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

(i) Busunju - Kiboga;

(ii) Kiboga - Homa,

(iii) Arua - Pakwach;

(iv) Ntungamo - Rukungiri

And that the tarmacking and upgrading of these roads was part of the 1st Respondents campaign manifesto.

(e) That at a campaign meeting at Arua on 12th February, 2001, the first Respondent offered a gift of money to voters who attended the Rally and the record of this rally was Video-recorded-a copy of this recording is herewith submitted as an Exhibit”.

Mr. Walubiri categorised what is referred to in paragraph 22 (quoted above) as the second category of gifts and contended that in making these offers or contracts, the first Respondent was soliciting for votes. Asked by Court if the alleged acts by the first Respondent or his Ministers offended any law, Mr. Walubiri referred to Articles 154 to 156 and Arts 190 to 191. The first three Articles relate to the method of raising money and authority for spending that money from the Consolidated Fund. The latter Articles relate to the same matters but these concern Local Government. In effect these Articles say that execution of work and expenditure by Government on that work should be preceded by budgeting the money for the work.

Mr. Walubiri cited Attorney General vs. Kabourou in support of the view that these hurried decisions amounted to gifts or illegal practices. Learned counsel contended that other gifts were given by 1st Respondent’s agents. He relied on Gariyo’s affidavit in which he stated that Mwesigwa-Rukutana, Member of Parliament, offered shs.50001= to voters in Ntungamwo District. Also Ssali Mukago, in his affidavit states that Daudi Kahurutuka, an agent of the first Respondent wanted to pay Ssali any amount of money so as to allow him (Kahurutuka) to “steal votes” for the first Respondent. Mr. Walubiri also referred Omalla Ram of Tororo District who swore in his affidavit, among other things, that at Poyawo Polling Station, Onyango paid money to voters in order for the voters to vote for Museveni the first Respondent. Omalla reported other malpractices to the police. Counsel submitted that these activities were conducted with the knowledge of the first Respondent and this should be inferred from the fact of appointment by the first Respondent of the agents who gave the bribes. That these agents gave bribes in the course of soliciting for votes and therefore the first Respondent, as principal, is held liable for the acts of his agents even where the agent does what he is prohibited from doing. He cited Page News Digest of English case law, 2 Edition, 1924 and Volume 20 of the Digest Annotated British Commonwealth and European Cases (1982) paragraphs 646 at page 72 where the concept of implied consent is said to be:-

“If a person were appointed or accepted as an agent for canvassing generally and were to bribe any voter, the candidate would loose his seat’

Mr. Walubiri submitted that the first Respondent personally or by his agents interfered with the Petitioner’s electioneering activities contrary to S.25 of the PEA, 2001. Counsel contended that the deployment of Presidential Protection Unit (PPU) as deponed to by the Petitioner, by B. Matsiko, by Kakuru, by Koko, by Kasanyusi, by Bashaija, by Mpabwooba, by Byomuhangi Kaguta and by W. Byanyima, Captain Ndahura and other members of PPU (PPU) assaulted, intimidated and threatened very many voters to vote for 1st Respondent and caused disharmony and breach of the peace. This is also supported by Chairman Kasujja’s letter already referred to, to the first Respondent.

Mr. Walubiri included among the various malpractices and offences the abduction of Hon. Rwaboni Okwir. The abduction was lead by Cpt. Rwakitarate an intelligence officer in the PPU and the other acts by Major Kakooza Mutale’s Kalangala Action Group. After referring to several other affidavits such as those of Major Gen. Odongo Jeje, former IGP Kisembo, those of Kimumwe, Baguma, Kijambu, Busingye, Barimoshi, J. Musingunzi, Matsiko wa Muchoori, Major Kakooza-Mutale learned Counsel asked us to find and hold that several illegal practices and offences under the PEA, 2000 were committed by the first Respondent personally; that several were committed by his agents with his intimate knowledge and consent or approval. This, according to Counsel, was sufficient to justify the annulment of the election. Indeed Mr. Walubiri suggested that because there is evidence that criminal offences were committed; the Director of Public Prosecutions should be asked to take appropriate action.

Dr. Byamugisha, for the first Respondent, submitted on this second part of issue No.4, that because the petitioner did not call witnesses to talk about gifts; there is no proof, not even by affidavits, of giving gifts. Learned Counsel contended that Kabuga was given a motorcycle to campaign for the 1st Respondent but not as a bribe. He referred to the affidavits of Hon. Dr. Kiyonga, Hon. Benign Mukiibi and submitted that reasons have been given for the abolition of health cost sharing and salary-increase for medical personnel. That the wage bill in the budget speech included the revision of salaries for teachers and the police. He justified salary increases on the basis that as President, the first Respondent (candidate) could order for the increase of salaries. That the increment motivates workers. That Hon. Eng. John Nasasira, explained matters relating to roads. On the petitioner’s assertion that the first Respondent bribed voters in Arua, Dr. Byamugisha dismissed the evidence of video as valueless, and I agree with him on this question of the video evidence.

Among the authorities given by counsel for the 1st Respondent with regard to consent and knowledge by the first Respondent were Words & Phrases Judiciary, Defined Vol.1 (a) - (c) 1946 Edition, page 512, para 1378, Oppenheimer vs. Frazer & Wyatt (1907) 2 KB 50, at pages 59 & 68, Muwonge vs. Attorney General (1967) EA. 17, Sherras vs. De Rutzen (1895) I QB 918, Bell vs. A. Franks & Barlett (1980)1 ALL ER 356, The Borough of Windsor case (1874) 3 LTR 133.

In discussing the first aspect of this issue as well as issue 3, I touched on questions arising under this part of issue No.4. For example I discussed the deployment of UPDF and PPU and the effect on the election of the conduct of personnel of the two bodies.

Issue No. 4 was answered by the first Respondent in paragraphs 8, 9 and 1 0 of his affidavit sworn on 28/3/2001 and which affidavit accompanied his answer to the petition.

The signing of contracts for tarmarcking the roads in question, the abolition of health cost sharing or reduction of graduated tax or the salary increment, become relevant not because they were made at all but because they were made during the campaign for the elections of the President. Promises or decisions like that made to Kampala teachers on 5/3/2001 were made at the most crucial moment during the campaign. If these were ordinary and normal Government business activities, it did not require the presence or the personal announcement of the first Respondent to make the announcements during his campaign for re-election. That puts the decision out of the ordinary and therefore justifies the criticism by the petitioner.

On the money hand out or bribes, let us examine the evidence of Gariyo Willington and the rebuttal by Bob Kabonero and Hon. Mwesigwa-Rukutana. The Petitioner had appointed Gariyo to oversee his election affairs in Rubare sub-county in Ntungamwo District. Gariyo says that he saw M.R Mwesigwa-Rukutana asking voters to board pickup No.UAA 005A and that he saw Mwesigwa-Rutukana give Shs.5000/= to everybody boarding the pickup as he was telling them to vote for the first Respondent. That Kabonero, who was escorted by 4 armed UPDF soldiers, chased away Yusufu from Rwabaramira Polling Station where Yusufu was guarding the interests of the Petitioner.

Now Bob Kabonera deponed to contradict Gariyo. He denied being an agent of the first respondent and claimed that Gariyo was telling falsehoods. But in paragraph 7 of his affidavit Kabonero admits being in Ntungamo District where he voted at 7.00 a.m. He deponed that after casting his vote that early, he spent the whole day driving around Ntungamo District in the company of Hon. Mwesigwa-Rukutana. Bob Kabonero does not tell us why he was driving around the whole district. And why he accompanied Hon. Mwesigwa-Rutukana who was apparently also driving round the whole district. Is it not reasonable to infer that he was on a mission? He does not tell us why he accompanied the M.P. who was apparently also driving around the same Ntungamo District. Mwesigwa himself denies giving gift. He only drove around his constituency. Why was the MP driving around his constituency on a Presidential election day? Was he driving voters to polling stations? Was he giving money? These and many more are questions the answers to which must be that Kabonero and the MP were driving around to see and urge voters to vote for the first Respondent. Hon. Mwesigwa-Rukutana did swear an affidavit in rebuttal. He has denied driving around with Kabonero and what he was doing. Mr. Moses Byaruhanga says that Mwesigwa-Rukutana was not an agent. That he is not on the list of agents for the first Respondent. I do not believe Mr. Byaruhanga - Be that as it may, imputations against Mwesigwa must be properly proved in order to be accepted. I have not found a sound reason why Gariyo should tell lies against this Member of Parliament and Kabonero unless these two acted as agents of the first Respondent as Gariyo says. On my part, I prefer the story of Gariyo as against that of Kabonero and Mwesigwa. No reason is given why Gariyo should tell lies and why he should implicate the MP and Kabonero in the serious matters of giving money and lift to voters.

Mugizi Frank also deponed about bribery or giving money and on multiple voting. Musinguzi Siriri swore an affidavit on behalf of the 1st Respondent to contradict Mugizi. In his affidavit, Mugizi deponed that as a polling agent of the Petitioner, at Rubanga Polling Station, he witnessed massive rigging by multiple voting and when he protested, Musinguzi Siriri and other agents or supporters of the first Respondent threatened to assault him and indeed chased him away from the Polling Station. He therefore went away but Ali Mutebi, the campaign agent for the first Respondent offered him shs.15000/= to lure him to go back to the station and sign the results declaration form. Now Musinguzi Siriri admits being at Rubanga Polling Station where he voted. In paragraph 5 of his affidavit, Musinguzi deponed that:

“———While lining up waiting— to vote, Kapere approached the presiding officer’s table, and thereafter Musinguzi Frank, who was Besigye’s agent, falsely referred to him as “Beteyo” who had already voted. Mr. Simon Twahirwa our LCI Chairman and I objected, as we knew the proper identity of Kapere”.

Musinguzi further deponed that Kapere then voted. Mugizi then left. But Mugizi says he was chased away. Musinguzi admits that Mugizi made a complaint about Kapere voting again. There is no plausible reason given why Mugizi should have protested about Kapere’s voting again. Neither Musinguzi Siriri nor anybody else gives any sound reason. I think the reasonable inference to be made is that Mugizi, as agent of the petitioner protested against wrongdoing. His going away was not voluntary. He was chased, I think. I believe him in preference to Musinguzi. I believe that Musinguzi attempted to bribe Mugizi. I believe that there was multiple voting as deponed by Mugizi. Still on bribing, Drobo Joseph, an agent of the Petitioner in Adumi Sub-county, Arua District, in his affidavit deponed that on 12/3/2001 Godfrey Asea together with Silvano Awiya, the L.C. III Chairman at polling station campaigned openly for the 1t Respondent. Drobo saw Asea give money to Inyasio Odipio at Lia Polling Station for bribing women so that they vote for the first Respondent. I have not seen rebuttal affidavit by either Godfrey Asea or Silivano Awiya or any other deponent.

The evidence of the three deponents is simple. There are other deponents from other district deponing that agents of the first Respondent engaged in giving out money to voters. Bribing was not an isolated incident in only one or two districts. I find as a fact that bribes in the form of money were given out. The next question is whether the first respondent can be associated with the giving of the money. This brings in the question of agency relationship between the givers of money or gifts allegedly on behalf of the first respondent on the one hand and the first Respondent as the principal on the other hand.

This is the convenient point to consider the question of agency. Is there evidence to support the proposition that persons who carried out bribing or who intimidated harassed and assaulted, abducted voters and or the petitioner’s agents, representatives and supporters did so as agents of the first Respondent. It has to be borne in mind that the agency relationship between a candidate and his representatives or agents in relation to people carrying out the canvassing, campaigns or other electioneering activities may sometimes be too subtle and they cover areas outside the normal law of agency relationship.

It appears to me that the case of Muwonge (Supra) cited by counsel for the first Respondent is against the first Respondent. If I may quote Newbold, at page 18, where he stated the law on liability of a master for the acts of a servant. The learned President stated:

“I think it dangerous to lay down any general test as to the circumstances in which it can be said that a person is acting within the course of his employment. Each case depends on its own facts— —as I under the law—even if the servant is acting deliberately, wantonly, negligently or criminally, even if he is acting for his own benefit, nevertheless if what he did was merely a manner of carrying out what he was employed to carry out then his acts are acts for which his master is liable.”

The Court of Appeal for East Africa held that the Uganda Government was liable for the acts of one of the policemen who shot and killed Matovu, the son of the appellant, at a time when a crowd of people were riotous and were throwing stones at the police who had been sent to the scene to restore order. Indeed the deceased appears not to have been involved in the riot at all. The policeman who killed Matovu acted irresponsibly but the court treated him as an agent of the Government of Uganda which took responsibility for his conduct.

In Vol. 15, of Halsubury, (4th Ed.) candidate’s liability is discussed in paragraph 61 6. It is there stated that a candidate’s liability to have his election avoided under the doctrines of election agency is distinct from, and wider than, his liability under the criminal or civil law of agency. The principles and rules with regard to agency are observed in the case of a petition questioning parliamentary election: A candidate’s liability to penalties for corrupt practices committed by an agent is the same as that of a principal under the ordinary criminal law relating to agency. The law on this subject is that the candidate is liable only on proof that the agent acted on candidate’s express or implied authority or that the candidate ratified the act after it was done or appointed the agent to do all acts legal or illegal which he might think proper to support candidate’s interest:

see Cooper v Slade (1858) 27 LJ0B449 at 464 see Norwich Case, Tillet v Stracey (1869) O’M & H 8 at 10.

Once the agency is established, a candidate is liable to have his election avoided for corrupt or illegal practices committed by his agents even though the act was not authorised by the candidate or was expressly forbidden, The reason for this stringent law is that candidates put forward agents to act for them; and if it were permitted that these agents should play foul, and that the candidate should have all the benefit of their foul play without being responsible for it in the way of losing his seat, great mischief would arise: Staley Bridge case, Ogden vs. Sidebottom (1869) / O’M & H.97. In this respect the relationship between a candidate and the agent resembles that of employer and employee as in Muwonge case.

Under S. 58(6) (b) (c) an election of the President can be annulled where it is proved to the satisfaction of the court that illegal practice or any other offence under the PEA was committed in connection with the election by the candidate personally or with his or her knowledge and consent or approval. Does this differ from the English law referred to above? Not manual.
Clearly a candidate will be held liable where he or she personally commits an illegal practice or any other offence. He is also liable where his or her agent or representative commits the illegal practice or other offence. A look at section 58(6)(c) appears to suggest that for a candidate to be held liable for the misconduct of his agent, the candidate must know and consent to the wrongful conduct or he must know in advance and approve it. However, questions may arise, like in the present petition, in relation to agents appointed by Chairman, Vice Chairman or Secretary of the candidates National Task Force. Does paragraph (c) mean that a candidate would not be held liable unless he previously knew and consented to the illegality to be committed or must he expressly approve it subsequently? Does the paragraph mean that a candidate should have prior knowledge and or give his consent or approval in advance of the commission of an illegal practice or commission of any other offence? Is it possible that a candidate can have agents without written authority? A political campaign must of necessity involve very many people, as agents. Presidential campaign is bound to involve even very many people. It is just not practical for a Presidential candidate to meet every one of his field agents. Moreover it does not sound realistic to expect that a Presidential candidate would openly consent to or approve to the commission of an illegality since he would know that such an illegality can lead to losing the Presidency should a petition be lodged in court.

I do not think that prior knowledge and express consent or express permission or approval of a candidate is a necessary prerequisite to the commission of an illegal practice or any other offences by a representative or an agent before a candidate’s election is rendered liable to annulment.

In the nature of things, no candidate would openly and in public give consent or approval to his agents to commit illegal practices or other electoral offences. I cannot see any candidate doing this and I do not think that the expectation of Parliament in enacting the law was that a candidate would expressly authorise his agents to break the law.

I think that once there is evidence of agency, gathered from the surrounding facts, the candidate should be held liable for the wrongful conduct of his agent representative. How then is agency established between a presidential candidate and another person acting on behalf of that candidate?

We have to refer to the PEA. Under S.2 (1) an agent and representative are defined. According to the Act, “Agent” by reference to a candidate includes a representative and polling agent of a candidate.” Clearly this definition is unsatisfactory.

I understand that definition of an agent imply that agency relationship should be inferred from the circumstances of each case.

We know that polling agents are appointed only for the purpose of polling under S.32 (I) so as to safeguard the interests of a candidate with regard to the polling process. The Act makes references to representation of the candidate by agents: See S.19, S.20, S.22, and 23. These are general electioneering agents. I would state that a candidate’s campaign agent or representative includes a person who canvasses for support of the candidate for presidential election. Such an agent need not be appointed in writing.

Mr. Moses Byaruhanga deponed, in para 13 of his affidavit sworn on 5th April, 2001 in support of the first Respondent’s answer to the petition, that:-

“Mr. Mwesigwa Rukutana is neither a campaign agent for the 1st Respondent nor a polling agent’:

This averment is preceded by a statement in para 5 of the same affidavit that he (Byaruhanga) participated in the preparation of documents of appointment of campaign agents by the first Respondent. He thereby implies that he would know all agents of the first respondent. I have not seen a provision in the PEA, [excepting S.19 (5)] requiring the campaign representatives or agents to be appointed in writing in order to validate or confirm a person as a campaign representative or agent of a presidential candidate. I think that written authority is only necessary in the appointment of a polling agent and of co-ordinators of consultative meetings for purposes of planning campaigns.

Attached to Moses Byaruhanga’s affidavit is a sample letter by which the first respondent appointed his campaign agents and that sample letter purports to be made under S.19 (3) and (5) of the Act.

Subs. (3) does not require agents to be appointed in writing, it is only sub. (5) Which does and only in respect of coordinating other agents as already mentioned. The subsection reads:-

“(5) A candidate or a candidate’s agent authorised in writing by the candidate to do so, may hold a consultative meeting with the candidate’s campaign agents for the purposes of planning and organising the candidate’s election campaign”

In contrast, subsection (3) reads as follows: -

“For the avoidance of doubt, a candidate’s agent may carry on campaign meetings on behalf of the candidate and otherwise carry on any campaign which the candidate is allowed to do under this Act’

I have said that ordinary campaign agents or representatives need not be appointed in writing under the PEA. Let it be remembered that the Petitioner asked for a list of the agents of the 1st Respondent. The Learned lead counsel for the first Respondent resisted this saying the Petitioner must prove his case. The Petitioner has produced witnesses who say on oath that certain persons such as the Hon. Mwesigwa-Rukutana, Hon. Capt. Charles Byaruhanga, Captain Ndahura or Hon. Captain Mike Mukula, were representatives or campaign agents of the first Respondent. In these circumstances and as I have indicated already that I have no reason why Gariyo W. could have told lies about Mwesigwa Rukutana, I find that he (Mwesigwa Rukutana) was a campaign agent of the first Respondent, Indeed the same applies to Hon. Captain Mike Mukula in Soroti, (See evidence of Ochen) the Hon. Captain Charles Byaruhanga in Kamwenge, (See the evidence of Kyimpaire and Muhwezi). There is evidence of such agents in other districts.

The candidate, according to the English law on election agents, is not only liable for the acts of the agents whom he has himself appointed or authorised, but also for the acts of agents employed by his election agent or by any other agent having authority to employ others. Despite the wording of S.58 (6) (c) of the PEA, I think the misconduct of agents appointed by chairman or vice-chairman or secretary of the movement National Task Force for the election of a candidate. I would render a candidate election annulled. I have looked at the letters appointing their agents by the petitioner and the first Respondent. These letters are produced and signed in mass. It is debatable whether it would be practical for each of the candidates to call to his office, all the agents and personally insert in the letter of appointment the name of the agents after interviewing him/her. People far afield must have had letters given to them by other agents. The Petitioner’s agents have suggested they received letters in this way.

It looks to me that because of the drafting of the provisions of the Movement Act, 1997, I venture to suggest that many officials of the movement are agents of the official movement Presidential candidate. There is evidence that the first respondent was officially urged, nay nominated, by the National Movement Conference to contest the presidential election.

It appears to me that if the National Conference urged the first Respondent, who happens to be its chairman, to contest the Presidential election, the structure of the movement under the provisions of the Movement Act 1997, makes all officials of the movement including, Members of Parliament, agents of the first Respondent: See particularly sections 4, and 5. Therefore I think that wrongful conduct of such agents bind the candidate.

Again on the authorities reviewed, I am unable to say that members of the PPU and UPDF who campaigned for the first Respondent are not agents of the first Respondent for whose acts he is liable. I find it difficult to believe that the acts of intimidation and harassment meted out to agents, representatives and the supporters of the Petitioner in the districts of Ntungamo, Kabale, Rukungiri, Kanungu, Kamwenge and others by PPU could not for one moment or another reach the ear of the 1st Respondent and that he would not react and correct the situation. To hold otherwise would amount to a travesty of election justice.

For the foregoing reasons my answer to both legs of the fourth issue is in the affirmative in that the 1St respondent committed an illegal practice when he said that the petitioner is a victim of AIDS. Second he committed offences under the Act by (a) giving motorcycle to Kabuga, (b) ordering increase of salaries, stopping cost sharing and causing the signing of contracts during campaign period.

In our decision of 21/4/2001, we ordered that each party should bear its own costs and promised to give our reasons later. I now give my reasons to justify the order of costs.

Counsel for the respondents relied on the proviso to S.27 (1) of the Civil Procedure Act and asked that the respondents be awarded costs. Dr. Byamugisha indeed asked that we should certify costs for 13 advocates. He argued that if we do not award costs to the respondents, we would be encouraging future losers to file frivolous petitions. Dr. Byamugisha was unable to provide authority for the suggestion that we can award costs for 13 advocates in a petition such as this one.

Mr. Deo Byamugisha, Ag. Director for Civil Litigation, on behalf of 2nd Respondent, argued that awarding costs would discourage losing candidates from petitioning. He asked for costs with a certificate for two counsels.

Mr. Balikuddembe, counsel for the petitioner, argued that we should order for each party to bear its own costs contending that this litigation is important, historic and unprecedented. That the Petitioner challenged the election results in the interest of Ugandans and in the interest of the development of the electoral law. In his view the first Respondent was partly to blame and that is why the Petitioner instituted this petition. I do not seem to remember counsel elaborating on this last point.

By section 27(1) the Civil Procedure Act, this Court has power to determine how costs are to be paid. The proviso to the subsection states that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge for good cause orders otherwise.

Neither counsel for the Petitioner nor for the two Respondents alluded to sub- rule (1) of Rule 23 of the Presidential Elections (Election Petitions) Rules, 2001 (S.1.2001 No.13). It reads as follows:-

“All costs of and incidental to the presentation of the petition and the proceedings consequent on the petition shall be defrayed by the parties to the petition in such manner and in such proportions as the Court may determine.”

It appears to me that in this petition the order as to costs must be made under authority of this sub-rule. The sub-rule gives this Court wide discretion in regard to the orders as to costs. Incidentally the sub-rule does not suggest, nor does the proviso to S.27 (1) suggest, that costs should be awarded against any party by way of punishment. Punishment is what the submissions of the Respondents’ counsel suggested.

I agree with Mr. Balikuddembe that this election petition is important in its own right. I go further and say that cases involving election petitions are important in themselves since they enable the Courts which are independent institutions in this country to make valuable decisions on the operations of the democratic principles in this country. I do not accept the views of Dr. J. Byamugisha and Mr. Deo Byamugisha that an award of costs should be made so as to discourage losing candidates from instituting petitions. Orders of award of costs must be made judicially.

I think that orders for award of costs should be made depending on the facts of each case. This is implicit in Rule 23(1) (supra). In election petitions, costs must not be awarded in such a manner as to inhibit future petitioners, who may have genuine complaints that should be investigated by Courts, from taking such complaints to Courts. It is of the essence of a working democracy that grievances arising from elections should be investigated by independent Courts. I derive support for this view from the Indian case of Charan Lal Sahu & Ors vs. Singh (1985) LRC (Const.) 31. In the election for the office of President of India, held on 12th July, 1982, 36 prospective candidates filed nomination papers. The petitioners included Charan Lal Sahu and Nem Chandra Jam (two of the petitioners). The Returning officer accepted two nominations, excluding these two petitioners, and on 15th July, 1982, he declared that the Respondent had been elected. A number of petitions were filed asking the Supreme Court of India to annul the election on various grounds. Under a certain Act of Parliament of India, an election petition may be presented by twenty electors or “by any candidate at such election” and S.13 (a) thereof, provided that “candidate” means a person” who has been or claims to have been nominated as a candidate”.

A preliminary objection was taken that two of the petitioners, i.e., Charan Lal Sahu and Nem Chandra Jam, had not been candidates at the election and therefore lacked locus standi to file their petitions. The petitioners submitted that, even if they were not duly nominated, they could claim to have been duly nominated and therefore to be eligible to present their petitions.

The Supreme Court upheld the preliminary objection and struck out the two petitions because they lacked a cause of action. The Court further observed that (at page 38)

“it is regrettable that election petitions challenging the election of the high office of the President of India should be filed in a fashion as cavalier as the one that characterises these two petitions. The petitions have an extempore appearance and not even a second look, leave alone a second thought, appears to have been given to the manner of drafting these petitions or to the contentions raised therein. In order to discourage the filing of such petitions, we would have been justified in passing a heavy order of costs against the two petitioners. But that is likely to create a needless misconception that this Court, which has been constituted by the Act as the exclusive forum for deciding election petitions whereby a Presidential or Vice-Presidential election is challenged, is loathe to entertain such petitions. It is of the essence of the function,),g of democracy that elections to public offices must be open to the scrutiny of an independent tribunal A heavy order of Costs in these two petitions, howsoever justified on their own facts, should not result in nipping in the bud a well-founded claim on a future occasion.”

The two petitions before the Indian Supreme Court could be described as frivolous and vexatious. And yet the Supreme Court found no need to order costs against the two petitioners.

In my view the present petition is nowhere nearly the two. The present petition was well founded. Adopting the reasoning of the India Supreme Court, I think that ordering the petitioner in these proceedings to pay costs would amount to nipping in the bud future well-founded petitions. For these reasons I agreed that each party should bear its own costs.

There have been expressions of concern why we did not give our reasons on 21/4/2001. All sorts of opinions have been put forward. My own hope is that those who have shown concern will be objective enough to understand the reasons I have given. Further I hope that those indulging in disparaging remarks about a court working on decision of a case will reflect before condemning court. Courts are expected to give considered opinions not extempore messages.

For the foregoing reasons I would uphold the prayers in the petition in that I would declare that the Respondent was not validly elected. I would annul the election. I would order that each party bear its own costs.

For these reasons I did not accept that the petition should be dismissed.

J. W. N. TSEKOOKO.

JUSTICE OF THE SUPREME COURT.


REASONS FOR THE JUDGMENT OF THE COURT BY KAROKORA. JSC