Without ignoring the whole range of complaints of non-compliance, court will lay particular emphasis upon the evidence of intimidation,
violence and torture. Court has already come to the conclusion that there was wide spread intimidation, violence and torture
of the Petitioner’s supporters and agents. An election does not constitute a war of guns and sticks. It is a civic
activity. It hinges upon the central concepts of freedom and fairness which constitute a constitutional norm under Article
61 of the Constitution. The totality of the evidence on record supports the conclusion that the first respondent ran his election
campaign as if it was a war. He did so to the extent of even establishing or allowing the establishment of a detention room
in his home for he wanted to force into supporting him. Mr. Lukwago submitted that uses the qualitative test, in this case
and conclude that the overall quality of the election was so low that the election was so low that the election cannot qualify as
free and fair one.
In Kizza Besigye :Vs: Yoweri Museveni Kaguta (Supra) Odoki, C.J. quoted with approval a statement by Grove J, which defined the degree of non-compliance which would justify setting aside the an election.
It was to the effect that the objection must be something substantial. It must be something calculated really affect the result
of the election. The learned Chief Justice wrote:
What is substantial effect? This has not been defined in the statute or judicial decisions. But the cases of Hackney (Supra)
attempted to define what the word Substantial meant. I agree with Grove J. The effect must be calculated to really influence
the result in a significant manner”.
The learned Chief Justice then went to state the evaluation tests for the effect of non-compliance on the election. He stated,
“In order to asses the effect, court has to evaluate the whole process for the election to determine how it affected the result and
then asses the degree of the effect. In this process of evaluation, it cannot be said that numbers are not important just as
the conditions which produce those numbers. Numbers are useful in making adjustment for irregularities. The crucial point
is that there must be cogent evidence direct or circumstantial to establish not only the effect of non-compliance or irregularities
but to satisfy the court that the effect on the result was substantial”.
My own understanding of the above statement is that both the quantitative and qualitative tests can be used in the evaluation process.
I find nothing in the statement to the effect that none of the two tests can be used to the exclusion of the other depending upon
the peculiar circumstances of each case.
In the case of Amama Mbabazi and The Electoral Commission :Vs: Musinguzi Garuga James, Election Petition Appeal No.12
of 2002, the Court of Appeal upheld the judgment of this court where the qualitative test had been applied. This court had
found, as a fact, that on the evidence, that there had been extensive non-compliance with the Provisions and Principles laid down
in the PEA. In my view a similar scenario arises in the instant case. The evidence does establish a generalised and widespread
malpractices constituting non-compliance with the Principles that safeguard a free and fair election.
In the Amama Mbabazi Petition, the difference in the votes was very large. It was 12,456. The qualitative test was applied
in spite of that extensive difference in the votes polled by each of the two candidates owing to the peculiar aspects of the non-compliance
borne out by the evidence before court. In the instant petition, the difference in the votes is a mere 1,056. The Petitioner
had 48.4% while the first respondent polled 51.6%. Thus the difference is hardly 3%. Yet the evidence clearly points
to intensive and wide spread intimidation and violence perpetuated by and on behalf of the first respondent and calculated to affect
the result of the election.
In the circumstances, therefore, court agrees with the petitioner that the qualitative test is most appropriate in the circumstances.
And applying it to the set of facts and circumstances the evidence bears out in this Petition, the words of Mulenga J.S.C, in the
Kizza Besigye :Vs: Yoweri Museveni Kagutta (Supra) become irresistible. The learned judge stated, in respect to the application of the qualitative test alone, “ In my view, for the petitioner
to succeed in that way, the court would have to find that the only irresistible inference to be drawn from the evidence on the several
aspects that constituted non-compliance is that the non-compliance affected the result of the election in a substantial manner.” That is the irresistible conclusion that this court draws from the evidence before it in this petition.
Whether Any I illegal Practice Or Election Offence was Committed by the First Respondent Personally or by his Agents with His knowledge Consent or Approval
The petitioner, in paragraph 7 of the petition, sets out seven allegations relating to illegal activities or election offences alleged
to have been committed either by the first respondent personally or by his agents with his knowledge and consent or approval.
Court understands that the petitioner abandoned the allegation relating to the first respondent being in possession of voters’
cards and ballot papers, which is contained in paragraph 7(d) of the petition. I will now, very briefly, analyse the evidence
before court with regard to each allegation. I will follow the order in which both learned counsel presented their submission
on those allegations.
Use of Government Resources.
The petitioner alleges that the first respondent used two government vehicles during his campaigns. The vehicles are named
as Mitsubishi Pajero, No. UG. 0025B and Toyota Double Cabin, No. UG 0038B. He also alleges that the first respondent used,
for the same purpose, government employees in the form of armed escorts and drivers as well as guns contrary to section 25 of the
As to the allegation of use of government personnel and guns, court dismisses it right away aw there is no evidence indicating who
the drivers of the alleged vehicles were or that they were under government pay. Similarly there is no evidence to show that
the guns which were used by those campaigning for the first respondent, such as Lt. Mulindwa Sulambaya or Pastor NRM, were guns owned
by government. There was no evidence showing who the drivers of the alleged two vehicle were and whether they were government
employees. These potential evidential facts cannot merely be assured.
Regarding the two vehicle, the first respondent in his two affidavits, R1 A1, paragraphs 14, 15 and 16 and in R1 A2, paragraphs 3
and 11, denies using any of them for campaign purposes. He admits however that Motor Vehicle UG 0038B was in his keeping during
the campaign Period having been attached to him by the NRM Secretariat for his private home use. He avers that Motor Vehicle
UG 0025B was not in his possession or use.
In respect of motor vehicle UG.0025B one George Ebola, avers in affidavit R1A.29, that for the whole of the campaign period he was
in the possession of that vehicle in Gulu. He was Deputy Director of Economic Affairs at the NRM Secretariat. Court has
a lot of reservations as to the name of the deponent to this affidavit and whether he actually swore the affidavit or not.
However, the evidence produced by the petitioner to prove that this particular vehicle was used by the first respondent for campaign
purposes is itself inadequate to prove the allegation to the satisfaction of court.
As to the use of motor vehicle UG 0038B, various petitioner’s witnesses have testified to its use by the first respondent during
the campaigns. The Petitioner avers that he reported the use of the two vehicles to the Minister of Internal Affairs, the Inspector
of Police and the Returning Officer, Iganga, but got no answers. There is exhibit P3, the minutes of the meeting at the
E.C. headquarters on 16th February, 2006 which indicate that the question of use of government resources was on the agenda and the E.C. was to check on the
alleged misuse. The minutes supports the petitioner’s averment that he complained about the use of motor vehicle UG.
0038B. The Petitioner produced exhibit, P2.4 to 7., photographs which he says he personally took of motor vehicle UG. 0038B,
now bearing a different number plate, 097 UDQ. This was after the meeting at the EC headquarters on 16th February, 2006. He also produced exhibit P10, a computer print out by Uganda Revenue Authority showing the particulars of motor
vehicle 097 UDQ. The name of the owner of that vehicle is Hon. Kirunda Kivejinja. The vehicle is a Mitsubishi Min
bus. The Petitioner’s allegation is that after the EC was directed to check the misuse of vehicle No. UG. 0038B, the
Petitioner plucked off the government number plates and put on the number plates of his mini bus.
Mr. Nkuruziza, learned counsel for the first respondent has attempted to discredit the probative value of the 4 pictures in exhibit
P2.4-7. He submitted that the pictures do not show that the vehicle was a Pick-Up double Cabin. He also submitted that
the number plates could be mere cardboard and not genuine number plates. Court is satisfied that the vehicle in question is
a double cabin. It is also satisfied that the number plates, 097 UDQ are genuine number plates, for anything required, by law,
to be done, is presumed to have been properly done until the contrary is shown. There is no evidence before court to lead to
the conclusion that number plate 097 UDQ is not genuine.
The first respondent averred that he sold his Min bus 097 UDQ to one George Taliyiwula of Buwagi Trading Centre in May, 2005 and,
therefore, the vehicle was not in his keeping during the campaign period. Taliyiwula has swore affidavit R1A.30 supporting
the averments of the first respondent.
Court finds the averments of both the first respondent and Taliyiwula, on this point untruthful and rejects them. Taliyiwula
has presented neither sale agreement nor registration book. His averment that he could not trace them cannot be believed.
Lie. In light of exhibit P10, the first respondent cannot disclaim ownership of motor vehicle 097 UDQ for in Uganda a motor
vehicle registration card is a document of title. Fred Kamanda :Vs: Uganda Commercial Bank, SCCA No.17 of 1995. Motor vehicle 097 UDQ, was still owned by the first respondent by 16th March, 2006 when exhibit P10 was made by URA.
Lastly, there is exhibit P6, a report by the O/C Election Offences squad in respect of Bugweri county. It is dated 25th January, 05. The relevant part of the report is in paragraph 4.1 of the report. It reads as below:
“The complainants, who are drama artists were hired by Parliamentary candidate Kirunda Kivejinja to entertain people at his
rally in Lubira village on 22/01/06. They were travelling back in a white double Cabin Pick Up number UG 0038B provided by
the candidate when FDC supporter surrounded the vehicle at Idudi while flashing the FDC sign to the occupants. After a struggle,
the driver managed to manoeuvre his way and drove to Idudi Police Post, directed the occupants off with their musical instruments
and sped off.”
Mr. Nkurunziza, learned counsel for the first respondent has objected to the admission of exhibit P6 of the contacting upon its contents.
He says it offends the rule against hearsay. Counsel has relied upon a quotation by Karokora J.S.C., In Major General D. Tinyefuza :Vs: Attorney General, Constitutional Appeal No.1 of 1997, from Phipson on evidence, 10th Edition, at page 273, as set out below:
“Oral or written statements made by persons who are not parties ad are not called as witness are inadmissible to stat the truth
of the matter stated.”
It appears to court that there is a clear distinction between the statement that was before the learned justice of the Supreme
Court and the report by the Police Election Squad, before this court. The statement before the Supreme Court was a newspaper
report, which is inadmissible. The police report, before this court, is a copy of a Public document. It is certified
copy by the C.I.D. It is admissible under section 64 (i) (e) and 73 (a) (iii) of the Evidence Act, Cap.6.
The Petitioner has, therefore, proved to the satisfaction of this court that the respondent used motor vehicle UG 0038B for
the purposes of campaigning contrary to section 25 (1) of the PEA. He committed an election offence.
The Petitioner alleged in paragraph 7(a) of the Petition that the first respondent bribed voters contrary to section 68 (1) of the
The incidents of the alleged bribery contained in the affidavits in support and the denials contained in the affidavits in rebuttal
are simply too many for court to analyse them one by one. That would make this judgment unmanageably too long. Court
will, therefore, analyse evidence in relation to only three of them. Most of the rest, although the averments may be true,
there is no evidence to show that the money or item claimed to have been given was given with the knowledge and consent or approval
of the first respondent.
The first incident is testified to by Katimbo Amudan, affidavit PA4.1. According to this witness he was the Chairperson
LC.1 of Naitundu B. He was also the Chairperson of NRM in that village. He averred that during the campaign period but
towards election day, the first respondent went to his home and handed over to him 5 bags of cement and 2 taplins. The firs
respondent instructed the witness to give the taplins to the elders (Bataka) of Naitunda B and the 5 bags of cement to the save Dees
of Naitundu A, asking them to vote for the first respondent in consideration, which the witness did.
The same witness avers that on 20th February, 2006, the first respondent campaigned in Kigulamo. On his way, he stopped at Naitundu and greeted the people.
He requested to know who the woman leader was. The witness saw the first respondent give shs. 20,000/= to the woman leader,
Eflance Wakabi shs. 20,000/= and heard him telling her to distribute it to the women asking them not to jail him on polling day.
The same witness avers that on the same day, at a rally at Naitundu Primary School, the first respondent gave shs. 30,000/= to three
different women clubs in the area (each 10,000/=) telling the members not to let him down on polling day.
Furthermore, on 22nd February, 2006 at about 6.00 p.m., the witness received shs. 50,000/= from the first respondent through Hajji Magoola. The
witness used the money to purchase salt which he and the 18 people belonging to the campaign group for the first respondent distributed
to 95 homes in Naitundu B throughout the eve of polling day.
The averments of this witness have been rebutted by the first respondent Hajji Magoola, Eflance Wakabi and others.
Mr. Nkurunziza submitted that court should not believe this witness because it does not appear logical that the first respondent
would have sent a Moslem for bribing the savedees and not a fellow savedee. Court does not agree. The witness was the
L.C.1 chairperson. He was also the NRM Chairperson in the village most probably he was the closest confident that the first
respondent could employ for such mission. Besides he was a member of the “group”. He was in charge of 18
men he had recruited for training. The savedees or elders have not rebutted the witness’s averments. Since this
witness was an NRM supporter and vore or less an insider in the campaign build up of the first respondent, and since there is no
evidence to show any reason why this witness should lie about his own party’s candidate, court believes his evidence.
The next witness is Juma Kapado. His affidavit is PA2.5. He was Vice Chairperson LC1, FDC of Buganga, Nawangega.
He avers that his LC.1 Chairperson, one, Twahili Mundiba Isabirye asked him to mobilise 10 people to go and meet the chairperson
at his home. he mobilised them. The chairperson told them that it was the first respondent who had asked him to mobilise
them and that he was going to give them money to persuade them vote for him. The following day, 22nd February, 2006, met them at the chairperson’s home and asked them to shift from supporting Katuntu to supporting him.
He gave the chairperson shs. 300,000/= saying that should he loose the election, he would arrest all of them. The witness and
each of the 10 persons he had mobilised received 5,000/=. The balance was to be distributed out to voters.
The averments are rebutted by the first respondent. Court notes that this witness was an EDC Official. His evidence would
require corroboration. There is none. Neither of the 10 persons he names as mobilised by him and who shared in the 300,000/=
has sworn any affidavit to support his averments. He does not know whether the balance of 250,000/= was distributed to voters
and by who. Court is therefore, is not satisfied that the incident is proved to its satisfaction.
Use of Wrekless And Malicious Statements C/s 22 (5) and (b) of PEA
Court has analysed and elaborated the evidence on record with regard to his allegation. It agrees with learned counsel, Mr.
Nkurunziza that it is not proved to its satisfaction because the evidence does not show that the statements complained of were not
allegedly made on private electronic media as subsection 5 of section 22 requires.
Interfering With Electioneering Activities of Other Persons C/s 24(b) of PEA.
Court will not set out the evidence in support or in rebuttal of this allegation. It has already done so when dealing with non-compliance.
Section 24 (b) prohibits any person before or during an election, for purposes of effecting or preventing the election of a candidate,
either directly of indirectly, to organise a group of persons with the intention of training the group in the use of force,
The evidence on record is overwhelming that the first respondent did exactly that with groups trained on his behalf by Afande Kirya,
Lt. Mulindwa alias Sulambaya and Yahaya alias Pastor NRM. The groups’ activities testified to by numerous witness louder
than words as to the purpose for which they were trained. Court has not option but to conclude that that the election offence
unde4r section 24 (b) of the PEA was committed by the first respondent.
Undue Influence C/S 80 (1) (a) & (b)
The evidence on record, which court shall not repeat as much of it has already been analysed with regard to the issue on non –
compliance with the principles in the PEA, Proves to the satisfaction of this court, that the first respondent committed the election
offence of undue influence C/S 80 (1)(a) & (b). The affidavits of Baligeya Milton, Wakibi John and Najib Waisswa, Ali Kakooza
and others which court has already accepted contain evidence relevant to this allegation.
Court, therefore, answers issue number three in the affirmative. The first respondent, indeed, committed an illegal Practice
and Election offences.
The Petitioner has proved, to the satisfaction of court, some of the allegations made by him in the petition. Accordingly, the
petition succeeds as against the first respondent. However, it is disputed as against the second respondent. Court makes
the following orders:
The election of the first respondent as M.P., Bukooli County Constituency, is annulled;
The Parliamentary seat for Bukooli County Constituency is declared vacant;
As between the Petitioner and the second respondent, each party shall bear its own costs.