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

Effect of non-compliance as a whole:

After evaluating that evidence and taking into account that the burden of proof was on the Petitioner, I was not satisfied that the election result was not a reflection of the majority of the voters. The first consideration I took into account was voter turn-up. In the normal course of things, intimidation of the electorate would be reflected by low voter turn-up. Indeed the Petitioner pleaded that many voters abstained from voting due to intimidation. In the two most affected districts, however, intimidation does not appear to have had that effect. The voter turn-up in Rukungiri was 82.5% and in Kamwenge it was 92.1% both being well over the average national voter turn-up which was 70.3% of the registered voters. I considered the possibility, but was not persuaded, that those high figures were a consequence of stuffing ballot boxes and other forms of irregular voting rather than physical voter turn-up. The numbers of polling stations, in respect of which there was evidence of irregular voting, were not so excessive as to lead to such an inference.

Secondly I took into account the fact that the result under consideration was the result of the whole national constituency, not the result in the areas affected by the irregularities. In the result of the national constituency, the Petitioner obtained 2,055,795 votes and the 1st Respondent obtained 5,123,360 votes. The other four candidates obtained a total of 210,536 votes among them. The 1st Respondent worn with an overall majority of 2,857,023 votes. Even if the Court discounted all the votes obtained by the 1st Respondent in the two districts of Rukungiri and Kamwenge, and in the polling stations where irregular voting was proved, (an extreme scenario contemplated only for illustration purposes) the 1st Respondent would still retain a huge overall majority. In Rukungiri and Kamwenge the 1st Respondent obtained a total of 317,195 votes. Although the Court was not availed actual votes he obtained in the 18 polling stations outside the two districts, where irregular voting was proved to my satisfaction, they could not have exceeded 1 8000 votes, since the total number of votes cast in any one polling station was under 1000. Clearly even in that imaginary scenario he would retain a majority of over 2.5 million votes. In the circumstances I could not hold that there was evidence on which the Court could be satisfied that non-compliance with provisions and principles laid down in the Act had affected the result in a substantial manner. Accordingly I answered issue No.3 in the negative.

Before leaving this issue, I am constrained to observe that the effort exhibited in proving the irregularities that constituted the non-compliance was not matched by that put in proving the effect of the irregularities on the result of the election. This may well have been a consequence of the preferred position of counsel for the Petitioner, that because the non-compliance “went to the root of the Constitution” it was not necessary to prove expressly that it affected the result. In my considered view, too much reliance was placed on the “say so” of eye witnesses, and inaccurate forms, when verification through cross-checking of scrutiny could or might have either strengthened such evidence of shown that it was not worth pursuing.

In his affidavit in reply to the 2nd Respondent, the Petitioner deponed in paragraph 40 thus:

“40. That I know if the ballot boxes in the said districts are opened the serial numbers of the ballot papers issued to the polling stations would not match the ballot papers in the ballot boxes as they contain stuffed ballot papers.”

He reiterated this in paragraph 44 in respect of one particular form. Thus he hinted at the need for examination of ballot papers but did not apply for it. When the Petitioner was facilitated to access ballot boxes, it does not appear that the opportunity was utilised to verify the eye witness accounts of ballot box stuffing. It appears no examination of serial numbers of ballot papers in the opened boxes was done. Twinamasiko Jackson who, on behalf of the Petitioner, went to Rukungiri on that errand deponed that ballot boxes for seven polling stations were opened for him. None of the polling stations he named, however, was mentioned by the eye witnesses who saw the ballot stuffing. Indeed he did not give the impression that he went on a search for stuffed ballot papers. The substance of his affidavit was:

“6. That the results of four polling stations were not tallying with the register of voters roll (sic) and this was especially seen in Katoojo I”

He did not elaborate. He only annexed copies of the voters’ rolls, declaration of results forms, and tally sheets in respect of four polling stations, except the first page of the voters’ roll and the declaration of results form for Katoojo I polling station. Without any elaboration, I was not able to detect in what way the results did not tally with the register of voters.

Ndomugenyi Robert went to Bushenyi and Mbarara Districts on a similar errand. At Bushenyi he had ballot boxes of three polling stations opened. He took photocopies of declaration of results forms and voters’ rolls from the ballot boxes. He annexed them to his affidavit. One of the three polling stations was Ishaka Adventist College, in respect of which the Petitioner had asserted that the result form showed ballot stuffing. He did not make any comment on what he found in that box or in the other two. At Mbarara he also had ballot boxes for four polling stations opened for him. He obtained photocopies of similar documents, and in addition, tally sheets reflecting particulars for those three polling stations. He also annexed those photocopies to his affidavit. He commented on only one of the four polling stations thus:

“That at Mirongo the number of voters on voters register who voted were 687 and yet the tally sheet certified by the electoral Commission indicates that Respondent alone got 781 votes more than the number of people who voted.”

I assume he determined the number of those who voted by counting from the roll, the registered names which were ticked. That however, is not full-proof. The difference of 94 votes could be a result of illegal ballot stuffing, just as it could result from omission to tick names of 94 persons who voted. The more reliable way to ascertain the cause of the discrepancy, would have been to examine whether or not the serial numbers of the ballot papers in that ballot box matched the serial numbers of the ballot papers officially issued to the polling station as had been suggested by the Petitioner in his affidavit. The opportunity was lost.

ISSUE NO. 4:

The fourth framed issue was:

“Whether an illegal practice or any other offence under the said Act was committed in connection with the said election, by the 1st Respondent personally or with his knowledge and consent or approval”

This arose from the pleading in the petition, that the 1st Respondent had committed several illegal practices and other offences under the Act, in connection with the election, which pleadings the 1st Respondent denied. I answered this issue also in the negative. Before I elaborate on my reasons, let me dispose of three general propositions made in submissions of learned counsel on both sides. The first made by Mr. Walubiri for the Petitioner, relates to liability of the 1st Respondent for illegal practices or offences committed by his agents for his benefit. Learned counsel contended that a candidate is liable for an illegal practice or offence committed by his agent in the course of promoting the candidate’s election. He relied on English precedents to submit that even where an agent is expressly prohibited to do an act, but does it anyway, in the course of his agency, and within the scope of his authority, the candidate is bound because knowledge is inferred from the appointment and consent is implied. He referred the Court, inter alia, to The Digest: Annotated British Commonwealth and European Cases (1982, London, Butterworth’s & Co.) Vol. 20 at p.72 para 646. With due respect I was not persuaded that the annoted decisions in that work were applying law similar to the statutory provision in s.58(6) (C) of the Act. For example, in the particular paragraph learned counsel cited Lush J., is quoted as saying in HARWICH CASE. TOMLINE vs. TYLER (1880) 44 LT 187:

“……….As regards the seat, the candidate is responsible for all the misdeeds of his agent committed within the scope of his authority, although they were done against his express directions, and even in defiance of them The authority may be actual or it may be implied from circumstances If a person were appointed or accepted as agent for canvassing generally the candidate would lose his seat.”

In the same work at p.71, paragraph 644 is a quotation from Willes J. in BLACKBURN CASE, POTTER & FIELDEN vs. HORNBY FIELDEN (1869) 20 L.T, 829, saying:

“……….no matter how clearly his (candidate’s) character may be from any imputation of corrupt practice in the matter (election), yet if an authorised agent of his, a person who has been set in motion by him to conduct the election, or canvass voters on his behalf, is in the course of this agency guilty of corrupt practices, an election obtained under such circumstances cannot be maintained.”

To hold that those propositions fit within the ambit of the provision in S.58 (6) (c) of the Act, would, in my view, be tantamount to re-writing the provision. Under that section, it is clear that an illegal practice or other offence which was not committed by the candidate can be sustained as a ground for annulment of his election, only if it is proved to the satisfaction of the Court that it was committed with the candidate’s “knowledge and consent,” or with his or her “knowledge and approval.” I do not see how the Court can be so satisfied where the candidate expressly directed the illegal practice not to be done, thereby refusing to consent thereto. To my understanding the legislature chose to use those words in order to limit the application of the sanction to only such an illegal practice or offence as the candidate assumed personal responsibility for, either through consent where he or she had prior knowledge, or through approval upon subsequent knowledge, of its being committed. It is noteworthy that the operation of the provision is not tagged to the relationship between the candidate and the perpetrator of the offence, but to the candidate’s knowledge of, and consent to, or approval of, the commission of the offence. My interpretation is that the provision is not a restatement of the common law doctrine of vicarious liability or the principle of agency.

The second proposition was by Dr. Byamugisha the first lead counsel for the 1st Respondent, and can be stated briefly. He contended that the 1st Respondent, as a candidate at the election, should not be held responsible for acts of the Government or of government agents, for purposes of S.58 (6) (C) of the Act. With due respect to learned counsel, I do not find that to be tenable. The Constitution permits an incumbent President to run for a second term through contesting an election while he is still holding office. It does not thereby split him into two distinct persons. A suggestion that an act done by Government or its agents with the 1st Respondent’s knowledge and consent or approval as Head of that Government, was done without his knowledge and consent or approval as a candidate, cannot be sustained as a matter of law or a matter of fact. The incumbent President is allowed by law to retain and use his facilities of office while contesting the elections as a candidate. He must also, as such candidate, take full responsibility, for what he does and what is done with his knowledge and consent or approval by virtue of that office, in connection with the election.

The third proposition was Dr. Byamugisha’s contention that proof that an elected candidate committed an illegal practice or other offence, under the Act, was not per se sufficient ground to annul a Presidential election, unless it is shown that the illegal practice or offence rendered the election unfree and/or unfair. His premise for that contention was that an election which is free and fair, in accordance with Art. 1 (4) of the Constitution, is a valid election. He argued that the only Constitutional requirement for validity of an election was that it be free and fair. According to him any other condition imposed for validity of an election, would be inconsistent with Art.1 (4), and to that extent would be void by virtue of Art.2.of the Constitution. I was not persuaded by that argument either. Art. 1 (4) of the Constitution cannot, by any stretch of interpretation, be construed as laying down “specifications” for a valid election. The provision is a statement on how the people shall express their will and consent. It reads:

“(4) The people shall express their will and consent on who shall govern them and how they should be governed through regular, free and fair elections of their representatives or through referenda.”

The framers of the Constitution did not expressly or by implication mean by that provision, that once the will and consent of the people is expressed in that manner, the result would become inviolable or unimpeachable. On the contrary in Art.104 (9) of the Constitution, Parliament was, without any restrictions or conditions, mandated to make laws, inter al/a, for grounds of annulment of a Presidential election. Parliament, acting within that mandate made the law in S.58(6) and clearly provided in paragraph (c) that a successful candidate who committed an illegal practice or an offence in connection with the election, would, without more, be barred from taking office. This is where Parliament, if I may use the expression, put value above all other considerations. The effect of the legislation in paragraphs (b) and (C) of S.58 (6) of the Act, is to prohibit a candidate who may have been chosen by the majority, from taking office on grounds of personal unfitness. Parliament in those paragraphs provided that a person who was not qualified or was disqualified, and a person who committed an illegal practice or other offence under the Act, ought not to take the office of President, notwithstanding that the election may otherwise have been conducted in compliance with provisions and principles laid down under the Act; and irrespective of whether or not the disqualification or the illegal practice affected the result of the election.