IN THE HIGH COURT OF UGANDA
HOLDEN AT MBARARA
ELECTION PETITION NO. HCT-05-CV-EPA-0003 OF 2001
MUSINGUZI GARUGA JAMES PETITIONER
AMAMA MBABAZI RESPONDENT NO. 1
ELECTORAL COMMISSION RESPONDENT NO. 2
BEFORE: THE HONOURABLE MR. JUSTICE F.M.S. EGONDA-NTENDE
1. Musinguzi Garuga James, hereinafter called the Petitioner, was a candidate in the Parliamentary elections that took place on the 26th of June 2001. He was a candidate in Kinkizi West Constituency. Amama Mbabazi, hereinafter referred to as the Respondent No 1, was the other candidate in the same constituency. Respondent No. 1 was declared the winner and validly elected Member of Parliament for Kinkizi West with 25,433 votes. The Petitioner garnered 12977 votes. This result was published in the Uganda Gazette of 29th June 2001.
2. The Petitioner contends that the said election was conducted in contravention and contrary to the provisions and principles of the Parliamentary Elections Act, 2001, the Electoral Commission Act, 1997 and the Constitution, and that this affected the result of the election in a substantial manner. In particular the Petitioner alleges that the entire electoral process from beginning to end was characterised by acts of intimidation, lack of freedom and transparency, unfairness and violence through the commission of numerous electoral offences, illegal practices and or acts of contravention of the relevant law. The Petitioner seeks from this court a declaration that the Respondent No. 1 was not validly elected the Member of Parliament for Kinkizi West Constituency, annulment of the said election, an order for a new election to be held, and costs of this petition.
3. The Respondent No. 1, in answer to the petition, denies the Petitioner’s allegations as regards wrongdoing and breaches of the law by both the Respondent No. 1 and No. 2. He seeks that the petition be dismissed with costs. The Electoral Commission, hereinafter called Respondent No. 2, opposed the petition, contending that the election was held in compliance with the provisions of electoral laws, and that if there was any non-compliance, which was denied, it did not affect the result of the election in a substantial manner. Respondent No. 2 seeks the dismissal of the petition with costs.
4. In accordance with The Parliamentary Elections (Election Petitions) Rules, 1996, the parties filed affidavit evidence in support of each party’s case, and cross-examination of witnesses was allowed by consent in respect of some witnesses for Respondent No. 1 and 2. At the time of addresses of counsel to this court, learned counsel for the Petitioner, took objection to the affidavits filed for the Respondent No. 2. It is appropriate to deal with this objection at this stage.
5. In their written submissions counsel for the petitioner submitted that all the affidavits filed for the Respondent No. 2 appear to have been sworn before a judicial officer. However, on the face of the said affidavits there is no stamp, as is the normal practice, showing the fees that have been paid. For each of the affidavits a sum of Shs.1500/= ought to have been paid under S I No. 20 of 1991. As no fees were paid, the said documents are invalid and cannot be acted upon. Counsel for the petitioner submitted that all these affidavits should collapse, leaving the Respondent No. 2’s answer to the petition unsupported by evidence.
6. In a statement from the Bar, Mr. Deus Byamugisha, learned counsel for the Respondent No. 2 submitted that it was not true that no fees had been paid. He stated that he had a receipt dated 28th September 2001 from Rukingiri Station for Shs37, 000/= for commissioning 25 affidavits. In respect of the other fees paid on 7th September 01 he was still looking for the receipt. He submitted that the affidavits be allowed to stand.
7. Dr. Joseph Byamugisha, learned counsel for Respondent No. 1 submitted that the interpretation Decree presumes properly done documents that bear a court seal. The claim that there is a practice of embossment of the receipt on the affidavit should have been proved by evidence but had been disproved by the production of the receipt.
8. In his reply to this particular point, Mr. Peter Walubiri, learned counsel for the Petitioner, submitted that the receipt produced does not mention the specific affidavits that were commissioned. It does not state the case in respect of which there were commissioned. It simply states 25 affidavits alleged to have been sworn on 28th September 2001. A perusal of the Respondents No. 2’s affidavits reveals that there are only 22 affidavits sworn on the 28th September 2001. So this receipt of twenty-five affidavits relates to some other set of affidavits and not the ones before court. As for the reference to the Interpretation Decree Mr. Walubiri stated that its effect was not to question, if the affidavit had been properly commissioned, for as long as the affidavit bore a court seal, which was not the matter in contention here.
9. From the foregoing, it is clear that when challenged that no payment of fees for swearing Respondent No. 2’s affidavits in this case, no explanation was provided with regard to the payment of fees for swearing before a judicial officer, all the Respondent No. 2’s affidavits dated 8th August 01 and 7th September 01. Counsel could not produce a receipt or other explanation to satisfy court the requisite fees had been paid. I take it in the circumstances that no payment was made for the 1 affidavit of Ntaho Frank sworn on 8th August 01and 19 affidavits sworn on the 7th September 2001 before the Chief Magistrate, Rukingiri. What is the effect of non-payment of fees for swearing an affidavit before a magistrate? Section 100 of the Civil Procedure Act deals with making up deficiencies in relation to court fees and in my view, it is quite relevant to the situation that we have here. I will set it out below.
10. “Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court fees has not been paid, the court may, in its discretion, at any stage, allow the person by whom such fee is payable to pay the whole amount or part, as the case may be, of such court fee; and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance.” (Emphasis is mine.)
11. The above provision allows for the payment of the deficient amount at any stage of the proceedings and such payment would allow the document to have same force and effect as if such payment had been made in the first instance. Implicit from the said provision is the suggestion that without payment of fees, such a document would not have the same force and effect, as a document that had been properly paid for. In context of these proceedings, the force and effect would relate to admission as evidence in this case. If no fees have been paid, this court cannot rely on it, or take it into account as part of the record of evidence adduced in this case.
12. This court, however, has the discretion to allow payment of such deficient fees at any stage of the proceedings, and this would cure the defect. I would have been inclined to allow the Respondent No. 2 to pay up had counsel requested to be allowed to remedy this situation in the absence of any proof of payment. Counsel had such an opportunity when he made his statement from the bar but made no such request. I would have been inclined too to order the Respondent No. 2 to pay up the amount, nevertheless, had I been seized with more time in these proceedings. As it happens I am at the last stage of these proceedings that is writing a final decision. At this stage fees would have had to be paid for this court to give ‘force and effect’ to the affidavits in question. Ordering payment of fees to be made after judgement is written and delivered would be to give force and effect to documents before payment, contrary to the provisions of Section 100 of the Civil Procedure Act. Accordingly I decline to give force and effect to the 20 affidavits sworn on 8th August 01 and 7th September 2001 for Respondent No. 2, for none payment of fees to the Judicial Officers before whom there were sworn.
13. I now turn to the other 22 affidavits sworn on the 28th September 2001 for Respondent No. 2. All counsel who addressed me on this subject referred to a receipt. This receipt was not passed on to this court in the proceedings of that day or at any time thereafter. I recall learned counsel for Respondent No. 2, Mr. Deus Byamugisha, passing it to counsel for the Petitioner. Mr. Deus Byamugisha stated that it was receipt for payment of 25 affidavits on the 28th September 2001. It is stated to be for Shs.37,000/=. Mr. Walubiri submits that the receipt bears no relationship to this case because Respondent No. 2 filed only 22 affidavits sworn on the 28th September 01, and not 25. It also does not indicate the names of the person swearing the affidavits.
14. I have not had an opportunity to examine the receipt but from its description, it is not as helpful, as it ought to have been. But this is not the fault of Respondent No. 2. It is the fault of court staff that wrote the receipt. This is where it is obvious that the practice of embossing on the document a stamp indicating the amount paid, receipt number and date is a very useful practice. In spite of the deficiencies shown in the receipt referred to, I will accept that payment was effected for the 22 affidavits sworn on the 28th September 2001.
15. The parties agreed to the following issues. (i) Whether during the election of the Member of Parliament for Kinkizi County West Constituency there was non-compliance with the provisions of the Parliamentary Elections Act, 2001. (ii) Whether the said elections were not conducted in accordance with the principles laid down in the provisions of the Parliamentary Elections Act. (iii) Whether if there was non compliance with the provisions and principles of the said Act, such non-compliance affected the results of the said election in a substantial manner (iv) Whether any illegal practices and or offences under the Parliamentary Elections Act, were committed in connection with the said elections by the Respondent No. 1 personally or with his knowledge and consent or approval. (v) What reliefs are available to the parties.
16. I propose to proceed issue by issue. But before I do so I shall begin by stating that it was not disputed that the burden of proof lay on the petitioner to prove his case. The standard of proof necessary to discharge that burden is set out in Section 62 (3) of the Parliamentary Elections Act. It reads, “Any ground specified in subsection (1) of this section shall be proved on the basis of a balance of probabilities.” This standard is so well established that it needs no further elucidation.
17. Issue No. 1: Whether during the election of the Member of Parliament for Kinkizi County West Constituency there was non-compliance with the provisions of the Parliamentary Elections Act. The written submissions of counsel for the petitioner stated that this involved three aspects, (a) Intimidation, harassment and violence, (b) Ballot Rigging and (c) Illegal, Sectarian and defamatory campaign. It is a convenient way of dealing the issue. In their written submissions counsel for the petitioner reviewed the affidavit evidence and other evidence in this order while counsel for the Respondent No. 1, Dr. Joseph Byamugisha reviewed extensively the Poll Watchers Reports and Declaration of Results forms filed by the petitioner. I intend to examine all the evidence on the issue. Mr. Deus Byamugisha, counsel for Respondent No. 2, adopted the submissions of Dr. Joseph Byamugisha on this issue.
18. The petitioner presented 86 affidavits in support of this ground. 27 of which, it was claimed, have not been controverted by affidavits of the respondents on the issue of intimidation. This is not strictly correct. Some of these affidavits have been controverted by affidavits sworn for the respondents, albeit in general terms in some cases and also during cross-examination. All the evidence presented for the petitioner will be considered alongside all the evidence on record for the respondents, save that which has no force and effect in these proceedings for non payment of fees.
19. I now turn to consider the evidence on intimidation, harassment and violence. The petitioner swore 2 affidavits and both of them touch on this point. In his affidavit dated 26th July 2001, he details numerous reports of violence, intimidation and reports he received from his agents and supporters. These or most of these are covered by the affidavits of those agents and supporters or other deponents, which have been filed in support of his case. I need not set them out here, save for one or two that led to his taking action directly.
20. He was notified that on 14th June 01 his car, M/V Reg No. UAD 648 C, had been attacked and vandalised. His son and supporters who were travelling in the said vehicle were arrested, beaten and tortured. A public address system and Shs.10.000.000/= that had been in the car were stolen. This attack and robbery was reported to have been perpetuated by Captain Ndahura and soldiers of the Presidential Protection Unit. The witness complained to the Respondent No. 2 and the District Police Commander, Rukungiri about the conduct of the PPU and there was a partial withdrawal of the same. I shall set out the letter written to the DPC with copies to the Respondent No. 2.