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

4. Therefore your petitioner prays that this Honourable Court declares:

(a) That Museveni Yoweri Kaguta was not validly elected as President.

(b) That the election be annulled.

5. The petitioners prays for the costs of this election.”

Again, as required by law, the Petition is accompanied by an affidavit deponed to by the Petitioner together .with other documents and other affidavits on which the petitioner intended to rely.

Before considering the grounds of the petition I would like to deal with two important matters which are relevant to the petition throughout. Counsels for all three parties have made submissions on them.

Evidence By Affidavit

Subject to two exceptions it is mandatory under rule 14 of the Rules, that all evidence at the trial, in favour of or against the petition, should be by way of affidavit read in open court. One exception is that, with leave of the court, a person swearing an affidavit which is before the court may be cross-examined by the opposite party and be re-examined by the party on whose behalf the affidavit is sworn. The other is that the court may, of its own motion, examine a witness if the court is of the opinion that the witness is likely to assist the court to arrive at a just decision.

In the instant case only one of the 1st Respondent’s witnesses was cross-examined by the petitioner’s counsel, with leave of the court, and re-examined by the 1st Respondent’s counsel. This was Dr. Diana Atwine. Save for that exception air the evidence in support or against the petition was by affidavit. The parties referred to their respective affidavits as they made submissions. The affidavits were not all read at the beginning of the hearing. This followed a ruling by the court that all the affidavits should be deemed to have been read. Altogether, the Petitioner filed 174 affidavits, both in support of the Petition and in reply to the affidavits of the 1st or 2nd Respondents, who in turn filed respectively 133 and 88 affidavits, a total of 395 affidavits.

The affidavit evidence filed in the Court by all parties to the petition is, therefore, too massive for all to be evaluated within the time available to me.

Many of the affidavits from the Petitioner’s witnesses are rebutted by witnesses of the 1st and 2nd Respondents, but some are not. In a case where proof depends entirely on evidence by affidavit such as the instant Petition, it is absolutely essential to file an affidavit in rebuttal as it would assist the court in evaluation of evidence in order to decide which of two or more conflicting versions of events are credible or not credible, if the Court is to avoid the presumption that evidence not rebutted is deemed to be admitted. Many affidavits of the Petitioner’s witnesses were indicated by the Respondent’s Counsel as rebutted but it was not possible for me to trace all the rebuttal affidavits. I certainly had no time to flip through the many volumes of affidavits, without assistance from the parties, to trace some affidavits. The Petitioner’s counsel provided a list of deponents of affidavits under categories of topics contained in the grounds of the Petition.

The requirement for evidence by affidavit in this kind of case is understandable. It is to expedite the proceedings. Time has to be saved in view of the Constitutional requirement that judgment in the Petition must be rendered within 30 days from the time the Petition is filed in Court. However it has serious draw backs. The main one is that the veracity of all the witnesses who deponed to the affidavits cannot be tested by examination by the court or cross-examination by the opposite party as provided for in the exceptions or by any other way. If all the deponents were subjected to examination, or cross-examination, as the case may be, a Petition such as this one would never be completed within 30 days. This, therefore, calls into question, in my view, the wisdom of dependence entirely on affidavit evidence in an inquiry such as the present. It may also encourage involvement of far too many witnesses than would be the case in trial by oral evidence.

Another general observation I wish to make at this stage about the affidavit evidence in this case is that the deponents of nearly all the affidavits could not be described as independent because they were supporters of one party or another. The election was hotly contested. The necessity that the side of a deponent of an affidavit should win must have been a high motivation for testifying the way he or she did. There were, indeed, some apparently independent witnesses. These were few. The vast majority of witnesses may be described as partisan, because they supported the side for which they swore the affidavits. In this case, as nearly in all litigations in our jurisdiction, where the adversarial system of litigation is the norm, a person normally gives evidence favourable to the party which has called him or her as a witness and according to what is within the knowledge of the witness. His or her evidence may be honest and truthful but it is given to enable the party calling the witness to win in the dispute. A witness called by his or her employer or boss in an office, department or organization is far less likely to be an independent witness than the one not in a similar position. The witness has to protect his or her office. Similarly there is no way a witness who is alleged to have committed a criminal offence or malpractice in an official or personal position is going to own up such an accusation.

This kind of behaviour applies to all human beings. Accusations of wrong doing or criminal conduct are normally vehemently denied by the person accused unless there is absolutely no choice for not doing so. It becomes a question of evidence given in self-serving interest. This is common knowledge for which proof is unnecessary. It is on that basis that I shall consider the credibility or otherwise of the deponents of the affidavits in this case on individual basis.

The 1st Respondent’s counsel, Mr. Didas Nkuruziza, criticized the affidavits filed in support of the petition on the grounds that they are bad in law and are insufficient for the purpose of proof required of affidavits. He said that the affidavits fall into three categories. In the first category are those which are in breach of specific provisions of the law. Those ones should be struck out. An example is the affidavit of Major (Rtd.) Okwir Rabwoni, M.R because, it offends the provisions of section 7(3) of Statutory Declaration Act, 2000, under which a statutory declaration deponed outside Uganda is inadmissible in evidence unless it is registered with the Registrar of Documents under the Registration of Documents Act. The learned counsel also contended that the affidavits of certain witnesses for the Petitioner are in breach of the proviso to section 5(1) of the Commissioners for Oaths (Advocate) Act. The proviso prohibits a Commissioner for Oaths exercising the powers given under the Act from acting as such in any proceedings or matter in which he or she is advocate for any of the parties to the proceedings or concerned in the matter. Learned Counsel submitted that where a Commissioner for Oaths contravenes the proviso to section 5(1) the document for which he purports to administer the oath is invalid as an affidavit. Learned Counsel contended that ii affidavits of the Petitioner’s witnesses were in this category. This is because the oaths were administered by advocates, Wycliffe Birungi and Kiyemba Mutate, both of whom had been introduced by the Petitioner’s lead counsel at the commencement of the hearing of the Petition as members of the Petitioner’s team of Lawyers.

The affidavits in question are those of John Livingston Okello Okello, M.R, Mugulula Joseph, and Edith Byanyima, all commissioned by Wycliffe Birungi. As were the affidavits of Dr. Ssekasanvu Emmanuel, Mukasa David Buloge, David Frank Mukunzi, Henry Muhwezi and Major Rubaramira Ruranga. The affidavit of Luwemba Godfrey was commissioned by Kiyemba Mutate. Learned counsel contended that by reason of the breach of section 5(1) these are not affidavits, and ought to be struck out.

Learned counsel submitted that the Petitioner’s affidavits also contravened 0.17 r. 3(1) of the Civil Procedure Rules, which states that affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted, provided that grounds thereof are stated. The affidavits under consideration were filed in support of final proceedings not in an interlocutory application. Learned Counsel submitted, therefore, that, any affidavit not confined to facts which the deponent can prove from his own knowledge is in breach of Rule 3(1), Order 17. The Court should not rely on them. The affidavits should be rejected in their entirety.

The learned counsel cited certain authority’s in support of his submission, namely: Constitutional Petition No. 3/99 P K. Ssemogerere and Z. Olum (unreported); Charles Mubiru vs Attorney General C.C.U. (unreported).

Learned counsel also submitted that an affidavit in breach of 0.17, r.3 is not severable. He referred to: Aristella Kabwinuka vs. John Kasigwa [1978] HLB 251 and Sirazali Goulamali Merali others HCQS No. 12/95 (unreported). In the latter case, Ntabgoba, PJ, said at page 8 of the judgment:

“The plaintiff should have disclosed those reliable sources from which he learned the information, especially which refers to in paragraph 7 and 9.

I should state that it does not matter whether some parts of an affidavit are in order while other parts are defective. The defective ones cannot be separated from the proper ones so as to render part of the affidavit acceptable. A defective portion of an affidavit vitiates the whole document.”

The learned counsel indicated as examples of affidavits offending 0.17 r.3 (l) the affidavits of Winnie Byanyima M.P. and that of the Petitioner filed in support of the petition. These and others contain hearsay and have been rebutted by affidavits against the Petition.

The second category of affidavits, according to the learned counsel are those to which the petitioner’s lead counsel referred in support of his submission. They made various allegations against individuals for committing illegal practices. Such affidavits have also been rebutted by denial of truthfulness of the allegations made by them. According to the learned counsel, the criteria of which witnesses to believe and which ones not to believe goes to the issue of burden of proof to the satisfaction of the court.

Mr. Peter Kabatsi, the Solicitor General, representing the 2uid Respondent, also criticized the affidavits filed in support of the petition. His arguments were similar to those advanced by Mr. Nkurunziza.

In reply to Mr. Nkurunziza’s submission on affidavits Mr. Balikuddembe contended that the document deponed to by Major (Rtd.) Okwir Rabwoni is an affidavit for use in court under section 3 of the Statutory Declaration Act 2000 (Act 10/2000). It is not a statutory declaration. As such, and by virtue of the provisions of section 4(1) of Act 10/2000 registration with the Registrar of Documents under s. 7(3) is not required. Counsel urged us to admit the affidavit as valid.

S.3 of Act 10/2000 provides:

“After the commencement of this Act, no affidavit shall be sworn for any purpose, except —