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

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)……………………..

(h)………………………….

(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 knowledge.”

In this Petition the Petitioner alleged that the 1 Respondent committed more than one illegal practice or other offences in connection with the election. Ground 3(2) (a) of the Petition pleaded:

“3(21(a). Contrary to section 65 of the Act candidate Museveni Yoweri Kaguta publicly and maliciously made a false statement that your Petitioner was a victim of Aids without any reasonable ground to believe that It was true and this false statement had the effect of promoting the election of candidate Museveni Yoweri Kaguta unfairly in preference to your Petitioner alleged to be a victim of AIDS as voters were scared of voting for your Petitioner who by necessary implication was destined to fail to carry out the functions of the demanding office of President and to serve out the statutory term”

In his affidavit in support of the Petition, the Petitioner said:

“51. I know that I am not suffering from AIDS, but the Respondent maliciously made false allegation that I was a victim of AIDS without any reasonable grounds for believing that that was true and this false and malicious allegation against me had the effect of promoting the election of the 1st Respondent unfairly in preference to me alleged to be a victim of AIDS as voters were scared of voting for me who by necessary implication was destined to fail carry out the functions of the demanding office of President and serve out the statutory term. I hereby attach a copy of the Monitor of 8t March, 2001, reporting the 1st Respondent’s false statement and it is marked “R22”.”

In his Answer to the Petition the 1st Respondent countered these allegations as follows

The statement that the “Petitioner was a victim of AIDS” was not made by the 1st Respondent publicly or maliciously for the purpose of promoting or procuring an election for himself contrary to section 65 of the Act. However, it is also true that a companion of the Petitioner, Judith Bitwire, and her child with the Petitioner died of AIDS. The 1st Respondent has known the Petitioner for a long time and has seen his appearance to bear obvious resemblance to other AIDS victims that the 1st Respondent had previously observed.”

In his affidavit filed with his Answer, the Respondent said:

“6. The statement that the “Petitioner was a victim of AIDS” was not made by me publicly or maliciously, for the purpose of promoting or procuring an election for myself.”

Section 65 of the Act creates the offence complained of in ground 3(2) (a) of the Petition. The section says:

“65. Any person who before or during the election publishes a false statement of the illness. . . . of a candidate at that election for the purposes of promoting or procuring the election of another candidate knowing that statement to false or not knowing or believing it on reasonable grounds to be true commits an illegal practice.”

Commission of an illegal practice by any person for the purposes and in the circumstances specified in section 65 is, therefore, a ground for nullification of the election of that candidate as President under s.58 (6) (c). The ingredients of an illegal practice under section 65, in my opinion are:

(I) the statement by any person of the illness of any candidate must be published before or during an election;

(ii) The statement must be false or made by the person not knowing or believing it on reasonable grounds to be true; and

(iii) The statement must be for the purpose of promoting or procuring the election of another candidate.

Paragraph 51 of the Petitioner’s affidavit dated 23-03-2001, filed with the Petition gives the purpose for which, according to the Petitioner, the 1st Respondent made the statement — the motive behind the statement.

In his affidavit in reply to the 1st Respondent, dated 5-4-2001, the Petitioner rebutted the Respondent’s affidavit. In that affidavit, the Petitioner said that he is a medical doctor. It was true that Judith Bitwire was his companion up to 1991 and that she died in 1999, but the Petitioner did not know the cause of her death. He had a child with her. The child died in 1991 but the child did not die of AIDS. The Petitioner said that the statement which the 1st Respondent admits having made that the “Petitioner is a victim of AIDS” was meant to stigmatise the Petitioner and undermine his candidature before the electorate through demoralizing his supporters and/or voters in general and promote the 1st Respondent’s own candidature against the Petitioner. The statement was false in all respects, and the 1st Respondent had never diagonised the Petitioner or tested the Petitioner and found him an AIDS victim and the Respondent had never asked the Petitioner about his health status. The Petitioner said that his appearance which is natural just like that of any person cannot be used to know or make one believe that he is a victim of AIDS. There is no obvious resemblance of AIDS victim and none has been given by the 1 Respondent. He is not and he has never been bed-ridden in his life and his able to work normally and during the Presidential campaigns he traversed the whole of Uganda without breaking down or feeling particularly fatigued. The 1St Respondent’s false statement that the Petitioner was an AIDS victim was made publicly in an interview with a Time Magazine Journalist called Marguerite Michaels for publication in the Time Magazine and Website known as — littp .//www.time. com/ time//magazine/print/o, 8816,101373, OOhtm/.”

The Petitioner said further that Time Magazine is sold all over the World including Uganda, where copies are purchased on the street. The Petitioner attached to his affidavit as annexture “P.26” a copy of the Magazine. The Website of Time Magazine is publicly available as an electronic version, which one can access, read down-wad or bring copies. A copy of the printed article by Marguerite Michaels was also attached to the Petitioner’s affidavit as annexture “P 27”

The Petitioner continued in his affidavit that the 1st Respondent thereafter explained the meaning of his statement at a Press Conference held on 11-03- 2001, with all Journalists and reporters, local and international, that his statement meant that State House is not a place for invalids. A President should be someone in full control of his faculties both mental and physical.
The Petitioner said that by referring to him as an invalid without all his faculties and incapable of being a President, the 1st Respondent undermined the Petitioner’s candidature before the voters while promoting his own candidature to the Petitioner’s prejudice at the election. The 1st Respondent’s statement at the Press Conference was published in News Papers in Uganda, namely The New Vision, and The Monitor, copies of which were attached to the affidavit as annexture “P 28”

The statement was also broadcast on all Radio Stations, in Uganda namely; Radio Simba, Central Broadcasting Service, Radio One, Capital Radio and Uganda Television. The Petitioner said that as a result of the 1st Respondent’s statements, the Petitioner’s agents appointed during the electoral process and some of his supporters expressed their concern about the Petitioner’s health status and sought for his explanation. He said that he knows the meaning of an invalid, but he is not an invalid as suggested by the 1st Respondent in his press conference held on 11-03-2001.

The affidavit of Dr. Ssekasanvu Emmanuel, dated 1-4-2001, was filed in support of the Petitioner’s Petition. It was a rebuttal of the 1st Respondent’s affidavit filed with his Answer. Dr. Ssekasanvu is holds of a Master’s Degree in Medicine (Internal Medicine) and has had 10 years experience as a Registered Medical Officer. He is now doing his research in HIV Associated Infections. His professional opinion on the definition of AIDS was attached to his affidavit as annexture P23” It is headed “Report on case definitions of AIDS.” The essence of the Report is that the World Health Organisation has come up with a Clinical definition of AIDS, using signs and symptoms. Such a clinical criteria can only be used by trained Medical personnel to make a presumptive diagnosis and even then, after detailed examination of the person in question. Likewise, the diagnosis of HIV infections as well as AIDS cannot be made in a person merely because of loss of a partner and/or child due to Aids. This is because on some occasions the infection may not necessarily be passed on to the partner despite intimate contact. Indeed the issue of discord between sexual partners is not uncommon in clinical practice. A pathologist can recognize Aids at post — mortem examination of an HIV infected body. However, such individuals usually die of HIV associated illnesses as the immediate cause of death other than HIV disease itself, for example, they could die from severe infection with bacteria or respiratory failure etc., as the immediate cause of death. The term “died from HIV associated illness” would be more appropriate.

The affidavit of Professor John Rwomushana dated 4-4-2001 was filed in support of the 1st Respondent’s Answer to the Petition. Professor Rwomushana is a Medical Doctor. His post graduate studies are in Medicine and Clinical Pathology involving studies in virology, genetics and Immunology, which are basic to the source of HIV Disease. He is the Director of Research and Policy Development at the Uganda AIDS Commission. The essence of his affidavit is that research in Uganda has established that there is a concept of “community Diagnosis” of Aids based on community perceptions, beliefs and observations concerning HIV/ AIDS. It is commonly wide spread in conversations to refer to individuals in the community who have lost partners and very young children presumably due to Aids, as persons suffering from Aids. Such practice is common at funerals in reference to deaths of persons and is used in community to protect families through guarding against inheritance of spouses who have lost partners and other sexual based relationship. Research has shown that it is normal practice for ordinary people to make presumptions that an individual is suffering from Aids upon observation of such persons and the individuals Aids related bereavement.

Under this ground of the Petition, Mr. Balikuddembe referred to several affidavits most of which I have already set out or paraphrased under my consideration of this issue. These include the Petitioner’s two affidavits, the 1st Respondent’s affidavit, affidavits from Dr. Ssekasanvu, Professor Rwomushana, Major Rubaramira, Manita Namayanja, and Dr. Diana Twine. The learned counsel submitted that the 1st Respondent denied that he made the statement publicly or he made it to an American Journalist of the Time Magazine. Counsel contended that 1st Respondent knew that Time Magazine would publish the statement. It was made to an international journalist. The 1st Respondent’s denial that he made the statement publicly should be rejected. The case of Kabourou (supra) supports that view. When evidence adduced at the trial of a case shows that statements were widely published in the press, then there can be no doubt that those who uttered those statements were aware that the statement would be published in the press. So in the instant case the 1st Respondent must have known that his statement would be published in Time Magazine.

Learned counsel also criticized the 1^st Respondent’s denial that he made the statement maliciously, because that denial is disproved by the 1st Respondent’s subsequent statement at a Press Conference that State House is not for invalids. According to counsel, that Press Conference statement meant that the 1st Respondent intended to undermine the candidature of the Petitioner. It was meant to stigmatise and discriminate against the Petitioner. It was malicious and false and therefore intended to ruin the Petitioner’s candidature. Regarding the petitioner’s appearance, learned counsel submitted that the 1st Respondent did not say in his affidavit the kind of appearances persons with Aids look like. Nor did Professor Rwomushana give the type of appearance or resemblance of Aids victims. The sum total is that the 1st Respondent made and published a false statement on alleged health of the Petitioner. The statement, repeated on 11-03-2001, was an illegal act under section 65 of the Act. It was also an offence under section 23(5) (a) and (b), (7) of the Act.

In the circumstances, counsel urged the Court to nullify the election.

Under the fourth issue, Dr. Byamugisha submitted that even if an offence is proved under section 58(6) (c) of the Act nullification is not automatic because the section does not say so. Secondly, unlike under the relevant law in the past commission of an electoral offence under the Act does not lead to disqualification to stand in subsequent elections for five years. Learned counsel also relied on article 1(14) of the Constitution which provides that people shall express their will and consent on who shall govern them and how they should be governed, through regular tree and fair elections of their representatives or thorough referenda. Learned counsel urged the court to hold that in order to nullify on this ground, the Petitioner must also prove that commission of the malpractice or offence made the election unfree and unfair. Article 2(2) of the Constitution should be applied to the extent that section 58(6) (c) of the Act should not nullify the election which was otherwise free and fair. To nullify the election under s.58 (6) (c) would be inconsistent with article 1(4) of the Constitution.

The learned counsel submitted that the Petitioner’s affidavits do not comply with provisions of the Evidence Act, nor do the public documents annexed to the affidavits.

Regarding ground 3(2) (a) of the Petition, learned counsel submitted that the Petitioner’s affidavit is not an affidavit because it is a repetition of what is stated in the ground of the Petition. The learned counsel said that the 1st Respondent admits that the statement in question was made to a journalist, but the Petitioner has to prove that the statement was false and was intended for promoting or procuring the election of another candidate and that it was made by the 1st Respondent knowing that it was false. Learned Counsel asked why the Petitioner did not know the cause of death of Judith Bitwire; the cause of death of the child; and why the Petitioner did not submit to medical test to disprove that he had Aids. The Petitioner should have produced his diagnosis. The learned Counsel also referred to the affidavits of Major Rubaramira Ruranga, the affidavit of Dr. Ssekasanvu and of Professor Rwomushana. Counsel submitted that the Professor’s affidavit lays the foundation for the 1st Respondent’s beliefs that the Petitioner has Aids. Under section 65 of the Act, the 1st Respondent is not required to prove that the Petitioner has Aids, but the Petitioner has to prove that he has not.

Evidence adduced to prove this ground, like all the others is affidavit evidence. So is the 1st Respondent’s evidence to controvert the Petitioner’s evidence. I have already discussed generally objections raised by the Respondents’ counsel against the Petitioner’s affidavits. The same views I held there equally applies to the affidavits under this ground. Parts of the affidavits which are valid are severable and admissible from parts which are not admissible. With respect, I do not accept Dr. Byamugisha’s contention that the Petitioner’s affidavits in this regard should all be rejected. Dr. Byamugisha’s submission that production of documentary evidence which includes public documents did not comply with the relevant law equally applies to the 1st Respondent’s documentary evidence for instance, the affidavit of Professor Rwomushana.

Ground 3(2) (a) of the Petition clearly sets out the statement which the 1 Respondent allegedly made. The statement was that the Petitioner was a victim of Aids. It was made in Kampala to Marguerite Michaels a Journalist with Time Magazine. It was published in the Magazine’s Internet on 8-3-2001 and in the magazine on 12-03-2001. There can be no doubt that the 1st Respondent must have known that when he made the statement to the journalist of Time Magazine, an international magazine, it would be published internationally and in Uganda. The statement as published in the internet was “Besigye is suffering from AIDS.” Time Magazine is sold and read all over the World and in Uganda.

The statement was made during the 2001 Presidential Election campaign. According to the affidavits of Dr. Ssakasanvu and Professor Rwomushana, and it is common knowledge, that HIV/AIDS is a disease or an illness symptoms of which lead to death. I find, therefore, that ingredient (a) of section 65 of the Act which I set out earlier in this judgment has been proved by the Petitioner to the required standard.

Regarding ingredient (ii) the 1St Respondent’s case is that the statement was not false or that he believed on reasonable grounds that it was true.

In “Words and Phrases legally defined”, 3” Edition, Vol.4 R — Z, by Butterworth London 1 990, at page 11, it is said of section 1 9(3) of the Matrimonial Causes Act, 1 973, which provides that in any proceedings for divorce on the ground of presumption of death, the fact that for seven years or more the other party to the marriage has been continually absent from the Petitioner and the Petitioner had no ‘reason to believe” that the other party had been living within that time, should be evidence that he or she was dead until the contrary was proved. The test whether or not there is “reason to believe that the other party has been living” must relate to the standards of belief of a reasonable man and not to those of the particular Petitioner. The legislature could hardly have intended that on the same set of facts the right to relief might vary according to whether the Petitioner happened to be a moron or a senior wrangler with different approaches to what constitute such reason. See Thompson vs. Thompson (1956) 1 AU E.R., 603, at 605, 606.

In Re A. Solicitor (1945) JCB 368 at 371, the court said ‘The word reasonable” has in law the prima fade meaning of reasonable belief on those existing circumstances of which the actor, called up to act reasonably, knows or ought to know.

In Booth vs. Clive (1851) B 827, at 834, 337 the Lord Chief Justice told the jury that if “reasonably” meant anything else than in good faith “it meant according to his reason”, as contradistinguished from “caprice”

In the case of Hicks vs. Faulkner (1881) 8, QBD, 167, at 171 — 172, in an action for malicious prosecution, the jury had to consider whether the Defendant acted maliciously and without reasonable and probable cause. Hawnkins J. defined “what is reasonable or probable cause” in cases of malicious prosecution as follows:

“Now I should define reasonable and probable cause to be, an honest belief in the guilt of the accused, based upon a full conviction, founded upon reasonable grounds of the existence of a state of circumstances, which assuming them to be true, would reasonable lead any ordinary prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was in probability guilty of the crime imputed.”

Authorities also say that it is a matter of fact whether the person concerned has acted on reasonable belief.

I think that the principles stated in the cases I have referred to equally apply to the instant case. The test which emerges from the authorities is honest belief founded on a set of circumstances which, assuming them to be true, would reasonably lead any ordinary prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed. It must not be speculation, idle gossip or rumour-mongering on the part of the accuser. That is the test I shall apply in considering this ground of the Petition.
The issue in the ground of the Petition essentially is that the 1st Respondent is not required to prove that the Petitioner has AIDS but to prove that on reasonable grounds he believed that he had AIDS. The Petitioner has to prove that he has no AIDS which is the same as proving that the statement was false.

The 1st Respondent gave two main reasons as the basis of his statement that the Petitioner was suffering from Aids. The first was that the Petitioner’s companion Judith Bitwire had died of Aids. So had a child the Petitioner had had with Judith Bitwire.

The Petitioner said categorically in his affidavit filed with the Petition that he knows that he is not suffering from Aids. Then in his affidavit in reply, he said that he is a medical doctor by profession, implying, I think that as a doctor he would know whether he had AIDS or not. He also said that he did not know Judith Bitwire’s cause of death and that the child he had with Bitwire died, but did not die of Aids. Dr. Diana Twine’s affidavit was filed to support the 1 Respondent’s case. She said in the affidavit, and repeated it in oral evidence when she was cross-examined by the Petitioner’s counsel and re-examined by the Respondent’s counsel that she signed the Death Certificate of Judith Bitwire after she had died at the Joint Clinical Research Centre (JCRC). The Death Certificate was produced in evidence in the course of her cross- examination. Dr. Twine said that she could not say Judith Bitwire’s cause of death for professional reason. Dr. Ssekasanvu’s report, attached to his affidavit said that the diagnosis of HIV infections as well as Aids cannot be made in a person merely because of loss of a partner. This tends to corroborate the affidavit evidence of Major Rubaramira that although he has lived with HIV/ AIDS for 6 years whenever he and his two wives test themselves for HIV, he and his second wife tests positive, but his first wife and his 1 1/2 year old child test negative. The Petitioner, himself a medical doctor, said that he was not a victim of Aids.

Another reason the 1st Respondent gave for the statement he made was the bodily appearance of the Petitioner which bears a strong resemblance to other Aids victims, according to the 1st Respondent. Professor Rwomushana said in his affidavit that Research has shown that it is normal practice for ordinary people to make presumptions that an individual is suffering from Aids upon observation of skin changes and the individuals Aids related bereavement. The Professor did not attach the result of the Report he talked about to his affidavit. Nor did the Professor indicate what percentage of such presumptions have been researched and found to be correct. Regarding change of appearance to resemble individuals who suffer from Aids the 1st Respondent and Professor did not say what such appearance or changed skin looks like. The Petitioner said in his affidavit in reply that there is no obvious resemblance of Aids victim and none had been given by the 1st Respondent. If there is, the