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

Uncontroverted Affidavit evidence:

Counsel for the Petitioner drew the Court’s attention to very many affidavits in support of the petition, to which there was no reply. He invited the Court to take that as uncontradicted evidence and believe it. That is a general rule of practice applied on the presumption that what is not disputed is admitted, and is commonly resorted to in causes where facts are not very contentious. In my view, however, it would be highly inappropriate to apply that presumption to a case, such as this, where virtually all material facts are disputed. An election petition is a highly politicised dispute, arising out of a highly politicised contest. In such a dispute, details of incidents in question, tend to be lost or distorted, as the disputing parties trade accusations, each one exaggerating the other’s wrongs, while down playing his or her own. This is because most witnesses are the very people who actively participated in the election contest. Let me point to an example which I think vividly demonstrates how inappropriate counsel’s proposal would be. James Birungi Ozo, the Petitioner’s District Monitor for Kamwenge, deponed that at Kakinga polling station at around 3.30 p.m. on polling day, he ‘1found the Parish Chief removing the votes cast for the Petitioner from the ballot box, using sticks inserted into the box.” That evidence was uncontradicted, but it is as incredulous as can be. Regrettably, even election officials who are meant to be neutral in the contest are pushed in a corner, when it comes to the petition, to defend themselves against allegations of misconducting the election process. It is remarkable that out of the hundreds of deponents in this case, there are only a few that can be correctly described as both independent and objective witnesses of the episodes described in the evidence. I have no doubt, however, that among those hundreds, there are many who honestly deponed the truth without exaggerating or suppressing facts. What I wish to underline is that it would be inappropriate for the Court to proceed on a generalisation, that either: all uncontradicted affidavits should be believed, or the persons who complained, as victims, are more truthful; or those against whom allegations were made are necessarily less truthful. In the same vein, I did not accept the submission that an affidavit which is rebutted should ipso facto be rejected. The evidence in each affidavit must be considered on its merit as to credibility. Needless to say that a trial on affidavit evidence deprives the Court of the opportunity to hear and see the demeanor of witnesses. To that extent evaluating credibility is more difficult, but it must nevertheless be evaluated judicially. Lastly I also did not accept the submission that affidavits which were not read out or referred to during counsel’s submissions should be disregarded. At the commencement of the hearing it was agreed that in the interest of expediting the hearing all affidavits would be deemed to have been read for purposes of r.14(1) of the Election Petitions Rules.

I now turn to the framed issues.

ISSUE NO.1:

The first framed issue for determination was:

“Whether during the 2001 election of the President there was non-compliance with provisions of the Presidential Elections Act, 2000.”

In sub-paragraphs (a) to (x) of paragraph 3(1) of the petition, there were pleaded many acts and omissions in relation to the election which contravened provisions of the Act, and of the Electoral Commission Act, 1 997, to which I will hereinafter refer as “the Commission Act” It is not necessary for me to reproduce the pleadings here. I will presently comment on those seriously canvassed at the trial as I understood them. Let me; however, clarify at the outset that I intend to discuss under this issue, those allegations of non-compliance with provisions of the Act. In my view, contravention of, or non-compliance with, a provision of the Commission Act, is not a contravention or non-compliance with a provision of the Act. S.58 (6) (a) reads:

“(6) The election of a candidate as President shall only be annulled on any of the following grounds if proved to the satisfaction of the Court —