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

(3) “after commencement of this Act, no affidavit shall be sworn for any purpose, except:

(a) Where it relates to any proceedings, application or other matter
commenced in any court or referable to a court; or
(b) Where under any written Law an affidavit is authorised to be sworn.”


It should be noted that the document though headed affidavit, its body talks of a Statutory Declaration and concludes as follows:-


“And I make this solemn Declaration conscientiously believing the same to be true by virtue of the Statutory Declarations Act, 135. Declared by the said Okwir Rabwoni.”


So in effect it is a Statutory Declaration made in accordance with the provisions of the Statutory Declaration Act, 1 835 of the United Kingdom.
Section 7(3) of the Statutory Declaration Act, 2000 clearly states that a Statutory Declaration taken outside shall not be admissible in evidence unless it is registered with the Registrar of Documents under the Registration of Documents Act. It was conceded that it was not registered with the Registrar of Document as required by the Law. Otherwise, the document seems to be in order.

The objection is premised on the fact that it was not registered in Uganda as required by law, but not that it did not conform to the law in the UK.

In my considered view, this objection was premised on a technicality, which, if upheld would offend Article 1 26(e) of the Constitution — which enjoins courts to administer substantive justice without undue regard to technicalities. In this case, failure to register the Statutory Declaration in Uganda as required by the act does not go to substantive justice. It seems to be a requirement designed to raise revenue. And I think it is not too late to register and pay the tees. Therefore the objection is overruled.

In the result the Statutory Declaration is hereby admitted.

Within the same category of affidavits Mr. Nkurunziza contended that, there are many other affidavits in support of the petition which are inadmissible because they were sworn in contravention of Section 5 of the commissioners for Oaths (Advocates) Act. Learned Counsel’s contention is that because two advocates, namely Mr. Wycliffe Birungi and Mr. Kiyemba — Mutate swore deponents of affidavits of many witnesses for the petitioner and yet they acted as Counsel for the petition, all those affidavits have been rendered invalid and valueless and therefore they should be struck off. These affidavits include those sworn by Okello-Okello, Mugalula Joseph, W.Nalusiba, G.Luwemba, Louis Otika Edith Byanyima, Dr. Ssekasanvu, Emmanuel, Mukasa D. Buloge, F. Mukunzi, Henry Muhwezi and Major Rubaramira Ruranga.

In response Mr. Balikuddembe conceded that the affidavit were sworn before the said advocates, but he contended that the two advocates had not been on his team by the time he drew the affidavits, processed the petition and filed it. He stated from the bar that it was at the time of the first day of the hearing of the case and when he was on his feet introducing Counsel that he received a chit containing the name of the two advocates. He actually disowned the two advocates. He then referred us to Section 5 of the Act and contended that the provision applies only where an advocate administers oath to his own client in a case.

Section 5(1) of the Commissioners for Oaths (advocates) Act reads as follows:

“Any Commissioner for Oaths, may by virtue of his commission, administer an Oath or take any affidavit for the purpose of any court or matter in Uganda, including matters ecclesiastical, matters relating to the registration of any instrument, whether under an Act or otherwise,….



Provided that a Commissioner for Oaths shall not exercise any of the powers given by this Section in any proceeding or matter in which he is the advocate for any of the parties to the proceeding or concerned in the matter or clerk to any such advocate in which he interested.”

The impression I get from the statements of Mr. Balikuddembe is that Mr. Birungi and Mr. Mutale were not advocates for the Petitioner at the time when the various witnesses made the affidavits before the two advocates. There is nothing on the record to controvert this. Further there is no evidence before us to show that the two advocates or anyone of them is a member of the firm of Balikuddembe and Company advocates. That being the case, I do not, with respect, accept the argument that any of the affidavits sworn before Mr. Mutale are defective by reason of client-advocate relationship and therefore inadmissible, in these proceedings. I may say that apparently the two lawyers withdrew from sharing the lime light with Mr. Balikuddembe in this case. In my view the said affidavits are on the facts admissible in evidence in as much as they were not produced in violation of Section 5 of the commissioners for Oaths (advocates) Act.

The last objection to the affidavits in support of the petition is that the various affidavits were drawn in contravention of the provisions of 0.17 Rule 3 of the Civil Procedure Rules. Mr. Nkurunziza submitted that as the petition is not an interlocutory matter, any affidavit which is not confined to such facts as the deponent is able, on his own knowledge to prove, are in breach of the Rule and should not be relied upon. He submitted that the entire offending affidavits should be rejected and that no parts of the same should be relied on. He relied on Constitutional Petition No. 3/99 P Ssemogerere & Olum vs. Attorney General Constitutional Petition No. 5 of 2001 C. Mubiru vs. Attorney-General Kabwimukya vs Kasigwa (1978) HCB 251, and Hudani vs. Telani and brothers being ruling of the Principal Judge of the High Court in HCCS No. 712 of 1995. The last two authorities are to the effect that a defective part of an affidavit vitiates the whole affidavit. On the basis of these authorities and submissions, Mr. Nkurunziza submitted that the affidavit of Winnie Byanyima along with 28 other affidavits offend Rule 3 because they or parts of them are based only on information without grounds. Learned Counsel submitted further that 87 other affidavits are based only on beliefs which presumably have no grounds. I must say that Ssemogerere case, the Mubiru case and Kabwimukya case were all decided on their own facts, each is distinguishable. Affidavits in Hudan case were bad.

Mr. Nkurunziza promised to give the full list of the offending affidavits and this was produced in an updated chart on 13/4/2001. Mr. Kabatsi, the learned Solicitor- General concurred and submitted that Rule 3 of 0.1 7 appears to be directive in operation and does not appear to accept severance. He requested that it this court were to depart from the practice then we should not overrule existing decisions.

His opinion was that if this court rules in favour of severance, we would create a bad precedent for the court below.

Mr. Balikuddembe, for the petitioner, made his submission that under 0.17 Rule

3, the court has discretion to accept or to reject proper or improper material in
the same way as courts do in regard to oral testimony. He relied on Reamaton
Ltd vs. Uganda Corporation creameries Ltd & Kawalya Supreme Court Civil
Application No. 7 of 2000 (unreported) and Motor Mart (U) Ltd vs. Yona
Kanyomozi Supreme Court Civil Application No. 6 of 1999 (unreported).

Learned Counsel urged us to consider the substance of these affidavits and decide the petition on its merits. Let me begin with the affidavit of the petitioner accompanying the petition which was also included among the defective affidavits which, allegedly offended rule 3 of 0.17. Rule 4(7) of the Presidential Election (Election Petitions) Rules 2001 directs that the petition shall be accompanied by an affidavit setting out the facts on which the petition is based, together with a list of documents on which the petitioners intends to rely. Under Rule 3 of the same Rules, petition is defined to mean “an election petition and includes the affidavit required by these Rules to accompany the petition.”

The petition appears to have complied with these provisions. On the face of it, a petition like a plaint would initially make allegations which are subject to proof or disproof. Without in any way appearing to give license to any petitioner to institute any petition containing all manner of wild allegations. I cannot appreciate how, given the short time constraint, a petitioner can avoid to include hearsay matters in the affidavit accompanying his petition. He will actually base his claim on information provided by other people. I think the proper thing to do is to consider the petition and the accompanying affidavit and finally reject any matters contained in such affidavit as appear not to have been satisfactorily proved. It would be imprudent to reject the whole affidavit at once. In the result I do not agree and I am not persuaded that the accompanying affidavit of the petitioner violated 0.1 7 Rule 3 if indeed that Rule applies to this petition. Rule 1 5 which makes the Civil Procedure Rules applicable in these proceedings states as follows:

“Subject to the provisions of these Rules, the practice and procedure in respect of the petition shall be regulated, as nearly as may be, in accordance with the Civil Procedure Act and the Rules made under that Act relating to the trial of a suit in the High Court with such modifications as the court may consider necessary in the interests of justice and expedition of the proceedings.”

The import of this rule is that in whatever we do as Justices, we must conduct the proceedings expeditiously and also do justice to the parties. And that is why the trial of the petition is by way of affidavits.

I do not believe that the interests of justice and parties in this petition would be

served by scrupulous observance of the requirements of 0.17 Rule 3 which
applied in ordinary suits in the High Court. Without making a dogmatic statement,
I suspect that because of the scheme of 0.17, the Rules would appear most
relevant when a Court orders for hearing to proceed on affidavit.

Apart from the two decisions of this court, cited by Mr. Balikuddembe, there are decided cases which support the proposition that parts of an affidavit can be severed from the rest of the same affidavit if severance will not affect the merits or will not detract from the other paragraphs of the affidavit. See M.B of Nandala vs. Father lyding (1963) EA 706. Offending part of the affidavit was severed. This is a decision of Sir Udo Udoma CJ., in which 0.17 Rule 3 was considered. See Mayers & Another vs. Akira Ranch (1969)EA 690) in which the offending part was struck out. See also Zala vs Rail! (1969) EA 691 which is authority for the proposition that an affidavit may be defective but not necessarily a nullity. I must here state that I have gone through the affidavits. Many of the affidavits complain of, are similar to that in Nandala case. Deponents spoke about what they saw or heard him do or say.

In my opinion, it would not be improper in the peculiar circumstances of this petition, to strike out wholesale affidavits which are found to contain hearsay evidence where the offending parts of the same affidavits can be severed from the rest of the affidavit without rendering the remaining parts meaningless. I think as I have just stated in many of the affidavits witnesses speak of what they actually saw or heard.

As it is apparent from the decision cited as authorities by both sides, judicial opinion has not been consistent as to whether affidavits containing hearsay matters should be rejected wholesale or whether affidavits should be used only in respect of the non-offending parts of the affidavit, It is clear, from as far back as 1 963 (Nandala’s case (supra) that there is 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 and these authorities show that severance does not depend on whether the cause involved is interlocutory or substantive. In view of the existence of Article 1 26(2)(e) of the Constitution, it seems to me that the proper practice should be that whenever it is possible, court which is faced with an affidavit which contains some inadmissible matter which can be severed and discarded without rendering the remaining part of the affidavit meaningless, the court should severe the offending part and use the rest of the affidavit.

In this petition I think that any affidavit which contains only hearsay evidence should be discarded but there may be affidavits which though contain hearsay matters are supported by affidavits of other witnesses who testify to the facts based on those witnesses’ knowledge. The issue will be that of consistency.

Finally, one other small matter was the objection raised by Mr. Balikuddembe against the affidavit sworn in support of 1^st respondent’s affidavit sworn in support of his answers to the petition. Mr. Balikuddembe submitted that it was defective on the ground that the person before whom it was sworn was not disclosed on the affidavit as required by section 6 of the commissioners for Oaths. It was not disclosed on the affidavit that that person had powers to administer the Oath. However, subsequent to this submission, Mr. Gidudu, the Registrar of the Court of Judicature, swore affidavit stating that it was sworn before him. By virtue of the Commissioner for Oaths Act Section 4, Registrar of the High Court, he has the powers of a Commissioner for Oaths.

However, if the petitioner objected to its admissibility on the ground that the affidavit never disclosed the capacity under which the person who signed, did so, the onus was on the petitioner to prove that the person who signed was not so qualified. However, Mr. Gidudu swore an affidavit stating it was sworn before him. So that, in my opinion, disposed of the objection. However, I think, even without Mr. Gidudu’s affidavit, the objection would not help, unless the petitioner brought evidence to prove that Mr. Gidudu was not the Registrar of the Court of Judicature.

In the circumstances of this case, the affidavit was not defective.

May I raise my fears which I held when I first read Rule 14 of the Presidential Election/Election Petitions) 2001. The conduct of trial of such important petition as this one, on affidavits desirable though it may appear, because it is assumed to expedite the hearing of the petition, is fraught with problems. Some of those problems have been clearly brought out by the objections to the petitioner’s affidavit. One case cited from Nigeria shows that the hearing was oral testimony and the case seems to have been disposed of expeditiously. I would probably say that in future the law-makers should consider petitions of this nature to be tried expeditiously by oral testimony of witnesses.

In their respective answers to the Petition, the l and 2’ respondents denied the allegations made in the Petition against them.

On the complaint by the Petitioner that the 1^st respondent stated that “the Petitioner is a victim of AIDS” the respondent stated that the statement was not made publicly or maliciously for the purpose of promoting or procuring election for himself However, he admitted it was true that a companion of the petitioner, Judith Bitwire, had died of AIDS and that the child they had together had died of AIDS. That the 1 respondent had known the petitioner for a long time and had seen his bodily appearance change over time to bear obvious resemblance of other AIDS victims that the l respondent had previously observed.

On the allegation of creating new polling stations, the 2^nd respondent stated that no new polling stations were created but rather that some existing polling stations were split for purpose of easing the voting process due to the big number of voters in those stations. In any case, he stated that there was no evidence that the splitting of the said polling station substantially affected the result of the election or at all.

Each of the respondents prayed for the petition to be dismissed with costs. Each respondent swore affidavit in support of his respective answer/reply to the petition. These affidavits are long and so I shall not reproduce them in my judgment but shall be referring to relevant paragraphs of the affidavit where and when need arise in the course of my judgment.

At the commencement of the hearing issues were framed for determination.

1. Whether during the 2001 election of the President, there was noncompliance with provisions of the Presidential Elections Act 2000.

2. Whether the said election was not conducted in accordance with the principles laid down in the provisions of the said Act.
3. Whether, if the first and second issues are answered in the affirmative, such non-compliance with the provisions and principles of the said Act; affected the result of the election in a substantial manner.
4. Whether an illegal practice or any other offence under the said Act, was committed, in connection with the said election, by the 1^st respondent personally or with his knowledge and consent or approval.
5. What reliefs are available to the parties?

I think that that before embarking on the task of deciding this petition on its merits, it is important that I first resolve the issue of burden and standard of proof because every issue which was raised hinges on these elementary rules of evidence. Sections 100, 101 and 105 of the Evidence Act 43 (Cap 43):-

(100) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts, which he asserts must prove that those facts exist. When a person is bound to prove existence of any fact, it is said that the burden or proof lies on that person.