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

SAMPLE AFFIDAVITS

At the risk of being lengthy, I shall quote some of the affidavits, which I have picked at random. After all these affidavits are part of the evidence to which I shall refer to in the course of this judgment.

AFFIDAVIT OF GUMA MAJID

The first is that of Guma Majid. It reads:

“I, GUMA MAJID do solemnly affirm and state as hereunder:

1. THAT I am an adult male Ugandan of sound mind, duly registered as a voter with voters Registration number 00281689 residing at Lomunga Parish, Yumbe District.

2. THAT I was appointed as a polling monitor for Presidential Candidate Col (Rtd) Dr. Besigye Kizza at and have capacity to affirm this affidavit.

3. THAT on the 12th day of March 2001, while monitoring elections. I saw one Achaga Safi whom I know as the LC Ill vice chairman of Kuru Division and a member of Candidate Museveni Yoweri Kaguta’s task force casting at the said Bura B polling station a ballot paper.

4. THAT immediately thereafter I proceeded to Bura A another polling station where I saw the same Achaga Safi going to cast another ballot and immediately asked the voters register and I saw Mr. Achaga Safi was registered with voter’s card No.00267715, where upon I recorded the number.

5. THAT I thereafter proceeded to Bura B polling station where I saw that Mr. Achaga Safi was registered as a voter with voters card No.0027587.

6. THAT I reported the matter to one prisons constable deployed to take charge of the station together with the presiding officer but two told me that they could not arrest Mr. Achaga Safi as he was a member of the task force of Candidate Museveni Yoweri Kaguta.

7. THAT I thereafter reported the matter to Mr. Keniga Rashid Yumbe District Chairman of the elect Besigye Kizza task force.

8. THAT I proceeded to Aleapi Parish Ojinga Polling Station and saw one known to me as Mawa and a member of Candidate Museveni Yoweri Kaguta’s District Task office and Campaign Manager distributing voters cards to people who were not appearing on the register and who did not have voters cards.

9. THAT I and a polling agent for Presidential Candidate Col (Rtd) Dr. Besigve Kizza arrested him.

10. That he released to me a voter’s card for one Leila Alungaru a female with voter’s card No.002279167.

11. THAT as I was recording the number of a second voter’s card I had got from the said Mawa, armed military personal came and took Mawa away with the other cards and threatened to arrest me.

12. THAT I proceeded to Geya Parish, Aliba A Polling Station where I saw the
Presiding officer one Abele Young Majid giving six ballot papers to the L. C. III Chairman Kuru Sub-county known to me as Mr. Drasi All a member of the Yumbe task force for Museveni Kaguta Yoweri.

13. THAT I got the register and saw those 23 people had voted. I proceeded to check the serial Numbers of the ballot papers issued to the 23 people only to find that the serial number run from 531 to 560 which was in excess by six (6).

14. THAT I directed the polling agent for Dr. Besigye Kizza one Olenga to arrest the said Mr. Drasi Ali as / was going to police.

15. THAT when I came with the police 1 found the Polling agent for Dr. Besigye Kizza wasn’t around and I was threatened with arrest and I had to escape.

16. ……………………….

17. ……………………….

18. THAT whatever is stated herein is true and correct to the best of my knowledge and belief”

The above affidavit is objected to by the Respondents solely on basis that in para 18 it does not show grounds of belief yet the body of the affidavit is absolutely clear. The same ground is the basis of objection to very many other affidavits including the next following affidavits, namely that in their concluding paragraphs; these affidavits do not show grounds of belief.

AFFIDAVIT OF WAFIDI AMIR

Another affidavit is that of Wafidi Amir of Mbale who states:-

“(1) 1 was a person entitled to vote in the presidential Elections held on the l2 March 2001. I was also a monitor for the Task force of Colonel Dr. Kiiza Besigye responsible for monitoring elections in Musoto.

(2) On l2 March, 2001 at about 11.00 a.m., I was at Munkaga stage. The motor vehicle of Hassan Galiwango the Resident District Commissioner - Mbale came and packed at the stage facing Tororo side. The Sub-County Chief Nambale - Mutoto whose names I have not yet known as he was recently transferred was at the stage and he ran to Mr. Hassan Galiwango who had alighted from the vehicle. The two held private discussions. The Sub-County Chief who was travelling in motor vehicle No. 903 UED drove towards Mbale. The R.D.C. continued towards Tororo.

(3) After some time the area Movement Chairman Geoffrey by name came from Tororo side being driven on a motor cycle by one Sonya David and they went towards Musoto which was my next destination.

(4) Being given a lift on another motorcycle by one Mr. Musongole who is Vice Chairman of my village. I went to Musoto. At Musoto to my surprise I found the Movement Chairman holding discussions with the Sub-county Chief Nambale-Musoto who had driven towards the town in motor vehicle No.903 UDE. On reaching where they were, Sonya drove in his motor vehicle in the opposite direction carrying a black hand bag which he did not possess when he was driven to Musoto.

(5) As there were rumours that there were plans to rig the election in our area I become suspicious. I told my driver to turn back and we gave a chase. At the local Railway crossing his motorcycle developed a problem. On reaching him I asked him what was in the black hand bag. Mr. Sonya tried to grab the hand bag and run away but I held him back and we struggled for the hand bag which got torn and some voters cards more than 50,000 and some official stamps plus Return Forms for the Sub-County of Bungokho were poured down. I raised alarm, which was answered by a crowd who assisted me to hold Mr. Sonya and retain the bag.

(6) The Movement Chairman and the Sub-County Chief came to the scene and tried in vain to rescue Sonya with the voters’ cards and the records I had arrested but in vain.

(7) With the assistance of the crowd I detained Sonya together with the voters cards until some Police Officers from Mbale Police Station arrived at the scene in a motor vehicle. Mr. Sonya was then taken to Mbale Police Station together with the voters’ cards, the polling station and Return Forms. I accompanied him to Mbale Police Station. My complaint was registered at the Police Station as S.D. 18/12103/2001.

(8) Two days later I saw Mr. Sonya at large in our area.

(9) The contents of this affidavit are true and correct to the best of my knowledge and belief.”

I think the use of “and belief” is as unnecessary as it is harmless in the above affidavit.

AFFIDAVIT OF MULINDWA

“I, MULINDWA ABASI of Kobolwa Zone L.C. I, Kibuku Parish, Kibuku Sub-County, Pallisa District affirm as under:

(1) On the 12th March, 2001, I was one of the persons supposed to vote in the Presidential elections held on that day.

(2) 1 cast my vote at Kobolwa Polling Station at 7.00 a.m.

(3) I was also a Monitor for candidate Colonel Dr. Kiiza Besigye in Kibuku Parish.

After casting my vote, I started my monitoring work within Kibuku Parish. I observed the following during my monitoring.

a) When I was at Kibuku Trading Centre, I detected that Mrs. Mujwi the Sub-County Chief Kibuku was issuing out some voters’ cards to the crowd, which was around her at the Trading Centre. I was with Gideon Kalaja who was the Sub-County Monitor for Colonel Dr. Kiiza Besigye. We went and challenged Mrs. Mujwi but the Local Defence Unit personnel who were heavily armed roughened us up. They told us that they together with Museveni they are in power and we cannot do anything. They told us to keep quiet.

b) There were motor vehicles, which were bringing voters from villages, and they were told all to vote for Candidate Yoweri Museveni. Some soldiers were travelling in a mini bus all around the Trading Centre to who the Sub-County Chief Mrs. Mujwi, one Hail Nangeje Abubakali, Sub-County Councilor Maliki Kitente and Nyaigolo Peter L.C.II Chairman were telling the people that if they don’t vote for Museveni the soldiers would kill them. They were 3 polling stations within the Trading Centre namely Kobolwa Polling Station, Kibuku Secondary School Polling Station and Ginnery Polling Station. Mrs. Mujwi and her group were going round these Polling Stations giving voters cards giving those who had already voted. I complained to the Presiding Officers in the 3 Polling Stations but in vein. Instead I was being laughed at.

4) At all the Polling stations I went to, there were voters who could not vote because on reporting they were told their names had been ticked and they were told they were not supposed to vote. When they complained they were chased away.

5) Because of the complaints I raised during elections, my life is under threat as a result I have been lying very low and confining to my residence all the time. I am being told by Museveni’s supporters that I am a rebel. I am under great fear for my life.

6) The contents herein above are true and correct to the best of my own knowledge and belief.”

There is the affidavit of BERNARD MASIKO, of Ntungamwo Parish, Nyabitunda village, Kayonza Sub-county, Kanungu District.

“1. That I was also appointed a campaign agent for Col Dr. Kiiza Besigye and on polling day as a monitor in Kayonza Sub-county.

2. That on 9th February 2001 at around 3.00 p.m., I saw Deputy RDC Mr. Mugisha Muhwezi Nyindombi accompanied by Gomborora Internal Security Officer (GISO), one Paul Bagorogoza who came to our office with army men from the Presidential Protection Unit (PPU) and ordered our Office attendant to remove out Candidate’s posters and the sign post of our office and keep it inside, which our attendant did for fear of being harmed.

3. That four days to the polling day Mrs. Jacqueline Mbabazi came and held a meeting with Sergeant Nankunda Paulo Bagorogoza and ordered Museveni’s supporters to beat up all Besigye’s supporters. I personally heard her giving this order.

4. That Sam Karibwende Chairman L.C. III also threatened to shoot us if we did not close the Besigye district campaign office.

5. That when I returned the following day, I found another lock had been fixed on the office door and from then on we gave up the office.

6. That on polling day, I reached the polling at 6.30 a.m. with our agents, we found out the voting had already started earlier.

7. That all the voting was done by Museveni’s agents where one Rehema Biryomumaisho had about 200 ballot papers. She ticked all of them and put them in the ballot box. I found out that it was unfortunately done on all polling stations at that cluster by Sulait Mugaye and Ismail all Museveni’s agents.

8. That when I attempted to stop the habit together with other Besigye’s agents, we were forcefully chased away from the Polling Station by Polling Officers with the help of armed personnel and our letters confiscated.

9. That by 3:00 p.m. voting had ended. Many of Besigye’s supporters especially the youth did not vote because their names in the register had already been ticked and their votes cast by Museveni’s agents.

10. That I went to a nearby Polling Station called Kyeshero and found there the same procedure. I witnessed Canon Murakazi and Rwamahe also ticking ballots as they wished. I found it strange and Rwamahe who was armed with an AK 47 chased me away with the help of LDUs and some army men who were threatening voters.

11. That incidents similar to the above were wide spread in our area and the surrounding Sub-counties and I personally witnessed many of them.

12. In the circumstances, it became impossible for us to hold a free and fair election.

13. ………………………

14. That I certify that what is stated here in is true and correct to the best of my knowledge and belief.”

I will reproduce the affidavit of James Musinguzi in another context later in this judgment.

The above affidavits and very many similar ones were objected to on the principal reason that they contain hearsay and that no grounds of belief were given. Therefore they should be struck off. It is very clear that these affidavits and others like them speak of matters seen or heard by the deponents. Would it serve justice to strike out these? No. I do not see merit in these objections.

Interestingly, although two wrongs do not create a right, some of the affidavits supporting the respondents contain hearsay evidence. Typical examples are the affidavit of Marita Namayanja (paras 11 to 14), of Prof. J. Rwomushana, (paras 9, 10, and 12). Mr. Balikuddembe submitted that we should strike out the affidavit of Marita Namayanja who deponed in support of the claim that the Petitioner suffers from AIDS.

It is apparent from the decisions cited as authorities by both sides that judicial opinion has not been consistent as to whether an affidavit containing hearsay matters should be rejected entirely or whether only the non-offending part of the affidavit should be relied upon. It is clear that in this country going say as far back as 1963 (Nandala’s case) (supra) there has grown a string of authorities which support the view that where it is possible, offending parts of the affidavit should be severed so that the admissible parts can be relied upon.

In view of the provisions of Article 126(2) (e) of the Constitution, I venture to suggest that whenever possible1 a Court which is faced with an affidavit containing some inadmissible matter that are not deliberately intend to mislead and that can be severed and discarded without rendering the remaining part of the affidavit meaningless, that court would be justified in severing the offending part and using the rest of the affidavit. In this regard, I think that the decisions of Odetta vs. Omeda (supra) and of Hudani vs. Tejani (supra) on defective affidavits do not represent good practice. I think that any tribunal placing much reliance on 0.1 7 Rule 3 in order to disregard affidavits in support of election petitions would do well to look at the provisions of Article c.86 (3)(b) and 104 (9) from which the Statutes regulating the conduct of election petitions spring. The former Article confers power on Parliament to make provisions with respect to the circumstances and manner in which and the conditions upon which to challenge the validity of a Parliamentary election. In the case of challenging Presidential election result, Parliament is empowered to make such laws as may be necessary for the purpose of challenging the validity of election of the candidate including laws for grounds of annulment and rules of procedure. Parliament delegated its powers to make rules of procedure to the Chief Justice:

See S.58 (II) of PEA, 2000. The Chief Justice made S.1. 2001 No. 13 which contains the rules to regulate the procedure of hearing petitions.

I have reached a point at which I should raise my fears which I held when I first read Rule 1 4(l) of the Presidential Election (Election Petitions) Rules, 2001. (The rule has its equivalent in the rules regulating Constitutional petitions and Parliamentary election petitions). The conduct of a trial of such an important petition, as this one, on affidavits, desirable though it may appear because of expediency, creates unnecessary problems during the hearing of the petition. Some of those problems have been clearly brought out by the objections to the Petitioner’s affidavits. In view of sub-rules (2) and (3) I suggest that in future Presidential election petition be tried by hearing oral evidence. The hearing would be expedited if counsels for all sides produce the relevant witnesses and relevant evidence. The report in the Nigerian case of Ibrahim vs. Shehu Shagari shows that the hearing of a presidential election petition in Nigeria seems to have been disposed of expeditiously through three tiers of the courts within less than two months.

I will make brief comments on some of the sample affidavits sworn in support of the petition. One such affidavit is by Charles Owor. The objection is based on lack of grounds for belief. In my view the use of the word “belief” is superfluous.

Baguma John’s affidavit was objected to because of absence of grounds for belief. But the affidavit is a factual narrative of what he experienced in Bukonzo County in Kasese District. Again the use of the word “belief” is superfluous. Yet another example is the affidavit of Peter Byomanyire from Mbarara District. Objection to his affidavit is that it contains hearsay. The objection is wholly baseless because the deponent talks about facts he knows.

There was a submission that the affidavits which were filed but were not referred to or were not read in court should be ignored because as the affidavits were not referred to in open court they are not part of the evidence. Y. Katwiremu Bategana vs. Mushemeza Mbarara H. Ct. Petition 1 of 1996 is relied on for this proposition. With due respect, I think that the relevant rule 15(1) was misconstrued by the trial Court. Rule 15(l) is similar to our R14 (I). Rule 14(l) of S.l.2001 No.13 does not say that affidavits not read in court though they are already part of the court record should be ignored. The Petitioner did not abandon the evidence filed with pleadings. I do not accept the proposition that pleadings in the form of affidavits, which are properly filed on the court record, should be ignored. With respect to the learned Judge in the Katwiremu Bategana petition, I do not think that the proposition is in consonance with Rule 15, which was relied on. Indeed the absurdity of the proposition is fully illustrated by the fact that although two witnesses (Patrick Rwihangwe and Nuwamanya Buhitya) had been called and cross-examined on their affidavits, their oral evidence was eventually disregarded purely because the affidavits had been discarded. With the greatest respect, that procedure is wrong and to that extent the decision represents bad practice.

FIRST ISSUE

I will now discuss the issues in the order they were framed beginning with the first which is whether during the 2001 presidential election, there was noncompliance with the provisions of The Presidential Elections Act, 2000. The Court briefly answered this issue in the affirmative. I have to give my reasons for and expand on that answer. I will show that apart from section 28, more sections of the PEA were not complied with.

MESSRS BALIKUDEMBE AND MBABAZI FOR PETITONER

The petition cited non-compliance with sections 12,18,19,25 of the ECA and sections 25,28,29,30,31,32,34,42,47,56,63,70,71, of the Presidential Elections Act, 2000 (PEA). It seems from the wording of S.58 (6) (a) and (C) that violation of the ECA does not matter for purposes of annulment.

Be that as it may, Mr. Balikuddembe made submissions together with Mr. Mbabazi. Mr. Balikuddembe opened by stating that the 1995 Constitution did away with political instability by putting the people of Uganda in charge of their own destiny. He referred to Articles 1,60 and 61 of the Constitution to the provisions of the Electoral Commission Act, 1997 (the ECA) especially S. 12 thereof which spells out the special functions of the Electoral Commission (hereinafter called the Commission); to the Presidential Elections Act 2000 (PEA), especially Ss.2 (2) and 5. Counsel pointed out malpracticeS and non-compliance with the provisions of PEA and ECA. He criticised the Commission for its failure to display the Voters roll for 21 days as a result of which the Voters Register was not cleaned up of names of people whose names should not appear in the register. That the Commission did not complete the Voters Register, which in the event contained two million ghost voters.

He criticised the Commission for the establishment, at the eleventh hour, of over 1716 new and ungazetted Polling Stations on 11/3/2001. Because of this, it was contended, the petitioner was unable to appoint Polling agents to most of the new Polling Stations to protect his electoral interests. He criticised the Commission for printing excessive Voters cards as well as excessive ballot papers numbering about two million of them. These ended up in wrong hands. As a result, the agents of the first respondent used the excess ballot papers to stuff the same into ballot boxes. Counsel complained of the deployment of the Army during the campaign period, contending that the militarization of the electoral process hindered the petitioner and his agents and his supporters from canvassing for support and also the Petitioner’s supporters were terrorised into abandoning the petitioner. He referred to the exercise of undue influence exerted by the first respondent and the Army of which he is the Commander-in-Chief.

Mr. Mbabazi stepped in to further argue the merits of the first issue and indeed his arguments overlapped into the second issue. Learned counsel referred to the affidavits of Major (RTD) Rwaboni Okwir, that of Mukasa D. Bulonge, of J. Oluka of Soroti, Ebulu, Ongee Mariono of Kitgum, Kiiza Davis and Birungi Ozo, both of Kamwenge, Kipala J, James Musinguzi of Rukungiri, Charles Owor and Kironde both referred to general situation, Ogute Nicholous, Frank Mukuunzi to support his arguments.

Counsel contended that the Commission failed to compile, maintain, revise and update registers and rolls as required by Article 61(a) of the Constitution, and sections 12, 18 and 19 of the ECA. By 8/3/2001, the National Voters Register was not ready. As a result many voters could not inspect the registers and they were unable to raise objections as provided for by S.25 of ECA (Act 3/97); that the commission violated the law by displaying some registers for less than 21 days. That because of this, about 101,000 voters surfaced and there was no time available to enable voters and agents of the petitioner to verify any of these new voters. As a result there was falsification of registers and the creation of sham polling stations on the eve of the Polling Day.

Counsel argued that in terms of S.28 (1) (a) of PEA, (17/2000) polling stations should be published 14 days before nomination day, i.e., before 8/1/2001, but not later, as was done in this case.

He referred to the chasing of the Petitioner’s polling agents from Polling Stations. That there was voting before the appointed time which perpetuated multiple voting and ballot stuffing. Counsel contended that as a result of these, there was non-compliance with the provisions of PEA (Act 17/2000) and ECA (Act 3/97) because of:

1) Failure to update registers by 22/1/2001.

2) No updated register on voting day.

3) Failure to print and gazette constituency rolls.

4) Failure to display voters rolls for all the Polling Stations for at least 21 days.

5) Failure to gazette all Polling Stations within 14 days before nomination.

6) Failure to notify voters within reasonable time of Polling Stations where they were to vote contrary to S.33 (1) of ECA.