The republic of uganda in the supreme court of uganda at kampala

“There has been much argument as to the meaning of the term “proved to the satisfaction of the Court.

In my view it is clear that the burden of proof must be on the Petitioner rather than the Respondents because it is he who seeks to have this election declared void”

The decision in Mbowe v Eliufoo (supra) has been cited with approval by the Uganda Courts in the cases of Odetta v Omeda, Election Petition NO.1 of 1996 Margaret Zziwa v Naava Nabagesera, Civil App. No. 39 of 1 997 (CA). Katwiremu Bategana v Mushemeza and 2 Others, Election Petition No.1 of 1966 (HC) Mbarara) and Ayena Odong v Ben Wacha & Another, Election Petition No.2 of 1966 (HC.).

In my view the burden of proof in election petitions as in other civil cases in settled. It lies on the Petitioner to prove his case to the satisfaction of the court. The only controversy surrounds the standard of proof required to satisfy the court. Counsels for the parties were generally agreed on the standard of proof. Mr. Balikuddembe submitted that the standard is not proof beyond reasonable doubt but a standard slightly higher than in an ordinary civil case, that standard being the required to prove an allegation of fraud. For the Respondents both Mr. Kabatsi and Dr. Khaminwa agreed that the standard is not proof beyond reasonable doubt, but very close to it.
The courts in Uganda have not been consistent but the preponderance of opinion has gravitated towards the standard of proof of beyond reasonable doubt, which is the standard required in criminal cases. In Katwiremu Bategana v Mushemeza & Other (supra) Musoke Kibuuka, J said,

“A number of decisions of this Court in recent election petition trials have come out to state in no uncertain terms that the standard of proof which is required for proving allegation in election petition is proof beyond reasonable doubt. This was the position adopted, for instance by Ouma J in Michael A. Qgola v Akika Othieno Emmanuel, Election Petition No.2 of 1996 (at Tororo High Court Registry). It was also the position adopted by G. M. Okello, J in Ayena Odongo K C v Ben Wacha_and R O Apac Election Petition No.2 of 1996 (at Gulu High court Registry). The same position was adopted by Lady Justice Mpagi Bahigeine in Aloysius Liiga v Wasswa John Richard, Election Petition No.2 of 1996 at Mukono. On the other hand Katutsi, J in Alisemera Babiiha v R. O. Bundibugvo v Bikorendia Aida, Election Petition Dir MFP 1 of 1996 at Fort Portal High Court Registry after reviewing the decisions in both Mbowe’s case and Baters case (both supra) had the following to state,

‘The standard of proof therefore required to prove these allegations must be proportionally higher than in ordinary civil suits. This is the standard of proof I will adopt in this case’.”

Musoke Kibuuka, J agreed with the view held by Katutsi, J when he concluded,

“There is therefore one important aspect of this procedural dichotomy. That is the fact that everyone seems to be agreed that whatever name is given the standard of proof required for an allegation to be proved to the satisfaction of the court under Section 91 (1) of the parliamentary Elections (Inter IM Provisions) Statute 1996 is proof which is higher than that which is required in ordinary civil suits. That in my view is sufficient for the disposal of the allegations made in this petition.”

On the other hand in Margaret Zziwa and 2 others (supra) the Court of Appeal of Uganda said,

“The effect of the holding in the Mbowe case and the Uganda cases that have followed that decision, is that grounds for setting aside an election of a successful parliamentary candidate set out in S.91 of Statute 4 of 1996 must be proved beyond reasonable doubt. This is because the court cannot be satisfied if there was a reasonable doubt.”

The difference of opinion on the standard of proof in election petitions springs from the interpretation given to the decision of the Court of Appeal in Bater v Bater (1950) 2 All ER 456. This was a divorce case where in dismissing the petition of the wife on the ground of cruelty, the court said that she must prove her case beyond reasonable doubt. On appeal the Court of Appeal held that this was a correct statement of the law and the court had not misdirected itself.

Bucknill L J said,

“I do not understand how a court can be satisfied that a charge has been proved - and the statute requires that the court shall be satisfied before pronouncing a decree - if at the end of the case the court has a reasonable doubt whether the case has been proved. To be satisfied and at the same time to have a reasonable doubt seems to me to be an impossible state of mind. I will add this. I regard proceedings for divorce as proceedings of a very great importance, not only to the parties, but also to the State. — If a high standard of proof is required because of the importance of a particular case to the parties and also to the community, divorce proceedings require that high standard.”

Denning LJ on his part sought to play down the difference of opinion on the standard of proof. He thought it was a matter of playing with words as there was no absolute standard in either civil or criminal cases, the standards varying from case to case depending on the gravity of the matter. He observed,

“The difference of opinion which has been evoked about the standard of proof in these cases may well turn out to be more a matter of words than anything. It is true to that by our law there is a higher standard of proof in criminal cases than in civil cases, but this is subject to the qualification that there is no absolute standard in either case. In criminal cases the charge must be proved beyond reasonable doubt, but there may be degrees of proof within that standard. Many great judges have said that in proportion as to the crime is enormous so ought the proof to be clear. So also in civil cases. The case may be proved by a preponderance of probability but there may be degrees of probability within that standard. The degree depends on the subject matter. A civil court when considering a charge of fraud will naturally require a higher degree of probability than that which it would require if considering whether negligence were established. It does not adopt so high a degree as a criminal court, even when considering a charge of a criminal nature, but still it does require a degree of probability, which is commensurate with the occasion. Likewise, a divorce court should require a degree of probability which is proportionate to the subject matter.” -

Bater v Bater (supra) was divorce case; but it was followed in Mbowe v Eliufoo (supra), which was dealing with an election petition, because the wording of the sections imposed the burden of proof on the petition to prove the allegations to the satisfaction of the court
In Mbowe v Eliufoo (supra) Georges, CJ said,

“And the standard of proof is one which involves proof to the satisfaction of the court. In my view these words in fact mean the same thing as satisfying the court. There have been some authorities on this matter and in particular there is the case of Bater v Bater (supra). That case dealt not with election petitions, but with divorce, but the statutory provisions are similar i.e. the court had to be satisfied that one or more of the grounds set out in S.99 (2) (a) has been established. There Denning, CJ in his judgement took the view that one cannot be satisfied where one is in doubt. Where a reasonable doubt exist then it is impossible to say that one is satisfied and with that view I quite respectfully agree and say that the standard of proof in this case must be such that one has no reasonable doubt that one or more of the grounds set out in S.99 have been established.”

It should be noted that Georges, CJ carefully avoided holding that the standard of proof was beyond reasonable doubt. On a subsequent English case, Blyth v Blyth (1966) A C 643, the House of Lords in a divorce case based on adultery by a wife, who pleaded condonation, it was held that there was no statutory requirement that the absence of condonation must be proved beyond reasonable doubt. In matrimonial cases, as in other civil cases, the proof must be by a preponderance of probability, the degree of probability depending on the subject matter, so that in proportion as to the offence is grave, so the proof should be clear. It is interesting to note that two out of three Lords dissented. Lord Denning who was among the majority had this to say,

“My Lords, the word “satisfied” is a clear and simple one and one that is well understood. I would hope that interpretation or explanation of the word would be unnecessary. It needs no addition. From it there should be no subtraction. The courts must not strengthen it: nor must they weaken it. Nor would I think it desirable that any kind of gloss should be put upon it. When Parliament has ordained that a court must be satisfied only Parliament can prescribe a lesser requirement. No one whether he is a judge or juror would in fact be “satisfied” if he was in a state of reasonable doubt. It may be however that in some sets of circumstances and in regard to some issues the state of being satisfied (and so eliminating reasonable doubt) is much more easily reached than in others. The measure of what is a reasonable doubt will vary with the circumstance. But the standard of proof has been laid down by parliament when it directs that a court must be satisfied.”

I entirely agree with those observations by Lord Denning. The standard of proof required in this petition is proof to the satisfaction of the court. It is true t hat a court may not be satisfied if it entertains a reasonable doubt, but the degree of proof will depend on the gravity of the matter to be proved.

An election petition is not a criminal proceeding. Section 58 (7) of the Presidential Elections Act provides that nothing in this section confers upon the Supreme Court when hearing an election petition power to convict a person for a criminal offence. The high standard of proof in criminal cases is intended to protect the liberty of the citizen. If the legislature intended to provide that the standard of proof in an election petition shall be beyond reasonable doubt, it would have said so. Since the Legislature chose to use the words “proved to the satisfaction of the court”, it is my view that that is the standard of proof required in an election petition of this kind. It is a standard of proof that is very high because the subject matter of the petition is of critical importance to the welfare of the people of Uganda and their democratic governance.