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

10. That I went to a nearby Polling Station called Kyeshero and found there the same procedure. I witnessed Canon Murakazi and Rwamahe also ticking ballots as they wished. I found it strange and Rwamahe who was armed with an AK 47 chased me away with the help of LDUs and some army men who were threatening voters.

11. That incidents similar to the above were wide spread in our area and the surrounding Sub-counties and I personally witnessed many of them.

12. In the circumstances, it became impossible for us to hold a free and fair election.

13. ………………………

14. That I certify that what is stated here in is true and correct to the best of my knowledge and belief.”

I will reproduce the affidavit of James Musinguzi in another context later in this judgment.

The above affidavits and very many similar ones were objected to on the principal reason that they contain hearsay and that no grounds of belief were given. Therefore they should be struck off. It is very clear that these affidavits and others like them speak of matters seen or heard by the deponents. Would it serve justice to strike out these? No. I do not see merit in these objections.

Interestingly, although two wrongs do not create a right, some of the affidavits supporting the respondents contain hearsay evidence. Typical examples are the affidavit of Marita Namayanja (paras 11 to 14), of Prof. J. Rwomushana, (paras 9, 10, and 12). Mr. Balikuddembe submitted that we should strike out the affidavit of Marita Namayanja who deponed in support of the claim that the Petitioner suffers from AIDS.

It is apparent from the decisions cited as authorities by both sides that judicial opinion has not been consistent as to whether an affidavit containing hearsay matters should be rejected entirely or whether only the non-offending part of the affidavit should be relied upon. It is clear that in this country going say as far back as 1963 (Nandala’s case) (supra) there has grown a string of authorities which support the view that where it is possible, offending parts of the affidavit should be severed so that the admissible parts can be relied upon.

In view of the provisions of Article 126(2) (e) of the Constitution, I venture to suggest that whenever possible1 a Court which is faced with an affidavit containing some inadmissible matter that are not deliberately intend to mislead and that can be severed and discarded without rendering the remaining part of the affidavit meaningless, that court would be justified in severing the offending part and using the rest of the affidavit. In this regard, I think that the decisions of Odetta vs. Omeda (supra) and of Hudani vs. Tejani (supra) on defective affidavits do not represent good practice. I think that any tribunal placing much reliance on 0.1 7 Rule 3 in order to disregard affidavits in support of election petitions would do well to look at the provisions of Article c.86 (3)(b) and 104 (9) from which the Statutes regulating the conduct of election petitions spring. The former Article confers power on Parliament to make provisions with respect to the circumstances and manner in which and the conditions upon which to challenge the validity of a Parliamentary election. In the case of challenging Presidential election result, Parliament is empowered to make such laws as may be necessary for the purpose of challenging the validity of election of the candidate including laws for grounds of annulment and rules of procedure. Parliament delegated its powers to make rules of procedure to the Chief Justice:

See S.58 (II) of PEA, 2000. The Chief Justice made S.1. 2001 No. 13 which contains the rules to regulate the procedure of hearing petitions.

I have reached a point at which I should raise my fears which I held when I first read Rule 1 4(l) of the Presidential Election (Election Petitions) Rules, 2001. (The rule has its equivalent in the rules regulating Constitutional petitions and Parliamentary election petitions). The conduct of a trial of such an important petition, as this one, on affidavits, desirable though it may appear because of expediency, creates unnecessary problems during the hearing of the petition. Some of those problems have been clearly brought out by the objections to the Petitioner’s affidavits. In view of sub-rules (2) and (3) I suggest that in future Presidential election petition be tried by hearing oral evidence. The hearing would be expedited if counsels for all sides produce the relevant witnesses and relevant evidence. The report in the Nigerian case of Ibrahim vs. Shehu Shagari shows that the hearing of a presidential election petition in Nigeria seems to have been disposed of expeditiously through three tiers of the courts within less than two months.

I will make brief comments on some of the sample affidavits sworn in support of the petition. One such affidavit is by Charles Owor. The objection is based on lack of grounds for belief. In my view the use of the word “belief” is superfluous.

Baguma John’s affidavit was objected to because of absence of grounds for belief. But the affidavit is a factual narrative of what he experienced in Bukonzo County in Kasese District. Again the use of the word “belief” is superfluous. Yet another example is the affidavit of Peter Byomanyire from Mbarara District. Objection to his affidavit is that it contains hearsay. The objection is wholly baseless because the deponent talks about facts he knows.

There was a submission that the affidavits which were filed but were not referred to or were not read in court should be ignored because as the affidavits were not referred to in open court they are not part of the evidence. Y. Katwiremu Bategana vs. Mushemeza Mbarara H. Ct. Petition 1 of 1996 is relied on for this proposition. With due respect, I think that the relevant rule 15(1) was misconstrued by the trial Court. Rule 15(l) is similar to our R14 (I). Rule 14(l) of S.l.2001 No.13 does not say that affidavits not read in court though they are already part of the court record should be ignored. The Petitioner did not abandon the evidence filed with pleadings. I do not accept the proposition that pleadings in the form of affidavits, which are properly filed on the court record, should be ignored. With respect to the learned Judge in the Katwiremu Bategana petition, I do not think that the proposition is in consonance with Rule 15, which was relied on. Indeed the absurdity of the proposition is fully illustrated by the fact that although two witnesses (Patrick Rwihangwe and Nuwamanya Buhitya) had been called and cross-examined on their affidavits, their oral evidence was eventually disregarded purely because the affidavits had been discarded. With the greatest respect, that procedure is wrong and to that extent the decision represents bad practice.

FIRST ISSUE

I will now discuss the issues in the order they were framed beginning with the first which is whether during the 2001 presidential election, there was noncompliance with the provisions of The Presidential Elections Act, 2000. The Court briefly answered this issue in the affirmative. I have to give my reasons for and expand on that answer. I will show that apart from section 28, more sections of the PEA were not complied with.