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

(a) where under any written law an affidavit is authorized to be sworn.”

Section 4(1):

“In every case to which section 3 does not apply, a person wishing to depone to any fact for any purpose may do so by means of a statutory declaration.”

With respect, I do not accept the learned counsel’s contention that Major (Rtd.) Okwir Rabwoni’s document is an affidavit. It appears to be a statutory declaration, although it is headed “Affidavit.” The document in my view, speaks for itself. After citing the parties to the petition, the document is headed ‘AFFIDAVIT’ and gives the particulars of the deponent as:

“Name: Hon. Major (Rtd.) Okwir Rabwoni M.R

Age: 32 years

Occupation: Member of Parliament

The introductory paragraph reads:

“I am a Ugandan Citizen of the above mentioned particulars I would hereby solemnly and sincerely declare as follows:”

This is followed by numbered paragraphs of statements contained in the document. It ends thus:

“AND I MAKE THIS SOLEMN DECLARATION consciefltI0Y believing the same to be true and by virtue of the Statutory Declaration Act 135.

Declared by the said OKWIR RABWONI - M.R

At (name of place not legible).

This 23 day of March 2001

Before me: (Name illegible).

Solicitor/Commissioner for Oaths.”

The expression “Commissioner for Oaths” is crossed off in the jurat, but it is apparent that the document was deponed to before a solicitor, not before a Commissioner for Oaths. Although the document is headed “Affidavit”, it appears to be clear that it is a statutory declaration. It the circumstances, section 7(3) of Act 10/2000 would apply to it. It would therefore, not be admissible in evidence unless it was registered with the Registrar of Documents. Though not so registered it is obviously not an illegal document. The main purpose of the requirement for registration of such a document, in my view, appears to be for authentication of receipt of the document in Uganda and, must be also, for raising some revenue in addition, since fee is payable for registration. To me, the requirement is a technicality which should not vitiate the validity of the document. This is where substantive justice should be administered without undue regard to technicality as article 126(1) (e) of the Constitution requires. For these reasons, in my view, the document of Major (Rtd.) Okwir Rabwoni is admissible in evidence in these proceedings.

Mr. Balikuddembe next commented on the affidavits criticized for having been commissioned by advocates who were allegedly counsel for the Petitioner. He said that at the time the affidavits were commissioned by advocates, Wycliffe Birungi and Kiyemba Mutale, they had no instruction to represent the Petitioner as his counsel in this petition. However, on the day the hearing of the petition commenced, the tow advocates were robed and seated in a row of seats behind Mr. Balikuddembe That was when he introduced them to the Court as part of the Petitioner’s team of Lawyers. When Mr. Balikuddembe subsequently consulted the Petitioner, the latter informed him that he had instructed ten Lawyers only, Mr. Wycliffe Birungi and Mr. Kiyemba Mutale not being amongst them. That was the reason Mr. Balikuddembe prayed for grant of a certificate for 10 counsel for the petitioner when he made his closing submission in the petition.

Mr. Balikuddembe further submitted in the alternative, that the prohibition in section 5(1) is against a Commissioner for Oaths commissioning a matter in which he is an advocate or has interest. The section is silent about the fate of such affidavit or document. Learned counsel contended that non compliance with section 5(1) of the Commissioners for Oaths (Advocates) Act does not render an affidavit deponed to by an innocent party invalid. The affidavit in question should remain valid. This argument is in the alternative if the Court holds that the two gentlemen were Lawyers representing the Petitioner and, therefore, should not have commissioned the affidavits.

In my view, the explanation by Mr. 8alikuddem that Mr. Wycliffe Birungi and Mr. Kiyemba Mutale were not the Petitioner’s Lawyers when they commissioned the affidavits and that they, in fact, were not instructed by the Petitioner to represent him in the petition is sufficient explanation to leave the relevant affidavits unaffected by the provisions of section 5(1) of the Commissioner for Oaths (Advocates) Act. It is, therefore, not necessary to consider Mr. Balikuddembe’s alternative argument about the affidavits.

With regard to affidavits which offend the provisions of Order 17, rule 3 of the C.P.R. Mr. Balikuddembe submitted that this Court has discretion on the evidence by the affidavits in question. It can accept and act on parts of an affidavit which are valid and reject what it considers to be defective, just as it does with oral evidence from witnesses. I accept this argument.

I do not think that an affidavit should be rejected in its entirety because it is vitiated by a defective aspect of the document if there are parts of the affidavit which conform to O.17.r3 of the C.RR or the affidavit is otherwise valid. Defective parts of affidavits should be severed from valid ones. This in my view should be done in the interest of substantive justice without due regard to technicalities. Courts do accept and act on parts of oral evidence from witnesses who personally give testimony in Court, where some evidence is credible or otherwise conform to legal requirements and reject those which do not.

In my view, the same consideration should be given to evidence by affidavit.

To me, there would appear to be no proper reason for treating evidence by affidavit differently. A part or parts of an affidavit which are defective should be severed from the part or parts which is credible or conform to legal requirements. While the valid part should be admissible evidence, the defective part should be rejected. This should be done in the interest of 5drniniStering substantive justice without undue regard to technicalities. Some decided cases support the view that defective parts of affidavits may be severed from parts which are otherwise valid. See: Motor Mart Application No. 6/99 (SCU) (unreported). Reamation Ltd vs. Uganda CP-operative Creameries Ltd., Civil Anneal 7/2000, (SCU) (unreported); Nandala v Father Lyding 1963 EA 706 Mayers and Another VS Akira Ranch 1969 E.A. 169- and ZoIa VS Ralli (1969) E.A.691

In the instant case many of the affidavits to which the 1st Respondent’s learned counsel objected are similar to those in: Nandalas case (supra). The respondents speak of what they saw or heard. In my view the defective parts of the affidavit should be severed from the valid ones. That is what I shall do in this case. The decided cases to the effect that affidavits are not severable and that any defect in an affidavit vitiates the entire document which the 1st Respondent’s learned counsel cited should, I think, not apply to the affidavits in this case for the reason I have given in this judgment.

Another reason is that a short time of only ten days is the period within which under rule 5 of the Rules, like in the instant case, a petitioner in an election petition has to file his/her pleadings together with supporting affidavits and other documents. The affidavits, in effect, are part of the pleadings. It is doubtful, in my view, if this is sufficient time to collect all the evidence a petitioner may need to file affidavits together with the petition. This, of course, is no excuse for affidavits which do not comply with the law, but I think nevertheless that it is a good reason for severing such affidavits.

Burden and Standard of Proof

Section 58 of the Act provides:

(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 —

(a) non-compliance with the provisions of this Act if the court is satisfied that the election was not conducted in accordance with the principles laid down in those provisions and that the non-compliance affected the result in a substantial manner;

(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”

[The underlining is mine]

Sub — section 6(b) is not relevant to this case.

Mr. Bitangaro and Dr. John Khaminwa, both counsel for the 1st Respondent made similar submissions on this matter. Dr. Khaminwa submitted that the burden to prove that the election in this case should be nullified is on the petitioner and the burden does not shift. The standard to prove non compliance with the Act to the satisfaction of the court is very high. It is far above the balance of probability. It is near the standard of proof beyond reasonable doubt. For this submission, learned counsel relied on sections 100, 101, 102 and 103 of the Evidence Act and on many decided cases, including: Bater v Bater [1950] 2 ALL E.R. 458, Mbowe vs Eliufoo [1967] E.A 24O, Guru vs. Sharpe [1974] 1 QB 808 Margaret Zziwa vs C. Nava Nabagesera Civil Appeal No. 39/97 CAU (unreported) Odetta Henry John vs Omeda O’max Election Petition No. 1/96 (HCU) (unreported). Dr. Khaminwa urged us to follow Mbowe (supra) which, according to him, had been followed in many election petition cases in Uganda. For instance, in: Y. K. Bategana Vs Musherueza and others Election Petition No. 1/96 (HCU) (unreported).

Mr. P. Kabatsi, the learned Solicitor General, associated himself with the submissions of the 1st Respondent’s learned counsel in this regard.

In reply, Mr. Balikuddembe submitted that the cases on burden and standard of proof on which the Respondents’ counsel have relied are only persuasive and not binding on this court, which is correct, in my view. In any case they make it clear that an election petition is not a criminal trial learned Counsel contended. It is, therefore, not correct to say that the standard of proof is that beyond reasonable doubt or that it is very high. Learned counsel submitted that the expression “if proved to the satisfaction of the Court” appearing in s.58 (6) of the Act imposes a standard of proof that is well below that which is required for conviction in a criminal trial. The standard of proof required under s.58 (6) is just above mere balance of probabilities. It is akin to the standard of proof for fraud in civil cases.

As I see it, Mbow’se case (supra) appears to have acted as an anchor for decisions in election petition cases in this Country during the last several years. It is the one case courts have invariably “followed” with regard to the meaning of the expression “if proved to the satisfaction of the court”, which is a requirement in our electoral laws for setting aside the result of an election. The often quoted view of Georges, CJ. on the subject in that case runs like this:

“There has been much argument as to the meaning of the term “proved to the satisfaction of the court.” In my view, it is clear that the burden of proof must lie on the petitioner rather than on the respondent because it is he who wants this election declared void. And the standard of proof is one which involves proof “to the satisfaction of the court.” In my view these words in fact mean the same as satisfying the court. There have been some authorities on this matter and in particular there is the case of: Bater v Bater [1950] 2 ALL E.R. 458 That case dealt not with election petitions, but with divorce, but the statutory provisions are similar. i.e. the Court had to be satisfied that a matrimonial offence had been proved, in this case, in my view, that we have to be satisfied that one or more of the grounds set in s.99(2)(a) has been established. There DENNING, L.J, in his judgment took the view that one cannot be satisfied where one is in doubt. Where a reasonable doubt exists then it is impossible to say that one is satisfied, and with that view I quite respectfully agree and say that the standard of proof in this case must be that one has no reasonable doubt that one or more of the grounds set out in s.99 have been established.”

The view of Denning L.J. (as he then was) in Bater vs Bater (supra), to which Georges — CJ referred with approval in Mbowe’s case (supra) was expressed in the following terms at page 459:

“The difference of opinion which has been evoked about the standard of proof in these cases may well turn out to be a mere matter of words than anything else. It is true that by our law there is a higher standard of proof in criminal cases than in civil cases but this is subject to qualification that there is no absolute standard in either case.

In Criminal cases the charge must be proved beyond reasonable doubt, but there may be degrees of proof within that standard. Many great judges have said that in proportion as the crime is enormous, so ought the proof to be clear. So also in Civil cases. The case may be proved by a preponderance of probability but there may be degrees of probability of that standard. The degree depends cm the subject matter. A civil court, when considering a charge of fraud, will naturally require a higher degree of probability than that which it would require if considering whether negligence was established. It does not adopt so high a degree as a criminal court, even when it is considering a charge of a criminal nature, but still it does not require a degree of probability which is commensurate with occasion, likewise a divorce court should require a degree of probability which is proportionate to the subject matter. I do not think the matter can be better put than SIR WILLIAM SCOTT put it in: Loveden vs Loveden (1810) 161 ER 648

“The only general rule that can be laid down upon the subject is that the circumstances must be such as would lead the guarded discretion of a reasonable and just man to conclude ……”

The degree of probability which a reasonable and just man would require to come to a conclusion — and likewise the degree of doubt which would prevent him from coming to it — depends on the conclusion to which he is required to come. It would depend on whether it was a criminal case or a civil case, what the charge was, and what the consequences might be, and if he was left in real and substantial doubt on the particular matter he would hold the charge not to be established. He would not be satisfied about it.

What is a real or substantial doubt? It is only another way of saying a reasonable doubt and a reasonable doubt gets one no further. It does not say that the degree of probability must be as high as ninety per cent, or as low as fifty-one percent. The degree required must depend on the mind of the reasonable and just a man who is considering the particular subject matter. In some cases fifty one percent would be enough but not in others. When this is realized, the phrase “reasonable doubt” can be used just as aptly in a Civil case or a divorce case as in a criminal case, and indeed it was so used by BACK WILL, L.J., in Davis VS Davis (1950) 1 All E.R 40 and Gower vs Gower (1950) 1 All E.R. 804 The only difference is that, because of our high regard for the liberty of the Individual a doubt may be regarded as reasonable in the Criminal Courts which would not be so in the Civil Courts.”

As it is apparent from this passage of the judgment of Denning L.J., to which I have just referred in: Bater vs Bater (supra) he did not say that “proof to the satisfaction of the Court” meant the same as “proof beyond reasonable” as Georges CJ, apparently said in: Mbowe’s case (supra), and as courts in many election petition cases in this Country have held.

In the instant case the learned counsel for both the l and 2 Respondents have suggested a standard proof which is higher than proof on a preponderance of probabilities but short of proof beyond reasonable doubt. I agree with them.

In my view the word “satisfied” is a clear and simple one and one that is well understood. I would have thought that interpretation or explanation of the word would be unnecessary. It needs no addition. From it there should be no subtraction. The Courts must not strengthen it; nor must they weaken it. Nor would I think it desirable that any kind of gloss should be put upon it. Parliament has ordained that a court must be satisfied. Only Parliament can prescribe a lesser or more requirement. Parliament would have said in the Act that election offences should be proved on the balance of probability or beyond reasonable doubt if it wanted to do so. It did not, and left it to the discretion of the courts or judges what is meant by being “satisfied.”

All that is required, in my view, is that the Court must be satisfied that alleged grounds for annulment of an election have been proved, If it has reasonable doubt then the court is not “satisfied.” This is different from saying that for a court to be satisfied, proof must be made beyond reasonable doubt. If in election petitions, illegal practices or non-compliance have to be proved beyond reasonable doubt, then there would appear to be no need for criminal proceedings to be instituted under section 58(9) of the Act.

With regard to the burden of proof, it is the respondent who has to prove to the satisfaction of court the grounds on which the election should be nullified. The burden does not shift.

I shall now proceed to consider the issues in this petition on the basis of my views expressed herein regarding affidavit evidence, burden and standard of proof.

At the commencement of hearing the Court, in consultation with the counsel for the parties, framed the following five issues for determination:

1. Whether during the 2001 election of the President there was non — compliance 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 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 respondent personally or with his knowledge and consent and approval.

5. What reliefs are available to the parties?

I shall consider the issues in the order in which they have been framed. Many paragraphs of the petition are relevant to the first issue, and I shall deal with them according to the order in which the Petitioner’s learned counsel argued them. So with the other grounds. I shall also reproduce them as I consider them. It should be pointed out at the outset that some of the grounds of the Petition overlap or are repetitive in some parts. The Respondents made no objection on that ground. I shall, therefore, say no more in that regard except when it is necessary to say that a point in a ground of the Petition has been considered together with a similar point in another.

Paragraph 3(1)(d) and (e) - non-compliance regarding Voters’ Register:

(d). contrary to section 32(5) of the Act the 2nd respondent completed compiling a purported Final Voters’ Register on Saturday 10—March 10, 2001, and failed when requested by the Petitioner to supply copies of the same to the Petitioner and his agents although the petitioner was ready and willing to pay for the same.

(e). That contrary to sub-section (e) and section 18 of the Electoral Commission Act the 2nd Respondent failed to compile, maintain and up-date the National Voters’ Register, the Voters’ Roll for each Constituency and Voters’ Roll for each Polling Station within each Constituency and as a result the Voters’ Register and the said Voters’ Rolls contained many flaws such as dead people’s names and names of those who ought not to vote in Uganda remaining on the Register while several persons who were eligible voters had their names omitted from the said Register and Rolls”

There is an apparent contradiction between the two grounds, one saying that the Voters’ Register was completed late; the other saying that there was a completed failure to do so.

The 2d Respondent countered these allegations by his Answer to the petition as follows:

“3. In reply to paragraph 3(1) (d) of the petition the Second Respondent denies ever refusing any request by the Petitioner for copies of the final Voters’ Register as alleged but non — delivery thereof was due to insufficient time to prepare the register.

4. In reply to paragraph 3(1)(e) of the Petition, the 2” Respondent avers:

(a) That it is not true that it (the 2” Respondent) failed to efficiently compile maintain and up-date the National Voters’ Register or the Voters Rolls for Constituencies and Polling Stations and further that it has no knowledge of the allegations that dead people’s names and names of the people who ought not to vote in Uganda remaining on the Register while several persons who were eligible voters had their names omitted from the Register and Rolls as alleged.

(b) That even if the said allegations were true which is not admitted, this could not and did not affect the results of the presidential elections substantially or at all.

(c) Further, even if the said allegations were true, which is not admitted, those allegations do not constitute a ground upon which the election of a candidate as president can be annulled”

It is convenient here to set out the legal provisions concerning the functions and powers of the 2nd Respondent, the requirements for registration of Voters and Voters’ Register. They are relevant to these grounds of the petition.

Under section 29(4) of the Act, only a person whose name appears in the Voters’ Roll of a Polling Station and who holds a valid Voters’ Card is entitled to vote at the Polling Station.
Under section 1(1) of the Act a “Voter” means a person qualified to be registered as a voter at an election who is so registered and at the time of an election is not disqualified from voting. “Voters’ Register” means the “National Voters’ Register” compiled under section 18 of Act 3/97. “Voters’ Roll” means the Voters’ Roll of any Constituency or Parish prepared and maintained under the Act 3/97.

The 2F,d Respondent is established by Article 60 of the Constitution and its functions are stated in article 61, as follows:

(a) to ensure that regular free and fair elections are held;

(b) to organize conduct and supervise elections and referenda in accordance with this Constitution;