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

An incorrect statement or acquiesced in with knowledge of incorrectness or with reckless indifference to actual facts and with no reasonable ground to believe it correct.”

In Halsburys Laws of England Vol.1 5 4 edn. Para. 705 page 540, it is stated that it is an illegal practice before or during an election for any person to make or publish any statement of fact in relation to the candidates personal character unless he can show that he had reasonable grounds for believing and did believe the statement to be true. The authors go on to state,

“It is irrelevant whether the statement has or has not been provoked by a statement of a similar character made on the part of an opponent.” Mommoth Boroughs Case (1901) 5 O’M & H 166 at 173.

The Petitioner adduced no independent or expert evidence to support his statement that he has no AIDS and that his looks are normal and was able to campaign throughout the whole country presumably like a healthy person. The affidavit of Major Rubaramira that he has AIDS but is able to carry out his normal duties and marital obligations and that one of his wives and child are HIV negative did not help much the Petitioner’s case. It only proved that one can have AIDS and enjoyed normal life and that one spouse can be positive and the other negative. Even the evidence of Dr. Ssekasanvu did not advance the Petitioner’s case. Instead, Dr. Ssekasanvu stated that it is contrary to Medical Ethics and Hippocratic Oath for a Medical Doctor to discuss or reveal the ailments of his or her patients to third parties whether dead or alive. It is not clear whether he had examined the Petitioner and was therefore claiming professional privilege.

We are therefore left with the evidence adduces by the 1st Respondent to substantiate his statement. Dr. Byamugisha summarised the evidence in his submissions. It was disputed that the 1st Respondent had closely known the Petitioner for a long time. It was not disputed that the Petitioner’s companion or wife Judith Bitwire and her child died. It is also common ground that she died of Advanced Immuno Suppression. The 1st Respondent also based his opinion on the appearance of the Petitioner, which had changed. The 1st Respondent based his opinion on all above facts to come to the conclusion that the Petitioner had AIDS.

The question is whether the opinion reached by the 1st Respondent was based on reasonable grounds. Would a reasonable, ordinary person who is not an expert on AIDS or health worker come to the same conclusion? Prof. Rwomusana has ably explained the concept of community diagnosis of AIDS based on loss of partners and children, which is used to protect families against inheritance of spouses after death of the husbands. He explained that ordinary people also make presumptions about AIDS based on skin changes. Signs are also listed by Dr. Ssekasanvu as diagnostic signs for AIDS.

The conclusion I make out of the above analysis is that the Petitioner has failed to establish to my satisfaction that the statement made by the 1 Respondent that the Petitioner had AIDS was false. In fact in this case there was no shifting of the burden of adducing evidence on the question of falsity or absence of reasonable grounds because the Petitioner did not establish a prima facie case on either of these ingredients.

Nevertheless the l Respondent adduced credible evidence to prove his grounds for holding that the statement he made that the Petitioner was not false, and that he knew or believed on reasonable grounds to be true. Having failed to prove these two crucial elements, the Petitioner has failed to prove that the 1st Respondent committed the alleged illegal practice under Section 65 of the Act. That being the case, it is not necessary to consider whether the statement was intended to promote or procure the election of the Respondent