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

Museveni drew the wrath of anti AIDS activists when he was quoted in the Time Magazine of the week ending March 12 2001, as having said that “Besigye is suffering from AIDS.”

In my considered opinion when the 1st Respondent said that State House is not a place for invalids; that a President should be someone fully in control of his faculties, both mental and physical; and that there was no reason to wait for someone to get into office and get sick, that was part and parcel of the statement he had made earlier that the Petitioner was suffering from AIDS.

Dr. Byamugisha said that what the 1st Respondent said at the Press Conference on 11-03-2001 was a retort to an accusation that the 1st Respondent had been in office for too long. I am afraid, with respect, that I do not see the connection. Did it mean that the 1st Respondent had been in office for a long time (about 15 years) because he was not sick like the Petitioner, as alleged? Dr. Byamugisha should have elaborated what he meant. He did not.

Mr. Balikuddembe on the other hand, submitted that what the 1st Respondent said at the Press Conference of 11-03-2001 showed that the 1st Respondent intended to undermine the Petitioner’s candidature. That was malice. According to the learned counsel, this emphasizes the point that a person in the 1st Respondent’s position could only have made the statement maliciously. It was meant to stigmatise, and discriminate against, the 1st Respondent. It was malicious and false and therefore intended to ruin his candidature, while it was intended to enhance, to promote or procure the 1st Respondents election.

I agree with that submission.

Mr. Balikuddembe further submitted that the 1st Respondent having published a false statement on alleged health of the Petitioner and repeated the same on 11-03-2001, the 1st Respondent committed an illegal practice under section 65 of the Act because he made it when he knew that it was going to be published and it was for purposes of promoting or procuring his own election as President of Uganda.

On the credible evidence available, I am satisfied that the 1st Respondent committed the illegal practice proscribed by section 65 of the Act. The 1st Respondent during the 2001 Presidential Election published a false statement of a candidate in the said Election, the Petitioner, that the Petitioner was suffering from the disease of AIDS, for the purpose of procuring or promoting the election of the 1st Respondent (who was also a candidate in the same election) not believing it on reasonable grounds to be true. As a result the 1st Respondent committed an illegal practice under section 65 of the Act.

As I have said earlier in this judgment, my foregoing finding is a condition for nullifying the 2001 Presidential Election under section 58(6) (c) of the Act. Dr. Byamugisha has submitted that that alone is not enough. He submitted that if the election is free and fair, the election cannot be nullified on that ground alone. With respect, I do not agree. If it were so, section 58(6) (e) of the Act would have said so. There is no ambiguity about the meaning of section 58(6) (c) of the Act. In any case, I have made a finding that the Presidential Election was flat free and fair.

In the result, I would declare the result of the 2001 Presidential Election to be null and void.
I would nullify the election of the 1 Respondent as President of Uganda.

Agency in elections:

The question of agency and agents in election is important and relevant to the remaining grounds of the Petition. I wish to consider it before I deal with the grounds in question. The general principles of the law of agency apply to elections as well. However, the relationship between an election candidate and his agent is much more intimate than that which subsists between an ordinary principal and agent. The closest analogy is that of a sheriff and his under— sheriff and bailiffs. For as regards a Parliamentary election the candidate is responsible for all the misdeeds of his agents committed within the scope of his authority, although they were done against his express directions and even in defiance of them. In my view, this applies equally to a presidential election candidate and his agent as to a parliamentary election.

An agent is a person employed by another to act for him or her and on his or her behalf either generally or in some particular transaction. The authority may be actual or it may be implied from circumstances, It is not necessary in order to prove agency to show that a person was actually appointed by the candidate, If a person not appointed were to assume to act in any department of service as election agent, and the candidate accepted his services as such, he would thereby ratify the agency, so that a man may become agent for another in either of two ways, by actual employment or by recognition and acceptance. If agent, the next question is, what is he appointed to do; or, if not appointed, what kind of service does he profess to do which is accepted by the principal. If a person were appointed or accepted as agent for canvassing generally, and he were to bribe a voter, the candidate would thereby lose his Parliamentary seat. But if he was appointed or accepted to canvass a particular class for instance, a master were to ask the agent to canvass his workmen and the agent were to go out of his way, and bribe a person who was not the candidate’s workman, the candidate would not be bound. In the one case the agent would be acting within the scope of his authority, though it may be in abuse of it; in the other, he would be acting beyond his authority, and he would be no more to the candidate than a stranger. It follows that if a person whom the candidate had not authorized to canvass at all, or to take such part in the management of the election as including canvassing, whatever else he was employed to do, the agent were to take upon himself to bribe a voter, the candidate would not be responsible. See The Digest of Annoted British, Commonwealth and European Cases, 1982 Reissue, Butherwerths & Co. (Publishers) Ltd. 1982; Page 72.

The same authority says on Page 74:

“When Dominion Controveted Elections Act RSC, 1927, S.49, enacts that “any corrupt practice committed by a candidate or by his agent” renders the election void, the word “agent” does not mean only the “official agent” but includes any unofficial agent; and where a candidate and his official agent rely upon a political organisation to promote the campaign and bring the election to a successful conclusion, the accredited members of the association should be held to be agents of the candidate, and all those employed by the association are, within the limits of their duties, in the same sense agents of the candidate himself.” Halsbany’s Laws of England, 4^th Edition, Vol. 15 from Paragraph 698, also discusses agency in relation to elections. It is to the effect that in order to prove agency it is not necessary to show that the person was actually appointed by the candidate or that he was paid. The crucial test is whether there has been employment, or authorization of the agent by the candidate to do some election work or the adoption of his work when done. The candidate, however, is liable not only for the acts of the agents when he has himself appointed or authorized, but also for the acts of the agents employed by his election agent or by any other agent having authority to employ others. In the absence of authorisation or ratification the candidate must be proved either by himself or his acknowledged agents to have employed the agent to act on his behalf or have to some extent put himself in the agent’s hands or to have made common cause with him for the purpose of promoting of the candidates election. The candidate must have entrusted the alleged agent with some material part of the business of the election. Mere non-interference on the candidate’s part with persons who, feeling interested in the candidates success, may act in support of his canvass is not sufficient to saddle the candidate with any unlawful acts of theirs of which the candidate and his election agent are ignorant. Employment in the business of the election is a question of degree, but it has never been distinctly and precisely defined what degree or evidence is required to establish such a relationship between the candidate and the person guilty of corruption as to constitute agency. No one has yet been able to go further than to say that, as to some cases, enough has been established, but as to others, enough has not been established, to vacate the seat. All the circumstances of the case must be taken into consideration and the evidence may be regarded cumulatively as establishing agency.

I agree with the views expressed in the learned works I have just referred to. In my view the principles of agency, between an election candidate and his/her agent discussed therein equally apply to the election in the instant petition but subject to the provisions of section 58(6)(c) of the Act.

The complaint in ground 3(2) (b) of the Petition is that:

“3(2)(b), Contrary to Section 63 of the Act the 1st Respondent and his agents with the 1st Respondent’s knowledge and consent offered gifts to voters with the intention of inducing them to vote for him.”

This was denied by the 1st Respondent’s Answer to the Petition, in which he pleaded:

“4. Neither the 1st Respondent nor his agents with his knowledge and consent or approval offered gifts to voters with the intention of inducing them to vote for him.”

The Petitioner did not refer to ground 3(2)(b) of the Petition in his affidavit accompanying the Petition, but he provided the relevant evidence in his affidavit in reply, dated 5.4.2001, to which I shall revert shortly. The 1 Respondent’s affidavit filed in support of his Answer said:

“8. That neither myself nor my agents, acting with my knowledge and consent or approval, gave gifts to voters with intention of procuring them to vote for me.”

“13. That no illegal practices or offences were committed by myself personally or through my agents and sympathizers or through any other person whatsoever with my knowledge and consent or approval.”

In his affidavit in reply dated 5-4-2001, the Petitioner said:

“21. That in reply to paragraphs 8 and 13 of the Respondent’s affidavit in support of his answer to the Petition. I know that the l Respondent at a campaign meeting held at the International Conference Centre on Friday 26th January, 2001 to solicit support for the motor-cyclist (Boda-boda) the 1st Respondent gave a gift of a motor cycle to one of the cyclists/voters by the name of Sam Kabuga in order to influence the motor cyclist/voters to vote for the 1’ Respondent.