents and the contents therein explained to the deponents. We therefore find no reason to disagree with the trial judge on this issue.

This ground of appeal is, therefore, disallowed.

Ground 8.

**\***

**15** *That the learned trial Judge erred in law and fact when he relied on the affidavit ofNdyabijuka Africano who testified in vernacular having sworn his affidavit in the English language as a literate deponent.*

**20** On this ground, Counsel for the Appellant submitted that a deponent (Ndyabijuka Africano) deposed his affidavit in English language but during cross examination, he elected to use Runyankore language.

**25** in In reply, it was submitted for the 1st Respondent that according to *Section 1(b)* of the *Illiterates Protection Act,* illiteracy means inability to read or write the language in which the document is authored. Counsel submitted further that, a witness is free to testify a language of his choice or that, he/she can easily express him/herself.

**5** The test as to whether a deponent or witness is illiterate or not, is his/her inability to read or understand the language in which a document is written. *Section 1 (b)* of the *Illiterates Protection Act,* defines an illiterate to mean, a person who is unable to read and understand the script or language in which a document is written or

**10** printed.

> We have read and properly examined the cross examination of Ndyabijuka Africano by Counsel for the Appellant. The deponent clearly stated that he understands English but prefers to testify in Runyankore. There is no evidence to show that he could not read or

**15** understand the contents of his affidavit. Counsel for the Appellant never asked the deponent to read or explain the contents of his affidavit. As a matter of fact, some of the questions were asked and answered by the deponent in English. To suggest that since the deponent preferred to answer questions in Runyankore, implies that

**20** he is illiterate is nothing else but speculation.

In absence of any evidence on record to show that the deponent cannot read or understand English, the submission of Counsel for the Appellant that the deponent is illiterate cannot stand.

We therefore answer this ground in the negative.

**25** *Ground 9.*

*That the learned trial Judge erred in law in holding that counsel Derrick Muhumuza's translation/interpretation of the 1st Respondent's 40 affidavits of illiterate deponents did not* **5** *violate the Advocates (Professional Conduct) Regulations S. I. 267-2.*

**10 15** In support of this ground, Counsel for the Appellant relied on *Regulation 9 of the Advocates (Professional Conduct) Regulations S. I. 267 - 2,* that no Advocate may appear before any court or tribunal in any matter in which he or she has reason to believe that he or she will be required as a witness to give evidence, whether verbally or by affidavit; and if, while appearing in any matter, it becomes apparent that he or she will be required as a witness to give evidence whether verbally or by affidavit, he or she shall not continue to appear.

**20** On the other hand, Counsel for the 1st Respondent submitted that in view of *Rule 15 (1)* and *(3)* of the *Parliamentary Elections (Interim Provisions) (Election Petitions) Rules S. I. 41 - 2,* one becomes a witness only after he has deponed an affidavit or has been summoned by Court to give evidence. Counsel argued further that, the submission by the Appellant's counsel that if an Advocate executes a role of interpreting affidavits to illiterate deponents, is reason enough for him to believe that he or she will be a witness in the matter, is absurd. Counsel reasoned that the implication of that submission is that, a litigant will have to retain two lawyers, i.e., one to interpret/translate affidavits and another to appear in Court. He invited this Court not to avail space to Counsel for the appellant's proposition to form part of our jurisprudence.

- **5** A careful reading of *Regulation 9 of the Advocates (Professional Conduct) Regulations* clearly shows that the regulation does not apply to the facts at hand. A mere translation of affidavits to deponents by an Advocate, does not **automatically disqualify** him or her from appearing as counsel in a matter. It is not in every case that - **10** an Advocate is called to testify. As a matter of fact, a party seeking to cross examine the Advocate in such circumstances must seek leave of Court first. Such leave may or may not be granted. In such circumstances, it's unreasonable to disqualify an Advocate from appearing as Counsel in the matter merely because he translated the - **15** affidavits to the deponents. But if Court grants leave to cross examine such an Advocate, he/she is barred from appearing as counsel in the matter

Having found that a one Muhumuza Derrick was not a witness in the case and could not reasonably believe or expected to be a witness in the matter, we disallow ground 9 of appeal and uphold the learned trial Judge's finding.

Ground 10.

**20**

*<\**

**25** *The trial Judge erred in law and fact when he faulted the Appellant for the failure to follow up the police complaint regarding the incidents of voter bribery by the 1st Respondent and exonerated the 2nd Respondent.*

Before we start resolving this ground, we will give a brief background of the Appellant's contention from the lower Court as it relates to this ground. The Appellant's case against the 2nd Respondent is that

- **5** elections were not conducted in accordance with the provisions and principles laid down in the electoral laws. The Appellant in particular pleaded that he made a verbal complaint to the 2nd Respondent's Returning Officer that the 1st Respondent was committing "numerous illegal practices." - **10** The Appellant under paragraph 9 of the petition averred that that the 2nd Respondent failed in its duty to restrain the 1st Respondent from committing the "illegal practices and election offences" thereby allowing an uneven electoral terrain for candidates to prevail in Rujumbura County constituency. - **15 20** According to the record, the Appellant relied on the evidence of Sylvin Gumisiriza and Muhoozi Grace. The duo stated that they were summoned for a meeting by the District Returning Officer of Rukungiri. The meeting was also attended by the 1st Respondent. Their case against the 1st Respondent in that meeting is that, according to the reports they were getting from their agents, the 1st Respondent was engaging in voter bribery and other illegal practices. After the meeting, the returning officer wrote to the District Police Commander ofRukungiri to investigate the claims and report back to him. - **25** One of the 2nd Respondent's witnesses, one Kamugisha Onesmus stated that on 8Lh January, 2021, he received instructions from the DPC to investigate allegations against the 1st Respondent. He in turn instructed the Officer in Charge of Electoral and Political Desk, Detective Corporal Twesigye Francis to investigate the allegations.

5 D/ SGT Twesigye Francis stated that he investigated the allegations against the 1st Respondent but found them not true.

In determining the issue of noncompliance with the provisions of the law relating to elections, the learned trial Judge correctly interpreted **Section 61(l)(a)** *of the* **Parliamentary Elections Act (PEA).** After reproducing the section, he stated:

*"Therefore, in orderfor the petitioner to succeed in setting aside the election of the 1st Respondent under the above provision of the PEA, the petitioner must prove that there was non - compliance with the PEA or the principles laid down in the PEA and that non-compliance affected the*

**15**

**20**

**25**

**1**

**10**

*results in a substantial manner. "*

It was then the learned trial Judge's made his finding that:

*"The Petitioner did not cite any provisions of the PEA which the 2nd Respondent failed to comply with. In their submissions, Counselfor the Petitioner submitted that the 2nd Respondent did not comply with the provisions of Article 61(l)(a) and (f) ofthe Constitution on ensuring free and fair elections and hearing and determining electoral complaints before and during elections. The facts in the instant case relate to pre-polling complaints not provided for in the PEA but rather in Section 15(1) of the Electoral Commission Act. "* We agree with the finding of the learned trial judge on this issue. It's grounded in the law and facts as pointed above. The *ratio decidendi,* of the trial Judge's finding is that the Appellant did not cite any provisions of the law that the 2nd Respondent did not comply with under the PEA for him to get remedy under the PEA.

To buttress his finding further, the learned trial Judge commented:

*"How the police carried out their investigations cannot be faulted on the 2nd Respondent since the 2nd Respondent has no control over the police. The 2nd Respondent later got a report from the police that the matter was investigated and found to be false. "*

He commented further:

*"Ifthere is anyone to blame, it should be the petitioner who should have followed his complaint with thepolice since he was aware that the matter had been referred to them... "*

Clearly, this is neither a finding of the lower court nor the reason for its finding for Counsel for the Appellant to start raising a ground of appeal from it. No wonder, Counsel for the Appellant submitted that:

**25**

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*UP, "The Question therefore is what amounts to a fair investigation and what qualifies a complaint to be false, unbelievable, made up, utterly implausible and preposterous?" See para 225 of the Appellants Conferencing Notes.*

**1**

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**78**

**5** In his submission, Counsel continues to analyze the contents of the police report by D/Sgt Tumwesigye Francis. He then poses a question?

**"I**

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*"The question therefore remains. Would any reasonable man conclude that the report by D/Sgt Tumwesigye Francis in respect of the bribery allegations amounted to fair investigations? Is it logical that the report where no statement is made, names of person interviewed not disclosed amounts to a fair investigation?" See para 237 ofthe Appellants Conferencing Notes.*

- **15** and 2nd 1st **20** support the Appellant's allegations about the Respondents. We have not found evidence to support the Appellant's allegations of bribery against the lsl Respondent. The learned trial Judge was therefore right in finding that the Appellant did not cite any of the provisions of the law not complied with for the Petitioner to obtain a remedy under the PEA. From the above submission, we agree with the words of Counsel for the 2nd Respondent that the Appellant's Counsel is *"shooting in the air in an intense crossfire battle".* Whether the investigation was fair or not is immaterial. What is material is whether there is evidence to - **25** Even if one was to find the investigation unfair or lacking, that would not presuppose that the Appellant's complaint against the 1st Respondent was true.

Based on the reasons pointed above, this ground of appeal also fails.

**5 10** This being an Election Petition ,we are inclined to follow the decision of this court in **Akugizibwe Lawrence V Muhumuza David and 2 Ors , Election Petiton Appeal No. 22 Of 2016,**where Court held that election litigation is a matter of great national importance in which Courts should carefully consider the question of awarding costs so as not to unjustifiably deter aggrieved parties from seeking court redress. This court further cited the authority of **Mwogezaddembe V Gagawala Wambuzi,High Court Election Petition No.2 of 2001** where it was held that;

**15** "There is another dimension to such petitions; the quest for better conduct of elections in future....keeping quiet over weaknesses in the electoral process for fear of heavy penalties by way of costs in the event of losing the petition ..would serve to undermine the very foundation and spirit of good governance"

## **FINAL RESULT,**

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- **20** Accordingly ,this Appeal stands dismissed. - 1. We uphold the trial Judge's decision and dismiss the appeal - 2. Each Party shall bear its own Costs both in this court and in the lower court . - **25** 3. The 1st Respondent, Muhwezi Jim Katugugu, remains the validly and lawfully elected Member of Parliament for Rujumbura constituency, Rukungiri District as a result of the Parliamentary election held on 14th February, 2021.

We so order.

**5** Dated at Kampala this day of 2022 HON. MR. JU **10** HON. MR. JUSTICE MUSOTA STEPHEN ,JA HON. MR. JUSTICE C. GASHIRABAKE,JA CHEBORION BARISHAKI ,JA

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