THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT GULU

HCT – 02 – CV – EP – 0001 – 2014

   AMONGIN JANE FRANCIS OKILI :::::::::::::::::::::::::::::::::::::PLAINTIFF

         VERSUS

1. LUCY AKELLO
2. ELECTORAL COMMISSION:::::::::::::::::::::::::::::::::::::::DEFENDANTS

                         RULING ON PRE-LIMINARY OBJECTIONS.

This ruling is in respect of two areas of disagreement by both parties during scheduling. They are on the following issues.

1. Affidavits that were filed and served by the petitioner after the time set by court for filing had elapsed.
2. Admissibility of the CDs that were annexed on the affidavits in support of the petition.

Let me start with the first one.  Learned Counsel Ogalo Wandera submitted at length which submission was supported by learned Counsel Sabiti Eric on the issue of filing the affidavits outside the time lines set by court.

Counsel James Orima for the Petitioner in the interest of justice conceded to striking out the affidavits of Steven Abola, Michael, and Charles Akena.

The ruling is therefore in respect of the affidavit of Jane Okilli deponed on 4/5/2015 and filed in court on 13/5/2015, the affidavit of Omony Dennis deponed on 4/5/2015, filed on 6/5/15 and Akena Geoffrey deponed on 4/5/15 and filed in court on 6/5/2015 but served on Counsel for the 1st Respondent on 19/5/15 and on Counsel for the 2nd Respondent on 26/5/15.

Both sides submitted vehemently in support of their client’s case, which submission are on record and I won’t reproduce them here but will refer to them as and when necessary.

Counsel Wandera Ogalo submitted that the parties were in court on 4/5/15 and the only affidavit in support of the petition was that of the petitioner.

Court made an order at the request of Counsel for the Petitioner that the affidavits should be filed and served upon the Respondents Counsel the next day 5/5/15.  This was done and they were served on 5/5/15. Perusal of the proceedings on 4-4-2015 revealed that Counsel for the Petitioner was directed to serve the 1st and the 2nd Respondents with affidavits and documentary evidence by 5/5/15. Indeed the affidavits were filed by 5/5/15.

Counsel Mauso for the Petitioner submitted on 5/5/15 that court should bear in mind the strict time lines which both the Petitioner and the Respondent will face incase court orders for fresh elections. Based on this submission and the law pertaining to Parliamentary Election Petitions, the  parties  agreed on the time lines, in respect of filing  the affidavits in reply, rejoinder if any, scheduling conference, hearing, filing written submissions of the petitioner, submission of the Respondent, rejoinder if any and date for judgment.

Filing and serving of affidavits for the Petitioner closed on 5/5/2015. The Respondents were to file, serve their affidavits by 25/5/2015 and filing of rejoinder if any was by 29/5/2015. Hearing by way of scheduling conference was on 2/6/2015 and hearing was to commence thereafter. Submissions were to be filed by 10/6/2015 by the Petitioners Counsel and Respondents were to file by 19/6/2015.  The judgment was to be delivered on 29/6/2015.

The above time lines were agreed upon by both Counsel and court endorsed it. Counsel for the Petitioner acted in breach of the agreed time in respect of the affidavits mentioned above.

Counsel Ogalo relied on the case of Kakande Kenneth Paul Vs Ruhindi Fred and the Electoral Commission, Election Petition No. 7/2006. Where His Lordship Justice Eldad Mwangusya as he then was held inter alia “that it was immaterial that service was outside the stipulated time by a few hours or that in the circumstances prevailing, it was difficult to comply with the court order as the affidavits of the process server suggests.” He went on to hold that “in such circumstances, the petitioner should have applied to court for expansion of time instead of trying to force service on the respondents”.

The circumstances in the Kakande’s case are similar to this case.

Counsel for the Respondent armed with the Court of Appeal case, Election Petition No. 11/2006 submitted, the High Court case was overtaken by the Court of Appeal case of Bantalib Issa Taligoola

                                                Versus

1. The Electoral Commission
2. Wasugirya Bob Fred.

Where it was held that “By its nature, an Election petition in my view, time is of the essence. A petitioner may not have all the necessary evidence he or she would like to put in the affidavits in support of the petition at the time of  filing the same. Subsequent affidavits evidence should be allowed and considered as whole and findings should be made on them”.

I entirely agree with the Court of Appeal holding and this is exactly what happened in this case when it first appeared on 4/5/2015. The petition was filed on 29/12/14. The petitioner took months to file other supportive affidavits and court allowed her Counsel to file them by 5/5/2015.  Hearing of the petitioner was re-fixed to 2/6/15.

Because indeed, time is of essence, the Court of Appeal case did not over rule the position in the Kakande case as such, but emphasized the need to allow the petitioner to file additional affidavits, after complying with the statutory time within which to file a petition. Between December 2014 and May 5th 2015, the Petitioner was allowed to file more affidavits.

S.19 of the Parliamentary Elections (Election Petitions) Rules provides for the procedure where special circumstances exist to enlarge time appointed by the rules for doing specific acts.  Much as time limits set by court or by consent of both Counsel and endorsed by court is not statutory, I do not agree with Counsel for the Petitioner that it is not strict and can be varied by any party.

That kind of conduct of serious court business would be chaotic leading to disorderly proceedings. It would be a sign of lack of control of one’s court. Counsel Ogalo, referred to it as contempt of court, but I would not like to imagine that Counsel for the Petitioner acted in contempt.

I suppose, they imagined that they were allowed to act at their own pace. The Petitioner had the opportunity to file and serve all the affidavits between the date of filing the petition and 5/5/2015. After 5/5/2015, Counsel had to seek leave of court to extend the time within which to serve.

S. 17 of the Parliamentary Election Petition Rules provides “subject to these Rules, the Practice and procedure in respect of a petition shall be regulated as nearly as may be in accordance with the Civil Procedure Act and the rules made under that Act relating to the trial of a suit in the High Court with such modifications as the court may consider necessary in the interest of justice and expedition of the proceedings.”

S. 98 of the CPA gives court inherent powers to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of court.

Allowing the affidavits that were filed and served after the petitioner closed the pleadings, would amount to abuse of court process.

Condoning in ordinate delays moreover by the Petitioner would defeat the purpose of the Parliamentary Election Act that provides for expeditious trial. It would entail back tracking and at the same time set a dangerous precedent where Counsel would be in control of court proceedings.

With the above said, and this being a court of record, the affidavits filed outside the agreed time by both parties are expunged from the record to wit, the affidavit of Charles Akena deponed on 4/5/2015 received in court on 6/5/2015, the affidavit of Jane Francis Okilli deponed on 4/5/2015, received by court on 13/5/2015 and the affidavit of Omony Dennis.

This takes me to the next matter raised concerning the admissibility of the recordings annexed to the affidavit in support of the petition of Onen Patrick and Akena Geoffrey.

Counsel Ogalo submitted that the annexure being recordings are not admissible in evidence and accordingly these parts of the affidavits referring to them be severed from these two affidavits.

He started with the annexure on the affidavit of Akena Geoffrey who attaches the CD saying he was requested to translate it by the petitioner.

The second affidavit is that of Onen Patrick who used his mobile phone to record.

Counsel submitted that the person who did the recording must swear an affidavit and introduce the recording. He relied on the case of Presidential Election Petition No. 1 of 2001 Dr. Kizza Besigye Vs Y.K Museveni and another where the four Honorable Justices of the Supreme Court held that the recording was not admissible in evidence. The person who did the recording in Arua was the one to introduce the recording through an affidavit.

The above holding, he submitted was followed in the case of Election Petition No. 1/ 207 Salaam Musumba vs. Electoral Commission and Steven Mubiru, where the person who did the recording was the one to introduce it in court.

I will not consider Criminal Appeal No. 6/1990 of CPL Muwonge and Others Vs Uganda because no original recording to wit the mobile phone which was used has been tendered in court.

He submitted, he does not know how the information recorded on the mobile phone got into the form of CD.

As for Akena, he was given a CD by the Petitioner and told to translate. It is annexed as annexture B to his affidavit.

He submitted it must be known who made the tape/CD so that he explains the circumstances under which it was made and know when the recording was made. Basically, that is the summary of his submission and concern.

In reply, Counsel Mauso Andrew submitted it was now clear about the purpose why the objection was raised it was first against their admission and he is now attacking the admissibility of the affidavit already on court record. He submitted that his colleague, Counsel Orima ably submitted that the supplementary affidavits of Jane Francis Okilli, Akena Geoffrey were introducing authorship of the CDs, (Annexure already on court record but not introducing anything new.) He submitted if they succeed in blocking the additional affidavits which clearly states who authored the recordings, next step will be to attack the affidavit on court record for want of authorship. He termed them as clever technical objections intended at stopping the court into requiring into the recordings and the petitioner will not be heard.

He submitted the deponent states clearly when the recordings were made. It was in November 2014. He submitted Counsel can cross examine to know the specific date and that the CD- Compact Disc when put in the computer displays when the recording was done. Counsel submitted, the decisions supplied by counsel have been over taken by statute. He referred court to Electronic Transactions Act No. 8/2011. This was after the cases of 1990, 2001, 2007. He submitted, the CDs cannot be rejected under S. 8(1) (b) or (c) of the Act. They cannot be rejected because they are CDs. He prayed for the CDs to be allowed to enable court inquire into the petition as provided under S. 63(4) of the Parliamentary Elections Act.

He submitted that the court can go ahead and ignore technical objections like admissibility which objections will have the result of denying court an opportunity to inquire into the merits of the petition. He concluded, it will be a miscarriage of justice if the petitioner was blocked by the technical objection. I took note of the rejoinder but will not go into detail.

I must state here that when adjudicating cases, courts have to consider both sides and treat them equally. A miscarriage of justice should not be occasioned to either side.

Electronic evidence is any probative information stored or transmitted in digital form like compact disc in this case that a party at a trial or proceeding may use.  It is used to prove a particular proposition or to persuade court of the truth of an allegation.

Before accepting electronic evidence, a court will determine if the evidence is relevant, whether it is authentic, or hearsay, or whether a copy is acceptable or the original is required.  It is apparent that the use of digital evidence has increased in the past and that is why courts which were hesitant to admit it have now accepted it as one of the best evidence.  But like any other evidence the proponent of electronic or digital evidence must lay the proper foundation which makes the evidence reliable. Courts are mainly concerned about reliability of such digital or electronic evidence.

The foundation should include the following:

1. Reliability of the equipment used.

2. The manner in which the basic data was initially entered.

3. The measures taken to ensure the accuracy of data as entered.

4. The method of storing the data and precautions taken to prevent loss or alteration.

5. The reliability of the computer programs used to process the data.

6. And the measures taken to verify the accuracy of the program

7. What soft ware was used to preserve digital evidence in its original form and to authenticate it for admissibility?

8. The competence of the person who accessed the original data.

9. This person must be competent to do so and able to give evidence explaining the relevance and implication of what he did.

And finally

10. An independent third party should be able to examine the process and achieve the same results.

The person in charge of the process of acquiring information through the electronic process has the responsibility for ensuring that certain standards are met because this kind of evidence can easily be modified and or duplicated.

Digital evidence is often attacked for its authenticity due to the ease with which it can be modified although it would be necessary to sustain such an agreement with proof of tampering.

In the instant case, the main argument is on authenticity.  

S.5 of the Uganda Electronic Transactions Act 2011 provides that information shall not be denied legal effect, validity or enforcement solely on the ground that it is wholly or partly in the form of data message.

This court has no objection to the form of the message contained in the CD. Section 7 of the Act, provides for authenticity of the data message.

S.7 (2)(a) provides that “for the purposes of subsection 1(a) (which talks of the original form) the authenticity of the data message shall be assessed (a) by considering whether the information has remained complete or un altered except for addition of an endorsement and any change which arises in the normal communication.”

This kind of information can only be given by the person who transferred the information from the mobile phone to the CD. This person has not been disclosed and has not filed an affidavit.

The most relevant part of this section is S. 8 and the admissibility and evidential weight of electronic record.

S. 8(5) provides “ the authenticity of the electronic record system in which an electronic records system is recorded or stored shall in the absence of evidence to the contrary be presumed where (a) there is evidence that supports a finding that at all material times, the computer system or other similar device was operating properly or if it was not, the fact of its not operating properly did not affect the integrity of the electronic record and there are no other reasonable grounds to doubt the integrity of the electronic records system.

In this case, the affidavit evidence does not disclose the condition of the recording equipment used.

(b) It is established that the electronic record was recorded by a party to the proceedings who is adverse in the interest to the party seeking to introduce it. In this case, the CDs are not introduced by the adverse party but by the party wanting to rely on them.

(c) It is established that the electronic record was recorded or stored in the usual and ordinary course of business by a person who is not party to the proceedings and who did not record or store it under the control of the party seeking to introduce the record.

In this case, the original recording on mobile phone was done under the control or direction of the party relying on it. Section 6 of the same Act, further provides “for the purposes of determining whether an electronic record is admissible under this section, evidence may be presented in respect of set standards, procedures, usage or practice on how to be recorded and stored with regard to the type of business, endeavours that used, recorded and stored the electronic record and the nature and purpose of the electronic record”.

This being an election petition which is of public interest, this court cannot allow the CDs which were recorded in contravention of S. 8(5) and 6 of the Uganda Electronic Transactions Act.

The practice that is in place so far is that of having the person who recorded the CD, to swear an affidavit introducing it to court to enable him answer any queries that may arise.

Accepting the casual manner in which the information was recorded would be setting a bad precedent. It would have been a different story if an official from the Radio station was a witness introducing the proceedings of that day.

It would also be a different story if an independent, professional witness covered the proceedings during the campaigns.  That evidence would qualify under the act and therefore admissible.

In the result the second objection is sustained and the CDs expunged from the record.

Proceed with the other evidence on record.

..............…………………………

  MARGARET MUTONYI     

            JUDGE

        3/6/2015