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

Excess Ballot Papers

Dr. Mukasa D. Bulonge headed the election monitoring Desk and electoral process section of the NTF for the petitioner. From his affidavit it is clear that he was closely involved in the arrival and verification of the ballot papers. He has sworn that by the time the election for the President was held, the number of ballot papers was not known. He also shows that even the number of registered voters was not known but the Commission on 11/3/2001 claimed that voters were 10,674,080. Yet after voting the Commission said that the voters were 10,775,836 with an increase number of polling stations.

There is the mysterious printing of excess ballot papers. Nobody therefore knows or is able to tell how many excess ballot papers went into circulation. In his affidavit of 9/4/2001, Chairman Kasujja explained the causes of the rise in the number of voters. Counsel for the respondents were happy to contend that in that case the Petitioner has failed to prove his case and all candidates were affected. In view of the reports of rampant intimidation, harassment and chasing away from polling stations of the Petitioner’s representatives or agents in particular, I do not think that it makes sense to say that all candidates were affected by the excess ballot papers. Indeed it makes some sense if complaints were from a few polling stations. Further the former candidate Bwengye was not affected, according to his affidavit. In any case there is no evidence that distribution of excess ballot papers was given evenly to all candidates. Where new polling stations are created over night, I think that excess ballot papers can be a recipe for cheating, whereas, in this case, there is evidence of cheating in favour of only one candidate. In such circumstances I am unable to accept that the election result was not affected.

Arrest of Commissioner Miiro and Excess Cards

Commissioner Miiro and her two high ranking Commission officials raise yet another complication in electoral process. The full magnitude of the excess ballot papers and voters cards, which may have been spewed out by her group, will never be known. Because at the time we heard the petition there was a criminal case pending against Miiro and the other two officials, we were told that the principle of sub-judice rule bars as from receiving evidence on or discussing the question of her arrest and the cards. I am doubtful whether in the context of the petition this principle still holds good any more. In any case our court and the criminal court are different courts applying different standards of dealing with evidence. Whatever the case the fact that the number of voters cards and ballot papers appears not to be known and the arrest of a Commissioner and senior officers of her staff who were allegedly in possession of electoral materials throws a cloud of doubt about the ability of the Commission to produce a fair and free presidential election. To this must be added the other ugly aspect of the printing of poor quality cards whose security is highly suspect. There is the mystery of the unidentified security people who broke into the data processing centre. Chairman Kasujja attaches no importance to this. On the vote tallying day (13/3/2001) agents of the Petitioner were not allowed at sensitive areas to verify how the tallying was being done. Yet Hon. Bakabulindi, who is no official of the commission and yet he was campaigner for the first Respondent was allowed a prominent seat at the reception of vital information relating to the tallying of votes without let or hindrance. This is evidence of blatant violation of the principle of transparency.

CHEATING

There is ample evidence showing wide spread interference by state officials and by polling officials, such as the returning officers and the presiding officers, whether in Kabale, Ntungamo, Rukungiri, Kanungu, Mbarara, Bushenyi, Kamwenge, Mayuge, Sembabule, Fort Portal, Kasese, Tororo, Bugiri, Busia, Mbale or Soroti. Thus the interference is sufficiently substantial because cheating was found to have been carried out in many parts of the country. There was the ballot stuffing. The pre-ticking of ballot papers and supervision of the ticking on the presiding officers’ table, sometimes in the absence of the agents of the Petitioner. Other times stuffing was done in the very presence of such helpless agents or helpless monitors. Thus Arinaitwe Hope, alias Tunamukye, a member of the Christian Monitoring Team, contended in para 6 of her affidavit that

“I noticed at the Polling Station where I was monitoring (Kasiiro) many grievous and deliberate cheating malpractices:-

(i) In many cases individuals were allowed to cast many votes by coming and voting over and over again using other voters’ cards given to them there.

(ii) In other cases individuals were handed many voters cards each to vote.

(iii) One particular case specifically is that of All Rugomwa who cast about ten votes ———‘

The pre-ticking by polling officials and the supervision of the ticking of ballot papers in favour of one candidate by such officials or other persons, according to affidavit evidence, did not take place in one or two paces only, or in a single district. Further, and what is remarkable is that, there was no pre-ticking in favour of any other candidates; the pattern shows that it was only in favour of the first Respondent. It occurred in so many districts, giving the inevitable conclusion that it was orchestrated. It could not have been by mistake or due to the enthusiasm of a few officials. I do not believe Chairman Kasujja’s affidavit and those affidavits of his officials denying this. His agents, especially the presiding officials as much as the agents of the first Respondent are to blame for this. This must surely affect the election result. In the circumstances of this petition in which the petitioner’s agents or representatives were either chased away or denied opportunity to verify the votes and cards, it is not possible to establish how many excess ballots and or cards were involved. What we can say is that the petitioner did not benefit in this malpractice and is therefore not to blame. But on the basis of countrywide complaints, the effect on the election is substantial, I think.

Bob Mutebi and the Petitioner on 12/3/2001, at Voting

It was submitted that during the polling day, at Rukungiri, the Petitioner was shadowed by Mr. Bob Mutebi of Media Plus, who deponed that the Petitioner appears to have expressed satisfaction with the election. First of all Mutebi does not disclose who assigned him the responsibility to cover the Petitioner during polling time. Secondly it appears that in the alleged interview, the Petitioner was referring to polling in the Polling Station where the Petitioner voted. That is nothing in the whole electoral exercise. This would not estop the petitioner from complaining. The petitioner was clearly conscious of the heavy presence, in the whole district of Rukungiri, of the army and the PPU and he was not sure about what the election result would be eventually. That is what I gather from the interview, to represent what the petitioner said. I attach no importance to that interview.

ARTICLE 126(l) OF THE CONSTITUTION

I have referred to the confusion surrounding the tallying of votes. Dr. Khaminwa, learned Deputy Lead Counsel, for the first respondent, cited to us Article 126(1) of the Constitution and urged us not to interfere with the will of the people: namely that because of these provisions, we should, as serene judges, behave as if nothing wrong has happened because the majority of the people have voted for the first Respondent. On the facts, his arguments should have been that the majority of the people are deemed to have voted for the 1st Respondent.

Clause (1) of Art.126 states as follows:-

“Judicial power is derived from the people and shall be exercised by the courts established under this Constitution in the name of the people and in conformity with law and with the values, norms and aspirations of the people.”

Perhaps I should here mention that the same Constitution contains our Judicial Oath couched in these words:-

“I …swear in the name of the Almighty God/solemnly affirm that I will well and truly exercise the Judicial functions entrusted to me and will do right to all manner of people in accordance with the Constitution of the Republic of Uganda as by law established and in accordance with the Laws and usage of the Republic of Uganda without fear or favour, affection or ill will”

Art. 126 (1) does not restrict this Court in doing justice to parties. We are engaged in a democratic process, namely the exercise of doing justice to the parties in accordance with law. I do not think that the people of this country would want this Court to shut its mind, or eyes, to the breaches of the law because the apparent majority of voters have voted in favour of a particular candidate. I think that the norms and aspirations of the people of Uganda would be served most properly by upholding democratic values, principles and the rule of law under which elections are conducted under conditions of freedom and fairness. I may add, with respect, that if this Court hesitates to say that anybody, whoever if it is, has violated any of the laws of this land, this Court would be inadvertently condoning a conspiracy to destroy democracy and the rule of law.

STANDARD OF PROOF AND NON-COMPLIANCE

A number of cases were cited to us by both sides to support contentions about what is or is not :-

(a) proof to the satisfaction of the Court, and

(b) that non-compliance affected the result of the election in a substantial manner.

Art. 126(1) is one such authority. I have already referred to it. Cases cited include: Yorokam Katwiremu Bategana vs. E. D. Mushemeza & two others P K. Ssemogerere & Olum vs. At. Gen. The other authorities cited included Special Reference No. 2 of 1992 by the Public Prosecutor (1993) 2 LRC. 114, Kawesa vs. Minister of Home Affairs and others (1994) 2 LRC.263 and R. L. Maharag vs. Att. G. of Trinidad & Tobago, Gunn vs. case Sharpe (supra) and Bater case (supra).

Among the cases cited by the respondents were Ibrahim vs. Shehu Shagari & others (1985) 2.LRC (Const) 1; Charles Mubiru vs. Att. Gen., Constitutional Petition No.1 of 2001, Gunn vs. Sharpe (1974) 2 ALL ER 1058, Halsbury’s Laws of England, 4th Ed, Vol.1 5, and Indian case Law and text books as well as the recent American case of Bush vs. Gore.

It is axiomatic that the petitioner bears the burden of proving that non-compliance with the provisions of the PEA and of the principles of the said Act affected the results in a substantial manner. As indicated earlier in this judgment, this Court has already found that certain sections of the Act and the principles laid down in the same Act were not complied with. I have discussed the situation obtaining during the campaign period and on the polling day. I have held that the conduct of the two respondents and or their agents affected the results in favour of the first respondent. I have also found that the conduct of the agents of the first respondent and the conduct of the second respondent and its agents on 12/3/2001, (the polling day) affected the election result substantially. The question really is how substantial was the effect. I do not think that the case of Gore vs. Bush (supra) is helpful to our discussions.

SHEHU SHAGARI CASE

In Ibrahim vs. Shagari (supra) the facts were these:

The appellant was an unsuccessful candidate for the election to the office of the President of the Federal Republic of Nigeria held on 6th August 1983, at which the 1^st Respondent, Alhaji Shehu Shagari, was returned as having been duly elected to the office in accordance with the provisions of section 126(2) of the Constitution of the Federal Republic of Nigeria, 1979, in that he had a majority of the votes cast at the election and he had not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the States in the Federation.

The appellant presented a petition in the Federal High Court complaining about the election and the return. The substance of his complaints was that in ten states the election was conducted without the voters register; that some registered voters were not allowed to vote while people who had not been registered were allowed to do so; that under-aged children with fake voters’ cards were allowed to vote; that the officials of the Federal Electoral Commission in collusion with the police prevented the polling agents appointed by the appellant from performing their duties at the polling booths and at the counting centres; that in many polling stations no votes had been cast but that results were declared in favour of the 1 respondent; that ballot boxes were illegally stuffed with ballot papers and that there was widespread rigging and blatant electoral malpractices in the conduct of the election; that statements of results were fraudulently prepared and mutilated by the agents of 2 respondent, the Chief Federal Electoral Officer of the Federation and the Federal Electoral Commission.

On account of the aforementioned alleged irregularities and malpractices, the appellant prayed the Federal High Court to invalidate the election of the respondent by reason of non-compliance with the provisions of part II of the Electoral Act 1 982 and to order the 2nd respondent and the Federal Electoral Commission to hold a fresh presidential election throughout the Federation.

At the hearing of the petition, 23 witnesses including the appellant testified for the appellant. In its well-considered judgment, the trial court rejected the evidence of all the witnesses other than four whom it believed as reliable witnesses. The evidence of the three reliable witnesses, namely Alhaji Gambo Gubio, the Executive Secretary of the Federal Electoral Commission, (PW2), Justice Ovie-Whiskey, the Chairman of the Federal Electoral Commission (PW15) and Mr. Asuquo Nya the Returning Officer for the Federation (PW1 6), did not assist the petitioner at all. Instead of proving his case, their evidence disproved all the allegations contained in the petition. The totality of their evidence was that none of the serious irregularities and malpractices complained of ever took place in the conduct of the election; that all the election returns from all the States of the Federation from which the results of the poll was collated by the returning officer for the Federation in exhibit B were authentic; that the election was conducted scrupulously in accordance with the provisions of the Electoral Act and the Constitution and that it was free and fair.

Mohammed Kuru Goni (PW21) was the fourth reliable witness who testified that he was the Presiding Officer at the Polling Stations BO/l5/E in Maiduguri, Borno State and when he delivered the result, which was 81 votes for the political party of the appellant and 62 votes to the political party of the 1st respondent, to the Electoral Officer at the collation centre the officer asked him to falsify the result by adding figure 1 in the NPN result to read 1 62 votes. The witness said when he refused to do so, the officer ordered a policeman to beat him out of the centre. The witness left the result with the Returning Officer and ran away. The trial court found that there is no evidence the result in question was in fact falsified and it further held that, even if the said result had been so falsified, it would not affect the validity of the election since the respondent had scored 12,047,648 votes while the Petitioner had only 640,928 votes when the result of the poll was declared.

Upon the preponderance of the foregoing evidence, particularly coming from the lips of the petitioner’s witnesses, the trial court had no alternative other than to dismiss the petition. It would not surprise a reasonable tribunal that the Federal Court of appeal also dismissed the petitioners’ appeals to that Court.

An election may be invalidated upon the grounds specified by section 122 and 123 of the Nigerian Electoral Act 1982, which provide:

“122(1) an election may be questioned on any of the following grounds that is to say:-

(a) that the election was invalid by reason of corrupt practices or non-compliance with the provisions of Part II of this Act;”

By S.123 (1), of the same Act.

“An election shall not be invalidated by reason of non-compliance with part II of this Act if it appears to the Court having cognisance of the question that the election was conducted substantially in accordance with the provisions of the said Part II and that the non-compliance did not affect the result of the election’

In his petition, the appellant questioned the election on the ground of the second limb of section 122(1)(b) i.e. alleging non-compliance with the provisions of Part II of the Act and also on the ground of section 122(1)(c) alleging that the 1st respondent was not duly elected by majority of lawful votes at the election. The petitioner’s witnesses not only failed to prove his case but they proved the contrary. Their evidence established that the election had been conducted in scrupulous compliance with the Act and that the 1st Respondent was duly elected by majority of lawful votes at the election.

Now although in the present petition learned Counsel for the two respondents submitted that the Shehu Shagari decision is similar to the petition now under consideration, the facts as set out above make the Shagari case clearly distinguishable. A part from the fact that Shagari won by 1 2,047,648 votes and the Petitioner (appellant) got a mere 640,928, being defeated by a majority of over 11 million votes, the appellant failed to get even the statutory minimum of one quarter of votes in every one of the Federal States of Nigeria. That alone was sufficient to knock him out. Secondly he made the fatal error of calling as key witnesses for his case, three witnesses who were the key players in the election and whom he had sued as respondents to the petition. They indeed testified on his behalf that the provisions of the law, which were alleged to have been breached, had been scrupulously compiled with.

Thirdly the rest of his twenty-three witnesses, including himself, had been proved unreliable. It was therefore easy for the panel of the trial judges to dismiss the petition and the dismissal was easily upheld by both the Court of Appeal of Nigeria as well as by the Supreme Court of Nigeria.

One of the key witnesses in the Shagari case testified and was believed that the provisions of the Act which those witnesses administered, had been scrupulously complied with; therefore I think there was no longer an issue to decide whether the election was conducted substantially in accordance with the provisions of that law and whether that non-compliance did affect the result of the election. It was therefore not surprising that Irikefe, JSC, found evidence available to the appellant was so palpably unreliable as to reduce the proceedings in Court to a farce.

In summary in the Shagari’s case, the Petitioner had wholly failed to prove every one of the allegations against the Respondent. On the facts the court found no need to decide the issue of non-compliance affecting the election result and if so whether the effect was substantial.

OTHER AUTHORITIES

In our petition, on 21/4/2001, this Court found that the provisions of sections 28 and 32(5) and the principles laid down in said PEA, 2000 had not been complied with. Moreover I personally believe, as I have indicated earlier and shall further show that the petitioner and his witnesses have established that the non-compliance with the provisions and the principles of the Act affected the result of the election in a substantial manner.

Throughout the trial, Counsel for the present two Respondents relied on the provisions of Sub-section (6) of S.58 of the PEA and contended that the standard of proof required of the Petitioner to justify annulment of the election is very high. Learned Counsel cited many cases (some common to both respondents); such cases as Bater, Gunn, Re: Kensington North Constituency (1960) 2 ALL ER.150, Morgan vs. Simpson (1975) 1Q.B.151, Katwiremu (supra).

Sub-section (6) in so far as relevant reads:-

“The election of a Candidate as President shall only be annulled on any of the following grounds if proved to the satisfaction of the Court:

(a) non-compliance with the provisions of this Act, if the court is satisfied that the election was not conducted in accordance with the principles laid down in those provisions and that the non-compliance affected the results of the election in a substantial manner.

(b) ………………….

(c) that an illegal practice or any other offence under this Act was committed in connection with the election by the candidate personally or with his or her knowledge and consent or approval.”

In the Bater case, the wife had sought divorce on grounds of cruelty as provided for under the Matrimonial Causes Act, 1950 (UK). Under that Act, a decree of divorce was to be pronounced if the Court is satisfied that the case has been proved and if the Petitioner had not condoned the cruelty. The Commissioner (Judge) who heard the petition dismissed it because the wife had not proved the charges of cruelty “beyond reasonable doubt”. On appeal by the wife to the Court of Appeal on grounds that the Commissioner had misdirected himself, the Court of Appeal upheld the Commissioner. Denning. L. J., who attempted to explain the burden of proof, said among other things, that:

“A reasonable doubt is simply that degree of doubt which would prevent a reasonable and just man from coming to a conclusion”.

The GUNN CASE is relevant in construing the expression “conducted substantially In accordance with the law”. There at a Local Government election, the returning officer, in accordance with the requirements of the law, gave clear instructions to the staff at each of the ten Polling Stations to ensure that ballot papers were stamped with the official mark as required by certain local elections rules. Appropriate notices containing instructions for voters were displayed at the Polling Stations. In the event, 102 ballot papers were rejected under rule 43 because they (papers) did not bear the official mark. Of the rejected papers, 98 came from one Polling Station, constituting more than half of the 189 papers issue at that Station. If the votes on the rejected papers had been counted, the two petitioning candidates would have been successful instead of the respondents who had in fact been elected. The petitioners sought a declaration that the election of the Respondents was void on the grounds:- (1) that the election had not been conducted substantially in accordance with the law as to elections within S.37 (1) of the Representatives of the People act, 1949, and (ii) that the errors had affected the results of the election.

The judges who heard the petition held that the errors which had occurred at the Polling Station in question were of such a nature that they went beyond the trivial errors that inevitably occurred at all elections. The errors were substantial and such as to be likely to effect the result of the election, since they had resulted in more than half the voters who had sought to vote at the Polling Station being disfranchised and thus prevented from voting for the Petitioners. It followed that the election could not be said to have been conducted “substantially in accordance with the law as to elections”. Since the errors had in fact affected the results, the elections of the two respondents were declared void.

In the GUNN CASE the Returning officer had done his duty well. Even notices about voting had been placed in places for voters to see, read and understand what to do. The two petitioners contended that the election was not conducted substantially in accordance with the law because the Presiding officer at the Polling Station omitted to mark the ballot papers. Although the voters were somehow to blame because they could have read instructions from which they could have ensured that a ballot paper was properly marked before the voters voted, the negligence of the Presiding officer in not marking the papers led to the avoidance of the elections. It is true that in that case it is the number of votes in a Polling Station, which affected the results. But the other very material aspect of that case is that the conduct of the Presiding officer was the effective cause of the avoidance of the election. This decision is therefore not quite helpful on the question of the burden of proof.

Among the other cases cited is Morgan vs. Simpson (1975) 1 QB 151. Morgan case was also concerned with Local Government elections. Other authorities relied on are Mbowe case from Tanzania, Katwiremu Petition (supra), Ayena Odongo vs. Ben Wacha and others, (Lira High Court Election Petition 2 of 1996) (unreported) A. M. Ogola vs. Akika Othieno and another Tororo H.ct. Eletion Petition 2 of 1996 (unreported) and Returning Officer, Kampala and two others vs. C. Naava Nabageresa Court of Appeal Civil Appeal No.39/97 (unreported).
In Morgan vs. Simpson (supra), the facts, somewhat similar to Gunn’s, were as follows:-
At a local government election, the total number of ballot papers put into the boxes was 23,961. On the count, 44 of the papers were rejected because Polling officials at 18 Polling Stations had inadvertently omitted to stamp them with the official mark when issuing them to voters and the omission had not been noticed by the 44 voters. After a number of recounts the candidate declared duly elected had a majority of 11. If the votes on 44 unstamped papers had been counted in, the nearest rival candidate would have been elected by a majority of 7 votes. That candidate and four voters petitioned Court for a declaration, as against the person “duly elected” and the returning officer, that the election was invalid in that the issue of the unstamped papers was an “act or omission” in breach of the officer’s official duty and that as ft had affected the result, the Court ought, under section 37(1) of the Representation of the People Act 1949 to make the declaration. Sect .37(1) reads as follows:

“(1) No local government election shall be declared invalid by reason of any act or omission of the returning officer or any other person in breach of his official duty in connection with the election or otherwise of the local elections rules if it appears to the tribunal having cognizance of the question that the election was so conducted as to be substantially in accordance with the law as to elections and that the act or omission did not affect its result.”

The Court dismissed the petition, holding that as the election was conducted “substantially in accordance with the law as to elections” the fact that a small number of errors had affected the result was not a sufficient reason for declaring it invalid.

On appeal by the petitioners to the Court of Appeal, the appeal was allowed and the election was declared invalid for though it had been conducted substantially in accordance with the law as to elections, the breach of the rules in omitting to stamp the 44 papers had affected the result, and on the proper construction of section 37(1) of Act of 1949 any breach of the local elections rules which affected the result was by itself enough to compel the Court to declare the election void.

The law embodied in the Act and the rules requires that an election shall be declared invalid where it appears either that it was so conducted that there was substantial non-compliance with the law as to elections or that there was a breach of the rules or an irregularity which affected the result. But where there have been breaches or irregularities, an election will stand only if the tribunal is satisfied as to both the circumstances set out in section 37(1), namely, that it was conducted substantially in accordance with the law as to elections and that any breach of the rules or mistake at the polls did not affect the result.

Lord Denning reviewed many previous decisions on the subject and concluded as follows:

1. If the election was conducted so badly that it was not substantially in accordance with the law as to elections, the election is vitiated, irrespective of whether the result was affected or not.

2. If the election was so conducted that it was substantially in accordance with the law as to elections, it is not vitiated by a breach of the rules or a mistake at the polls-provided that it did not affect the result of the election.

3. But, even though the election was conducted substantially in accordance with the law as to elections, nevertheless if there was a breach of the rules or a mistake at the polls-and it did affect the result - then the election is vitiated. That is shown by Gunn vs. Sharpe (1974) Q.B. 808, where the mistake in not stamping 102 ballot papers did affect the result.

These statements by Denning L.J. seem to apply in these proceedings in so far as the Commission and its officials contributed to the mismanagement of the election exercise.

The decision In the Morgan vs. Simpson case shows that violation of the electoral law by election officials can and often does lead to avoidance of an election. I may add that in the case of Morgan and the other English cases, it was the actions of the election officials, which contributed to non-compliance with the law, and the burden of proof was the normal one.

Let us look at the Uganda decisions. In Y.Katwiremu Bategana vs. Mushemeza & 2 others there is one outstanding feature in the petition. Deponents of affidavits in support f the petition as well as in opposition to the petition, were all cross- examined. As a result, the learned trial judge and counsel formed opinions about the parties and the witnesses from what they saw and heard. The judge set aside the election on two grounds, namely:

(g) proof that the winning candidate bribed two voters and

(ii) that the same winning candidate who was the first Respondent had been nominated on nomination day outside the statutory nomination time.

The other allegations were dismissed because they had not been proved to the satisfaction of the Court. The learned judge’s view on the burden of proof was that the burden was like in any other civil matter. But he preferred the standard of proof to be to the satisfaction of the Court.
Elsewhere in this judgment I have observed that the learned trial judge wrongly rejected the affidavit evidence because the affidavit was not read out in court. That approach which is wrong waters down the effect of the decision.

In Akisoferi M. Ogola vs. Akika Othieno and 2 others (supra) Ouma, J. who was somewhat ambivalent held that the standard of proof is to be beyond reasonable doubt. He seems to have been swayed by the fact that on the day when election results were announced, the Petitioner did not express dissatisfaction with the conduct of the election and therefore the Petitioner was “estopped from challenging” the results subsequently. With all due respect, I think that this approach by the learned judge blurred him from investigating the petition judicially. I would therefore overrule the decision as it represents bad law.

In Ayena Odongo vs. Ben Wacha and another, Okello J, as he then was, relied on the Tanzanian case of Mbowe (supra) and equated proof beyond reasonable doubt as the standard of proof required.

Our Court of Appeal in the case of the Returning officer of Kampala and two others vs. C. Naava Nabagesera, Ct. Appeal, Civil Appeal No.39/97 (unreported) relied on Uganda cases and Mbowe case, before holding that the standard of proof must be beyond reasonable doubt. The effect of the holding in the Mbowe case, and, the Uganda cases that followed Mbowe case, is that grounds for setting aside an election of a successful parliamentary candidate set out in S.91 of [The Parliamentary Elections (Interim Provisions) Statute, 1996] Statute 4 of 1996, must be proof beyond reasonable doubt. The Court of Appeal adopted the language of the English Court of Appeal in the Bater vs. Bater case (supra). Our own Court of Appeal did not find it necessary to discuss whether the trial court (Okello) directed itself correctly on the standard of proof and whether that trial court, correctly applied the standard. In effect this means that the Court of Appeals’ considered opinion on the issue of the standard of proof in Nabagesera case is not definitive and so is not helpful.

In the case before us, learned counsel were content to say that the standard of proof should be to the “satisfaction of the Court,” meaning that it is beyond the standard of the preponderance of probabilities and yet below the criminal law requirement of proof beyond reasonable doubt. This approach is about the same, as did Lord Denning in the Bater case (supra).

Draftsmen of legislation appear to be in the habit of sticking to well trodden paths. I say this because the expression of proof to the satisfaction of the Court is used in much legislation (both penal and non-penal) and yet when Courts are called upon to try criminal cases arising under penal enactments, those Courts require the prosecution to prove criminal charges under investigation beyond reasonable doubt. I know it is convenient and perhaps, a matter of practical draftsmanship for legislative draftsmen to follow the old path of precedent. However I wonder why draftsmen of our election laws have avoided the inclusion of the commonly used expression of “proof beyond reasonable doubt” in the various enactments such as PEA. For this reason, I do not, with respect, subscribe to the view that the expression “proving to the satisfaction of the Court” inevitably means proof beyond reasonable doubt. I think it is safer to apply the words themselves and say that the standard of proof required to nullify an election of a President after a Presidential Election, must be proof to the satisfaction of the Justices trying the petition, namely proof so that the trial justices are sure that on the facts before them one party and not the other party is entitled to judgment.

In the present case, I am myself satisfied that the Petitioner adduced enough evidence showing that there was non-compliance with the provisions of the PEA and the principles of the same Act and that the non-compliance affected the result in substantial manner.

From the reasoning in the English cases and also of Kibuuka- Musoke, J. in Katwiremu case, and based upon my understanding of the words of section S.58 (6) (C), proof that a candidate committed an illegal practice or other electoral offence.

In many recent Parliamentary election petitions, courts in Uganda relied on Mbowe for the view that to show that results were affected there should be proof of numbers of votes won or lost. I think that each case must be decided on its own facts. In this connection, it is instructive to appreciate the following passage appearing at pages 242G of the EA report of the judgment in Mbowe case:-

“We now come to allegations (a) and d), which I shall deal with together, because they are closely related and they are the most serious allegations in the petition. Each of them would constitute an illegal practice contrary to ……………..S.99. In particular as far as (a) is concerned, had it been proved to our satisfaction it would have gone so deeply into the root of the whole election that it would be difficult, however large the majority might have been, to say that it did not effect the result of the election” Per Georges, C.J. (Emphasis mine)

The summary of evidence about allegation in (a) and (d) is that the petition alleged that there were campaigns or canvassing at or inside Polling Stations as well as intimidation of voters. The court held that the witnesses who testified about these allegations were not reliable. According to Georges, CJ, as above stated, if witnesses had been reliable, the winning majority of over 13,820 by the respondent in Mbowe would not have mattered.