THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT JINJA
ELECTION PETITION NO. 3 OF 2011
PAUL MWIRU .................................................................... PETITIONER
1. IGEME NATHAN SAMSON NABEETA
2. ELECTORAL COMMISSION
3. NATIONAL COUNCIL FOR HIGHER EDUCATION .... RESPONDENTS
BEFORE: HON. LADY JUSTICE MONICA K. MUGENYI
It is the case for the 1st and 2nd Respondents that the election in issue was conducted in compliance with the prevailing electoral laws and the few mishaps complained of did not affect the result of the election substantially. The 1st Respondent also denies being unqualified for election as a Member of Parliament and denies engaging in any illegal practices or election offences, or indeed consenting to their commission by other persons on his behalf. The 3rd Respondent contends that it did issue the 1st Respondent with a Certificate of Completion of Formal Education of Advanced Level Standard or its Equivalent (hereinafter referred to as a “Certificate of A’ Level Completion”) in accordance with the procedure provided therefore.
The following issues were framed at the trial:
2. Whether the 1st Respondent, by himself or by his agents, committed any illegal practices.
3. Whether or not there was non-compliance with the electoral laws in the elections for Jinja Municipality East.
4. If so, whether the non-compliance affected the results in a substantial manner.
5. Remedies available.
It was on the basis of the foregoing academic qualifications that a Certificate of A’ Level Completion was issued by the 3rd Respondent. This Certificate was the basis of the 1st respondent’s nomination and subsequent election.
It is now settled law that the requirement for consultation between the 3rd respondent and UNEB stipulated in section 4(6) of the Parliamentary Elections Act is mandatory and must be undertaken. See judgment of Mpagi-Bahigeine DCJ in Ahamed Kawooya Kaugu vs Bangu Aggrey Fred Election Petition Appeals Nos.5/2006 & 9/2006. I am therefore in general agreement with the submission of Counsel for the Petitioner on that issue.
As to whether or not the 3rd respondent did consult UNEB, I revert to the evidence that was adduced before this court. I must point out at this stage that the petitioner did not raise the issue of forgery of academic documents in his pleadings or at all. He only alluded vaguely to it under cross examination when he questioned the inclusion of the term ‘diploma’ within the text of the 1st respondent’s degree certificate, wondering whether the qualification was a diploma or a degree.
I shall briefly address the petitioner’s concern. The offensive text of the degree is underlined below:
“Oklahoma State University
Nathan Samson Igeme
to the degree of
Bachelor of Science in Business Administration
and all the honours, privileges and obligations belonging thereto, and in witness thereof have authorised the issuance of this Diploma duly signed and sealed ….”
10. That I submitted the very qualifications to NCHE for the 2006 parliamentary elections and the NCHE cleared me after consulting with UNEB, which elections I also won.
11. That in 2010 I once again submitted the same academic qualifications to the 3rd Respondent and once again I was issued with a certificate of completion.
12. That on nomination day I presented both certificates of completion for 2006 and 2010 to the 2nd Respondent and was duly nominated.”
For the 3rd Respondent, Ms. Farida Bukirwa deponed an affidavit dated 28th March 2011 in which she inter alia stated as follows:
4. That NCHE wrote a letter to UNEB for verification of the 1st Respondent’s qualifications.
5. That UNEB duly replied confirming the genuineness of the 1st Respondent’s O’ level.
6. I verily believe by my knowledge of the law that once there is proper verification by UNEB there need not be fresh consultation on the same qualifications for every new election.”
For ease of reference I shall reproduce the pertinent parts of the 2 letters in issue. Annexure F was addressed to M/s Ruhinda Advocates and Solicitors and stated as follows:
ACADEMIC DOCUMENTS OF SAMSON IGEME NABETA
The few requests made by the National Council for Higher Education (NCHE) do not include that of Samson Igeme Nabeta case of ‘A’ equivalency.
The NCHE is the only body authorised to issue a certificate of equivalency to an aspiring parliamentary candidate. I am sure NCHE is in a better position to provide you with a comprehensive list of people who submitted their documents for clearance for running in the 2011 Parliamentary elections.
I recommend that you consult the NCHE.
Signed: E Zaasa Mwanje
Uganda National Examinations Board (UNEB) is generally in agreement with the basis for equating the qualifications for politicians to ‘A’ Level. But note the additions and changes we are proposing.
e. Any person who holds a Mature Age Certificate of Makerere University or a certificate for the National Aptitude Test and holds a UCE or its equivalent Certificate and has studied for at least two continuous years in an educational institution.
i. Other qualifications awarded by institutions recognised by M.O.E.S. and acceptable to the Council as equivalent to ‘A’ level.
Signed: M. B. B. Bukenya
Annexure F simply states that of the few requests made to NCHE with regard to A’ Level equivalence, there was none in respect of the 1st respondent. It does not include a time frame in respect of or purpose for which the few requests received were made; neither does it indicate the nature of the inquiry to which it is responding. This leaves open the possibility that the few requests that were made to UNEB could have been limited to fresh requests for document verification either for election purposes or indeed for any other purpose. In her affidavit, Ms. Bukirwa did allude to this when she stated in paragraph 12 that ‘the misconception about UNEB’s response of 4th January 2011 arises because the Petitioner’s request was limited to names of persons who submitted their documents for clearance for 2011 and not those who may have done so earlier in 2006.’
Annexure F refers the inquirer in respect thereof to NCHE for “a comprehensive list of people who submitted their documents for clearance for running in the 2011 Parliamentary elections.” I did see a list availed by the petitioner purportedly naming applicants recommended for issuance with a Certificate of A’ Level Completion (Annex E2 to the petitioner’s supplementary affidavit of 11th April 2011). However, there was no indication of the origin of this list or the author thereof. There was no cover letter to enable court place its contents in proper context. It was not signed or initialled and there was nothing to indicate that it was indeed a complete or authentic list. In the circumstances I did not find it very helpful and certainly it was not conclusive on the present issue.
Conversely, Annexure IN 9 entails proposals made by NCHE and agreed to by UNEB for purposes of equating politicians’ A’ Level qualifications. The letter included a post script (NB) that clarified that the underlined text represented UNEB’s input to NCHE’s proposals. Clearly, this post script, read together with the subject line of the letter, connotes a response by UNEB to proposals by NCHE, to whom that letter was addressed. The proposals were explicit and in respect of A’ Level equivalences for Parliamentary and LCV candidates.
The question then is whether this approach by NCHE amounts to consultation with UNEB for purposes of section 4(6) of the Parliamentary Elections Act.
Mr. Kyazze, Counsel for the Petitioner addressed me on the principles governing statutory interpretation. Noting that the term ‘consultation’ is not defined in the Parliamentary Elections Act, Mr. Kyazze cited the case of John Bosco Oryem vs EC & UNEB Election Petition No. 2 of 1998 where Mukiibi J. held that ‘where words of a statute were clear and unambiguous they must be given their ordinary and natural meaning irrespective of the consequences’. He submitted that the words in section 4(6) were precise and unambiguous and best declare the intention of parliament. Mr. Wakida, Counsel for the 3rd Respondent concurred with the decision in John Bosco Oryem vs EC & UNEB (supra) with regard to giving words their natural meaning. He cited the Oxford Advanced Dictionary meaning of the term ‘consultation’ and submitted that within that context due consultation was carried out by the 3rd Respondent.
I do agree with Learned Counsel on this position in so far as it underscores the need to accord words their literal or plain ordinary meaning, and thus preserve the objectivity of statutory interpretation. This is the gist of the literal rule of statutory interpretation. However, there is a school of thought that opines that the literal rule of interpretation is premised on the erroneous presumption that words do have a fixed meaning. That the question of what amounts to consultation is in issue in this petition is indication of the variety of ‘plain, natural and ordinary’ interpretations that may be attributed to a single word – in this case, the word ‘consultation’.
Consequently, an absurdity limit is often placed on the literal rule of interpretation. The Doctrine of Absurdity refers to any strict interpretation of something to the point of violating common sense, and recognises that strictly literal interpretation of statutes can lead to illogical absurdities. This doctrine evolved in American Courts to have statutes interpreted contrary to their plain meaning in order to avoid absurd legal conclusions. See ‘The Absurdity Doctrine’, Havard Law Review, John F. Manning, Vol. 116, Article 8, June 2003, pages 2387 – 2486.
For present purposes, I am of the view that recourse to the literal rule of interpretation tempered by an absurdity limit would yield an interpretation to section 4(6) of the Parliamentary Elections Act that is both objective and prudent. Such an interpretation would enable a logical legal conclusion that is more facilitative than intrusive of NCHE’s institutional mandate.
I now revert to a consideration of what constitutes consultation under section 4(6) of the Parliamentary Elections Act. The literal meaning of the term ‘consultation’ is stated in the Oxford Advanced Learners’ Dictionary as ‘the act of discussing something with somebody or with a group of people before making a decision about it.’ The key term therein for present purposes is ‘discussion’. The term ‘discuss’ has been defined by the same dictionary as ‘to write or talk about something in detail’; ‘discussion’, on the other hand, to include the acts of dialogue and consultation.
Mr. Kyazze argued at length that the consultation undertaken by the 3rd respondent was a mere verification of the 1st respondent’s O’ Level certificate, which in any event was never in issue. He maintained that there was never any consultation between the 3rd respondent and UNEB prior to the issuance of the Certificate of A’ Level Completion in 2010, and referred this court to paragraphs 7, 12 and 13 of the 3rd respondent’s Answer to the Petition, as well as paragraphs 6 and 7 of Ms. Bukirwa’s affidavit. According to Counsel, the sum effect of these averments is an admission by the 3rd respondent that save for the consultation done prior to the 2006 parliamentary elections no fresh consultations were undertaken in respect of the 1st respondent’s academic documents in 2010.
On this issue, the 3rd respondent’s Answer to the Petition in summary states that before issuing the Certificate of A’ Level Completion the 3rd respondent consulted with UNEB and the relevant issuing institutions; it specifically mentions consulting UNEB on the 1st respondent’s O’ Level certificate and verifying the degree certificate with the issuing University; and that once UNEB had duly verified the qualifications there was no requirement for fresh consultations for every new election. I must state that these pleadings were not clear and hardly reflected the time lines within which the actions stated were taken. In fact, paragraph 12 of Ms. Bukirwa’s affidavit appears to negate any claims by her that there were fresh consultations in 2010 in respect of the 1st Respondent’s academic documents.
Be that as it may, under cross examination Ms. Bukirwa did clarify the 3rd respondent’s case on the question of consultation as follows:
b. Oklahoma State University confirmed that the 1st respondent was admitted to its degree course on the strength of his High School Equivalency Certificate, which in the USA is equivalent to Uganda’s Mature Age Certificate.
c. In 2005 and 2010 the 3rd respondent did consult UNEB on all of the 1st respondent’s academic documents. He was one of the politicians that had submitted their documents for verification in 2006. Pursuant to a workshop between UNEB, NCHE, the Ministry of Education and Sports (MOES) and other stakeholders in 2005, a set of guidelines had been formulated that inter alia equated Mature Entry Certificates in Uganda to Pre-entry Certificates in foreign jurisdictions, both of which certificates were equated to A’ Level in Uganda.
d. In 2010 NCHE consulted UNEB to clarify whether the position agreed upon in 2005 still pertained. UNEB’s response to that inquiry was contained in Annexure IN 9 to the 1st respondent’s Affidavit of 24th May 2011, and it confirmed that the earlier position still stood.
e. The witness clarified that her averment that there was no need for fresh consultations of previously verified documents was in respect of the need to re-consult UNEB on the 1st respondent’s O’ Level certificate in 2010, which NCHE did not think was necessary. She stated that NCHE undertook fresh albeit general consultations on A’ Level equivalency because there were numerous requests for equation and NCHE did not deem it expedient to consult on each request separately.
2. The basis of NCHE’s issuance of a Certificate of Completion to the 1st respondent in 2010 was the 2005 decision by NCHE, UNEB and MOES that equated Mature Entry Certificates in Uganda to Pre-entry Certificates in foreign jurisdictions, both of which were equated to A’ Level in Uganda, which decision UNEB purportedly confirmed.
The dictionary meaning of the term ‘consultation’ quite clearly states that consultation entails oral or written dialogue on a subject prior to taking a decision on it. Such dialogue is intended to inform a decision or assist the inquirer arrive at one. In the present case, the 3rd respondent did initiate dialogue with UNEB on the subject of ‘A’ Level Equivalences for those aspiring for Parliament and LC V’. Evidence of this dialogue is contained in Annex IN 9 highlighted earlier in this judgment.
Annex IN 9 discusses the question of A’ Level equivalences, raised by the 3rd respondent and provides UNEB’s feedback on the subject. This, to my mind depicts dialogue and thus consultation between the 2 bodies. The 1st Respondent was a parliamentary candidate without an A’ Level qualification from Uganda that would otherwise have had him automatically qualify for nomination. He was therefore one of the aspiring MPs affected by and therefore in reference in the consultation represented in Annex IN 9. The generalist nature of the consultation notwithstanding, had the response from UNEB been such as would disqualify the 1st respondent from nomination on the basis of non-equivalent academic documents, he would have been so disqualified and the 3rd respondent would not have issued him with a Certificate of A’ Level Completion. To that extent therefore, his qualifications were in issue in the consultation between the 3rd Respondent and UNEB stipulated in Annex IN 9, and were thus a subject of this fresh consultation (alongside those of other politicians in that category).
In my view, to conclude otherwise would be to suggest that NCHE should have undertaken separate consultation in respect of each of the affected parliamentary and LCV candidates. There is no guess as to how many such candidates there would be in any given election. NCHE’s mandate is not restricted only to politicians’ equation requests, and the body is best placed to determine the most diligent method of work to expeditiously address its work load and concurrently fulfill its mandate. I do also note that a general inquiry as was adopted in this case is objective and principle-based, and would negate the possibility of subjective and possibly divergent feedback from UNEB in respect of similar qualifications. For this court therefore to interfere with the internal work methods of NCHE by an unduly restrictive interpretation of section 4(6) of the Parliamentary Elections Act would be, in my view, to endorse an illogical conclusion.
This appears to have been the approach adopted in Gole N. Davis vs Loi Kiryapawo Election Petition 19 of 2007, where Katureebe JSC held as follows:
However, having consulted UNEB, did NCHE heed the advice provided?
No evidence was adduced to prove that MOES was consulted on institutions recognised by it for purposes of paragraph (i) above. However, under cross examination Ms. Bukirwa stated that upon receipt of foreign qualifications NCHE crosschecks with the accrediting institutions. She stated that in the instant case, pursuant to NCHE’s inquiry, the USA Council for Higher Education and Accreditation confirmed the status of Oklahoma State University which awarded the 1st Respondent’s university degree. She further testified that NCHE’s consultation with Oklahoma State University confirmed that the 1st Respondent was admitted to the University on the strength of his High School Equivalency Certificate, which in the USA is the equivalent of Uganda’s Mature Entry Certificate. This certificate was issued by the California State Board of Education.
It would appear that NCHE did not consult MOES on whether it recognised the issuing bodies of these qualifications, but rather relied on a verification process that it had undertaken in respect of the 1st respondent’s qualifications in 2005, as described in Ms. Bukirwa’s testimony above. The question is whether by so doing NCHE did comply with UNEB’s advice.
UNEB, rightly or wrongly, delegated its consultative role to MOES with regard to institutions recognised for award of other qualifications. UNEB’s mandate is restricted by section 1 of the UNEB Act, Cap 137 to oversight of primary, secondary, technical and related examinations in Uganda, and standards in respect thereof; or, where such examinations are organised in Uganda by another body (with UNEB’s consent), similar oversight of the same. Clearly, the examinations over which UNEB has mandate are pre-university/ pre-college examinations within Uganda. Mature entry or pre-entry qualifications obtained outside Uganda, which are the issue presently, do not fall within its mandate. Therefore, having been referred to MOES by UNEB was NCHE justified in relying on its own verification? I take the view that it was justified. A look at NCHE’s mandate is instructive in this regard.
NCHE is set up by the Universities and Tertiary Institutions Act No. 7 of 2001, and its mandate includes the determination of the equivalence of academic and professional qualifications obtained elsewhere for recognition in Uganda. See section 5(k) of the Act. To that extent it is the body mandated to equate academic qualifications and verify the issuing bodies thereof. It follows therefore that it would have been superfluous of NCHE to purport to refer the question of recognition of institutions to MOES, well knowing that this is its function in the Education sector. I do therefore hold that having verified the accreditation of Oklahoma State University, as well as the status of the High School Equivalency Certificate in the USA and the issuer thereof, the 3rd respondent duly discharged its consultation duty. There was no need for fresh verification of the same institutions and certificates.
Accordingly, I do answer the first issue in the positive, and find that the 1st respondent was possessed of the minimum academic qualifications for nomination and election as a Member of Parliament.
Bribery is defined in section 68 of the Parliamentary Elections Act to include influencing voter(s) by way of gift, money or other consideration; while assaults and ballot stuffing are defined as election offences in sections 76 and 80 respectively. Proof of the commission of illegal practices or election malpractice is a matter of fact that must be sufficiently proved as such. I shall evaluate the totality of the evidence adduced before this court to determine whether the alleged offences were indeed committed as pleaded or at all.
At the trial the petitioner presented numerous affidavits in support of the petition, in addition to his own affidavits dated 15th March 2011 and 11th April 2011 respectively. The petitioner attested to having been told about the commission of numerous illegal practices by the 1st respondent and agents thereof. He availed affidavit evidence which highlighted the following illegal practices:
ii. Abuze Christine Monica and Nakanwagi Edith attested to shs. 3,000,000/= given by 1st respondent to the women of Napier Market to boost their income through SACCOs.
iii. Jomba Farouk and Muganda Abu Baker attested to shs. 5,000/= transport fare to voters to go and vote given by Badilu Matovu alias Alelenge.
iv. Athieno Hope Faith, Oguttu James and Birali Mugole attested to the installation of electricity by 1st respondent.
v. Isah Matege attested to an attack/ assault on him by 1st respondent’s supporters, Ayub Bageya; Farouk Wesige; Ali Egulwa alias Emmanuel, and Wycliffe Ofwono.
vi. Mutagubya Robert attested to an attack/ assault on him by 1st respondent’s supporters including a one Najibu Wakita.
vii. Mutebi Mohammed attested to shs. 700,000/= given by 1st respondent to deponent as Chairperson of Kirinya Road Development Agency (KDA); and shs. 2,000/= bribe to everyone on Kirinya Road at the time.
viii. Luyinda John Paul and Olobo Morris attested to shs.2,000,000/= contribution given by 1st respondent to Church in exchange for votes.
ix. Bamu Godfrey and Bamurenkaki Godfrey attested to a welding machine given by 1st respondent to Busoga Workshop on Oboja Road.
x. Kalema Emmanuel and Lwada Abdalla attested to a welding machine given by 1st respondent to Accurate Garage.
xi. Maguzi Daniel attested to a welding machine given by 1st respondent to Badiru Kiyaga Motor Garage through Mutebi Mohammed.
xii. Bizitu Moses attested to bribery by a one Mulwanyi David and Kimera Richard, agent to 1st respondent.
In the present case however, under cross examination the deponent stated that he did take oath prior to signing his affidavit albeit in a different place from the one stated therein. I do accept the deponent’s explanation that reference to Kampala rather than Jinja could have been a typographical error. In my view, though this error connotes an anomaly in the affidavit, it is a defect in form not substance given that the deponent testified to having taken oath prior to making the affidavit as required by section 5 of the Oaths Act. The anomaly in the affidavit is encompassed by the liberal approach to defective affidavits in election petitions, which was adopted by the Supreme Court in Kiiza Besigye vs Museveni & Anor (supra). I do therefore decline to expunge Mr. Olobo’s affidavit from the record.
b. Badru Matovu and Nakato Irene Wakabi were not his agents as claimed by Jomba Farouk and Muganda Abu Baker, neither did he consent to the actions of bribery complained of.
c. Contrary to the averments of Athieno Hope Faith, Oguttu James and Birali Mugole, the electricity connection was a government program and not a bribe. He attached a letter to that effect (Annex IN 2) He denied further claims by Oguttu James that he gave windows and doors to Masese Health Centre.
d. Contrary to the allegations by Isah Matege and Mutagubya Robert, Nkendembi Siraji was not his Personal Assistant and had no authority to undertake any action on his behalf; the attacks complained of were not done with his knowledge. He furnished the identity card of his Personal Assistant whose name is Mayemba Faisal NOT Nkendembi Siraji.
e. Contrary to the claims by Mutebi Mohammed, Bamu Godfrey, Bamurenkaki Godfrey, Kalema Emmanuel, Lwada Abdalla and Maguzi Daniel that he gave welding machines to a number of garages, he never delivered such machines to anyone; he never visited KDA during the campaign period; on 16th May 2010 he attended a KDA party together with other dignitaries albeit as Chief Guest, signed the Visitor’s Book for that day (he attached the page copy) and together with other dignitaries present pledged shs. 700,000/= to the Association, which he paid up on 25th May 2010.
f. With regard to the claims by Luyinda John Paul and Olobo Morris that he made a contribution made to influence voters in a Church, he states that he never attended service at Jinja Christian Centre as alleged, but rather attended St. Andrew’s Church on that day. This is corroborated by the affidavit evidence of Luzze Robert, the Chairman of Jinja Christian Centre who states that the 1st respondent did not make a contribution during that service. The deponent attached a list of persons that had made a contribution, which did not include the 1st respondent.
g. Contrary to the averments of Makhoha Bright, Mpaulo Ivan and Kiregeya Ali; Nkendembi Siraji and Osuman were not his agents and had no authority to undertake any action on his behalf, neither did he know of the offensive actions at the time.
h. In response to the claims by Bizitu Moses, he stated that Mulwanyi David and Kimera Richard were not his agents and he had no knowledge of their acts neither did he consent to them.
The 1st respondent filed additional affidavit evidence in support of his case.
The affidavits of Simon Kiwanuka; Irene Nawumbwe; Tagaba Zida; Babirye Rose; Buye Siraje; Mwondha Yusuf; Bukenya Daniel; Luzze Robert; Namubona Robert; Semakula Awali; Kasaijja Edison, and Wakita Najib corroborate the 1st respondent rebuttals above and exonerate him personally of the illegal practices cited in so far as they contend that he did not hold any meetings in the purported areas and so could not have offered attendees thereof money or gifts as alleged.
To that end, the affidavit of Buye Siraje specifically names the deponent and not the 1st respondent as the giver of the doors and windows offered to Masese Danida Health Centre. This evidence is corroborated by that of Mwondha Yusuf who attributes the ‘gifts’ in issue to Buye Siraje not the 1st respondent. Further, Kasaijja Edison states that the welding machine his garage received was part of a Government program towards ‘jua kali’ workers and not given by the 1st respondent. Wakita Najib corroborates this evidence when he states that he and another official delivered welding and compressor/ spraying machines to 4 garages in Jinja as part of the Government ‘prosperity for all’ program towards ‘jua kali’ workers. Both Kasaijja and Wakita attach acknowledgment slips indicating the office of the President as the donor of the machines in issue. The same point was alluded to by a one Muwereza Kalulu.
The affidavits of Kakooza Ronald; Onyango Ben; Mulwanyi David; Kimera Richard, and Wakita Najib contain explicit denials by the deponents of the allegations of election offences against them. Kimera Richard also denies having been an agent of the 1st respondent.
I find an affidavit by one Bogere Siraje Nkendembi particularly noteworthy. He was accused by Makhoha Bright and Kiregeya Ali of offering a bribe of shs.500,000/= to the Pentagon Association; and by Isah Matege of being an agent of the 1st respondent who bribed him with money after he was beaten. Mr. Nkendembi thereafter deponed an affidavit stating that he was never an agent to the 1st respondent because he was a card-holding member of the FDC party (a copy of the card was attached); he knew Matege as a fellow FDC party member and when he heard that he (Matege) had been beaten, he visited him at the police station and offered him shs.25,000/= towards his medical bills; he denied giving a bribe of shs.500,000/= to the Pentagon Association.
I do respectfully agree with that position. In the present case I am faced with 2 contradictory sets of evidence: allegations by the petitioner and rebuttals by the 1st respondent. I therefore revert to documentary evidence to confirm the truthfulness of either case. I am fortified in this approach by Sarkar’s Law of Evidence, 1993, 14th Edition at p. 924, which states as follows:
With regard to the acts of his purported agents, the 1st respondent asserted that Badru Matovu, Nakato Irene Wakabi, Nkendembi Siraji, a one Osuman, Mulwanyi David and Kimera Richard were not his agents and he had no knowledge of their acts neither did he consent to them. The burden lay on the petitioner to prove otherwise. Instead, for the 1st respondent, Mr. Nkendembi furnished a FDC party card presumably as documentary proof of his converse loyalties. On the other hand, the 1st respondent did not explicitly deny that Kakooza Ronald, Onyango Ben and Wakita Najib were his agents; but faced with denials by them, neither did the petitioner effectively prove that these persons in fact committed election offences. Some form of independent evidence would have been pertinent. This leaves the petitioner’s evidence contradicted and insufficiently proved.
With utmost respect, I quite agree with the above position. While the case under consideration by the learned Chief Justice was a presidential election petition, I do find the yardstick for the standard of proof expounded therein equally pertinent to parliamentary election petitions. Indeed, in the case of Karokora Katono Zedekia vs Electoral Commission & Kagonyera Mondo, Musoke-Kibuuka J. observed:
The foregoing authorities suggest that election petitions should be determined on a high degree of probability; and certainly in the event of reasonable doubt as to the probability of the allegations pleaded, a petition (or ground thereof) should be disallowed.
In the premises, I do find that the petitioner has not proved the allegations in issue to the required standard. I do therefore answer the second issue in the negative.
The petitioner’s case on the question of the election’s non-compliance with cited electoral laws and the substantiality of such non-compliance is summed up in paragraph 7(a), (b), (d) and (e) of the petition as follows:
b. The failure to conduct the elections in compliance with the provisions and principles of the electoral laws affected the final result in a substantial manner and benefited the 1st respondent.
Under cross examination, the petitioner testified that 2 of his polling agents raised the question of unaccounted for ballot papers but were forced to sign the declaration forms in respect of the polling stations where the anomaly arose under duress. He stated that the presiding officer at Masese 3B did not account for the missing ballot papers.
The Returning Officer of Jinja Electoral District, Ms. Flavia Mujulizi, deponed an affidavit in support of the 2nd respondent, the gist of which was that her office did not receive any complaint from the petitioner’s agents; the signing of the declaration forms by these agents signified their acceptance of the vote count, and any miscomputation that occurred did not render the petitioner the winner of the election in Jinja Municipality East. During cross examination, Ms. Mujulizi did concede that Annexures J1, K and L to the petitioner’s affidavit did give a correct account of the votes cast in favour of the petitioner. She attributed these mistakes to the failure by the Presiding Officers to fill in the declaration forms in alphabetical order, as well as late (night) entry of the data. She testified that she should have cross-checked the results before she released them, but owing to the pressure prevalent at the time was unable to detect the mistakes. She further testified that this anomaly also affected the 1st respondent’s results too, and clarified that the results detailed in Annexures H3, H1 and J were the correct votes cast in favour of the 1st respondent.
During re-examination, Ms. Mujulizi outlined the procedure entailed in handling ballot papers, stating that the ballot papers are placed in ballot boxes and the boxes sealed at the EC headquarters in the presence of representatives of all parties to an election; the sealed ballot boxes are then sent to returning officers at the districts for onward submission to presiding officers in the divisions; presiding officers then take the sealed boxes to polling stations and they are opened in the presence of the 1st five registered voters to report to the station, as well as candidates’ polling agents. She testified that used, unused and spoilt ballot papers are accounted for on Accountability for Ballot Papers Form, but the petitioner did not request for the form(s) in respect of his constituency.
From Ms. Mujulizi’s testimony it is clear that there was a miscomputation of votes cast for both the petitioner and the 1st respondent. The miscomputation translated into a denial of an additional 505 votes to the petitioner, and 90 votes to the 1st respondent. This corrected computation of the vote count still places the 1st respondent ahead of the petitioner. In that sense, the non-compliance with the electoral laws occasioned by the vote miscomputation did not substantially change the election result.
However, the petitioner does also allege failure by the 2nd respondent to conduct the elections in compliance with the provisions and principles of the electoral laws, as well as the compromise by the same respondent of the pivotal principles of impartiality and transparency. This allegation points to the underlying quality of the election, and whether any compromises in that regard did affect the election result substantially.
Article 61(1) of the Constitution enjoins the Electoral Commission to organise, conduct and supervise free and fair parliamentary elections. Article 68(2), (3) and (4) outlines the gist of post-voting procedure in the conduction of an election, and specifically provides for the counting of ballot papers by presiding officers; the presence of candidates either in person or through agents during the voting and counting process, as well as at the point of ascertaining the results of the poll; and the signing of a declaration (form) by presiding officers, candidates or their agents attesting to the results of a given polling station.
With regard to the unaccounted ballots, Ms. Mujulizi testified that an Accountability for Ballot Papers Form remains with the Returning Officer and, in the instant case, the petitioner did not ask for it. She thus suggests that all the ballot papers were duly accounted for, which evidence was not undone in cross examination.
2. If the election was so conducted that it was substantially in accordance with the law as to elections, it is not vitiated by a breach of the rules or a mistake at the polls – provided that it did not affect the result of the election. (emphasis mine) That is shown by the Ishington case (1901) 17 TLR 210 where 14 ballot papers were issued after 8.00 pm.
3. But, even though the election was conducted substantially in accordance with the law as to elections, nevertheless if there was a breach of the rules or a mistake at the polls – and it did affect the result – then the election is vitiated. That is shown by Gunn vs. Sharpe (1974) 2 All ER 1058 where the mistake in not stamping 102 ballot papers did affect the result.”
In my view, the first preposition addresses the overall quality of an election regardless of the numerical effect thereof. On the other hand, the second and third prepositions address scenarios where the quality of an election is substantially above board but the mistakes enshrined therein have a numerical bearing on the final election result.
After a careful review of all the evidence on record, I do find that the election in Jinja Municipality East was substantially in compliance with prevailing electoral laws. It was only laced with some mistakes by presiding officers which led to the miscomputation of the results. These mistakes however did not affect the numerical result of the election or substantially impact on the free choice of the majority of voters. There was also breach of the election principles of fairness as exhibited by the high-handedness with which 2 of petitioner’s polling agents were coerced into signing declaration forms they had raised issues about. However, an act involving only 2 of the petitioner’s numerous polling agents, and in respect of only 2 polling stations out of the 55 polling stations in the constituency would not, in my view, amount to substantial non-compliance with electoral laws.
Accordingly, I do answer the third issue in the affirmative, but answer the fourth issue in the negative.
Issue No. 5: Remedies
However, I am aware that petitions are matters of national or political importance for which courts should be hesitant to award costs. I am also mindful of the considerations of Bamwine PJ who, in Kadama Mwogezaddembe vs Gagawala Wambuzi Election Petition No. 2 of 2001 held:
Monica K. Mugenyi