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

Burden and standard of proof:

Both the Constitution and the Presidential Election Act, to which I shall hereinafter refer no “the Act”, provide that this Court shall inquire into and determine expeditiously, the petition challenging the result of a Presidential election, without prescribing the mode of inquiry. Pursuant to S.58(1 1) of the said Act, rules of procedure for the conduct of such a petition were made, prescribing an adversarial mode of inquiry for the petition, similar to the trial of civil cases, except that evidence has to be affidavits. Counsel therefore, addressed the Court on the questions of burden and standard. It was basically common ground that the burden of proof lay on the Petitioner. However there was no consensus on whether there was any shift of evidential burden in this case. I will discuss that under issue No.4 where it is more particularly relevant. There was also no consensus on the standard of proof required in election petitions. It was only common ground that it is higher than a balance of probabilities. I will express my views on this subject at this juncture, because it affects all the principal framed issues. The argument on standard of proof in the instant case arises from the provision in S.58 (6) of the Act that a ground for annulment of the election of a candidate as President, has to be “proved to the satisfaction of the Court.”

In their respective submissions, counsel revealed considerable divergent views on the matter particularly in regard to comparison with the standard of proof in criminal cases. For the Petitioner, Mr. Balikuddembe argued that the expression “proved to the satisfaction of the Court”, set the standard of proof well below that required in criminal cases. He contended that it was slightly above that of a balance of probabilities, and equated it with that required to prove fraud in civil cases. For the 1st Respondent, two views were expressed. Mr. Bitangaro, submitting on the law applicable to issue No.4, submitted that the standard to apply was proof beyond reasonable doubt, citing as authority BARTER vs. BARTER (1950) 2 All ER 458; MBOWE vs. ELIUFOO (1967) EA 240, and MARGARET ZIIWA vs. NAVA NABAGESERA Civil Appeal No.39/97 (C.A) (unreported). Dr. Khaminwa, however, modified this when submitting on issues Nos. 2 and 3 by contending that the standard was below that required in criminal cases but was very high. He also cited BARTER vs. BARTER (supra) and MBOWE vs. ELIUFOO (supra) and added KATWIREMU vs. MUSHEMEZA Election Petition No.1/96 (H.C. Mbarara) (unreported). For the 2nd Respondent, the learned Solicitor General put it dramatically saying that the standard of proof in election petitions was so high that “its leaves touched the under-belly of the standard in criminal cases.

It appears to me that there are two possible approaches to the question. One is to consider the statutory expression “proved to the satisfaction of the Court” as fixing the level of proof required. The other is to consider that by that expression the legislature left it to the Court to determine what amount of proof would satisfy it that the matter in issue has been proved. The Courts both in Uganda and outside have considered the same or similar expression. I need only refer to a few.

Let me start with decisions of the English Courts which have had persuasive influence on the interpretation put on the expression by the Ugandan Courts. They considered the statutory expression “if the Court is satisfied” in regard to proof of matrimonial offences. In BARTER vs. BARTER (supra) all three Lords Justices of the Court of Appeal agreed that where the Court had to be satisfied in regard to cruelty in a divorce case, it was not a misdirection to state that the Petitioner must prove her case beyond reasonable doubt. Bucknell L.J. said:

“I do not understand how a Court can be satisfied that a charge has been proved (and the statute requires that the Court shall be satisfied before pronouncing a decree) if, at the end of the case it has a reasonable doubt in its mind whether the case has been proved. To be satisfied and at the same time to have a reasonable doubt seems to me to be an impossible state of mind.”

The House of Lords in PRESTON-JONES vs. PRESTON JONES (1951) AC 391, considered the same expression in relation to proof of adultery in a divorce case. It endorsed the decision in BARTER vs. BARTER (supra). Lord MacDerrmott said:

“I am unable to subscribe to the view which, though not propounded here, has had its adherents, namely, that on its true construction the word ‘satisfied’ is capable of connoting something less than proof beyond reasonable doubt. The jurisdiction in divorce involves the status of parties, and the public interest requires that the marriage bond shall not be set aside lightly or without strict inquiry. The terms of the statute recognise this plainly, and I think it would be quite out of keeping with the anxious nature of its provisions to hold that the Court might be ‘satisfied’ in respect of a ground for dissolution, with something less than proof beyond reasonable doubt.”

However, in BLYTH vs. BLYTH (1966) AC 644, The House of Lords, while not departing from its earlier decision in the PRESTON-JONES case (supra), focused on contrast between proof of a matrimonial offence as a ground of dissolution of marriage and proof of absence of condonation. By majority it was held that although in either case the Court must be satisfied, a lesser degree of proof is required to satisfy the Court that the presumption of condonation has been rebutted, than would be required to satisfy it that a matrimonial offence has been committed. The majority view was that by the use of the phrase “Court if satisfied” the legislature did not thereby fix a standard of proof but left it to the Court to determine the quantum or degree of proof that will “satisfy” it, depending on the gravity of the subject matter.
The subject matter in the instant case is the validity of election of the President. Its gravity cannot be disputed. The statutory expression under consideration is “to the satisfaction of the Court.” MBOWE vs. ELIUFOO (supra) was an election petition in the High Court of Tanzania, in which the expression “proved to the satisfaction of the Court” in the applicable Tanzania statute was considered. In the judgment of the Court, Georges C.J., agreed with the approach in BARTER vs. BARTER (supra) and held that:

“the standard of proof in this case must be such that one has no reasonable doubt that one or more of the grounds set out in S. 99(2) (a) has been established.”

The High Court of Uganda in many decisions handed down since the first post- independence parliamentary elections in 1980, has followed MBOWE vs. ELIUFOO (supra). They include, the following election Petitions: CLEMENT TIBAROKORA vs. R.O. RUKUNGIRI &ANOTHER No. MKA 1/81; Z.C.ILUKOR vs. R.O. &ANOTHER, No.MM 1/89; ODETA vs. OMEDA No.NP 1/96; AYENA ODONGO vs. BEN WACHA No. 2/96 (Gulu) (all unreported). In its judgment in R.O. KAMPALA, MARGARET ZIIWA & ANOTHER vs. NAVA NABAGESERA (supra), the Court of Appeal referred to those decisions with approval and singled out for review the decision of the Principle Judge in ODETA’s case with which the Justices of Appeal it agreed and then concluded:

“The effect of the holding in the Mbowe case and the Uganda cases that have followed that decision is that grounds for setting aside an election of a successful parliamentary candidate set out in S.91 of Statute No.4 of 1996 must be proved beyond reasonable doubt. This is because the Court cannot be satisfied if there was a reasonable doubt.”

In the KATWIREMU Case (supra) decided before this decision of the Court of Appeal, Musoke-Kibuuka J., expressed a view which appears not to have been adverted to by the Court of Appeal, in its decision I have just referred to. The learned Judge expressed the view that if Parliament had intended proof of election petitions to be beyond reasonable doubt, it would have said so expressly, and would not have provided for separate criminal trial of allegations proved as electoral offences in the election petition. He took a stand as follows:

“....everyone seems to be agreed that, whatever name is given, the standard of proof required for an allegation to be proved to the satisfaction of the Court under S.91(1) of the Parliamentary elections (Interim Provisions) statute 1996, is proof which is higher than that which is required in ordinary civil suits. That, in my view is sufficient for disposal of the allegations made in this petition.”

In S.58 (7) and (9) of the Act it is expressly provided that when hearing an election petition, this Court has no power to convict a person for a criminal offence, and that where it appears from the facts that a criminal offence may have been committed the Court shall make a report to the DPP stating the nature of the offence and the name of the person (who committed it) for appropriate action. To my mind these provisions are not an indicator that Parliament intended the standard of proof to be lower than beyond reasonable doubt.- If at all the provisions be a reflection on Parliament’s intention on the standard of proof, then, in my view, the more plausible interpretation would be that, Parliament realising that it had set up a high standard of proof, (equivalent to that in criminal cases), made it clear in those provisions that it was not thereby conferring on the Court power to convict any person of a criminal offences. The reason is obvious. It is recognition of the fact that our jurisdiction does not yet allow for a criminal trial within a civil trial. It is only in the recent past that our legal system introduced the possibility of an award of a civil remedy in a criminal trial. The reverse has not yet been introduced.

Furthermore, in my view it does not follow that the fact that Parliament did not use the expression “beyond reasonable doubt”, it could not have intended the equivalent. The expression it used is not inconsistent. The learned judge appears to hold the view that in using the expression “to the satisfaction of the Court” Parliament set up yet another standard of proof at a level between that of “balance of probabilities “and that of “beyond reasonable doubt.” I respectfully do not share that view. I think the reason with which I agree, why the Courts have sought to fit the expression within the known standards is a desire to have an objective test as to what amount of proof ought to satisfy the court in such cases, rather than leaving it to be subjectively determined in every case. I do share the view that the expression “proved to the satisfaction of the Court” connotes absence of reasonable doubt. Admittedly the word “satisfied” is adaptable to the two different standards. It is not uncommon for a court to hold that it is “satisfied on a balance of probabilities”, or that “it is satisfied beyond reasonable doubt.” However, where the Court holds that it is satisfied per Se, that a matter has been proved, or that a matter has been proved to its satisfaction, without more, then to my mind there can be no room to suppose that the court harbours any reason doubt about the occurrence or existence of that matter. By requiring that the ground for annulment of an election be proved to the satisfaction of the Court, the legislature laid down the minimum amount or standard of proof required. The amount of proof that produces the Court’s satisfaction must be that which leaves the Court without reasonable doubt.

To my mind it does not matter that proof in criminal cases is also required to be beyond reasonable doubt. The law provided a high standard of proof for criminal offences because of the grave consequences of a criminal conviction. Similarly, because of the gravity of annulment of an election, the law provided for a high standard for proof of the grounds of annulment. I found support for this view in what Lord MacDermott said in PRESTON-JONES Case (supra). After stressing that the standard of proof for dissolution of marriage could not be less than proof beyond reasonable doubt, he said:

“I shall perhaps add that I do not base my conclusion as to the appropriate standard of proof on any analogy drawn from the criminal law. I do not think it is possible to that the two jurisdictions are other than distinct. The true reason, as it seems to me, why both accept the same general standard — proof beyond reasonable doubt-lies not in any analogy, but in the gravity and public importance of the issues with which each is concerned.”

In BLYTH vs. BLYTH (supra) Lord Morris of Borth —y- Gest said:

“…..the jurisdiction in divorce is statutory and by statute certain duties are imposed upon the Court. There is no occasion to seek to compare or to equate the jurisdiction in divorce with jurisdiction in either criminal or in other civil matters.”

In a similar vein I would say that it is unnecessary to seek to compare or equate the jurisdiction in election petition, with jurisdiction in either criminal or in other civil matters. In conclusion from both the import of the words used in the statute and the gravity of the subject matter, I would uphold the long standing view which the Uganda Courts have held that the standard of proof must be that which leaves no reasonable doubt in the Court’s mind.

Affidavit Evidence:

Pursuant to provisions of the Presidential Elections (Election Petitions) Rules (S.1 .200 1 No.13) to which I shall refer as “Election Petitions Rules”, the petition and the respondents’ answers thereto were supported and accompanied by affidavits of the respective parties, and the evidence at the trial, in favour and against the petition, was by way of affidavits. In the course of submissions by counsel two issues were raised on the affidavits. One was in respect of affidavits that offended provisions of the law. The other is in respect of uncontroverted affidavits, and affidavits not referred to in submissions. Counsel identified four provisions of the law which some of the affidavits were supposed to have offended. I will briefly consider each legal provision and its application to the questioned affidavits.

Commissioners for Oaths (Advocates) Act (Cap. 53):

(a) Section 6

For the Petitioner, Mr. Balikuddembe, submitted that the 1st Respondent’s affidavit accompanying his answer to the petition was defective on the ground that the person before whom the affidavit was sworn, was not disclosed on the face of the affidavit in accordance with S.6 of the Commissioners for Oaths (Advocates) Act (Cap.53). Counsel contended that the law required that disclosure, so that it can be ascertained if that person had the power to administer the oath.

Subsequent to that submission, an affidavit by Lawrence Gidudu, Registrar of the Courts of Judicature, was filed in the proceedings, to prove that it was he who administered the oath to the 1st Respondent, and affixed the seal of the High Court to authenticate his own signature thereon, Under S.4 of the Commissioners for Oaths (Advocates) Act, Registrar Lawrence Gidudu, as such Registrar, has virtue office the powers and duties of a Commissioner for Oaths. His affidavit however, was vigorously objected to, on the grounds that it was filed out of time, and did not cure the defect complained of.

Section 6 of Cap 53 reads as follows:

“6. Every Commissioner for Oaths before whom any oath or affidavit is taken or made under this Act shall state truly in the jurat or attestation at what place and on what date the oath or affidavit is taken or made.”

Section 8 of the Oaths Act (Cap.52) makes the same provision in virtually identical terms. Neither Act, however, expressly requires the Commissioner for Oaths to state in the jurat or attestation that he or she is a Commissioner for Oaths. The form of the jurat set out in the Third- Schedule to the Commissioner for Oaths Rules, includes the expression- “Commissioner for Oaths”, and it is indeed proper and common practice to include it. The provisions of the Act, however, do not make it mandatory to do so. Its omission, in my view, does not make an affidavit invalid. It becomes a matter of evidence whether the affidavit was sworn before a person empowered to take it. That evidence was provided in Lawrence Gidudu’s affidavit. I was not persuaded that, that affidavit should have been rejected on the ground that it was filed after the objection was raised and argued. Owing to the peculiar circumstances of this trial, the Court took a liberal stance, and was not too strict on time for filing the affidavit evidence. I saw no justification to make this the exception. In the result I found that the Respondent’s affidavit was not defective.

(b) Section 5(1)

Mr. Nkurunziza, one of counsel for the Respondent submitted that eleven of the affidavits filed in the proceedings in support of the petition were defective for offending the proviso to sub-section (1) of S5 of the same Act (Cap.53), because they were sworn before Commissioners for Oaths, namely Mr. Birungi and Mr. Kiyemba Mutale, who were on the team of counsel acting for the Petitioner in these proceedings.

The sub-section, so far as is relevant, reads:

“5. (1) A commissioner for oaths may, by virtue of his commission, in any part of Uganda administer any oath or take any affidavit for the purpose of any court or matter in Uganda….

Provided that a commissioner for oaths shall not exercise any of the powers given by this section in any proceeding or matter in which he is the advocate for any of the parties to the proceeding ……..”

Counsel argued that in as much as the proviso is prohibitive, a Commissioner for Oaths who acts in defiance of the prohibition acts without his powers, and consequently the affidavit is not competently commissioned and is not an affidavit. In reply Mr. Balikuddembe confirmed that he had introduced Mr. Birungi and Mr. Kiyemba Mutale to the Court as part of the team of legal counsel for the Petitioner at the commencement of proceedings. He intimated, however, that at the time the affidavits in question were sworn before them, respectively, none of them had instructions to act for the Petitioner. In the alternative, he submitted that while the proviso prohibits a commissioner for oaths from exercising his powers in the stated circumstances, it does not invalidate an affidavit taken by a commissioner who defaults.

Mr. Birungi and Mr. Kiyemba-Mutale were introduced as counsel for the Petitioner on 5th April, 2001. The one affidavit taken by Mr. Kiyemba Mutale is dated 22 March, 2001. The others were taken by Mr. Birungi. Five of them were taken on 23d March, one on 31st March and four on 1St April 2001. There is no evidence to contradict Mr. Balikuddembe’s statement from the bar that on those dates neither Commissioner for Oaths was acting as advocate for the Petitioner. It cannot be said therefore, that either of them exercised the power given by S.5 (1) of Cap.53 in contravention of the proviso. Mr. Nkurunziza did not, and in my view could not, extend his argument to make the prohibition in the proviso retrospective, so as to render the affidavits defective upon the said advocates being instructed subsequently. In view of the foregoing, I need not discuss in detail Mr. Balikuddembe’s alternative argument. I should only mention, however, that I am inclined to the view that the effect of the prohibition is not to divest the power of the commissioner. I am also not inclined to the tendency to visit the fault of an advocate, on an innocent person who was not in a position to avoid or rectify such fault. In the result my conclusion was that the 11 affidavits were competently made and taken.

Statutory Declarations Act, 2000: S. 7(3):

Mr. Nkurunziza submitted further that the ‘affidavit’ of Hon. Maj. (Rtd) Okwir Rabwoni, M.R, made in London, U.K., on 23 March 2001, was not an affidavit, but a statutory declaration, and that by virtue of S.7 (3) of the Statutory Declarations Act No.10 of 2000, it was not admissible in evidence, because it was not registered under the Registration of Documents Act. In reply, Mr. Balikuddembe submitted that the affidavit, being one sworn for the purpose of, and related to, the proceedings in this Court, was accepted under S.3 of the said Act and did not have to be registered.

The first point of argument was whether the document was an affidavit or a statutory declaration. There is no doubt that it related to the proceedings in this Court. It was so headed, and was titled an affidavit. What raised the dispute was that it opened with the following statement:

“I am a Ugandan citizen……..hereby solemnly and sincerely declare the following:-”

and concluded with the following statement:

“AND MAKE THIS SOLEMN DECLARATION CONSCIENTIOUSLY believing the same to be true and by virtue of the Statutory Declarations Act 735(sic).”

To my mind, those statements, rather than the title, were what gave the document its character. Further it is noteworthy that the person before whom the declaration was made deleted the expression “Commissioner for Oaths” printed at the space for his/her signature, leaving only the title of “Solicitor.” I had no hesitation therefore, in finding that the document was a statutory declaration made under the Statutory Declarations Act, 1835 of the U.K., and that it must be taken as such for purposes of Uganda.

The relevant provisions of the Statutory Declarations Act, 2000 of Uganda which affect that statutory declaration are the following:

“3. After commencement of this Act no affidavit shall be sworn for any purpose except:

(a) Where it relates to any proceedings, application or other matter commenced in any court or referable to a court; or

(b) Where under any written law an affidavit is authorised to be sworn.

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.

(2) ……………………

7. (1) A person wishing to depone outside Uganda to any fact for any purpose in Uganda may make a statutory declaration before any person authorised to take a statutory declaration by the law of the country in which the declaration is made.

(2) ……………………..

(3) A statutory declaration taken outside Uganda under this section shall not be admissible in evidence unless it is registered with the Registrar of documents under the Registration of Documents Act.” (Emphasis is added)

It is obvious to me that affidavits excepted under S.3 (a), are affidavits taken in Uganda only. The wording in S.7 is quite explicit that outside Uganda, deponing “to any fact for any purpose in Uganda” is to be by means of a statutory declaration. If Parliament had intended to except affidavits made outside Uganda for the purpose of court proceedings in Uganda, it would have done as expressly as it did in S.3, or by reference as it did in S.4 of the same Act.

To my understanding therefore, since the document was not registered it was strictly inadmissible under S.7 (3) of Act 10 of 2000. However, the statutory declaration was not defective in itself. The deficiency could be, and would most probably have been, rectified by registering the document, if attention had been drawn to the deficiency earlier. Upon such registration, it would have been admissible. Given the constraints which even determined the timing of the objection, I was inclined to invoke the provisions of Art. 126(e) of the Constitution. I was satisfied that in the interests of substantive justice it was proper that the document, containing material evidence as it did, ought to be admitted rather than shut out on a technicality.

Civil Procedure Rules: O.17 r. 3:

The procedure in respect of this petition was regulated by the Civil Procedure Rules, subject to the provisions of the Election Petitions Rules with such modifications as this Court may consider necessary in the interests of justice and expedition of the proceedings. On strength, of that, Mr. Nkurunziza further raised objection to numerous affidavits filed in support of the petition which offended O.17 r.3 of the Civil Procedure Rules. Sub-rule (1) of that rule reads thus:

“3. (1) 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 the grounds thereof are stated.”

Learned counsel pointed out that, of the affidavits filed in support of the petition, 28 contained hearsay, and 87 were based on belief of the deponent the source of which was not stated . He urged the Court to reject not only averments which were not within the deponents’ own knowledge, but also to reject each such affidavit in its entirety. The learned Solicitor General for the 2nd Respondent fully supported the objection and stressed that a deponent who swears to matters which are not within his or her own knowledge is unreliable as a witness. Both contended that the position of the law was virtually settled, that an affidavit offending the rule was not severable but had to be rejected in its entirety. The Court was referred to several decisions of the Court of Appeal and the High Court, as persuasive precedents. For the Petitioner it was conceded that 0.17 r.3 of the Civil Procedure Rules was applicable and that an affidavit offending the rule was defective. Learned counsel argued, however, that such defect was not fatal as an affidavit was severable so that the Court relies only on such of the averments as were deponed from the deponent’s own knowledge. Counsel relied on two decisions of the Supreme Court.

It is not accurate, as submitted for the respondents, to say that courts have consistently held that affidavits with defects are not severable. Three of the decisions cited to us, while applying the rule in O.17 r.3, were not directly on the issue of severance of affidavits. It is only in S.C HERALI HUDANI’s CASE Civil Suit No.71 2/95 (HC) that Ntabgoba P.J. said:

“…..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.”

With the greatest respect to the learned Principal Judge, however, that is only true of affidavits whose contents are inseparable. In my view, the court can reject offending parts of an affidavit while accepting the rest of it, the same way it rejects inadmissible oral evidence, without treating the entire evidence of the witness as inadmissible. Inclusion of hearsay or other inadmissible evidence in an affidavit is not an illegality. It is an irregularity which is curable by expunging the inadmissible part. I find support for this view from 0.17 r.3 itself, which, far from rendering the offending affidavit invalid, provides a different kind of sanction in sub-rule (2) which, so far as is relevant, reads:

“3. (2) The costs of every affidavit which shall unnecessarily set forth matters of hearsay or argumentative matters shall, unless the court orders otherwise, be paid by the party filing the same.”

MOTOR MART (U) LTD vs. YONA KANYOMOZI Civil Application No. 6/99 (SC) cited by counsel for the Petitioner, is a decision of a bench of three Justices of the Supreme Court, on a reference from my ruling as a single judge of the Court, in Civil Application No. 8 of 1 998. The Court rejected a ground seeking to reverse my holding that an inadmissible part of an affidavit can be severed without vitiating the rest of the affidavit. In REAMATON LTD vs. UGANDA CORPORATION REAMARIES LTD & ANOTHER Civil Application No.7/2000 (SC) Tsekooko JSC held that like oral evidence, an affidavit can be relied on “even if a paragraph which is severable is found to be inaccurate.” I consider this to be the correct position of the law, I would only wish to add for clarity that an affidavit in which it is not clear which averments are deponed from personal knowledge and which are from information or from belief, would for that reason not be severable, and would therefore, be defective in its entirety. I have therefore, considered affected affidavits in this petition accordingly.

I should however comment especially on affidavits required under rr.4 (7) and 8(3) (a) of the Election Petition Rules to accompany the petition and the answers thereto. The said rules require that those affidavits shall set out facts on which the petition is based, and the Respondent will rely on, as the case may be. Invariably however the parties have to rely heavily on factual information they receive from their agents and other witnesses, in order to comply with that requirement. In my view therefore in relation to those affidavits, 0.17 r.3 of the Civil Procedure Rules has to be applied with such modification as permits the Petitioner and the Respondent to include in those affidavits facts which they depone on such information.

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 —

(a) non-compliance with the provision 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 substantial manner;

(b)………………… (Emphasis is added).

In his submission counsel for the Petitioner relying on S.2 (2) of the Act, treated contravention of a provision of the Commission Act, as if it was a contravention of the Act. S.2 (2) of the Act, reads thus:

“(2) The Commission Act shall be construed as one with this Act.” “Commission Act” is defined in sub-section (1) of the same section, as the Electoral Commission Act 1997. Sub-section (2) is clearly concerned with construction of the two statutes. It means that the provisions of both Acts are to be construed in the same manner. I find support for this view in CRAIES ON STATUTE LAW, 7th Ed., S.G.G. Edgar, 1971 Sweet & Maxwell, London. At p. 138, the learned author says:

“It is now common practice to insert clauses which make certain Acts one for purposes of construction.... The effect of enacting that an Act shall be construed as one with another Act is that the court must construe every part of each of the Acts as if it had been contained in one Act.”

The sub-section does not purport to incorporate into the Act, provisions of the Commission Act. A provision of the Commission Act which is not re-enacted in the Act cannot be referred to as a provision of the Act.

I hasten to add, however, that the complaints of contravention of provisions of the Commission Act are relevant to and will be discussed under application of principles to the conduct of the elections. In my view, this distinction which resulted into separate issues, but which in a final analysis appears to be hairsplitting, is a consequence of the complex manner in which the provision was drafted. It seems to me that it would have been more straight forward and even clearer if the provision in paragraph (a) of S.58 (6) of the Act had been drawn thus:

Non-compliance with (provisions and) principles laid down in the electoral law for the conduct of the election if the court is satisfied that the noncompliance affected the result of the election in a substantial manner.

That way non-compliance with provisions of any law governing the election would be put on the same footing vis a viz the grounds for annulment. In my view the provision as it stands isolates non-compliance with the provisions of the Act to no useful purpose. Be that as it may, I will therefore defer consideration of complaints of contravention of the Commission Act, to when I deal with the second issue. That leaves two complaints pleaded in paragraph 3(1) (a) (b) and (d).

Failure to provide copy of voters’ register: