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

It must be noted that under Sections 58(6)(a)(c) of the Presidential Elections Act, the burden of proof squarely lies on the petitioner to prove what he asserts. If he wants the election of the President to be annulled he must prove to the satisfaction of the court that there was non-compliance with the relevant provisions of the Act.

I think that a person seeking to set aside election result under section 58(6) of the Presidential Elections Act has heavier burden of proof than in ordinary civil suits, because he is asking court to annul l respondent’s election results. In a Tanzanian case of Mbowe vs. Eliofoo (1967) EA 240 Sir George CJ., held that the reason why the Petitioner in election petition should shoulder the burden was because he was asking the court to set aside the respondent’s election. Mr. Justice Kibuuka Musoke J, was of the same view in Yorokamu Katwiremu Bateqana v. Ellal Mushemeza & Anor Election Petition No. 1 of 1996. Ntabgoba PJ., in Odetta v Omeda Election Petition No. 001 of 1996 at Soroti Civil Registry emphasized that the standard of proof in election petition was to prove to the satisfaction of the court. In Ayena Odongo v. Ben Wacha Election Petition No. 2 of 1996 at Lira (G.M. Okello, J) as he then was, held that the burden of proof is on him (petitioner) and the standard is beyond reasonable doubt. Ouma J., as he then was seemed to have been of the same view in Micheal A. Ogoola vs. Akil Othieno Emmanuel Election Petition No. 2 of 1996 at Tororo. In Byakutaga Rugadva Israeri & Returning Officer Election Petition No. CM/MHI/198 1 Opu J as he then was, held that the standard of proof in election petition was on the Petitioner and that the standard of proof must be such that one had no reasonable doubt that one or more of the grounds for challenging the election had been proved. The Uganda Court of Appeal held in Margaret Zziwa v. Catherine Naava Nabagesera civil Appeal No. 39 of 1997 that the standard of proof in election .

petition must be proved beyond reasonable doubt, because the court cannot be said to be satisfied if there was a reasonable doubt.

We were persuaded by Dr. Khaminwa, one of the Counsel for 1^st respondent that the standard of proof to prove these charges is very, very high just near beyond reasonable doubt. Our Court of Appeal and some decision of the High Court of Uganda have held the standard of proof in Election petition is beyond reasonable doubt.

With respect, I do not know why we are trying to supply words to what the Act states. The Act says:

“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”

Are we adding proof “beyond reasonable doubt” because our Members of Parliament did not know the phrase when they were debating the bill?

In my view, I would not deviate from what Parliament stated in the Act, especially when there is no ambiguity in Section 58(6) of the Presidential Elections Act. What is required of the petitioner who is seeking annulment of the election of the President is to adduce evidence and satisfy the court that the allegations he/she is making have been proved to the satisfaction of the court.

So, having disposed of that point, I think that I must now deal with the issue of whether during the 2001 election of the President, there was non-compliance with the provisions of the Presidential Elections Act, 2000.

The Petitioner presented very many complaints against both the 1^st and 2^nd respondents and their agents and/or servants, for acts and omissions which he contends amounted to non-compliance with the provisions of the Presidential Elections Act and the Electoral Commission Act 1 997 as well as to illegal practice and offence under the Act. These have already been dealt with before.

All the evidence at the trial of the petition was required to be adduced by affidavits. Accordingly, parties filed many affidavits to support their respective cases. The Petitioner filed 174 affidavits both in support of the petition and in reply to the affidavits of the 1^st and 2^nd respondents, in turn filed 1 33 and 88 affidavits respectively. In addition to affidavit evidence, leave was granted to call Dr. Diana Atwire who had sworn an affidavit for the 1st respondent to be cross-examined on her affidavit. I must state that I relied on a few affidavits which I considered to be relevant for the purpose of determining the petition.

Counsel for all parties read the affidavits deponed to in support of their respective cases while addressing the court.

1. 
   The first complaint was the 2^nd respondent failed to publish a full list of all the polling stations in each constituency 14 days before nomination day of 8^th and 9^th January 2001.
   

The evidence to prove that the 2^nd respondent failed to comply with the above provision of the Act is in the affidavit of Mukasa David Balonge paragraph 28 where he stated that on 11th March 2001 the 2 respondent issued a list of polling stations. On this list 11 76 were new polling stations while 303 were missing, though originally appeared on the Gazette. Earlier on, the 2^nd respondent had published a list of polling stations on 19^th February 2001 which was well after the nomination.

The 2^nd respondent said nothing in rebuttal.

Clearly, this means that the list of polling stations issued on 11^th March 2001 and on 9^th February 2001 were issued after the nomination day, which was a non-compliance with section 28 of the Act.
1(a) The other complaint was that the 2^nd respondent created new polling station on the eve of polling.
The affidavits sworn in support of the complaint were of the effect that there were 1176 new polling stations created on the eve of polling day, thus, contravening Section 28 of the Presidential Elections Act where: Mr. Mukasa David Bulonge averred in his affidavit paragraph 2, 3, 28 and 29 as follows:

(2)That I was appointed to work on the National Task Force of the petitioner as Head of Election monitoring desk and electoral process from the time of nomination throughout until polling day and declaration of results.

(3) That in the course attended several consultative meeting with the Electoral Commission and always in touch with the commission officials, representing the interests of the petitioner.

(28) That on 11th March 2001, the 2” respondent issued a list of polling stations On this list 1176 were new polling stations while 303 were missing, though originally appeared on the Gazette.

(29) That while, issuing the list of the polling stations, no corresponding voter’s rolls for the polling stations were issued by the 2” respondent. The affidavits of Edson Bunge and E. Bagenda Bwambale from Kasese; James Oluka from Soroti and Vincent Ebulu from Gulu corroborated the existance of new polling stations which came into existence on 11/3/2001.”

The 2^nd respondent averred that no new polling stations were created but rather that the existing stations were split for purpose of easing the voting process due to the big number of voters in the those stations. I must state that the polling stations on the eve of election prejudiced the petitioner because the petitioner could not appoint polling agents to safeguard his interests. Therefore, this was a non-compliance with Section 28 of the Presidential Elections Act, 2000.

(2) The second complaint was failure by the 2 respondent to compile a purported final voters’ Register on 1 0/3/2001 and failing when requested to supply copies of the same to the petitioner for his agents use although the petitioner was ready and willing to pay for the same contrary to Section 32(5) of the Presidential Elections Act.

In answer to the complaint, the 2u,d respondent stated that the petitioners’ request was received late on 11/3/2002 and there was no sufficient time to print the Register for the petitioner on the eve of polling day. In effect, the 2nd respondent is conceding having failed to comply with the provisions of the Act. In the premises therefore this was a non-compliance with the provisions of the Act, since the 2nd respondent admitted that he never supplied voters Rolls.

3. There was complaint that in some polling stations, polling commenced before 7:00 am. The 2^nd respondent stated that neither itself not its agents or servants allowed people to vote before or after the official polling time.

Affidavit of Moses Babikinamu of Lwebitakuli village Lwebitakuli cub-county Mawongole Sembabule averred: