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

(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 result 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”

[The underlining is mine]

Sub — section 6(b) is not relevant to this case.

Mr. Bitangaro and Dr. John Khaminwa, both counsel for the 1st Respondent made similar submissions on this matter. Dr. Khaminwa submitted that the burden to prove that the election in this case should be nullified is on the petitioner and the burden does not shift. The standard to prove non compliance with the Act to the satisfaction of the court is very high. It is far above the balance of probability. It is near the standard of proof beyond reasonable doubt. For this submission, learned counsel relied on sections 100, 101, 102 and 103 of the Evidence Act and on many decided cases, including: Bater v Bater [1950] 2 ALL E.R. 458, Mbowe vs Eliufoo [1967] E.A 24O, Guru vs. Sharpe [1974] 1 QB 808 Margaret Zziwa vs C. Nava Nabagesera Civil Appeal No. 39/97 CAU (unreported) Odetta Henry John vs Omeda O’max Election Petition No. 1/96 (HCU) (unreported). Dr. Khaminwa urged us to follow Mbowe (supra) which, according to him, had been followed in many election petition cases in Uganda. For instance, in: Y. K. Bategana Vs Musherueza and others Election Petition No. 1/96 (HCU) (unreported).

Mr. P. Kabatsi, the learned Solicitor General, associated himself with the submissions of the 1st Respondent’s learned counsel in this regard.

In reply, Mr. Balikuddembe submitted that the cases on burden and standard of proof on which the Respondents’ counsel have relied are only persuasive and not binding on this court, which is correct, in my view. In any case they make it clear that an election petition is not a criminal trial learned Counsel contended. It is, therefore, not correct to say that the standard of proof is that beyond reasonable doubt or that it is very high. Learned counsel submitted that the expression “if proved to the satisfaction of the Court” appearing in s.58 (6) of the Act imposes a standard of proof that is well below that which is required for conviction in a criminal trial. The standard of proof required under s.58 (6) is just above mere balance of probabilities. It is akin to the standard of proof for fraud in civil cases.

As I see it, Mbow’se case (supra) appears to have acted as an anchor for decisions in election petition cases in this Country during the last several years. It is the one case courts have invariably “followed” with regard to the meaning of the expression “if proved to the satisfaction of the court”, which is a requirement in our electoral laws for setting aside the result of an election. The often quoted view of Georges, CJ. on the subject in that case runs like this:

“There has been much argument as to the meaning of the term “proved to the satisfaction of the court.” In my view, it is clear that the burden of proof must lie on the petitioner rather than on the respondent because it is he who wants this election declared void. And the standard of proof is one which involves proof “to the satisfaction of the court.” In my view these words in fact mean the same as satisfying the court. There have been some authorities on this matter and in particular there is the case of: Bater v Bater [1950] 2 ALL E.R. 458 That case dealt not with election petitions, but with divorce, but the statutory provisions are similar. i.e. the Court had to be satisfied that a matrimonial offence had been proved, in this case, in my view, that we have to be satisfied that one or more of the grounds set in s.99(2)(a) has been established. There DENNING, L.J, in his judgment took the view that one cannot be satisfied where one is in doubt. Where a reasonable doubt exists then it is impossible to say that one is satisfied, and with that view I quite respectfully agree and say that the standard of proof in this case must be that one has no reasonable doubt that one or more of the grounds set out in s.99 have been established.”

The view of Denning L.J. (as he then was) in Bater vs Bater (supra), to which Georges — CJ referred with approval in Mbowe’s case (supra) was expressed in the following terms at page 459:

“The difference of opinion which has been evoked about the standard of proof in these cases may well turn out to be a mere matter of words than anything else. It is true that by our law there is a higher standard of proof in criminal cases than in civil cases but this is subject to qualification that there is no absolute standard in either case.

In Criminal cases the charge must be proved beyond reasonable doubt, but there may be degrees of proof within that standard. Many great judges have said that in proportion as the crime is enormous, so ought the proof to be clear. So also in Civil cases. The case may be proved by a preponderance of probability but there may be degrees of probability of that standard. The degree depends cm the subject matter. A civil court, when considering a charge of fraud, will naturally require a higher degree of probability than that which it would require if considering whether negligence was established. It does not adopt so high a degree as a criminal court, even when it is considering a charge of a criminal nature, but still it does not require a degree of probability which is commensurate with occasion, likewise a divorce court should require a degree of probability which is proportionate to the subject matter. I do not think the matter can be better put than SIR WILLIAM SCOTT put it in: Loveden vs Loveden (1810) 161 ER 648

“The only general rule that can be laid down upon the subject is that the circumstances must be such as would lead the guarded discretion of a reasonable and just man to conclude ……”