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In Re: Parliamentary Elections Act, Act 17 of 2005; Kabatsi Joy Kafura v Bangirana Kawooya Anifa and Another (Parliamentary Election Petition No.0001 of 2006) [2007] UGHC 7 (24 January 2007)
.RTF of original document
IN THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
PARLIAMENTARY ELECTION PETITION No.0001 OF 2006
IN THE MATTER OF PARLIAMENTARY ELECTIONS ACT, ACT 17 OF 2005
AND
(IN THE MATTER OF THE PARLIAMENTARY ELECTIONS)
(ELECTION PETITIONS) RULES
AND
IN THE MATTER OF PARLIMENTARY ELECTION OF FEBRUARY 23RD 2006
KABATSI JOY KAFURA :::::::::::::::::::::::::::::::::: PETITIONER
VERSUS
1.
BANGIRANA KAWOOYA ANIFA
2.
ELECTORAL COMMISSION:::::::::::::::::: RESPONDENTS
JUDGMENT
KABATSI JOY KAFURA, the petitioner, on the 23rd day of February, 2006 contested, as an independent candidate, the Parliamentary elections for a woman member of Parliament for Sembabule
District, together with three other candidates. The others were:
1.
BANGIRANA ANIFA KAWOOYA, the first respondent, belonging to the NRM party;
2.
NAKIGANDA IRENE JOSEPHINE, belonging to the Democratic Party (DP); and
3.
NAMUKASA JUSTINE MUKIIBI, an FDC party candidate.
This election was part of the general elections held on that day.
The Electoral Commission, the second respondent, which organized the election, declared the 1st respondent the winner. It is not in dispute that the declared results were as follows: -
i). 1st respondent
- 29,398 votes
ii). Petitioner
- 28,199 votes
iii). Nakiganda Irene Josephine -
787 votes
iv). Namukasa Justine Mukiibi -
1,649 votes
The petitioner was dissatisfied with the election result. On 26th April, 2006 she petitioned this court and set out many complaints as the basis for her dissatisfaction. The petitioner asked
the court to declare: -
(a)
That the election of the 1st respondent is null and void; that it be set aside, and new elections held;
(b)
That the costs of the petition be provided for.
The petition was accompanied by an affidavit sworn by the petitioner dated 24th April, 2006. In her petition the petitioner sets out three main grounds of complaint, namely: -
(a)
That there was non-compliance with the provisions of the constitution, the Parliamentary Elections Act, 17 of 2005 (PEA), and the
Electoral Commission Act (ECA) relating to the conduct of the said elections and principles laid down in the said Acts, and that
the non-compliance and failure affected the result of the election in a substantial manner.
(b)
That the 1st respondent was, at the time of her election, not qualified for election as a member of Parliament contrary to S.4(1) (c) of the Parliamentary
Elections Act.
(c)
That the 1st respondent committed illegal practices contrary to sections 68 and 72 of the Parliamentary Elections Act in connection with the said
election personally, or by her agents with her knowledge and consent, or approval.
The case put up by the 1st respondent in answer to the petition can be summarized as follows: -
(a)
that the 1st respondent is qualified to be elected a member of Parliament under S.4(1) (c) of the Parliamentary Elections Act as she possesses
the prescribed academic qualifications.
(b)
That the 1st respondent did not commit the offence of bribery in connection with the said election personally, or by her agents with her knowledge
and consent or approval.
(c)
That the election was conducted in accordance with the principles set out in the Constitution, the Parliamentary Elections Act and
the Electoral Commission Act, and that if there was any failure or non-compliance it did not affect the result of the election in
a substantial manner.
The 2nd respondent also filed an answer to the petitioner and put up the following case: -
(a)
That it conducted the general elections held on 23rd February, 2006 in accordance with all the electoral laws and principles laid therein, upon which the 1st respondent was declared the winner of the woman Member of Parliament seat for Sembabule District.
(b)
That if there was any non compliance with the electoral laws, which is denied, it did not affect the results of the election in a
substantial manner.
(c)
That the 1st respondent was duly qualified for election as a member of Parliament at the time of the election.
(d)
That it is not aware of the alleged offence of bribery allegedly committed by the 1st respondent or by her agents.
The petitioner was represented by learned Counsels Mr. Byamugisha Nester and Mr. Wandera Ogallo. The 1st respondent was represented by learned Counsel Mr. Kakuru Kenneth. The 2nd respondent was represented by learned Counsel Mr. Kandeebe Ntambirweki.
The parties, through their Counsel, agreed on some facts which included the following: -
(i)
That the presidential and regular Parliamentary elections were also held on 23rd February, 2006.
(ii)
That the 2nd respondent was responsible for, and did organize, the said elections.
(iii)
That the elections were held under a multiparty system.
(iv)
That the number of registered voters for Sembabule District was 85,016.
(v)
That the number of valid votes cast were 60,033.
(vi)
The number of invalid votes were 1,171.
(vii)
The total votes cast were 61,204.
At the scheduling conference, the court in consultation with learned Counsel who appeared for the parties, framed the following five
issues for determination.
1.
Whether the election of the 1st respondent as a woman Member of Parliament for Sembabule District was conducted in compliance with the provisions of the Constitution,
the Parliamentary Elections Act, 17 of 2005, and the Electoral Commission Act, and in accordance with the principles laid down in
the said laws.
2.
If the answer to issue No.1 above is in the negative, whether the non compliance affected the result of the election in a substantial
manner.
3.
Whether the 1st respondent committed illegal practices c/ss 68 and 72 of the Parliamentary Elections Act in connection with the election.
4.
Whether the 1st respondent at the time of the election possessed the prescribed minimum academic qualification for election as a member of parliament.
5.
Whether the parties are entitled to the remedies sought
According to rule 15 of the Parliamentary Elections (Election Petitions) Rules (S.I.141-2) all evidence at the trial of the petition
is required to be adduced by affidavits. Cross-examination of the deponents may be permitted only with leave of the court.
Accordingly the parties filed many affidavits to support their respective cases. The petitioner filed 54 affidavits both in
support of the petition and in reply to the affidavits of the 1st and 2nd respondents. The 1st respondents filed 42 affidavits in support of her answer to the petition, and also in reply to the petitioner’s affidavits.
The 2nd respondent filed three (3) affidavits in support of its answer to the petition, and also in reply to the petitioner’s affidavits.
Leave was granted to the 1st and 2nd respondents to cross-examine: -
(i)
The petitioner (PWI)
(ii)
Ssekikubo Theodore (PW2)
(iii)
Ssentongo Herman (PW3)
Leave was equally granted to the petitioner to cross examine the 1st respondent.
Counsel for all the parties read the affidavits deponed in support of their cases while making their submissions to this court.
Several authorities were cited and, in some instances, copies were provided to the court. Upon completion of the hearing I
have carefully perused and evaluated the evidence adduced by the parties. I have also studied the various authorities cited to court.
The burden of proof:
S.61(1) of the Parliamentary Elections Act provides:
“(1) The election of a candidate as a member of Parliament shall only be set aside on any of the following grounds if
proved to the satisfaction of the court….”
It is generally agreed that the burden of proof lies on the petitioner to prove the allegations made against the respondent to the
satisfaction of the court. The petitioner has to prove her case to the satisfaction of the court. Controversy used to
surround the standard of proof required to satisfy the court.
In Election Petition No.1/2001 Col (Rtd) Dr. Besigye Kizza vs Museveni Yoweri Kaguta and Electoral Commission, in his judgment
ODOKI, CJ at page 20, said:
“The standard of proof required in this petition is proof to the satisfaction of the court. It is true that a court may
not be satisfied if it entertains a reasonable doubt, but the degree of proof will depend on the gravity of the matter to be proved.”
Then he went on to say:
“Since the legislative chose to use the words “proved to the satisfaction of the court” it is my view that that is
the standard of proof required in an election petition of this kind. It is a standard of proof that is very high because the
subject matter of the petition is of critical importance to the welfare of the people of Uganda and their democratic governance.”
ODER,JSC (RIP) at page 214 said:
In the instant case the learned counsel for both the 1st and 2nd respondents have suggested a standard of proof which is higher than proof on a preponderance of probabilities but short of proof
beyond reasonable doubt. I agree with them.
………………Parliament has ordained that a court must be satisfied. Only Parliament can prescribe
a lesser or more requirement. Parliament would have said in the Act that election offences should be proved on the balance
of probability or beyond reasonable doubt if it wanted to do so. It did not, and left it to the discretion of the courts or
judges what is meant by being “satisfied”.
All that is required, in my view, is that the court must be satisfied that alleged grounds for annulment of an election have been
proved. If it has reasonable doubt then the court is not ‘satisfied’ ”.
Parliament has since expressed itself clearly on the question of standard of proof. Subsection (3) of S.61 of the Parliamentary
Elections Act [17 of 2995] provides:
“(3). Any ground specified in subsection (1) shall be proved on the basis of a balance of probabilities.”
So, despite the interpretation given by the Supreme Court above, the position now appears to be that “proof to the satisfaction
of the Court” is proof “on the basis of a balance of probabilities”.
To use the words of ODER, JSC (RIP) only Parliament can prescribe a lesser standard of proof. Parliament has said in the Act
that the standard of proof required is a balance of probabilities. I think this has settled this matter.
I shall not consider the issues in the order in which they have been framed. I wish to start with issue No.4.
Whether the 1st respondent at the time of the election possessed the prescribed minimum academic qualifications for election as a member of Parliament.
Under S.61 (1) (d) of the Parliamentary Elections Act the election of a candidate as a member of Parliament can be set aside if it
is proved that the candidate was at the time of her election not qualified or was disqualified for election as such. Section
4 of the Act sets out the requisite qualifications. With regard to academic qualifications S.4 (1) (c) provides:
“(1) A person is qualified to be a member of parliament if that person –
(c) has completed a minimum formal education of Advanced Level Standard or its equivalent.”
In the petition it was alleged in para.7 as follows:
“7. FURTHER your petitioner states that the 1st respondent was at the time of her election not qualified for election as a member of Parliament contrary to section 4 (1) (c) of
the Parliamentary Elections Act.
In the petitioner’s affidavit in support of the petition para.9 states:
“9. That the 1st respondent does not possess the required minimum academic qualifications to be elected member of Parliament and Parliamentary evidence
of this shall be presented at the trial.”
In her answer to the petition in para.5 (p). the 1st respondent averred thus:
“p). Paragraph 7 is denied.”
The 1st respondent swore an affidavit in support of her answer to the petition, and in reply to the petitioner’s affidavit. In para.23
she stated:
“23. I do possess the required minimum academic qualification to be elected member of Parliament and as such paragraph
9 is false, a copy of my degree certificate is annexed hereto. (Annexture y)”.
Annexture y is a photocopy of a degree of Bachelor of Arts in Development Studies (Second Class with Honours – Upper Division)
awarded at a congregation held at Nkumba University on 23rd April 2005.
The petitioner swore an affidavit in reply dated 14th September 2006 and filed in court on 19.9.2006. In this affidavit the petitioner challenged the 1st respondent’s degree by paras 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, and 26. I will
quote some of those paragraphs.
Para 14 states:
“14. That the 1st respondent presented a degree of Bachelor of Arts – Development Studies of Nkumba university for her nomination as a Woman
District Representative Candidate for Sembabule District. A photocopy of the degree certificate is annexture “y”
to the 1st respondent’s affidavit in support of the answer to the petition.”
Para.18 states: “18. That my advocates wrote to the Registrar Nkumba University on 21st April 2006 requesting certified copies of all the documents tendered by the first respondent for admission in that University and
I delivered the letter in the company of Hon. Sekikubo Theodore and received the documents in para.7 hereof.”
The documents which the petitioner received and which are mentioned in para.7 are:
(i)
A diploma from Kampala Business Institute obtained in 1991 Annexture “AP7”.
(ii)
A diploma from Uganda National Chamber of Commerce and Industry Annexture “AP8”
(iii)
A diploma from Management Business Skills – Annexture “AP9.
(iv)
A degree certificate from Knights bridge University – annexture “AP 10”.
Para 8 states: - “ 8. That the 1st respondent presented the said documents to Nkumba University and was admitted for the Bachelor of Arts, Development Studies Degree
based thereon. A photocopy of a letter from Nkumba University to that effect is Annexture “AP 11”.
Para 19 states: “19. That on handing to me the said documents the Registrar Mr. Busulwa requested me to inform him if
we established in our investigations that the first respondent was admitted and awarded the degree on the basis of forged documents
to enable their senate cancel the said invalid degree certificate.”
Para 15 states: “19. That on handing to me the said documents the Registrar Mr. Busulwa requested me to inform him if
we established in our investigations that the first respondent was admitted and awarded the degree on the basis of forged documents
to enable their Senate Cancel the said invalid degree certificate.”
“15. That I am advised by my advocates and I verily believe their information to be true that in so far as the said degree
certificate was applied for by the 1st respondent on the basis of forged documents and Nkumba University admitted her for the degree on that basis, the resultant graduation
and a ward of the degree were null and void as nothing based on fraud or forgery can pass valid title.”
What comes out of the above extracts, in my view, are two positions:
(i)
That the 1st respondent possesses a degree of Bachelor of Arts in Development Studies from Nkumba University; and
(ii)
That she presented the said degree to the 2nd respondent for her nomination as a Woman District Representative Candidate for Sembabule District.
Learned Counsel Mr. Wandera Ogalo argued the fourth issue on behalf of the petitioner.
Counsel cited Article 80 (1) (c) of the constitution. It provides:
“80 (1) A person is qualified to be a member of Parliament if that person –
(a)
………………………
(b)
………………………
(c)
Has completed a minimum formal education of Advanced Level Standard or its equivalent which shall be established in a manner and at
a time prescribed by Parliament by law.”
Counsel also referred to S.4(1) (c) of the Parliamentary Elections Act.
He submitted on the question of burden of proof. He cited the case of:
HAJI MULUYA MUSTAPHAR VS ALUPAKUSADHI WAIIBI WAMULONGO AND TWO OTHERS,, Election petition No.22 of 1996, by C.K.Byamugishsa, J (as
she then was).
He also cited:
RASHID GOVULE YIGA & MANOHA ACHILE MILA VS OLEGA ASHRAF NOAHA AND TWO OTHERS Election petition No.1 and 2 of 2001, by Rubby Aweri
Opio,J.
In the Haji Muluya Mustapha case (Supra) C.K.Byamugisha, J (as she was then) at page 13 of her judgment, said;
“As stated earlier, the first respondent offered himself as a candidate, he was duly nominated and eventually elected as a member
of Parliament. It can be assumed therefore that he asserts that he has the minimum educational qualifications laid down in
the statute. He knows which school and institutions he has attended as a student and generally what he has been doing in his
adult life. These are facts which are peculiarly or specially within his knowledge. He therefore has the burden to prove
to the satisfaction of the court that he is qualified to be a member of parliament. All he has to do is to adduce evidence
of the schools he attended with the certificates obtained and the evidential burden will shift to the petitioner to dispute the qualifications
by adducing evidence which will cast a reasonable doubt on their authenticity”.
In the Rashid Govule Yiga case, Justice Aweri Opio, at page 8 of his judgment, said:
“It is trite law that the burden of proof in election petitions is on the petitioner. This burden of proof ordinarily
does not shift. When it shifts at all, it prescribes that the petitioner should have prima facie established a case against
the respondent that would have entitled him to a judgment.”
The learned judge quoted a passage in Sarkar’s law of Evidence vol.2, 14th Edn. from page 1338 – 1340. He also referred to Election petition No.1 of 2001. Col.(Rtd) Besigye Kizza vs Y.Museveni
Kaguta & Anor (Supra).
However, despite reference to those authorities the learned judge went on to say: “In the instant case, the qualification
of Hon. Olega is within his knowledge and therefore the burden is on him to show that the certificate which he presented was his
and not that of Betty Omoda. In order to discharge the said burden of proof the first respondent should have done the following……..”.
Learned Counsel Mr. Wandera Ogalo, while submitting on the several affidavits filed on behalf of the petitioner to challenge the
first respondent’s academic documents, said that on the authorities cited above it is sufficient if the petitioner casts doubt
on the academic documents; that the petitioner does not have to prove forgery.
Learned Counsel Mr. Kakuru submitted that S.61(1) of the Parliamentary Elections Act places the burden of proof on the petitioner.
He submitted that the burden of proving necessary grounds to have an election set aside rests on the petitioner. He submitted
that the standard of proof was settled by S.61(3) of the Parliamentary Elections Act as being a balance of probabilities.
Counsel submitted that for purposes of S.61(1) (d) of the Act the petitioner has to establish a prima facie case. He submitted
that once that is established the evidential burden shifts to the 1st respondent who has a duty to rebut it.
Counsel posed the question:
How weighty is the evidence necessary to shift the burden?
Counsel cited:
Col. (Rtd) Besigye Kizza vs Yoweri Museveni Kaguta & Anor (Supra). In his judgment at page 176, ODOKI, CJ said:
“As far as the shifting of the burden of adducing evidence is concerned it is stated in Sarkar’s Law of Evidence Vol.2 14th Edn. 1993 Reprint, 1997 pages 1338 – 1340 as follows:
“It appears to me that there can be sufficient evidence to shift the onus from one side to the other if the evidence is sufficient
Prima facie to establish the case of the party on whom the onus lies………………… what is meant is that in
the first instance the party on whom the onus lies must prove his case sufficiently to justify a judgment in his favour if there
is no other evidence.”
KAROKORA, JSC at page 262 agreed with the above position. He said:
“………….it appears to me that there can only be sufficient evidence to shift the onus from one side to
the other if the evidence is sufficient prima facie to establish the case of the party on whom the onus lies.”
The learned justices of the Supreme Court were agreed generally that in the first instance the party on whom the onus lies must prove
his case sufficiently of justify a judgment in his favour if there is no other evidence given to contradict it.
Relying on that authority learned counsel Mr. Kakuru submitted that before the burden shifts the evidence before the court must be
such that the petitioner would be able to get judgment if there was no evidence from the 1st respondent.
Dr. John Jean Barya swore an affidavit dated 23rd August, 2006, and I quote here below some extracts from it:
“2. That on 19th August, 2006, my firm wrote a letter ref:BB/GEN/689 to the Executive Director of National Council for High Education (NCHE) requesting
it to invoke the provisions of the Universities and other Tertiary Institutions Act and regulations made there under to declare that
the degree obtained by the respondent from Nkumba University, cannot, being based on forged entry admission requirements be valid.”
“3. That in the said letter the forged certificates and various affidavits proving them to be forged were provided to
NCHE for its guidance…………… The affidavits relating to the forged certificates are contained in
volume II of the petitioner’s affidavits in support at pages 1, 10, 13, 17 and in the affidavit of Lubanga the Permanent Secretary,
Ministry of Education that is also on record.”
“4. That on 23rd August, 2006 NCHE replied to our letter under reference vide theirs ref.NCHE/OA/025………….”. The
said letter from NCHE dated 23rd August, 2006 was annexed to the said affidavit. The letter was addressed to Messrs Barya, Byamugisha & Co. Advocates.
The subject matter was:
“Validity of degree of Bachelor of Arts in Development Studies of Nkumba University issued to Kawooya Anifa Bangirana.”
I quote para.2 of that letter:
“We have brought the contents of your letter to the attention of the Academic Registrar of Nkumba University and he has informed us
that you should take up the case with the University so that should it be proved that forged documents were used by the above lady,
the University would follow its laid down procedure to withdraw the degree.”
I also quote para.3 of that letter:
“In the last paragraph of your letter you asked us to declare the said degree invalid. All that we can state as a general
rule is that if it is proved that a degree is based on forged University entry certificates, that degree cannot be valid.”
The NCHE was given the following documents:
(i)
A letter dated 24th January, 2006 written by the Academic Registrar of Nkumba University, addressed to the Director of CID.
In that letter the Academic Registrar listed the documents which the 1st respondent used to obtain admission to that University to study for a Bachelor of Arts – Development Studies.
(ii)
A diploma in Business Administration awarded by Kampala Business Institute.
(iii)
A diploma in project planning and Management and a diploma in Business Management awarded by Uganda National Chamber of Commerce and
Industry.
(iv)
A letter of verification of results by UNEB.
(v)
A degree – B.A Public Administration awarded by Knightsbridge University.
(vi)
A copy of an affidavit sworn by James Mwandha dated 5th May, 2006.
(vii)
A copy of an affidavit sworn by Katutumba Boney.M dated 2nd May 2006, together with a sheet of signatures as an annexture.
(viii)
A copy of a letter dated 19th May, 2001 addressed to the Registrar, Management and Business Skills Institute written by Dan.N.Odongo, Ag. Secretary, UNEB.
(ix)
A letter dated 8th May 2006, addressed to M/s Barya, Byamugisha & Co. written by Dan.N.Odongo, for Executive Secretary, UNEB.
(x)
A copy of an affidavit sworn by Dan.N.Odongo dated 17th May, 2006.
(xi)
A copy of an affidavit sworn by Francis Lubanga dated 30th June, 2006.
(xii)
A copy of an affidavit sworn by Sarah Barton, Deputy Director British council, dated 16th May 2006.
(xiii)
A photocopy of a degree of Bachelor of Arts in Development Studies of Nkumba University.
In para.5 of his affidavit Dr. John Jean Barya stated his firm belief that the 1st respondent acquired the above mentioned degree on the basis of forged diplomas and certificates, and that the said degree is invalid.
The advocates for the petitioner wanted the NCHE to study all the foregoing documents, and, thereafter, declare the said degree to
be invalid.
I have noted the response of the NCHE. They referred the matter to the Academic Registrar of Nkumba University. The NCHE
seem to be aware that the University has its own procedure for dealing with the matter, and that it is the University which may decide
to withdraw the degree. So, NCHE never made any finding that the 1st respondent’s academic documents presented to it were forged documents. Nor did NCHE declare the 1st respondent’s degree to be invalid.
In the petitioner’s affidavit in reply dated 14th September 2006, filed in Court on 19.9.2006, she stated in para. 20 as follows;
“20. That my said advocates further wrote to the said Registrar and provided all the evidence of the forged documents
and requested the University to take appropriate action as previously promised by the said Registrar.”
She further stated in parags. 21 and 22 as follows:
“21. That I delivered the letter in the company again of Hon. Ssekikubo and Mr. Herman Ssentongo to the Registrar who received
the letter but declined to sign or stamp my advocates copy but the Registrar promised to lay the matter on the Agenda of the next
Senate meeting……………..”
“22. That my advocates have written a reminder to the said Registrar Nkumba University and still await
a response. ………………….. I delivered the letter to the Registrar.”
Attached to the said petitioner’s affidavit as AP 22 is the advocates’ letter of reminder dated 6th June, 2006. It was addressed to the Academic Registrar, Nkumba University. It was headed: “Forgery and uttering
false documents by Bangirana Anifa Kawooya”.
Para.1 read:
“On 18th May, 2006 we wrote to you and providence (sic) evidence that Bangirana Anifa Kawooya presented forged certificates for admission
in your University for the award of Bachelor of Arts – Development Studies which she subsequently obtained.”
Para.4 read:
“You promised to bring the matter to the attention of the Senate latest by 28th May 2006 for appropriate action and inform us of the outcome but you have not.”
Para.5 read:
“We would have thought that the University has taken great interest in this matter to redeem its reputation and image but you
seem not to bother.”
Para.6. stated:
“We do inform you that we have instructions to take legal action to obtain appropriate remedy.”
I have not seen on the record any other evidence to suggest that Nkumba University has set in motion its own procedure for dealing
with the matter. For certain there is no evidence on record that the said University has decided to withdraw the degree.
The Advocates for the petitioner provided to the Registrar all the alleged evidence of the forged documents. Like they did
with the NCHE it is likely that the advocates for the petitioner provided to the said Registrar the alleged forged certificates and
the various affidavits which they claim prove the certificates to be forged. I have already listed the said documents in this
judgment. It is not yet known what Nkumba University did with that evidence.
So until the hearing of this petition was concluded no authority had declared the 1st respondent’s certificates to be forged. Similarly, no authority had declared the degree obtained by the 1st respondent from Nkumba University to be invalid. Nor is it known what legal action the Advocates of the petitioner have taken,
or against whom, to obtain what they call appropriate remedy.
By a letter dated 24th January, 2006 written by the Academic Registrar Nkumba University addressed to the Director of CID he stated as follows:
“1. We based our admission of Kawooya Anifa Bangirana to BA – Development Studies on the following documents she presented
to us.
(i)
Diploma in Business Administration awarded by Kampala Business Institute.
(ii)
Diploma in Project Planning and Management and Diploma in Business Management by National Chamber of Commerce and Industry.
(iii)
A letter of verification of results by UNEB
(iv)
B.A Public Administration awarded by Knightsbridge University.
“2. She was admitted to study for a Bachelor of Arts – Development Studies.”
Let me now consider the evidence concerning these certificates/documents.
1.
Diploma in Business Administration.
I have carefully perused the affidavit sworn by James Mwandha dated 5th May, 2006.
In para.5 he stated that he was the Chairman of the Institute and used to sign all diploma certificates. In para.6 he stated
that the chairman’s signature on the certificate is not his. He stated that the signatories on the certificate are unknown
to him. I have perused the photocopy of the said diploma certificate. It bears the signatures of a Principal and Chairman,
Academic Board. In my view a proper identification of the signatories required recourse to the records of the Institute.
This would have assisted Mr. James Mwandha to recall the Principal of the school, and to get a sample of his/her signature.
Identification of the chairman, Academic Board also required examination of the Institute’s records. This was not done.
In my view it was necessary to get an affidavit sworn by a person who was involved in the day to day operations of the institute.
Such a person would have been able to state that the signatories on the Diploma certificate did not belong to that Institute.
The 1st respondent filed an affidavit sworn by MUSINGUZI APOLLO, who was a lecturer at the institute between 1990 – 1992. He
identified the Principal of the Institute, a signatory to the diploma certificate, as Bigirwa Samuel. He stated that he checked
the Institute’s records in 1991 which showed that Annie.S. Bangirana attended the Institute from 1979 – 1981. He
further stated that he prepared the diploma certificate in 1991 on the instructions of the Principal. He stated that the diploma
certificate is genuine.
With regard to the entry requirements for the Institute it is my view that Mr. James Mwandha should have produced a prospectus, or
a brochure, or other evidence of the minimum entry requirements in 1979, the time when the 1st respondent allegedly joined that Institute. I prefer the evidence of Musinguzi Apollo to that of James Mwandha. The petitioner
failed to produce evidence from a person who was involved in the day to day management of the Institute. James Mwandha’s
evidence is insufficient, and I cannot rely on it to find that the diploma certificate from Kampala Business Institute was forged.
2.
Diploma in Project Planning and Management, and a Diploma in Business Management.
In paras 2 and 3 of his affidavit Katatumba Boney.M. stated in effect that on 12th June, 1998 he was the President of Uganda National
Chamber of Commerce and Industry, and that he used to sign diplomas awarded by the Chamber. He stated that the signature of
President appearing on the Diploma of Bangirana Anifa Kawooya was not his. He provided specimen signatures and writings to
show how he sings and writes his names. Unfortunately, this court has not been provided with evidence of a handwriting expert
on the matter. I have examined annexture “X” to Katatumba’s affidavit. I have noted the aspects pointed
out by learned Counsel Mr. Kakuru. I agree with Counsel’s observation that Mr. Katatumba signs differently each time
he does so. The petitioner did not produce any diplomas properly signed by B.M.Katatumba for comparison. Katatumba did not
comment on the second signature, allegedly that of the Secretary General, on the Diploma.
Katatumba did not clarify whether or not the 1st respondent attended any courses of study arranged by the Chamber. Nor did he comment on the academic transcript attached to
his affidavit.
The 1st respondent filed an affidavit sworn by Charles Binwe dated 11th July, 2006. In that affidavit Charles Binwe narrated how the 1st respondent received her training leading to the award of a diploma certificate for Project Planning and Management. He disputed
Katatumba’s denial of the signature on the certificate.
In para.3 Charles Binwe claimed to have been the Chairman of the training committee. To her affidavit in reply dated
15th September, 2006 the 1st respondent attached, as Annexture “D”, a booklet for the first graduation ceremony of UNCCI held on June, 12, 1998.
The booklet shows the pictures of Binwe Charles, the Chairman of the Training committee, and Boney Katatumba, the President of the
Chamber. The booklet contains a list of graduands of a diploma in Project Planning and Management. The 1st respondent was listed as graduand No.27.
In light of this evidence, which I believe to be truthful, I am unable to rely on the evidence of Katatumba Boney.M. to say that
the diploma certificate in question was forged.
It would appear that what the Academic Registrar of Nkumba University, in his letter of 24th January 2006 to the Director of CID, referred to as a diploma in Business Management was actually a diploma in Business Administration
dated 15th July, 2000. It must have been wrongly listed together with the diploma in Project Planning and Management as having been awarded
by the Uganda National Chamber of Commerce and Industry. This diploma in Business Administration was awarded by M/s Management
and Business Skills Institute.
The petitioner filed an affidavit sworn by Francis Lubanga, the Permanent Secretary, Ministry of Education. From investigations
carried out by his instruction Francis Lubanga concluded that Management & Business Skills institute must be operating in some
premises other than the place where it was licensed to operate, and that if this be the case then it is operating illegally, and
would not be lawfully permitted to award recognizable valid certificates. He stated that he considered the said Institute to
be a ghost institution. He stated that he was not aware of certificates, if any, that were awarded by the said Institute.
Charles Binwe, in his affidavit dated 11th July, 2006, from para.15 narrated how the said institute was established and licensed by the Ministry of Education. Francis
Lubanga also stated that the said Institute was granted a license by his Ministry on 24th September 1999, as a Post Secondary Commercial Institution. Charles Binwe narrated how the 1st respondent joined the institute and undertook a diploma course in Business Administration. He stated that the 1st respondent completed her course in April, 2000, and that on 15th July, 2000 she was awarded a diploma. The petitioner has not adduced any evidence to show that the 1st respondent did not study at the said institute. Nor has the petitioner adduced evidence to show that the diploma certificate
was not issued by the said institute. How the Ministry of Education carries out inspection of new institutions to ensure compliance
with their regulations is their own business. In my view it has nothing to do with unsuspecting students who flock to such
institutions for training. The concern of this court is to determine whether the 1st respondent obtained the diploma certificate. On the evidence on record I find as a fact that she did. I have not come
across any evidence from the petitioner to prove that this diploma certificate was forged.
3.
A letter of verification of results by UNEB.
A copy of the letter of verification of results dated 25th August, 1993 issued by the Secretary of UNEB, addressed to the Area Manager, Zambia Airways was admitted in evidence as exhibit P.I.
I have carefully perused this document, and compared it with a letter dated 23rd January, 2006 written by Dan.N.Odongo addressed to the Assistant Inspector General of Police CID, and annexed to his affidavit dated
17th May, 2006, filed by the petitioner. In para.4 of the affidavit Dan.N.Odongo stated:
“4. That I can confirm writing the other 2 letters dated 23rd January, 2006 – 1st February, 2006.”
I have observed that the 1st respondent’s results stated in the letter of verification of results in 1993 are the same results which were given to CID Police
on 23rd January, 2006.
I have also perused a letter dated 8th May 2006 written by Dan.N.Odongo, addressed to M/s Barya, Byamugisha & Co. Advocates. The said letter was also annexed
to Dan.N.Odongo’s affidavit. In the said letter at the second page under item No.2 Dan.N.Odongo wrote:
“……….The contents (of the letter dated 23rd January 2006) reflect the records of results which are held by UNEB in the names of Bangirana Annie J.S. The differences in
the in index numbers are insignificant – U019/4EACE 1973 and U019/004 EACE refer to the same person who was fourth on the list
of candidates for the EACE 1973 examination at centre U019.”
The 1st respondent attached to her affidavit in reply dated 15th September 2006 annexture “Y” which is a certificate of completion of formal education of Advanced Level Standard or of
its equivalent dated December,8, 2005 issued by the Executive Director, NCHE. By the said certificate the NCHE recognized that
the 1st respondent holds the East African Certificate of Education, EAEC, 1973.
The 1st respondent stated during cross-examination that from 1970 – 73 she was in Kigezi High School where she sat for O-level examinations.
She stated that she had a certificate together with the results slip. She said that these documents were misplaced during the
war of 1979. She told court that she possesses a verification letter from UNEB of her O-level examinations results. She
explained that it is a certificate that she sat for the examinations in the names of Annie Bangirana J.S. She further explained
that she was named Jovia Sarieta Annie Bangirana upon her birth. The petitioner has not adduced any evidence to show that those were
not the names of the 1st respondent. I, therefore, find as a fact that the letter of verification of results issued by UNEB is genuine, and it reflects
the records of results which are kept by UNEB in the names of Bangirana Annie J.S. I also find that the said letter is sufficient
proof that the 1st respondent completed formal education of Ordinary Level Standard.
4.
B.A. Public Administration awarded by Knightsbridge University.
The original degree certificate was admitted in evidence as exhibit P.3. Learned Counsel for the petitioner, Mr. Wandera Ogalo,
submitted that the said degree was submitted to the NCHE for verification. Counsel pointed out that Annexture “B”
to the 1st respondent’s further affidavit filed on 15.9.06 showed that NCHE made enquiries from the Academic Registrar, Knightsbridge
University. On Wednesday, October 26, 2005 NCHE wrote as follows:
“The purpose of this mail, therefore is to request you to inform us of the accreditation status of the University and to confirm
to this Council the qualifications awarded to Anifa Bangirana Kawooya.”
On 28th October 2005 one Henrik Fyrst Kristensen sent an email to the NCHE in which he stated:
“I can confirm that Anifa B.Kawooya was awarded the degree of Bachelor of Public Administration on 8th January 2001.
Knightsbridge University is a private, Danish higher education provider. Denmark has free higher education market with no overlap
between the public and private provider. There is no form of external approval available to private providers, nor is any such
required………”
Learned Counsel Mr. Wandera Ogalo submitted that the 1st respondent’s degree from Knightsbridge University was not included in the certificate issued by the NCHE dated December 8,
2005. He submitted that this cast doubt on the recognition of the said degree. Learned Counsel then attacked the features
on the original degree (exhibit P.3). Counsel pointed out that the degree has two distinct and different logos; that it has
signatures but no names of the signatories; that it is written in English which does not make much sense. Counsel submitted
that the degree certificate has no evidential value because it was not notarised.
Counsel submitted that the degree certificate is not a genuine document and could not form the basis for entry into, or an award
from, Nkumba University. Counsel submitted that the degree from Knightsbridge University tells lies about itself.
The Petitioner filed an affidavit sworn by Sarah Barton, the Deputy Director British Council, dated 16th May, 2006.
In para.3 she stated:
“3. That in response to that request I made inquiries from the United Kingdom authorities through the department for Education
and confirmed that Knightsbridge University is not a U.K. recognized body and does not have U.K degree awarding powers and I wrote
back to M/s Barya, Byamugisha & Co. Advocates in those terms as per annexture”B” hereto.”
Learned Counsel for the 1st respondent Mr. Kakuru submitted that the case of the petitioner was that the University did not exist. Counsel submitted that
this was the import of Sarah Barton’s affidavit. Counsel submitted that the University does not exist in the U.K.
He submitted that the evidence of Sarah Barton fell far below the standard of evidence required to prove any fact, let alone fraud.
Learned Counsel referred to a letter dated 30th August, 2006 written by the Academic Registrar, Nkumba University addressed to the Executive Director, NCHE. The Academic Registrar
wrote as follows:
“1. Kawooya Anifa Bangirana on 18th August 2001 applied for a Postgraduate (sic) in Public Administration and Management.
2. At the sitting of the Higher Degrees Committee of 10th October, 2001, we looked at the applicant’s first degree obtained from Knightsbridge University, Denmark studied under Distance
Learning Programme, other qualification and a wide range of her working experience in related field.
3. The Committee advised that she registers for an undergraduate course prior to undertaking a postgraduate.”
The Academic Registrar enclosed the minutes of the Higher Degrees Committee. The said minutes were attached to the 1st respondent’s affidavit in reply filed on 15th September 2006 as annexture “H”. I have carefully perused the said
minutes, especially the membership of the said committee. The committee comprised Academic Professors and other holders of
PHD qualifications. It advised that candidate 0281 Kawooya Anifa Bangirana register for undergraduate studies.
In my view, the petitioner and any other person interested to know the accreditation status of Knightsbridge University should have
extended the inquiries to the Danish Embassy. This was not done.
It is also my view that the Higher Degrees Committee of Nkumba University considered the 1st respondent’s degree from Knightsbridge University, and after their assessment they advised her to register for undergraduate
studies. It is my view that the petitioner has not adduced any evidence to prove that the degree from Knightsbridge University
was forged. In the circumstances I find nothing new raised by the petitioner which would affect the assessment by Nkumba University
of the said degree.
Learned Counsel Mr. Wandera Ogalo submitted that the 1st respondent holds several diploma certificates and a degree certificate from Knightsbridge University which all tell lies about themselves.
He submitted that all those qualifications have been shown to be doubtful. He submitted that they could not be a basis for
admission into Nkumba University. He submitted that the degree from Nkumba University is a Nullity; that it could not be a
basis for nomination of the 1st respondent. He submitted that the 2nd respondent was wrong to have accepted the nomination of the 1st respondent. Counsel cited:-
H.C. Election Petition No.0012 of 2006 GOLE NICHOLAS DAVIS VS ELECTORAL COMMISSION AND LOI KAGENI KIRYAPAWO (Kasule, Ag. Judge).
Counsel contended that the facts in the above case are similar to the facts in the instant case. Counsel invited court to hold
that the degree from Nkumba University is a nullity because the underlying certificates were null themselves.
I have carefully perused the judgment of my brother Kasule, Ag. Judge in the Kiryapawo case. In that case the court summoned
one Moses Mubiru an acting academic Registrar at Bukalasa Agricultural College. He produced the records of the Veterinary Training
Institute, Entebbe. The records included a register showing the names and place of origin of graduates of the institute, year
of graduation, course and the award, a certificate or a diploma. The register covered the period from 1963 to 1992. The
witness was given a copy of a diploma in Animal Husbandry (Uganda) allegedly issued by Veterinary Training Institute, Entebbe in
the names of Loi Kageni, with serial No.74/155. He compared it with the records in the register. He found the names Loi Kageni
not in the register as a person who was awarded a diploma in 1974 or at any other time before or after at that Institute. The
serial number 74/155 was found to exist in the register, but the register stated the person who was awarded the diploma of that serial
number to be Nabalembeka Martha (Miss) of Kyotera. The witness concluded that the diploma in Animal Husbandry (Uganda) in the
names of Loi Kageni was a forgery. The court accepted that evidence, and held Loi Kageni’s diploma to be a forgery.
At page 18 of the judgment the court said:
“It is the considered of (sic) view of this court that reliance by the second respondent on a diploma that she knew was a forgery
to get admittance to a university and to get further qualifications, deprived her admission and the academic qualifications, subsequently
obtained of any legitimacy ………….”
In the instant case the petitioner was contented with merely casting some doubt on the authenticity of the diploma and degree certificates
held by the 1st respondent. The petitioner did not consider it her duty to adduce cogent evidence to prove forgery. Yet she prayed court
to declare the 1st respondent’s diploma and degree certificates forgeries. In my view the facts in the Loi Kageni Kiryapawo case can be
distinguished from the facts in the instant case. In the instant case I have found the petitioner’s evidence largely wanting,
and no basis for declaring any diploma certificate, or the Knightsbridge University Degree certificate, a forgery. I have not seen
in the instant case any substantiated challenge to any of the documents mentioned by the Academic Registrar, Nkumba University, which
the 1st respondent submitted to them, and which the said Registrar stated were used as a basis of admission of the 1st respondent to a B.A. Development Studies undergraduate course. In my view the admission of the 1st respondent into Nkumba University remains valid. In his letter dated 30th August, 2006 the Academic Registrar wrote in the last paragraph as follows:
“Kawooya Anifa Bangirana was therefore duly admitted and registered for a Bachelor of Arts in Development Studies which she
successfully studied and completed with an award of BA in Development Studies (Second Class with Honours – Upper Division)
of 23rd April 2005.” An Academic Transcript issued by Nkumba University to the 1st respondent was attached to her Affidavit in reply filed on 15th September 2006 as annexture “T”. In conclusion of this matter I hold that the petitioner has failed to adduced evidence
which can make this court say anything affecting the validity of the 1st respondent’s degree obtained from Nkumba University. I further hold that the petitioner has failed to prove on the basis
of a balance of probabilities the ground provided for in S.61(1) (d) of the Parliamentary Elections Act.
I therefore answer issue No.4 in the affirmative that the 1st respondent at the time of the election possessed a degree from Nkumba University, a qualification which is higher than the prescribed
minimum academic qualifications for election as a member of parliament.
Next I wish to consider issue No.3 which is: whether the 1st respondent committed illegal practices c/ss 68 and 72 of the Parliamentary Elections Act in connection with the election.
Under S.61(1) (c) of the Parliamentary Elections Act the election of a candidate as a member of Parliament can be set aside if it
is proved to the satisfaction of court that an illegal practice or any other offence under this Act was committed in connection with
the election by the candidate personally or with his or her knowledge and consent or approval.
In the petition it was alleged in para.6 as follows:
“6. Your petitioner further states that illegal practices of bribery contrary to section 69 of the Parliamentary Elections Act
were committed by the first respondent personally and/or by her agents with her consent and/or approval.”
In the petitioner’s affidavit in support of the petition para.8 states:
“8. That while campaigning, the first respondent bribed voters with cash, tarpaulins and saucepans with the intention
that they voted her and refrained from voting for your petitioner.”
In her answer to the petition in para.5 (o) the 1st respondent averred thus: -
“(o) paragraph 6 is denied in toto. As the respondent did not bribe anybody, and no such illegal practice was reported
to police or 2nd respondent. The petition does not state where, when and to who the bribe was given nor does it state the kind, nature or description
of the bribe.”
In her affidavit in support of her answer to the petition, and in reply to the petitioner’s affidavit the 1st respondent stated in para.22 thus:
“22. I did not bribe any voters at all as alleged in
paragraph 8 of the affidavit. Paragraph 8 is
false.”
The petitioner filed on 19.9.2006 an affidavit in reply. In para.2 (iii) she stated as follows:
“2………………………..
(iii)
That my campaign agents and coordinators and polling agents reported to me that numerous electoral malpractices, illegal practices
and offences were committed by the 1st respondent, her agents and supporters, the resident District Commissioner, Sembabule, Mr. Serwano Kabogorwa, Government Officials
together with the polling officials and other agents of the second respondent in respect of which the several people have sworn affidavits
as evidence in support of my petition.”
The offence of bribery is provided for by S.68 of the Parliamentary Elections Act. It provides:
“68 Bribery.
(1) A person who, either before or during an election with intent, either directly or indirectly to influence another person
to vote or to refrain from voting for any candidate, gives or provides or causes to be given or provided any money, gift or other
consideration to that other person, commits the offence of bribery and is liable on conviction to a fine not exceeding seventy two
currency points or imprisonment not exceeding three years or both.”
“(4) An offence under subsection (1) shall be an illegal practice.”
In H.C. Mbarara Election Petition No.3 of 2001: Musinguzi Garuga James Vs Amama Mbabazi and EC, Egonda-Ntende, J. at page 84
of his judgment para.307 gave the ingredients of the offence of bribery as the following:
“(1) Any person before or during an election
(2) With intent either directly or indirectly to influence another person to vote or refrain from voting for any candidate;
(3) gives or provides or causes to be given or provided any money or gift or other consideration to that other person.”
I consider the above a fair breakdown of the provision creating the offence of bribery.
In election Petition No.1 of 2001 Col.(Rtd) Dr. Besigye Kizza vs Museveni Yoweri Kaguta and EC, ODOKI, CJ in his judgment at pages
164 and 165, while commenting on illegal practices or offences, made two observations:
(i)
That there is no requirement to prove that the illegal practice affected the result in a substantial manner.
(ii)
The provision requires that the candidate be liable for the actions of his agents only when they are committed with his knowledge
and consent or approval. To this extent the general principles of the law of agency have been modified.
Concerning specifically the illegal practice of offering gifts ODOKI, CJ in his judgment at page 180 said:
“I accept the submission of Mr. Bitangaro that the petitioner must prove the following ingredients to establish the illegal practice
of offering gifts: -
(i)
that a gift was given to a voter
(ii)
that the gift was given by a candidate or his agent
(iii)
that the gift was given to induce the person to vote for the candidate.
It is trite law that the burden of proof lies on the petitioner to prove all the ingredients of the illegal practice under section
68 (i) of the Act.
On the question of the agency relationship between a candidate and his representatives or agents the law is that the candidate is
liable only on proof that the agent acted on the candidate’s express or implied authority or that the candidate ratified the
act after it was done or appointed the agent to do all acts legal or illegal which he might think proper to support the candidate’s
interest.
See the judgment of TSEKOOKO, JSC at P.152 in Election Petition No.1 of 2001. At P.153 TSEKOOKO, JSC said:
“I do not think that prior knowledge and express consent or express permission or approval of a candidate is a necessary prerequisite
to the Commission of an illegal practice or any other offences by a representative or an agent before a candidate’s election
is rendered liable to annulment.
In the nature of things, no candidate would openly and in public give consent or approval to his agents to commit illegal practices
or other electoral offences……
I think that once there is evidence of agency, gathered from the surrounding facts, the candidate should be held liable for the wrongful
conduct of his agent/representative.”
Commenting on the statutory provision in S.58 (6) (c) of the Presidential Election Act (similar to S.61 (1) (c) of the Parliamentary
Elections Act) MULENGA, JSC, said:
“Under that section, it is clear that an illegal practice or other offence which was not committed by the candidate, can be
sustained as a ground for annulment of his election, only if it is proved to the satisfaction of the court that it was committed
with the candidate’s “knowledge and consent”, or with his or her knowledge and approval.”
“To my understanding the legislature chose to use those words in order to limit the application of the sanction to only such
an illegal practice or offence as the candidate assumed personal responsibility for, either through consent where he or she had prior
knowledge, or through approval upon subsequent knowledge, of its being committed.”
In the Court of Appeal Election Petition Appeal No.12 of 2002: Amama Mbabazi and EC versus Musinguzi G.James, OKELLO, JA, in
his judgment at page 42 observed that an allegation of bribery by a candidate in an election process is a serious matter and that
it requires cogent evidence to prove it.
Para.8 of the petitioner’s affidavit in support of the petition contains an allegation that while campaigning the 1st respondent bribed voters with cash, tarpaulins and saucepans. The petitioner did not state the places where this happened and
the particulars of the voters involved.
Hon. Ssekikubo Theodore M.P. Lwemiyaga swore an affidavit, filed on 12.6.2006. In paragraphs 11, 12, and 13 of his affidavit
Hon. Ssekikubo stated that on Sunday 19th February, 2006 he held a joint campaign rally with the 1st respondent and Hon. Sam Kuteesa at Kakoma Primary School. He said that he witnessed the 1st respondent offering 2 big saucepans and a tarpaulin to the voters of each LCI in Kakoma Parish, Lwemiyaga sub-county.
Hon. Ssekikubo stated that on the same day at about 4:00 p.m he witnessed the 1st respondent offering the same items to voters at a rally at Kakoma-Kasambya to all the LCIs in Lwensakala Parish of Lwemiyaga sub-country.
He stated that on the same day at about 8:30p.m at Kampala Primary School, Lwemiyaga sub-county the 1st respondent again made a similar offer to voters of 2 big saucepans and a tarpaulin in every LCI in Kampala Parish, Lwemiyaga sub-county.
On each occasion the 1st respondent requested the people to vote for her.
Several questions arise from the above statement:
(i)
How many LCI villages are in Kakoma Parish?
(ii)
How many voters from each LCI attended this rally?
(iii)
How were the voters identified?
(iv)
How many LCI villages are found in Lwensakala Parish?
(v)
How many voters from each LCI attended the rally at Kakoma – Kasambya?
(vi)
How were these voters identified?
(vii)
How many LCI villages are found in Kampala Parish?
(viii)
How many voters from each LCI attended the rally at Kampala Primary School?
(ix)
How were these voters identified at 8:30 p.m?
(x)
To whom were these items handed in respect of each LCI?
(xi)
By what means were these items being conveyed from place to place?
(xii)
If Hon. Ssekikubo found the activities of the 1st respondent illegal and objectionable where did he report soon after those incidents?
In my view the affidavit of Hon. Ssekikubo missed out a lot of vital information. It is not sufficient to prove the essential
ingredients of the illegal practice of bribery by offering gifts. No single recipient of the gifts was mentioned.
No single voter was identified. The people intended to be induced to vote for the 1st respondent remained unknown and incapable of being ascertained.
Lukabya Peter swore an affidavit which was filed on 12.06.2006. In para.9 of his affidavit he stated:
“9. That during the evening of 21st and 22nd February, 2006 the same persons I have mentioned in paragraph 8, went around the village showing the residents a big saucepan that
had been given to the village by the respondent, telling them that anybody who voted the petitioner should not expect to use it if
they got any social function or problem.”
Lukabya Peter claims to be of Lwebitakuli Trading Centre. Is this the village he is referring to in Para.9 above ?
In my view any reference to a big saucepan as the one which was given to the village by the respondent is hearsay. Lukabya
Peter did not state his source of information. I find para.9 of Lukabya’s affidavit devoid of any probative value.
Kasozi Bagalaalina Muhamood swore an affidavit which was filed on 12.06.2006.
In para.6 he stated:
“6. That prior but close to the polling day in February, 2006, I witnessed a bribery act whereby Jolly Kyomugisha a key
campaign agent of the 1st respondent gave ushs.50,000/= to Godfrey Kapinga the Movement Chairperson of our village and instructed him to use it to hire supporters
of the petitioner to support the first respondent.”
In para.7 he stated:
“7. That on that same occasion the said Kyomugisha told Kapinga that he should also take advantage of the big saucepan and tarpaulin
given by the 1st respondent to convince supporters of the petitioner to support the 1st respondent…….”
Jolly Kyomugisha swore an affidavit in rebuttal filed on 15.9.2006. In para.6 she stated that she never gave any money to Godfrey
Kapinga as alleged in paras. 6 and 7 of the affidavit of Muhamood Kasozi Bagalaaliwo (sic). She stated that she did not even
see Kapinga the whole of February 2006 at all.
Godfrey Twebaze, also known as Kapinga swore an affidavit, filed on 15.9.2006. In para.4 he stated that para.6 of the affidavit
of Kasozi Bagalaaliwo is false; that he never received any money from Jolly Kemigisha; that he did not see her during the days preceding
the last general elections.
In my view no proof has been produced to satisfy this court that Jolly Kyomugisha gave Ushs.50,000/= to Godfrey Kapinga with the
1st respondent’s knowledge and consent. No evidence has been adduced to show that the 1st respondent subsequently came to know what Jolly Kyomugisha had done, and she approved or ratified it. I have found nothing
in the affidavit of Kasozi Bagalaalina to suggest that the 1st respondent assumed personal responsibility for the acts of Jolly Kyomugisha.
In para.7 of his affidavit Kasozi Bagalaalina did not show that he possessed personal knowledge about any big saucepan and tarpaulin,
or where they came from. The deponent stated what he overheard Kyomugisha tell Kapinga. So in my view any information
that the 1st respondent gave any saucepan and tarpaulin is hearsay. In conclusion, what Kasozi Bagalaalina stated in parag.7 of his affidavit
is not anywhere near proof of the ingredients of bribery.
Walukagga Abaasi of Kirebe village, Kabale Parish swore an affidavit, filed on 12.06.2006. In para.6 he stated:
“6. That prior to the voting day I saw Godfrey Kapinga the Kirebe village Movement Chairperson move around the village
with a huge saucepan and tarpaulin while telling people that the 1st respondent had given them in order that people vote for her……………………….”
It is my view that any reference to the 1st respondent as a person who gave a saucepan and tarpaulin is hearsay. Godfrey Twebaze alias Kapinga stated in para.3 of his
affidavit that he never received any saucepan or tarpaulin from the 1st respondent at all; that no such things were ever donated by the 1st respondent .
In para.5 he denied being an agent or a campaigner of the 1st respondent.
In my view para.6 of Walukagga’s affidavit has no probative value. It does not assist the petitioner to prove the illegal
practice of bribery against the 1st respondent.
Learned Counsel referred to the affidavits of Hon. Ssekikubo Theodore, Lukabya Peter, Kasozi Bagalaalina and Walukagga Abaasi, and
submitted that the 3rd issue had been proved, and that it should be resolved in the affirmative. Counsel did not refer to the affidavit of Nyesigye
Benjamin filed on 12.06.2006. However, learned counsel Mr. Kakuru referred to it and made submissions on it.
In para.6 of his affidavit Nyesigye Benjamin said:
“6. That I attended the rally convened and addressed by the 1st respondent herself on 21.2.2006 at Lwembogo Trading Centre at which she handed over a huge saucepan and tarpaulin and some money
to James Kaihura and announced that she was giving them to the people so that they can vote for her and those who did not support
her should not be allowed to partake of them even when they lose their loved ones.”
In her affidavit in reply filed on 15.9.2006 the 1st respondent answered in para.16. She stated:
“16. The affidavit of Nyesigye Benjamin is false as I did not at any one time during the last general elections or any
time during the campaign period donate saucepans (sic), tarpaulins (sic) or any other gift to any person”.
Learned Counsel, Mr. Kakuru submitted that the petitioner had to prove that the saucepan and tarpaulin and money were given to a voter
to induce him to vote.
James Kaihura, the alleged recipient of the items has not been identified as a voter, or an agent of the 1st respondent. It was not mentioned in what capacity James Kaihura represented the people. It was not stated which particular
people were intended to be benefited. None of the voters who attended the said rally was identified, who could perhaps lay
claim to those items. Learned Counsel Mr. Kakuru submitted that para.6 of Nyesigye’s affidavit was general and could
not prove anything. I do agree. I find no evidence that the people who were offered the alleged items were voters.
In my view the people who were given the items were unknown and uncertain. I wonder how an anonymous group of persons could
have been induced to vote for the 1st respondent. Nyesigye’s evidence does not show that the 1st respondent targeted any particular group of persons. In my view the 1st respondent could not seriously be taken to have intended to influence everybody in attendance to vote for her because of the alleged
gifts. It would appear to me that a gift given to everybody is a gift to nobody. No particular person is certain about
deriving benefit from such a gift. I do not see how such a state of affairs would induce any person to vote for the 1st respondent, or to refrain from voting for the petitioner. Because of the anonymity of the people intended to be influenced
by the alleged gifts I find Nyesigye’s evidence not useful in proving the petitioner’s allegations against the 1st respondent.
Kanyonyi Umar, the LC.I Chairperson of Kirebe Village, Kabale Parish, Lwebitakuli sub-county, stated in his affidavit that on polling
eve Godfrey Tumwebaze A.K.A Kapinga together with Benon, Movement Chairperson of Kabale Parish, Njuki, PWD Councilor of Kabale at
Lwebitakuli sub-county, showed residents at different places in the village a huge saucepan and tarpaulin which were given to them
by the 1st respondent while campaigning at Lwendezi. The deponent stated that those three people were saying that the items had been offered
to the village by the 1st</
