Tayebwa v Kakuuna and Anor (Petition No. 5 of 2016) [2016] UGHCEP 58 (26 August 2016)

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THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT MBARARA ELECTION PETITION NO. 005 OF 2016

HON. ODO TAYEBWA…………………………….. PETITIONER

VERSUS

1. GORDON KAKUUNA ARINDA

2. THE ELECTORAL COMMISSION RESPONDENTS

BEFORE: HON. JUSTICE DAMALIE. N. LWANGA

JUDGMENT

The Petitioner and the 1^st Respondent stood for the position of Member of Parliament for Bushenyi-Ishaka Municipality Constituency, Bushenyi District during the Parliamentary Elections which were held throughout Uganda on 18/2/16. The other contestant in that election was Mr. Nekemia Zelebabel Mbaine. The 2^nd Respondent organized those elections in pursuit of its Constitutional mandate under Article 61(l) (a), of the Constitution.

The 1^st Respondent was returned, declared and gazetted by the 2^nd Respondent as the validly elected Member of Parliament on 3/3/16, with 6,457 votes, representing 40.53% of all votes cast; theres which translates into 33.48% of the petitioner garnered 5,334 votes cast; while Nekemia Zelebabel Mbaine polled 4,142 votes, which is 26% of all votes cast.

The Petitioner being dissatisfied with the results filed this petition on 1/4/16, in which he made allegations of illegal practices and electoral offences, in contravention of the Parliamentary Elections Act and other electoral laws. He raised allegations of violation of Sections 42, 68, 73 and 80 of the Parliamentary Elections Act, and that the 1^st Respondent was not validly elected as the directly elected Member of Parliament for Bushenyi-Ishaka Municipality Constituency. The Petitioner’s allegations were further particularized in his affidavit in support of the petition, and 40 other witness swore affidavit in its support.

The petition seeks the following declarations/orders:

1. That the Bushenyi-Ishaka Municipality Parliamentary Constituency elections were not free and fair and undermined the principles in the electoral laws;

2. That the election and declaration of the 1^st Respondent by the 2^nd Respondent as the directly elected Member of Parliament for Bushenyi-Ishaka Municipality, Bushenyi District be nullified and be set aside and a fresh free and fair election be organized;

3. That costs of this Petition be paid by the Respondents;

4. Such other remedy available under the electoral laws as court considers just and appropriate in the circumstances.

The 1^st Respondent filed an answer to the petition denying all the allegations in the petition. The answer to the petition was supported by the affidavit of the 1^st Respondent, who is RW2 on the record, in which he averred that no illegal practices and/or offences were committed by himself personally or with his gr knowledge and consent or approval. He deposed that the election was conducted in accordance with the principles laid down in the provisions of the Constitution, the Electoral Commission Act and the Parliamentary Elections Act (PEA); the elections were conducted in a peaceful atmosphere; and he was validly elected.

The 1^st Respondent’s answer to the petition was supported by affidavits of 55 other witnesses.

The 2^nd Respondent also filed an answer to the petition, which was supported by the affidavit of Mr. Mbabazi Godfrey, the Returning Officer for Bushenyi District.

An affidavit was filed by the Petitioner in rejoinder to the Respondents’ answers to the petition.

The Petitioner was represented by Mr. Ngaruye Ruhindi and Mr. Nuwagaba Collins, while Mr. Kibandama Alexander and Mr. Tusingwire Ronald represented the 1^st Respondent; and the 2^nd Respondent was represented by Mr: Justus Karuhanga, Mr. Edwin Tabaro and Mr. Andrew Mauso.

Issues;

The following four issues were framed for determination by court:

1. Whether the 1^st Respondent personally, or through his agents and with his knowledge and consent or approval committed any electoral offence or illegal practice in the aforesaid election.

2. Whether there was any non-compliance with the provisions of the Parliamentary Elections Act and whether there was a failure to conduct the elections in accordance with the principles laid down in the Parliamentary Elections Act.

3. If issue 2 is answered in the affirmative, whether the non- compliance and failure affected the result of the election in a substantial manner.

4. Remedies.

After hearing of the evidence, counsel for all the parties filed written submissions, with leave of court.

PRELIMINARY OBJECTIONS

In their submissions learned counsel for the Petitioner first raised an objection against late filing of all the affidavits in support of the 1^st Respondent’s answer to the petition, apart from that of the 1^st Respondent which was filed within 10 days from the date of service of the petition on him. The objection was based on Rule 8 (3) (a) of the Parliamentary Elections (Interim Provisions) (PEIP) Rules. Their argument is that the words ‘an affidavit’ include ‘affidavits’ under Section 3 (3) of the Interpretation Act, therefore all the supporting affidavit should have been filed within 10 days after service of the petition. It was their prayer that the affidavits which were filed after 14/4/16 are not properly before court and ought to be struck out, which would leave the Petitioner’s evidence challenged by only the evidence of the 1^st Respondent, and that of the Returning Officer.

However, learned counsel for the 1^st Respondent argued that the prayer to strike out the affidavits which were filed late should be disregarded since the scheduling was concluded without a complaint by counsel for the Petitioner, and the Petitioner filed affidavits in rejoinder on 23/5/16. He further argued that if the Rules intended that all evidence be filed within 10 days, Rule 15 of the PEIP Rules would have provided so; and since court already exercised its discretion and allowed the Petitioner additional time to file affidavits in rejoinder, no prejudice was

caused to the Petitioner.

It is true that apart from the affidavit of the 1^st Respondent in support of his answer to the petition, the rest of the supporting affidavits were filed 32 and 33 days after the 1^st Respondent was served with the petition, which is 22 and 23 days out of time respectively. This offends Rule 8(1) of the PEIP Rules, which provides that if the Respondent wishes to oppose the petition he or she shall within ten days after the petition was served on him or her file an answer to the petition. Sub-rule (3) (a) of the said Rule requires that the Respondent’s answer must be accompanied by an affidavit stating the facts upon which the Respondent relies in support of his or her answer.

The issue is whether the affidavits of the 1^st Respondent’s witness which were filed out of time should be struck out. The courts have to adopt a relaxed approach towards procedure defects of the procedural rules in issue is fatal appears to depend on whether the non- observance would lead to injustice. If it would not, then the courts would be willing to overlook it

As I pointed out earlier while dealing with the same point in respect of Nuwagira Innocent, the Supreme Court has adopted the position that not all errors and lapses should necessarily invalidate an impugned act, but that the court should look at the intention of the legislature. See Sitenda Sebalu Vs. Sam K. Njuba (supra).

The Supreme Court approved the following guidelines in Smith’s Judicial Review of Administrative Action on matters of breach of Statutory provisions:

“ although nullification is the natural and

usual consequence of disobedience, breach of procedural or formal rules is likely to be treated as a mere irregularity if the departure from the terms of the Act is of a trivial nature or if no substantial prejudice had been suffered by those for whose benefit the requirements were introduced or if serious public inconvenience would be caused by holding them to be mandatory or if the court is for any reason disinclined to interfere with the act or decision that is impugned. ”

See also Col. (RTD) Dr. Kiiza Besigye Vs. Yoweri Kaguta Museveni & Another (supra) and Muhindo Rehema Vs. Winfred Kiiza & The Electoral Commisssion (supra).

In this case the provisions of Section 3 of the Illiterates Protection Act and several Sections of the Commissioner for Oaths (Advocates) Act were not complied with. I also note that while all the witnesses testified in cross examination that their affidavits were commissioned by a magistrate in Mbarara court, the signature on the affidavits is indicated to be that of a Commissioner for Oaths. However, those are errors that can be ignored under the authority of sitenda sebalu vs sam K Njuba

It would therefore not be fair to strictly tie them down on matters of the time they stated. Most of them were just estimating the time their affidavits were commissioned and the duration of the exercise, and the apparent inconsistencies in the time stated by each of them cannot be ruled out as genuine mistakes in their estimation of time.

I am not persuaded by the argument that the affidavits could not be commissioned on one day as argued by counsel for the 1^st Respondent. This depends on how fast the exercise is done in respect of each deponent. I will also treat the different description of the way Fred was dressed to be a minor contradiction. The inconsistencies in the amount of money given by the Petitioner to each of the deponents to travel and swear the affidavits will also be treated as a minor contradiction that does not go to the root of the case. All in all I do not find the impugned affidavits to be invalid on grounds of those inconsistencies.

However, as regards PW9 Nkwasibwe Ezra who told court that he swore the affidavit before a magistrate who was dressed like the presiding judge (I was fully robed in the red ceremonial judges’ robe, flaps and the judges’ wig), I find that he never appeared before the magistrate to take the oath as he testified. The magistrate who commissioned his affidavit could not have been robbed like a judge, which also contradicts the evidence of other deponents who claimed to have sworn their affidavits before the same magistrate while dressed in ordinary clothes. His testimony was clear and deliberate lies. I will not rely on it. In Kakooza John Baptist Vs. Electoral Commission & Yiga Anthony, Election Petition Appeal No. 11 of 2007 the Supreme Court held that failure to appear before a commissioner for Oaths makes an affidavit fatally defective.

For Bamuhairwe Robert (PW17) and Musa Kasujja (PW24) it was argued that the two did not appear before the magistrate, and their affidavits ought to be struck out because they testified that they signed their affidavits in the chambers of Ngaruye Ruhindi and Co. Advocates. I find that it is Bamuhairwe Robert who testified to have signed his affidavit in the chambers of counsel Ngaruye Ruhindi. Since Mr. Ngaruye Ruhindi is counsel for the Petitioner in this matter it was wrong for the witness to sign his affidavit before him, rather than before a Commissioner for Oaths. Section 5(1) of the Commissioner for Oaths Act states:

"Provided that a Commissioner for Oaths shall not exercise any of the powers given under this section in any proceeding or matter in which he is the advocate for any of the parties to the proceedings or concerned in the matter or clerk to such advocate or in which he is interested. ”

In view of the fact that Mr. Ngaruye is the advocate for the Petitioner the affidavit which was sworn in his chambers is inadmissible. Accordingly the affidavit of Bamuhairwe Robert (PW17) is struck off.

However, as regards Musa Kasujja (PW24) although he had testified that he signed his affidavit in lawyer Ngaruye’s chambers, during re-examination he told court in detail how he was brought to the court and took the oath before signing the affidavit after it was explained to him. I find his explanation to be in line with the submissions of counsel for the Petitioner, that the deponent first signed the handwritten draft before taking the oath and signing the final affidavit before the magistrate.

3. The alleged bribery at Basajabalaba Primary School Polling Station on 18^th February 2016;

4. The alleged bribery at Rwatukwire on 16 February 2016 at 6:00 pm; and

5.The alleged bribery of Ushs. 2000 at Rwenjeru Polling Station II on the 18^th of February 2016.

In his submissions in rejoinder learned counsel for the Petitioner submitted that all the above allegations were covered in paragraph 6(j) and 6(t) of the petition, and there are no new grounds which were brought out in the submissions.

It is not true that all those five allegations were not pleaded in the petition. The allegation at Rwatukwire was pleaded in paragraph 6(j) of the petition which is a specific complaint of bribery against Hassan Basajabalaba. It states that he gave Muheebwa Boaz a bundle of money and asked him to distribute it, at Rwatukwire Primary School Polling Station. I therefore find that allegation was pleaded in the petition, and counsel for the Petitioner was right to submit on it.

I however note, in agreement with counsel for the 1^st Respondent, that the allegations of bribery at Ahakitookye, Basajabalaba Primary School Polling Station and Rwenjeru Polling Station II were not covered in the petition. Similarly the alleged violence and intimidation at Buramba Primary School Polling Station was not mentioned in the petition.

Paragraph 6(t) of the petition which counsel for the Petitioner seeks to rely on only states generally that Basajabalaba moved to several polling stations with a firearm and intimidated voters. No specific polling station is mentioned.

It is trite law that all the allegations against the Respondents must be stated in the petition. It was held as follows by the Supreme Court in the case of Interfreight Forwarders (U) Ltd Vs. East African Development Bank, Civil Appeal No. 33 of 1992:

"The system of pleadings is necessary in litigation. It operates to define and deliver with clarity and precision the 10 real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the court will be called upon to adjudicate between them. It thus serves the double purposes of informing each party what is the case of the opposite party which will govern the interlocutory proceedings before the trial and which the court will have to determine at the trial. ”

See also Mbagadi & Another Vs. Dr. Nabwiso, Court of Appeal Election Petition Appeals No. 14 and 16 of 2011 where the court pointed out that although mere irregularities or defects in the form of a petition should not be regarded as matters of vital importance, the particulars vital to the Respondent’s case should be clearly stated.

On the other hand I note, as rightly pointed out by counsel for the Respondent, that the Petitioner appears to have abandoned some of the allegations in the petition as his counsel did not refer to them in their submissions.

Allegations of bribery and other illegal acts were made against people referred to by the Petitioner as agents of the 1^st Respondent.

This was denied by the 1^st Respondent and those persons who deponed affidavits in support of the 1^st Respondent’s answer to the petition. In a bid to prove that the 1^st Respondent had campaign agents who included Hassan Basajabalaba the Petitioner attached copies of photographs where the 1^st Respondent appears with Hassan Basajabalaba and Hon. Mary Karooro Okurut among others, on his affidavit in rejoinder. However, these photographs are part of the exhibits in respect of which the 1^st Respondent applied and was granted leave to have the gadgets that took and developed the exhibits produced in court for use during cross examination of the relevant witnesses. However, the Petitioner never produced the phone, and never availed Ahimbisibwe Wilber for cross examination, who is said to have developed the pictures from the phone into pictures that were attached on the Petitioner’s affidavit. Since the authenticity of the photographs was never tested as the 1^st Respondent had wished, it is unsafe for court to rely on them.

In the same vein court ordered that the original gadgets which produced the audio and video evidence of the Petitioner be produced so that they are subjected to forensic examination, as prayed by the 1^st Respondent. The Petitioner did not comply, and also most of the relevant witnesses were not availed for cross examination. The audio and video evidence is therefore also unreliable.

The Petitioner also attached on his affidavit in rejoinder a copy of a letter which was written by the 1^st Respondent appointing 75 polling agents, in a bid to prove that the wording of those letters shows that the appointees were his campaign agents.

The letters thanked the appointees for having campaigned for the 1^st Respondent during the NRM primaries, and requested them to be his polling agents on the voting day. It is clear to me that those letters were not appointing those polling agents as campaign agents, as the Petitioner wants court to believe.

Be that as it may, I agree with the submissions of counsel for the Petitioner, and the authority of Odo Tayebwa Vs. Basajabalaba Nasser & Another, Election Petition Appeal No. 003 of 2011, that every instance in which it is shown. that either with the knowledge of the member or candidate himself a person acts in furthering the election for him, trying to get votes for him, is evidence that the person so acting was authorised to act as his agent. It is therefore not necessary that every agent of a candidate must have been formally appointed in writing. However, in order for one to be held to be an agent of a candidate evidence must be adduced by the party who so asserts, to prove that the person was acting with the knowledge, consent and approval of the candidate.

The Petitioner further rebutted evidence of the campaign programme which the 1^st Respondent attached on his answer to the petition as Annexture 157 (D), and testified that it is the one he followed during campaigns. The Petitioner attached on his affidavit in rejoinder another campaign programme which he claimed was the genuine one. It must however, be noted that the Returning Officer for Bushenyi District swore an affidavit, and the Petitioner had opportunity to cross examine him, but he did not, yet that was the best and easiest way to confirm which of the two campaign programmes is the genuine/official one. I find that he has not successfully rebutted the 1^st respondent’s evidence on the campaign programme.

Resolution of Issues

Issue No. 1 - Whether the 1^st Respondent personally, or through his agents and with his knowledge and consent or approval committed any electoral offence or illegal practice in the aforesaid election.

Allegations of bribery and other illegal practices were made against the 1^st Respondent by the Petitioner. I am aware that a single illegal practice or electoral offence once proved to the satisfaction of the court is sufficient ground for setting aside an election.

Over time courts have developed principles to be applied in determining bribery allegations in election petitions. In Kamba Saleh Moses Vs. Hon. Namuyangu Jennifer, Election Petition Appeal No. 027 of 2011 the Court of Appeal pointed out the need for caution on the part of court to subject each allegation of bribery to thorough and high level scrutiny and to be alive to the fact that in an election petition in which the prize is political power, witnesses may easily resort to telling lies in their evidence, in order to secure judicial victory for their. preferred candidate. It was observed that bribery is such a grave illegal practice that must be given serious consideration; the standard of proof is required to be slightly higher than of the ordinary balance of probabilities applicable to ordinary civil cases to prove it to the satisfaction of court; and the court must be satisfied that the people allegedly bribed were registered voters at the material time. The motive of the giver of the bribe was also held to be relevant.

Her evidence lacks details about the bribery she claims to have witnessed, which makes it hard to believe.

Learned counsel for the Petitioner never referred to Barekye Lauben (PW18) yet he also testified on this allegation. His evidence was that at Irembezi Primary School at 2.30 pm Basajabalaba gave 750,000/= to Byaruhanga Stephen (RW5) to distribute to the people present. He also never gave any details of how he knew the amount from Basajabalaba to have been 750,000/=, or who shared the money.

It is inconceivable that at the same rally at the same time PW27 saw Basajabalaba giving 1,250,000/= to Apollo Asiimwe to distribute it to the people present, while PW18 saw the same Basajabalaba giving 750,000/= to Byaruhanga Stephen to distribute it to the people present. It is improbable that each of the two witnesses who were at the same rally with Basajabalaba at the same time witnessed different acts by him, which were directed to the same target. The only logical conclusion to be drawn from the evidence of these two witnesses is that they are telling lies.

Basing on the above analysis alone I would dismiss the allegations of bribery at Irembezi as lies.

Nevertheless the evidence of this bribery was rebutted by the 1^st Respondent who denied having been at that place; the evidence of Topista Kyokunda (RW19) who disputed having received any money; and Byaruhanga Stephen (RW5) denied having received 750,000/= from Basajabalaba or having offered any money to PW18; Karuhanga Kagumire also denied having attended any rallies with the 1^st Respondent on 16/2/16.

All in all I find no merit in the allegation of bribery at Irembezi.

Bribery at Ambassador Nkuruho’s Hotel at Kyeitembe on 15^th February 2016

Evidence on this allegation was adduced through Bahati Edson (PW3) and Tumusiime Francis Xavier (PW8). Their evidence was that they were each invited for that meeting by one Lozio Nshemereirwe the NRM Chairperson for the Central Division, and the meeting was for all NRM flag bearers. At the meeting 2,500,000/= was given to Mzee Eldard Bwarare to distribute to all those who attended, and each of the two witnesses received 20,000/=.

However, Aloysious Nshemereirwe who is alleged to have invited them for the meeting swore an affidavit and denied knowing Bahati Edson and Tumusiime Francis Xavier, among others. He denied inviting Bahati or Tumusiime to the alleged meeting at Nkuruho’s hotel on 15/2/16, and said he was not aware about the said meeting.

Apart from Nshemereirwe the allegation of the said meeting was rebutted by the 1^st Respondent in his affidavit where he stated that he never went to Ambassador Nkuruho’s hotel on 15/2/16, he was at Bushenyi Guest house meeting his campaign team and later campaigned in Central Ward.

Ambassador Nkuruho also swore an affidavit, and testified as RW1. He denied knowledge about the said meeting; ever inviting any of the people who allegedly attended it; giving any body 2,500,000/= to bribe the people present; or having given the alleged bribe.

He averred that he could not have attended the meeting of NRM flag bearers because he was not contesting for any position nor a flag bearer; and being a civil servant and an Ambassador, he is barred from involvement in partisan politics. Although Ambassador Nkuruho contradicted himself about having read the petition and affidavits, the contradiction is not a major one, since the evidence he gave was responding to the contents of the petition and the affidavits anyway. Further, the contradiction is not part of the relevant facts or evidence, it is about how he learnt about the allegations.

On the other hand I find serious inconsistencies in the evidence of Bahati. While in his affidavit Bahati averred that the 2,500,000/= was given to Bwarare by both Ambassadors Nkuruho and Katungwe, in cross examination he told court that Ambassador Nkuruho alone is the one who gave the 2,500,000/= to Mzee Bwarare. This contradiction regarding the participation of Ambassador Katungwe in the bribery raises doubts about it having taken place, for why would he mention Ambassador Katungwe in his affidavit if she never participated in the bribery? This is a serious contradiction which is not explained. I must say that the evidence of a witness who contradicted himself on who gave the bribe money cannot be said to be credible on the allegation of that bribery.

I also note that Bahati testified in cross examination that he never reported the bribe by Nkuruho to any person although he knew that bribery is an offence. He testified that it was six days later, three days after the election, and after he knew that the 1^st Respondent had been declared the winner that he went to the Petitioner’s home at 8.00 am and reported the bribery to him. I wonder why Bahati did not report the bribery until six days later,and only after learning that the 1^st Respondent had been declared winner.

This also raises doubts about the credibility of his evidence. A person who knew that a crime had been committed but never reported it anywhere until six days later after learning that the 1^st Respondent had won cannot be trusted. Whatever it is that prompted him to eventually report the bribery, the unanswered question which goes to his credibility remains whether he would have reported it had the 1^st Respondent lost the election.

I further find contradictions between the evidence of Bahati and Tumusiime. Bahati never included Hassan Basajabalaba among the people who attended the meeting. He also never mentioned him among the people who addressed the meeting. However, Tumusiime who also stated that he attended the meeting which was organized by NRM flag bearers at Ambassador Nkuruho’s Hotel averred that after the flag bearers had addressed the meeting Hassan Basajabalaba addressed the people in his capacity as the District NRM Chairperson, Bushenyi. That he called all the NRM flag bearers and other people who held other positions in the NRM structure to come infront and introduce themselves, after which he campaigned for the NRM flag bearers. It was also his evidence that after his speech Basajabalaba introduced Ambassadors Nkuruho and Katungwe each of whom spoke and campaigned for NRM, then Ambassador Nkuruho handed over shs. 2,500,000/= to Mr. Eldard Bwarare to distribute to the people present. Considering the major role that Basajabalaba is said to have played at the meeting it is not conceivable that Bahati could have forgotten to mention him, if indeed the meeting took place and Basajabalaba played the role described by Tumusiime. This also raises doubts about the said

meeting having taken place, in view of the rebuttal by the 1 Respondent’s evidence.

Further, while Bahati testified that Ambassador Nkuruho is the one who counted the money in his presence as he (Bahati) was seated next to him, Tumusiime told court that Mzee Bwarare is the one who counted the money, and he was seated at the podium with Ambassador Nkuruho, while he was seated down, and that Bahati never sat, he was moving around.

From the evidence in rebuttal by the 1^st Respondent, Ambassador Nkuruho and Aloysious Nshemereirwe that the alleged meeting never took place and that no money was given to Bwarare, coupled with the above contradictions in the evidence of Bahati and Tumusiime, I find that this allegation was not proved against the 1^st Respondent.

Bribery of 1,000,000/= to voters of Rwenjeru Central Cell on I 5 16/2/16 by Basajabalaba

Evidence on this allegation was adduced through the affidavits of Muramye Yefusa (PW6) and Nuwagira Afex (PW21). PW6 averred that on 12/2/16 at around noon the 1^st Respondent went to Rwenjeru Central Cell and gave 250,000/= to Mr. Lauben Mafari. He further stated that on 16/2/16 at around 3.00 pm the 1^st Respondent, Hassan Basajabalaba and other NRM politicians went to Rwenjeru Church of Uganda where they campaigned, and Basajabalaba gave 1,000,000/= to Lauben Mafari, with a promise to give more when the 1^st Respondent wins the election. In cross _r9J5 examination he said that he (PW6) received 4,800/=.

Nuwagira Afex (PW21) also deposed on the same campaign rally at 3.00 pm, except that for him he stated that on that date and place Basajabalaba gave 1,250,000/= to Mr. Mugume Rwakishaya, and , in cross examination he said he received 9,000/= of that money.

I find serious contradictions in the evidence of PW6 and PW21. While PW6 testified that Basajabalaba first gave 250,000/= then later 1,000,000/= the evidence of PW27 is that he gave the 1,250,000/= in one lump sum. Further PW6 told court that Basajabalaba gave the money to Karuhanga to hand it over to Mafari who distributed it and gave him 4,800/=, but PW21 testified that Basajabalaba gave the money to Mugume Rwakishaya who distributed it, and on lining up for it he received 9,000/= from Mugume. Given that the two witnesses are referring to the same bribery of 1,250,000/= I find the contradictions in their evidence on the person to whom Basajabalaba handed the money, the amount of money he gave in bribe, and the amount given to each person unexplained; yet they go to the root of the allegation.

It is trite law that serious contradictions which are not explained should lead to rejection of the witness(s) evidence. See Alfred Tajar Vs Uganda EACA Criminal Appeal No. 197 of 1969. 1 therefore reject the evidence of PW6 and PW21 on the allegation of the bribe that was given by Basajabalaba. I find no merit in that allegation.

Bribery of 2,000/= at Rwenjeru Polling Station on 18/2/16

The witness to this allegation is the same Muramye Yefusa (PW6). His evidence is that Karuhanga Kagumire gave money to Eri Kamugasha in the denominations of 2,000/= to distribute to voters at Rwenjeru polling station 11.PW6 did not substantiate this allegation.

He did not state on whose behalf Karuhanga gave the money to Eri Kamugasha, or whether he was an agent of the 1^st Respondent. Karuhanga swore an affidavit and testified as RW7. It is true as pointed out by counsel for the Petitioner, that his affidavit did not address the particular allegation against him. In fact it instead addressed the allegations against Lauben Mafari who was alleged to have received money from Basajabalaba.

However, even without a specific denial by Karuhanga, as I have noted the allegation against him is not substantiated as it does not state on whose behalf he was acting, or that he was an agent of the 1^st Respondent, yet the burden to prove it lies with the Petitioner. It is also evidence of bribery given by a single witness, which is not corroborated. None of the voters who received money from Kamugasha or those who saw him distributing money swore an affidavit, yet PW6 knows them and he listed their names. I also wonder how such an illegal act in such a place could go unreported to any authority, since no evidence of such a report was adduced.

I agree with the submissions of counsel for the 1^st Respondent on this allegation, and the authority of Achieng Sarah & Another Vs. Ochwo Nyakecho Keziah, Court of Appeal Election Petition Appeal No. 39 of 2012. The Court of Appeal, warned of the need for ‘other’ evidence to confirm that a particular witness is telling the truth about bribery on the polling day, due to a tendency by partisan witnesses to exaggerate claims of what might have happened. In this case such ‘other’ evidence is lacking, and I am not satisfied that court should rely on the evidence of the sole witness.

The Petitioner has failed to prove this allegation to the required standard.

Bribery of shs. 1,250,000/= to the voters of Rwenjeru Trading Centre

The evidence on this allegation was adduced through Nuwagira Afex (PW21), which I referred to earlier, and which counsel for the Petitioner submitted that it corroborates that of PW6 on the alleged bribery at Rwenjeru Central Cell. Both PW6 and PW21 state that the rally was held at Rwenjeru Church of Uganda. The evidence on this allegation is similar to that on the allegation of bribery at Irembezi (pg28). It is not explained how the two people who attended the same rally at the same time and place and claim that Basajabalaba gave the money after his speech, would state different people that he gave the money to, and different amounts of money that he gave. For the same reasons I find that this allegation is also not proved.

Bribery of 1,250,000/= at Bunyarigi Catholic Church:

Byamukama John Bosco (PW12) is the witness who gave evidence on this allegation. He stated that on 15/2/16 at Bunyarigi Catholic Church Hassan Basajabalaba who was in company of the 1^st Respondent gave 1,250,000/= to Mr. Senesio Hangamaisho to distribute it amongst voters of Bungarisi ward, in the presence of about 100 people.

I note that PW12 did not state how he knew the amount of money that was given by Basajabalaba to be 1,250,000/=, yet his evidence in cross examination implies that he was shunned to the extent that Hangamaisho refused to give him money because he does not belong to NRM.

The question is how did he know the exact amount that was given to Hangamaisho? Further, his evidence was rebutted by the said Hangamaisho who swore an affidavit, and (3 testified as RW18. He stated that he was not an agent of the 1^st Respondent, and denied having been given 1,250,000/= by Basajabalaba or being asked to distribute any money to the voters on behalf of the 1^st Respondent. He clarified that he took the oath before Lawyer Tumwesigye, hence the argument by counsel for the Petitioner that he never appeared before a Commissioner for Oaths cannot stand.

The fact that PW12 could not give sufficient details of the bribe to satisfy court; his evidence in uncorroborated by any of the many people who were present; coupled with the unchallenged denial by Hangamaisho, means that the allegation was not proved to the required standard. I so find.

Donation of 1,000,000/= at Bunyarigi Catholic Church by the 1^st Respondent on 15/2/16:

This allegation was supported by Byamukama John Bosco (PW12) and Mwesigye John (PW7). The evidence of PW12 was that on 15/2/16 at Bunyarigi Catholic Church at around 4.00 pm the 1^st Respondent came to Bunyarigi Catholic Church and gave 1,000,000/= to Mr. Nuwagaba Nobert to finalise the leveling of the playground in Bunyarigi Ward Headquarters. For PW7 he stated that on the same day at 8.00 pm he saw a grader leveling the playground of Bunyarigi ward Parish Headquarters, and when he inquired he was told that it was sent by the 1^st respondent.

The 1^st Respondent’s evidence was that he was not aware of any playground that was constructed during campaigns; and specifically, that he does not know Bunyarigi playground. He adduced evidence of Rutaro Julius who swore two affidavits, and testified as RW24. He said that he is the person charged with the responsibility of soliciting for funds to aid the smooth running of school programs and projects, which include leveling of the said playground. He told court that the allegations that the 1^st Respondent gave money to Mr. Nuwagaba Norbert to finalise the leveling of Bunyarigi Headquarters playground are false; further that the 1^st Respondent never sent a grader to finish the work of leveling that playground, and he did not in any way aid the school on that activity.

I note that PW12 again did not state how he knew that the amount of money donated by the 1^st Respondent was 1,000,000/=, yet it was not handed to him. His evidence is also not corroborated by any person who attended the rally, yet he said that the donation was made in the presence of about 100 people. Further when PW7 made inquiries he was told that the grader was sent by the 1^st Respondent, yet according PW12 the 1^st Respondent donated money, not the grader to do the work.

Further, the evidence of PW12 was that the money for leveling the ground was given by the 1^st Respondent to Nuwagaba Nobert after

4:00pm. I find it hard to believe that when Nuwagaba was given the money he was able to rush through all preparations and find a ready grader to do the work of leveling the playground that same evening. No evidence was adduced to explain that unique manner in which the work was done,or the need for the unusual rush to ensure the work is done that day, at night.

Besides the capacity in which Nuwagaba was given money and took the responsibility of .leveling the playground was not stated, yet the evidence of RW24 that leveling of the playground was his responsibility was not challenged.

In view of the above analysis of the evidence on this allegation I reject the evidence of PW12 and PW7. It has not been proved that the 1^st Respondent contributed money for leveling of the playground. I accordingly find no merit in the allegation.

Bribery at Rwatukwire on 16/2/16 at 6.00 pm

The Petitioner’s evidence concerning this allegation was adduced through Muhairwe Jane, who testified as PW16. Her evidence was that on 16/2/16 Hassan, the 1^st Respondent, and other candidates came to a rally at Rwatukwire Primary School, which Hassan addressed. Thereafter the 1^st Respondent gave money to one Aloyzious Nshemereirwe the NRM Chairperson who in turn gave it to the LC1 Chairperson Muhebwa Boaz to distribute. That Boaz gave each person present 7,000/=, but for her she missed as she left to go and get her goats from the grazing land.

The 1^st Respondent denied attending that rally, and giving that money. His evidence was that on that day he was doing small foot work in Keirere cell; then he proceeded to Kibare. Muhebwa Boaz also swore an affidavit for the 1^st Respondent, and testified as RW16. He denied having received money from Aloyzious Nshemereirwe for distribution; and that he never gave any one 7,000/= as alleged by PW16. He also denied having participated in the political activities of the 1^st Respondent.

Aloyzious Nshemereirwe too deponed an affidavit and testified as RW36. He among others denied having received money and giving it to Boaz to distribute 7,000/= to each person as alleged.

According to PW16 announcements were made in Mutojo cell that the rally was scheduled for 2.00 pm. When she arrived at the venue she found other people of the cell waiting. They waited until 6.00 pm when Hassan, the 1^st Respondent and other candidates arrived, that is when the bribe money was given, but she does not state how much of the exercise she witnessed before she left to go and care , for her goats. She also stated that the que was long. All that goes to show that the rally was attended by many people. However, the only witness who would have corroborated her evidence in the bribery allegation which is denied by the 1^st Respondent, RW36 and RW16 was Byamugisha Esau who was not availed for cross examination and court cannot rely on his evidence, as noted earlier. Having subjected the evidence of PW16 to scrutiny together with the evidence in rebuttal, I am not satisfied that it proves this allegation against the 1^st Respondent to the required standard.

Bribery at Buhuuma Buramba at the home of late Enock Bamwanga on 13/2/16

Byarugaba Godwin who swore an affidavit in respect to this allegation and testified as PW28, and. Nuwamanya John who testified as PW29 are the witnesses who adduced evidence of this bribery at the home of late Enock Bamwanga. But their evidence was rebutted by Yasin Kyota who testified as RW42. In his affidavit he denied having gone to the home of late Bamwanga with the 1^st respondent on 13^th /2/16:

Learned counsel for the 1^st Respondent submitted that court should rely on the affidavit of Barinde Francis in support of the 1^st Respondent’s answer to the petition, because the Petitioner’s counsel never cross examined him yet he had the opportunity to do so. I however, already ruled that I would not rely on the evidence of Barinde, as he switched sides (see page 10-11).

Be that as it may, in view of the 1^st Respondent’s rebuttal and in absence of the evidence of Barinda the witnesses of the Petitioner cannot prove that the repairs were paid for by the 1^st Respondent, or the amount of money he paid. Their evidence is that they saw Barinde carrying materials for repair, and that he told them that the 1^st Respondent had paid him to do the work. But Barinde’s evidence was earlier held to be unreliable as he made another statement denying the allegation and supporting the 1^st Respondent’s case. What he told the witnesses is therefore also unreliable. Even the evidence of what the 1^st Respondent allegedly told PW 23 that he contracted Barinde cannot prove the allegation in view of the rebuttal by the 1^st Respondent, and the unreliable evidence of Barinde.

Donation of 1,000,000/= at Kyandago to the voters of Kashenyi Ward to purchase a cow on 9/2/16

On this allegation Muhwezi Alex (PW2) deposed an affidavit and averred that on 9/2/16 the 1^st Respondent attended a party at the home of Butamanya Moris as the guest of honour, and handed him (PW 2) 1000,000/= with instructions to buy a bull to slaughter for Kashenyi football teams.That PW 2 handed the money to Murangira Joseph to buy the bull , which was eaten on 14^th /2/16 after a football match and a campaign address by the 1^st Respondent. Turyasiima Acleo deposed that on 14/2/16 he came to Kashenyi playground where a bull was slaughtered and eaten after the 1^st Respondent was thanked for the bull, and he asked the people to vote for him. The donation of 1,000,000/= was also deponed to by Owakubariho Hilton, but he was never availed for cross examination. However, his affidavit stated that the party at which the 1^st Respondent donated 1,000,000/= to buy a bull for the football teams took place on 9/1/16.

The 1^st Respondent denied the allegation. Both in his answer to the petition and in the affidavit supporting it he said that he did not personally or through his agents give 1,000,000/= at Kyandago to the voters for the purpose of buying a bull. He averred that he did not attend the party at which the donation is alleged to have been given on 9/1/16 because he was attending a meeting of NRM candidates at Entebbe State House.

Further, Ihoora Ignatius (RW32) stated that he was the guest of honour and sponsor at the party at which he handed over a goat for roasting on 9/2/16. He said that the '1^st Respondent never attended the party and he never gave out 1,000,000/= to buy a bull as alleged.

Butamanya Moris swore an affidavit and denied having hosted a party at his home on 9/2/16 where the 1^st Respondent was the guest of honour. However, during cross examination he admitted that he hosted the party on 9/2/16 as the team manager, but said that the 1^st Respondent never attended it, and that Muhwezi(PW 2) also never attended it.

This witness contradicted himself on material facts of hosting a party at his home on 9/2/16.1 find no explanation for the contradictions between his affidavit and his cross examination in court on that issue. His evidence is therefore not credible, and will not act on it.

Nyehangane Elias Mparana also swore an affidavit in support of the 1^st Respondent’s answer to the petition, but he was not availed for cross examination. I will ignore his evidence too.

I however, note contradictions in the Petitioner’s evidence regarding the date of the party at which the donation is alleged to have been given by the 1^st Respondent. The two witnesses who attended it are Muhwezi Alex who stated that the party took place on 9/2/16, and Owakubariho Hilton who stated that it took place on 9/1/16. The fact that two different dates were stated for the same party made the allegation against the 1^st Respondent unclear. It is no wonder that in his affidavit supporting the answer to the petition where he denied having attended the party or donated money for a bull, the 1^st Respondent only explained his whereabouts on 9/1/16.

But his witness Ihoora stated that the party took place on 9/2/16 and that the 1^st Respondent did not attend it. In view of the lack of clarity and confusion in evidence of the Petitioner’s witnesses on the allegation against the 1^st Respondent I will not rely on it, since it was misleading to the 1^st Respondent on how to respond to it, and the court cannot also tell when the alleged donation was made. The clarification by counsel for the Petitioner that the correct date was 9/2/16 cannot cure the effect of the contradiction since the 1^st Respondent already responded to the contradictory allegations; and counsel cannot make corrections in evidence which is already on record.I accordingly find that the petitioner has failed to prove that the 1^st respondent donated 1000000/- to buy a bull for the football teams of kashenyi.

*

Bribery of 200,000/= to Nkwasibwe Ezra at Bushenyi Guest

House on 14/2/16 by the 1^st Respondent

Nkwasibwe Ezra is the witness who swore an affidavit, and testified to this allegation as PW9. His evidence was that on 15/2/16 he met the 1^st Respondent at Bushenyi Guest House and he gave him 200,000/= while convincing him to join his campaign team. However, the affidavit of this witness was struck off the record for not complying with the Oaths Act in a material aspect. It is clear that he never appeared before a commissioner for oaths or a magistrate to take oath as he told court three times during cross examination and re examination that he signed the affidavit before a person who was robbed like the presiding judge - in the red & judge’s ceremonial gown, wig and flaps. This was a clear lie as no commissioner for oaths or magistrate would rob like a judge.

But also Nkwasibwe’s evidence was that the 200,000/= was given to him to join the 1^st Respondent’s campaign team. Therefore the submissions of counsel for the Petitioner that he received 200,000/= to vote for the 1^st Respondent is misconceived.

Bribery at Yafeesi Bagarukaine’s home of Ntaaza I cell of Kashenyi ward on 14/2/16 of 500,000/= & a donation of 200,000/= by Basajabalaba and 100,000/= by the 1^st Respondent

Bribery of 750,000/= on 15/2/16 at Rweibare Cell which Basajabalaba gave to Mwijukye Innocent to distribute

Evidence on this allegation was adduced through Mugisha Silvano (PW11). His evidence was that on 15/2/16 he was invited to the home of Scola Mbabazi by Rutaro Julius where the 1^st Respondent, Basajabalaba, Richard Byaruhanga and Aloysius Nshemerirwe came and found over 100 people at around 3.00 pm. That Basajabalaba handed 750,000/= to Mwijukye Innocent who was instructed by the 1^st Respondent to distribute it, and each member received 4,000/=.

But if 100 people had shared 750,000/= each of them would have received 7,500/= and not 4,000/=. Further, the evidence of the meeting at Scola’s home puts two other meetings/rallies at which allegations of bribery or donations were made by other witnesses in doubt. Bahati Edson (PW3) who testified about the meeting at Ambassador Nkuruho’s hotel at Kyeitembe on the same day (15/2/16) said that the meeting at Nkuruho’s hotel was for all NRM flag bearers and was attended by the 1^st Respondent among others. That lunch was served at around 1.30 pm after which all the candidates addressed the meeting, followed by the two Ambassadors present. According to him the money was given after all that had happened, which in my view must have been well after 3:00 pm, yet the 1^st Respondent is said to have arrived at Scola’s home at 3.00 pm.

Further, Byamukama John Bosco (PW12) who averred that he witnessed the bribery at Bunyarigi Catholic Church said that the money was given at around 4.00 pm on the same day by Basajabalaba and the 1^st Respondent. During cross examination he dismissed the suggestion that the 1^st respondent was at Scola’s home at that time.

It is highly unlikely that on the same afternoon Basajabalaba and the 1^st Respondent could have attended three meetings/rallies at Scola’s home, Ambassador Nkuruho’s hotel; and Bunyarigi Catholic Church while addressing the people, and giving out bribes/donations at each one of them. Even if allowance was to be given for poor time estimates by the witnesses, such inconsistencies in the evidence on serious allegations of bribery cannot be taken lightly. This creates doubts in the three allegations affected by this evidence.

Be that as it may Mugisha’s evidence was rebutted by Mbabazi Scola (RW30) who stated that she has never engaged in the political activities of the 1^st Respondent. She said it was not true that 100 people gathered at her home as her house is too small to accommodate even five people; and she denied that money was ever distributed at her home.

Rutaro Julius swore two affidavits, and testified as RW24, also rebutting this allegation. In his affidavit which was sworn on 12/4/16 he responded to the allegations of Mugisha and averred that he never went to the shop of Mugisha to invite him to Scola’s home as alleged.

Aloysious Nshemerirwe also denied attending the meeting at Scola’s home as alleged by Mugisha.

Twijukye Innocent who is alleged to have received the money from Basajabalaba also swore an affidavit and testified as RW17.

He denied having received the money, or distributing 4,000/= to each person as alleged by Mugisha.

None of the affidavits in rebuttal were rejoined, and counsel for the petitioner never addressed this allegation in their submissions. Having analysed the evidence on this allegation as above I find no merit in it.

Bribery at Basajabalaba Primary School

As pointed out by counsel for the 1^st Respondent this allegation was not pleaded in the petition. Further, it was testified to by Natureba Ben Mabale who was never availed for cross examination, making his evidence unreliable as earlier noted. It was also rebutted by Halimah (RW53). I find that this allegation has not been proved.

Bribery of 1,250,000/= at Ahakitookye:

This allegation was similarly not raised in the petition. I will not address it as this would result into injustice to the 1^st Respondent because it offends the law on pleadings as earlier pointed out. See my comments on page 22.

Attack of the Petitioner’s character and minimizing the stature and candidature of the Petitioner, contrary to Sections 21(3) &

73 of the PEA

This allegation in my view falls under Section 73, and not 21(3) of the Parliamentary Elections Act (PEA), as the alleged words did not form language used while the 1^st Respondent was campaigning, but were written on posters for distribution. The Petitioner himself

The above evidence of RW49 and RW48, and the police file records/minutes satisfy me that vehicle Reg. No. UAM 930V was in Bushenyi police custody from 16/2/16 until 17/2/16 at 6.00 pm when it was released to the 1^st Respondent. It could therefore not have been used by Alex who was in hospital to distribute the posters. This evidence strongly affects the entire claim of the Petitioner of use of that vehicle to distribute the posters, and renders it doubtful. If evidence of their distribution at 9.00 am is found to be false, lies in the evidence of their distribution later at 8.30 pm using the same vehicle on the same day cannot be ruled out. Besides there is no evidence that the posters were made by the 1^st Respondent or his agent(s).

I also note that the Petitioner has not proved that the offence under Section 73 of the PEA was committed through distribution of the posters. During cross examination he admitted that the picture which was used on the posters was his, which was published in the Daily Monitor of 21^st May, 2015. In that picture he was wearing a hat bearing a portrait photograph of President Yoweri Kaguta Museveni, with the words ‘M7 NRM 2016’ inscribed on it, which in my view could easily lead any reasonable person to believe that he supported the NRM party for 2016.

Lastly on this. allegation, in the case of Dr. Bayigga Michael Philip Lulume Vs. Hon. Mukasa Anthony Harris & The Electoral Commission, Jinja Election Petition No. 6 of 2006 the petitioner complained about statements made by the Respondent that he was not a qualified doctor but a quack one and a witch doctor; and that he is a foreigner in the constituency as he had no home of his own there, among others. The court had this to say:

“The petitioner had the onus to prove that the statements were made by the first respondent in the first place. Secondly that they were false, malicious, sectarian, etc. It is not enough even in the seemingly obvious case of alleging that you have been called a ‘quack doctor ’ to just state that fact alone in your evidence and wait for the court to say that you practice medicine at such a hospital and everyone knows you as a genuine medical doctor. You must produce evidence to prove that negative. Mulenga JSC, in his reasons for the judgment in Election Petition No. 1 of 2001, Col. Rtd. Dr. Beisgye Kizza vs Museveni Yoweri Kaguta, dealt with the peculiarity of proving a negative such as the present one in an extensive manner. He relied upon the decision of the Supreme Court of Uganda in J. K. Patel vs Spear Motors Ltd, SCCA No. 4 of 1991 and the House of Lords decision in Constantine Steamship Line Ltd vs Imperial Smelting Corporation [1941] 1 All ER 165, which dealt with similar issues. The learned Justice then stated,

‘Secondly, the burden to prove that the statement was false, was imposed by statute, namely by the provision of s. 65 of the Act. To prove that an illegal practice as defined in that provision was committed, the petitioner had the onus to prove that the statement published by the first respondent was false, and he had to prove it so as to leave the court certain that it was false. Even if the first respondent offered no evidence at all, the burden would not be any less. Whilst the illegal practice is similar to defamation in nature, it differs in the way it has to be proved. This may well appear harsh, (is in the saying ‘adding insult to injury’, but the illegal practice being quasi criminal, leads me to the conclusion that the onus of proof would shift only if a prima facie case has been made out. To my mind, evidence advanced by the petitioner did not make out a prima facie case, sufficient to shift the burden of proof , I was therefore, unable to find that the petitioner had proved to the required standard that the statement was false. ’ ”

In this case too the Petitioner in his affidavit in support only averred that the statement on the posters was false and reckless, because it meant that he was allying with NRM to destroy FDC which had sponsored his candidature. While it may seem obvious that he was sponsored by FDC he ought to have explained how false or reckless the words were in the peculiar circumstances of this case, as being sponsored by FDC per se does not amount to proof that the words were false or reckless. Court on its own cannot be expected to make such conclusions in absence of evidence.

I consequently find that the Petitioner has not proved this allegation against the 1^st Respondent to court’s satisfaction.

Issue No. 2 - Whether there was any non-compliance with the provisions of the Parliamentary Elections Act and whether there was a failure to conduct the elections in accordance with the principles laid down in the Parliamentary Elections Act

In the present case the Petitioner avers in his affidavit in support 0f the petition that he received reports of illegalities and non- compliance with the principles in the electoral laws. But the affidavit in support of the answer of the 2^nd Respondent averred that the elections were conducted in accordance with the principles in the electoral laws; the 2^nd Respondent put in place mechanisms to ensure that the entire electoral process was smooth, transparent free and fair, and the voters exercised their will in accordance with the Constitution. It was his contention that the Petitioner never complained of illegal acts during or after polling as required by the electoral laws, therefore his complaints are an afterthought.

Intimidation and violence at Ishaka Taxi Park Polling Station on 18/2/16 with machetes and firearms

Evidence on this allegation was adduced through Paul Tusubira, an Advocate, who testified as PW15. He stated that on 7/3/16 he received instructions from the Petitioner to follow up a criminal case CRB 240/2016 where one Muhammed Lukwago had been arrested from a polling station threatening violence while armed with a panga, on election day. He proceeded to Bushenyi Police Station where he was given the file to peruse, and was shown the exhibit panga, but the suspect had been released on police bond.

The fact that one Muhammed Lukwago was arrested with a panga was corroborated by D/Sgt Ngaiga David, RW23 who said that the complaint on that file was that Lukwago was arrested with a panga in Ishaka town by the team headed by D/C Okodu Anthony. He however, rebutted the fact that PW15 accessed the police file at the