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

Offered gifts to induce voters:

In paragraph 3(2) (b) of the petition, the Petitioner pleaded:

“Contrary to section 63 of the Act the 1st Respondent and his agents with the 1st Respondent’s knowledge and consent offered gifts to voters with the intention of inducing them to vote for him.”

Under s.63 of the Act, a candidate commits an illegal practice of bribery if he or she “before or during an election gives or provides any money, gift or other consideration, to a voter with the intention of inducing the person to vote for him or her.”

In the affidavit accompanying the petition, the Petitioner did not set out the facts on which that pleading was based as required under r.4 (7) of the Presidential Elections (Election Petitions) Rules, 2001. However he purported to do so subsequently, first in the affidavit in reply to the Respondent, dated 5th April, 2001, and again in the supplementary affidavit dated 6t April 2001. All in all, the Petitioner made allegations in his affidavits that the 1st Respondent had given out or offered to give, three forms of gifts to voters to induce them to vote for him. The allegations were:
(a) that he gave a new motor cycle to one Sam Kabuga in order to influence “motor cyclists/voters to vote for the 1st Respondent”;

(b) that with intention to induce persons to vote for him, he —

(i) abolished cost sharing in Government and Local Government Health Centres;

(ii) increased salaries of medical workers, and offered to increase teachers’ pay;

(iii) hurriedly caused to be signed contracts for tarmacking and upgrading several roads; and

(c) that he offered a gift of money to voters who attended his campaign rally at Arua on 12^th February 2001 –

In the affidavit in reply he made on of 5th April, in which all those allegations were made, the Petitioner certified that they were true and correct to the best of his knowledge. He did not claim, however, to have witnessed the 1st Respondent handing over the gifts or making the offers. He only annexed to the affidavit, photocopies of cuttings from Sunday Vision and Sunday Monitor newspapers carrying a photograph of Sam Kabuga receiving a motor cycle from the 1st Respondent to support the allegation of that gift. But apart from an intimation that these were other affidavits to confirm the allegation on contracts for roads, the Petitioner adduced no evidence on the alleged “gifts” through public funds. In support of the allegation of the gift of money to voters who attended the rally at Arua, the Petitioner attempted to introduce in evidence, an alleged video recording of the rally. As the person who recorded it was not disclosed and did not swear an affidavit about the recording, the video clearly was not admissible in evidence. In the result the Petitioner did not adduce any evidence to prove the alleged acts of bribery by the 1st Respondent. Nevertheless there was evidence adduced on behalf of the Respondent in reply to the allegations, which the Court had to consider.

Sam Kabuga swore an affidavit admitting that he received a motor-bike from the 1st Respondent and narrating the background, which in a nutshell was as follows: He had always been an ardent supporter and admirer of the 1st Respondent. On 9th January, 2001, he was among colleagues who escorted the Respondent to Kololo airstrip to witness his nomination. At the request of one Moses Byaruhanga, which he gladly accepted, he carried the 1st Respondent on his motor bike through the congested crowd, to the podium at the airstrip, which the latter’s motorcade could not do easily. Thereafter he continued to solicit support for the 1st Respondent, and on 20th January 2001, was appointed his campaign agent in the capacity of “Mobiliser, Boda-Boda Task Force.” Later he agreed with the said Moses Byaruhanga that he should be given a motorbike to facilitate his task of mobilisation, and the motorbike was handed to him by the Respondent on 26th January 2001. He refuted the Petitioner’s allegation that the motorbike was given to influence his voting, arguing that he was already the 1st Respondent’s “supporter, mobiliser and agent.” That version of what led to the gift of the motorbike and its purpose was not disputed or in any other way challenged. I therefore did not find any basis on which the Court could hold that the motor bike was given to Sam Kabuga with a corrupt intent to induce him or other boda-boda voters to vote for the 1st Respondent.

In response to the Petitioner’s allegations concerning abolition of cost sharing in Health Centres, increase of salaries for medical workers and teachers, and contracts for road works, three Government Ministers swore affidavits to clarify that the matters complained of in the allegations, were done in implementation of on-going Government policy and programmes, and not as ad hoc acts, to induce voters to vote for the 1 Respondent. The Minister for Public Service, Hon. Benigna Mukiibi deponed that the Ministry had in a Pay Strategy Report made recommendations to address the plight of the middle rank professionals, and the Minister of Finance had made provision in the National Budget for the Financial Year 2000/2001 for implementation of those recommendations. According to the Minister, the increment of salaries for medical workers and teachers was from funds designated in the National Budget under the Public Service Pay Reform Program and was not done by the 1st Respondent to induce voters to vote for him. She annexed to the affidavit copy of the Budget Speech, read on 1 5th June 2000, which substantially confirmed what she deponed.

In his affidavit, Hon. Dr. Kiyonga, the Minister of Health gave the background to the abolition of cost-sharing which had been introduced years back. It had for long been subject of debate, and no consensus, whether it should be abolished, because it was blocking the poor people’s access to health services. His explanation, in a nutshell, was that from 1997 Government had introduced Primary Health Care Conditional Grant to assist Local Governments in the health sector; and the grant continued to grow, until the Financial Year 2000/2001 when it stood at shs.39 billion. By February 2001, it was no longer justified to deny health services to the poor due to inability to pay under the cost-sharing policy. The agenda on cost-sharing had been set by the Budget for the Financial Year 2000/2001. He denied the Petitioner’s allegation, that cost-sharing was abolished to induce voters to vote for the Respondent.

The Minister of Works, Housing and Communications, Hon. John Nasasira also swore an affidavit. He clarified that the alleged contracts were signed by the Permanent Secretary, but in his presence. He pointed out that tarmacking the several roads, was part of the implementation of the Government Ten Year Road Sector Development Program which commenced in 1 996. He annexed to his affidavit, copy of an executive summary of the program. He detailed the back ground to the signing of the contracts. Signing of the Credit Agreement with the World Bank for financing tarmacking and upgrading three of the roads, and advertising for short listing contractors, and for tenders for them, were done in November 1999. Letters inviting the short listed contractors were issued in July 2000. Copies of the advertisements, and the invitation letters were annexed to the affidavit. The Minister also explained that in respect of the fourth road which was also part of the same program, only the contract for tarmacking and upgrading one section had so far been signed.

The 1st Respondent did not put forward any evidence in regard to the alleged money gift to voters who attended the 1st Respondent’s campaign meeting/rally at Arua on 12th February 2001. The allegation was, however, indirectly challenged, in regard to the date of the alleged incident. Moses Byaruhanga annexed to his affidavit, the official programme for Presidential campaigns in which it was indicated that on 12th February 2001, the 1st Respondent was scheduled to campaign in Masindi not Arua.

When, on 6th April, 2001, the Petitioner’s Counsel addressed the Court on issue No.4, and in particular on the alleged illegal practice of bribery, the affidavits of Sam Kabuga and the three Ministers were not yet on record, as they were received on 7th and on 9th April 2001. Understandably therefore, he did not comment on them. However, even during the address in reply, well after those affidavits were filed and referred to by the 1st Respondent’s counsel in argument, counsel for the Petitioner did not comment on them. He did not abandon his earlier submission based on the Petitioner’s affidavits. He had contended that the decisions to abolish cost-sharing, to increase salaries, and to sign contracts for tarmacking the four roads, were made hurriedly without budgetary provision, and were not done in ordinary course of business of Government but rather in abuse of the office of 1st Respondent as Head of Government. Counsel invited us to follow the decision of ATTORNEY-GENERAL vs. KABOUROU (supra) and hold that the 1st Respondent had committed the illegal practice as alleged.

It seems to me that there was a very serious lapse in the handling of this aspect of the petition. Apparently there might have been anticipated supportive evidence at least in respect of the allegation on tarmacking roads which did not materalise. This is apparent from what the Petitioner said in his supplementary affidavit, where, after he deponed in paragraph 1 5 that he knew the 1st Respondent offered to cause repair of the roads “in a manner” which was out of the ordinary, with a view of inducing voters to vote for him, he certified that what was stated in paragraph 15, (among others,) was “further confirmed by the various affidavits filed in support of this petition.” No such confirming affidavits were filed. In those circumstances, it would have been more appropriate to concede that the allegation could not be proved, rather than appear to hold to submissions that did not fit the facts before the Court. I need only mention that the facts of this case are not comparable to those in ATTORNEY-GENERAL vs. KABOURDU (supra) where it was established by evidence, to the satisfaction of the court, that the repair of the road “had been undertaken by the central government not in the ordinary course of government but (with a corrupt motive) as a reward to voters for voting for the ruling party as promised by prominent cabinet ministers at well-attended rallies/n the constituency.” (see head-note (4) at p.759 h-i of the report).

In the result I did not find that the abolition of cost-sharing or the implementations of the salary reform and/or the road development program were done with a view to corruptly induce any voter to vote for the 1st Respondent.