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Byamukama K. James v Kaija William and Another (HCT-01-CV-EP- 0009/2006) [2006] UGHC 40 (15 September 2006)

.RTF of original document


THE REPUBLIC OF UGANDA

IN THE HIGH COURT  UGANDA AT FORT PORTAL

HCT-01-CV-EP- 0009/2006.

BYAMUKAMA K. JAMES …………………………. PETITIONER
VERSUS
1.      
KAIJA WILLIAM
2.       THE ELECTORAL COMMISSION …………… RESPONDENTS

BEFORE : THE HON.  MR. JUSTICE  AUGUSTUS KANIA

JUDGMENT

The  Petitioner , Byamukama K. James and the 1st Respondent Kaija William stood as candidates for the election of the Local Government V Chairperson of Kyenjojo District. It was a two horse race. The election which was organised and conducted by the 2nd Respondent, the Electoral Commission, was held on 2nd  day of March 2006. The 2nd Respondent declared the 1st Respondent the winner of the election on the 3rd day of March 2006 with 39.417 votes representing 53.5% of the total votes. The Petitioner was declared to have polled 34.259 votes which translates to 46.5% of the total votes cast while 683 votes represents 0.9% of the votes cast were declared invalid . That  the  1st Respondent emerged the winner in the election was gazetted in the Uganda  gazette Vol. XCVIX No. 27 of the 5th May 2006 which is Exhibit P. 2 on the Court Record having been an admitted document.

The Petitioner brought this Petition challenging the validity, and the results of the election. He alleges that the 2nd Respondent who has the Statutory duty to conduct the election, conducted the same  contrary to and in contravention of the Constitution of Uganda , the Electoral Commission Act of Local Government Act and the Parliamentary Elections Act in that the election was tainted with numerous electoral practices, illegal practices, election offences wide spread rigging in favour of the 1st Respondent and that there was a general failure by the 2nd Respondent to conduct the election in a free , fair and transparent manner. The Petitioner alleges that the non compliance by the 2nd Respondent with the laws and the principles laid above affected the result of the election in a substantial manner and prays that this Court sets aside the election of the 1st Respondent as Chairperson L.C. V Kyenjojo District.

The Petitioner also alleges that the 1st Respondent personally committed illegal practices and election offences including using Government or Local Government property and facilities, going to a polling station armed.

The Petitioner further alleges that the campaign managers and polling agents of the 1st Respondent also committed illegal acts and electoral offences such as bribing of voters and intimidation of voters and the Petitioner’s agents. The Petitioner contends that the sum total of the illegal practices and electoral offences above was to substantially affect the result of the election and to render it not a free and fair expression of the will and consent of the people of Kyenjojo District in electing a District Chairperson of their choice. He prayed the election results be nullified on these grounds as well.

The Petition is supported by the affidavit of Byamukama K. James and 60 others.
The 1st Respondent filed an answer to the Petition in which he averred that the election was conducted in compliance with the Constitution, the Electoral Commission Act, the Local Government Act and the Parliamentary Elections Act. He denied the commission of any illegal practice or electoral offence by himself, his campaign agents or supporters. In the alternative the 1st Respondent avers that if there were any offences or illegal practices committed, there were not with his consent, approval or knowledge and these irregularities if any did not affect the results of the election in a substantial manner. He filed a total of 145 affidavits in support of his case.

The 2nd Respondent made an answer to the Petition denying that the election was conducted contrary to the law and principles of free and fair election, as enshrined in Article 61 (a0 of the Constitution. The 2nd Respondent also states in its answer that if there was any non compliance with the law  in conducting the election, such non compliance did not affect the result of the election in a substantial manner.

Both the 1st and 2nd Respondents prayed  that the Petition be dismissed with costs.
ISSUES:-
Issues framed  for determination at the commencement of the hearing of this Petition were the following:-

1.      
Whether  in organising and  conducting the election there was failure or non compliance with the electoral laws.

2.      
If issue No. 1 is answered in the affirmative whether such non compliance affected the election in a substantial manner.
3.      
Whether any illegal practices and or election offences  were committed by the 1st Respondent personally or by his agents with his knowledge, consent or approval.

4.      
What remedies if any are available.

In the course of the hearing of  this petition the Respondents raised a number of objections. Because of the need to expedite these proceedings and to  avoid being logged down by a multiplicity of  rulings at every stage, rulings on these objections were deferred. I now propose to first deal with these matters before going into the merits of the case.

Mr. Kaahwa learned Counsel for  the 1st Respondent who appeared with Mr. Patrick Mugisha and Mr. Bwiruka submitted that the affidavits in support of the Petition by 21 deponents should be struck out because each of these  deponents who swore two affidavits describe themselves on the first set of affidavits  as literated while they swore the second  set as literates. Counsel argued that these deponents could not be at the same time literate and yet illiterate. He submitted that for the above reasons the said affidavits are incompetent and should be struck out.

Mr. Peter Katutsi learned Counsel who appeared with Mr. Musana for the Petitioner submitted that there is nothing to prove the said deponents were illiterate and did not understand. The contents of the first set of their affidavits. He argued that under basing on the provisions of Sections 101 (2) and 103 of the Evidence Act, the Respondents had the onus of proving that the deponents of the said affidavits were illiterate. Counsel pointed out that the Respondents had the opportunity to prove this by cross-examination which opportunity in the second set of affidavits, Mr. Katutsi submitted that the said certificate did not mean the deponents were illiterate. His explanation was that the said certificate did not mean the deponents were illiterate. His explanation was that the said certificate was a standard format which was inadvertently not deleted but did not at all prove the deponents were illiterate.

Here below listed are the two sets of affidavits in question. The affidavits sworn as if the deponents were literate are under list ‘A’ while those sworn by the deponents as if they were illiterate are under list “B”.

A
No. of  Affidavit
On Court Record                                                  Deponed to by
47      
Irumba Bashir
18      
Tweheyo Samwiri
45      
Moses Ntegerisi
48      
Kiiza Joseph
49      
Seruguma Vinally
20.     
Tumwesigye Adolf
52      
Tumwesigye Lawrence
23      
Mwebesa Julius
21      
Alinaitwe Anthony
31      
Nanyonga Margaret
8       
Habomugisha H.
26      
Mugisa Ezekiel
71      
Kazooba Wilfred
58      
Twinamasiko
19      
Bekunda
68      
Oliver Bahemurwaki
25.     
                                  Aheebwa George
78      
Mungereza Robert
79      
Umaru Kiiza

B.

19.     
                                           Irumba Bashir
117     
Tweheyo Samwiri
43      
Moses Ntegenisi
105     
Kiiza Joseph
109     
Seruguma Vinally
110     
Tumwesigye Adolf
113     
Mwebesa Julius
114     
Alinaitwe Anthony
115     
Nanyonga Margret
116     
Habomugisa H.
95      
Mugisa Ezekiel
89      
Kazooba Wilfred
120     
Twinamasiko Sebuturo
152     
Oliver Bahemurwaki
150     
Ahebwa George
153     
Mungereza Robert
154     
Umary Kiiza
156     
                                 Kazooba Wilfred.

Though Mr. Kaahwa submitted that each of the deponents to the above affidavits swore one affidavit as someone who is literate and the other as an illiterate, this appears not to be totally true of all the deponents. Affidavits Nos. 78 and 153 sworn by Mungereza Robert and 79 and 154 sworn by Umaru Kiiza all bear a certificate by the Commissioner for oaths as provided for in the Oaths Act in the event of an illiterate swearing an oath. Another affidavit Mr. Kaahwa sought to strike out is No. 144 of Otuganyire Amos but then this is  deponent’s only affidavit which bears the Commissioner’s  certificate under the Oaths Act meaning the deponent swore it as an illiterate. It was contended that the deponent also deponed to a second affidavit No. 104 on the Court record. This is not borne by the record as affidavit No. 104  is sworn by one Richard Bukenya. In the result the objection taken by Mr. Kaahwa is not applied to the affidavits sworn by Mungereza Robert, Umaru Kiiza and Otuganyire Amos as I find them to be competent.
An affidavit is evidence on oath. When a witness depones to a set of facts, it is to be taken that such a witness knows and understands what he/she is deponing to. In the event the deponent is illiterate either in the sense that he cannot read or write or that he does not understand the language in which the affidavit is written the  jural in the form of a certificate that the contents  of the affidavit have been read to the deponent in a language he understands is provided for under Schedule I Form B under the heading Oaths for Affidavits. When the deponents of the first category of affidavits with the execption of Mungereza Robert, Umaru Kiiza and Otuganyire swore to them and the Commissioner did not attach thereto a certificate to the effect that the same had been read to them, the only inference flowing therefrom appears to be that the deponents were literate and understood the contents of those affidavits. However when these same deponents again deponed to the affidavits in the second category and the commissioner  for Oaths attached a certificate that the deponents being illiterate he read to them. The contents of the said affidavits their literacy is negatively. Though Mr. Katutsi Peter argued that it was the onus of the Respondents to prove the deponents were illiterate, I can say  in fact discharged this duty for the Respondents by filing the affidavits in question with the Commissioner for Oaths declaring on the jural that he read the contents of the said affidavits to the deponents who were illiterate. I accordingly find that though these deponents swore the first lot of affidavits as literate persons, they are in fact illiterate. Being illiterate they did not understand the contents  of the first lot of affidavits. Mr. Katutsi’s explanation that the jural in the second lot of affidavits was inadvertent on that they are a standard from which was not deleted from the computer is not sustainable . Having  found that the deponents of the first set of affidavits were illiterate and they did not understand the contents of their affidavits in category A above, the same are struck out.

Mr. Kaahwa had invited me also to strike out the second category of affidavits. Counsel did not appear to me to have advanced any compelling ground why the second lot of affidavits should be struck out. The main ground in my view for striking out the first category of affidavits was that the deponents did not understand or know their contents, because being illiterate the Commissioner for oaths attached no certificate to the effect that he had read and explained to the deponents the contents.

With regard to the second category of affidavits the deponents swore their affidavits as illiterates after the Commissioner for Oaths had explained to them the contents of the affidavit by including his certificate. The second category of affidavits having complied with the Oaths Act, there is no reason to strike  them out. In the result, while the affidavits in category A above, with the exception of those sworn by Mungereza  Robert,  Umaru Kiiza and Otuganyire Amos, are struck out the application to strike out the affidavits on category B fails.

Mr. Kaahwa also attached the affidavits in category B for non compliance with the Oaths Act in that the jural or the certificate of the Commission on the said affidavits is not that prescribed by the Oaths Act. Mr. Peter Katutsi submitted that though the jural in these affidavits was not in the very words prescribed by the Oaths Act, it substantially carried across the same meaning.
The jural prescribed for affidavits sworn by illiterates where the Commissioner for Oaths has read over the contents to the deponents is in the following terms:-
“ Sworn at------------------in the District of---------this----------day of--------------------2006 before me. I having first truly distinctly and amolibly read over  the contents of this affidavit to the deponent he/she being illiterate and explained the nature and contents of the exhibits in the affidavit in the------------language. The deponent appeared perfectly to understand the same and made his/her mark/signature. Thereto in my presence.”
The form the jural or certificate in the affidavits in category B took is as follows:-

“ Sworn at Fort Portal by the said-----------the-----------day of---------------------------2006 before me and I certify that this affidavit was read over to the deponent he being  illiterate and the nature and contents of the exhibits referred to in the affidavit explained to him in-------language which appeared to understand.”

The wording in the two formats is not exactly identical. They obviously deviate. However to my understanding they convey the same meaning which is that the Commissioner swore the deponent who was illiterate  only after having and explained to him the contents of the affidavit in a language the deponent understands and that the commissioner before signing the affidavit had the impression that the deponent understood its contents. In the instant case I am of the view that though the Commissioners for Oaths deviate in the affidavits in category B from the prescribed form of the jural in the Oaths Act, they substantially comply with it. The competence of these affidavits is accordingly not affected. This view is bolstered by the provisions of Section 43 of the Interpretation Act which provides:-

“ 43 where any form is prescribed by any act, an instrument or document which purports to be in such form shall not be void by reason if any deviation from that form which does not affect the substance of the instrument or document or which is not calculated to mislead.”
As the jural or certificate on the affidavits in question substantially complied with the jural prescribed for affidavit evidence by illiterates, in the Oaths Act and as a whatever deviation there might be is not shown to have been calculated to mislead, the objection is overruled.
Mr. Kaahwa also challenged a number of affidavits filed in support of the Petition on grounds that they raise new matters not convassed in the Petition. Counsel contended that this amounts to a departure from and introduction of new matters which amounts to filing those grounds out of time. He cited affidavits Nos. 3, 10, 11, 17, and 18 sworn by Tibahwa Stephen, Tumuhairwe Posiano, Alinaitwe Wilber, Agaba Robert and Tweheyo Samwiri which raise complaints of allowing unauthorised persons to vote, the Presiding Officers voting for illieterates, failure to update the Register and to delete the names of voters who had since migrated or died, closing of the polling stations before 5.00 p.m. and of one Muganga who was not an election official  being in possession of a ballot box. Mr. Kaahwa contended that these affidavits should be struck out as the matters raised there in constitute fresh grounds of the Petition which many case were filed outside of the time within which the Petition and its grounds ought to have been filed. Mr. Patrick Mugisha reinforced the objection to these affidavits in question and invited court to strike them out on the  authority of the case of Amama Mbabazi Vs. Musinguzi Garuga CA. Civil Appeal No. 12/2002 where the Court of Appeal upheld the critism of the trial Judge for making a finding on a matter that had not been pleaded.

Mr. Musana, the learned lead Counsel for the Petitioner submitted that while the Petitioner concedes that the affidavits in question were filed after the time set for filing the grounds of the Petition, the said affidavits did not at all raise fresh grounds. He pointed out that while the Petition generally alleges the illegal practices and electoral offences committed by the Respondents, the affidavits complained of adduce evidence of such illegal practices and electoral offences but in no way state new grounds on which the Petitioner bases his Petition. Counsel submitted that the reasoning behind the objection is fallacious and misconceived and prayed that the objection be overruled.

Under Section (4) of the Local Government Act a petition challenging the result of an election must be filed within 14 days after the day on which the results have been notified   by the  electoral Commission in the gazette. It follows therefore that an election Petition brought under that act after the expiration of the time limited as above is decidedly out of time and incompetent as it will have been barred by law. Mr. Musana conceded that the time within which to file the instant petition expired on 19th May, 2006 and that the affidavits in question were filed after that date. The relevant issue to decide here is whether the contents constitute new grounds as opposed to the grounds contained in the Petition itself.

The new grounds allegedly raised in the offending affidavits include the illegal practices of the Presiding Officers allowing unauthorised persons to vote the Presiding Officer voting for illiterates, failure to update the voters’ register and to delete the names of those voters who had since migrated or died, election materials falling into the possession of unauthorised persons and election officials closing the polling stations before the official closing time of 5.00p.m. and chasing away voters who were already in the queue ready to vote.

I have very carefully perused the Petition and the grounds of the same together with the contents of the offending affidavits No. 3, 10, 11, 17 and 18 on the court record sworn by Tumuhairwe Posiano, Alinaitwe Wilber, Agaba Robert, Tweheyo Samwiri and Tibahwa,. Except for affidavits 17 of Agaba Robert which allows failure by Rabwoni John  and John Papa to update the Register of voters and to delete the names of voters who had migrated or died and except for the contents of the affidavit of Tweheyo Samwiri which has in any case been struck out all the other affidavits refer to incidents of illegal practices and electoral offences which form grounds of the Petition. For instance paragraph 7 (a) of the Petition made the fact of the ballot box falling into the possession of unauthorised persons a ground. In the affidavit of Tibahwa Syephen he avers that he saw one muganga who was not an election official transporting a ballot box  on his motor cicyle on the polling day. In my view the Petitioner in filing this particular affidavit did not intend to file a fresh ground of the Petition but was rather adducing evidence to the fact that a ballot box was found in unauthorised  hands. The Petitioner made the fact that the Presiding Officers allowed unauthorised persons to vote and they themselves voted for illiterates, which are illegal practices grounds of the Petition. The affidavit of Alinaitwe providesthe evidence of these illegal practices by citing incidences that prove them. Alinaitwe was therefore not raising any new grounds as suggested by Counsel for the Respondent. The same illustrations  applies to the affidavit evidence of Tumuhairwe Posiano. From the above I find that execpt for the affidavit of Agaba Robert alleging failure to update the voters register and delete the names of voters who had migrated and died, the rest of the affidavits raise no new grounds of the Petition. The objection succeeds only in respect of the affidavit of Agaba Robert but fails in respect of the other affidavits. I have looked at the case of Amama Mbabazi Vs. Musinguzi Garuga (Supra) but did not find it very useful as it concerned a situation where a finding was made on a point which was not a ground of the Petition.

Mr. Kaahwa further attached affidavits  Nos. 5, 10, 12, 17, 22, 24, 34, 42, 54, 57, 61, 70, 71, 89, 94, 99, 144 and 156 sworn by Asiimwe Robert, Tumuhairwe Posiano, Tumusiime Bwire, Agaba Robert, Kaija Morris, Byamaraki, Kyamanywa Mzee Majara , Alii, Mwanguhya Joseph, Gaston Maliro, Rutankundera Edward, Julius Kihika,  Mwirumubi, Kazoora Wilfred, Stephen Rwankwenge, Kawesa Edward, Otuganyire Amos and Kazooba Wilfred. He contended  that these affidavits were sworn contrary to Section 32 of the Parliamentary Elections Act because  the deponents of these affidavits claim to have variously sworn the same as mobile agents, cordinators monitors and supervisors of the Petitioner and yet Section 32 of the above act only provides for the appointment of 2 polling agents by each candidate.

I failed to see the merit on this objection. Section 32 of the Parliamentary Elections merely provides for polling agents who take care of the interests of the candidate at the polling station. It does not appear to me to prohibit employing any of his supporters by whatever name to take care of his interests. Nor does Section 32 of the above act restrict  persons to give evidence in favour of the Petitioner or in favour of any other party to a Petition to agents appointed under that Section. This  objection has no merit and it must fail.

BURDEN AND STANDARD OF PROOF:-

In an election Petition seeking to nullify the election of a Chairman or member of a Local Council, the burden of proof lies on the petitioner to prove the allegations to the satisfaction of the Court as provided for in Section 139 of the Local Government Act.

The standard of proof has also now been put beyond debate by the Supreme Court in Retired Col Dr. Kiiza Besigye Vs Kaguta Museveni Election Petition 1/2001 where the Court stated that the standard of proof on election Petitions is on a balance of probabilities. However because the allegations on an election Petition which the Petitioner has to prove are invariably criminal, the degree  of the probability of proof is higher than in ordinary Civil suits. See Karokora Katono Zedekia Vs. The Electoral Commission and Kagonyera Mondo Election Petition No. 0002/2001.

Mr. Mwene Kahima learned Counsel for the 2nd Respondent cited a number of cases from other jurisdictions to justify his submission that the standard of proof on election petitions is beyond reasonable doubt. These cases included the Nigerean case of Alhaji Mohamed Dikko Yusuf & Another & Chief Olusegum Aremu Akikola Obasanjo & 53, No. CA /A/EP/1/2003 The Zambian case of Anderson Kambela Mozooka Lt. General Christon Sijapi Tembo Godfrey Kenneth Muyanda & Levy Patrick Mwwanamwasa, the Electoral Commission, The Attorney General SCZ/EP/01/02/03/2002 and the East African Case of Mbowe Eliofo 1967 CA. In view of the statement of the Uganda Supreme Court of Uganda in respect of the standard of proof in election Petitions those case are not good Law. The standard of proof for purposes Election Petitions in our Courts is that on a balance of probabilities.

Having set down the standard of proof in the present Petition I now propose to discuss the issues framed one by one. Counsel submitted first  on the 3rd issue followed by issues Nos. 1, 2 and 4.

ISSUES NO. 3:-

Whether any illegal practices and /or election offences were committed by his agents with his knowledge, consent or approval.

Section 139 of the Local Government Act as follows:-

“ 139. The election of a candidate as a Chairperson or a member of a Council shall only be set aside on any of the following grounds if proved to the satisfaction of the Court.
(a)     
That there was failure to conduct the election in accordance with his part of the Act and that the non compliance  and failure affected the result of the election in a substantial manner.

(b)     
That a person other than the one elected purportedly won the election.

(c)     
That on 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.

(d)     
That the candidate was at the time of his/her election not qualified or was disqualified from election.
As far as issue No. 3 is concerned the Petitioner relies on Section 139 ( c) above. To succeed on this issue the Petitioner must on a balance of probabilities prove either that the 1st Respondent committed the alleged  malpractices personally or that they were committed with his knowledge and consent or approval. While adducing evidence to prove that the 1st Respondent committed the illegal practices and election offences presents no problem it is more difficult to prove that the alleged illegal practices or election offences were committed with the 1st Respondent’s knowledge and consent or approval. This brings in the law concerning agency.

AGENCY:-

The law of agency as relates to Election Petitions was discussed in great detail Oder ISC as he then was in his judgment in the case of Col (Ret) Dr. Kiiza Besigye Vs. Kaguta Yoweri Museveni Supra at page 470. I will set out the relevant passage in whole as it eloquently summarises law in that regard:-

“ The general principles of the law of agency apply to elections as well. However, the relationship between an election candidate and his agent is much more intimate than that which subsists  between an ordinary principal and agent. For as regards a Parliamentary election the candidate is responsible for all the misdeeds of  his agents committed within the scope of his authority, although they were done against his express directions and even in defiance of them.

An agent is a person employed by another to act for him or her and on his /her behalf either generally or in prove particular transaction. The authority may be actual or it may be implied from the circumstances. It is not necessary in order to prove agency to show that a person was actually appointed by the candidate. If a person not appointed were to assume to act in any department of service as an election agent, and the candidate accepted his service as such he would thereby ratify the agency, so that a man may become agent for another in either of two ways, by actual employment or by recognition and acceptance .--------------if a person were appointed or accepted as an agent for canvassing generally, and he were to bribe a voter, the candidate would thereby lose his Parliamentary seat. But if he was employed or accepted to canvass a particular class for instance a master were to ask the agent to canvass  his workmen and the agent were to go out of his way, and bribe a person who was not the candidate’s workman. The candidate would not be bound. In the one case the agent would be acting with us . The scope of his authority, though it may be in the abuse of it, in the other , he would be acting beyond his authority and he would be no more to the candidate than a stranger. It follows that if a person whom the candidate had not authorised to canvass  at all, or take such part in the management if the election as including canvassing, whatever else she was employed to do, the agent were to take upon himself to bribe  a voter, the candidate would not be responsible. See The Digest of Annoted British Commonwealth & European Cases 1982 Russue, Butherworths & Co. (Publishers)  Ltd. 1982 page 72.”

The learned JSC made reference in his judgment to the law on agency for electoral purposes as stated in Halsbury”s Laws of England 4th Edition Vol. 15 para. 698 which is to the effect that in order to prove agency, it is not necessary to show that the person was actually appointed by the candidate or that he was paid.

The crucial test is whether there has been employment, or authorisation of the agent by the candidate to do some election or the adoption of his work when done. The candidate however, is liable not only for the acts of the agents when he has himself appointed or authorised, but also for the acts of the agents employed by his election agent or by any other agent having authority to employ others. Oder JSC as he then was, was discussing the law of agency as applicable to Parliamentary elections which he held was applicable to Presidential Elections. The same law and principles of agency are in my view applicable to elections to the Local Councils with equal force.

With regard to the illegal practices and electoral offences complained of by the Petitioner, I propose first to deal with those the 1st Respondent is alleged to have committed personally and then I shall proceed to deal with those allegedly committed with the knowledge or consent or with the approval of the 1st Respondent.
USE OF LOCAL COUNCIL OR GOVERNMENT FACILITIES CONTRARY TO SECTION 126 OF THE LOCAL GOVERNMENT ACT:-
It is alleged in paragraph  13 (b) of the Petition that contrary to the provisions of Section 126 of the Local Government Act, the 1st Respondent who during the election in question was the incumbent L.C.V Chairperson Kyenjojo District used the official vehicle  of the L.C. V Chairperson, a Toyota Land Cruser Reg.  No. LG 0025 – 50 to conduct his campaign. The Petitioner in paragraph 18 of  his affidavit in support of the Petition averred that when the  1st Respondent used the official vehicle for the L.C.V Chairperson to wit Motor vehicle LG 0025 – 50, he wrote to the Chief Administrative Officer of the District about this illegal practice per his letter dated 15th February 2006 which is D exh. 4  on the Court record. He further deponed that  because no action was taken the 1st Respondent  continued using the said official vehicle which was all along being driven by the official driver one Sam Rubiibi.
To further prove the allegations of the above illegal practice or electoral offence, the Petitioner relied on the following affidavit evidence:-

No. of Affidavi
On the Court Record                       Deponed by:
100     
Magezi Abubaker
101     
Musinguzi Paul
106     
                      Basaliza Kyalimpa
122.    
                                                   Kirungi Kyalimpa
123     
Mrs. Alice Basaliza
124     
Geofrey Kayondo
125     
Stephen Basaliza
126     
Peter Bacwa
127     
Mugisa Patrick
128     
Tibenda Stephen
157     
                                                    Margaret Kyamanywa
158     
              Ajuna Apolo Kasangaki
140     
Kiiza Henry Buhwa
142     
                       Zaribwende Omuhereza
143     
                       Owoyesigire Omuhereza
144.    
             Otuganyire Amos.

Magezi Abubaker, Musinguzi Paul and Basaliza Stephen deponents of affidavits 100, 102 and 106 respectively aver that the 1st Respondent used motor vehicle, LG 0025 – 50. The official vehicle for the LC V Chairperson through out the campaign period to conduct his campaign. In particular they refer to an occasion on the 1st day of February 2006 when the 1st Respondent addressed a rally at Rwaitengya Parish having travelled there in said vehicle driven by the official driver one Sam Rubiibi – Musinguzi Paul also rebutted the denial of Sam Rubiibi of his driving the vehicle during the period in question.
Kirungi Kyalimpa in his affidavit No. 122 avers that he did see Sam Rubiibi who was driving the official vehicle of the LC. V. Chairperson of Kyenjojo District drop the 1st Respondent at Kikara’s Bar. When he crossed the road the witness saw the said official vehicle parked at the Polling Station and Sam Rubiibi surrounded by a crowd. Rebutted the denial of the 1st Respondent and his official driver of using the vehicle during the campaign period. Alice Basaliza in her affidavit 123 testified that she saw Sam Rubiibi driving the official vehicle of the L.C.V Chairperson to the Polling Station which he later parked at the home of Kabahuma. He drove away when he was attached by the youth. Geofrey Kayondo in affidavit 124 averred that he was informed by one Baguma Kanyuma at 300 p.m. that the 1st Respondent was at the Trading Centre bribing voter’s official vehicle LG 0025-50  being  driven by Sam Rubiibi which the latter parked at the Polling Station. The vehicle was only driven away when Sam Rubiibi was confronted by the supporters of the Petitioner.

In his affidavit 125 Stephen Basaliza’s testimony is that he saw  Sam Rubiibi, his wife and a brother of the 1st Respondent in the official vehicle of the 1st Respondent at Rwaitengya Trading Centre. The vehicle was parked at Ibrahim Kasangaki’s shop where they met the 1st Respondent’s agents Samson Manyindo and Mrs. Baguma. He averred that Sam Rubiibi then drove to Kikara’s bar where the 1st Respondent was said to be buying drinks for the voters. When the 1st Respondent was confronted by the youth he left in the said official vehicle.

Peter Bacwa and Mugisa Patrick the deponents of affidavits 126 and 127 gave similar evidence to the effect that while at the Polling Station they saw the official vehicle of the LC. V. Kyenjojo District Reg. No. 0025-50 being driven by Sam Rubiibi who parked it directly opposite the Polling Station. Because Sam Rubiibi and the 1st Respondent were being accused by the public of bribing voters. The former drove away and parked at the Trading Centre. Mugisa  Patrick was the Presiding Officer at  this Polling Station. Tibenda Stephen Omuhereza, who swore affidavit 128, rebutted the claim by Moses Kikumbo that he was during the campaigns employed in a private vehicle. He averred that that this could not have been possible because the said Moses Kikumbo was himself a candidate and was seen canvassing votes for himself in the Nissan Sunny looking for his own votes.

In her affidavit 157 Margret  Kyamanywa averred that Baguma reported to her that the 1st Respondent and his group were distributing money and buying drinks for voters at Kikara’s bar. She saw Sam Rubiibi, his wife and two other people in the L.C.V Chairperson’s official vehicle parked opposite the polling Station. She approached them and challenged them why they were bribing. A commotion followed and Sam Rubiibi drove away. Ajuna Apolo Kasangaki who swore affidavit 158 averred that he saw the 1st Respondent disembark from Motor vehicle LG 0025-50 driven by Sam Rubiibi. The 1st Respondent called him and others into a bar where the 1st Respondent bought a 3 litre jerrycan of potent gin known commonly as (kicooli) and gave it to the people present to drink. In the mean time Sam Rubiibi had parked the said vehicle at the house of the father of the witness one Ibrahim Kasangaki. The deponent of  affidavit 140 Kiiza Henry Buhwa averred that he is resident in the house that adjoins Matiri Trading Centre Polling Station ground. On polling day he saw the 1st Respondent being driven on motor vehicle LG 0025- 50 by Sam Rubiibi. He also testified that it is not true that Moses Kikumbo was driving the 1st Respondent as he had his own campaign to conduct his  Nissan Sunny 1200. Owoyesigire Omuhereza and Otuganyire Amos who swore affidavits 143 and 144 respectively averred in identical terms that on polling day they saw the 1st Respondent being driven at Matiri Trading Centre at the Matiri Trading Centre Polling Station where he came out armed with a gun.

Apart from the above evidence the Petitioner relies on to prove the use of Local Council or Government Facilities ad in particular  the Official LC. V Chairperson’s vehicle Reg. LG-0025-50, the Petitioner also relies on the following affiavits:-
No. of Affidavits
On the  Court Record                      Deponed by

53      
                   Samuel Katusabe
62      
Kyaligonza Stephen
54      
                   Mwanguhya Joseph
63      
Kiiza Henry Buhwa
55      
                   Olive Kansiime
66      
Manyindo Wilson
67      
Nalongo Katenta
129     
Paddy Rubongo
130     
Nyakahuma Stephen
132     
                                                    Agaba Richard
131     
Basaliza Tadeo
133     
                                                    Atuhairwe K. James
134     
                                                    Muhumuza Bosco Ronald
135     
                                           Byaruhanga Vicent
136     
                                                    Bigwire Faith
137     
                                           Malidadi Kusema
149     
Irumba Patrick
152.    
                                         Oliver Bahemurwaki
148                                                    Ategeka Vincent
143                                                    Owoyesigire-Omuhereza
144                                                    Otuganyire Amos
145                                                    Kamarwaki Everest
146                                                    Tweheyo Fred
147                                                    Nsungwa Getrida
138     
              Augustine Bitamazire

All the above deponents averred that on polling day at around 11.00a.m. they saw the 1st Respondent being driven by his official driver Sam Rubiibi on motor vehicle LG  0025 – 50 which is the official vehicle of the LC. V. Chairperson of Kyenjojo District.

Both in his reply to the Petition and in paragraph 17 of the affidavit in support of the answer to the Petition  the 1st Respondent denies having used the official vehicle of the L.C.V Chairperson of Kyenjojo District  for his campaign. He averred further that during the period in question he used a hired  Land Rover Reg. No. UAG 819 and his personal motor vehicle Registration No. UAF 703 L.

Nsungwa Alphael who swore affidavit No. 67 for the 1st Respondent averred that on polling day at about 10.00a.m. the 1st Respondent came to Matiri Trading Centre driving a small car. He stopped at the stage at the Trading Centre and handed the keys of the car to Moses Kikumbo who drove it towards Kampala.

Sgt. Kamanyire Philip, deponent of affidavit 115 for the 1st Respondent, averred during the election campaigns the 1st Respondent used his private vehicles Reg. Nos UAF 703 L and UAG 819 M and was being driven by Kikumbo Moses. He testified that on polling day he was in the campaign of the 1st Respondent throughout the day. The 1st Respondent passed through Matiri Trading Centre that day to pick his driver.

The deponent of affidavit 144 for the 1st Respondent, Asiimwe Sulaiman deponed that during  the campaign he was the driver of the 1st Respondent in Land Rover Reg. No. UAG 819 M and also drove the 1st Respondent’s private vehicle UAF 703L. Rubiibi Samuel the official driver of the 1st Respondent who swore affidavit No. 46 for the 1st Respondent averred that the official vehicle of the L.C.V Chairperson was handed over to the Chief Administrative Officer and on no account  did he drive the same during the campaigns.

Mr. Katutsi submitted that the above evidence overwhelmingly proved that the 1st Respondent contrary to Section 126 of the Local Government Act used Motor vehicle No. LG 0025 – 50 which is a local Council facility during his campaigns. He argued that the fact that as a result of the complaint by the Petitioner P. Exh. 4, the Chief Administrative Officer Kyenjojo District wrote Annexture 5 to the 2nd Respondent’s answer to the Petition which is exhibit P.2.- 1 on the court record restraining the 1st Respondent from using the said official vehicle proved that indeed the 1st Respondent was using it. He submitted that inspite of  having been restrained , the 1st Respondent obstinately continued to use the said motor vehicle as testified to by the numerous affidavits sworn in support of the Petitioner’s case. Counsel submitted that from the numerous affidavits pinning the 1st Respondent in this illegal  practice, the only inference is that he indeed did commit the same as it is inconceivable that up to 30 people could have got together to conspire to falsely implicate  the 1st Respondent in this illegal practice. Mr. Katutsi invited  Court to find that the Petitioner has proved this illegal practice on a balance of probability which on itself applies to nullify an election under the provisions of Section 139 ( c) of the Local Government Act.

Mr. Patrick Mugisha the lead Counsel for 1st Respondent submitted that Section 126 of the Local Government Act prohibits the use of Local Council or Government facilities for campaigning. He argued that in the instant case the affidavit avers that a deponent saw the said official vehicle was being used by the 1st Respondent in the midst of campaigns nor did the Petitioner make such a complaint and at that the Petitioner in cross-examination denied seeing the 1st Respondent using the said vehicle during the campaigns.

Mr. Mugisha attached the evidential value of P. E. X. 4 and EX  P.2 – 1 because these did not state the dates of the use of the vehicle. He pointed out that the Returning Officer/Chief Administrative Officer of Kyenjojo District Muhenda R. Owen in his letter to the 1st Respondent merely stated the law but  no finding that he had been using the said vehicle. Counsel submitted that even if such a finding had been made, it would  have been  contrary to the rules of natural justice as an explanation was not sought from the 1st Respondent. Counsel contended certain affidavit which were out of time aver that the 1st Respondent was seen using the vehicle in question of the campaign period and therefore not covered by Section 126 of the Local Government Act.

The relevant part of Section 126 of the Local Government Act with regard to the matter under consideration reads as follows:-

“ 126 ( 1) Except as otherwise provided in this section, where a candidate is a Chairperson or holds any other political or public office, he or she shall not use local Council or Government facilities for the purpose of campaigning for election under this Act.

(2) Where a candidate holds any political office, he or she shall during the campaign period restrict the use of the official facilities ordinarily attached to his or her office to the execution of his or her duties.”
This  section is intended to ensure that candidates contesting against those holding political office are at par and that the latter don’t have unfair advantage over their competitors at the expense of the public.

Though Mr. Patrick Mugisha submitted that none of the many people who swore affidavits in support of the case for the petitioner avers to having seen the 1st Respondent using the official vehicle during the campaigns, Magezi Abubaker, Musinguzi Paul and Basaliza Stephen in their affidavits 100,102 and 106 respectively, all aver  that the 1st Respondent used his official vehicle throughout the campaign period and cite a campaign meeting he held at the home of Byamukama alias Sadam on the 1/2/2006 to which he traveled in the official vehicle Reg. No. LG 0025-50.

Counsel also argued that the affidavits which claim to have seen the 1st Respondent using the official vehicle were out of time. Earlier in this judgment, the matter of these affidavits was exhaustively dealt with and they were found not to be out of time as none of them  raised new ground of the petition but  merely provided evidence of the grounds of the Petition.
Mr. Patrick Mugisha also submitted that Section 126 of the Local Government Act applies to campaigns done during the campaign period gazetted by the Electoral Commission. He contended that on the instant case the campaign period gazetted in the Uganda Gazette of 13th January 2006 was between 16th January 2006 and 26th February 2006 and therefore even if the 1st Respondent used the said vehicle on polling day such use did not fall under the arm  of Section 126 of the Local Government. I must respectfully disagree. Section 126 above merely talks about campaigning but not campaigning  during the campaign period. To limit using of such facilities during the campaign period, which is not even  the provision in the first place, would lead to ridiculous consequences. The mischief Section 126 of the Local Government Act seeks to get rid of is an employee of a Local Government gaining undue advantage over his/her opponents in election by using public resources. To say it is alright for such a political leader to take such advantage to campaign or canvass for votes outside of the campaign period would be to defeat the purpose of the law. I make a finding that Section 126 of the Local Government operates from the time a person becomes a candidate until the conclusion of the election.

With regard to the evidence  adduced by the Petitioner to prove the allegation of the use of the official vehicle by the 1st Respondent contrary  affidavits all aver that they saw the 1st Respondent on polling day being driven in motor vehicle LG 0025- 50 by Sam Rubiibi.

The rest of the affidavits are by deponents who saw the 1st Respondent being driven in motor vehicle LG 0025- 50 by Sam Rubiibi at Matiri Trading Centre and Matiri Polling Station.
The 1st Respondent and Sam Rubiibi in his affidavit No. 146 dispute  these allegations. They are further supported in this by the affidavits of Sgt. Kamanyire, Moses Kikumbo and Asiimwe Sulaiman whose affidavits are 115, 72 and 114 in support of the Reply to the Petition by the 1st Respondnet. There are others though but not as specific in denial.

I have carefully evaluated the affidavits of both for the Petitioner and the 1st Respondent . In all the affidavits  for the Petitioner, the deponents are specific as to the time of arrival of the 1st Respondent, the Registration of the official vehicle he was driving in, the driver of the said vehicle and even the passengers on the vehicle. Though in law a fact is not necessarily proved by the size of the numbers alone, in the instant case over 40 affidavits with no major contradictions aver that they saw the 1st Respondent using the said vehicle. Like the learned Chief Justice B, Odoki wondered in Col (Ret) Col  Kiiza Besigye Vs. Kaguta Yoweri Museveni (Supra) it is not  possible that over 40 people would conspire to accuse the 1st Respondent if he was innocent. I find that the affidavits sworn in support of the case for the 1st Respondent are a pack of lies.

Mr. Patrick Mugisha attempted to discredit the evidential value of the letter of the Returning Officer / Chief Administrative Officer saying that it didn’t make a finding that the 1st Respondent was using the said vehicle and that it merely stated the law. This argument is based on the premises that both the 1st Respondent and his official driver claimed that the said vehicle was surrendered to the Chief Administrative officer and was parked on the District Headquarters yard. If this had been the case the Returning officer would not have written to the 1st Respondent spelling the legal requirement to desist using the vehicle. In such circumstances  what he would probably have done would have been to reply to the Petitioner saying  he found no merit in his complaint. Having  instead written Exhibit  R 2 – 1 to the 1st Respondent leads to the inference  that the letter had not surrendered his official vehicle and was indeed using it in the campaigns as alleged. That must have been the only reason.

Moses Kikumbo who had sworn affidavit 72 in support of the answer to the Petition by the 1st Respondent averred that during the election campaigns  he was employed by the 1st Respondent to drive the latter’s private motor vehicle UAF 703 L. Apart from evidence on behalf of the Petitioner that Moses Kikumbo could not have been employed  to drive the 1st Respondent because he himself was a candidate and had to canvass and indeed canvassed votes himself in his Nissan Sunny 1200 Pick-up, Asiimwe Sulaiman in his affidavit 144 deponed that he was throughout the campaigns the drive of the 1st Respondent in Motor vehicle UAG 819 M Land Rover.

From the evidence adduced by the Petitioner, which I find to be overwhelming, I find the Petition has proved on a balance of probabilities that the 1st Respondent used the official vehicle of Kyenjojo District Local Council to conduct his campaign contrary to Section 126 of the Local Government Act.

CARRYING A FIRE ARM AT A POLLING STATION

It is alleged in paragraph 13 (a) of the Petition that contrary to Section 42 of the Parliamentary Elections Act the 1st Respondnet went to Matiri Trading Centre Polling Station on poling day armed with an AK 47 Assault  Riffle. To prove this illegal practice the Petitioner relied on the affidavits of the very witnesses who swore affidavits to seeing the 1st Respondent use the official vehicle of the L.C.V Chairperson at Matiri Trading Centre Polling Station. The relevant affidavits which have already been listed above are 53, 62, 54, 63, 55, 66, 67, 129, 130, 132, 131, 133, 134, 135, 136, 137, 149, 152, 148, 143, 144, 145, 146, 147  and 139 in support of the Petition. The evidence in these affidavits is generally that the deponents saw the 1st Respondent being driven in the official vehicle of the LC.V Chairperson by Sam Rubiibi who was his official driver. On arrival at the polling station the 1st Respondent disembarked  armed with an AK 47 Assault Riffle. He held the Riffle in the left hand while in the right hand he carried a walking stick. The deponents all stated that the above event took place on polling day as around 11.00a.m.

A few of the deponents added details of what transpired. Sam Katusabe who was at the polling station and swore affidavit 53 deponed that the said official vehicle was driven to the polling station and parked next to his own vehicle. In that vehicle there were the 1st Respondent his uniformed and armed guard the driver and a  fourth man he did not know. It was his evidence that the 1st Respondnet asked Mwanguhya Joseph what he was doing at the polling station and on Mwanguhya Joseph asking him why he was carrying a gun, he replied that things had become tough and that he was going back to Kyankwanzi. Mwanguhya then asked the 1st Respondent why he should go to Kyankwanzi instead of going to the District Headquarters.

Mwanguhya Joseph himself who swore affidavit 54 in support of the petition gave identical evidence to that of Sam Katusabe. Stephen Kyaligonza, the deponent of affidavit 62 in support of the Petition, after relating how the 1st Respondent came out of his official vehicle armed with a gun and walking stick, averred that he heard him say “ if it means going back to Kyankwanzi we shall go, if it means beating people we shall beat them” while Kiiza Henry Buhwa the deponent of affidavit 63 stated that he heard the 1st Respondent say “ if it means  beating people we shall beat them, we are going back to Kyankwanzi.

In paragraph 8 of his answer to the Petition, the 1st Respondent denied going to Matiri Trading Centre polling station armed with a gun on polling day. He was supported by Nsungwa Alphael who swore affidavit 67 in support of the 1st Respondent’s reply and by Kamanyire Philip the deponent of affidavit 115. Nsungwa Alphael averred that on polling day the 1st Respondent went to Matiri Trading Centre to pick up his drive Moses Kikumbo but he did not reach Matiri Trading Centre polling station. The witness did not see the 1st Respondent armed. Kamanyire Philip deponed that he was the bodyguard of the 1st Respondent and that on polling day the 1st Respondent was not armed as alleged. Affidavits 27, 73 and 68 sworn in support of the 1st Respondent’s reply by Kababito Leonida, Moses Kikumbo and Kantu Samuel Abooki respectively also support the case of the 1st Respondent.

Mr. Musana submitted that by going armed to Matiri Trading Centre polling station the 1st Respondent committed an illegal practice contrary to Section 42 of the Parliamentary Election Act. He submitted that this electoral offence is created in Local Government’s elections by the provisions of Section 172 of the Local Governments Act which provides as follows:-

“ 172. For any issue not provided for under  this part of the Act, the Presidential Elections Act and the Parliamentary Elections Act in force shall apply to the elections of Local Councils with such modifications as may be deemed necessary by the Electoral Commission.”
He submitted that in view of the above S. 42 of the Parliamentary Elections Act is part and parcel of the Local Government Act and therefore applicable. The 1st Respondent committed the offence or illegal practice personally and therefore the case falls squarely under S. 139 ( c) of the Local Government Ac, Counsel argued. He pointed out that the incident is testified to by  up to 30 affidavits which constitutes overwhelming evidence.

Mr. Patrick Mugisha submitted that the interpretation assigned to Section 42 of the Parliamentary Elections Act vis avis Section 172 of the Local Government Act is not correct because Section 42 above is an applied provision. He submitted that the Local Governments Act  creates illegal practices and election offences in Sections 147 – 159 but deliberately excludes the offence created in Section 42 of the Parliamentary Elections Act  which could not have escaped the attention the attention of the Legislature. Counsel contended that it is not possible for the Legislature to create an offence by mere reference as that would offend against the fundamental principle of criminal law that no one shall be punished for an offence unless it is specifically provided for by Statute. Mr. Patrick Mugisha argued that the provisions of Section 172 can not be used to interprete the word “ this act” under Section 139 ( c) of the Local Government Act to include Parliamentary Elections Act because:-

(a)     
The adaptation is so general that it could not have been intended to create criminal offences.

(b)     
By its couching it required the Electoral Commission to adopt specific provisions.
(c)     
The purported application is only directory in  nature and only intended to make the Electoral Commission, while carrying out its function, to revert to other provisions for procedural purposes.

(d)     
The specific provisions on which this complaint is grounded is section 139 ( c) of the Local Government Act. That provision relates only to offences committed under the Local Governments Act. The provision had in mind that there were other offences that could be committed by a candidate punishable by any other law- but singled out only those committed under the Local Governments Act.

On the evidence with regard to the 1st Respondent going to Matiri Trading Centre Polling Station Mr. Patrick Mugisha found it contradictory. Counsel submitted that it was the 1st Respondent’s bodyguard who was armed but not the respondent himself. He argued that for the 1st Respondent to go within one kilometre of a polling station with his armed security and was not in breach of Section 42 of Parliamentary Elections Act.

Section 42 of the Parliamentary Elections Act makes it an offence for a person, while armed with armed or ammunition during any part of polling day to approach within one kilometre a polling station reads in full:-

“ 42 (1) Any person shall not arm himself or herself during any part of polling day, with any arms or ammunition or approach  within one kilometre of a polling station with arms and ammunition unless called upon to do so by lawful authority or where he or she is ordinarily entitled by virtue of his or her office to carry arms.”
No such offence is directly created in the Local Governments Act. However Section 172 of the Local Governments Act imports that offence by reference. It provides:-

          “ 172 For any issue not provided for under this part of the Act, the Presidential Elections Act and the Parliamentary Elections Act in force shall apply to the elections of Local Councils with such modifications as may be deemed necessary by the Election Commission.”

I agree with Mr. Patrick Mugisha that the drafting of Section 172 of the Local Governments Act is rather ackward as far as it is couched in general terms and by it the legislature appears to have aided part of its powers to the electoral commission giving it powers to modify provisions of an act of Parliament. The fact that the Electoral Commission has so far under taken no such modifications is evidence that it did not consider itself up to the task. This appears to be the only aspect of Section 172 of the Local Government Act but not the general reference to the Presidential and Parliamentary Elections Acts.
Mr.   Mugisha  dwelt  on the intention  of the  legislature and submitted that had Parliament wished to make the offence  created under Section  42 of the Parliamentary Act an offence  under the  Local Government Act it would  have directly   provided for it in the    latter Act. Not  having done so, it could not have intended that the offence  would  be created by reference under S. 172  of the  Local Government Act, he contended.

Still  talking of  the wisdom of the legislature , if it did  not  wish the     offence under Section 42 of the Parliamentary Elections  Act to be created  by  reference under Section 172 of the Local Government Act it would   in its wisdom have excluded it expressly from those provisions of the Presidential and Parliamentary Elections Acts.

I also agree that legislation  by reference  is  not  the best of practice   particularly in  case of offences  with  penal sanctions. In this case the three Acts, the Parliamentary Elections Act, Presidential Elections Act and the Local Governments Act are of one genuine. Their objective is democratization  of Uganda  society  by the holding of  free and fair elections leading to good  governance. They are not  primarily penal in intent. Given the wisdom of the legislature it would not have intended that going  armed within one kilometer of a polling station which militates against the principle of free and fair elections  is an offence under the Parliamentary Elections Act but not under the Local Government Act. Such  a position  would be  contrary to the letter  and spirit of Article 61 of the Constitution . Though  Section 172  of the Local Governments Act  may not be the best  example  of draftmanship, it all the same   incorporates Section 42  of the   Parliamentary  Elections Act into the  Local Governments Act making it an offence thereunder.

With regard to the evidence in proof of the  allegation that the 1st  Respondent  went to Matiri Trading Centre  Polling Station , armed with a gun, the Petitioner relied on the  evidence  of the thirty or so witnesses who deponed  that they   saw the 1st Respondent    being driven in the  Kyenjojo District  LC. V Chairperson’s  official vehicle   on polling day. In  their same   affidavits , they  averred that  the 1st  Respondent   came to the Polling  Station at 11.00a.m.  disembarked from the vehicle  carrying   an A.K.  47   gun in  the left  hand and a walking stick on the right hand. In  particular Mwanguhya Joseph, who swore affidavit No. 54M  support of the petition  ,  deponed   that he  confronted  the 1st  Respondent  and asked him  why he had come  to the polling station armed to which the latter replied
“   things have become  tough, I am going back to Kyankwanzi”   The deponent of affidavit 53  Sam  Katusabe swor e to having  heard the above  conversation   and to have seen  the 1st Respondent armed as alleged. The  deponent of   affidavit 62 Kyaligonza Stephen  and Kiiza Henry  Buhwa  in  his affidavit No. 63 both averred to having heard the conversation between the 1st Respondent  and Mwanguhya Joseph.  Though    they differ on what the former said  to Mwanguhya Joseph. According  to Kyaligonza Stephen the 1st Respondent  said “  If it   means going back to Kyankwanzi  we shall go, if it means beating   people  we shall beat them and  according to Kiiza Henry  Buhwa the 1st Respondent is reported to have said “ if it means beating people we shall beat them, we are  not  going back to Kyankwanzi”.
The 1st Respondent denied the allegations  . He was supported in this  by the affidavits of Sergeant Kamanyire  Philip, Nsungwa Alphael  and Kikumbo Moses Nos. 115, 67 and 72 in support of the 1st Respondent’s  Answer to the Petition. In all these affidavits the deponents averred that on polling  day the 1st Respondent  was  not  armed and except  for passing  through Matiri Trading Centre, the 1st Respondent  did not reach the  polling station.

Though the 1st Respondent and his witnesses above denied going to Matiri Trading Centre Polling Station  there is the eye witness   evidence of close to thirty witnesses who deponed to seeing the 1st Respondent  at the Polling station armed with a gun. Some of  them  heard him and Mwanguhya Joseph exchange words.  These witnesses are the same ones who testified to seeing the 1st Respondent using his official  motor vehicle at the same Matiri Trading Centre Polling Station  and whose  evidence I had  found credible. Most of these  deponent s were residents of the neighbouring  village to that of the 1st Respondent  and the 1st Respondent  being a public political leader, there is no  chance that these  witnesses could  have  been  mistaken about the identity    of the 1st Respondent. Besides the whole  incident took place  during broad day light. Though the mere number of witnesses  is not in the  instant case the fact that about thirty witnesses all state having seen the 1st Respondent  on polling day  at  Matiri Trading Centre Polling Station armed with a gun is compelling. They are unanimous  in describing that the 1st Respondent carried the gun in his left hand while he held a walking  stick on the  right hand. It is also in conceivable that thirty witnesses would get together and  plot to implicate  another and at that with consistency.

Mr. Patrick Mugisha attached the evidence for the  Petitioner on the grounds that what Kyaligonza Sephen and Kiiza Henry Buhwa stated the 1st Respondent  to have  said to  Mwanguhya   Joseph  is different from what Mwanguhya  Joseph himself and Sam Katusabe  reported the 1st Respondent  to have  said.  I found  this discrepancy minor  as the root of the matter in issue is whether the 1st Respondent was armed at the polling station or not and not what he said.

In the result I am  inclined to reject the denial of the 1st Respondent. I believe the witnesses for the Petitioner  and find that the 1st Respondent indeed went to Matiri Trading Centre Polling Station armed with  an A.K.  47 Riffle Contrary to Section 42 of the Parliamentary Elections Act, and therefore committed the illegal practice  and electoral offence personally.

1ST  RESPONDENT’S  BODYGUARD GOING ARMED TO THE POLLING STATION

The Petitioner did not plead that an electoral offence was committed when the escort of the 1st Respondent one Sgt. Kamanyire went to the polling station at Matiri armed with a riffle. However a few deponents to the affidavits which  implicated the 1st  Respondent in going to Matiri Trading Centre polling station armed also aver that Sgt. Kamanyire Philip  the bodyguard of the 1st Respondent went to the Polling Station armed. Sgt. Kamanyire himself and the 1st Respondent in crossexamination admitted that much. On this basis Mr. Musana  submitted that it should be found  that the said  Sgt  Kamanyire  Philip  committed   an electoral offence or an illegal practice Contrary to Section  42 of the Parliamentary Elections Act with the knowledge  or consent  and approval of the 1st Respondent. On  this type of illegal practice  by body guards , Mr. Musana referred to the case of AMAMA MBABAZI VS. MUSINGUZI GARUGA ELECTION PETITION APPEAL NO. 18/2002 where the trial Judge was  criticized  for making a finding that the appellant’s body  guards had committed an election offence when the Petitioner had not pleaded such  an offence.  I am  of the view that the authority cited by Mr. Musana does not in  any way support his  case.  It is rather  in favour  of the 1st Respondent  in that it was not  pleaded in the  Petition that Sgt.  Kamanyire Philip   went to the Polling Station  Armed Contrary to Section  42 of the Parliamentary Elections Act with the knowledge or consent and approval. Mr. Musana’s  submissions in this regard is rejected.

USE OF GOVERNMENT OR LOCAL COUNCIL  FACILITIES  - BODY GUARD

There is no averment in the Petition that the 1st Respondent used a bodyguard being a Government or Local Council facility to conduct his campaign Contrary to Section 126 of the Local Government s Act. Nor is there any affidavit to that effect. However  during  the cross examination of the 1st Respondent  he testified that at the commencement of the campaigns  he  requested  for a body guard and one  Sgt. Kamanyire Philip was assigned to him. It was his evidence that the said Sgt. Kamanyire Philip provided him security  through out the campaign.

Mr. Musana submitted that this constitutes an admission that the 1st Respondent used a Government or Local Council facility to wit a body guard  to conduct   his campaign. Apart from not having  shown him  the   body guard was used to conduct  the 1st Respondent ‘s campaign . The Petitioner did not set down the use  of the bodyguard as a ground  of his  Petition nor did he adduce any affidavit evidence of this allegation. As this Petition  cannot be decided on grounds  other than those raised in the Petition, this  ground raised during submissions must fail. Besides what Mr. Musana describes as   an admission merely states that the 1st Respondent had a body guard during the campaign but not that he used such a body guard to conduct his campaign.

BRIBERY

The petitioner in paragraph 13  ( c) of the Petition alleges that the 1st Respondent  committed the illegal practice and electoral  offence  of  bribery Contrary to Section 147 of the Government Act.

In paragraph 16 of his affidavit  in support  of the Petition the Petitioner  avers that he received from his agents and supporters information that during the election there was widespread  bribery and  voter buying  by the Respondent, his campaign agents, managers and supporters in the run up to  the election and on polling day itself.

In support of this  allegation the Petitioner relied on the  affidavits of Rusoke  Moses, Mutambuzi Edison,  Tugume Siverino, Agaba Robert, Ntambineza Julius, Gaston Maliro,  Kituufu Zaverio, Julius Kihika, Mwirumubi, Kazooba Wilfred and Karugaba Patrick which are affidavits 6, 9, 12, 13, 15, 17  36,  57, 69, 70 and 73 in support of the Petition respectively.
Rusoke Moses  averred in his affidavit that on polling day one Kusemererwa a polling agent of the 1st Respondent  slaughtered  an animal (cow) at the Trading Centre near Kyongera polling station in Kyarusozi Sub-County and  issued the meat free  to voters whom he instructed to vote for his candidate. He also  averred in the same affidavit that Nyakahuma  John Bosco who was  the second  polling agent for the 1st Respondent in the  polling station bought “ busera” local alcohol  for voters and  instructed  them to vote for his candidate. Mutambuzi Edison  deponed that one Karaachi  a campaign agent for the 1st Respondent stopped voters  from going to vote at Kyongera Trading Centre polling station by bribing them. He added that the money given for bribing  was given by Mwesige who was the District  Councilor for  Kyarusozi Sub-County.

Tugume  Severino’s  testimony  was that the L.C.II movement  Chairman   bribed his fellow polling   agent one Bekunda, got two ballot  books or 100 ballot papers  from the Presiding Officer, ticked and stiffed  them  into the ballot box. Agaba  Robert deponed that the campaign agents of the 1st Respondent namely Kabarole L.C.I Chairman  Kyanguha, Bacwa  Stephen, Mwesige Francis, Kasaija John and one January bribed voters along the roads  leading to Buhura and Kagorra – Itambiro polling stations. He also deponed that this malpractices was orchestrated  by the Presiding Officer at Buhura polling station  one Adolf Kato a known supporter of  the 1st Respondent.

Gaston Maliro averred that as a coordinator of the Petitioner’s  campaign he witnessed widespread and serious  bribery and  vote buying by agents of the 1st Respondent. He made a police report against Rwanyabuzana at Nyaruzigati polling post under SD Ref. 05/02/03/06. Kituufu  Zaverio ‘s affidavit is to the effect that on polling day  two shops at Mahasa Trading Centre belonging to Namara and Mrs. Kaijabwango were open and were being used for distributing salt to induce voters to vote the 1st  Respondent. The shop owners confirmed to him that the salt was being given out so that the recipients could vote for the 1st Respondent. According to the affidavit   evidence of Julius  Kihika Mwirumubi  he found L.C. officials  at Rugombe Trading Centre distributing  money to voters on polling we and  soliciting votes for  the 1st Respondent . he reported the incident  to the police, the police  arrested the culprits who admitted  that they were distributing  money but on the instructions of L.CIII Chairman of Bugaaki Sub-County. Julius Kihika  Mwirumubi also averred that all the LC.s  in Bugaaki Sub-County were involved in the same malpractice . Sam Magezi who was the brain behind this malpractice was arrested while still dishing out money in Mabaale , Kyabaranga parish after having failed to answer police  summons. Kazoba Wilfred  deponed that Rwanyabuzana who was a campaign agent of the 1st Respondent and  the movement Chairperson in the area was reported to the police for bribing and arrested . The last affidavit in support of the Petitioner’s  allegation in this regard is that of Karugaba Patrick.

Patrick Karugaba who states that he is a Parish Youth Councilor and that he supported the 1st Respondent  as he was the NRMO flag bearer. He averred that   on polling day he was called from his business premises in Kijongobya to Mpara Trading Centre by one  Emmanuel  Tumusiime alias Brown who is the L.C.III Chairperson  and the 1st Respondent’s  Chief Campaign manager  in Mpara Sub-County. The latter gave him Shs. 20,000 to  hire a motor cycle  to cover Kijongobya , Kisagazi, Ruteerwa and  Kamutuumi  polling stations.  He also used the said motor cycle  to  transport voters to the poling stations to vote for the 1st Respondent. At Kijongobya polling station one Jane Mwesige who was the 1st Respondent’s polling agent informed him that the polling agent  of the Petitioner was too strict against cheating. He averred that the said Jane Mwesige gave to him Shs. 20,000 to  pass on to the Petitioner’s  agent to silence him. Mr. Karugaba Patrick  further deponed that after the above transaction with the agent of  the Petitioner, the Presiding Officer ticked 3 ballot books comprising 150 ballot papers in favour of the 1st Respondent  and stuffed them into the ballot box.

Again Emmanuel Tumusiime alias Brown approached him at 10am. On poling day and informed him that the polling agents of the petitioner at Kasagazi polling station were being stubborn. Emmanuel Tumusiime then gave him Shs. 30,000 and instructed him to proceed there and bribe the agent s so that they could keep quiet.  He proceeded there as instructed and gave Shs. 10,000  to the Presiding Officer  one Katusabe Christopher Shs. 10,000 Mugisha Richard one of the polling agents of the petitioner   and  Shs.  5000 to each of the 1st Respondent’s  polling  agents Mwesige Vinent and Musa. All the above received the bribe and they started stuffing ballot papers in favour of the 1st Respondent.

Karugaba Patrick lastly averred that on the afternoon of the poling day when he went to Kamutuumi polling station Emmanuel Tumusiime alias Brown  found him there and he gave Shs. 20,000/=  to a polling Assistant called Kabyanga and Shs. 10,000  to the Petitioner polling agent Kabasinguzi Agnes. After this the Polling Assistant began issuing  multiple ballot  papers to known supporters of the 1st Respondent in complicity with polling  officials and the agents of the Petitioner who had been compromised.

The 1st Respondent in his paragraph 8 ( e) of his answer to