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

Col (RTD) Dr. Besigye Kiiza, the Petitioner, this year contested presidential election with five other candidates. The others were Awori Aggrey, Bwengve Francis, Karuhanga K.Chaapa, Kibirige Mayanja Muhammad and Museveni Yoweri Kaguta, the first respondent. The contest was for the office of the President of the Republic of Uganda. The Electoral Commission, the second respondent, which organized the election, declared the first respondent the winner. He polled 5,123,360,votes representing (69.3%) of valid votes cast. The petitioner who polled 2,055,795 votes (27.8%) was dissatisfied with the election result. On 23rd March, 2001, he petitioned this Court and set out many complaints as the basis for his dissatisfaction. The petitioner asked the court to declare

(a) That Museveni Yoweri Kaguta was not validly elected as President.

(b) That the election be annulled

Five issues were framed for decision by the court. Each is produced in the appropriate place in this judgment. The hearing of this petition was concluded on Good Friday the 13 April this year. By law we were required to give our decision within 30 days from 23/3/2001. So Judgment was due on 21/4/2001, barely eight days after the close of hearing. Because of the volume of the material produced during the hearing of the petition, it was not possible within those remaining 8 days to produce reasoned judgments incorporating views on a number of important legal questions and on the relevant materials cited by the parties. Since each of us had formed his opinion on the petition, we gave our decision on 21/4/2001 and promised to give reasons later. In that decision, we pointed out that the decision was by majority and that each one of us would give his reasons later. I now give my reasons in support of the position I took on the petition namely that the petition should succeed.

21st APRIL, 2001 DECISION

For the sake of clarity, I will recapitulate the decision of the Court. On 21/4/ 2001 we stated:

1. That during the Presidential Election 2001, the 2nd Respondent did not comply with provisions of the Presidential Elections Act-

(a) in S.28, as it did not publish in the Gazette 14 days prior to nomination of candidates, a complete list of polling stations that were used in the election; and

(b) in S.32 (5), as it failed to supply to the Petitioner official copy of voters’ register for use by his agents on polling day.

2. That the said election was conducted partially in accordance with the principles laid down in the said Act, but that

(a) in some areas of the country, the principle of free and fair election was compromised;

(b) in the special polling stations for soldiers, the principle of transparency was not applied; and

(c) there was evidence that in a significant number of polling stations there was cheating.

3. By majority of three to two, that it was not proved to the satisfaction of the majority of the Court that the failure to comply with the provisions of and principles laid down in, the said Act, as found in respect of the first and the second issues, affected the result of the election in a substantial manner.

4. Again by majority of three to two, that no illegal practice, or other offence under the said Act, was proved to the satisfaction of the Court, to have been committed in connection with the said election, by the 1st Respondent personally or with his knowledge and consent or approval.

Because of the conclusions reached in resolving the third and the fourth issues, the petition was dismissed. We ordered each party to bear its own costs.

This petition presents a unique opportunity for this Court to give its views on pertinent electoral questions1 which were raised during the hearing.

SUMMARY OF FACTS AND CONTENTION

In the petition, the Petitioner raised very many complaints against the two respondents and their agents and/or servants, for acts and omissions which he contends amounted to non-compliance with the provisions of the Presidential Elections Act, 2000 (PEA) and the Electoral Commission Act, 1997 (ECA) and indeed the Constitution.

The Petitioner’s case against the 1st Respondent is that he personally, or by his agents with his knowledge and consent or approval, committed illegal practices and offences in contravention of Ss.25, 42, 63 and 65 of the PEA and Section 12 of the ECA. These include publication of a false statement that the Petitioner was a victim of AIDs; offering money and gifts to voters; appointing partisan senior military officers and partisan sections of the Army to take charge of security during the elections; organising groups under the Presidential Protection Unit and under Major Kakooza Mutale with his Kalangala Action Plan, to use violence, to harass, to intimidate, to molest and threaten persons supporting the petitioner and the petitioner’s agents; and threatening to cause death to the petitioner.

In his answer to the petition the first respondent denied most of the allegations made against him, contending that the entire presidential electoral process was conducted under conditions of freedom and fairness. He admitted making the statement that the petitioner was a victim of AIDS but stated that it was not made publicly or maliciously. He denied giving gifts or being privy to giving gifts. He denied threatening to put the Petitioner six feet deep. Among the major complaints, which the Petitioner makes against the 2nd Respondent are failure to efficiently compile, maintain and up- date the national voters’ register, voters’ roll for each constituency and for each polling station; failing to display copies of the voters’ roll for each parish or ward for the prescribed period of not less than 21 days, failure to publish a list of all polling stations within the prescribed period of 14 days before nomination; increasing the number of polling stations on the eve of polling day without sufficient notice to candidates; allowing, or failing to prevent stuffing of ballot papers into ballot boxes, multiple voting and under-age voting; chasing away the petitioner’s polling agents or failing to ensure that they are not chased away from polling stations and counting and tallying centres; allowing or failing to prevent agents of the 1st Respondent from interfering with electioneering activities of the Petitioner and his agents; allowing armed people to be present at polling stations; falsification of results; and failing to ensure that the election was conducted under conditions of freedom and fairness. According to these allegations, the 2nd Respondent violated Sections 12,18,19, and 25 of the ECA as well as Sections 25, 28, 29, 30, 31, 32, 34, 42, 47, 56, 70, 71, and 74 (b) of the PEA.

In its answer to the petition, the second respondent denied most of the allegations contained in the petition and averred that if any of the allegations were found to be true, they did not affect the election result in a substantial manner. The second respondent admitted setting up new stations belatedly but claimed that the new stations were a result of splitting up the old stations. It also admitted that it was unable to furnish copies of registers to the Petitioner due to insufficient time to prepare the registers. It again admitted displaying voters’ registers for a total of five days only instead of the statutory 21 days. It averred that the election was held under conditions of freedom and fairness.

The Petitioner’s counsel were led by Mr. Joseph Balikudembe who was assisted by Messrs. Peter Walubiri, M. Mbabazi, Y. Nsibambi, S. Njuba, Prof. Oboth-Okumu, K. Katino, D. Lubega, C. Alaka, and Lukwago, all members of the Uganda bar.

Counsels for the first Respondent were lead by Dr. Joseph Byamugisha, with Dr.
J. Khaminwa, (of the Kenya Bar), as Deputy lead Counsel. They were assisted by Messrs. Mwesigwa-Rukutana, M. Kimuli, F. Natsomi, Didus Nkurunziza, S. Bitangaro, Peter Nkurunziza, W. Byaruhanga, A. Kasirye, all of Uganda bar and Eugine Wamalwa (of the Kenya Bar).

The second respondent was represented by Peter Kabatsi, the Solicitor- General who was assisted by Messrs. Deus Byamugisha, the Ag. Director of Civil Litigation, Barishak Cheborion, the Commissioner for Civil Litigation and J. Matsiko, Senior State Attorney.

I will first dispose of the “preliminary” objections to the affidavits.

OBJECTIONS TO AFFIDAVITS SUPPORTING PETITION

The counsel for the two Respondents objected to the admissibility of very many affidavits sworn in support of the petition. We heard the petition de bene esse promising to decide the question of the admissibility and or probative value of any of the affidavits to which objection was made later in the judgment. I had personally gone through the affidavits before the objections were raised. I formed the view that the requirement for this petition to be heard essentially on affidavits created problems for those drawing affidavits hurriedly so as to beat time. In addition to what I am going to say presently, I think that Article 126(2) (e) applies to most if not all, of the affidavits objected to. I would therefore overrule the objection for lack of merit.

The objections were raised by Dr. Byamugisha, lead Counsel for the first respondent and his deputy lead Counsel. But it was Mr. Didus Nkurunziza who presented the arguments in support of the objections. The Solicitor General, Mr. Peter Kabatsi supported the objections.

Mr. Nkurunziza classified the affidavits in three categories:

(1) He called the first category “inadmissible affidavits” to which objection should have been made initially but because of the need to expedite the hearing of the petition, the objection was postponed to the stage of the main submissions by his side.

(2) Those affidavits specifically referred to by Counsel for the petitioner in his address to this Court.

(3) Those affidavits, which were filed but were not referred to specifically by Counsel for the petitioner in his address to the Court.

INADMISSIBLE AFFIDAVITS

Mr. Nkurunziza submitted that, certain affidavits breach the law and should be struck out. He started with the affidavit of Major (RTD) Rwaboni Okwir, which was sworn outside Uganda, (in the United Kingdom), before a Solicitor, contending it was inadmissible for non-registration as required by S.7 (3) of Statutory Declarations Act, 2000 (SDA) and, therefore, it should be struck out. For the respondent Mr. Balikudembe submitted that Rwaboni Okwir’s affidavit was sworn by virtue of S.3 of the SDA and that the affidavit does not require registration before it can be used in a court in Uganda.

The instrument in question is headed “AFFIDAVIT”. It then begins with the following words:

“I am a Ugandan citizen of the above mentioned particulars would hereby solemnly and sincerely declare the following”.

After setting out facts including his arrest at Entebbe in eleven paragraphs, the instrument ends with the following words which, like the opening, are normally used in statutory declarations:

“AND I MAKE THIS SOLEMN DECLARATION conscientiously believing the same to be true by virtue of the Statutory Declarations Act, 135 (sic).

Declared by the said OKWIR RWABONI MP”.

On the face of it, the instrument appears to be both an affidavit and a statutory declaration. This shows that the drafting is less than elegant. The instrument was made before a Solicitor in England. In that country a Practicing Solicitor, appointed by the Lord Chancellor, can act as Commissioner for Oaths and can administer Oath: See paragraph 76, Halsbury’s Laws of England, Vol.36, 3 Ed. and Commissioners for Oaths Act, 1889. The capacity in which the Solicitor acted is not challenged.

Subs. (1) and (3) of Section S.7 relied on by Mr. Nkurunziza, state as follows:- “7(1) A person wishing to depone outside Uganda to any fact for any purpose in Uganda, may make a statutory declaration before any person authorised to take a statutory declaration by the law of the country in which the declaration is made.

(3) A statutory declaration taken outside Uganda under this section shall not be admissible in evidence unless it is registered with the Registrar of documents under the Registration of Documents Act.”

On the other hand, section 3, which was relied on by Mr. Balikudembe, reads as follows:-

“3 After commencement of this Act, no affidavit shall be sworn for any purposes except: (a
where it relates to any proceedings application or other matter commenced in any Court or referable to a Court; or

(b) where under any written law an affidavit is authorised to be sworn. –

It appears to me that S.7 does not prohibit the use of statutory declarations in court, provided they are registered under the Registration of Documents Act. Further it is clear that although at the end the Okwir instrument refers to the Statutory Declarations Act, 1835 of the United Kingdom’s it was drafted as an affidavit because of its heading. In any case this would be a technicality curable under Art. 126(2) (e). I think that the instrument is admissible because it is to be used for Court purposes.

Within the same category of affidavits, Mr. Nkurunziza enumerated other affidavits in support of the petition, which he considered to be inadmissible because they were sworn in contravention of Section 5 of the Commissioners for Oaths (Advocates) Act. Learned counsel’s contention is that because the deponents of the various affidavits supporting the Petitioner swore before Mr. Wycliffe Birungi and Mr. Kiyemba-MUtale and yet the same advocates later appeared or were mentioned in this Court as Counsel for the Petitioner, all those affidavits have been rendered invalid and valueless and therefore they should be struck out. These affidavits include those deponed by Okello-Okello Mugalula Joseph, W. Nalusiba, Louis Otika, Dr. Ssekasanvu Emmanuel, Dr. Mukasa D. Bulonge, and Major Rubaramira Ruranga.

In response, Mr. Balikuddembe conceded that the affidavits were indeed sworn before the said advocates as Commissioners for Oath, but he contended that the two advocates were not on his team by the time he filed the petition. He stated that it was at the beginning of the hearing of the petition and when he was on his feet introducing his team of advocates that he received a chit containing the names of the two advocates He then referred us to S.5 of the Act and contended that the proviso thereto applies only where an advocate administers an oath to his own client.

Now S.5 (1) of the Commissioners for Oaths (Advocates) Act, reads as follows:

“A Commissioner for Oaths, may by virtue of his commission, in any part of Uganda, administer any Oath or take any affidavit for the purpose of any court or matter in Uganda,……..

Provided that a commissioner for oaths shall not exercise any of the powers given by this section in any proceeding or matter in which he is the advocate for any of the parties to the proceeding or concerned in the matter

With respect I do not agree with Mr. Balikuddembe that the above quoted proviso only prohibits the swearing of a client by his own advocate/commissioner. The prohibition includes the swearing of witnesses in a case where the advocate appears. I understand Mr. Balikuddembe to contend that Mr. Birungi and Mr. Kiyemba-Mutale were not advocates for the petitioner at the time when the various witnesses made the affidavits before the two advocates. There is nothing on the record to controvert this. Further, there is no evidence before us to show that the two advocates or any one of them is a member of the firm of Balikuddembe and Company advocates. I think that if one or both were members of the firm the affidavits would be caught by the proviso. That being the case, I do not, with respect, accept the argument that any of the affidavits sworn before either Mr. Birungi or Mr. Kiyemba-Mutale are defective by reason of client/advocate relationship and therefore inadmissible in these proceedings.

ORDER 17 RULE 3 OF CP RULES

The last objection to the other affidavits (which are very many) in support of the petition is that the various affidavits were drawn in contravention of the provisions of 0.1 7 Rule 3 of the Civil Procedure Rules. Mr. Nkurunziza submitted, and the learned Solicitor General associated himself with the submissions, that as this petition is not an interlocutory matter, any affidavit which is not confined to such facts as the deponent is able, on his own knowledge to prove, are in breach of the Rule and the affidavit should not be relied upon. He submitted that each of the entire offending affidavits should be rejected and that no parts of the same should be relied on. He relied on Constitutional Petition No.3/99 - Ssemogerere__Olum_vs._Attorney_General,_(unreported);_Constitutional_Petition_No_1_of_2001,_C._Mubiru_vs._At._Gen._(unreported);_Kabwimukyi_vs._Kasigwa_(1978)_HCB251'>P Ssemogerere & Olum vs. Attorney General, (unreported); Constitutional Petition No 1 of 2001, C. Mubiru vs. At. Gen. (unreported); Kabwimukyi vs. Kasigwa (1978) HCB251 and Hudani vs. Tejani and 6 others (unreported) being a ruling of the Principal Judge of the High Court in H.CC No.7 12 of 1995.

The last two authorities are in support of the opinion that a defective part of an affidavit vitiates the whole affidavit. On the basis of these authorities, Mr. Nkurunziza submitted that the affidavit of Winnie Byanyima along with 28 other affidavits offend the Rule because the affidavits or parts of them are based only on information without grounds. Learned Counsel submitted further that 87 other affidavits are based only on belief, without showing grounds for belief.
Ssemogerere and Mubiru are decisions of the Constitutional Court. With the greatest respect to that court, I think that the Court erred in both of these cases. First I think that in Constitutional Petitions, 0.1 7 Rule 3 ought not to be strictly adhered to in view of the special Rules which regulate the hearing of Constitutional Petitions. The Rules of the Constitutional Court (Petitions for Declarations under Article 137 of the Constitution) Directions, 1996 (Legal Notices No.4 of 1996) were made by the Chief Justice by virtue of powers given to him under para (c) of subsection (2) of S.51 of the Judicature Statute, 1996. The rules are special intended to apply to the expeditious disposal of constitutional cases. That is why Rule 12 thereof directs that all evidence at the trial of the petition shall be by affidavit. Moreover, Rule 13 which makes the Rules of the High Court, including Order 17, applicable subjects the application of the High Court Rules to Legal Notice No. 4 of 1996. This appears to suggest that whenever the technical application of the Rules of the High Court conflicts with the objective intended to be achieved by the provisions of Legal Notice No. 4 of 1996, namely expeditious delivery of justice, the High Court Rules must give way. Indeed at that stage the provisions of Article 126 (2) (e) would come into aid, I think.

Be that as it may, I have seen the ruling of the Constitutional Court in the Ssemogerere petition and I find it difficult to accept the view that paragraphs 6 and 8 in Kadaga’s affidavit contravened 0.17 Rule 3. Para. 6 shows that Hon. Kadaga talked to Members of Parliament who confirmed her own knowledge that they had been present in Parliament. The position appears to me more interesting in the Mubiru case. The deponent (Mubiru) disclosed in the affidavit that he had a discussion with his advocate who gave him legal opinion. The deponent believed the opinion of his advocate and relied on it. That was his basis for belief. Moreover the information can be verified by reference to the law quoted or the Court files. I think that Mubiru case ruling on the first point of objection (source of information) represents bad law and practice.

At this point I find it pertinent to make general observations. Objections by Counsel for the two respondents concerning the admissibility of affidavits by deponents supporting the petition were based on:

(a) 0.1 7 Rule 3 of the Civil Procedure Rules and decisions in election petitions decided by Judges of the High Court since the Parliamentary elections of 1996.

It does not appear to me that there was adequate consideration during the trials of petitions in the High Court of the import of S.121 of the Parliamentary Elections (Interim Provisions) Statute 1996, (Statute 4 of 1996), and the objectives of Rules 15 and 17 of the Parliamentary Elections (Election Petitions), Rules, 1996 (S.1. 1996 No. 27). These provisions are special and regulate the hearing of election petitions in the High Court (at least after 1996).

(b) A number of Constitutional cases decided since 1996. Proper consideration should be accorded to the import of Rules 12 and 13 of the Rules contained in Legal Notice No. 4 of 1 996 (supra).

The words of Rule 17 of S.1. 1996 No.27 and of Rule 13 of Legal Notice No.4 of 1 996 are identical. The rules in the two enactments contain general procedural provisions, which regulate the institution of Petitions and the conduct of the inquiry or the trial in the respective courts. In each set, like in this petition, although the calling of witnesses is provided for, the trials are to be conducted on affidavits to be read in Court. In either case, here is rule 17 and rule 13 (which I shall call the “rule of resort”) which provides for resort to the Civil Procedure Act and the Civil Procedure Rules, but, when resorting to these latter rules (General Rules), neither the High Court, nor the Constitutional Court, nor indeed this Court, is expected to apply those general rules in disregard of the objectives of these special rules. I think that there would have been no need to enact the special laws and rules if courts hearing petitions were expected to follow the letter and spirit of the Civil Procedure Act and the Civil Procedure Rules.

Now I think it is instructive to consider Rule 2 of S.l.2001 No.13 which declares that;-

“These Rules shall apply to the conduct of election petitions under section 58 of the Presidential Elections Act, 2000”

In conclusion I think that the special rules enjoin the High Court, the Constitutional Court and this Court, when trying petitions governed by the laws I have referred to, to expeditiously deliver justice to the parties with least regard to technicalities. In connection with the objection I would like to refer to Maidstone Borough case, Evans vs. Castle Reagh (1906) 5 O’M & H 200 at 201, where Lawrence J. observed:-

“That it is true that in election cases we have to throw over board the rules which regulate ordinary cases, because we have to deal with peculiar circumstances.”

I don’ think that the learned Judge was there advocating for ignoring the general rules altogether. However the message is clear. Avoid undue technicalities

For the reasons I have endeavoured to give, I do not think that it is appropriate to apply 0. 17 Rule 3, too strictly as was the case in the petitions of Ssemogerere & Olumu (supra), and Odetta vs. Omeda (supra). In my view those decisions in so far as they decided that 0:17 Rule 3 must be applied strictly in election petitions and in Constitutional petitions, represent bad law and to that extent, these decisions should be overruled.

Bearing the foregoing in mind let me revert to the other arguments on the objections by Dr. Byamugisha. He referred to Ss.57 and 58 of the Evidence Act and submitted that the affidavits are hearsay and also that annexed documents violate sections 60 to 63 of the same Act. He said that the affidavits and documents did not comply with sections 72, 75, and 76, of the Evidence Act. Mr. Kabatsi, the learned Solicitor-General concurred and submitted that Rule 3 of 0-1 7 does not appear to accept severance of bad parts of affidavits from their good parts. He suggested that if this Court were to depart from the established practice of not acting on defective affidavits, the Court should not overrule existing decisions (presumably Ssemogerere, Mubiru, Kabwimukyi), because we would create a bad precedent for the Courts below.

Mr. Balikudembe, for the Petitioner, submitted that under 0.17 Rule 3, a court has discretion to accept or to reject proper or improper material appearing in an affidavit in the same way as courts do in regard to oral testimony. He relied on my decision in Reamaton Ltd vs. Uganda Corporation Creameries Ltd & Kawalya - Sup. Court Civil Application No. 6 of 1999 (unreported) and Motor Mart (U) vs. Y Kanyomozi - Civil Application No. 6 of 1999 (unreported) and urged us to consider the substance of these affidavits and decide the petition on its merits.

Let me begin with the main affidavit of the Petitioner accompanying the petition, which was also included among the so-called defective affidavits, containing hearsay and matters based on information and without source which offended Rule 3 of 0.17.

I have already referred to Rule 2 of S.l.2001 No.13 which directs that:-

“These Rules shall apply to the conduct of election petitions under section 58 of the Presidential Elections Act, 2000”

Under Rule 3,

“An election petitions includes the affidavit required by these Rules to accompany the petition”

On the basis of the chart provided to us by the respondents’ counsel I take it that their objection to the petitioner’s affidavit was restricted to the main affidavit sworn on 23/3/2001. I think that an election petition like a plaint is likely initially to make allegations1 which are subject to proof or disproof. In a petition, like the present, which is presented expeditiously under special rules as those set out in S.1. 2001 No. 13, a petitioner will inevitably including hearsay matters in the main affidavit accompanying his petition- I am not saying that hearsay should be included deliberately. What I believe happens is that grounds in the petition would most likely be based on information provided, in all probability by his agents or supporters from various parts of the country. The proper course to take during the inquiry, in such circumstances, is to consider the petition and the accompanying affidavit and, unless the affidavit contains obviously scandalous or frivolous matter, finally reject any matters contained in such affidavit as appear not to have been satisfactorily proved unless perhaps the petition does not disclose a cause of action. Alternatively where time is still available the petitioner should seek leave to correct errors by way of supplementary affidavit. It would be unjust to reject the petitioner’s whole affidavit at the beginning of the inquiry. In the result, I do not agree, and in any event, I am not persuaded1 that the accompanying affidavit of the petitioner violated 0.17 Rule 3.

Let me quote Rule 15 of S.1. 2001 No.13 which makes the Civil Procedure Rules applicable in these proceedings. It states as follow:-

“Subject to the provisions of these Rules, the practice and procedure in respect of a petition shall be regulated, as nearly as may be, in accordance with the Civil Procedure Act and the Rules made under that Act relating to the trial of a suit in the High Court with such modifications as the Court may consider necessary in the interests of justice and expedition of the proceedings.”

I have already stated that the import of this rule is to advance expeditious disposal of petitions without forgetting to do justice to the parties. Speed is the reason why the trial of the petition is by way of affidavits. It is, I think, the broad principles of the CP. Rules, which are to be applied.

By the way if we stick to the rules, it is arguable whether paragraphs 9, 15 and 16 of the first Respondent’s affidavit attached to his answer would not violate 0.17 as they contain some hearsay and therefore would render the whole affidavit defective.

A part from the two decisions of this Court cited by Mr. Balikudembe, there are decided cases from other jurisdictionS1 such as England and Kenya, which support the proposition that parts of an affidavit can be severed from the rest of the same affidavit where the severance does not affect the merits, or will not detract from the other paragraphs, of the affidavit. See M. B Nandala vs. Father Lyding (1963) E. A. 706 where the concluding and the only offending part of the affidavit was severed. That is a decision of Sir Udo Udoma, C.J., in which the present 0.17 Rule 3 was considered. See Mayers & Another VS. Akira Ranch (1969) EA. 169 (K). See Zola vs. Ralli (1969) EA. 691, at page 693 which is authority for the proposition that an affidavit may be defective but not necessarily a nullity. The E. A. Court of Appeal rejected arguments substantially similar to what were put forward by Mr. Nkurunziza.

In Rossage vs. Rossage (1960)1 W.L.R 249, an authority listed by Counsel for the first Respondent, the English Court of Appeal considered a similar objection. The Court, Hudson, L.J. at page 250, considered Order 38 Rule 3 of the then Supreme Court Rules of England, which was substantially the same as our 0.17 R.3. The Court of Appeal expunged some of the affidavits from the court record but that was because the proportion of the offending materials to the relevant materials was so high that the court found it proper to remove the offending affidavits all together. The offending matters were scandalous and would have embarrassed the Court as well as the opposite party. The effect of that decision is that striking out an affidavit depends on the contents of the affidavit.

The affidavits complained of in the petitions before us are listed in a chart provided by the respondents’ counsel. The chart lists the respondent’s affidavits also. I have gone through these affidavits. Very many of the affidavits complained of are very similar to the affidavit in Nandala case (supra) Deponents speak about what they personally saw and or what they heard. That is very clear. The concluding paragraph then ends with the sentence.

“— What I have stated herein is true to the best of my knowledge and belief”.

I think that the inclusion of the words ‘belief” or ‘information” is in some cases superfluous and does not render each affidavit invalid, at any rate not the whole of each affidavit. In my opinion it would be improper in this petition to strike out wholly affidavits which are found to contain so called hearsay evidence in some parts where the offending parts of the same affidavits can be severed from the rest of the affidavit without rendering the remaining parts meaningless.

Incidentally 0.1 7 R.3 has a punishment provision for parties who offend. Rule 3(2) reads as under: Perhaps for those who press for striking out affidavits containing hearsay matter,
I would like to quote sub-rule 2 of Rules 3 Order It states:-

‘The costs of every affidavit which shall unnecessarily set forth matters of hearsay or argumentative matter or copies of or extracts from documents, shall, unless the court otherwise directs, be paid by the party filing the same”

This sub-rule envisages matters complained of by Mr. Nkurunziza. Punishment by way of costs against a party who files an offending affidavit appears to me to be a suitable remedy in appropriate cases. And just to emphasis the point that election petition rules are special rules, I refer to page 600 of vol.3 of A.I.R. 1Qth Ed. Commentaries, on the Indian Code of Civil Procedure. The commentators refer to the existence of Election Rules of 1961 whose purpose is the same as the present Presidential Election (Election Petition) Rules, 2001. Discussion there concerns the Indian 0.19 Rule 3 which is identical to our 0.17 Rule 3. The commentators opined that there is nothing in the (Indian) Code­­….. Which can apply in derogation of the (Indian) Representation of the People Act or the Rules framed there under. Authorities are quoted to show that a defective affidavit filed in an election petition is not fatal and a petitioner can be allowed to make appropriate correction. I share this opinion.