Peter Nyombi v Muruli Mukasa and Another (Election Petition No. 06 of 2001) ((Election Petition No. 06 of 2001)) [2001] UGHC 1 (1 January 2001);

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Full judgment

THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
ELECTION PETITION NO. 06 OF 2001

PETER NYOMBI :::::::::::::::::::::::::::::::::::::::::PETITIONER

VERSUS
1.

MURULI MUKASA
2. THE ELECTORAL COMMISSION ::::: RESPONDENT

BEFORE HON. MR. JUSTICE GIDEON TINYINONDI:

JUDGEMENT

On 26/06/2001 Parliamentary Elections were held in Nakasongola Constituency, Nakasongola District. The 1^st Respondent and Petitioner were the only two candidates. The 1^st Respondent emerged and the 2^nd Respondent declared him the winner with 21,299 votes against the Petitioner’s 12,523.

The Petitioner was aggrieved by and dissatisfied with the total results of the election. He petitioned alleging: -

“(a) that the election was not carried out in accordance with the provisions of the Parliamentary Elections Act, 2001 because there were numerous malpractices and substantial non-compliance with the law that substantially affected the result and rendered the whole electoral process a nullity.

(b)

the Petitioner and not the 1^st Respondent won the election on the 26/06/2001.

(c)

The 1^st Respondent personally and/or through his agents and supporters with his knowledge and consent committed several illegal practices and offences in connection with this election before and during the election day.”

The Petitioner alleged the following to be the PARTICLUARS OF ILLEGAL PRACTICES:

“(a) The 1^st Respondent and/or his agents with his facilitation and/or knowledge had his people vote more than once at various Polling Stations.

(b)

Bribing voters cards by the 1^st Respondent and/or through his agents to vote in favour of the 1^st Respondent.

(c)

Distribution of voter cards by the 1^st Respondent and/or by his agents to his supporters to facilitate them vote more than once.

(d)

Intimidating known voters and supporters of the Petitioner and preventing them from voting.

(e)

Transporting voters to vote more than once from one Polling Station to another by the 1^st Respondent and/or his agents with his facilitation and consent.

(f)

Being in possession of ballot papers ticked in favour of the 1^st Respondent before the election day by the 1^st Respondent and/or his agents or supporters.

(g)

Carrying on campaigns and addressing a rally past the stipulated time.

(h)

Intimidating voters by the 1^st Respondent himself and/or by his agents with his knowledge and consent, to vote for him.

(i)

Transporting non-registered voters by the 1^st Respondent and/or his agents with his knowledge and consent, from outside the Constituency to vote him.

(j)

Campaigning using sectarian utterances and mudslinging language against the Petitioner by the 1^st Respondent.

(k)

That the Petitioner’s agents and supporters were abducted and some prevented by the army to abstain from voting for the Petitioner.”

The Petitioner further listed the following to be the PARTICULARS OF NON-COMPLIANCE WITH THE LAW: -

“(a) Failure to clean the Voters’ Register thereby allowing room for ineligible persons to vote for the 1^st Respondent.

(b)

Printing excess Voters’ cards and failing to manage and/or control their distribution thereby allowing them to be used by the 1^st Respondent to rig the elections in his favour.

(c)

Failure to control soldiers and other security operatives thereby allowing them to interfere with and influence the election process in favour of the 1^st Respondent.

(d)

Allowing soldiers and other unauthorized persons to handle, manage and distribute Voters’ cards, thereby allowing them to use them to rig the elections in favour of the 1^st Respondents.

(e)

Displaying of the 1^st Respondent’s posters at Polling Stations.

(f)

Failing to ensure conditions of a free and fair election by allowing the 1^st Respondent/his servants/agents to intimidate and/or prevent the Petitioner’s voters from voting.

(g)

Denying the Petitioner’s agents a chance to witness the voting process at some Polling Stations by the 1^st Respondent, his servants and/or agents with his knowledge and approval, with the acquiescence and connivance of the 2^nd Respondent.

(h)

During the polling exercise the Petitioner’s Polling Agents were chased away from some Polling Stations and as a result the Petitioner’s interests at these Polling Stations could not be safeguarded.

(i)

The 2^nd Respondent and/or its agents/servants, the Presiding Officers in the course of their duties, allowed people with no valid voter cards to vote.

(j)

The 2^nd Respondent’s agents/servants allowed the voting and carried out the counting and tallying of votes in the forced absence of the Petitioner’s agents whose duty was to safeguard the Petitioner’s interests by observing the voting, counting and tallying process to ascertain the results.”

In paragraph 4 of his petition the Petitioner alleged that he was further aggrieved because despite having pointed out all the alleged illegal practices to the 2^nd Respondent the latter went ahead to declare the 1^st Respondent as the winner.

The Petitioner prayed for: -

(a)

An Order that the 1^st Respondent was not duly elected.

(b)

An Order that the election of the 1^st Respondent be nullified.

(c)

A declaration that the Petitioner and not the 1^st Respondent won the Parliamentary Election for Nakasongola Constituency held on 26^th June 2001.

(d)

An Order that the Respondents pay the Costs of this Petition.

ALTERNATIVELY
(e)

An Order that the Results of the Parliamentary Elections for Nakasongola Constituency be annulled and fresh elections be held for Nakasongola Constituency.

To support his petition the Petitioner filed his own and thirty other supporting affidavits.

The 1^st Respondent filed an Answer wherein he alleged: -

“1. THAT your 1^st Respondent is a male adult Ugandan of sound mind of the above address for the purposes of this petition.

THAT your 1^st Respondent is the Member of Parliament for Nakasongola Constituency in Nakasongola District of Uganda having been duly declared as elected by the 2^nd Respondent pursuant to Parliamentary elections held on 26^th June, 2001 under the provisions of the Parliamentary Elections Act 2001.

THAT the 1^st Respondent has perused and understood the contents of the petition of Peter Nyombi and replies thereto as follows: -

THAT the 1^st Respondent denies the truth of paragraph 3 of the Petition and the Petitioner shall be put to strict proof of each of the allegations contained therein.

THAT the 1^st Respondent denies commission on any illegal practice or election offence as alleged by the Petitioner either by himself or by his agents with his knowledge and consent or approval.

THAT in response to the specific allegations and particulars of illegal practices and offences set out under paragraph 3(c) of the Petition the 1^st Respondent states as follows: -

(i)

The 1^st Respondent never facilitated any person to vote more than once at any various Polling Stations.

(ii)

The 1^st Respondent has no knowledge of any person voting more than once at any polling station.

(iii)

The 1^st Respondent has no knowledge of nor did he consent or give approval to any of his agents facilitating people to vote more than once at any or various polling stations.

(iv)

The 1^st Respondent never distributed voters cards to his supporters to facilitate them vote more than once.

(v)

The 1^st Respondent has no knowledge nor did he consent to or approve of any of his agents distributing voters cards to supporters to facilitate them vote more than once.

(vi)

The 1^st Respondent denies having intimidated voters and supporters of the Petitioner to vote for him and/or preventing them from voting.

(vii)

The 1^st Respondent denies having transported voters to vote more than once from one Polling Station to another.

(viii)

The 1^st Respondent denies knowledge nor did he consent to or approve of any of his agents transporting voters to vote more than once from one Polling Station to another.

(ix)

The 1^st Respondent denies being in possession of ballot papers ticked in his favour before the election day.

(x)

The 1^st Respondent denies knowledge of nor did he consent to or approve of any of his agents being in possession of ballot papers ticked in his favour before the election day.

(xi)

The 1^st Respondent denies knowledge of nor did he consent to or approve of any of his agents intimidating voters to vote for him.

(xii)

The 1^st Respondent denies transporting non registered voters from outside the Constituency to vote for him.

(xiii)

The 1^st Respondent denies knowledge nor did he consent to or approve of any of his agents transporting voters from outside the Constituency to vote for him.

(xiv)

The 1^st Respondent denies campaigning using sectarian utterances and mudslinging language against the Petitioner.

(xv)

The 1^st Respondent denies carrying on the campaigns and addressing a rally past the stipulated time but in the alternative and without prejudice to such denial states that it does not amount to an illegal practice or an election offence nor did such non compliance with Section 21 (d) of the Act affect the result of the election in a substantial manner.

(xvi)

The 1^st Respondent denies knowledge of any abduction of the Petitioner’s supporters nor that hey were prevented by the army to abstain from voting for the Petitioner.

(xvii)

The 1^st Respondent denies any acquiescence in, or connivance by the 2^nd Respondent of the 1^st Respondent denying the Petitioners’ agents the chance to witness the voting process at some polling stations nor does the 1^st Respondent have knowledge nor did he consent to or approve of his agents denying the Petitioners such chance aforesaid.

The 1^st Respondent states that the elections were carried out in a free and fair manner in accordance and compliance with the provisions relating to elections under the Parliamentary Elections Act 2001.

The 1^st Respondent defeated the Petitioner by a margin of Eighty Thousand Seven Hundred Seventy Six Votes clearly reflecting the general and overall will of the people who voted in the said election in Nakasongola Constituency.

THAT any non compliance with the provisions of the Act relating to elections which non compliance is denied, such failure did not affect the result of the election in a substantial manner.”

The support of the Answer and in reply to the affidavits supports the petition the 1^st Respondent filed his own and thirty eight affidavits plus his own additional affidavits. Of these affidavits the Petitioner’s Counsel cross-examined on seven.

The 2^nd Respondent also filed an Answer stating: -

“1. Paragraphs 1 and 2 of the Petition are admitted.

2. The 2^nd Respondent shall aver that the elections were conducted in accordance/compliance with the provisions of the electoral law.

IN THE ALTERNATIVE AND WITHOUT PREJUDICE to the foregoing, the 2^nd Respondent avers that if there was any non-compliance with the electoral laws it did not affect the result of the election in a substantial manner.

The 2^nd Respondent categorically denies the allegations of election malpractices and non-compliance contained in paragraph 3 of the petition and avers as hereunder:

(a)

That the 2^nd Respondent did conduct the election exercise in accordance/compliance with the electoral laws and any non-compliance, which is denied did not affect the result of the election in a substantial manner.

(b)

That the 1^st Respondent did win the election held on the 26^th day of June, 2001 in Nakasongola Constituency.

(c)

That there is no evidence to support the contents of paragraph 3 (c) and (d) of the petition and the petitioner shall be put to strict proof thereof;

(d)

That the 2^nd Respondent did clean the voters register and all in eligible persons were excluded from the voter’s register and barred from voting.

(e)

That the 2^nd Respondent ensured that voters cards were safely kept and properly distributed and the 1^st Respondent did not rig the election.

(f)

That the election was conducted under same conditions.

(g)

That the entire election exercise was flawless, free and fair.

(h)

That the 2^nd Respondent ensured that only its officials handled, kept and distributed voters cards.

(i)

That at no polling station did the 1^st Respondent display his posters.

(j)

That no person who was eligible and duly registered as a voter and properly identified was denied the right to vote.

(k)

That the 2^nd Respondent ensured that at all polling stations the Petitioner’s agents were free and did witness the entire election exercise.

(l)

That at no polling station did the 2^nd Respondent allows an ineligible person to vote.

(m)

That the voting and tallying process was done in the presence of all those interested and if at all the Petitioner’s agents were absent which, is denied, they must have absented themselves of their own free will.

That the 2^nd Respondent declared the 1^st Respondent as the manner of the election held in Nakasongola constituency after ascertaining the results conclusively.”

The 2^nd Respondent supported its Answer by filing five affidavits. Of these the Petitioner’s Counsel cross-examined on four.

At the hearing the following were agreed and framed as the issues: -

“1. Whether an illegal practice or an election offence was committed by the 1^st Respondent in the election.

Whether there was non-compliance with the provisions of the Parliament Act.

Whether there was failure to conduct the election in accordance with the provisions of the Parliament Act.

Whether non-compliance and failure affected the results in a substantial manner.

Remedies.”

All Counsel agreed that the burden of proof is settled. The Petitioner has to prove the grounds for nullification of the election to the satisfaction of the court. The standard of proof is on a balance of probabilities {See: Section 62 (3) of the Parliamentary Elections Act 2001. I would hasten to gloss this standard by quoting from BAT ER vs. BATER, (1950) 2 ALL. E. R. 458 where Lord Denning …J, stated: -

“The case may be proved on the preponderance but there may be degrees of probability within that standard. The degree depends on the subject matter. A civil court when considering a change of fraud will naturally require a higher degree of probability than that which it would require if considering whether negligence has been established. It does not adopt so high a degree as a criminal court, even when considering a change of criminal nature, but still it does require a degree of which is commensurate with the occasion.”

I would even go further to agree with my brother Musoke-Kibuuka J. in Z. KAROKORA KATONO ZEDEKIYA vs. THE ELECTORAL COMMISSION AND ANOTHER, HCT 05 – CV – ELECTION PETITION 0002/2001 where at page 6 the rationale standart in these words:

“It is quite crucial to emphasize and bear in mind that setting aside the election of a member of Parliament is indeed a very grave matter. The decision carries with it much weight and serious implications. It is a matter of both individual and national importance. The removal of the elected member of Parliament renders the affected constituency to remain without a voice for some time. ………COPY OMISSION. Thus the crucial need for courts to act in matters of this nature only in instances when the grounds of the petition are proved at a high degree of probability.”

To the 1^st issue I now revert. In paragraph 3 (g) of his petition, the Petitioner alleged that the 1^st Respondent carried on a campaign outside the stipulated time. In support of this allegation the Petitioner presented three affidavits, to wit;

Opyoko Philip
ii)

Samanya Stephen, Basalirwa, and;
iii) Byansi Samuel.

In the three affidavits it is disclosed that at about 10.00 a.m. on 25/06/2001 the 1^st Respondent addressed a general assembly of Nakasongola Army Senior Secondary School. The first two deponents were students at the school and in attendance while Byansi was not such a student nor was he in attendance. His deposition on this allegation is thus not credible especially when in paragraph 6 he states that he merely “overheard” the 1^st Respondent and his group telling the students to vote for the 1^st Respondent.
In paragraph 6(xv) of his Answer the 1^st Respondent stated that he did not carry on the alleged campaign and that without prejudice to the denial this did not account to an illegal practice or an election offence, nor did it affect the result of the election in a substantial manner. The 1^st Respondent was cross-examined on his affidavit and admitted he addressed a gathering of voters in Nakasongola Army barracks after the official campaign had been closed and addressed them on the role of an …. Petitioner in his area generally but not what a Member of Parliament would do for them.”

In re-examination the 1^st Respondent testified that he was conversant with Parliament law and that it did not prohibit any candidate from talking to any group of persons on the day before polling day. That prior to the 2001 Presidential election the Head Master of Nakasongola Army S. School requested him to address students’ complaints about water, insufficient lighting and insufficient library books. That he had chosen 25/06/2001 to do so and fashioned the topic “The Role of an MP in his area” for the occasion. On this evidence alone I find and hold that the 1^st Respondent carried on a campaign on 25/06/2001.

What is the statutory law on this aspect? Section 21 (5) of the Parliamentary Elections Act, No. 8/01 stipulates: -

“(5) No campaign meeting shall be held within twenty-four hours before polling day.”

Section 45 (1) of the same Act reads: -

“(1). The campaign period prescribed by the Commission under Subsection 91) of Section 21 shall not extend beyond midnight of the day before polling day.”

Hereafter I shall caption this Act as the “PEA”.

These two sections have been previously considered by Kibuka – Musoke J. in E. P. 0004 of 2001 WINNIE BABIHUGA vs MASIKO WINNIE KOMUHANGI AND 2 OTHERS. At page 86.

The learned Judge pronounced: -

“Accordingly even if it had been proved that the first Respondent had campaigned on Radio Rukungiri and alleged (8.00 p.m. on the eve of the elections) there would have been no offence committed by her under the Parliament Elections Act 2001.”

I agree with the learned Judge’s interpretation and adopt the same for my holding herein that the 1^st Respondent did not commit any illegal practice or election offence by campaigning at the said school on the said day. I also agree with the 2^nd Respondent’s Counsel that the Petitioner called no evidence to involve the 2^nd Respondent.

In paragraph 3 (b) of the petition, the Petitioner alleged that the 1^st Respondent and/or his agents bribed voters to vote in his favour. The Petitioner’s allegations were supported in the following affidavits.

i)

Kate Nakirindi of Kakola-Kiswera, Mayanda, Kalongo Nakasongola District, deponed:

“1. That I am a female adult Ugandan of sound mind residing at the above address and a registered voter of Kakola Polling Station.

2.

That on the 26^th June 2001 at the above station I saw Mr. Download

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