| STANDARD OF PROOF AND NON-COMPLIANCE
A number of cases were cited to us by both sides to support contentions about what is or is not :-
(a) proof to the satisfaction of the Court, and
(b) that non-compliance affected the result of the election in a substantial manner.
Art. 126(1) is one such authority. I have already referred to it. Cases cited include: Yorokam Katwiremu Bategana vs. E. D. Mushemeza & two others P K. Ssemogerere & Olum vs. At. Gen. The other authorities cited included Special Reference No. 2 of 1992 by the Public Prosecutor (1993) 2 LRC. 114, Kawesa vs. Minister of Home Affairs and others (1994) 2 LRC.263 and R. L. Maharag vs. Att. G. of Trinidad & Tobago, Gunn vs. case Sharpe (supra) and Bater case (supra).
Among the cases cited by the respondents were Ibrahim vs. Shehu Shagari & others (1985) 2.LRC (Const) 1; Charles Mubiru vs. Att. Gen., Constitutional Petition No.1 of 2001, Gunn vs. Sharpe (1974) 2 ALL ER 1058, Halsbury’s Laws of England, 4th Ed, Vol.1 5, and Indian case Law and text books as well as the recent American case of Bush vs. Gore.
It is axiomatic that the petitioner bears the burden of proving that non-compliance with the provisions of the PEA and of the principles of the said Act affected the results in a substantial manner. As indicated earlier in this judgment, this Court has already found that certain sections of the Act and the principles laid down in the same Act were not complied with. I have discussed the situation obtaining during the campaign period and on the polling day. I have held that the conduct of the two respondents and or their agents affected the results in favour of the first respondent. I have also found that the conduct of the agents of the first respondent and the conduct of the second respondent and its agents on 12/3/2001, (the polling day) affected the election result substantially. The question really is how substantial was the effect. I do not think that the case of Gore vs. Bush (supra) is helpful to our discussions.
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