Court name
High Court of Uganda
Judgment date
17 June 2016

Mudiobole v Mugema (HCT-03-CV-EP-2016/13) [2016] UGHC 10 (17 June 2016);

Cite this case
[2016] UGHC 10
Coram
Mutonyi, J

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA

HOLDEN AT JINJA

HCT-03-CV-EP-0013-2016

 

MUDIOBOLE

ABED NASSER:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::PETITIONER

                VS

MUGEMA PETER::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT

THE ELECTORAL PETITION

JUDGMENT OF HON. LADY JUSTICE MARGARET MUTONYI

JUDGMENT

  1. INTRODUCTION

Both the Petitioner and the Respondent were candidates for election to the seat of Member of Parliament for Iganga Municipality, Iganga district. The parliamentary elections were held on 18th February 2016 throughout Uganda. The petitioner polled 10,108 votes while the 2nd respondent polled 11399 votes. The 2nd respondent declared the 1st respondent as the winner and his name was published in the Uganda gazette of 3/3/2016.  He consequently took up his seat in the august house of parliament. The Petitioner presented this petition on 4th of April 2016 seeking the following orders

a)         A declaration that the 1st respondent wasn’t validly elected as a directly elected Member of the Parliament for Iganga Municipality Constituency

b)         The elections of the 1st respondent as Member of Parliament for Iganga Municipality be annulled and set aside and a new election be organized

c)         That the 2nd respondent didn’t hold elections in compliance with the law

d)         That the 2nd respondent pays costs to the Petitioner

e)         Any other remedy available under the electoral laws as the court may consider just and appropriate in the circumstances

2.         PLEADINGS

In the petition, the petitioner in summary alleged that the electoral process in Iganga Municipality constituency beginning with the nomination process, the campaign period throughout to the polling day and the tallying process was characterized by acts of violence, lack of freedom, intimidation, lack of transparency, bribery, unfairness, commission of various electoral malpractice and offenses, illegal practices or acts in contravention of The Parliamentary Election Act 2005 as amended.

In particular he alleged that:

  1. The 1st Respondent with intent to either directly or indirectly influence voters to vote for him at different places in Iganga Municipality personally and through his agents with his knowledge and consent or approval on different occasions  caused to give money to voters C/S.68(1) and 4 of the Parliamentary Elections Act (PEA)
  2. That the 1st Respondent participated in fundraising and gave donations during campaign period C/S 68(7) of the PEA.
  3. Maliciously mutilated, defaced, tore and removed the petitioner’s posters C/S 82(1) (2) of PEA.
  4. Canvassed for votes and uttered slogans within 100 meters on the polling day and sought to influence voters within 200 meters from the polling station to vote for him C/S 81(1)(a)(b), (2)(a) of the PEA  as amended.
  5. That the 2nd respondent before and during the elections failed to restrain the 1st respondent from bribing and compromising voters and interfering with the electoral process.
  6. That the 2nd respondent before its agents or servants conducted or caused to be conducted in the said Elections in a negligent and fraudulent manner.

All the above were contained in paragraph 5 of his petition which formed the statement of the grounds he intends to rely on to sustain his prayers.

The petition was accompanied by his affidavit which wasn’t dated. Court has however presumed it was dated on 1/4/2016.the date of signing the petition. He also filed a supplementary affidavit in rejoinder and 31 other affidavits in support of the petition.

The 1st Respondent Mugema Peter filed an answer to the petition after he was served through substituted service. In it he denied each and every allegation contained in the petition. In addition to his affidavit, in support of the answer to the petition, he filed 26 affidavits from his witnesses.

The 2nd respondent filed its answer to the petition denying the allegations faulting it in the petition. The 2nd respondent relied on the affidavit of Jackson Kigenyi Pabire its returning officer in the constituency.

During scheduling, the parties filed a joint scheduling memorandum where it was agreed that the elections for the directly elected member of parliament Iganga Municipality constituency was held on 18/02/2016 where the Petitioner and the 1st respondents were the only candidates who participated. The 1st Respondent was declared winner after polling 11399 votes which results were gazetted in the Uganda gazette dated 3/3/2016.The Petitioner’s case was narrowed down to one ground that the 1st respondent personally or through his agents committed illegal acts and offenses.

 

 

The 1st Respondent’s case was that the subsequent declaration of the 1st respondent as the elected Member of Parliament for Iganga Municipality Constituency was conducted in compliance with the provisions of the electoral laws of Uganda and that the 1st respondent didn’t personally or through his agents commit any illegal acts and offenses in connection with the elections.

The Petitioner cross examined Waibi Siragi, Abdullah, Ngobi Yazid, Alileki Balondemu and Matovu Rashid. The respondents didn’t examine any of the petitioner’s witnesses.

  1. ISSUES

There are two issues for determination in the petition.

  1. Whether the 1st respondent personally or through his agents with his knowledge and consent or approval committed in connection with elections the alleged illegal acts and offenses.

 

  1. What are the remedies available to the parties

 

  1. BURDEN OF PROOF AND STANDARD OF PROOF

It is now trite law that the burden of proof in election petition rests ordinarily upon the petitioner or contestant of the election who has to prove to the satisfaction of court the grounds upon which he relies to get the election nullified. As regards the standard of proof, it is clearly stipulated under S.61 (3) of the PEA that, “any ground specified in subsection (1) shall be proved on the basis of the balance of the probabilities.” And under S.61 (1) it provides “the election of a candidate as a member of parliament shall only be set aside on any of the following grounds if proved to the satisfaction of court.” In the case between the same parties Election Petition Appeal No.30/2011 Mugema Peter Vs. Mudiobole Abed Nasser,

Court of Appeal held that “though the standard of proof is set by the statute to be on a balance of probabilities because of the public importance of an election petition, the facts in the petition must be proved to the satisfaction of court.

A Petitioner has the duty to adduce credible or legal evidence to prove the allegations to the stated standard of proof. The court went ahead to rely on the case of Blyth Vs. Blyth 1966 AC 643 where Lord Denning observed as to the importance and meaning of the word “satisfied” that “when parliament has ordained that a court must be satisfied, only parliament can prescribe a lesser requirement.  No one whether a Judge or Juror would in fact be “satisfied” if he is or was in a state of reasonable doubt.”

Odoki C.J as he then was in Col. Rtd Dr. Besigye Kiiza vs. Museveni Yoweri Kaguta the Electoral Commission in Election Petition No.1 of 2006 agreed and applied the above observation when he stated that, “it is true court may not be satisfied if it contains a reasonable doubt, but the decision will depend on the gravity of the matter to be proved”

With the above propositions of the law, it is quite clear that the Petitioner has to adduce evidence that irresistibly persuades the Judge to believe his side of the story in as far as the alleged electoral offense or offenses are concerned.

  1. SUBMISSIONS

Both parties made oral submissions which turned to be very useful although very lengthy. If they were to be reproduced, the Judgment would be very lengthy. Court has had an opportunity to evaluate the submissions and the authorities cited and put them under consideration while writing this Judgment.

 

  1. REPRESENTATION

The Law Firm of Luganda Ojok &Co. Advocates appeared for the Petitioner Kiwanuka & Karugire Advocates for the 1st respondent while Ssekaana Associated Advocates and Consultants – Mwebe Mathias for the 2nd Respondent.

  1. PRELIMINARY OBJECTIONS

Both Counsel Asuman Nyonyintono and Counsel Kiryowa Kiwanuka raised preliminary objections in respect of the affidavit evidence before court. I will deal with the objection before I proceed with resolving the issues as framed, starting with the objection of counsel for the petitioner. He raised a preliminary objection in respect of four affidavits for the 1st respondent deponed to by Ngobi Yazid, Matovu Rashid, Alileki Balondemu and Waibi Siragi Abdullah.

He submitted that the affidavits are not tenable in law as they offend the provisions of section 5 of the Oaths Act because the witnesses Yazid Ngobi, Alileki Balondemu, Waibi Siraji and Rashid Matovu didn’t go through the process of administering the oath before signing the affidavits. As regards Rashid Matovu, the document in the jurat mentions Luganda and yet he informed court under cross examination that he understands Lusoga and he used Lusoga not Luganda.

According to Matovu Rashid, the person who prepared the document was the Commissioner. They were explained as to the contents of the document and showed where to sign the document before the 1st respondent and Kalulu Faisal who signed as the interpreter. As regards the affidavit of Siraji Abdullah, it was purely in English with no part of translation in the jurat. The witness while under cross examination stated that he can’t read the English language very well. He appraised court on the provisions of the Illiterates Protection Act specifically section 3.

The witness testified that he doesn’t know, he doesn’t understand English and he can’t read English apart from his name which he knows because of writing it over and over again.

Counsel submitted that he believes the language in which the affidavit was procured wasn’t in the domain of the witness’s language which is covered by the Illiterates Protection Act, which imposes a statutory mandatory obligation for a certificate of Translation whenever such a document like the affidavit is procured in a language to which the deponent isn’t knowledgeable. The witness’ Counsel submitted, informed court that he signed it before the 1st respondent’s advocate Mr. Kiryowa Kiwanuka from his office where they were only two.

He relied on the case of Kakooza John Baptist vs. the Electoral Commission and Yiga Anthony Election Petition Supreme Court Appeal No.11/2007where JSC Bart. M. Katureebe as he then was after relying on  section 6 of the Oaths Act which reads “Every Commissioner for oaths or notary public before whom any oath or affidavit is taken or made under this act shall state truly in the jurat or attestation at what place , and on what date the oath or affidavit is taken or made”, held that “the practice where the deponent of an affidavit signs and forwards the affidavit to the commissioner for oaths without him being present is in my view a blatant violation of the law regarding making affidavits and must not be condoned in any way. The deponent of an affidavit must take oath and sign before the Commissioner and the Commissioner who commissions an affidavit without seeing the deponent can’t say that the affidavit was taken before him or her nor can he state truly in the jurat or attestation at what place or time the affidavit was taken or made”.

Equally the deponent can’t claim to have taken or made the affidavit before the commissioner for oath.

 

I would add that in the case where evidence is by way of affidavits only like in the election petitions, the advocates representing the party and the petitioner or respondent relying on these affidavits cannot also claim that they were taken before a Commissioner when they were merely signed before administering the oath.

In response, Counsel Kiryowa for the 1st Respondent submitted in respect of defective affidavits that he was in agreement with the submission of counsel for the Petitioner that the Court must strictly apply the provisions of the Illiterates Protection Act and the Oaths Act to the evidence before it. He however submitted that section 3 of the Illiterates Protection Act, he thinks was misapplied. He submitted, section 3 requires the person who prepares an affidavit or a document on behalf of an illiterate to state his names and particulars which will signify that he wrote the document on the instructions of the illiterate. That for all affidavits before court where they relate to translation there must be the name of the person who wrote that affidavit. He also submitted on 23 affidavits for the Petitioner that they do not have that. He questioned the affidavits that were translated by Lubaale Jimmy which do not show that Lubaale Jimmy actually wrote the affidavits.  He submitted the verification that says “Jimmy Lubaale being the person conversant with English and Lusoga language do hereby certify that I have interpreted the contents of this affidavit in support of the petition to the deponent in Lusoga language understood by him/her and he/she appeared to have fully understood the contents before appending the signature” is not what section 3 of the Illiterates Protection Act requires. Section 3 requires that you state that you wrote the document. He submitted 23 affidavits of 1.Kwagala Hairat, 2.Kawuma Isha, 3. Mukwana Nabongho Abdu, 4.Lukwago Maliki, 5.Guloba Bumali Junior, 6. Isabirye Davis, 7. Nakitto Madina, 8. Namuswa Fatuma, 9.Naigaga Betty, 10. Wasoma Hamza, 11.Balaba Juma, 12.Mateeka Muzaham, 13. Bazibu Ali, 14.Nangobi Sarah Favour, 15. Nabirye Zura, 16. Osinde Michael, 17. Kasasi Maldrin, 18. Namansho Mulabiza Rose, 19. Nkwanga Hassan, 20. Kirabira Rehema, 21. Namigugu Ishah, 22. Kakaire Abdu Karim violates the provisions of the Illiterates Protection Act.

He also asked court to compare and inspect the signature attributed to the translator on these affidavits as it appears on the jurat. That where they differ, they are quite different with no scintilla of similarity. He cited the affidavit of Namansha Mulabize Rose with that of Kwagala Hairat. The signature of Lubaale Jimmy appearing on both is quite different. He also questioned the affidavit of the Petitioner which was signed on 18/4/2016 where as it was filed in court on 17/4/2016 which was not possible. He prayed that the 23 affidavits be expunged from the record.

He relied on the case of Goobi Rodney vs. Christine Nabunya HCCA No.4/2007 where Hon. Justice Rubby Aweri Opio J as he then was quoting section 72(1) of the Evidence Act laws of Uganda which provides for the comparison of signature with the one which is to be proved held “that proof of handwriting may be done by an expert witness (section 43 of the UEA) or by a person acquainted with the handwriting of another ( S.45 of UEA),court may as  experts of experts make findings on handwriting without a handwriting expert.” The judge followed the Supreme Court decision in SCCA No.9/2003 Premchadra Shenoi & Another versus Moxmov Oleg Petrovich. According to Mr. Kiryowa Kiwanuka, the petitioner in this case would do anything in order to try to make up a case which situation was discussed in the case of Paul Mwiri Vs. Igeme Nabeeta and 2 others Election Petition No.3/2011 where lady justice Monica Mugenyi held “that she was mindful of the fact that the election petitions are highly polarized disputes that evoke deep sentiments in parties and witnesses alike raising the possibility of untruthful and possibly nonexistent evidence”. Earlier on, Mulenga JSC in the landmark case of Kiiza Besigye Vs.Yoweri Museveni Kaguta Election Petition No.1/2001, held that

 “An election petition is a highly politicized dispute arising out of a highly politicized contest. In such a dispute, details of incidents in question tend to be lost or distorted as the disputing parties trade accusations, each one exaggerating the other is wrong while downplaying his or her own. This is because most witnesses are the very people who actively participated in the election contest”.

 I am however fortified with the holding in the case of MBUGHADI FREDERICK NKAYI VERSUS THE ELECTION PETITION AND DR NABWISO FRANK WB  election petition Appeal No. 14 and 16 of 2011 which involved the signature of the respondents agent which was alleged to have been forged.

“The court held that the signature of the respondent’s agent that was in question assumed a criminal element and should have been subjected to expert’s investigative assessment. With due respect the learned judge ought not to have arrogated to himself the role of a hand writing expert especially where there was nothing to compare the signature with.

With the above in mind, I have to resolve one issue. Whether the questioned affidavits should be expunged. Both advocates are questioning the legality and authenticity of the affidavits. Counsel for the petitioner submits the questioned witnesses didn’t take oaths at the time of signing the affidavits.

It is trite law that evidence in the petitions is by way of affidavits. It is therefore very important that the affidavit evidence which is the examination in chief of the witness and which is read in open court should be properly taken or recorded with the seriousness it deserves in terms of earnest and sincerity just like the way oral evidence is recorded.

 

 

Instead of administering the evidence oath in court before a witness testifies, the deponent of an affidavit has to take oath before the commissioner of oaths who may be a judicial officer or any person authorized to take oath. In Uganda all judicial officers can administer the oath but not all advocates can administer the oath.

Oath for affidavits is provided for under the 1st schedule to the Oaths Act. It is therefore not true as submitted by counsel for the 1st respondent that the kind of oath to be taken for affidavits isn’t in that schedule. Section 5 of the Oath Act cap19 provides for the form and manner in which the oath may be undertaken. It provides “whenever any oath is required to be taken under any provision of this or any other act, or in order to comply with the requirement of any law in force for the time being in Uganda, or any other country the following provisions shall apply.” That is to say, the person taking oath may do so in the following manner:

  1. He or she shall hold if a Christian a copy of the gospels of the four evangelists or any of the new testament or if a Jew a copy of the Old Testament or if a Muslim, a copy of the Koran in his or her uplifted hand shall say or repeat after the person administering the oath the words prescribed by law or by practice of the court as the case maybe
  2. In any other manner which is lawful according to any law, customary or otherwise in force in Uganda

And section 1 of the same act provides for the oaths which shall be taken as occasion shall demand which oaths are set out in the 1st schedule to the Act. The oath for the affidavit in the 1st schedule to the act reads “I…………swear by the almighty God that this is my name and handwriting and that the facts deposed by me in this affidavit are the truth, the whole truth and nothing but the truth.”

With modern technology people don’t use their own handwriting, so the witness now do not  have to affirm to the handwriting but to the typed contents of the affidavits as typed in the paragraphs. Since an affidavit is a written statement of facts voluntarily made by the deponent under oath ,after making the open statement of “I………..of (address) do solemnly make oath and state as follows: and the witness goes ahead to state facts within his knowledge because the statements must be admissible in law in evidence and not hearsay  then at the end, he or she makes the affidavit oath as already mentioned above affirming that whatever is stated is the truth, the whole truth and nothing but the truth.

It is now trite law however those affidavits that accompany the petition or answer to the petition may contain paragraphs that include hearsay evidence because they may base some of their allegations on information from their agents or supporters. Courts however expect the evidence from the witnesses in support to pass the test of hearsay and even that of the Petitioner or Respondent which is purely evidential.

In view of the above, can it be said that the affidavits before court are in the right form and were administered in the right manner? Certainly the answer is the negative. In all these, who is to blame? Is it the witnesses or the Advocates who were responsible for preparing the witnesses and ensuring that the right procedure is followed? Unlike in the case of John Baptist Kakooza Supra where the witness who was an advocate merely sent the affidavits to Masaka for commissioning, in the instant case the witnesses came to Kampala, had their statements recorded and oath was not administered in the manner it was supposed to be administered. They signed before Samuel Olum who put his stamp as an advocate and commissioner for oaths. The same style of recording evidence by way of affidavits was adopted by the counsel for the petitioner. Nobody stated that what was stated was the truth, the whole truth, nothing but the truth. One Zinsanze Ismail Advocate and Commissioner for oaths commissioned all the affidavits for the petitioner’s witnesses save that of the petitioner which was commissioned by Aogan Fabian.

The Petitioner at least stated that “I certify that whatever is stated here in above is true and correct to the best of his knowledge”. He didn’t however state that he was in all those places where the alleged illegal acts were committed which implies that he got the information from his agents. His affidavit dated 18/5/2016 was commissioned before another commissioner for oaths and this was his evidence in support of his pleadings. The affidavit in support which accompanies the petition, the one on the office copy was not even dated while that which was served was dated 18/4/2016 but filed in court on 17/4/2016.

Counsel for the petitioner wondered how that would be possible. However DCJ Mpagi Bahigeine in the case of Suggan Vs. Road Master Cycles (U) Ltd 2002 EA 25, held that where an affidavit was not dated, “it is trite that defects in the jurat or any irregularity in the form of an affidavit cannot be allowed to vitiate an affidavit in view of article 126 (2) (e) of the 1995 constitution which stipulates that substantive justice shall be administered without undue regard to technicalities”.

The question is whether stating a wrong date and doubting the signature of the translator from the bar or whether the person held the Bible or Koran or merely affirmed goes to the substance of the issue at hand or is indeed a mere technicality. Justice’s Mpagi’s decision suggests that defects in form raise technicalities as opposed to substantive issues.

Apart from the affidavit of Waibi Siraji Abdallah who testified on oath that he cannot read, write and understand English which in my opinion  is incurably defective because it doesn’t bear the certificate of translation as required under section 3 of the Illegal Protection Act, making it risky for court to  rely on the evidence of the affidavit that was prepared in the language he doesn’t understand and was never translated to him in his local language, I have no cogent reason to reject the affidavit of Ngobi Yazid. Court is of the view that he understood the contents of the document before signing it. The same applies to the affidavit of Alileki Balondemu. Much as the form and manner of administering the oath was irregular, he proved to court that he could read and understand English.

His affidavit is therefore admitted in evidence. Court doesn’t find any serious legal issues with Matovu Rashid’s affidavit as they adopted the same style of commissioning.

As regards the issue of jurats for illiterates, Counsel Kiryowa submitted that section 3 of the Illiterates Protection Act was misapplied. That the section requires the person who prepares an affidavit or a document on behalf of an illiterate to state his name and particulars which will signify that he wrote the document on the instructions of the illiterate. For all affidavits that relate to translation, there must be the name of that person who wrote the affidavit. He submitted that all the 2 affidavits that he enumerated do not have that. All the affidavits that have Lubaale Jimmy as the person who interpreted or translated had verification clause where he stated “I Lubaale Jimmy of C/O M/S Luganda Ojek & Co. Advocates being conversant in both English and Lusoga languages do hereby certify that I have interpreted the contents of this affidavit in support to the petition to the deponent in Lusoga language understood by him and he appeared to have fully understood its contents before appending his signature.” The above is the form they all took.

Section 3 of the Illiterates Protection Act Cap 78 which provides for the verification of the documents written for illiterates provides:

“Any person who shall write any document for or at the request or on behalf or in the name of any illiterate shall also shall also write on the document his or her own true and full name as the writer of the document and his or her true full address and his or her so doing shall imply  a statement that he or she was instructed to write a document by a person for whom it purports to have been written and that it fully and correctly represents his or her instructions and was read over and explained to him or her.”

An illiterate is defined under section 1 of the Act to mean in relation to a document, a person who is unable to read and understand the script or language in which the document is written or printed.

As mentioned earlier, Rule 15 of the PE (EP) Rules provides for Affidavit Evidence which are printed scripts filed in court. A document is also defined to mean any print or writing capable of being used as evidence of any fact or thing as against a person, for, or at the request, or on behalf, or in the name of whom the same purports to be written or signed in any way.

The Illiterates Protection Act was intended to protect persons who don’t understand the language in which a document is written and who can’t read it, to avoid using documents against such persons (purported authors) whereas not or using statements that were never made by them in courts of law as regards Affidavit Evidence where they have to depone to the facts within their knowledge.

In appreciation of the need to protect illiterates, the Oaths Act provides under 1st schedule for the Jurat Oath which is in the following format

“Sworn at………in the district of ……..this day of………..20 before me, I having first truly distinctly and audibly read over the contents of this affidavit to the deponent he/she being blind or illiterate and explained the nature and contents of the exhibits referred to in the affidavit in the………language. The deponent appeared perfectly to understand the same and made his/her mark or signature there in my presence.” This shows that the person who explains is supposed to swear before a commissioner.

All the above shows how much illiterates are protected. Even the person translating is supposed to make it under oath to ensure that the illiterate is protected and not manipulated by anybody or his rights violated.

I am very convinced that the time the legislators came up with the Rule 15 of the PE (EP) Rules and Presidential Election (EP) Rules, they had in mind that affidavit Evidence that depones as to the facts within the knowledge of the witness save for the liberal approach on the affidavit accompanying the petition or answer to the petition which is allowed to contain hearsay evidence, shall be taken seriously and within the ambits of the law.

The language of court being English under section 88 of the Evidence Act, necessitates that evidence from an illiterate which is by way of affidavit must be free from manipulation, fabrication and ingenuity in order not to render it cosmetic as submitted by counsel for the respondent .This can only be done by advocates involved in the election petitions being the legal advisors of the clients and professionals in the field of legal representation who should adhere to the law and good practice.

All the affidavits in this case as regards those of illiterates didn’t comply strictly with the form in which they were to be drafted and commissioned. The liberal approach courts have taken on affidavit evidence in election petitions has opened the window of deliberate flaw of well documented procedures only to hide behind article 126 (2) (e) of the constitution of the republic of Uganda .Where as it may provide a fallback position or escape route for incompetency of advocates, it doesn’t take away the responsibility of thorough examination and scrutiny of the affidavit evidence before court. Because I am bound by the superior court which has pronounced itself and has made it trite law that, defects in jurat or any irregularity in the form of an affidavit cannot be allowed to vitiate an affidavit in view of article 126 (2) e supra, the Preliminary objections raised by both counsel is over ruled to enable this court apply substantive justice to this petition save for the affected affidavits of Waibi Siraji Abdallah.

 

My decision is premised on the fact that the witnesses who were cross examined actually proved they went and had their affidavits typed and explained to them and they signed. The persons who flouted the procedure are the advocates and it’s now trite that negligence of counsel should not be visited on the client.

An election petition involves three categories of people. The candidates, the electorate and the Ugandan tax payers. Expunging the evidence of the electorate who came out to assist court investigate issues raised in the petition and in answer to the petition would leave more questions than answers and certainly pervert the course of justice.

I have spent quality time on the preliminary objections because they raised serious issues on very important issues pertaining to evidence. Since evidence is by way of affidavits, it’s high time the parties and particularly lawyers revisited the way they conduct business during election petitions. Their clients deserve better and as officers of court, they owe a lot in developing jurisprudence in electoral laws.

It should not be a money minting season where advocates take on many cases ending up with substandard documents yet very important part of court proceedings and hastily prepare and file them in the name of strict short statutory time lines. There is always room for extension of time with just cause and preparing quality affidavits, in my opinion can be sufficient ground because it is all about evidence that would guide court in the final determination of the dispute. The liberal approach adopted by courts should not be abused. With the above said, let me now turn to the issues.

10.  RESOLUTION OF ISSUES

1. Whether the 1st respondent personally or through his agents or approval committed in connection with the election the alleged illegal acts and offenses.

In paragraph 5 of the Petition, the petitioner alleges that the 1st respondent either personally or through his agents with his consent committed the following illegal practices and offenses to wit

  1. That contrary to section 68(1) and 4 of the Parliamentary Elections Act, the 1st respondent with intent to either directly or indirectly influence voters to vote for him at different places in Iganga municipality personally and through his agents with his knowledge, consent and approval on different occasions gave or caused to give money to voters. The details of the above distinct portion of the subject to wit bribery was contained under paragraph 8 of the affidavit in support and supported by the affidavits of his witness.

There are nine allegations of bribery which are particularized by the petitioner as follows:

  1. Bribing of voters by Mrs. Ssempa Proscovia who was said to be the agent of the 1st respondent at Nabidhogha ward on 18/2/2016.
  2. Bribing of voters by Harriet Mirembe Sarah at Gift Primary School Polling Station on 18/2/2016.
  3. Giving out of money by Mr. Wakabi Deo a CDO of Nakalama S/C at Buligo Ward/Parish on 18/2/2016.
  4. Bribing of voters through Matovu Sula Twamulabirawo at Living Hope Polling Centre.
  5. Bribing of voters on their way to voting through Matovu Rashid Twamulabirawo at various stations at Kasokoso Ward.
  6. Bribing of voters through Mr. Waibi Siraji Abdallah at Tawhed Mosque, Dawn Prime P/S, Gift P/S and other polling stations.
  7. Bribing of voters through Alileki Balondemu at Nkatu Parish, which Balondemu was also chairperson LC1 and chairman NRM of Nkatu Parish.
  8. Bribing of voters through Ngobi Yazid, the NRM chairman of Nabidhogha Prisons village PWD Polling Station, Iganga Children’s Centre Polling Station within Iganga Municipality.
  9. Bribing of voters through Mr. Mwanje Kalulu Faisal, Mr. Said Tom Abdallah, Mr. Kadugala Hussein, Mr. Dhafo Ogera Fahad, Mr. Safi Gulume, Mr. Sangala, Mr. Bajje Faisal, Mr. Ibrahim Kyanywa, and Mrs. Kamukamu Betty.

Section 68 (1) of the PEA defines the illegal practice of bribery.

“any person who either before, or during an election with intent either directly or indirectly to influence another person to vote or to refrain from voting for any candidate, gives or provides or causes to be given or provided any money, gift or other consideration to that other person, commits the offense of bribery.”

Under section 61(1)(c) of the PEA which provides for grounds to set aside an election, once it is proved to the satisfaction, one incident of bribery is sufficient to have an election set aside by the court hearing the petition . The petitioner doesn’t have to prove many incidents of bribery as the legislators were interested in the illegal practice. It is similar to corruption. The amount of money offered as a bribe doesn’t matter as long as the ingredients of the offense are proved.

Chief Justice Emeritus Odoki Benjamin set out the essential ingredients of bribery in the landmark case of Col. Rtd. Dr. Besigye Kiiza vs. Kaguta Yoweri Museveni supra as follows.

  1. That a gift was given to  a voter
  2. That the gift was given by a candidate or by the candidate’s agent with candidate’s knowledge, consent or approval
  3. The gift was given with the intention of inducing the person to vote for the giver or his candidates or to refrain from voting for a candidate.

Before evaluating the evidence relating to the allegations of bribery, it is important to state that before the legislators came up with bribery as an illegal act, they were aware that worldwide, politicians engage in practices which would put them at an advantage over the other and the most effective way of achieving this political fraud is through money or gift. They were also alive to the glaring fact of poverty stricken peasantry electorates who are easily persuaded by petty bribes resulting into devastating effect on democratic governance. The majority of voters who are peasants do not understand the role of a member of parliament. Consequently the unfair demands placed upon the candidates was foreseen, hence the law on bribery and donations during the campaign period. This court is also fortified by earlier opinions where courts have taken judicial notice of the fact that election contest such as this one which is motivated by the desire to score victory to political power, witnesses may be attracted to peddling deliberate lies.

Justice Musoke Kibuuka in Election Petition No.29/2011 Kasta Hussein Bukenya vs. Bukenya Baliseka Gilbert and Electoral Commission held that “it is peculiarly characteristic of election petitions, that witnesses for a party in an election petition unlike in the ordinary civil suits are often those who were ardent supporters of that party during the elections. They pose a very high propensity and desire to propel success for him or her. Thus the trial for an election petition calls for a judicious inquiry that is not only diligent but also quite sober.”

For the court to set aside an election of a member of parliament, it must have cogent and substantial evidence compelling it to do so. The evidence must show the high probability that the illegal practice was done or illegal act was committed. The court must also be mindful of its constitutional mandate under article 126 where justice is administered on behalf of the people and in the name of the people regardless or irrespective of their social or economic status

 

11.       EVALUATION OF EVIDENCE

I have carefully analyzed and evaluated the evidence in respect of bribery and the submissions of counsel from all parties. It is also trite law that evidence on any fact must be proved by witnesses not from the bar. In case counsel is of the view that a document is a forgery or a signature appearing on the document is a forgery then he needs to prove that suspicion because suspicion however high it may be can never be a basis for a legal decision. If the witness is for the adverse party, counsel is at liberty to cross examine the suspicious witness if counsel is of the view that the witness didn’t actually swear the affidavit evidence in question. By so doing he would help court evaluate the evidence of that witness and determine whether it is credible or not or whether it was fabricated and not authentic.

In the instant case, counsel questioned the signatures of Jimmy Lubaale. I have had the opportunity of looking at the statements of witnesses who came out to support the Petitioner’s case and testified as persons who witnessed the bribery. In the absence of any evidence that these witnesses didn’t actually swear affidavits, which is different from peddling lies, court has not found it prudent to ignore their evidence. This is premised on the fact that the witnesses who do not know the signatures of Jimmy Lubaale cannot be held responsible for the different signature of Jimmy Lubaale appearing on different affidavits. The party that availed witnesses cannot be blamed for the different signature of the person who translated. The Petitioner adduced evidence that was with leave of court subject to cross examination. The 1st respondent chose not to cross examine any.

Nevertheless court has to evaluate the evidence as to its content and not form which authority is derived from the liberal approach of dealing with affidavit evidence in election petitions.

 

On the alleged bribery by Mrs. Ssempa Proscovia and Harriet Mirembe Sarah, which was denied by them in their affidavit, there was no evidence that they were given any money by Mugema Peter Panadol as he is commonly known. I don’t have any cogent reasons to believe the Petitioner’s witnesses on this allegation under paragraphs 8 (a) and (b) of the affidavit in support.

I did not also find any evidence on record as regards paragraph 8 (c) where it was alleged, the 1st respondent bribed voters through his agent Mr. Wakabi Deo, it remains an allegation.

As regards paragraph 8 (d) and (e) the affidavit in support mentions Matovu Sula Twamulabirawo. I suppose these are two different people each of whom was stationed at a different place. Matovu Sula Twamulabirawo was at Living Hope Polling Station while Matovu Rashid Twamulabirawo was at Kasokoso Ward. The evidence of Kakaire Abdu Karim is suspicious because he doesn’t even attach his copy of the National ID.  I have treated it as useless. The affidavit evidence of Nkwanga Hassan, Nabongho Abdu and Lukuungu Suudi does not corroborate each other yet it is in respect of one man Rashid Twamulabirawo Matovu. Even if it is possible for one to move from one place to another to avoid detection, court wasn’t given any evidence to explain moving from one place to another. Paragraphs 8 (d) and (e) are therefore not proved to the satisfaction of court.

Court similarly has not found any evidence in support of the allegation under paragraph 8 (i).

It remained an allegation without a single scintilla of evidence. The allegation under paragraph 8 (f) was that Mr. Alileki Balondemu, the LC1 chairman and NRM chairperson of Nkatu gave money to voters on 18/2/2016 telling them to vote for the 1st respondent .The evidence in support of this claim is contained in the affidavit of Isabirye Davis whose signature on the affidavit is similar to that appearing on his National ID CM9000710579KH. 

His testimony was to the effect that Balondemu was the agent for the 1st respondent and that he witnessed him being assaulted for bribing voters at Iganga High School Polling Station. That he also wanted to compromise him as the agent of the petitioner. He stated that he saw Balondemu at his polling station where he was an agent around 9.00a.m. Mr.  Lukwago Maliki Abdu whose signature on the affidavit was also similar to that of his National Identity card also confirmed that Alileki Balondemu was an agent of the 1st respondent and that even on the day the 1st respondent had a rally at St. Jude Catholic Church in Nkatu Proper, Balondemu was the organizer and he was the one who invited him to speak to them. This was in paragraph 14 of his affidavit. He testified that Balondemu gave him 2,000/= with instructions to vote for the 1st respondent on 18/2/2016, the money was given to him on his way to the voting station. That Balondemu was with Gulooba Bumali Junior.

Gulooba Bumali Junior in his affidavit dated 13/5/2016 which is a genuine signature as it is similar to that appearing on his national identity card corroborated the evidence of Lukwago Maliki Abdu, they were each given shs.2,000/= by Balondemu to vote for the 1st Respondent. He had to make sure that the witnesses who were voters before, parted with Shs.2,000. I have however not regarded the evidence of Namuswa Fatuma because the last part of the affidavit reads Kirabira Rehema and the signature of Namuswa Fatuma appearing on the National ID is different.

Court is not satisfied that Namuswa Fatuma is the one who signed the document and with two names of people appearing on the same document, the evidential value is completely destroyed. No reasonable tribunal can regard it as evidence. If the Registrar of court took interest in the documents, like he is required to do, that affidavit should have never been accepted and admitted as part of the evidence.

The same applies to Counsel for the petitioner. This confirms the kind of haste with which this kind of cases are filed alluded to above. 

Alileki Balondemu denied the allegation to 1st Respondent. While under cross examination, he informed court that he is the Chairman LC1 of the Nkatu Proper and at the same time the NRM party chairman of the area. He informed court that during campaigns, he campaigned for NRM and he was on Mugema’s side. He denied knowledge of the witnesses but being the chairperson LC1 and NRM, court did not believe him. He merely denied and court is convinced that his blanket denial does not necessarily mean he did not know them. However on serious scrutiny of the affidavit of Isabirye Davis from paragraphs 11-14, Balondemu was ejected from the polling station where he was bribing voters. He was not only ejected but even beaten. It is only logical that he changed the location and that explains why he was at a different place at 11 am. Be that as it may, Court is wondering how a person who is got ready handed by police bribing voters is merely ejected from the polling station and left to be at large to continue with his mischief. This could be a result of incompetent police or comprised police or non-vigilance of the opposite party and its agents. There is no evidence that the police took any serious step against him. This does not mean that he did not engage in acts of bribery.

Did he do it with the knowledge of the 1st respondent or with his approval and consent? I highly doubt if the 1st respondent instructed him to engage in acts of bribery at the polling station. Court is convinced that Balondemu was the agent of the 1st respondent because he was not a stranger and advanced interests of his NRM party of which he was the flag bearer but whatever he did on 18/2/2016 was on the frolic of his own as no reasonable candidate would allow his agents to engage in bribery at polling station. Paragraph 8(f) therefore fails.

This leaves me with paragraph 8(g) in respect of Waibi Siragi Abdallah and Mr. Ngobi, Yazid under 8(h). Let me start with Ngobi Yazid. The evidence in support of the paragraph 8 (h) is contained in the affidavits of Muwayi Sadat Idude, Waiswa Balak, Mwondha Moustafa and Kwagala Hairat.

Mwondha Moustafa was a member of the petitioner’s task force. I am therefore taking his evidence with a lot of caution. However Muwayi Sadat Idude stated he was given 5000 by Yazid Ngobi. To test the authenticity of his evidence, court compared his signature on the affidavit with that on his National identity card and found them to be similar. His evidence was in English as his affidavit didn’t need translation .He was not cross examined. Waiswa Balaka’s signature on the affidavit was also similar to that of his National ID.  His document needed no translation.  He was aware of what he stated and stated he was given 2000/=. The same was with Kwagala Harriet. She was given 3000/= the money was for voting for Hon. Mugema Peter and was given on 18/2/2016. Mr. Yazid Ngobi in his affidavit paragraph 4 stated “I was not an agent of Mugema Peter but as a party leader my duties included mobilizing people to support NRM and its candidates and I also campaigned for Peter Mugema as the NRM flag bearer as well as the other flag bearers”.  Agent in simple English is a representative who acts on behalf of the person or an organization.  Agent under the PEA is interpreted to mean by reference to a candidate to include a representative and a polling agent of a candidate. Being the NRM chairperson for Nabidogha prison village and responsible for pursuing the political interest of the party and its flag bearers at grass root level automatically puts him in the Principle–Agency relationship as far as elections are concerned unless it is proved that he campaigned for some other candidate of which he has said he did not. He campaigned for the NRM flag bearer who is none other than Mr. Peter Mugema. He told court that NRM party headquarters sent MONEY to villages with instructions to distribute money to our subjects in the village. This was during the campaign period. He further said Mr. Mugema must have known that money was sent by NRM to villages much as he later on claimed he was not sure whether Mugema knew about the money. He went on to state under oath that “I gave out money while looking for votes for NRM candidates. We were told to give out money and then ask for votes for NRM candidates and Mr. Mugema Peter was the NRM candidate. 

The money that the Petitioner is complaining of is the money that Yazid paid to voters to vote for his candidate the 1st respondent and others. Yazid is claiming he is not sure whether the 1st respondent knew that the NRM party had sent money to give to voters.  The money that was distributed was not the kind of money allowed under section 68(3) of the PEA. Had that been the case it would have come out clearly. It was money given as an inducement to voters. The 1st Respondent and Yazid Ngobi cannot be allowed to divorce now when they were and are still bed mates in the political game. Having a political party that acts in an ethical and legal manner during the electoral process is an effective election integrity mechanism. It reduces attempts to manipulate the process and helps to ensure the accountability of the electoral administrators and other participants. Political parties and candidates participate in an election by conducting a campaign in order to persuade voters to vote for them on the polling day. Running a clean election campaign helps parties maintain their integrity and the integrity of the process. A clean campaign means that they participate fairly addressing on the issues that affect the electorate and abide by the regulation. This doesn’t include distributing money to voters in order to persuade them to vote for a candidate .This by all standards is bribery. The Petitioner’s witnesses who received money from Ngobi Yazid have proved that indeed in the quest to have his candidate go through, he gave money to voters. He advanced the interest of the 1 Respondent with his full knowledge and approval which extended to the 18/2/2016.

The 1st Respondent averred under paragraph 17 of his affidavit in answer to that petition that Ngobi Yazid is the chairman NRM of Nabidogha prisons village. That he knows he didn’t support him because he supported Ngoma Ngima. Court has no reason to believe because after NRM primaries, he was the only candidate with Petitioner. Ngoma Ngima didn’t contest whether the source of money was from NRM headquarters or not it was intended to bribe voters in advancement of his political interest. As mentioned earlier court cannot allow connivance to divorce now for convenience.

In this kind of case it is difficult to establish the sources of the money. It is not even a requirement. What is required to be established and proved is that money was given by the respondent or his agent as a bribe or gift to a voter and the intention was to influence. It is not even a requirement in my view that indeed the voter was influenced but in case it is proved that the giver successfully influenced then those votes are deducted. The intention is what is important, that is why with bribery, the substantial effect provision doesn’t apply. The court only has to be satisfied that the electoral offence was committed.

In view of the above Court is satisfied that Ngobi Yazid was an agent for the 1st respondent, gave out bribes to the witnesses with his knowledge and the intention was to influence the voters to vote for him as the NRM flag bearer.  It was for the benefit of the 1st Respondent. There is no way the 1st respondent can disown his own NRM party chairman for Nabidogha village which is part of Iganga Municipality Constituency. His denial of his support is not honest. He was a known agent. Unlike a polling agent who is appointed in writing under section 32 (2) of the PEA, an agent for purposes of campaigns need not be appointed in writing. The conduct of Ngobi Yazid of bribing voters was done in the name of the 1st respondent and on behalf of the 1st Respondent. The evidence was not controverted and this court has no cogent reason to reject it.

The last allegation of bribery was that effected by Waibi Siragi Abdallah.  First and fore most, his affidavit evidence was expunged from the record for offending the Illiterates Protection Act. This leaves court with his evidence on oath. This scenario was experienced in a case between the same parties under Election Petition Appeal No. 30 of 2011 Mugema Peter Vs Mudiobole Abed Nasser where Justice Remmy Kasule JA held “I conclude on the basis of section 58 of the evidence act and on appreciating the above legal authorities on the point that evidence given to court on oath viva voce under the supervision and superintendence of the presiding judge is proper and valid evidence that the court must consider.

It is up to the presiding court to consider the said evidence together with the fact that the affidavit evidence has been rejected or has been contradicted and then decide what value to put on such evidence.” The allegation is supported by the affidavits of Balaba Juma, Wasoma Hamuza, Mateeka Muzaham and Bazibu Ali. They all had signatures on their respective affidavits with those appearing on their respective national identity cards, proof that they were not forged documents .Bazibu Ali a registered voter at Tawheed Islamic A-M Polling station and a biological son to the Waibi Siraji averred that the 1st respondent visited their home on 17/2/2016 and handed sh.400,000/= to his father. In paragraphs 11-13 of his affidavit he states that he saw Hon. Mugema Peter Panadol pick two bundles of 2000/= notes and handed it to his father and the purpose was to assist him mobilize and facilitate voters the following day to go vote for him. The father also gave him 20,000/= and told him to go and distribute to the youth on the voting day and tell whoever he gives to vote for Mugema Peter. This evidence wasn’t controverted. Wasoma Hamza was given 2000/= by Siraji Waibi together with his friend Mateeka Muzaham where Waibi emphasized that they should not let Hon. Mugema Peter.  I am Mateeka Muzaham corroborated the evidence of Wasoma.  Balama Juma was also given 2000/= by Siraji Waibi.

Siraji Waibi was summoned to be cross examined and much as his evidence was later expunged, at the time he was cross examined, it was on record. The most important evidence is however what he informed court after taking the oath as stated in Mugema Peter case supra. Court critically looked at this witness and saw his demeanor. Without any vigorous or harsh cross examination, he melted slowly from his earlier statements and even asked court to forgive him. Court didn’t look at him as compromised witness who has decided to switch sides like some of the political witnesses do, but a person with a contrite heart. He then clearly explained and even confirmed in  re examination how the 1st respondent drove to his home on 17/2/2016, gave him Shs.400,000/= in 2000 denomination notes and requested him not to let him down .

He in furtherance of the 1ST Respondents request also gave Shs. 20,000/= to his son Bazibu Ali to mobilize the youth. The witnesses who claimed they were given money by Mr. Waibi stated the money was in 2000/= denomination note.  Apart from the discrepancy of the amount given to one Naigaga Betty who claimed was given 20000 while Siraji claimed he paid her 2000/=, all other witnesses confirmed they received 2000 notes from him. Their evidence was not controverted. They were all registered voters and the intention was to influence or induce them to vote for the 1st Respondent.  The 1st respondent in my opinion was shocked at the betrayal by Siraji in court BUT not shocked at the evidence because he had lined him up as one of his witnesses and had secured his affidavits which were full of false hoods in a language Siraji did not understand. The 1st respondent didn’t only act through Siraji who is by all intent and definition his agent because he gave out money to further his interest of bribing voters to vote for him but he personally bribed Waibi Siraji as well. Even if Waibi Siraji had spent all the night moving bribing voters, no witness came up confessing the sin of receiving a bribe and even if Waibi Siraji kept the money to himself, his son witnessed the bribe given to his father by the 1st respondent. Court is satisfied beyond reasonable doubt that money was paid out to voters, including Siraji by the 1st Respondent personally and or through his agents as a bribe with his full consent and knowledge with the sole intention of compromising voters to vote for him.

With due respect to senior counsel Kiryowa I do not agree with him that Waibi’s evidence is not worthy of any credit because court observed the manner in which he testified, his demeanor in court and his evidence was corroborated by that of his son and other witnesses. Affidavit evidence I must state is very weak and can only be tested in cross examination. It is true it can be manipulated but I didn’t find any cogent reason to doubt the evidence of the witnesses who received money from Siraji and the son who witnessed the giving and receiving of the money for the sole purpose of bribing voters. No wonder it was in small denomination of 2000 notes for easy distribution to as many as possible. 

Time for campaigning was over, it cannot be said it was for facilitation.  I do not find any evidence in respect of paragraphs 8 (j) and (k) of defacing and mutilating the posters neither any evidence on violence during the campaign period. They remain mere allegations

The above ground on bribery would dispose off the petition but for future guidance let me resolve the allegation of donation contained under paragraph 5 (b) of the petition contrary to section Section 68 (7) and (8) of the PEA.

Section 68 (7) of the PEA provides: a candidate or agent of a candidate shall not carry on fundraising or giving of donations during the period of campaigning. This is regarded as an illegal practice under section 68 (8) of the PEA. The evidence in support of this allegation was contained in the affidavits of the Petitioner, Nangobi Sarah Favour, Murabiya Namansha, Naigaga Betty, Kasasi Madrine, Osinde Micheal, Nabirye Zurah, Awango Patricia and Mukwana Asaadi.

They all narrated in their affidavits how they attended prayers on 31/12/2015 where all politicians were invited. The prayers were organized by pastor Talemwa of Bethel healing church. Even if court removes the affidavits of Awango Patricia because she didn’t attach a copy of her National ID, Murabiza Rose Namansha for the same reasons, all the remaining witnesses testify that both the petitioner and the 1st respondent attended the prayers. That in the course of the prayers, the Pastor invited the politicians to greet the people and during the greeting, the 1st respondent donated Shs. 300,000/= towards church activities.

Before giving in the donation he asked the petitioner whether he will not take him to court. The Petitioner in his affidavit stated that “before donating the  300,000 I remember very well that Mugema Peter said that he would wish to donate the three hundred thousand shillings for the cost at the construction of the new site but wondered whether I would not take him to court because it is unlawful”. That he told him using a microphone to do what he wanted as long as it was lawful and he returned the microphone to him.

That Mr. Mugema Peter handed the money over to him to transmit to the usher but he declined. He then handed over the money to Osinde Michael. The Petitioner and his witnesses didn’t only hear about the donations but saw the money being handed over to Osinde Michael. Osinde Michael swore an affidavit to the effect that he received the money from 1st respondent he being the usher.

He was present and corroborated what the petitioner stated and the other witnesses. The 1st respondent denied the allegation, CLAIMING he just gave in his offertory like any other Christian.

He stated under paragraph 4 and 5 that while at the cross over prayers, a basket for collection of thanksgiving was placed before the congregation for the members to make their thanksgiving for the year.  That he placed his thanksgiving in the basket just like any other member of the congregation present. Under paragraph 6, he deponed that, “in my address to the congregation, I stressed that this was not a donation and I am aware of the nature of the donations restricted during campaigning period, that I asked Mudiobole whether he understood the nature of the thanksgiving offering during cross over prayers.”

Whereas the 1st respondent stated that he put in his offertory like any other Christian, the pastor who organized the prayers contradicted him. Pastor Talemwa Julius stated that “I know that we gave the politicians an opportunity to greet the worshippers at the cross over prayers and each one talked to the congregation after which they would give their thanksgiving before they left the pulpit. We had a collection basket which was placed on the pulpit for them to give in their offerings and I know that all of them did so. I recall that Mugema peter did ask Mudiobole Abed about his understanding of offering that was being made before he made it.  In particular whether he would not use it as ground for challenging an Election.”

Court is not using the weakness of defense to prove this ground. The petitioner adduced evidence that the 1st respondent offered a donation of Shs. 300,000/= and even asked him whether he will not take him to court. This was in the presence of many Christians or worshipers who had gathered at the cross over including Muslims. The Pastor was strategic. He had a special basket or placed a basket for the politicians at the pulpit and gave them a chance to greet people. Indeed they greeted but Mr. Mugema Peter went beyond the greeting. He talked of an offertory which he wondered whether Mudiobole understood. The speech of Mr. Mugema clearly shows that his offer was not an ordinary thanks giving. Any Christian would know that an offertory does not have to be announced or explained. It is simply dropped in a basket. Either directly or in an envelope. Even if it is tithe or general offertory where envelopes are supplied the amount is between the Pastor, giver and God. In fact in the book of Mathew 6:3 the Bible says “but when you give alms let not thy left hand know what thy right hand does, and to bring it out clearly Mathew 6:1-2 says “take heed that you do not your alms before men to be seen of them otherwise you have no reward of your father in heaven. Therefore when you do give alms, do not sound a trumpet before thee as the hypocrites do in the synagogues and in the streets that they may have glory of men verily I say unto you, they have no reward.”

Those are the wise words from the Lord Jesus Christ. The 1st respondent by announcing his offertory wanted to have the glory of men and women some of whom were of course voters in his constituency. He believed like a hypocrite  hiding behind what he is trying to say was offertory but which this court is saying it was not but a donation to attract or endear himself to the Christians and the Pastor who shepherds many voters.

It has been held that the imminence of an election is relevant in order to determine whether a donation/gift is mere specious and subtle form of bribery.

A charitable donation may be un objectionable so long as no election is in prospect, but if an election is imminent the danger of a gift or donation being regarded as bribery is increased. Justice A.E.N Mpagi Bahigeine DCJ held in the case of Odo Teyebwo Vs  Bassajjabalaba Nasser and The Electoral Commission that sub section 7 enjoins politicians to keep charitable donations and fundraising in abeyance so as not to have a brush with the law.”

It is clear that the 1st respondent gave 300,000 shillings in the viewing of fellow politicians and none of them came out to support him because that was not an offertory. The 1st respondent knew what he was doing and hoped that he would get away with it given his earlier success on the donation of 100,000 shillings. I have read that case between the same parties. The facts in the case can be distinguished from this one.  In the earlier case, the money was given in the 1st respondent’s church and as an active church member, and he was not found in breach of the electoral law.

This time round, it was a clear cut case of a donation and not ordinary offertory. Had it been a thanks giving offertory, nobody not even Mudiobole would have known the amount.  The witnesses to this allegation were independent and not ardent supporters of the Petitioner.

I therefore without any reservations hold that the illegal practice of giving a donation of 300,000/= Shillings at the cross over prayers was committed on 31/12/2015 by the 1st respondent.

I must confess that throughout the Petitioners evidence I have not found any evidence against the 2nd respondent because none of the electoral offences were reported to it or to its officers and they failed to take action. I have no reason to doubt the defense put up by the 2nd respondent.

 

 

12.       WHAT REMEDIES ARE AVAILABLE?

Bribery and giving out donation before or during elections are illegal practices and grounds for setting aside an election under section 61(1) (c).  I am satisfied that the two illegal practices were committed by the 1st respondent.

Section 63 (4) of the PEA provides that “After due inquiry the court hearing an Election Petition may

  1. Dismiss the petition
  2. Declare that a candidate other than the candidate declared was validly elected or
  3. Set aside the election and order a new election.

The Petitioner in his petition under paragraph 7(e) prayed for any other remedy as available under the Electoral Laws as the court may consider just and appropriate.

As a general rule proof to the satisfaction of court of a single act of bribery by the candidate or by his agent with his knowledge consent and approval however insignificant the amount involved might be, is sufficient to invalidate an election. Court is not at liberty to weigh its substantial effect.

Only two candidates contested for Iganga Municipality Constituency Member of Parliament. The person who was declared has been found culpable of engaging in acts of bribery and giving donation during the forbidden time.

Mindful of the enormous tax payers money and the invaluable time spent by all parties involved, including the electorate this court which has the mandate of the people of Uganda has the authority under section 63(4) the PEA, 2005 to declare the Petitioner as the validly elected Member Of Parliament and Direct that the Respondent who was involved in dirty politics vacate his seat in Parliament without incurring extra cost in By Election.

There is no justification for subjecting the 2nd Respondent to the ordeal of conducting fresh elections where the 1st Respondent would be at liberty to contest since the law does not bar him.

In the result;

  1. That the Election of the 1st Respondent as Member of Parliament for Iganga Municipality Constituency is hereby annulled and set aside under section 61(1)(c) of the PEA.

(b)The seat for the Member of Parliament for Iganga Municipality Constituency is       declared to have been won by the Petitioner.

(c)Within the meaning of section 63(6) (c) of the same act, a certificate to this affect is

    hereby made to the Clerk to Parliament and the Electoral Commission.

(d)The Clerk to Parliament and secretary Electoral Commission shall obtain certified

    copies of this judgment and proceed to give effect there to forth with.

(e)I do not find the 2nd respondent and or its officers culpable at all.

(f)  Engaging in acts of voter inducement through bribery and donation is a cancer that  

must not be tolerated in any democratic society. Under normal circumstances political cases should not attract 100% costs but I am afraid that court has no kind words to persons engaged in corrupt tendencies. Consequently the petitioner is awarded costs against the 1st respondent.

I however observed that counsel for the petitioner did not strictly comply with the procedure pertaining to affidavits compelling court to resort to Article 126.   He also prayed for certificate of two Counsel. 

It is granted but they are allowed to 50% only of their costs.  As regards costs between the Petitioner and 2nd Respondent, each party should bear own costs.

 

(g)The 1st Respondent is free to Appeal against the decision of this Court in accordance  

    with rules 29 and 30 of the parliamentary Elections (Election Petition) Rules.

 

 

Margaret Mutonyi

JUDGE

17/6/2016.