| 1ST LEG OF 4TH ISSUE: AIDS COMPLAINT
With regard to this issue (number four), I have decided to first dispose of the complaint relating to AIDS. My understanding of S.65 is that if I uphold the petitioner’s allegation on suffering from AIDS, I am bound to allow the petition. Mr. Balikudembe relied on the contents of paragraphs 3 to 17 of the Petitioner’s affidavit sworn on 5/4/2001 in reply to the answer by the first Respondent. Learned Counsel also relied on the affidavits of Dr. Ssekasanvu and of Major Rubaramira to support the contention that the Petitioner did not suffer from AIDS. Counsel argued that the first Respondent does not deny making the statement, (this is correct: see paragraph 6 and 7 of 15t Respondent’s affidavit). Counsel dismissed Ms. Namayanja’s affidavit as hearsay (which is also correct) and asked us to strike it out because it offends 0.1 7 Rule 3 of CPR. He contended that the opinion of Prof. Rwomushana was based on idle talk and funeral vigil gossip. Prof. Rwomushana deponed an affidavit to support the opinion of the first Respondent to the effect that there is a common and
“Widespread practice in Uganda in lay conversations that individuals in community who lose partners and very young children presumably due to AIDS as persons suffering from AIDS”
Counsel added that because the first respondent made the statement during the critical moments of the presidential election campaign, i.e., the first week of March 2001, the first Respondent must have intended to undermine the Petitioner’s presidential candidature. That this was confirmed by the statement on the eve of the election (11/3/2001) by the first Respondent that Sate House is not for invalids. That this statement is evidence of malice and that indeed the first Respondent violated the Declaration of the Paris AIDS summit of 1st December, 1994 to which Uganda is a signatory. He referred us to Attorney General vs. Kabourou (supra) to support his other arguments. He wound up on this aspect of the issue by contending that the first Respondent committed an offence under S.23 (5) (a) and (b) and 23 (7) of PEA and that the 1st Respondent committed an illegal practice. Counsel submitted that this ground is sufficient, under S.58 (6) (c), for the election to be annulled.
Dr. Byamugisha for the 1st Respondent contended that issue No. 4 is very important. He urged us to make a firm ruling (by which I understand counsel wants appropriate ruling) because our decision will affect future elections. He submitted that annulment of an election under S.58 (6)(c) does not disqualify the candidate from participating in an election. He probably means application of the decision in our courts. Counsel contended that the section does not say that annulment is automatic. I have already alluded to this. My understanding of this law is that annulment is automatic once a Court is satisfied that a candidate committed an illegal practice or other electoral offence. Although I have quoted the law already this is what S.58 (6) (c) states:
“58(6) 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:-
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