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

During the campaign period, the team was very much concerned about certain reports of acts of violence and intimidation, which led to loss of lives. Given the above mentioned technical observations and other few technical short comings, it is the view of the OAU Observer Team that the exercise was conducted transparently and in a satisfactory manner.”

The Lybian Ambassador was also invited by the 2nd Respondent to observe the 2001 Presidential Election. In his report, he said that he had observed the election in parts of Kampala and Jinja Districts. He commended the 2nd Respondent for its organization that allowed the people of Uganda to freely exercise their democratic rights. He was particularly satisfied with the restraint of the Army and Police Forces from interfering and in providing the necessary security; the high turnout of the electorate; the 2nd Respondent’s efforts to ensure adequate technical arrangements for the polling in a transparent manner in accordance with the existing laws; the wide coverage of the mass media; and the active and significant role played by the local monitors.

An observer team from Tanzania consisted of 4 members. They observed the election process in seven polling stations in Kampala Central and in six other polling stations. They made a short report, that in general, the process was transparent and correctly conducted. There were no shortages of electoral materials; the voting atmosphere was calm and peaceful.

A Nigerian team, consisting of five members observed the election in Kampala and Jinja. Their report is similar to those of the other observer teams. So was the report of the Gambian team which observed polling at only one polling station in Kampala.

There is no indication whether there were more observer teams than those whose reports are attached to Mr. Kasujja’s affidavit.

I wish to make only a couple of comments on the observer teams’ reports.

They can hardly be taken seriously, in my view, because the teams were here for only a few days and their reports concern only a few polling stations in a limited area of the Country. Consequently, what they reported about, do not reflect what happened in the entire Country. Kampala and Jinja is not Uganda. By nature of their short visit that was to be expected.
Secondly, many African Countries are not famous for conducting free and fair elections. This is common knowledge. In one of them Presidential elections have never been held at all. In many of them only the elections which the incumbents have to win are held. As for the OAU, its founding Charter and the Charter for Human and People’s Rights are famous for sounding democratic and other principles but it cannot, in my view, be praised as an organization of democracies in which their Citizens, in practice, enjoy their fundamental rights and freedoms.
In the circumstances, I am satisfied and find that the election under inquiry was not conducted in accordance with the principles laid down in the Act. My answer to the second issue is, therefore, in the positive.

I shall next consider the third issue in the Petition, which is whether, if the first and second issues are answered in the affirmative, such non-compliance with the provisions and principles of the Act, affected the results of the election in a unsubstantial manner.

Section 58(6) (a) of the Act provides:

“58(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 of the election in a substantial manner.”

I have already found and held that during the election under consideration, there was non-compliance with provisions of the Presidential Election Act 2001, and that the said election was not conducted in accordance with the principles laid down in the provisions of the Act. These are two of the three conditions under s.58 (6) (a) of the Act, for annulment of election of a candidate as President. The third and only other condition is what is stated here as the third issue.

Mr. Mbabazi and Mr. Walubiri made submissions for the Petitioner under the third issue. Mr. Mbabazi did so at the beginning and by way of a reply to submissions by Dr. Khaminwa and Mr. Kabatsi for the 1st and the 2nd Respondents respectively. Mr. Walubiri also submitted by way of a reply at the end.

Mr. Mbabazi submitted that the incidences of various non-compliance with the provisions and principles of the Act proved by the Petitioner affected the result of the election in a substantial manner. He contended that it is the value which matters, not numbers. He then recalled the incidences of non-compliance with provisions of the Act such as violation of the right to vote under article 59 of the Constitution; stuffing of ballot papers in ballot boxes; falsified declaration of results; voting by people not qualified to vote; the absence of an up dated Voters’ Register, etc. He submitted that the court has to look at all the noncompliance with the provisions of the Act. So, too, at compliance with the principles of the Constitution, Act 3/97 and the Act. Principles which come from there include the right to vote, free and fair election, universal adult suffrage, secret ballot, and transparency, free and fair election. The totality of all this, learned counsel submitted, is that you must have a valid election under section 58(1) of the Act under 104 of the Constitution. There must be a President who is validly elected. Compliance with the law and the principles are necessary for a valid election. Compliance with the provisions and principles of the Act has to be total. Only the effect on the result has to be substantial.

In his submission under this issue Dr. Khaminwa referred to Halsbury’s Laws of England, 4th Edition, Vol 15 from paragraph 401, which sets out the law in this case, Learned Counsel then submitted that if mistakes have been trivial they must be viewed against the preamble to and the objective of the Constitution of Uganda. In this Petition, the Court is concerned with a Presidential election, not a Parliamentary election. A Presidential election is more important. If there have been trivial errors, you do not annul the election. Learned Counsel referred to Gunn vs. Sharpe (1974) 1 QB.808 in which the court in that case quoted with approval what had been said in Re: Hackney Election Petition (1874) 3.LT 69 at page 72 to the effect that an election is not to be upset for an informality or for a triviality. The objection must be something substantial, something calculated really to affect the result of the election. The judge is to look at the substance of the case and to see whether the informality is of such a nature as to be fairly calculated in a rational mind to produce a substantial effect upon the election. Learned counsel also relied on Mbowe_vs._Eliufoo_(1967)_EA,_240.'>Mbowe vs. Eliufoo (1967) EA, 240. He urged us to follow Mbowe (supra). The effect of that decision, counsel contended, is that the will of the people should not be interfered with by annulling the results of the election in which it has been expressed.

Dr. Khaminwa also relied on V K. Bategana vs. E. L. Mushemeza, Election Petition No. 1 of 1996 (HCU) (un reported), in which it was decided that non-compliance with certain provisions of the Parliamentary Election (Interim Provisions) statute, 1996, did not affect the result of that election. Noncompliance in that election included non-display of the Voters’ Register, and voting by un registered voters. In the instant case, the learned counsel submitted that the Petitioner should have supplied numbers, for instance, of the people who voted but should not have voted because they did not have Voters’ Cards, or were below the age of voting, and, yet they voted, etc. Learned counsel said that in conduct of the election, there might have been errors. To err is human. But under the third issue the Petitioner had to show that the transgressions, the irregularities, etc, affected the result of the election substantially. Frank Mukuunzi, the Petitioner’s witness, in his report said that he was not able to determine what effect the errors he reported about had on the result of the election. Learned counsel contended that the 1st Respondent obtained 5,123,316 of the votes cast, that being 69.30%; and the Petitioner obtained 2,055,795 of the votes cast, which was 27.08%. In his view that was a lot of votes cast for the 1st Respondent. Such figures could come out only from a free and fair election. The difference in votes between the 1st Respondent and the Petitioner was over 3 million. The total votes cast were 7,576,144 out of 10,775,836 registered voters.

The learned counsel contended that if the electoral errors were trivial according to the laws of Uganda, the result of this election should not be annulled.

It is not sufficient that there have been irregularities, but the Petitioner must go further and say how they affected the result of the election. Ground 3(1) (y) of the Petition pleaded that as a result of non-compliance with the provisions of the Act, the result of the election was affected in a substantial manner. This was then followed by items showing how the result was said to have been affected. Dr. Khaminwa said that neither in the pleadings nor by evidence was it shown how many people were disenfranchised; how many under-aged children voted; how many ineligible people voted; and how many people were affected by the various irregularities. Regarding the Petitioner’s complaint against deployment of soldiers, Dr. Khaminwa said that the army is a specific means of power which is at the disposal of a government.

The power of the State is no mystical force concealed behind the State or its law; it is part of the effectiveness of the National Legal order. For this, the learned counsel relied on Introduction to Jurisprudence by Lord Lloyd Homestead, 3rd Edition, page 326.

My comment on the Dr. Khaminwa’s submission on the Army is briefly that there is no question that the army is an instrument of power at the disposal of the State. That, in my view is stating the obvious. But my considered opinion is that deployment and use of the Army must be according to the Constitution and other laws in force.

In his submission under the third issue, Mr. Kabatsi said that the answer must be in the negative. Even if the Court were to find that in some instances there was evidence of non-compliance with provisions and principles of the Act, the Petitioner had failed to demonstrate by evidence that such non-compliance affected the result of the election at all and least of all in a substantial manner. Mr. Kabatsi said that when Mr. Mbabazi was asked to give any figures, he did not do so. Not any breach of the Constitution is adequate to annul the election, Mr. Kabatsi submitted. That duty can only be discharged if there are figures to prove it. Frank Mukuuzi,s evidence had failed to prove it. The incident of shooting in Rukungiri was an isolated incident, which did not happen in the other 50 or more Districts of Uganda. It did not affect the result in a substantial manner. The authorities on standard of proof which the 1st Respondent’s counsel have cited, Mr. Kabatsi submitted, show that the Petitioner did not discharge the burden imposed on him and did not satisfy the court in terms of section 58 of the Act. In the circumstances, Mr. Kabatsi submitted the court should answer the third issue in the negative.

In his submission under the third issue, Mr. Walubiri said that if the court answers the first and second issues in the affirmative, the Court has to determine under the third issue whether non-compliance with the law and principles affected the result in a substantial manner. Learned counsel submitted that his learned colleague, Mr. Mbabazi, had catalogued the malpractices in practical terms. He then showed how the non-compliance with the Act led to non-compliance with the principles. The Petitioner’s case was that the non-compliance affected the results of the election in a substantial manner. It is common ground, counsel submitted, that these principles derive from the Constitution, translated into the Act. They derive from the need to reverse our painful history, now stated in the preamble. The principles are meant essentially to promote peace, equality, freedom and social justice. They are in the Constitution and National Objectives. They are meant to encourage active participation of all Citizens at all levels in their governance. Article 2(1) tie with the sovereignty of the people. In terms of a Presidential election, the overriding principle as the bench mark is that the election must be free and fair. By article 61(a), the 2nd Respondent is mandated to carry out the people’s will provided for in article 1(4) of the Constitution.

The learned counsel submitted that contrary to the contention by the learned counsel for the 1 and 2nd Respondents, the test is not numbers. The essence of the case on the other side is that the Petitioner must prove by numbers how many people were prevented from voting, how many people were intimidated, etc. The Respondents’ Counsel also relied on the cases of Mbowe (supra) and Ibrahim vs. Shagari (1985) LRC. Mr. Walubiri submitted that such approach is wrong, and that the two authorities on which the Respondents have relied are at variance with the values under pinning our Constitution and electoral laws. The Tanzanian case of Mbowe (supra) was decided in 1966 and was dealing with a political and institutional setting no longer applicable to the Tanzania of today, nor, to the Uganda of today, with its present Constitution and electoral laws, Mr. Walubiri therefore, urged us to disregard Mbowe (supra).

Instead, he submitted, we should follow the more modern Tanzanian case of Attorney General vs. Kabourou (supra). Learned counsel also urged us to ignore the Nigerian case of Shagari (supra), saying that the decision did not assist to promote political and social stability in Nigeria. It was followed by two decades of military dictatorship. Nigerians had to start all over again on the road to democracy and the rule of law. In the learned counsel’s view, it is dangerous to judge values and democracy by using numbers. He contended that in the instant case, to determine whether non-compliance with the law and principles affected the result in a substantial manner is a value judgment. It is a qualitative judgment, not a quantitative judgment. Those who wrote our Constitution in 1995 were clear in their minds about elections. They had seen the history of Uganda, and of the World regarding various elections. You can have lining up behind candidates or elect by show of hands. Numbers would be there. You can elect without a Voter’s Register or without a campaign or have only one candidate. All those would be elections. Not all numbers can satisfy our principle of free and fair election. If the election is not free and fair then, as Mr. Mbabazi has submitted, Article 104 of the Constitution and s.58 of the Act would render it invalid. Learned counsel contended that the court has to look at the entire election process from the campaigns to registration of voters to polling day and to the results etc., and assess that entire process to see whether it was a free and fair election. It is a value judgment to say whether the election was free and fair.

The learned counsel submitted that on the facts before the Courts in this case, the non-compliance with the laws and principles cannot be arithmetically quantified and numbers cannot be used to say that the result of the election was affected substantially. It is not possible, for instance, to quantify how many voters were affected by lack of freedom in Rukungiri, by the trauma caused by killing a supporter in Rukungiri, and by the abduction of Rwaboni. The Court should draw an inference from the general picture as a whole.

Regarding views of teams of international observers on which the 2nd Respondent has relied, Mr. Walubiri said that the reports do not rely on figures but on value judgment, unlike the learned Counsel for both the Respondents. In my view, that is a valid point, which appears, with respect, to indicate an application of double standards. Finally, Mr. Walubiri urged the court to look at the evidence of hundreds of witnesses called by the Petitioner, draw an inference and conclude that the election was not free and fair and it should nullify the election.

Alternatively, Mr. Walubiri submitted that the evidence of Frank Mukuuzi, the Petitioner’s witness, to which a report of his analysis of declaration of results from randomly selected 254 polling stations are attached indicates that there were 2,597,000 ghost voters. One in every three voters was a ghost voter. This, learned counsel submitted, had a substantial effect on the result of the election. Frank Mukuuzi is the Petitioner’s witness whose qualification and evidence Mr. Kabatsi attacked vigorously. I shall revert to his evidence only if necessary.

I agree with what was said in Gunn vs. Sharpe (supra) that an election (whether a Presidential or parliamentary) is not to be upset for an informality or a triviality. The objection to an election must be something substantial, something calculated really to affect the result of the election. The court should look at the substance of the case and see whether the informality or errors are of such a nature as to be firmly calculated in a rational mind to produce a substantial effect upon the election. I am very conscious of the importance of the principle which occurs throughout election cases, which I have looked at, that elections should not be lightly set aside simply because there have been informalities and errors. A similar view was expressed in Hackney Election Petition (supra). That principle, no doubt is the reason behind the provision of sub-section (6) (a) of section 58 of the Act.

In this connection, I am also persuaded by what was said by I.D.Dua, J in Gianshand vs. Sm.Ou Prablia, AIR 1959 Punjab 66 (V46 C. 21), 66. This was at a time when India, like Uganda, had just embarked on the road to democracy. Dua, J said on page 69:

“It has often been stressed that it is in the interest of justice not to throw out an election petition on hyper-technical grounds and in the trial of election petitions where the purity, of election is questioned; and the Tribunal trying the Petitions should afford every possible facility, in its power, to ensure such inquiry.

I am not unmindful of the undesirability of lightly setting aside elections on inadequate, flimsy or frivolous grounds; at the same time it is, in my opinion, of the uttermost importance for the healthy growth of parliamentary system of Government and of true democracy that the purity of the election process should be jealously safeguarded, and people should not be allowed to get elected by flagrant breaches of the law of elections and by corrupt practices. Enquiry into allegations of corrupt practices, therefore, should not be throttled by dismissing election petitions on unsubstantial or highly technical grounds.”

In my opinion, the principles expressed in that Indian case equally apply to an election petition after a full trial. I also think that the principles apply to the instant election petition.

I am also persuaded by the case of — Attorney General vs. Kabourou (1995) 2 LRC. 757 regarding grounds upon which an election result should be nullified. In that case a Parliamentary election result was nullified on grounds of noncompliance with certain provisions and principles of the relevant electoral statute. The result of the election was not nullified because adjustment of numbers made the result much closer than was originally the case. I would apply that the reasoning in that case to the present Petition.

The Shagari case (supra) on which the Dr Khaminwa relied is distinguishable from the instant case. Although allegations of non-compliance with the relevant law were similar to those in the instant case, the Petitioner in that case failed to prove the alleged non-compliance. On the contrary, his witnesses did a disservice to him. Their evidence disproved his case for him. Another ground for dismissal of the Petition was that the 1st Respondent had scored 12,047,648 votes and the Petitioner only 540,928. The Petition in that case did not therefore, fall on numbers alone.

The Tanzanian case of Mbowe (supra) was a case in which the unsuccessful candidate in a certain parliamentary constituency, petitioned the High Court for an order to nullify the election, Georges, CJ, dismissed the Petition.

In that election, the registered voters were 30,889; the respondent polled 20,213, and the petitioner, 6,399; and the majority was 13,820. That court found that none of the grounds of the petition was proved by the petitioner’s evidence. The learned C.J. there said:

“In my view in the phrase “affected the result” the word “result” means that a certain candidate won and another candidate lost. The result may be said to be affected if after making adjustments. For the effect of proved irregularities the contest seems much closer than it appeared to be when first determined. But when the majority is so large that even a substantial reduction still leaves the successful candidate a wide margin, then it cannot be said that the result of the election would be affected by any particular non-compliance.”

Again, I think that the Mbowe case (supra) is distinguishable from the instant case because the Petition was really rejected because of none of the grounds on which it had been brought was proved. The remark to the effect that the result of an election is affected if adjustment of the votes scored by the parties results in narrowing the gap between them was, apparently, unnecessary. It was obiter. But it made the point that the result of an election is affected in a substantial manner if the margin of winning as shown by figures can be narrowed or adjusted as a result of proven errors or non-compliance. Another reason for distinguishing the Mbowe case is that the principles embodied in our Constitution and electoral laws were not applicable to the Tanzania of the time.

When the Tanzanian Court of Appeal decided the case of Attorney General vs. Kaborou (supra) in 1 994, it was guided by a democratic constitution, one in which one of the fundamental principles of which was the rule of law.

“Under this principle,” Nyalali, C. J., said, “nobody is above the law of the land and similarly nobody is authorized to act unconstitutionally or illegally.” This principle did not figure in Mbowe’s case (supra).

For those reasons, I have no doubt that the case of Mbowe (supra) is not applicable to the instant Petition.

When I answered the first and the second issues in the affirmative,, it was after what, I believe, to be a thorough examination of the provisions and principles of the Act, according to which this election should have been held, and a substantial evaluation of the relevant evidence, which I found credible. After doing so, I reached the conclusion that the conduct of the election had not been free and fair and was not in accordance with the provisions and principles laid down by the Act. I said that the entire election process had to be examined, not only what happened on Election Day. In the circumstances, it is my considered opinion that in deciding what effect the non-compliance with the provisions and principles of the Act had on the result of the election under consideration arithmetical numbers or figures are not the only determining factors in deciding whether non-compliance with the provisions and principles of the Act, did, or did not, affect the result of the election in a substantial manner. Figures, in the main, are the outcome of one day’s exercise, the polling day. The indications of which candidate won and which one lost are the result of the margin between the figures obtained by the two. It is obtained at the end of the polling day. Numbers or figures of course, are terribly important, but to me, they are not the only, yard stick for assessing the quality or purity of an election. Whether or not non-compliance with the provisions and principle of the Act, in the instant case, affected the result of the election in a substantial manner is, in my considered opinion, a value judgment. Figures cannot tell the whole story. In the instant Petition figures and numbers would not show, for instance, the effect on the result of the failure to compile Voters’ Register; failure to gazette all Polling Stations; failure to display Voters’ Rolls for 21 days; they would not show the effect of armed soldiers or others at polling stations; they would not show the effect on the result of intimidation, harassment, threats, by the PPU, the UPDF, DISCs, LDUs, and supporters of the 1 Respondent. Numbers would not show the effect on the result or impact of killing Beronda, by PPU; and of the abduction of Okwir Rwaboni, by the PPU with all the attendant media publicity, the incidences had, on the general public. Figures would not show the effect on the result of chasing away the Petitioner’s agents from polling, stations or forcing them to sit where they could not see what was happening at the Presiding Officers’ table, etc. I am also doubtful whether numbers would also show the effect on the result of stuffing ballot boxes with ballot papers; of multiple voting; of voting by under aged voters. Without opening and checking ballot papers in all the ballot boxes throughout the Country, I doubt that numbers would show the effect on the result of mis-tallying of votes as indicated by the numerous declarations of results forms and tallying sheets put in evidence by the Petitioner.

In my considered opinion an accumulation, or sum total of the non-compliance with the provisions and principles of the Act, is the value yardstick for measuring the effect of non-compliance with the provisions of, and principles laid down in, the Act.

For these reasons and those I gave for my decision that the election under consideration was not conducted under conditions of freedom and fairness, that it was not conducted in compliance with the provisions and principles of the Act, my considered opinion is that such non-compliance with the provisions and principles of the Act affected the results in a substantial manner. My answer to the third issue is, therefore, in the affirmative.

In the circumstances, I would nullify the election of the 1st Respondent as President of Uganda under section 58(6) (a) of the Act.

I shall now proceed to consider the fourth issue in the Petition. It is whether an illegal practice, or any other offence under the said Act, was committed, in connection with the said election, by the 1st Respondent personally, or with his knowledge, and consent or approval.

Section 58(6) provides:

“