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

(ii) the gift was given by a candidate or his agent;

(iii) it was given with the intention of inducing the person to vote

“Voter” in section 2(1) of the Act means “a person qualified to be registered as a voter at an election who is registered and at the time of an election is not disqualified from voting.”

“Bribery at election” is defined by Black’s Law Dictionary Edition, as the offence committed by one who gives or promises to give or offers money or valuable inducement to an elector, in order to corruptly induce the latter to vote in a particular way or to abstain from voting, or as a reward to the voter for having voted in a particular way or abstained from voting.

Mr. Walubiri submitted for the Petitioner under this ground. He said that the first category of gift was what the 1st Respondent himself gave or offered and the second category is what was given or offered by his agents. In the first category are those which the Petitioner listed in his affidavit in reply. Learned counsel submitted that the gift of a motor cycle was given to one Sam Kabuga to influence him and other motor cyclists who attended that campaign meeting to vote for the 1st Respondent in the Presidential election. The gift giving ceremony was widely published including pictures in news papers as annextures “P.30 and P.31” show:

The picture in the Sunday Monitor of 14-01-2001, annexture “P.3O” shows what appears to be the 1 Respondent presenting a motor cycle to a man in long trousers and a T-Shirt. The T-shirt bears a picture of the 1st Respondent with a hat on his head. A caption on top of the picture reads: “Museveni rewards boda boda man.” The one at the bottom reads “Sam Kabuga receives a new motor cycle from President Museveni at the National Conference Centre, Jan.
26. Kabuga rode Museveni to his nomination at Kololo Air Strip Jan. 9 (PPU photo).”

Mr. Bitangaro submitted for the 1st Respondent that the Petitioner alleges that Sam Kabuga was given a gift, but no evidence has been led to prove that he is a voter.

That is a valid argument, because, there is no evidence to prove that Sam Kabuga was a voter which is one of the conditions necessary for operation of section 63 of the Act. A “Voter” is defined in section 2(1) of the Act.

In the circumstances, I am not satisfied with the Petitioner’s proof that on 26- 01-2001, at the International Conference Centre the 1st Respondent gave a gift of a motor cycle to one Sam Kabuga to influence him and other boda-boda motor — cyclists to vote for the 1st Respondent. There is no doubt that the 1st Respondent gave Kabuga a gift of a motor cycle, but there is no evidence that Kabuga was a voter. Where was he registered as a voter? What was his registration number? These questions are left unanswered by the Petitioner’s evidence.

For some unexplained reason, Mr. Bitangaro did not make submissions on the rest of the Petitioner’s allegations underground 3(2) (b) of the Petition.

Regarding the alleged abolition of cost-sharing in Government health centers made in 22(a) of the Petitioner’s affidavit in reply Mr. Walubiri submitted that the abolition was done without an Act of Parliament. Learned counsel contended that under article 191(1) of the Constitution, Local Governments operate their own budgets of money raised from their own income. They were levying cost- sharing at Health Centres. A directive by the 1st Respondents abolished cost sharing in Health Centres and Hospitals.

The Petitioner’s affidavit in reply concerning cost sharing in Hospitals, and the alleged abolition of cost-sharing in Health Centres was rebutted by Dr. Crispas Kiyonga, the Minister of Health in the Uganda Government by his affidavit dated 7-4-2001. In the affidavit, Dr. Kiyonga denied that cost-sharing had been abolished by the Government. He said that cost-sharing had been introduced some years back to assist in filling the financial gaps in Health sector Budget. Under the Constitution, Primary Health Care is the responsibility of the Local Governments (Districts) but the Central Government can always come in to assist and finance directly where there is need by prioritizing the sector.

In 1997, the Government introduced Primary Health Care Conditional Grants under which the government had increased funding to the sector aimed at improving the health of the population particularly the poor of the poor. At the same time, there has been on-going debate and no consensus in government as whether to abolish cost-sharing or not, because it was blocking the poor people’s access to health services.

By December 2000, government had disbursed one half of shillings one billion for purchase of supplementary drugs in this financial year. It was no longer necessary to justify health cost-sharing. With or without elections the government agenda on cost-sharing had already been set by the budget of the Financial Year 2000/2001. It was not true, therefore, to say that the 1st Respondent abolished cost sharing to induce voters in view of the Government Agenda.

What I understand all this to mean is that the government had been phasing out cost-sharing during the last few years after it was introduced in 1997.

In the absence of any other evidence from the Petitioner in this connection, which is the case, I find that the Petitioner has not proved to my satisfaction that the 1st Respondent abolished cost-sharing in health services in order to induce people to vote for him.

Regarding the alleged increase of salaries of Health workers and of teachers made in 22(b) and (C) of the Petitioner’s affidavit in reply, Mr. Walubiri submitted that the 1st Respondent made the increases in contravention of articles 154, 155, and 1 56 of the Constitution. Since the learned counsel did not explain what he meant, I shall not go into details about those articles of the Constitution. The learned counsel also said that the Petitioner’s affidavit evidence regarding the salary increases in question was not controvented. That may be so but I do not think that the Petitioner’s affidavit evidence alone is sufficient to prove the allegations to the required standard. There is no evidence to prove, for instance how the salary increments were made, by how much the salaries were made, who were the beneficiaries and when the increase would be effective. The absence of controverting evidence, in this case, does not automatically mean that the allegations have been proved to my satisfaction

In the circumstances I am not satisfied that the Petitioner has proved to the required standard the allegation that the 1st Respondent increased the salaries for health workers and for teachers with the intention of inducing them to vote for him.

Regarding the alleged road contracts signed for purposes of inducing people to vote for the 1 Respondent (para 22(d) of the Petitioner’s affidavit in reply), Mr. Walubiri submitted that the contracts were executed without budgetary provisions. By so doing, learned counsel submitted, the 1st Respondent was abusing his position by offering such considerations. The learned Counsel relied on the case of Attorney General vs. Kabourou (supra).

I agree with the learned counsel that the case of Attorney General vs. Kabourou (supra) is relevant to this case. In that case, the respondent was one of six candidates in a Tanzanian Parliamentary by-election for Kigoma Urban Constituency on 13-02-1994. After the count of the polls, the third appellant, the candidate for Chama Cha Mapinduzi (CCM), was declared the winner. The respondent, the candidate for another party, CHADEMA, brought an election Petition in the Tanzanian High Court, seeking the annulment of the election on various grounds. One of the grounds was that the government corruptly sought to influence the result of the by-election by undertaking certain road works in the Constituency.

The High Court upheld that ground because the road construction in Kigoma during the campaign period was executed with the corrupt motive of influencing voters to vote for the CCM candidate and that it affected the results of the election. The basis of the trial judge’s handling was three fold.

Firstly, he was of the view that the maintenance work of the Kigoma — Ujiji Road was undertaken by the Central Government as a reward for the people of the Kigoma Urban Constituency agreeing to vote for the CCM candidate. Secondly, he was of the view that the undertaking by the Central Government was not made in the ordinary course of business of government. Thirdly, he was also of the view that since the undertaking was made by prominent cabinet Ministers at well attended rallies in the constituency, it must have influenced the voters to vote for the CCM candidate. The Tanzanian Court of Appeal, to which the Attorney General appealed against the decision of the trial court, agreed with the learned trial judge’s reasons. The Court of Appeal’s judgment, rendered by Nyalali, said at 775:

“We respectfully agree with these reasons. There was credible evidence given by witnesses who attended the public rallies addressed by Augustine Lyatonga Mrema, the then Minister of Home Affairs and Deputy Prime Minister, and by Nalaila Kiula, the Minister of Communications, Transport and Works. These witnesses include one Kanyari Donatus, the sixth witness for the Petitioner (PWVI), one Ramadhani Juma Kalovya, the seventh witness for the petitioner (PW VII), one Hamisi Shabani Maranda, the ninth witness for the petitioner (PW IX), one Kudra Mussa, the tenth witness for the petitioner (PW X), who tape recorded one of the speeches made by Augustine Lyatonga Mrema, and Mwinyi Baruti, the eleventh witness for the petitioner (PW Xl). The testimony of the witnesses who attended the public rallies addressed by Augustine Lyatonga Mrema and Nalaila Kiula shows clearly that the Kigoma-Ujiji road was being repaired by the central government as consideration for the people of the Kigoma urban constituency agreeing to vote for the CCM candidate. PW VI in a part of his testimony told the trial High Court regarding Mrema’s speech:

‘He asked if you get a tarmac road will you have any quarrel with CCM. And the citizens said they would have none. He asked how many would vote for CCM if we gave you a tarmac road. All people raise up their arms. –