THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA, HOLDEN AT GULU

HCT-05-CV-EP-0001 OF 2014

AMONGIN JANE FRANCES OKILI---------------------PETITIONER

VERSUS

1. LUCY AKELLO
2. THE ELECTORAL COMMISSION      ------------------RESPONDENTS

 

BEFORE:  THE HONOURABLE LADY JUSTICE MARGARET MUTONYI, J.

 

JUDGEMENT

 

1. Amongin Jane Frances, here in after called the petitioner was a candidate in the parliamentary by-election in Amuru District for woman Member of Parliament that took place on the 20^th of November 2014.

Lucy Akello here in after referred to as 1st Respondent was one of the other candidates and was declared the winner by the 2^nd Respondent as the duly elected woman Member of Parliament for Amuru District and the results were published in the Uganda Gazette Vol.CV 11 No.70 of 1st December 2014.

2. ThePetitioner being aggrieved and dissatisfied with the results petitioned to this court under the provisions of S.60 (2) a and c of the Parliamentary Elections Act and the Electoral Commission Act where she contends that the outcome of the results was affected in a substantial manner, because the 2^nd respondent failed to conduct the by­ election for woman member of parliament for Amuru District in accordance with the provisions and principle laid down in the above mentioned Acts.

3. The petitioner further contended under paragraph 5 of her petition several alleged electoral offences and illegal practices during the campaigns and on the polling day. The petitioner’s counsel did not submit on all the allegations but a petition being a case of public interest and not only for the parties, I will address my inquiry into all the allegations.

I will follow her pleading and affidavit evidence to inquire into the purity and propriety of the election.

The complaints starts from  paragraph 5.2 of her petition where, she alleged that the 2^nd respondent disenfranchised over 1000 voters in the constituency at numerous polling stations by striking off their names from the voters register and denying them a chance to vote.

Similarly she contended under paragraph 5.3, That the 2^nd respondent connived with the first respondent to and did turn away over 800 registered voters who are NRM card holders, who had all the intention and purpose of voting for the petitioner, thereby occasioning her loss when she lost by less than 800 votes thereby committing the illegal practice of obstruction of voters.

5.4. That the failure of the 2^nd respondent to conduct the Amuru elections in accordance with the principles laid down in the Parliamentary Elections Act and the Electoral Commissions Act affected the results of the said election in a substantial manner.

5.5. That the first respondent during the conduct of the Campaigns for the said Parliamentary Elections personally and through her agents with her knowledge and consent and approval committed various electoral offences and illegal practices in connection with the election.

5.6. That the 1^st respondent personally and through her agents with her knowledge, consent and approval bribed voters with money, salt, alcohol and other items in order for them to vote  for the 1^st respondent.

5.7. That the 1^st respondent personally and together with her supporters and campaign agents , with her knowledge, consent and approval defamed the petitioner by making false and tribal statements that she was not an Acholi and that she was planning to evict the people of Amuru District from their land.

5.8. That the officers and agents of the 2^nd respondent forged and falsified the elections in favor of the first respondent.

5.9. That the 2^nd Respondent permitted unauthorized persons who were not registered voters to vote in the parliamentary elections.

5.10. That the 1^st respondent on the polling day and within 10metres of the polling station personally canvassed for votes, uttered slogans against the petitioner’s party ,distributed leaflets and pamphlets thereby committing an electoral offence or illegal practice.

5.11. That the first respondent and her campaign agents intimidated the petitioner’s voters by labelling them as traitors for supporting the Petitioner.

5.12. That as a result of the irregularities, and illegal practices and election offences committed by the 1^st respondent and her agents, the results of its by election were affected substantially.

5.13.That the 2^nd respondent failed to control the use and distribution of the ballot papers and ballot boxes to the responsible officials of the Electoral Commission resulting in ballot papers being in the hands of the first Respondent’s agents with the consent, knowledge and approval of the first respondent thereby resulting in multiple voting and ballot boxes stuffing.

5.14. That the 2^nd respondent in connivance with the first respondent stripped the petitioner’s polling agents of their duties and denied them access to the polling station and tallying center thereby leaving the petitioner’s interests devoid of any protection at the numerous stations, resulting into phony results.

5.15. That the second respondent in connivance with the first respondent illegally and unlawfully appointed new polling agents outside the accepted procedure for appointing polling agents.

5.16. That the election commenced at 6:00am in the morning at numerous polling stations an hour earlier than the designated time and also closed at 8:00pm in the evening three hours after the closing time thereby occasioning an injustice to the petitioner.

5.17. That the 2^nd respondent permitted unauthorized persons to sign the declaration of results forms.

The petition was supported by the affidavit evidence of the petitioner and some other witnesses about 17 in number who swore affidavits.

The petitioner seeks from this court an order setting aside the election, where the first respondent was declared winner and order for a new election, costs of petition and any other relief that the court deems fit.

3. The first Respondent denies each and every allegation in her answer to the petition dated 5^th of January 2015 save for the description of the parties set out in paragraph 2 and 3 of the petition and prayed for the dismissal of the petition.

The second respondent also denied each and every allegation of facts contained in the petition save for those that were admitted as deponed in paragraphs 2 to 4 of the petition.

The second respondent also prayed that the petition be dismissed with costs as it was without merit.

In summary, the first respondent’s evidence was to the effect that she did not commit any illegal or electoral offences either personally or through her agents and that at no time did she hold any meeting with the electoral commission to plan and eventually steal the election through accessing ballot papers and boxes, appointing new polling agents and sacking petitioner’s agents. That the second respondent being an unnatural person has no mind of itself to agree with the first respondent to carry out the alleged activities.

She attached her affidavit in support of her answer to the petition. She also had a few affidavits from her witnesses namely Michael Lakony, Winnie Kiiza, Gilbert Oulanya, Wadri Kassiano and Labalping William.

The second respondent in summary contended that the election was conducted in accordance with the law. Mr. Olet Samuel swore the affidavit in support of the second respondent’s answer to the petition. All the presiding officers at the various polling stations also swore affidavit in defence of the allegations against the 2^ndrespondent which evidence also supported the 1^st respondent.

4. At the hearing, both parties agreed that the by-election was held on 20^th /11/2014 in respect of woman MP for Amuru District.

It was further agreed that the first respondent was declared by the second respondent to have won the by-election.

5. The agreed issues for courts investigation were the following;

          1. Whether the by-election was conducted in accordance    

    with the law?

          2. Whether noncompliance if any affected the results in a

              substantial manner?

          3. Whether illegal practices and other electoral offences

               were committed during the by-election by the first

     Respondent personally or by her agents with her

      knowledge, consent and approval?

          4. What remedies are available?

Counsel for the petitioner was to cross examine Lucy Akello, Michael Lakony, Gilbert Oulanya and Winnie Kiiza and Labalpiny William.

However they later on changed their mind and abandoned the idea of cross examining the 1^st Respondent’s witness save for Lakony Michael who was partially cross examined.

Both counsel for the first and second respondent did not wish to cross examine any of the Petitioner’s witnesses.

They also agreed on how court should deal with affidavits where deponents indicated that they had annexed appointment letters whereas not.

The paragraphs which referred to Annexures were to be severed so that they do not form part of the affidavit.

Counsel disagreed on affidavits that were served after the agreed time, of 5/5/2015. They were served on 19^th and 26^th of May 2015 respectively on both Counsel AFTER the date for closure agreed upon by both parties had elapsed.  The petitioner’s counsel wanted to open pleadings. Since this kind of case has a time limit within which to be completed, and all parties including court was constrained with time, court did not give them the liberty to operate against the agreed order on time which was by consent. Since they did not apply for leave to extend time with in which to serve the respondent’s counsel, those affidavits were not allowed. The details of the ruling on this issue is on record. . These were affidavits of Charles Akena, Jane Frances Okilli, Omonya Dennis, Akena Geoffrey and Steven Abola.

They further disagreed on the admissibility of the recordings that were annexed to the affidavits in support of the petition. A detailed ruling about their admissibility was made and it is also on record

Counsel for the petitioner applied for leave to appeal against the interlocutory ruling which application was not granted on the ground that interlocutory orders are not appealable since they can form part of the grounds in the main appeal after the petition is concluded.

Both parties filed written submissions in support of their cases which are on record and I will refer to them as and when necessary. No rejoinder was filed by the petitioner’s counsel.

The petitioner was represented by Counsel James Orima assisted by Counsel Mauso Andrew.

Senior counsel Wandera Ogalo appeared for the 1^st Respondent while Counsel Eric Sabiti appeared for the 2^nd Respondent.

6.                 RESOLUTION OF ISSUES

I am going to resolve the issues in their chronological order save that I will handle the 3^rd Issue before the second because the 3^rd issue will give direction to the course of events.

Before resolving the issues, I will start by stating that the basis of this petition is premised on S.61 (1) (a) and (c) of the Parliamentary Elections Act, Act no. 17 of 2005 which provides for grounds for setting aside an election.

S.61 (1) provides “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.

(a)  Noncompliance with the provisions of this act relating to elections, if the court is satisfied that there has been failure to conduct the election in accordance with the principles laid down in those provisions and that the noncompliance and the failure affected the result of the election in a substantial manner.

(c)  That an illegal practice or any other offence under this act was committed in connection with the election by the candidates personally or with his or her knowledge, consent or approval.’’

The burden of proof in election petitions is on the petitioner and the standard of proof is on the balance of probabilities. (s.61 (3) of the Parliamentary Elections Act refers.

The standard of proof is therefore light unlike in criminal offences, where it is beyond reasonable doubt.

Under rule 4(5) of the Parliamentary Elections (Election Petitions) Rules, the petition is divided inform of paragraphs and each of which shall as nearly as maybe, be confined to a distinct portion of the subject.

This implies that every paragraph of the petition in reference to an illegal practice, irregularity, noncompliance with the provisions of the law, or offence committed like the allegations in this petition must be proved by way of evidence to the satisfaction of the courts.

Evidence in election petitions is adduced by way of affidavits as provided under rule15 of the Parliamentary Elections (Election Petitions) Rules and the deponent may be cross examined by the opposite party. Court therefore relies on the affidavits in support of the petition and in answer to the petition to resolve the issues unless it wishes to examine a witness in person depending on issues raised in the affidavit. Court did not find it necessary to summon any witness to appear in person in this petition.

 Let me now turn to the issues. I will resolve them according to the allegations raised in the petition.

The essential ingredients of section 61 (1) (a) and (c) of the Parliamentary Elections Act are the following:

1. That the elections were not conducted in accordance with the provisions of the law pertaining to the conduct of elections.
2. That in the course of the elections, that is during the official campaigns, and on the election day, before the results are declared ,the candidate and or her agents with her consent, knowledge and approval  were involved in illegal acts/or practices (which illegal acts  are actually criminalized and or declared to be illegal  under our electoral laws ).
3. That the noncompliance and the illegal practices affected the outcome of the results in a substantial manner.

Both the presidential and parliamentary elections Acts do not define substantial manner. Courts therefore take the literal meaning of the word. The effect of noncompliance and illegal practices must be of great magnitude which can be deduced from the evidence adduced in support of the petition. It must be real and not imaginary. It must be glaringly apparent that the elected candidate was not the people’s choice had there been compliance with the law and absence of illegal practices or acts.

This is because a member of parliament is a representative of the people in the constituency. He or she represents all the people in that constituency regardless of their political, religious, racial, ethnic, or tribal affiliations. The outcome should therefore reflect the people’s choice.

 

ISSUE NO.1

Whether the by election was conducted in accordance with the law?

Or in other words, whether there was noncompliance with the law during the electoral process.

The 2^nd respondent is a body corporate that is entrusted with conducting elections and ensures that the electoral process is conducted in accordance with the law. This is a constitutional mandate.

The electoral commission Act chapter 140, Laws of Uganda, under parts 2, 3 and 4 spells out particular functions of the Electoral commission pertaining to the preparations and conduct of elections.  If the commission is to be faulted, it must have acted contrary to its statutory obligations under the Constitution and the Electoral laws made thereunder through its known and identified staff since it is a body corporate. It does not have a body and mind of its own. It operates through its employees who are its brain.

 The first respondent being one of the candidates must be faulted for committing illegal practices in person or through her agent or representatives.  Agent is interpreted to mean by reference to a candidate, a representative or polling agent. The relationship of Principal and Agent should therefore exist before a candidate can be held vicariously liable for the conduct of her or his agents and before the conduct of any person can be construed to be with the consent, knowledge and or approval of the candidate. The words spoken by the agent must be construed to be the words of the candidate. Not everybody who campaigns for a candidate qualifies to be an agent of that candidate,

The petitioner must therefore prove the existence of Principal –Agent relationship by way of appointment letters for polling agents since they represent the candidate in the electoral process. This is to avoid anyone holding out as agents and committing electoral offences which would be imputed to a candidate.

 

The petition under paragraph 5 raises several electoral offences and illegal practices which the petitioner was to prove by way of affidavit evidence as opposed to oral testimony in most cases, according to rule 15 (1) of the Parliamentary Election (election petition)rules.

Let me start with paragraph 5:2 of the petition. That the second respondent disenfranchised over 1000 voters at numerous polling stations by striking off their names from the voters register and denying them a chance to vote.

Counsel for the petitioner submitted that the Parliamentary Elections Act spells out the grounds for setting aside an election which grounds the humble petitioner is seeking to prove. The Act provides that an election shall be set aside if it is proved to the satisfaction of the court that there has been failure to conduct the election in accordance with the provisions laid down in the ACT and that noncompliance and the failure affected the results in a substantial manner.

He went on to submit that during the by-election, numerous voters were denied their right to vote by the 2^nd respondent’s agents. That according to S.71 of the Parliamentary Elections Act, a person who at an election or on nomination day willfully obstructs a voter at a polling station commits an illegal act. He submitted that the petitioner’s voters were obstructed and denied a right to vote by the 2^ndrespondent’s agents jointly and severally which amounted to an illegal practice within the meaning of section 71 of the PEA.

In their submission counsel for the 2^nd respondent maintained that the elections was conducted in compliance with the provisions of the law and principles laid down in the electoral laws of Uganda.

In paragraph 5 of the petitioner’s affidavit in support she stated “that I am aware that many of my supporters were unable to vote since they did not find their names in the voters register, yet they had duly registered and were accordingly disenfranchised by the second respondent”.

I suppose, this paragraph was intended to prove the allegation contained in paragraph 5.2 of the petition.

No other affidavit in support is mentioning disenfranchisement of over 1000 voters.

S.18 A of the Electoral Commissions Act provides;

“the commission shall transmit to every political party and organization taking part in an election an electronic copy of the voters register immediately after the nomination day but before polling day and an updated paper copy of the register containing photographs of the voters to be used on the polling day, two weeks before polling day.”

The importance of the above section is to:

1. Enable the party or candidate participating in an election know the number of the registered voters. In case of multiple voting or stuffing of ballot papers in ballot boxes, or voting of unauthorized persons, the vice can be detected and proved before the court or tribunal.
2. To enable the party, its candidates and supporters know whether their members have been registered as voters or not, since no person shall be qualified to vote at an election if that person is not registered as a voter in accordance with article 59 of the constitution.

 

To strike off, means to cross out or put a distinct mark on the name. It is done to a name which is already appearing on the list. A name may be struck off from the voters register in accordance with article 59 of the Ugandan Constitution.ie, if a purported voter is below 18 years and not a Ugandan citizen or if he is deceased at the time of voting.

No evidence whatsoever was adduced by way of attachment of the copy of the voters register and or the voters roll for Amuru District or for at least any single constituency in Amuru district to help court satisfy itself that over 1000 or half of this number of its registered voters had their names struck off illegally thereby disenfranchising them on that day.

 

Similar to paragraph5:2 of the petition is paragraph 5:3 where the petitioner averred thus;

•  

 

In paragraph 6 of her affidavit she stated on oath that the 1^st and 2^nd respondents connived and turned away over 800 NRM card holders who had all the intention and purpose of voting for me and thereby occasioning my loss when I lost by less than 800 votes and committed the illegal practice or offence of obstruction of voters.

To obstruct means to hinder or block. In the instant case, it would mean to block a registered voter from exercising his right to vote:

1. .25 of the Electoral Commissions Act Cap 140 laws of Uganda, provides for display of copies of the voters rolls and objections to the rolls.
2. .25 (1) (b) specifically covers the by-election.
3. .25 (1) (b) provides, “In the case of a by-election, the commission shall display the voters roll for a period of ten days and in addition shall allow a period of six days for a display of the recommendations from the tribunal during which any objections or complaints in relation to the names included or deleted from the voters roll or in relation to any necessary corrections shall be raised or filed.”
4. .25 (3) provides for raising of objections against the inclusion in the voters roll of any name of a person who is not qualified to vote or that the name of a person qualified to vote or to be registered has been omitted.

 

To satisfy court that over 1000 voters were disenfranchised and over 800 NRM party holders were obstructed, the petitioner had to adduce the following evidence by way of affidavits.

1. That during display of the voter’s register, she raised the issue of omission of her supporters who were duly registered as voters with voters cards issued under S.26 of the Electoral Commission Act, with the second respondent but second respondent did not take any action.
2. That on polling day, 800 of the registered voters under article 59 of the constitution, S.26 of the Electoral Commission Act, and appearing on the voters register and voters roll were obstructed from voting by the second respondent’s agents naming the specific polling stations and officers/agents of the 2^nd respondent who obstructed her supporters or voters from exercising their constitutional right.
3. The voters who were denied to vote, should have sworn affidavits attaching certified copies of their voter’s card which is the authentic identity of a voter, mentioning the polling stations where they were obstructed. , showing how they were obstructed, and who obstructed them and at what time.

This is because there is a time limit within which voting is done. If you go to a polling station too early or too late before and after official closure, you will not be allowed to cast your vote even if you have a voter’s card.

 

If that evidence was available, then certainly the second respondent would have committed an electoral offence under S.71 of the Parliamentary Elections Act through its agent.

 

Counsel for the petitioner relied on the evidence of Richard Opoka, Rose Opoka, Lanyero Christine, Nyeko Richard, Anthony Odongpiny.

On page 4, counsel submitted “The petitioner’s voters were denied their right to vote by being sent away despite their names appearing on the voting register thereby giving the first respondent advantage and more voters leading her to be declared the winner of the by-election.”

 

The respondents attacked the evidence of the petitioner. Counsel for the first respondent in particular, submitted that Opwonya Charles, Lanyero Christine, Nyeko Richard, Komakech Bosco, Omanyo Alfred Obong, Betty Alinga, Richard Opoka and Anthony Odong swore affidavits in support of this complaint.

He submitted Omanyo Alfred Obong claims his fellow party members did not find their names on the register and were denied the right to vote. He named them as Ayugi Rose, Aryem Jackline, Kilama Charles, and Oola Morris. He submitted the evidence of Omanyo is nothing more than an attempt to circumvent the rule against hearsay by claiming he witnessed the voters being sent away. (He asked, “Why was it so difficult for those mentioned above to swear affidavits that they were disenfranchised?”)

 

He further submitted, these persons did not swear affidavits to say they are voters and attach voters’ cards to their affidavits. They are the ones who heard the words denying them the right to vote. The person who sent them away is not named and lastly the deponent says, he knows they are voters because they hold party cards.

One must hold a voters card and not a party card to be eligible to vote.

Counsel for the second respondent rebutted the allegation of disenfranchisement through the affidavits of Olet Samuel, ODOKI JUSTIN, OPINY FRANCIS, OJOKE CHARLES, L’ADOCH CHRISTINE, OROMA MIRRIAM, and others who were the returning officer and presiding officers during the election.

The Returning officer according to his evidence informed people that all those appearing on the voters register were entitled and should be allowed to vote.He also stated he never received any complaint from the petitioner before, during or on the polling day,

 

As mentioned earlier on, no evidence was adduced to the effect that over 800 registered voters were denied to vote.

It is not enough to state the number. The statement must be supported by evidence.

There is no explanation why the persons who were turned away did not swear affidavits attaching their voters’ card, since they are ably identified by the deponents. The deponents opted to speak on their behalf and yet they are presumed to be adults and of sound mind to be eligible to participate in elections.

Connivance involves to people who agree on a secret plot or a tacit approval of someone’s wrong doing. The petitioner had to prove this allegation by naming the two or more persons who acted in connivance. She did not.

 

The evidence of Komakech Bosco in paragraph 3 of his affidavit was to the effect that, “very many of my party members did not find their names on the voter register. That of the 370 NRM voters that turned up only 67 were allowed to vote.”

He doesn’t state whether NRM party members had the voters cards or were indeed appearing on the voters register and denied to vote. All the petitioner’s witnesses on the issue of 800 voters who were obstructed or denied to vote was hearsay and not supported with evidence of registration as voters in the voters register.

 

No single certified copy of the voters’ cards for the alleged persons was attached.

The electoral commission, the second respondent denied the allegation. Since the petitioner did not prove it, I do not have to go into detail of the second respondent’s response.

 

It should be noted that even an illiterate person knows that one cannot be allowed to cast a vote without a voter’s card. They also know that during the time of display, they are supposed to cross check and confirm whether their names and photographs appear in the register. They actually use the voter’s cards for their identification.In fact witnesses in such petitions usually identify themselves by the voter’s card number because if you are not a registered voter, you have no right to complain about elections.

The petitioner has left many questions not answered;

Did her NRM supporters register as voters?

Did they think, they would vote using their NRM membership cards?

If they were registered, why were they not armed with that evidence in court?

Why would they not come up to prove they were dis enfranchised?

Did the petitioner know the purpose of displaying the voters register?

Did the petitioner think that mere mention of 1000 people allegedly disenfranchised was enough evidence?

 

Before I take leave on the issue of obstruction and disenfranchisement, where a witness is not called who would otherwise be helpful in giving direct evidence in a case, for instance, those who were allegedly obstructed from voting, and yet were duly registered as voters, the presumption is that such evidence would not be in favor of the person purporting to rely on it.

 

In my opinion, the allegation of disenfranchising 1000 voters and obstructing 800 voters has not been proved by evidence before court in the absence of affidavits of the purported registered voters and a certified copy of the voter’s roll to identify those who were registered and later on struck off the register or voter’s roll.

 

Counsel for the petitioner further submitted on the allegation of canvassing for votes on the polling day.

He submitted, S.81(1) prohibits a person from canvassing for votes, uttering any slogan, distributing leaflets for or on behalf of any candidate, organizing or engaging in public singing or dancing or using any band or musical instrument within 100 meters of the polling station.

S.81 (2) prohibits a person from seeking to influence in whatever manner any person to vote for any candidate or to ascertain for which candidate any voter intends to vote or has voted within 200meters of any polling station during voting hours.

He submitted, the first respondent’s agents with her knowledge and approval were campaigning for her on the day of the election at numerous polling stations.

This allegation is contained under paragraph 5:10 of the petition and paragraph 11 of the petitioner’s affidavit in support.

She deponed “that the first respondent on the polling day and within 10 meters of the polling station personally canvassed for votes, uttered slogans against me and my NRM party, distributed leaflets and pamphlets thereby committing an electoral offence.

Of course if proved, this conduct would be in breach of S.81 of the Parliamentary Elections Act.

The petitioner, other than alleging in her petition and affidavit, doesn’t indicate or mention the polling station where the first respondent canvassed for votes, doesn’t state the slogans used against her and the NRM party, or attach a copy of the leaflets or pamphlets distributed.

 

No single witness swore an affidavit to the effect that they attended any such meeting where the first respondent was canvassing for votes on that day or that they received the leaflets or pamphlets.

 

The petitioner doesn’t state where she saw the first respondent personally contravening S.81 of the Parliamentary Elections Act.

Her witness Richard Opoka who should be a man started by saying, “I am a female adult Ugandan of sound mind. “I stand to be corrected if Richard Opoka is not a man.

Under paragraph 3, he stated on 22^nd November, I went to my polling station to vote in the by-election of Amuru Woman District Member of Parliament.

In paragraph 6, he stated “That on voting day at around 9:00am Norbert Mao arrived at the polling station and began campaigning for the first respondent. He stated that at the same time Opira Charles uttered defamatory statements against the petitioner to wit the petitioner was going to give away the people’s land if they voted her and that he witnessed the polling agents campaigning on voting day.

 

Before Opoka Richard signed his affidavit, the commissioner for oaths Judith Oroma stated, “before me having first truly, distinctly and audibly read over the contents of this affidavit to the deponent, her being illiterate and explained to her the nature of the contents thereof in the Acholi language, the deponent appeared perfectly to have understood the same and he made his signature thereto in my presence”. I have found Opoka’s affidavit wanting. I don’t know whether he is a he or she. Secondly, according to him or her he went to the polling station on 22^ndNovember. The year isn’t mentioned. Supposing it was 2014 like there is judicial notice that the by elections were conducted on 20/11/2014, was he explained to the contents of his affidavit? Why did he maintain 22 November? Did he therefore witness any campaigning on 20^th November 2014? This court can’t start substituting the dates in the affidavit.

1. .81 imposes personal liability and Norbert Mao was not and is not above the law.

No evidence was adduced to the effect that Norbert Mao’s illegal conduct was reported to the police officers managing the polling station at Tekwi polling station. Was he using a microphone, who attended the campaign rally on the voting day? This allegation is serious and ought to have been reported to the authorities. Being an offence, which attracts a punishment it must be proved slightly beyond the normal standard of proof in ordinary civil suits and reporting of such cases to the police or evidence of arrest of such persons who commit such crime would be sufficient evidence that indeed they committed the crime. This can help the court make an informed decision to refer such cases for prosecution. There must be a prima facie case.

 

Ojok Charles Lapolo of the electoral commission in his affidavit in reply to Richard Opoka’s affidavit stated the polling commenced smoothly in the presence of all candidates. He stated the elections were conducted on 20^th not 22^nd November 2014 and that the allegations under paragraph 6,7and 8 were not brought to the attention of the presiding officer. Actually he was the presiding officer. How can a person campaign on polling day at the polling station within 10 meters and agents of a participating candidate just look on?Did they know their duties as polling agents?

 

No single witness came out to state that they were converted at the last minute because of the 1^strespondent’scampaigns at the polling station or after Norbert Mao’s campaign at the polling station.

 

In paragraph 10 he attaches a certified declaration of results form duly endorsed by Opoka Richard where his candidate won by 114 against 89 votes for the first respondent. He didn’t refuse to endorse the result for Coo-ram Tekwir polling station. Where the polling agent, like Opoka Richard witnesses an irregularity, it is his duty to report to the police or cause the irregularity to be reported to the police or presiding officer and where the presiding officer takes no action, then he shouldn’t sign the declaration of results and give reasons if he believes, the action complained against has affected the outcome of the results. Supposing Mao campaigned at Coo-Tekwi which allegation has not been proved, did it have any substantial effect on the result at that station? The petitioner won at that station by 25 votes.

 

Olwedo James in paragraph 8 of his affidavit states: “That Labalping William an agent of Lucy Akello actively campaigned at Olwal polling station and lured voters there to vote for Lucy Akello”. This election was by secret ballot. How did he know that the voters were lured to vote for the first respondent on that day and who are those voters. At Olwal polling station, the first respondent got 90 votes and the petitioner got 83 votes. This was fair competition. There is no evidence that the difference of the 7 votes or more were a result of luring on the voting day.

 

In courts view the complaint or allegation under paragraph 5.10 has not been proved on the balance of probabilities. Much as counsel for the petitioner claims the evidence of the petitioner was not controverted or challenged in cross examination, it was controverted in the affidavits in response to the petition and the supporting affidavit. Cross examination should be done where a witness’s untruthfulness is likely to be treated as the truth. In the instant case the allegations were not supported by evidence that is credible. There was no need to cross examine witnesses whose evidence has no evidential value but based on wild imaginations.

 

Paragraph 5.11 of the petition alleging intimidation and paragraph 12 of the petitioner’s affidavit was not proved at all. There is no evidence of intimidation. No persons came up claiming they were intimidated. Intimidation is exhibited in form of coercion, threats and or violence directed at voters. Apart from stating it in the petition and repeating it in the affidavit in support, the petitioner left it hanging in the air. I will not address my mind to it so much since counsel for the petitioner also abandoned it by not making any submission on it. Of course he could not manufacture evidence on it.

 

ISSUE NO.3

Whether illegal practices and other electoral offences were committed during the by-election by the first respondent personally or by her agents with her knowledge and consent and approval?

As mentioned earlier, the burden of proof in election petitions lies upon the petitioner who is to prove every allegation set out in the petition to the satisfaction of court.

Proof to the satisfaction of court implies that the matter is proved without leaving room for the court to harbor any reasonable doubt that what is alleged may be never occurred or existed.

It was held in the case of Rtd. Col. Dr. Kiiza Besigye versus Y.K Museveni SCU Election Petition no.1/2001.,That the degree of proof is higher in petitions (election) than that which is required in ordinary suits because of the public importance and seriousness of the allegations normally contained in the petitions.

A petition is a pleading and the petitioner must not depart from the pleadings.

Under the third issue, the petitioner is to prove the illegal practice and electoral offences alleged to have been committed by the first respondent or by her agents during the elections as pleaded in the petition.

Paragraph 5:6 of the petition states “That during the conduct of the campaigns for the said Parliamentary elections, the first respondent personally and through her agents with her knowledge, consent and approval bribed voters with money, salt, alcohol and other items in order for them to vote for the first respondent.” The above allegation if proved would be contravening S.68 (1) of the Parliamentary Elections Act no.17 of 2005 which attracts a fine not exceeding 72 currency points or imprisonment not exceeding 3years or both. It is a serious allegation.

Counsel for the petitioner with due respect abandoned this allegation as no evidence whatsoever was adduced in support of it. Bribery of voters is a serious crime and a cancer in the politics of Uganda. I wonder why it was made an allegation and yet the petitioner herself other than stating it under paragraph 18 of her affidavit accusing the presiding officers of the second respondent for permitting the campaign agents of the first respondent to access the polling station and bribe voters who were lining up to cast their votes, without naming the campaigning agents and the respective polling stations, failed to adduce any evidence to that effect.

If the court is to believe the petitioner, which presiding officers and or agents of the first respondent committed the electoral offence?

Her averment under paragraph 18 of her affidavit is not sufficient. Did they give out money, salt, alcohol and other items while the voters were lining up to cast their vote? Did they bribe all the voters at all polling stations?  Which fact does the petitioner know when she cannot mention a single name of the agents, polling stations, and presiding officers where bribery took place while people were lining up to vote?

Counsel for the petitioner was actually right not to waste court’s time to submit on the allegation of bribery as there is no evidence at all other than alleging it did happen.

In courts considered view, this allegation of bribery appears to have been a copy and paste from where ever it was got from because it is not backed by evidence at all. I know it is a crime for voters to receive bribes as an inducement for their voting for a particular candidate. But where bribery is alleged to have been committed, it must be proved and voters who were bribed identified since it is alleged to have happened in broad day light while voters were lining up to cast their votes.

 

The other allegation which would constitute an electoral offence is under paragraph 5:7 of the petition. “The first respondent personally and together with her supporters and or campaign agents, with her knowledge and consent and approval defamed your petitioner by making false and tribal statements that she was not an acholi and that she was planning to evict the people of Amuru District from their land.”

The above statement or allegation if proved would be in contravention of S.73 of the Parliamentary Elections Act. S.73 which forbids false statements concerning the character of candidates.

Character is defined in advanced learner’s dictionary as the inherent complex of attributes that determines a person’s moral and ethical actions and reactions or a person of a specified kind such as referring to capability, friendliness, a person of good repute and may include describing a person’s qualifications and dependability to help the potential future employer make a decision either to employ a person or not.  Of course here it would mean attacking the character of the petitioner portraying her as a person not capable of representing the people of Amuru in parliament as their woman MP. The statements must be false or if true must be said in bad faith with the intention of damaging the good image or reputation of a candidate. It is also intended to attack the capability of the petitioner given the fact that being a Member of Parliament calls for a person who will represent the interest of the voters and ably articulate on the issues that concern the electorate in her constituency and also ably participate in Parliamentary debates on issues of public interest for the Ugandans as citizens.  The words complained of must be specific words attacking the personal character of a candidate

S.73 provides;

(1) A person who before or during an election for the purpose of effecting or preventing the election of a candidate, makes or publishes or causes to be made or published by words whether written or spoken or by being in relation to the personal character of a candidate, a statement which is false.

(a) Which he or she knows or has reason to believe to be false or

(b) In respect of which he or she is reckless whether it is true or false commits an offence and is liable on conviction to a fine not exceeding six months or both.

(2) This section does not take away the right of a person to sue for defamation of character.

Counsel for the petitioner ably brought out this section of the law. An aggrieved person is even at liberty to sue for defamation of character.

S.73 is intended to penalize whoever goes out to character assassinate a candidate during campaigns. It forbids defamation of character. The essential ingredient in that section is therefore defamation.

The offender must attack the personal character of the candidate. It must be an attack on the good name of the candidate. It must be a malicious misrepresentation of the candidate’s words or actions.

Consequently, the exact words complained of must come out clearly in the pleading.

The petitioner in her affidavit in support of paragraph 8 repeated the allegation more or less in similar words. Her evidence in support of her allegation is as follows;-

Paragraph 8. “That the first respondent personally and together with her supporters and or campaign agents with her knowledge and consent and approval defamed the petitioner by making up false and tribal statements that I was not an Acholi and that I was planning to evict the people of Amuru District from their land.”

If the above evidence is looked at critically, it is a statement by the petitioner. The exact false words and tribal statements are not quoted. It is difficult for court to know which exact words were uttered or made by the first respondent and which exact words were made by the agents and which agents or supporters.

In his submission, counsel for the petitioner mixed or bundled up sectarianism, sexism, racism, tribalism, defamation, false statements, discriminatory acts.

Election petitions are matters of public interest that concern not only the parties but also the general body of the electorate in the affected area. Needless to mention, the entire nation learns from what happens in an area by abandoning the bad habits or carrying on the good practices. Elections are the democratic expression of the will of the people as to whom they wish to represent them.

When court is handling an election petition, it is expected to be articulate when dealing with issues before it. Each offence should therefore come out clearly and not in an omnibus style. Court decisions are not JUST for individuals but for guidance on future conduct or transactions in similar situations.

 It is therefore important that each ingredient of an alleged offence or each alleged offence is dealt with exhaustively.

Reverting to paragraph 5:7 of the petition, apart from the petition stating that she was defamed by false and tribal statements, she does not quote the statements in the pleading. This has made it difficult for this court to inquire into the allegation. Court does not operate on speculation or imagination. It operates on the evidence before it and the law applicable. Court cannot start imagining which words that are defamatory were uttered.

Counsel for the first respondent relied on the landmark case on electoral laws of presidential Election Petition No.1 of 2001. Rtd. Col. Dr. Kiiza Besigye versus Electoral Commission and Y.K.Museveni which had a similar claim but it was not expressed in the exact words complained of. Odoki CJ as he then was stated, “I accept the submission of Dr.Byamugisha that charges in the petition relating to false, malicious or defamatory statements were defectively framed as they did not set out verbatim the statements complained of in the petition. Words take their meaning from the contest or background and if the contest or background is not provided or a full statement not produced, their malicious or defamatory effect may not be easy to discover. The particulars of the statement also enable the respondent or defendant to know what case he or she has to meet or defend.”

This court is bound by the above decision which lays down the foundation of character assassination during campaigns.

S.73 (1) has the following elements that must be proved on the balance of probability.

(1) There must be words either spoken or written;

These words should therefore be pleaded verbatim

(2) The words complained of must be published

(3)  The words must attack the personal character of a candidate knowing they are either false or true.

(4)  The words must be uttered recklessly

(5)  The intention must be to prevent the election of a candidate.

The petitioner in my opinion must adduce evidence to the effect that because of the words complained of (specified words) the electorate, who held her or him with high esteem, shunned him or her. The petitioner must adduce evidence that the electorate or a very good portion of it lost all the respect they had for her after the said words.

In the instant case, no evidence whatsoever has been adduced to the above effect. The offence under S.73 of the Parliamentary Elections Act was therefore not proved.

The same paragraph introduces tribal statements on which counsel for the petitioner submitted at length. The tribal statements were that she was not an Acholi and that she was planning to evict the people of Amuru District from their land.

Similarly, the exact words about evicting people were not mentioned. However on this second leg of the claim, counsel for the petitioner relied on S.23 (1) of the Parliamentary Elections Act which forbids non-sectarian campaign. The section provides, “A person shall not use a symbol, or color which has a tribal, religious affiliation or any other sectarian connotation as a basis for that person’s candidature for election or in support of that person’s campaign.”

The penalty for sectarian campaign is under S.23 (3) (a) where a fine of 120 currency points may be imposed or imprisonment for 5years or both. This shows how seriously sectarian campaign is treated under our electoral laws.

He also relied on S. 24(a) of the Parliamentary Elections Act which provides that, “Any person who before or during an election for the purposes of effecting or preventing the election of a candidate either directly or indirectly (a) by words, whether spoken or written, song, sign or any other representation or in any manner seeks to excite or promote disharmony, enmity, or hatred against another person on grounds of sex, race, color, ethnic origin, tribe, birth, creed or religion commits an offence.

Sectarian campaign was identified as an area which should be specifically outlawed or tolerated.

It must in my humble opinion be specifically pleaded. It was not. Nevertheless, if I consider the second leg of paragraph 5:7 as falling under the ambit of S.23(1) and section 24(a) of the Parliamentary Elections Act, then evidence adduced must prove the following constituents of the offences created under the above section. Under S.23 (1), the petitioner must prove:-

1. That the respondent used a symbol or color with tribal, religious, or other sectarian connotation.
2. That the symbol, color or other sectarian connotation was the basis for her candidature or campaign.

Sectarian connotation relate to or are characteristic of a sect. One must have a sectarian mind or conduct herself or himself in a sectarian manner .One must exhibit intolerance of the other or intolerance by the electorate as a result of the sectarian campaign in order to amount to sectarian connotations.

Under S.24 of the Parliamentary Elections Act which forbids interference with electioneering activities of other persons, the allegation must also be specifically pleaded.

The petitioner must prove that,

1. The respondent used spoken or written words, or presented herself or himself in a manner that interfered with the election activities of another person.
2. The words promoted disharmony, enmity and hatred against the petitioner.
3. That the disharmony, enmity, hatred was based on the petitioner’s tribe, sex, race, color, ethnic origin, creed or religion.

The words which the petitioner is relying on is that it was said she was NOT an Acholi and that she was planning to evict the people of Amuru District from their land.

There is no evidence that was adduced showing that the 1st respondent used any symbol or color which was symbolic with the Acholi tribe.

No evidence was adduced to the effect that as a result of the use of a symbol or color, the petitioner was hated and that there was disharmony or enmity between her and her supporters.

No evidence was adduced to prove that she lost because she was rejected for not being an Acholi.  In fact according to the results, the competition was tight between the petitioner and the 1^st respondent.  The other candidates were ABER CAROLINE, ACHAN POLINE, ADOKORACH SUSAN BWOT AND ATIM JOSEPHINE.

If I may sample a few stations ,at Ogoro Pii  the petitioner got 60 votes while the 1^st respondent got 58 votes, with a difference of only two votes. Achan POLINE got 1 vote  Aber Caroline got 0,Adokorach Susan got 2,while Atim got 0.

At LABLA-OM polling station, the petitioner got 52 votes while 1^st respondent got 60 votes with a difference of only 8 votes. Aber Caroline got 0, Achan Poline got 6, and Adokorach Susan got 1.

At OLWAL-MUCAJA polling station, the petitioner got 83 votes while the 1^st respondent got 90 votes with a difference of only 7 votes. The other candidates went away with 0 and 1 vote each respectively.

At GIRA-GIRA PRIMARY SCHOOL polling station, the petitioner got 56 while the 1^st respondent got 73 with a difference of 17 votes only. The other candidates got 1 each with Achan getting 22 votes. 

At Mutema junction, polling station, the petitioner got 33 votes, 1^st respondent 43 votes, with a difference of only 10 votes, Aber Caroline 2 votes, Achan Poline 8 votes, Adokorach Susan 4 votes Atim Josephine 0.

At COO-ROM, polling station the petitioner got 114, the 1^strespondent got 89 with a difference of 25 votes while Abel Caroline got 0, Achan Poline 7 Adokorach Susan 0.

 The above results show that the petitioner was not rejected or hated for not being an Acholi. If anything, the candidates who got 00 and or 1 should be the ones to complain because not even their polling agents voted for them. They did not also vote for themselves where results indicated zero.

The difference between the petitioner and the 1^st respondent was not shockingly overwhelming to bring out the element of possible shunning by the electorate on tribal basis. The assumption that the petitioner lost because she was from the Itesot tribe from Eastern Uganda which evidence was from the bar in submission was in the mind of the petitioner.

The electorate in Amuru voted for her except that she lost with small margins.

Losing an election does not necessarily mean that people or the electorate hate you. There is no evidence that the supporters of the petitioner turned against her as a result of the sectarian campaign. No evidence was adduced showing that there was intolerance of the petitioner based on tribal sentiments. She actually lost honorably unlike those who would get one or no votes at all.

 Counsel for the petitioner submitted as follows;

“the parliamentary by-election held on 20^th November 2014 offended all the above provisions of the Parliamentary elections Act, as well as chapter 4 of the 1995 constitution that provides for “equality and freedom from discrimination” sexist, defamatory, tribal and sectarian statements were made by the first respondent personally or with her knowledge and consent or approval. The petitioner comes from the Itesot tribe of eastern Uganda and is married to an Acholi and therefore lives in Amuru district. The first respondent on the other hand Is a native of Acholi and she sold herself as such to endear herself to the voters who are mainly Acholi.

Throughout the period before and during the elections, the issue of the petitioner’s ethnicity was fodder for the public at political rallies, campaigns and on various radio talk shows.

The first respondent and her agents capitalized on the fact that the first respondent was Acholi and the petitioner was a non Acholi.”

I have looked at the affidavits of the petitioner, Odoki Jenaro paragraph 3, Richard Opoka, Rose Opoka paragraph 4, Betty Alinga paragraph 6, Anthony Odong paragraph 7, Lanyero Faustine, paragraph 3. None of them brings out the issue of the petitioner being from the Itesot tribe and that she was discriminated against because she was from the Itesot tribe of Eastern Uganda. That piece of evidence is from the bar. Until counsel gave that evidence from the bar, court did not even know that the petitioner is from the Itesot tribe because none of the witnesses mentions it in their affidavit. Not even the petitioner.

Court is therefore wondering if the first respondent and her agents were using the petitioner’s ethnicity against her, why is it that none of the witnesses mentions Itesot tribe in their evidence.

Was the Itesot tribe ever mentioned? Is it possible to mention that the petitioner was a non Acholi without mentioning where she came from? If at all the voters did not vote for her because she was Larok (meaning foreigner) is there evidence that the electorate only considered the tribe and nothing else?

Was the race between the two only?  There were other candidates who actually lost miserably compared to the petitioner as demonstrated above. Were they discriminated because they were Larok? Certainly the answer is in the negative.

Lanyoro Faustin and Anthony Odong claimed that Michael Lakony uttered defamatory and insulting statements that the petitioner was not an Acholi and therefore not fit to lead the people of Amuru and that she had a certificate in cooking and that she had no hair.

Court found this evidence very interesting. This was not a beauty contest. What did hair have to do with a parliamentary candidate?  Even in today’s beauty contest, the panelist look for brain intelligence more than physical looks. One may look stunningly petit but with little intelligence or reasoning capacity. Lanyoro Faustin and Anthony Odong must be living in the 16^th century where beauty was an issue. That is why today, Uganda and world over are promoting the education of a girl child to enable her participate in national development.

The issue of the level of education whether one has a certificate or Doctorate in a given field is a question of fact.  In campaigns, it is allowed to make comparisons to enable the electorate decide who has the capacity to deliberate on serious national issues in the August house. The minimum education is Uganda Advanced certificate of education or its equivalent.  During campaigns a candidate brings out their education qualifications which is not a crime. It cannot be said to be defamatory if a candidate’s academic qualifications comes out as a fact. It would however be defamatory if one came out to say that a candidate is a certificate holder where as she is a degree holder. No evidence was presented in this court about the education level of the petitioner. Upto now court does not know her level of education. She did not even make it an issue for investigation.   No witness came up to say they never voted for her because she is a certificate holder.

Michael Lakony denied the above accusation in his affidavit dated 21/05/2015. In paragraph 3, he denied ever telling voters not to vote Amongin because she is not Acholi. He said, the petitioner sold herself as “Dako gang” meaning “I am your wife”.

Annexture A to his affidavit indeed shows a calendar with the petitioner’s portrait with the wording “DAKO GANG” in capital letters. This was her catchphrase or slogan for the campaign.

On the other hand, there is nothing to show that the first respondent marketed herself as the daughter of the soil.  That was evidence from the bar. The petitioner to the contrary marketed herself as a wife of the Acholi.  Her fear that they would not elect her because she was not Acholi, was in the mind. Infact to disapprove her fears, she competed well with the 1^st respondent. There had to be a winner either way. Only the final results could determine the winner. 

Lakony Michael under paragraph 7-8 stated that “during campaigns I answered this by saying that the petitioner was a wife of the Acholi and the first respondent was a daughter of the Acholi. That both were ours. That I was only answering her political strategy to win votes but at no time did I state that the petitioner should not be elected because she is not Acholi.” The petitioner did not file a rejoinder to controvert his affidavit.

Lakony was also the only respondent’s witness who was cross examined.

Counsel dwelt so much about land in Apaa when even the petitioner did not mention the issue of land in Apaa in her petition. Lakony did not in cross examination confirm that the petitioner was not elected because of the land in Apaa.

Counsel abandoned Lakony’s cross examination to make a futile application compelling court to summon a witness not known to court. He therefore left Lakony off the hook without contradicting himself. The issue of the tribes of the petitioner and 1^st respondent was not brought out during cross examination of Lakonyi.

 Counsel submitted on the Annexture A to Gilbert Oulanyah’s affidavit of a radio talk show.

Gilbert Oulanya’s affidavit was commissioned before Alice Latigo. Alice Latigo did not securely seal the exhibit to the affidavit. This offends rule8 of the commissioner for oaths rules under S.7 in the schedule of the Act which provides “All exhibits to affidavits shall be securely sealed to the affidavits under the seal of the commissioner and shall be marked with serial letters of identification”.

This rule is meant to identify the exhibit by the commissioner for oaths to certify that they are authentic. An affidavit which does not comply with the provisions of the statute as to a prescribed form cannot be admitted. An affidavit is evidence and evidence must be proved.

That paragraph of Gilbert Oulanya’s affidavit attaching Annexture A is not admissible because Annexture A has no author and was not formally tendered and admitted in court.

However persuasive it may be to either party, court cannot rely on it.

 With the above said, court is of the view that the petitioner failed to prove the electoral offences under S.23 (1) and S.24 of the Parliamentary Elections Act.

The next electoral offence alleged under the petition is under paragraph 5.8. That the officers and or agents of the second respondent forged and falsified the results of the elections in favor of the first respondent. This allegation if proved would contravene S.78 (a) of the Parliamentary Elections Act.

The above allegation is supported by the affidavit of the petitioner under paragraph 9 where she states “that the officers and or agents of the second respondents forged and falsified the results of the election in favor of the first respondent.” Other than making the blanket statement there is no other evidence to support the allegation of forgery or falsification of results.

Forgery is defined as criminal falsification by making or altering an instrument with intent to defraud. The petitioner had to prove that the results were actually forged. That she was robbed of victory by the forged results.

It follows that the returns that were sent or the results that were declared were false. This is a serious allegation against the second respondent’s officials.

Unfortunately no specific official was named in the forgery, no polling station was named and no genuine results were disclosed to enable court make any comparisons. No single petitioners polling agent swore an affidavit that the results declared at his polling station was different from the results released at the tallying center. It is common knowledge that at the close of voting, the ballot papers are counted in the presence of an inquisitive and expectant electorate. The supporters eagerly wait to know the results at least at their polling station. The polling agents if satisfied with the whole process and results then endorse on the DECLARATION OF RESULTS FORM. The petitioners agents signed on the forms and none of them came up to inform court that the results were forged or falsified.

The presiding officers of the respondents denied this allegation and stated the agents of the petitioner signed declaration of result forms a sign that they accepted the results. Since counsel for the petitioner did not submit on this allegation, I leave it at that. Court has treated it as a reckless and malicious allegation by the Petitioner against the agents of the 2^nd respondent.

The petitioner further alleged under paragraph 5.9 that, “That the second respondent permitted unauthorized persons who were not registered voters to vote in the parliamentary election.” If the above allegation is proved, it would be in contravention of S.69 and 77(a) of the Parliamentary Elections Act. Paragraph 5.9 can be handled together with the allegation in paragraph 5.13 where the petitioner alleges that, the second respondent failed to control the use and distribution of ballot papers and ballot boxes to the responsible officials of the electoral commission resulting in ballot papers being In the hands of the first respondents’ agents with the consent, knowledge and approval of the first respondent and thereby resulting in multiple voting and ballot boxes stuffing.”

Again counsel for the petitioner did not submit on this allegation. He was justified to do so because the petitioner did not adduce any evidence to support her claims. But as earlier mentioned this judgment is not for the parties to the petition. It is for the public and particularly the electorate in AMURU to know whether the allegations of the petitioner have been proved.

To prove an offence or illegal practice under S.69 of the Parliamentary Elections Act, the petitioner must show that prohibited or unauthorized persons voted. These include children who are below 18 years, adults who are not registered as voters, either because they didn’t register or because they are non-citizens and or ghost voters i.e., if someone ticked against the deceased as the person who has voted.

It is not enough to allege an illegal practice just because it appears in our electoral laws. Whatever is pleaded must be specifically proved.

The same applies to S.77 of the Parliamentary Elections Act. The petitioner must prove that a person was allowed to vote when he or she isn’t entitled to vote and that some people voted more than once. This can be deduced from the fact that the ballot papers cast are more than the registered voters or are more than what was supplied.

The petitioner has to prove that ballot papers were in the hands of the 1strespondent’s agents who should be named. She has to prove that ballot boxes were stuffed with pre ticked ballot papers. This allegation and or accusation portrays the 2^nd respondent’s agents as incompetent, partial and that they abused their office. It is a serious allegation against the 2^nd respondent which should not be made casually like in the instant case without any evidence. Needless to mention it is perceived as being noxious and vexatious and unfair to the officers who participated in the electoral process.

It would mean that the second respondent’s agents or officers failed to do their job or acted illegally or with negligence, with material irregularity. No evidence was called or adduced to support this serious allegation. Allegation contained in paragraph 5.13 of ballot paper stuffing or multiple voting was therefore not proved at all. It has remained a mere allegation.

The petitioner alleged under paragraph 5.14 that “the second respondent in connivance with the first respondent stripped the petitioner’s polling agents of their duties and denied them access to the polling station and tallying centers thereby leaving the petitioner’s interest devoid of any protection at the numerous polling stations and resulting into phony results.”

Connected or related to the above complaint is that under paragraph 5.17 where the petitioner alleges that the second respondent permitted unauthorized persons to sign the declaration of result forms yet they were not authorized to do so.

The petitioner merely repeated what she stated in paragraph 5.14 under paragraph 14 of her affidavit in support and what she alleged under paragraph 5.17 under paragraph 17 of her affidavit in support. Her advocate did not make any submissions on the two allegations.

The petitioner does not mention her polling agents who were stripped of their duties and denied access to the polling station and at the tallying centers. She does not mention or prove connivance between the first and second respondent and doesn’t mention the unauthorized persons who signed the declaration of results forms.

None of the witnesses who claimed to be her polling agents attached appointment letters and none of them claimed they were denied access to the polling and tallying centers.

Anthony Odong, Lauyero Christine, Richard Opoka who claimed to be polling agents did not allege they were denied access to the polling or tallying centers.

The second respondent’s answer to the petition denied the allegation and through Olet Samuel who was the in-charge at Amuru District by election denied whatever was stated in paragraphs 5-6 and what was claimed in paragraph 8-18.

He specifically under paragraph 8 of his affidavit stated, “That in further reply to paragraphs 9, 10, 13,16,17,18 of the affidavit in support, the second respondent shall contend and prove that the petitioner’s agents duly participated in the by election and signed the declaration forms as mandated by the law without registering any complaint at that time of signing and as such the averments contained therein are denied.

Indeed they attached Declaration of results forms and the petitioner did not controvert them in rejoinder. Her agents signed on them.

The second respondent further contended that the second respondent put in place mechanisms to ensure that the entire electoral process was smooth, transparent, free and fair and that contrary to what is alleged in the petition, the voters exercised their will in accordance with the constitution.

He further deponed under paragraph 10, that he never received any complaint from the petitioner or her agents before, during or on the polling day. There was no evidence that controverted this affidavit. Counsel for the second respondent has ably submitted on the areas that affect them. The submission is on record and I have no reasons to disagree with him.

The petitioner failed to prove the allegation of stripping her agents of their authority. Her polling agents were the best witnesses to that allegation.  Her evidence under paragraph 14 of her affidavit in support of the allegation in paragraph 5.14 of her petition is neither direct nor circumstantial evidence. The averment is absurd because she needed evidence to support it. Not even her polling agents supported her on this. Court has remained wondering whether it was an imagination.

The petitioner further complained that the election commenced at 6:00am in the morning at numerous polling stations one hour earlier than the designated time and also closed at 8:00pm in the evening three hours after the closing time thereby occasioning an injustice to the petitioner.

With due respect to the petitioner, unless the times mentioned in her petition and under paragraph 16 of her affidavit in support was in a dream, no single polling agent of hers swore an affidavit to that effect. She does not even mention the polling agents who informed her. That evidence in paragraph 16 is hearsay evidence which is not even admissible.

She does not even state under paragraph 21 of her affidavit, the source of that information but claims it is to the best of her knowledge. The advocate who drafted her petition was also silent on the issue of voting between 6:00am and 8:00pm. He did not submit on it at all.

This court has taken this allegation as a manifestation of yet another fanciful imagination of the petitioner not backed by evidence.

 I have carefully looked at the cases/authorities relied upon by counsel for the petitioner.

1. The Tanzanian case of Cheya Anatori Kasazi v Kaahemeza Phares kabuye and AG Misc Civil Cause No.10 of 2005.
2. Bautalib Issa Taligola vs EC and Wasugyira Bob Fred, Election Appeal No.11 of 2006

In those cases, the petitioner proved the allegations of character assassination and campaigning on tribal and religious grounds respectively.   

In the instant case the allegations have not been proved therefore it is not enough to get all the available illegal practices and offences under the electoral laws and list them as complaints or allegations in the petition like it was the case in this petition. The petitioner must go ahead to prove them on a balance of probabilities which is however slightly higher than in ordinary civil suits. This is because the standard of proof required in election petitions are very high because the subject matter is of crucial importance to the welfare of the people of Uganda and their democratic governance. This was the holding of CHIEF JUSTICE BENJAMIN ODOKI IN THE RTD COL DR KIIZA BESIGYE CASE SUPRA.

Not even a well-researched submission can cure the defect of lack of supportive evidence because counsel cannot give evidence from the bar.

This brings me to the second last issue of;

Whether noncompliance if any affected the results in a substantial manner  ?

From my findings above, the petitioner failed to prove any of the allegations in her petition about noncompliance and illegal practices or acts against both respondents. There is no evidence of a tilted playing level field. Both the petitioner and the second respondent competed favorably and the 1^st respondent was lawfully declared the winner by the second respondent .The results reflected the majority of the people’s democratic will at least for those who participated in the election by casting the vote. The by election was conducted in accordance with the law, therefore there was no incidence of non-compliance.

Finally, what remedies are available?

The petitioner prayed for the elections to be set aside. S.61 of the Parliamentary Elections Act provides for grounds for setting aside an election.

I have brought out the allegations made against the respondents clearly in the body of judgment

As mentioned earlier, election petitions are matters of public concern. The electorate are all interested. The tax payer is also an interested party because the expenses involved in the elections are enormous.

The Court must therefore be satisfied that the complaints in the petition have been proved on the balance of probabilities. It must be satisfied that the candidate who was declared winner did not actually win the election in a fair and transparent manner but through non-compliance of the electoral laws by the electoral commission agents and the winning candidate. It must also be proved that the winning candidate, his or her agents committed illegal practices or acts to win the elections. And that as a result, the final outcome was affected in a substantial manner. In short, that the results do not reflect the true will of the electorate but were manipulated by the respondents.

This means that Parliamentary Elections cannot be set aside on trivial or flimsy grounds. The objection must be based on something substantial. The effect on the result of the election must be substantial and evidence in support of the grounds or allegation must be to the satisfaction of court. I am afraid that the petitioner listed several electoral offences and illegal practices as many as they are provided for under the law which she failed to prove to the satisfaction of court.

In the result, the petitioner is not entitled to any of her prayers as the petition is hereby   dismissed.

 Both respondents prayed for costs. Costs follow the event but at times court may exercise its discretion and not award costs. In the instant case, however, court is of the view that the petitioner filed this petition simply because she lost. Losing an election should be expected in one way or the other for there must be a winner and loser. It should not be a basis for making wild, unsubstantiated allegations against the winning candidate and the electoral commission agents.  It would be different if non-compliance and illegal practices were proved but not affecting the results in a substantial manner. Here all the allegations were not proved at all. Others were even abandoned but the petitioner did not have the courtesy of withdrawing them so that court does not waste time on them. It was not enough for counsel not to submit on them after failing to get evidence.  In all respect this petition qualifies to be described as vexatious litigation. In the result both respondents are awarded costs of this petition.

 

 

 

MARGARET MUTONYI, J

RESIDENT JUDGE, NORTHERN CIRCUIT, GULU

29/06/2015.

The petitioner is free to appeal against the decision of this court in accordance with rules 29 and 30 the Parliamentary Elections (Election Petition) Rules.

29/06/2015.