(CORAM: TSEKOOKO, KATUREEBE, OKELLO, TUMWESIGYE,
KISAAKYE, JJ. S.C.)
HON. SITENDA SEBALU ::::::::::::::::::::::::::::::::::: APPELLANT
HON. SAM K. NJUBA
2. ELECTORAL COMMISSION :::::::::::::::::: RESPONDENTS
[Appeal from the Judgment of the Court of Appeal at Kampala (S. G. ENGWAU, C.N.B. KITUMBA and C. K. BYAMUGISHA, JJ.A) dated 1st June 2009 in Election Petition Appeal No. 1 of 2008.]
Constitutional law – election petition – whether elections were conducted in line with the law – whether several voters were de-franchised – whether some voters’ names were struck out of the voter’s register – whether there was bribery of voters and if so by who- whether prohibited persons were procured to vote – whether there was intimidation of voters – whether there was multiple voting- Declaration of results Forms – whether failure to
Appellate court – duty of second appellate court-
The appellant was one of the contestants in a parliamentary election in 2006. He lost to the first respondent with a margin of 23 votes. He unsuccessfully petitioned the High Court for nullification of the elections among other things. Before petitioning the high court, however, he had petitioned the chief Magistrate for a vote recount. The Supreme Court while upholding the decisions of the lower courts, dismissed the appeal with costs.
This is a second Election Petition Appeal that was filed by Sitenda Sebalu, the appellant, against Hon. Sam Njuba, the first respondent and the Electoral Commission, the second respondent, (hereinafter referred to as the 1st and 2nd respondent respectively). The appellant appealed from the judgment of the Court of Appeal which dismissed his first Election Appeal on 1st June, 2009, with costs to the respondents.
The background to this Appeal is that on 23rd February 2006, Parliamentary general elections were held nationwide on the same day as the Presidential Elections and the elections for the District Women Members of Parliament. The appellant contested with the 1st respondent and one Charles Kiwanuka for the Member of Parliament seat for Kyadondo East Constituency, Wakiso District. The 2nd respondent organized these elections and declared the 1st respondent the winner. According to the results, the 1st respondent polled 17,743 votes, while the appellant and Charles Kiwanuka polled 17,720 votes and 16,114 votes, respectively.
Being dissatisfied with the outcome of these elections, the appellant petitioned the High Court seeking nullification of the election on the following grounds:-
(i) The elections were carried out in a way that did not comply with the law leading to substantial negative effect on the results.
(ii) Several voters were de-franchised.
(iii) Striking out of voters from the voter’s Register.
(iv) Bribery of voters to vote the wrong way.
(v) Procuring prohibited persons to vote.
(vi) Intimidation of the voters
(vii) Voting more than once.
On November 24th 2006, the appellant filed a second supporting affidavit in support of his Petition. In this Affidavit, the appellant alleged additional election malpractices at the Kireku 2 A.M. Namanve Railway polling station and at the Kireka ‘B’ St. Stephen polling station. The appellant subsequently dropped his claims with respect to the Kireku 2 A.M. Namanve Railway polling station.
The specific allegations of election malpractices in respect of the Kireka ‘B’ St. Stephen polling station were that the presiding officer, Kirwana Ibrahim, had failed to declare the results of the voting for the Parliamentary seat on the prescribed Declaration of Results Form for a Directly Elected Member of Parliament and had instead declared the results on a Declaration of Results Form for a District Woman Member of Parliament (hereinafter referred to as the non-prescribed DR Form) which had been provided for training purposes only.
The appellant also alleged that the results that the 2nd respondent declared at the Kireka ‘B’ St. Stephen polling station to the effect that the appellant had obtained 150 votes, while the 1st respondent and Charles Kiwanuka had polled 178 votes and 143 votes, respectively were the wrong results. He further averred that the correct results for this polling station were actually declared on the prescribed Declaration of Results Form No. 18168 by the presiding officer, Kirwana Ibrahim on Election Day, in the presence of his agent, Moses Wasswa Muwonge, and were as follows:
Sam Njuba (1st respondent): 143 votes
Charles Kiwanuka: 178 votes
Sitenda Sebalu: 150 votes.
The respondents contended that although a non-prescribed DR Form was used to declare the results at Kireka ‘B’ St. Stephen polling station, the results that were declared on the Election Day were indeed the results of the voting that had been held at that polling station.
The Election Petition was heard by Justice Anna Magezi, who dismissed the Petition, and ordered each party to meet their respective costs. Being dissatisfied with this decision, the appellant appealed to the Court of Appeal relying on six grounds of appeal. Only one main issue was framed for the Court’s determination, that is:
“Whether the non-compliance with the Parliamentary Elections Act (17/2005) in the declarations of Results at Kireka `B’ St. Stephen Polling Station substantially affected the results in Kyadondo East Constituency.”
The Court of Appeal dismissed the Appeal with costs to the respondents. The appellant then lodged this second Election Petition Appeal before this Court, relying on five grounds which are reproduced later in this judgment.
The appellant sought for several orders from this Court. First, he prayed to this court to set aside the judgment and orders of the Court of Appeal which upheld the decision of Magezi A, J. Secondly, he prayed that this Court declare him the validly elected Member of Parliament for Kyadondo East Constituency, and for a declaration that the 1st respondent was not validly elected as a Member of Parliament for Kyadondo East Constituency. Lastly, in the alternative, he sought for an order that the election in Kyadondo East Constituency be set aside.
The appellant was represented by Mr. Bakiza and Mr. Semuyaba, while the 1st respondent was represented by Mr. Nsibambi. The 2nd respondent was represented by Ms. Christine Kaahwa, a Principal State Attorney from the Attorney General’s Chambers.
Counsel for the parties filed written submissions in support of and against the appeal. The first and second respondents filed joint written submissions. While the appellant argued each ground separately, the respondents argued Grounds 1, 2 and 3 together and Grounds 4 and 5 separately. I propose to consider grounds 1, 2, and 3 separately and ground 4 and 5 together.
Ground 1 of the appeal was framed thus:
“That the learned Justices of Appeal erred in law and fact when they failed to properly re-appraise and re-evaluate the evidence before them and found that the Election at Kireka B St. Stephen Polling Station did contravene Section 50 of Parliamentary Elections Act but as there were no properly declared and dully transmitted results in accordance with that section they failed to annul the results at the polling station which would have substantially affected the entire election in Kyadondo East Constituency.”
Counsel for the appellant made several arguments in support of Ground 1. First they contended that the Court of Appeal erred in law and fact in failing to annul the results of Kireka B St. Stephen after it found that the declaration of the results of the elections at Kireka `B’ St. Stephen polling station did not comply with section 50 of the Parliamentary Elections Act. They contended further that this affected the election results substantially and that this should have formed a good basis for the Court of Appeal to set aside the entire election results.
Counsel for the appellant also submitted that since the non-prescribed DR Form was neither signed by the Candidate’s polling agents nor properly transmitted, the declaration and transmission of results was not done in accordance with section 50 of the Parliamentary Elections Act and that both the declaration and transmission were flawed.
Counsel for the appellant further submitted that paragraph 10 of George Ntulume, the Returning Officer’s Affidavit which was to the effect that the non- specified DR form was not brought to his attention was tantamount to an admission by the Electoral Commission that the presiding officer at Kireka B. St. Stephen polling station, Ibrahim Kirwana had failed to transmit the results in accordance with sections 47-59 of the Parliamentary Elections Act.
Counsel for the appellant further contended that the presiding officer of Kireka B. St. Stephen polling station failed to comply with the legal requirement to make 5 copies of the Declaration of Results Form and to transmit them in accordance with section 50(1) of the Parliamentary Elections Act
Furthermore, the appellant’s counsels also submitted in support of Ground 1 that the presiding officer of Kireka B. St. Stephen polling station had also failed to comply with the requirement of sealing the ballot box with one duly signed Declaration of Results Form.
Lastly, appellant’s counsel contended that the Court of Appeal erred in fact and law when they held that the carbon copy DR Form Serial No. 18168 exhibited by the Appellant was not an authentic DR Form.
Based on all these various submissions, Counsel for the appellant argued that the only logical conclusion the Court of Appeal should have reached was to find that no results were properly declared at Kireka St. Stephen B. Polling Station. Counsel cited and relied on several cases including Col. (Rtd.) Dr. Besigye Kizza v. Museveni Yoweri Kaguta & Electoral Commission, Presidential Election Petition No. 1 of 2001 (Supreme Court), Rtd. Col. Dr. Kizza Besigye v. Electoral Commission & Yoweri Museveni, Presidential Election Petition No. 1 of 2006 (Supreme Court), Kakooza J. B. v. Electoral Commission & Yiga Anthony, Election Petition Appeal 11 of 2007 (Supreme Court), and Kayongo Abasi v. Wandyaka, E/P 27 of 2006 (High Court) in support of their claims.
Counsel for the respondents opposed the appeal and supported the findings and decisions of the Court of Appeal. They submitted that the learned Justices of Appeal properly re-appraised the evidence on record. They argued that the appellant’s case as borne out in the Petition and the accompanying Affidavit of 18th May 2006 did not raise the complaint of the declaration of the results of Kireka `B’ St. Stephen polling station on a non-prescribed form, which was now the basis of this appeal. They further contended, as they had similarly done in the Court of Appeal, that the complaint about the results of the Parliamentary elections of Kireka `B’ St. Stephen was an afterthought, which was introduced by the appellant almost 6 months after the Petition was filed. They further argued that the appellant’s supplementary Affidavit filed on 28th November 2006 did not validly introduce the complaint about the results of Kireka `B’ St. Stephen, as this was a new issue and not evidence in support of the grounds which were raised in the appellant’s Petition.
In the alternative, the respondents argued that the appeal should fail because the appellant failed to discharge his burden of satisfying the Court that such non-compliance had affected the result of the entire election of Kyadondo East Constituency in a substantial manner as required by section 61 of the Parliamentary Elections Act (Act 17 of 2005 as amended).
I will now turn to the law governing this Appeal. This Petition is governed by the Parliamentary Elections Act. The appellant based his arguments under Ground 1 on the 2nd Respondent’s failure to comply with section 50 of this Act. The section provides as follows:
50. Declaration of results forms.
(1) Each presiding officer shall fill the necessary number of copies of the prescribed form for the declaration of results as follows:-
(a) One copy of the completed form shall remain attached to the report book referred to in paragraph (c) of subsection (1) of section 6;
(b) one copy shall be retained by the presiding officer for display at the polling station;
(c) one copy shall be enclosed in an envelope supplied by the Commission for the purpose, sealed by the presiding officer and delivered to the nearest result collection centre prescribed by the returning officer, together with the report book, for transmission to the returning officer;
(d) one copy shall be delivered to each of the candidates’ agents or, in the absence of those agents, to any voters present claiming to represent the candidates; and
(e) one copy shall be deposited and sealed in the ballot box.
(2) The presiding officer shall, in the presence of the candidates and the candidates’ agents as may wish to be present, seal the ballot box with a seal provided for the purpose by the Commission.
(3) The sealed ballot box referred to in subsection (2) shall contain the following items:-
(a) One duly signed declaration of results form;
(b) The ballot papers received by each candidate, tied in separate bundles;
(c) The invalid ballot papers, tied in one bundle;
(d) The spoilt ballot papers, tied in one bundle;
(e) The unused ballot papers; and
(f) The voters roll used at the polling station.
(4) The declaration of results form referred to in subsection (1) shall be signed by the presiding officer and the candidates, or their agents as are present and wish to do so, and the presiding officer shall there and then, announce the results of the voting at that polling station before communicating them to the returning officer.”
The above section elaborately spells out the role of a presiding officer not only in respect of filling the results declaration form, but also in respect to sealing the ballot box. The section also details out what the contents of the ballot box should contain and requires the presiding officer to announce the results of the voting at that particular polling station immediately after he/she has signed the form together with either the candidates, or their agents who wish to do so.
Section 61 of this Act, on the other hand, sets out the grounds on which the election of a candidate as a Member of Parliament can be set aside. It provides thus:
(1) 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 the court-
a) Non-compliance with the provisions of this act relating to elections, if the court is satisfied that there has been failure to conduct the election in accordance with the principles laid down in those provisions and that the non-compliance and the failure affected the results of the election in a substantial manner;
b) that a person other than the one elected won the election; or
c) that an illegal practice or any other offence under this Act was committed in connection with the election by the candidate personally or with his or her knowledge and consent or approval; or
d) that the candidate was at the time of his or her election not qualified or was disqualified for election as a Member of Parliament.
(3) Any ground specified in subsection (1) shall be proved on the basis of a balance of probabilities.
Learned counsel for the appellant did not refer to this fundamental section in their written submissions. I agree with the submissions of counsel for the respondents that section 61 of the Parliamentary Elections Act is the applicable law in determining whether the elections of Member of Parliament for Kyadondo East Constituency should be set aside.
The appellant satisfied the trial judge that there was non-compliance with section 50 of the Parliamentary Elections Act to the extent that a non-prescribed DR form was used to record the results of the voting held at the Kireka ‘B’ St. Stephen polling station. He however failed to discharge his burden of proving that such non-compliance at this one polling station, (i.e. Kireka ‘B’ St. Stephen Polling Station) had affected the entire result of the elections held for Member of Parliament for Kyadondo East Constituency in a substantial manner, to warrant the results of these elections to be set aside. This was borne out in the judgment of the learned trial judge, where she clearly held that:
“The declaration on the Women DRF did not substantially affect the results because the Petitioner’s number of ballots would not have changed since he did not win and that there had been no substantial effect occasioned by the faulty declaration of results merely through the use of a non-prescribed form. The majority of the electorate in the Constituency was not disenfranchised”
In Rtd. Col. Dr. Kizza Besigye v. Electoral Commission and Museveni, Presidential Election Petition No. 1 of 2006, this Court considered section 59 of the Presidential Elections Act (16 of 2005), which provides for the conditions that a petitioner must satisfy before the results of a Presidential election can be set aside. As Odoki, C.J. rightly held:
“… Section 59(6) of the Presidential Elections Act anticipates that some non-compliances or irregularities of the law or principles may occur during an election, but an election should not be annulled unless they have affected it in a substantial manner”.
He went on to further note that:
“Courts are therefore enjoined to disregard irregularities or errors unless they have caused substantial failure of justice. ... The fundamental or primary consideration in an election contest should be whether the will of the people has been affected.”
As the section under interpretation is similar in wording to section 61 of the Parliament Elections Act, this Court is bound to follow the same principles when considering whether it should uphold or dismiss an election petition challenging results of Parliamentary elections.
Turning to this case, the burden of proof lay on the Appellant to satisfy the court that the non-compliance with the Parliamentary Elections Act (17 of 2005) had affected the results of the election of the Kyadondo East Constituency in a substantial manner. (see Rtd. Col. Dr. Kizza Besigye v Electoral Commission & Yoweri Museveni, Presidential Election Petition No. 1 of 2001(supra).
Similarly, in Kakooza John Baptist v. Electoral Commission & Yiga Anthony Election Petition Appeal No. 11 of 2007, this Court upheld the results of elections after the Appellants failed to satisfy this court that the irregularities and the violations of the law that they had proven had affected the election results in a substantial manner which is the required standard for setting aside results of Parliamentary elections.
The appellant’s evidence challenging the results of the voting which took place at the Kireka ‘B’ St. Stephen polling station was rejected by both the trial judge and the Court of Appeal. The net result of the rejection of the appellant’s evidence was that the results of the voting which had taken place at the Kireka ‘B’ St. Stephen polling station and which were declared by the presiding officer on the non-prescribed DR Form were left to stand.
Thirdly, the appellant claimed that the results reflected on the carbon copy of DR Form No. 18168 were indeed the ones that were announced by the presiding officer and that his polling agent got his copy there and then and passed it on to him within a few days after the elections. If this was indeed true, then it becomes difficult to explain why the appellant did not include this ground in his Petition and waited until six months later to raise it.
It is important to note that there were 127 polling stations in the entire Kyadondo East Constituency. Out of these, the appellant complained of results in only one polling station (Kireka ‘B’ St. Stephen) and abandoned all his other complaints as outlined in his Petition. The evidence adduced by the appellant in support of his Petition were two Affidavits in support of his Petition sworn on 18th May 2006 and 24th November 2006, with its annexures and the one which was sworn by his polling agent, Moses Wasswa Muwonge.
The presiding officer, Kirwana Ibrahim deponed an affidavit on 11th March 2008. In paragraph 15 thereof, he stated that he sealed the envelope containing the results in the presence of Wasswa Muwonge and took them to the Parish Supervisor. The appellant, on the other hand, led no evidence to show how the results of Kireka ‘B’ St Stephen were transmitted by the presiding officer to the nearest collection centre as required by section 50 of the Parliamentary Elections Act. This being the case, I find no basis for the appellant’s claim that the Court of Appeal ever found that there were no duly transmitted results.
Furthermore, the other claims of non-compliance which the appellant raised under this Ground were neither pleaded in his Petition and his supporting affidavits. The appellant never raised or argued these issues during the hearing of the petition to show any other non-compliance with the rest of the provisions of section 50 of the Parliamentary Elections Act. He cannot therefore raise them now during this second appeal as this court cannot entertain matters that were not argued and decided upon by the Court of Appeal. This Court is a second Appellate Court and its duty is to determine whether the first Appellate Court re-evaluated the evidence on record and properly considered the evidence from which the Appeal arose. This is the law as was stated by this Court in Kifamunte Henry v. Uganda S.C. Criminal Appeal No. 10 of 1997  KALR 50 at p.57.
Secondly, the last five arguments that the appellant raised in support of this ground were actually not related to the essence of this ground of appeal, which focused on the Court of Appeal’s failure to annul the results of Kireka ‘B’ St. Stephen elections. I have therefore found no merit in the appellant’s claims and arguments made in this respect.
I find that the Court of Appeal properly re-evaluated the evidence on the record and correctly upheld the decision of the trial judge. Ground 1 therefore has no merit and should fail.
Ground 2 of the Appeal is framed as follows:
“The learned Justices of Appeal erred in law and fact when they relied on a non-prescribed form of Uganda Martyrs Kyaliwajjala Polling Station which was not in issue at the trial at all and none of the parties to this Appeal had opportunity to adduce evidence on it by way of affidavits.”
The appellant argued that the Court of Appeal erred in law and fact when it relied on the fact that a similar non-prescribed form had been used to declare the results of Uganda Martyrs Kyaliwajjala polling station. They argued that the results of this polling station were never in issue at all during the trial of the petition and that none of the parties ever raised a counter or cross- petition or adduced evidence on this issue. Counsel for the respondents supported the decision of the Court of Appeal.
I do not agree with the submissions of counsel for the appellant. A review of the record of appeal shows that the appellant was actually cross-examined on this issue. The relevant part of the record reads as follows:
“Polling station Uganda Martyrs Kyaliwajjala used a Woman Representative form to give results. I never complained on the use of the form. …. Kyaliwajjala used District Women Representative …”
Hence, although the appellant chose not to raise the use of a non-prescribed DR Form for the Uganda Martyrs Kyaliwajjala polling station, the respondents brought this issue out during their cross-examination of the appellant. The appellant’s response became part of the court record.
Secondly, Uganda Martyrs Kyaliwajjala was one of the polling stations in Kyadondo East Constituency for which the appellant was seeking a court order to set aside the results for the entire constituency on grounds of non-compliance with the laws regarding declaration of results. Therefore, all evidence alleging or proving any mal-practice or non-compliance which was brought to the attention of the court was relevant. This being the case, I find that the Court of Appeal did not err in considering the use of a similar form to that one used at Kireka ‘B’ St. Stephen, at Uganda Martyrs Kyaliwajjala polling station. Similarly, I do not agree with the appellant’s contention that the Court of Appeal relied on the use of this form in reaching the decision that it did. I have found no merit in this ground and it ought to fail.
I now turn to Ground 3 of the Appeal which is framed as follows:
“The learned Justices of Appeal erred in law and fact by relying on the evidence of Salongo Bwabye, the Chairman of the Council of Kireka B Zone L.C. 1 as a voter who had no official capacity to verify results at Kireka B St. Stephen Polling Station.”
Counsel for the appellant attempted to point out what he considered inconsistencies and the untruthfulness in the evidence of the 1st respondent. Counsel contended that the evidence of Salongo Bwabye and the DEMGROUP Report had no probative value, first because Ssalongo Bwabye was neither a duly appointed Polling Agent of DP nor its official spokesperson and secondly, that he was a partisan witness.
Appellant’s counsel also argued that the DEMGROUP report had no probative value because it was not adduced by its authors and there was no evidence to show that it had been filed with the Electoral Commission in order for it to become a public document. The appellant made further submissions on the credibility of the