THE REPUBLIC OF UGANDA

IN THE COURT OF APPEAL OF UGANDA, AT KAMPALA

ELECTION PETITION APPEAL NO. 44 OF 2011

(Arising from the judgment and order of His Lordship Hon. Justice V. F. Musoke Kibuuka in Election Petition No.  018 of 2011, at Kampala)

KIKULUKUNYU FAISAL:::::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT

VERSUS

MUWANGA KIVUMBI MOHAMMED:::::::::::::::::::::::::::::::::::RESPONDENT

CORAM:         HON. JUSTICE S. B. K. KAVUMA, JA;

                          HON. JUSTICE M. S. ARACH AMOKO, JA;

                          HON. JUSTICE REMMY KASULE, JA.

JUDGMENT OF HON. JUSTICE M. S. ARACH AMOKO, JA AND HON. JUSTICE REMMY KASULE, JA

This is an appeal against the judgment and orders of the High Court at Kampala (V. F. Musoke Kibuuka, J.) wherein the election of the appellant as a Member of Parliament was annulled for commission of bribery.

 The facts of the appeal are not in dispute. On 18^th February 2011, Parliamentary elections were held throughout the country. The appellant, Kikulukunyu Faisal and Muwanga Kivumbi Muhammed, the respondent were among the candidates for Butambala Constituency. At the end of the exercise, the appellant polled 13,188 votes or 48.21% against 12, 453 votes or 45.53% polled by the respondent. The other two candidates, namely, Kasule Massy Moses obtained 859 votes or 3.14% and Sserunjogi Edirisa Kawadwa bagged 854 votes or 3.12% of the total votes, respectively. Consequently, the Electoral Commission declared the appellant the winner.

 The respondent was dissatisfied with the outcome of the election and filed Election Petition No.018 of 2011 in the High Court of Uganda at Kampala against the Electoral Commission and the appellant challenging the results for non compliance with electoral laws. In particular and of relevance to the instant appeal, the respondent cited 22 incidences of illegal practice in support of his allegation that:

“ i) The respondent (now appellant) personally  or through his agents, with his knowledge, consent or approval, offered or caused to be offered to registered voters various gifts including, but not limited to, money, cosmetics, steamers, foodstuffs, cows and footballs with a view of procuring voters to vote for him.”

Both the Electoral Commission and the appellant denied the allegations and contended that the election was conducted in accordance with the electoral laws. They pleaded in the alternative that, if there were any non-compliance with electoral laws, they did not substantially affect the outcome of the election. The Respondents thus prayed for dismissal of the petition with costs.

During the course of the proceedings before the High Court, the claim against the Electoral Commission was abandoned. Consequently, there were only two issues for determination by the Court, namely:

1. Whether the appellant committed any illegal practices or election offences personally or through his agents, with his knowledge, consent or approval; and

 2. Whether the respondent was entitled to the reliefs sought.

The learned judge, after evaluating six out of the 22 allegations of bribery, found that five of them had been proved to the satisfaction of the Court. He thus deemed it futile to proceed with evaluation of the evidence in respect of the rest of the allegations in the circumstances. That being the case, the learned judge, answered both issues in the affirmative and in accordance with sections 61(1) (c) and 63(4) (c) of the Parliamentary Elections Act 2005, (hereinafter referred to for brevity as the “PEA”), set aside the election of the appellant and ordered a fresh election.  He also ordered him to pay the costs of the petition.

The appellant was aggrieved by the judgment and orders of the judge and instituted this appeal on four grounds, namely, that:

1. The learned trial Judge erred in law and fact when he found that the 1^st appellant committed illegal practices and electoral offences in connection with the election personally or through his agents, with his knowledge, consent or approval;
2. The learned trial Judge erred in law and fact when he failed to properly evaluate the evidence on record in respect of the incidents of bribery alleged by the respondent in the petition and arrived at wrong conclusions;

1. The learned trial Judge erred in law and fact when he failed to fairly, justly and properly evaluate all the evidence on record thereby coming to the wrong conclusions.

1. The learned trial Judge erred in law and fact when he engaged in conjecture and speculation and reached the wrong conclusions.

The appellant sought the following reliefs and orders:

1. That the appeal be allowed.
2. That the judgment of the High Court be set aside and substituted with judgment in his favour.
3. That the costs of this appeal and those of the court below be granted to him.

From the above grounds, the only two issues agreed upon by the parties for determination by this Court were:

1. Whether the trial Judge erred in law and fact when he found that the appellant committed illegal practice of bribery personally or through his agents with his knowledge, consent and approval;

1. Whether the appellant is entitled to the reliefs sought.

At the hearing of the appeal, the appellant was represented by Mr. Okello Oryem assisted by Mr. Tio Jonathan. Hon. Medad Lubega Segona and Mr. Chrysostom Katumba represented the respondent. They supplemented their legal arguments filed in court with oral submissions.

ISSUE NO.1

Whether the trial Judge erred in law and fact when he found that the appellant committed illegal practice of bribery personally or through his agents with his knowledge, consent and approval;

This was the key issue. In his submissions on the issue, Mr Oryem re- stated the duties of this Court as a first appellate Court namely, to re-evaluate the evidence and subject it to a fresh scrutiny. He also summarised the ingredients of the offence of illegal practice as set out under section 68(1) of the Parliamentary Elections Act, which are:

1. That money or gift was given personally or through an agent.
2. That the recipient is a registered voter.
3. That the giving must have been with the intention to influence votes.

 He then submitted that in an election petition where bribery is alleged, such as this one, the law requires that each allegation must be subjected to an exhaustive scrutiny and all the ingredients must be proved by cogent evidence. The trial judge must also be cautious that witnesses in an election petition are prone to lying in order to promote the interest of their preferred candidate. 

A court should therefore not make a decision under the provisions of section 61(1) of the PEA unless it has, before it, substantial and cogent evidence compelling it to do so.  In other words, the evidence must not only raise suspicion, but it must prove the allegations of bribery under section 68(1) (c) of the PEA to the satisfaction of the Court, although that suspicion need not be beyond reasonable doubt. (See: Hon. Mukasa Anthony Harris vs. Dr. Bagiya Lulume; Court of Appeal Election Petition Appeal No. 14 of 2006).

Whilst acknowledging that a single incident of illegal practice or bribery once proved to the satisfaction of the court suffices and the weight or significance of the incident is irrelevant, counsel Oryem contended that in order to meet the required standard, there must be proof that the purpose of the bribe was to influence a voter to vote for the candidate or to refrain from voting for another candidate.

Lastly, Mr Oryem asserted that in such cases, the Court must take into account the fact that the receiver of the alleged bribe is an accomplice to the illegal practice, therefore, his or her evidence cannot be safely relied on to overturn an election. Hence, in a case where the only evidence before the court is that of an accomplice or accomplices and the same is denied or rebutted by the candidate  or his supporters and agents, there must be independent and cogent evidence to prove the allegation.

In the instant appeal, Mr. Oryem argued, it is the appellant’s contention that the trial judge was aware of the above principles as well as the law but failed to apply them to the case before him. He instead engaged in speculation and conjecture and ended up arriving at the wrong conclusions.

In a bid to illustrate his point, Mr. Oryem pointed out firstly, that the respondent, who is the principal complainant, told blatant lies and his entire case was based on lies in that he told different stories in his affidavit in support of the petition and in his supplementary affidavit. In the circumstances, the petition had no supporting affidavit as no amount of evidence could corroborate lies. The petition ought to have failed for that reason alone.

Secondly, Mr. Oryem submitted that, being a newly created district, the election in Butambala was, according to the evidence of the Chairman Electoral Commission, a unique one.  The Electoral Commission had, accordingly, to re-organise the polling stations, with the result that most of the data such as names, sizes and location of polling stations changed.  So, it was only the voters’ register which was finally used. Therefore, in order to prove that his witnesses were registered voters, the respondent had to produce the voters register before court.  However, the respondent did not adduce the voters register in evidence at all.  There was thus no proof that any of the witnesses who allegedly received bribes were registered voters.

Thirdly, Mr. Oryem submitted that in respect of all the five incidents of bribery on which the judge based his decision, both parties adduced evidence in support of the allegations and in rebuttal.  In other words, there were merely accusations and counter accusations. There was, in his view, clearly no independent evidence. In those circumstances, the trial judge should have called for independent evidence before reaching his conclusions. (See: Mbayo Jacob Robert vs. The Electoral Commission and Talonsya Sinani, Court of Appeal Election Petition Appeal No. 07 of 2006).

Issue No. 2:

Whether the appellant is entitled to the reliefs sought.

Mr. Oryem contended that the appellant was entitled to the reliefs sought in light of his arguments on issue No. 1.  The appeal should be allowed as prayed.

In his reply, Hon. Segona, learned counsel for the respondent, agreed with the principles of law set out by Mr Oryem but contended that the trial judge also correctly applied them to the case before him and arrived at the correct conclusion. The decision of the learned judge should therefore not be interfered with by this court in the premises.

Regarding the respondent’s affidavits, Hon. Segona contended that the respondent never lied and there was no contradiction at all between the respondent’s affidavit in support of the petition and the supplementary affidavit as Mr Oryem alleged, as the latter affidavit merely clarified the former.

In respect of proof of voter registration, counsel Segona asserted that the evidence on record was actually more than sufficient to prove voter registration since the said evidence clearly brings out the fact that the deponents were registered voters. He argued that it would in any case be too onerous to expect the witnesses to produce the voters register as proof of registration. In his view, if the appellant had any doubt concerning the registration of the respondent’s witnesses, it was up to the appellant to request the Electoral Commission which was also a party to the petition to produce the voters register which was in its custody. The Commission had been put on notice through the pleadings and had ample time to verify the voters’ cards and registration numbers which had been given by the respondent’s witnesses. The Commission was ably represented by Counsel Okello Oryem in the High Court and therefore, there was no excuse for failing to verify the information given by the respondent’s witnesses regarding their registration.

Regarding independent evidence, Hon. Segona submitted that it is a well known principle of law that there is no specific number of witnesses required to prove a given fact.  That this court has previously held that bribery in an election petition can be proved even on the strength of evidence of a single witness.  (See: Hon. Mukasa Anthony Harris vs. Dr. Bayiga Michael Phillip Lulume,(supra) and  Hon. Kirunda Kiveijinja vs. Katuntu Abdu, Court of Appeal Election Petition Appeal No. 24 of 2006).

Issue No. 2:

Whether the appellant is entitled to the reliefs sought.

On the basis of his submissions on issue No.1, Counsel