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

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.