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

(a) ………………….

(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.”

Dr. Byamugisha further submitted that the commission of an offence does not mean that the election was not free and fair. He contended that annulling the election on the basis of the commission of an offence or an illegal practice would render S.58 (6) (c) inconsistent with Article 1 and Article 2(2) of the Constitution. Dr. Byamugisha also contended, as I indicated earlier in this judgment, that the evidence of the Petitioner and of his witnesses is bad in law because it is hearsay and contravene sections S.57 and S.58 of the Evidence Act. That the Petitioner’s documentary evidence was inadmissible by virtue of Ss.60 to 63 of the same Act. Learned counsel did not specify which of the documents were inadmissible.

Be that as it may, I dealt with the question of admissibility of the Petitioner’s affidavit and those of his supporters earlier in this judgment. I should point out, though, that Mr. Nkurunzinza and the Solicitor-General mentioned only some but not every one of the deponents whose affidavits were considered defective. The Solicitor- General provided the Court with a chart tabulating the deponents whose affidavits were considered defective and in which the deponents supporting the respondents attempted to rebut the affidavit of the deponents supporting the Petitioner. I have noticed that some of the deponents supporting the Petitioner appear not to have been challenged by rebuttal affidavits. These raises the possible inference that what is contained in those unchallenged affidavits is correct.

I earlier reproduced Rule 1 4(l) of the Presidential Election (Election Petitions) Rules, 2001. For clarity’s sake I will reproduce it again. It reads as follows:“Subject to this rule, all evidence at the trial in favour of or against the petition shall be by, way of affidavits read in open Court’

I think that normally, subsidiary legislation should not whittle down a provision in an Act. But it appears to me that sections 57 and 58 of the Evidence Act, (which concern oral evidence) may not apply in the manner suggested by Dr. Byamugisha. I think that in the same way the sub-rule does limit the applicability of sections 60 to 63 of the Evidence Act, somewhat. Elsewhere in this judgment I have endeavoured to show that these rules are special, intended to facilitate expeditious delivery of electoral justice without undue regard to technicalities to S.56 (6) (c).

Be that as it may, and with due respect to Dr. Byamugisha, I must say that I am not persuaded by his arguments. I think that under S.58 (6) (c) of the PEA, 2000 satisfactory proof of an illegal practice or proof of an offence leads to automatic annulment of the election result. This appears to be the effect of the Kibuuka Musoke, J. decision in Katwiremu’s petition (supra) where the learned judge considered S.91 (I) of Act 4 of 1996 part of which is substantially similar.

There is no doubt in this petition that the first respondent made the statement that the Petitioner suffers from AIDS. The first Respondent’s answer to the petition, particularly his accompanying affidavit, is clear on this. The first respondent confirmed his statement when, on 11/3/2001, he stated that State House was not a place for invalids. I am not convinced by the reasoning and opinions of Professor Rwomusana, the hearsay views of Katarina Namayanja and the evidence of Dr. Arinaitwe that the Petitioner suffers from AIDS. I think that after the Petitioner asserted that he does not suffer from AIDS, the burden of proving that the Petitioner suffers from AIDS shifted to the first Respondent. Namayanja’s affidavit with all its defects implies that the Petitioner must have had AIDS. However Namayanja’s affidavit is essentially hearsay and also speculative. There is no evidence or suggestion that the Petitioner has ever been bed ridden or that he has ever been diagnosed to be suffering from diseases associated with AIDS.

Authorities given to support the Respondent’s view included XVs.y. (1988) 2 ALL ER 648, R. vs. Registrar General (1990) 2 Q. B- 253 and Liversidge vs. Sir John Anderson (1942) A.C.206. These cases are about belief based on reasonable grounds. Also on reasonable cause or grounds in the 1st Respondent’s authorities are included Katwiremu’s case, Thompson vs. Thompson (1956) I ALL E.R.603 at P.605-606, Parkison vs. Parkison (1939) 3ALL ER.108 at P 112, Hicks vs. Faulkner (1881) 8 Q.B.D - 167 at page 171, Quinn vs. Leathem (1901) A.C. 495, at page 495, and H.J. Odetta vs. Omeda Soroti Hct Election Petition No.001 of 1 996. This last authority is one of those authorities, which support the view that the burden of proof lies on a party who asserts a fact and this is true: See S.100 to 103 of the Evidence Act.

During the trial of Odetta’s petition, the affidavits of most of his witnesses (23 witnesses) were struck out because they were written in the vernacular (Eteso) language instead of the official English language. This inflicted almost an instant mortal blow to the petitioner Odetta. Further, Ntagboba, PJ, who tried the petition, found that the Petitioner had failed to prove the allegations to the requisite standard. Voters who were intimidated did not testify. Most of the petitioner’s witnesses whose affidavits were struck out by the learned Principal Judge did not testify.
We must always remember that each case is decided on its own facts. No two cases are exactly the same. In Katwiremu’s Petition, the evidence of two of the “eye” witnesses who were found by Musoke-Kibuuka, J., the trial judge, to be truthful, proved bribery, an illegal practice. The other witnesses were not believed. The other authorities cited were decided on their own facts. In the divorce case of Thompson vs. Thompson it was held that because for seven continuous years, the respondent wife had not turned up to get maintenance from the petitioner husband, that was a reasonable ground for believing that the respondent wife was dead. That ground of presumption of death after seven years is a well- known rule of evidence in the English law. It has its equivalent in among others sections 107 and 112 of our Evidence Act. The case of Quinn vs. Leathem (supra) arises from a suit claiming for damages because of inducing a breach of contract. The passage relied on and cited at page 524 of the report does not help the Respondents’ case in these proceedings. There, Lord Brompton explained what would not constitute malice in a criminal case of malicious prosecution, if the prosecutor embarked on prosecution on the basis of the honest belief that he had a reasonable and probable cause.

In the petition before us, there is no thread of evidence from any witness suggesting that the Petitioner has been ill or sick in circumstances which strongly and reasonably suggest that he might be having AIDS. Dr. Rwomusana, an educated and enlightened medical doctor baffles me by asserting that the petitioner suffers from AIDS on the basis of unscientific assumptions about the alleged change of his appearance. This speculative evidence is in my opinion wholly inadequate.

I don’t think that all the authorities cited by counsel for the first Respondent support the proposition that the first respondent had reasonable grounds for saying that the petitioner suffers from AIDS. Once the petitioner asserted on oath, in at least two of his affidavits, that as a medical person he knows and believes that he did not suffer from AIDS and that the first Respondent had not diagnosed him as such (see affidavit in reply by petitioner), the speculation upon which the first Respondent based his statement evaporated in thin air. It was now upon him (15t Respondent) to show by credible evidence that indeed the Petitioner suffers from AIDS. In my opinion the evidence of Prof. Romushana and Namayanja is valueless, as it amounts to no more than baseless rumours and hearsay. In view of the assertions of the petitioner and the scientific views of Dr. Ssekasanvu, the evidence of Dr. Atwiine is inconclusive. I am satisfied that Doctor Ssekasanvu’s evidence, was not disproved by the speculative opinions of Prof. Rwomusana nor that of any other deponent.

Imputations of suffering from AIDS about a person are as serious, and probably more serious, than imputations of fraud. In cases involving allegations of fraud the party who relies on them must adduce evidence to prove fraud. I do not myself believe that imputations of suffering from AIDS about a person should be based on speculation because of the mere appearance or any alleged change in appearance of the Petitioner or just the death of a partner. Neither do I accept that it is proper or reasonable to publish very serious and unfounded imputations about any person. I think that the first Respondent published a false statement of the illness of the Petitioner. According to the affidavit of the first Respondent, he has known and has been working with the petitioner for many years. The first Respondent does not say that he has ever before heard from the petitioner or suggested to the Petitioner that the Petitioner suffer from AIDS. So why wait until election time? The statement was made by 1St Respondent during the prime of campaign time for purposes of procuring his own election. I believe that the first Respondent did not have reasonable grounds for his belief. It is more likely it was a reckless statement aimed at discrediting the Petitioner about his health in the eyes of the Uganda electorate.

Learned counsel for the first Respondent referred to authorities for the view that under S 65 of the PEA, the petitioner bore the burden of proving that the statement of the 1st Respondent about AIDS was false. Other authorities relate to what is the import of “knowing” and consent or approval as appear in the same section. These authorities include Stoney vs. Eastbourne Rural District Council (1 927) I ch.367 and Fields Law of Evidence. Stoney’s case merely emphasized the ordinary rule of evidence to the effect that if there is no other evidence given, the party on whom the burden lies must prove his case sufficiently to justify a judgment in his favour. This is also discussed in Field’s Law of Evidence pages 4152 and 4153 in relation to election petitions.
The issue of publication by the first Respondent was admitted. As it is correctly stated in the same book, (Field’s Law of Evidence) the question whether the publication by the first Respondent was reasonably calculated to prejudice the prospects of the election of the Petitioner, is a matter of inference. And in my own view, the 1st Respondent’s statement was so calculated. The same book is authority for the proposition that once the petitioner had proved publication and falsity, the burden shifted to the first Respondent to prove otherwise.

For the foregoing reasons, I find and hold that the first respondent committed an illegal practice under S.65 of the PEA. This finding is I think, sufficient to annul the election.

I do not, with respect, accept the argument by Dr. Byamugisha that S.65 is inconsistent with either Article 1 or Article 2(2) of the Constitution. I reproduced the provisions of these Articles earlier in this judgment. Suffice it to say here that Article I recognizes the people of Uganda as the ultimate source of sovereignty. The Article requires that the people of Uganda should choose their leaders through free and fair elections. I think that S.65 seeks to enhance the process of free and fair election of a President and, therefore, the section can’t be inconsistent with Art. 1. As for Art.2 (2); it outlaws any law or custom, which would be inconsistent with the provisions of the Constitution. Therefore, if the Constitution stipulates, as does the current Constitution do, that the election of leaders should be held under conditions of freedom and fairness, a law that seeks to prevent any aspiring candidates from using unfree and unfair means to ascend to or to gain or retain power, that law would not contravene Article 2(2). I think that the two Articles and S.58 (b) (c) and 65 are complementary in the advancement of democracy and democratic values.