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Peter Nyombi v Muruli Mukasa and Another (Election Petition No. 06 of 2001) [2001] UGHC 1 (1 January 2001)
.RTF of original document
THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
ELECTION PETITION NO. 06 OF 2001
PETER NYOMBI :::::::::::::::::::::::::::::::::::::::::PETITIONER
VERSUS
1.
MURULI MUKASA
2.
THE ELECTORAL COMMISSION ::::: RESPONDENT
BEFORE HON. MR. JUSTICE GIDEON TINYINONDI:
JUDGEMENT
On 26/06/2001 Parliamentary Elections were held in Nakasongola Constituency, Nakasongola District. The 1st Respondent and Petitioner were the only two candidates. The 1st Respondent emerged and the 2nd Respondent declared him the winner with 21,299 votes against the Petitioner’s 12,523.
The Petitioner was aggrieved by and dissatisfied with the total results of the election. He petitioned alleging: -
“(a) that the election was not carried out in accordance with the provisions of the Parliamentary Elections Act, 2001 because
there were numerous malpractices and substantial non-compliance with the law that substantially affected the result and rendered
the whole electoral process a nullity.
(b)
the Petitioner and not the 1st Respondent won the election on the 26/06/2001.
(c)
The 1st Respondent personally and/or through his agents and supporters with his knowledge and consent committed several illegal practices
and offences in connection with this election before and during the election day.”
The Petitioner alleged the following to be the PARTICLUARS OF ILLEGAL PRACTICES:
“(a)
The 1st Respondent and/or his agents with his facilitation and/or knowledge had his people vote more than once at various Polling Stations.
(b)
Bribing voters cards by the 1st Respondent and/or through his agents to vote in favour of the 1st Respondent.
(c)
Distribution of voter cards by the 1st Respondent and/or by his agents to his supporters to facilitate them vote more than once.
(d)
Intimidating known voters and supporters of the Petitioner and preventing them from voting.
(e)
Transporting voters to vote more than once from one Polling Station to another by the 1st Respondent and/or his agents with his facilitation and consent.
(f)
Being in possession of ballot papers ticked in favour of the 1st Respondent before the election day by the 1st Respondent and/or his agents or supporters.
(g)
Carrying on campaigns and addressing a rally past the stipulated time.
(h)
Intimidating voters by the 1st Respondent himself and/or by his agents with his knowledge and consent, to vote for him.
(i)
Transporting non-registered voters by the 1st Respondent and/or his agents with his knowledge and consent, from outside the Constituency to vote him.
(j)
Campaigning using sectarian utterances and mudslinging language against the Petitioner by the 1st Respondent.
(k)
That the Petitioner’s agents and supporters were abducted and some prevented by the army to abstain from voting for the Petitioner.”
The Petitioner further listed the following to be the PARTICULARS OF NON-COMPLIANCE WITH THE LAW: -
“(a)
Failure to clean the Voters’ Register thereby allowing room for ineligible persons
to vote for the 1st Respondent.
(b)
Printing excess Voters’ cards and failing to manage and/or control their distribution thereby allowing them to be used by the
1st Respondent to rig the elections in his favour.
(c)
Failure to control soldiers and other security operatives thereby allowing them to interfere with and influence the election process
in favour of the 1st Respondent.
(d)
Allowing soldiers and other unauthorized persons to handle, manage and distribute Voters’ cards, thereby allowing them to use
them to rig the elections in favour of the 1st Respondents.
(e)
Displaying of the 1st Respondent’s posters at Polling Stations.
(f)
Failing to ensure conditions of a free and fair election by allowing the 1st Respondent/his servants/agents to intimidate and/or prevent the Petitioner’s voters from voting.
(g)
Denying the Petitioner’s agents a chance to witness the voting process at some Polling Stations by the 1st Respondent, his servants and/or agents with his knowledge and approval, with the acquiescence and connivance of the 2nd Respondent.
(h)
During the polling exercise the Petitioner’s Polling Agents were chased away from some Polling Stations and as a result the
Petitioner’s interests at these Polling Stations could not be safeguarded.
(i)
The 2nd Respondent and/or its agents/servants, the Presiding Officers in the course of their duties, allowed people with no valid voter cards
to vote.
(j)
The 2nd Respondent’s agents/servants allowed the voting and carried out the counting and tallying of votes in the forced absence of
the Petitioner’s agents whose duty was to safeguard the Petitioner’s interests by observing the voting, counting and
tallying process to ascertain the results.”
In paragraph 4 of his petition the Petitioner alleged that he was further aggrieved because despite having pointed out all the alleged
illegal practices to the 2nd Respondent the latter went ahead to declare the 1st Respondent as the winner.
The Petitioner prayed for: -
(a)
An Order that the 1st Respondent was not duly elected.
(b)
An Order that the election of the 1st Respondent be nullified.
(c)
A declaration that the Petitioner and not the 1st Respondent won the Parliamentary Election for Nakasongola Constituency held on 26th June 2001.
(d)
An Order that the Respondents pay the Costs of this Petition.
ALTERNATIVELY
(e)
An Order that the Results of the Parliamentary Elections for Nakasongola Constituency be annulled and fresh elections be held for
Nakasongola Constituency.
To support his petition the Petitioner filed his own and thirty other supporting affidavits.
The 1st Respondent filed an Answer wherein he alleged: -
“1.
THAT your 1st Respondent is a male adult Ugandan of sound mind of the above address for the purposes of this petition.
2.
THAT your 1st Respondent is the Member of Parliament for Nakasongola Constituency in Nakasongola District of Uganda having been duly declared as
elected by the 2nd Respondent pursuant to Parliamentary elections held on 26th June, 2001 under the provisions of the Parliamentary Elections Act 2001.
3.
THAT the 1st Respondent has perused and understood the contents of the petition of Peter Nyombi and replies thereto as follows: -
4.
THAT the 1st Respondent denies the truth of paragraph 3 of the Petition and the Petitioner shall be put to strict proof of each of the allegations
contained therein.
5.
THAT the 1st Respondent denies commission on any illegal practice or election offence as alleged by the Petitioner either by himself or by his
agents with his knowledge and consent or approval.
6.
THAT in response to the specific allegations and particulars of illegal practices and offences set out under paragraph 3(c) of the Petition
the 1st Respondent states as follows: -
(i)
The 1st Respondent never facilitated any person to vote more than once at any various Polling Stations.
(ii)
The 1st Respondent has no knowledge of any person voting more than once at any polling station.
(iii)
The 1st Respondent has no knowledge of nor did he consent or give approval to any of his agents facilitating people to vote more than once
at any or various polling stations.
(iv)
The 1st Respondent never distributed voters cards to his supporters to facilitate them vote more than once.
(v)
The 1st Respondent has no knowledge nor did he consent to or approve of any of his agents distributing voters cards to supporters to facilitate
them vote more than once.
(vi)
The 1st Respondent denies having intimidated voters and supporters of the Petitioner to vote for him and/or preventing them from voting.
(vii)
The 1st Respondent denies having transported voters to vote more than once from one Polling Station to another.
(viii)
The 1st Respondent denies knowledge nor did he consent to or approve of any of his agents transporting voters to vote more than once from
one Polling Station to another.
(ix)
The 1st Respondent denies being in possession of ballot papers ticked in his favour before the election day.
(x)
The 1st Respondent denies knowledge of nor did he consent to or approve of any of his agents being in possession of ballot papers ticked
in his favour before the election day.
(xi)
The 1st Respondent denies knowledge of nor did he consent to or approve of any of his agents intimidating voters to vote for him.
(xii)
The 1st Respondent denies transporting non registered voters from outside the Constituency to vote for him.
(xiii)
The 1st Respondent denies knowledge nor did he consent to or approve of any of his agents transporting voters from outside the Constituency
to vote for him.
(xiv)
The 1st Respondent denies campaigning using sectarian utterances and mudslinging language against the Petitioner.
(xv)
The 1st Respondent denies carrying on the campaigns and addressing a rally past the stipulated time but in the alternative and without prejudice
to such denial states that it does not amount to an illegal practice or an election offence nor did such non compliance with Section
21 (d) of the Act affect the result of the election in a substantial manner.
(xvi)
The 1st Respondent denies knowledge of any abduction of the Petitioner’s supporters nor that hey were prevented by the army to abstain
from voting for the Petitioner.
(xvii)
The 1st Respondent denies any acquiescence in, or connivance by the 2nd Respondent of the 1st Respondent denying the Petitioners’ agents the chance to witness the voting process at some polling stations nor does the 1st Respondent have knowledge nor did he consent to or approve of his agents denying the Petitioners such chance aforesaid.
7.
The 1st Respondent states that the elections were carried out in a free and fair manner in accordance and compliance with the provisions
relating to elections under the Parliamentary Elections Act 2001.
8.
The 1st Respondent defeated the Petitioner by a margin of Eighty Thousand Seven Hundred Seventy Six Votes clearly reflecting the general
and overall will of the people who voted in the said election in Nakasongola Constituency.
9.
THAT any non compliance with the provisions of the Act relating to elections which non compliance is denied, such failure did not affect
the result of the election in a substantial manner.”
The support of the Answer and in reply to the affidavits supports the petition the 1st Respondent filed his own and thirty eight affidavits plus his own additional affidavits. Of these affidavits the Petitioner’s
Counsel cross-examined on seven.
The 2nd Respondent also filed an Answer stating: -
“1.
Paragraphs 1 and 2 of the Petition are admitted.
2.
The 2nd Respondent shall aver that the elections were conducted in accordance/compliance with the provisions of the electoral law.
IN THE ALTERNATIVE AND WITHOUT PREJUDICE to the foregoing, the 2nd Respondent avers that if there was any non-compliance with the electoral laws it did not affect the result of the election in a substantial
manner.
3.
The 2nd Respondent categorically denies the allegations of election malpractices and non-compliance contained in paragraph 3 of the petition
and avers as hereunder:
(a)
That the 2nd Respondent did conduct the election exercise in accordance/compliance with the electoral laws and any non-compliance, which is denied
did not affect the result of the election in a substantial manner.
(b)
That the 1st Respondent did win the election held on the 26th day of June, 2001 in Nakasongola Constituency.
(c)
That there is no evidence to support the contents of paragraph 3 (c) and (d) of the petition and the petitioner shall be put to strict
proof thereof;
(d)
That the 2nd Respondent did clean the voters register and all in eligible persons were excluded from the voter’s register and barred from
voting.
(e)
That the 2nd Respondent ensured that voters cards were safely kept and properly distributed and the 1st Respondent did not rig the election.
(f)
That the election was conducted under same conditions.
(g)
That the entire election exercise was flawless, free and fair.
(h)
That the 2nd Respondent ensured that only its officials handled, kept and distributed voters cards.
(i)
That at no polling station did the 1st Respondent display his posters.
(j)
That no person who was eligible and duly registered as a voter and properly identified was denied the right to vote.
(k)
That the 2nd Respondent ensured that at all polling stations the Petitioner’s agents were free and did witness the entire election exercise.
(l)
That at no polling station did the 2nd Respondent allows an ineligible person to vote.
(m)
That the voting and tallying process was done in the presence of all those interested and if at all the Petitioner’s agents
were absent which, is denied, they must have absented themselves of their own free will.
4.
That the 2nd Respondent declared the 1st Respondent as the manner of the election held in Nakasongola constituency after ascertaining the results conclusively.”
The 2nd Respondent supported its Answer by filing five affidavits. Of these the Petitioner’s Counsel cross-examined on four.
At the hearing the following were agreed and framed as the issues: -
“1.
Whether an illegal practice or an election offence was committed by the 1st Respondent in the election.
2.
Whether there was non-compliance with the provisions of the Parliament Act.
3.
Whether there was failure to conduct the election in accordance with the provisions of the Parliament Act.
4.
Whether non-compliance and failure affected the results in a substantial manner.
5.
Remedies.”
All Counsel agreed that the burden of proof is settled. The Petitioner has to prove the grounds for nullification of the election
to the satisfaction of the court. The standard of proof is on a balance of probabilities {See: Section 62 (3) of the Parliamentary Elections Act 2001. I would hasten to gloss this standard by quoting from BAT ER vs. BATER, (1950) 2 ALL. E. R. 458 where Lord Denning …J, stated: -
“The case may be proved on the preponderance but there may be degrees of probability within that standard. The degree depends
on the subject matter. A civil court when considering a change of fraud will naturally require a higher degree of probability than
that which it would require if considering whether negligence has been established. It does not adopt so high a degree as a criminal
court, even when considering a change of criminal nature, but still it does require a degree of which is commensurate with the occasion.”
I would even go further to agree with my brother Musoke-Kibuuka J. in Z. KAROKORA KATONO ZEDEKIYA vs. THE ELECTORAL COMMISSION AND ANOTHER, HCT 05 – CV – ELECTION PETITION 0002/2001 where at page 6 the rationale standart in these words:
“It is quite crucial to emphasize and bear in mind that setting aside the election of a member of Parliament is indeed a very
grave matter. The decision carries with it much weight and serious implications. It is a matter of both individual and national
importance. The removal of the elected member of Parliament renders the affected constituency to remain without a voice for some
time. ………COPY OMISSION. Thus the crucial need for courts to act in matters of this nature only in instances when
the grounds of the petition are proved at a high degree of probability.”
To the 1st issue I now revert. In paragraph 3 (g) of his petition, the Petitioner alleged that the 1st Respondent carried on a campaign outside the stipulated time. In support of this allegation the Petitioner presented three affidavits, to wit;
i)
Opyoko Philip
ii)
Samanya Stephen, Basalirwa, and;
iii)
Byansi Samuel.
In the three affidavits it is disclosed that at about 10.00 a.m. on 25/06/2001 the 1st Respondent addressed a general assembly of Nakasongola Army Senior Secondary School. The first two deponents were students at the
school and in attendance while Byansi was not such a student nor was he in attendance. His deposition on this allegation is thus
not credible especially when in paragraph 6 he states that he merely “overheard” the 1st Respondent and his group telling the students to vote for the 1st Respondent.
In paragraph 6(xv) of his Answer the 1st Respondent stated that he did not carry on the alleged campaign and that without prejudice to the denial this did not account to
an illegal practice or an election offence, nor did it affect the result of the election in a substantial manner. The 1st Respondent was cross-examined on his affidavit and admitted he addressed a gathering of voters in Nakasongola Army barracks after
the official campaign had been closed and addressed them on the role of an …. Petitioner in his area generally but not what
a Member of Parliament would do for them.”
In re-examination the 1st Respondent testified that he was conversant with Parliament law and that it did not prohibit any candidate from talking to any group
of persons on the day before polling day. That prior to the 2001 Presidential election the Head Master of Nakasongola Army S. School
requested him to address students’ complaints about water, insufficient lighting and insufficient library books. That he had
chosen 25/06/2001 to do so and fashioned the topic “The Role of an MP in his area” for the occasion. On this evidence
alone I find and hold that the 1st Respondent carried on a campaign on 25/06/2001.
What is the statutory law on this aspect? Section 21 (5) of the Parliamentary Elections Act, No. 8/01 stipulates: -
“(5) No campaign meeting shall be held within twenty-four hours before polling day.”
Section 45 (1) of the same Act reads: -
“(1). The campaign period prescribed by the Commission under Subsection 91) of Section 21 shall not extend beyond midnight of
the day before polling day.”
Hereafter I shall caption this Act as the “PEA”.
These two sections have been previously considered by Kibuka – Musoke J. in E. P. 0004 of 2001 WINNIE BABIHUGA vs MASIKO WINNIE KOMUHANGI AND 2 OTHERS. At page 86.
The learned Judge pronounced: -
“Accordingly even if it had been proved that the first Respondent had campaigned on Radio Rukungiri and alleged (8.00 p.m. on
the eve of the elections) there would have been no offence committed by her under the Parliament Elections Act 2001.”
I agree with the learned Judge’s interpretation and adopt the same for my holding herein that the 1st Respondent did not commit any illegal practice or election offence by campaigning at the said school on the said day. I also agree
with the 2nd Respondent’s Counsel that the Petitioner called no evidence to involve the 2nd Respondent.
In paragraph 3 (b) of the petition, the Petitioner alleged that the 1st Respondent and/or his agents bribed voters to vote in his favour. The Petitioner’s allegations were supported in the following
affidavits.
i)
Kate Nakirindi of Kakola-Kiswera, Mayanda, Kalongo Nakasongola District, deponed:
“1.
That I am a female adult Ugandan of sound mind residing at the above address and a
registered voter of Kakola Polling Station.
2.
That on the 26th June 2001 at the above station I saw Mr. Muruli-Mukasa’s Agent, Sserunyange’s motorcycle with posters of Muruli-Mukasa.
3.
That the motorcycle was being rode by the said agent in turn with another one Kazungu to transport voters to the Polling Station and
when the voters reached, they were shown the said posters and told to vote for that person on the Ballot Papers.
4.
That at the station I witnessed the said Sserunyange helping the voters especially those of Rwandese extraction to tick the Ballot
Papers in a manner that was improper in connivance with the Presiding Officer.
5.
That at the station I witnessed people coming with Voters’ cards that did not belong to them and when Peter Nyombi’s Agent
Buulo Kalangira tried to raise this, he was intimidated by Muruli Mukasa’s agents and supporters.
6.
That I also witnessed the said Sserunyange giving some of the voters, money at the station and telling them to vote for Muruli Mukasa.
He gave Mzee Luwuma Kamya booze to vote for Muruli Mukasa.
7.
That I went to the nearby Police Station to report Sserunyange’s actions but the Police told me that it was too late.
8.
That shortly before the polling day, Mr. Butamanya, a known agent of Hon. Muruli-Mukasa who even stepped down for him gave me UShs.500/=
and asked me to vote for Hon. Muruli-Mukasa and told me that he had been sent by Hon. Muruli-Mukasa.
9.
That later in the day another agent called Kyenkya also approached me asking for Hon. Muruli-Mukasa’s support and gave me Shs.1,000/=
for a beer and that it was a message from Hon. Muruli-Mukasa. These people bribed very many people in Hon. Muruli-Mukasa’s
name.
10.
That Mr. Sserunyange bragged to me that even though Nyombi was strong they were going to buy the votes and win using state power.
11.
That Hon. Muruli-Mukasa came to the station at around 4.00 p.m. and stayed there for sometime and Sserunyange halted the polling to
see him and the Chairman LCV.
12.
That I swear this Affidavit in support of Peter Nyombi’s Petition challenging the election of the 1st Respondent.
13.
That whatever is stated herein is true and correct to the best of my knowledge and belief.”
Whereas the deponent stated to be from Kakora-Kiswera and was a registered voter of Kakola Polling Station and Sserunyange gave “some
of the voters money at the polling station……” in her presence (paragraph 6), she does not name a single one of
the recipients. Nor does she allude to the number of people who received and how much each. I perused Sserunyange G. Willy’s
affidavit. He admitted he was the 1st Respondent’s Polling agent at the said Kakoola polling station, Kiswera. In paragraph 9 of his affidavit he denied paragraph
6 of Kate Nakirindi’s affidavit. Because Kate Nakirindi’s affidavit lacks in particulars and because of Sserunyange G.
Willy’s denial, I find it difficult to believe Kate Nakirindi’s allegations against Sserunyange and through him the 1st Respondent I find the bribery alleged not proved.
In paragraph 6 still, Kate Nakirindi deponed that Sserunyange “gave booze to Mzee Luwuma”. She does not describe the
identity of this Mzee Luwuma where he hailed from; whether he was a voter; where the booze was given to him; and what type of booze.
On accounts of lack of particulars and corroboration of her allegation alleged bribery of Mzee Luwuma not proved.
In paragraph 8 Kate Nakirindi deponed that “shortly before polling day Mr. Butamanya, a known agent of Hon. Muruli Mukasa gave
me Shs. 500/= and asked me to vote for Hon. Muruli Mukasa ….”. Kate Nakirindi does not give particulars concerning “Mr
Butamanya”. She does not state the date and place where Mr. Butamanya so cheaply paid for her vote. In his affidavit (paragraph
4) Mr. Butamanya Johnson bothered to stated that he had read Kate Nakirindi’s affidavit and denied her paragraph 8; did not
know anybody by her name (paragraph 5); and denied offering her Shs. 500/= (paragraph 6). In his affidavit paragraph 41 the 1st Respondent denied Mr. Butamanya was ever his agent. This denial was not controverted.
On accounts both of lack of particulars of Kate Nakirindi’s affidavit and the denial in Butamanya Johnson’s and the 1st Respondent’s affidavits in reply, I hold the allegations by Kate Nakirindi against Mr. Butamanya and through him the 1st Respondent not proved.
In her paragraph 9 Kate Nakirindi deponed that “later in the day another agent called Kyenkya… gave me Shs. 1,000/= for
a beer …….” Kyenkya Stephen swore an affidavit in reply. He denied the contents of paragraph 9 of Kate Nakirindi’s
affidavit. (paragraphs 3 and 8). In his paragraphs 4 to 7 he gives details of his area of operation as the 1st Respondent’s Kalungi Task Force Chairperson for the campaign period. He discloses that he had no authority from the 1st Respondent to carry out campaign outside Kalungi Sub-county let alone Kakola-Kiswera Rayanda in Kalongo Sub-county where Kate Nakirindi
hailed from. In the absence of any challenge to this reply which I find to be credible I prefer Kyenkya Stephen’s to Kate Nakirindi’s
affidavit which lacks particulars as to when and where Kyenkya Stephen gave her the bribe. Since Kyenkya Stephen denied proffering
the bribe and given that Kate Nakirindi’s allegations of bribery have tended to lose credibility, Kate Nakirindi’s allegations
reach the peak of vagueness where in paragraph 9 she states: “These people bribed very many people in Hon. Muruli Mukasa’s name” without telling who these recipients are and how she knew these people were instructed by Hon. Muruli Mukasa. I hold that
Kate Nakirindi’s allegations against the 1st Respondent through Kyenkya have not been proved. The allegations about giving bribes to “very many people” in Hon. Muruli
Mukasa’s name do not disclose the source of information and are therefore hearing summon.
ii).
Opyoko Phillip was another of the Petitioner’s witnesses to file an affidavit alleging bribery. In his paragraph 17 he deponed: -
“17 At 5.30 p.m. Captain Magara thanked us for joining the family and pulled
out U.Shs.20,000/= and gave it to us to go and buy soda and promised us a party if we voted for Hon. Muruli Mukasa.”
Earlier in his paragraph 1 he deponed he was a registered voter at Nakasongola Army Barracks Airfield A – D and a student at
the Nakasongola Army Senior Secondary School. The incident is alleged to have taken place on 25/06/2001 after the 1st Respondent had addressed the school general assembly called by the Head Master, Captain Baise Mukasa (paragraphs 8 to 16). The “us”
in paragraph 17 refers back to paragraph 13 of the same affidavit which reads: -
“13. That the said Captain Magara read out a list of 21 students myself inclusive and ordered us to go in front and in our presence
told Hon. Muruli Mukasa that we had crossed from Peter Nyombi’s camp to his camp …”
(iii)
Paragraphs 8 to 11 of Micheal Kaggwa’s affidavit read:
“8. That the said Lt. Emaka asked us to record the names of all students at the school who support Peter Nyombi so that they
can be read at the General Assembly to be held on 25th day of June 2001 and say that they had crossed from Peter Nyombi to Muruli-Mukasa.
9.
That on the 25th day of June 2001 a General Assembly was called at school which was attended by Hon. Muruli-Mukasa, the L.C.V Chairman – Nakasongola.
Bagonza Christopher, Col. Katagara and Major Mureba among others.
10.
That at the said General Assembly Captain Magara called us with other students and announced that we had crossed from Peter Nyombi’s
Camp and joined that of Ho. Muruli-Mukasa.”
“11. That the said Captain Magara met us again on the same day at around 5.30 p.m. and thanked for joining the right family
and gave us UShs. 20,000/= sent by Hon. Muruli-Mukasa for sodas.”
Learned Counsel for the Petitioner submitted that Micheal Kaggwa’s affidavit corroborated the contents of Opyoko Phillip’s
affidavit. On their face value, yes; but not on the probative value. The “person” referred to in Section 69 of the PEA (ante) is a registered voter. The PEA reads: COPY. Neither Opyoko Phillip nor Micheal Kaggwa told who the persons mentioned by Opyoko Phillip and Micheal Kaggwa in their respective
affidavits as described ???? “us” are ? Nor does any of their affidavits mention that the “us” are registered
voters.
There is the affidavit of Captain Peter Magara. In paragraph 6 he denies Opyoko Phillip’s allegations, in paragraph 12, that
he was Campaign Manager of the 1st Respondent. In paragraphs 11 he denies he invited the students to meet him at 5.30 p.m. on 25/06/2001. He denies giving them Shs.
20,000/= to buy soda and promising to host a party for them if they voted for the 1st Respondent.
Captain Magara was cross-examined. He testified he did not know Opyoko Phillip. The burden of proof was on Petitioner to cause Opyoko
Phillip and Michael Kaggwa to file a further affidavit challenging Captain Magara on his denials. Especially so when the 1st Respondent in paragraph 19 of his affidavit supporting the Answer and paragraph 40 of his additional affidavit. ??????? For the reasons
that Opyoko Phillip and Michael Kaggwa did not prove the giving of the bribe, and that the recipients were registered voters I am
not satisfied that the Petitioner had through Opyoko Phillip and Michael Kaggwa proved any bribery by Captain Magara and through
him the 1st Respondent.
v).
Sarah Kityo was another of the Petitioner’s witnesses on bribery committed on behalf of the 1st Respondent. In paragraph 3 of her affidavit she alleged that on 25/06/2001 Hon. Muruli-Mukasa’s agent called Kakande “came
to our group, Tukole Kabojja Women’s Group and gave the Group’s Secretary on behalf of the Group Shs. 100,000/= saying
that Hon. Muruli-Mukasa had sent it to us so that we vote for him in the polls tomorrow.”
In paragraph 5 she deponed that “our Group has twenty women and the money was handed to us at Namayonjo Trading Centre”.
Compare this evidence with that in the affidavit of (vi) Lugonvu Patrick. In paragraph 2 he stated that “on 25/06/2001 Kakande Dissan and Adson Basemera who are well known to me and were campaigning
agents for Hon. Muruli-Mukasa brought money and gave Ronald Ssebukera of Kabojja U.Shs.100,000/=, Emmanuel Nsubuga of Namayonjo U.Shs.100,000/=”.
In paragraph 3 he stated that “these persons were agents for Hon. Muruli-Mukasa and were told by the said Ronald Ssebukera
and Adson Basemera to go and distribute it to people so that they can vote for Hon. Muruli-Mukasa”. In paragraph 5 he deponed
that as I moved around the village many people were talking about Hon. Muruli-Mukasa’s agents giving out money.”
In my considered view Lugonvu Patrick’s and Sarah Kityo’s affidavits are inconsistent, if not contradictory, as far as
Kakande’s giving money is concerned. Sarah stated that Kakande gave money (Shs.100,000/=) to the Secretary Tukole Kabojja Women’s
Group. Lugonvu Patrick says it was given to Sarah. While Lugonvu Patrick states that Kakande was in company of Busemera Adson, Sarah
does not mention Basemera Adson. In his affidavit in reply Kakande Dissan denies ever giving any amount of money to Sarah (see: his
paragraph 3). He denies he was 1st Respondent’s agent (paragraph 4). In paragraph 14 of his additional affidavit the 1st Respondent denied the contents of Lugonvu Patrick’s affidavit. The contradictions (inconsistencies in Lugonvu Patrick’s
and Sarah Kityo’s affidavits are grave. They were not explained away in face of the 1st Respondent’s and Kakande’s affidavits. I have no choice but to hold the affidavits of Sarah Kityo and Lugonvu Patrick
to contain lies. I disbelieve them both as regards the alleged bribe of Shs.100,000/= given by Kakande to Kabojja Women’s Group
or his being agent of the 1st Respondent.
Furthermore the 1st Respondent’s and Kakande’s denial of any agency between them was not challenged in the cross-examination of the 1st Respondent or controverted by any additional affidavit by either Lugonvu Patrick or Sarah Kityo. In paragraph 8 of his affidavit
Lugonvu Patrick states that whatever he stated is based on his knowledge and belief. However it is elementary knowledge that paragraphs
2, 3, and 5 can only be based on information whose sources Lugonvu Patrick has not given. I dismiss the affidavit of Lugonvu Patrick
as containing hearsay and therefore no evidence at all.
As I have already pointed out Lugonvu Patrick alleged in his paragraph 2 three other recipients of bribes from Kakande Dissan and
Adson Basemera. In paragraph 4 he further states that Kakande Dissan gave Mzee Dominic Kigongo and Mzee Begumisa Shs.5,000/= “to
go and vote for Hon. Muruli-Mukasa to buy their votes.” I confess I cannot puzzle out what this paragraph is all about. This
is the Petitioner’s case and I am not bound to clarify his affidavit evidence. The two Mzees were not called to corroborate
or clarify Lugonvu Patrick’s affidavit. Having found the greater part of it to contain false-hoods and hearing summon I would
go further to hold the whole affidavit to have failed to advance the allegation of bribery by Kakande Dissan and through him, the
1st Respondent.
vii).
To Samuel Kityo’s affidavit I will now direct my attention. In paragraph 3 he stated that on 25/06/2001 Kakande, Hon. Muruli-Mukasa’s agent, brought
money to Namayonjo village for various local groups. In paragraph 4 he stated that Kakande “gave me Shs.100,000/= on behalf
of Kabojja Mixed Farmers and urged us to vote for Hon. Muruli-Mukasa since he had given us money.” In paragraph 5 Sarah Kityo
depones that “I saw other group leaders like Women’s Groups also receiving some money. I saw Sarah Nakyanzi receiving
money on the same day from the same person.” I note that Sarah Kityo does not state in what capacity he received the bribe
on behalf of Kabojja Mixed Farmers; he does not specify if he was a member of the Kabojja Mixed Farmers; he does not state if he
was alone when Kakande gave him the money. Both paragraphs 4 and 5 lack basic particulars. As with Lugonvu Patrick and Sarah Kityo’s
affidavits, the 1st Respondent and Kakande deny any agency relationship between them and the alleged bribe money {see: paragraph 41 of the 1st Respondent’s additional affidavit and paragraph 4 of Kakande’s affidavit}. The 1st Respondent was cross-examined. No allusion was made about the allegations of Samuel Kityo. On accounts of lack of basic particulars
in Samuel Kityo’s affidavit and the unchallenged evidence of the 1st Respondent and Kakande, I find and hold the allegations of Samuel Kityo not proved.
viii).
On behalf of the Petitioner Tumusiime David Okello swore an affidavit alleging bribery committed by the 1st Respondent himself. In paragraph 9 of his affidavit Tumusiime David Okello deponed: -
“9. That Hon. Muruli-Mukasa came at one time to Kabakazi during the campaigns,
talked to people and at the end of his address gave U.Shs.200,000/= to Kabakazi Women’s Group begging them to vote for him.”
In his additional affidavit, paragraph 16, the 1st Respondent denied the contents of Tumusiime David Okello’s affidavit, paragraph 9. The 1st Respondent was further cross-examined and this allegation was kept under the carpet by the Petitioner’s Counsel. Without any
evidence to corroborate Tumusiime David Okello’s paragraph it smacks of vagueness bordering on hearsay. I reject the same as
far as the allegation of bribery of Kabakazi Women’s Group is concerned.
In his paragraph 21 Tumusiime David Okello deponed:
“21. That he told me to change to his camp, whereupon he offered me fuel so that I can move the whole night telling people to
change to his camp. When I declined his offer, he threatened me saying that I might not leave the barracks and I may not vote tomorrow.”
In paragraph 16 of his additional affidavit the 1st Respondent denied paragraph 21 of Tumusiime David Okello’s affidavit. When he was cross-examined the 1st Respondent was not challenged on his denial. I therefore reject the allegation as not proved.
ix).
Sande Pain Muwanga swore an affidavit in support of Petitioner’s allegations of bribery committed by the 1st Respondent. He deponed to being a registered voter of Nakataka Polling Station Irina Nakasongola District. In paragraph 4 of his
affidavit he states that at around 9.30 p.m. on 11/06/2001 at Namungolo village he “saw Steven Kyenkya a re-known agent of
Hon. Muruli-Mukasa had given them the money so that they vote for him and not Peter Nyombi who is a poor man.” I note that
he does not state how he knew that Kyenkya Stephen was a re-known agent of Hon. Muruli-Mukasa. I also note that though earlier in
his affidavit he states he hails from Namungolo, he does not mention or identify by name a single recipient of the bribe in this
paragraph. Further he does not mention how much each recipient got. In paragraph 5 he states that Kyenkya gave out U.Shs.2,000/=
to Night Florence Nampala, U.Shs.10,000/= to Richard Ssebide (the L.C.I Namungolo Chairperson) U.Shs.5,000/= to Christopher Sekyanzi,
U.Shs.5,000/= to Richard Byekwaso, U.Shs.15,000/= to Kyabarikoba, U.Shs.20,000/= each to Mulekwa and Bampiga among others.”
[Emphasis is mine].
I note that the villages where the above enumerated recipient of bribes are not given. They cannot be the same “voters”
mentioned in paragraph 4 because the deponent chose to mention them in their own separate paragraph.
In paragraph 6 Sande Pain Muwanga depones:
“6. That on top of giving out money I witnessed the said Kyenkya buying alcohol for people and giving out hoes to Bagyenga Nakafero
and many others telling them to vote for Hon. Muruli-Mukasa since he had given them booze and hoes”.
{Again the emphasis is mine}
I note that the affidavit lacks in many vital particulars. Moreover by stating “among others” and “many others”
the deponent is not giving any useful evidence. He is engaging in guesswork.
In paragraphs 12 and 13 of his additional affidavit the 1st Respondent denies the contents of the affidavit of Sande Pain Muwanga. In paragraphs 3 and 4 of his affidavit Richard Ssebidde denied
the contents of paragraph 5 of the affidavit of Sande Pain Muwanga. In paragraphs 3 to 8 of his affidavit Kyenkya Stephen denied
the contents of Sande Pain Muwanga’s affidavit. Further and most crucial in paragraph 6 Kyenkya Stephen stated that Sande Pain
Muwanga is not a resident of Namungolo. Sande Pain Muwanga did not challenge this deposition. In paragraphs 2 and 3 Bampiga Stephen
denied Sande Pain Muwanga’s allegations. The 1st Respondent was cross-examined. His denial was not shaken. As far the denials of the alleged recipients of the bribe they need not
all to have made replies because Kyenkya Stephen and the 1st Respondent mentioned them in their respective denials and their denials were not shaken in cross-examination or by affidavits in
rebuttal. There cannot be smoke without fire. In NASAN BATUNGI vs OKUMU DISON OCAYA: MISCELLANEOUS APPLICATION 343 of 1995 Ntabgoba, the Principal Judge stated: -
“Here the Court is confronted with two controverting affidavits. If they are affidavits one would expect them to be truthful.
Yet one of them must be false. In the absence of another affidavit to rebut what is deponed to … in reply then, which of the
two affidavits should be believed on the issue? Certainly … the latter is presumed to be the one that is truthful, because
failure to rebut imports acquiescence in it.”
I am greatly persuaded by this reasoning and would adopt it in the rest of my judgment especially where there are affidavits in reply
and cross-examination to boot.
Learned Counsel for the Petitioner addressed the evidence of Chrisestom Kayise, the Returning Officer, Nakasongola District who testified
on behalf of the 2nd Respondent. Counsel stated that in cross-examination the witness confirmed his deposition in the affidavit dated 05/08/2001 that
election exercise was flawless free and fair. That in further cross-examination he confirmed that the issue of bribery was raised
by the Petitioner’s agents and that it was rampant. [Counsel misquoted the court record] that in recommendation no. (vi) of
his Report on Parliament Elections 2001, Nakasongola District the witness alluded to the issue of bribery in this election. For his
part Learned Counsel for the 1st Respondent submitted that on analysis the Report showed that the witness received reports of bribery from the Petitioner’s
side but that he was not able to confirm these reports. I agree with this submission because in re-examination by Counsel for the
1st Respondent, the witness testified that it would be wrong to suggest that the other reasons (for low voter turn-out) were bribery.
He further testified that he did not think that the candidates had reached a level of bribing voters not to go to vote.
In cross-examination by Counsel for the 2nd Respondent the witness stated the Report was based on reports he received but that he did not verify all the allegations including
bribery.
For all the reasons I have endeavoured to give hereinabove Sande Pain Muwanga’s allegations of bribery fail.
(x)
In his affidavit in support of the Petitioner, Senkebe Ronald deponed that he was a resident of Lwampanga L.C.I and an appointed agent of the Petitioner for Lwampanga, Kisenyi Zone Nakasongola
Constituency. That on 25/06/2001 the L.C.III Chairman Batumbya addressed a rally at Kijaulo Zone where he campaigned for Hon. Muruli-Mukasa
(paragraph 4). That “in the night of the same day the L.C.III Chairman returned to the area and found me in the company of
Kisembo, Moses Monday, Stephen City and Samanya and gave us Shs. 20,000/= to share amongst ourselves saying it was from Hon. Muruli-Mukasa
to enable us to vote for him the next day”. Learned Counsel for the 1st Respondent invited court to note that in many of the affidavits in support of the Petitioner where the deponent is a voter he avers
so and mentions his polling station. For Senkebe Ronald and Samanya Rogers, I will refer to the latter’s affidavit by and by,
no such evidence was given. Nor did they give evidence that Kisembo, Moses Monday or Stephen City were registered voters. The invitation
to court is, I guess, correctly based on section 69 of the Act (ante) to which I have hereinbefore made reference. In paragraph 7 of his affidavit in reply Batumbya Begumya Fred denied giving
U.Shillings to Senkebe, Kisembo and Samanya Rogers for the purpose alleged by Senkebe Ronald. He does not mention Stephen City or
Moses Monday. However, his denial was not challenged. In the instant affidavit proof of the alleged bribery still fails because the
Petitioner has not shown the recipients to be registered voters.
(xi)
Samanya Rogers swore an affidavit in support of the petition. In paragraph 5 he corroborated paragraph 5 of Senkebe Ronald’s affidavit already
discussed immediately hereinabove. Proof of his allegations fail reason I have given for Samanya Roger’s affidavit.
(xii)
Byansi Samuel swore an affidavit to support the Petitioner’s charge of bribery by the 1st Respondent. In paragraph 2 he stated that the 1st Respondent assigned him to do research on the electorate and report back to him. “This assignment started right from the initial
stages of presidential campaigns and the parliamentary elections of 2001,” he deponed in the same paragraph 2. In paragraph
8 he deponed:
“8. That on the same eve (of voting day), I saw John Kitaka, Hon. Muruli-Mukasa’s agent being given money by another agent
to go and distribute/bribe people to cast their vote in favour of Hon. Muruli-Mukasa.”
Let me hazard a finding that this deposition betrays the quality of the research Byansi Samuel was allegedly carrying out. If what
he stated is true he ought to have done further research from his boss and given us the names of the “other agent” who
gave Kitaka the money. He could even have gone further to dig out how much money was given to Kitaka. In paragraphs 34 of his affidavit
supporting his Answer the 1st Respondent denied the contents of paragraphs 2 and 3 of Byansi Samuel’s affidavit. In paragraph 35 he deponed:
“35. That I never assigned Byansi Samuel to do research for me regarding the electorate and file reports with me during the
elections or at all.”
This serious denial was not rebutted by the said Byansi Samuel. The 1st Respondent was cross-examined in court. The allegations of Byansi Samuel were not put to him. John Kitaka admitted due appointment
as the 1st Respondent’s Vice Chairperson of Nakasongola District Task Force (paragraph 3). In his paragraph 4 he deponed that “it
is neither true that I was given money by anyone for the purpose of bribing people to cast their vote in favour of the 1st Respondent nor did I distribute money for the same purpose.”
Learned Counsel for the 1st Respondent submitted that I should accept the evidence of the 1st Respondent even where the evidence is plain denial because there may be circulars where an allegation is falsely leveled against
a person and that person has absolutely no knowledge about it. That in that case the person against whom the allegation is made can
do no more than merely deny. Counsel further submitted that for the burden to shift to such a person to prove the allegation wrong,
the person alleging should have first adduced sufficient evidence to establish that the allegation is prima facie true. That this
would be done by providing details or particulars and preferably corroborating evidence. That the Petitioner had failed to do so.
That the 1st Respondent’s evidence which had not been challenged should be accepted. I agree with both Counsel’s submissions. What
however underlines the eventual decision is the weight of the evidence called. In the instant issue of bribery the Petitioner’s
evidence has been found to be gravely wanting as I have indicated against each affidavit called in this regard. The allegation thus
fails. I would again invoke the decision in BATUNGI’S case already referred to.
Learned Counsel for the Petitioner wound up on this aspect by submitting that a candidate who has engaged in acts of bribery either
personally or by agents should not be left to take benefit of the criminal act. Counsel cited S 62(1) (c) of the PEA (ante) BERESFORD
vs. ROYAL INSURANCE COMPANY LTD. Therefore [1938] 2-ALL ER 602. He submitted further that on this ground alone the election of the
1st Respondent be nullified and that I should recommend prosecution proceedings in pursuance of Ss. 64(8) and 69 (1) of the Act (ante).
He finally cited the case of BESIGYE (ante) page 472 paragraph on the issue of bribery and campaign agents.
In reply Learned Counsel for the 1st Respondent stated that in terms of S. 62 (1) (c) of the Act there must be actual knowledge of the candidate with regard to the act
of his agent Counsel cited BESIGYE PP. 193 (paragraph 2), 270 (last paragraph) and 271 (last paragraph).
I agree with the statement of the law pointed out by Learned Counsel for the 1st Respondent. In none of the affidavits filed by and on behalf of the Petitioner has it been proved that the 1st Respondent had knowledge of and consented or approved the alleged acts of the people alleged to have given out bribe. Where the 1st Respondent volunteered to deny lack of knowledge consent or approval no affidavit was filed in rebuttal. Above all in cross-examination
the 1st Respondent was not saddled with any question on the issue. I find and hold the allegations of bribery not proved on a balance of
probabilities.
In paragraph 3(j) of his petition, the Petitioner alleged that the 1st Respondent campaigned using sectarian utterances and (…pg41) language against the Petitioner. Counsel for the Petitioner stated that this type of campaign tactic is prohibited
by section 74 (i) of the Act (ante). That section reads:
COPY S. 74 (1)
To support this allegation the Petitioner swore an affidavit deponing as follows:
“7.
That during the campaign, the 1st Respondent used sectarian and smear campaign calling me a Multi-partist supported by the Mengo Establishment, DP and UPC. This document
was circulated widely by the 1st Respondent and his agents and read out at campaign rallies addressed by the 1st Respondent in the Constituency.
8.
That it is not true that I am a Multi-partist or that I was supported by Mengo Establishment, UPC and DP as alleged by Hon. Muruli-Mukasa
and his agents. That I have at all material times supported the Movement System of Government.
9.
That on 25th June 2001 while at Shell Petrol Station in Nakasongola Town I saw a one Kasozi of Namuka Village with a document in his pocket bearing
my names.
10.
That I and my agents suspected the document to be the one Hon. Muruli-Mukasa had been circulating and using to malign my name among
the voters.
11.
That Kasozi was a re-known supporter and campaign agent of Hon. Muruli-Mukasa.
12.
That I asked Kasozi for the document and he refused and threw it to a one Ruhinda alias Mandevu who attempted to flee with it, was
chased by supporters and arrested with the assistance of Police from Nakasongola Police Station which is opposite the Petrol Station.
13.
That Kasozi and Ruhinda were arrested and taken to Police where a Police file was opened and statements made. The file Number is SD/REF/21/06/2001.
A copy of the said document was given to me. A copy is attached and marked as Annexture “B”.
14.
That, perusal of the document revealed that it was the one that Hon. Muruli-Mukasa had been circulating titled Inter-party force Committee
labeling me a Multi-partist and a rebel sympathizer, which allegations are completely false.
15.
That the Constituency is predominantly in support of the movement system and such a document was intended to decampaign me and indeed
did decampaign me. I am not a supporter of UPC, DP, Itongwa, nor am I the Representative of Nakasongola in Mengo Lukiiko.”
Regarding the affidavit of Chrisestom Kayise sworn in support of the Answer of the 2nd Respondent Learned Counsel stated that a page 2 of his Report (ante) the witness confirmed in cross-examination that the matter was
in fact raised in the Candidate’s meeting of 24/05/2001. That the witness further testified that what he deponed to was true
and so was his Report. That, however, in paragraph 4 of his affidavit he denied that he was “not aware of the Petitioner’s
depositions.” That in further cross-examination he testified that the recommendations in the Report were based on his findings,
observations, and information. Counsel submitted that since the witness’ Report contradicted his evidence the affidavit was
false on that ground.
In reply Counsel for the 1st Respondent submitted that under section 74 (1) of the PEA the Petitioner must prove: -
(i)
That the 1st Respondent before or during the election publishes, makes or causes to be made or published statements;
(ii)
Such statements must be false;
(iii)
The statement must be in relation to the personal character of another candidate;
