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



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1st Respondent committed any illegal practice or offence under the Act by the said deployment of the army.

The pleading under paragraph 3(2) (d) related to Major Kakooza Mutale’s group and PPU. I have already noted that apart from one incident in Tororo, with oblique link, no evidence was adduced before Court on the activities by Maj. Kakooza Mutale and his group, during the electoral process. Furthermore, there was no evidence that the 1st Respondent organised that group or any group in the PPU for training in the activities, and for the purposes and/or objectives stated in S. 25(b) of the Act. I have also indicated, when dealing with issues Nos. 2 and 3, my findings on the unlawful activities of the PPU soldiers in Rukungiri. Under issue No.4, the Petitioner’s case was that those activities which undoubtedly constituted illegal practices and offences under the Act were committed with the knowledge and consent or approval of the 1st Respondent. No direct evidence of that knowledge, consent or approval was adduced. For proof of the 1st Respondent’s knowledge and consent or approval, learned counsel for the Petitioner relied on two facts. First he relied on the fact that the soldiers, being charged with the President’s personal security, were under his intimate direction, so that he would know their activities, which in turn they did with his consent or approval. Secondly counsel placed much reliance on the letter Chairman Kasujja wrote to the Respondent, on February, 2001, parts of which I reproduced earlier. In effect learned counsel sought to persuade the Court to infer from the President’s assumed relationship with PPU and the said letter, not only his knowledge of activities of the PPU soldiers, but also his consent to or approval of those activities. For his part the Respondent deponed in paragraph of his affidavit accompanying his answer to the petition, that he did not directly or indirectly organ/se groups of persons under PPU or Maj. Kakooza Mutale with his Kalangala Act/on Plan and that whatever such persons were stated to have done was without his knowledge and consent or approval. He also generally denied committing any illegal practice or offence personally or through anyone with his knowledge and consent or approval. He made no reference to the letter written to him by Chairman Kasujja.

It is trite law that proof may be by direct evidence or by circumstantial evidence. In the latter case however, it is always important to avoid elevating “suspicion” or “speculation” to the status of proof. There was no evidence on the operational relationship between the Respondent and the PPU, from which inference could be derived that all activities of the PPU are known and consented to or approved by the 1st Respondent. As for the letter, even if it was presumed that he received it, I think it would be in the realm of speculation to infer from absence of response, as counsel invited the Court to do, that he consented to or approved the activities which were even not specified in that letter. For the aforesaid reasons I found that there was no proof that the 1st Respondent was liable for any illegal practice or offence committed by PPU or Maj. Kakooza Mutale’s group.

The third complaint for brief comment is the pleading in paragraph 3(2) (e) of the petition, to the effect that the 1st Respondent threatened to cause the death of the Petitioner by saying he would put him six feet deep. The offence under S.25 (e) is constituted when such a threat is made to or in respect of “a candidate” or to “a voter” and for the purpose of effecting or preventing the election of “a candidate.” In S.2 of the Act, “candidate” is defined as a person duly nominated as a candidate for a Presidential election; and “voter” is defined as a person who is qualified to be and is registered as a voter. The Petitioner did not disclose the date when the threat was made. The 1st Respondent, who denied threatening the Petitioner specifically, deponed that he uttered the words complained of, on 27th November, 2000. By that date the Petitioner was not a candidate, as he was not nominated as such, until on 8th January, 2001. It was also not shown that by that date the Petitioner was a registered voter or that the threat was made to him as a voter. The 1st Respondent’s pleading which was not rebutted was that he had “warned that any person who interfered with the army would be put six feet deep.” While that might be described as threatening violence under the Penal Code, it did not amount to threatening a candidate or voter within the meaning of S.25 (e) of the Act. My view therefore is that by the utterance, the 1st Respondent did not commit the offence alleged. That leaves the more contentious matters which I paraphrased as publication of a false statement of the Petitioner’s illness, and offering gifts to induce voters.

Publication of a false statement:

Publication of a false statement of the illness of a candidate is defined as an illegal practice in s.65 of the Act. It reads:

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

The pleading in paragraph 3(2) (a) of the petition was encased in narrative and argument, but the substance of it was that the 1st Respondent:



Publicly and maliciously made a false statement that (the) Petitioner was a victim of AIDS, without any reasonable ground to believe that it was true, and this false statement had the effect of (unfairly) promoting the election of candidate Museveni Yoweri Kaguta in preference to (the) Petitioner.

In so pleading, the Petitioner assumed the burden of proving to the satisfaction of the court, the following components of the alleged illegal practice.

(a) that the 1st Respondent made the statement;

(b) that he made the statement publicly;

(c) that he made the statement maliciously;

(d) that the statement was false;

(e) that the 1st Respondent had no reasonable ground to believe that the statement was true;

(f) that the statement had the effect of unfairly promoting the election of the Respondent in preference to the Petitioner.

How did the Petitioner go about discharging the burden? He did not have difficulty on the components in (a), (b) and (c). On (a), the 1st Respondent had admitted that he made the statement. There was no need for further proof. On (b) it was not necessary to prove that it was made in public. What the law stipulates is that the respondent “publishes” the statement. It was proved without dispute that the statement was published on Internet, and in TIME, an American magazine, and that it was re-published in the Monitor newspaper. No issue was seriously raised about the 1st Respondent’s responsibility for the publication or republication. Lastly on (c) the pleading that the statement was made maliciously, was superfluous because malice is not an essential ingredient of that illegal practice as defined, It was the remaining three components of the illegal practice as pleaded that were contentious.

That the statement was false:

The Petitioner asserted that the statement that he was a victim of AIDS was false. The 1st Respondent, while not asserting that it was true, pleaded, by way of defence, that he had made the statement believing it to be true. In their respective submissions, counsel for both the Petitioner and the 1st Respondent were agreed that the burden of proof to establish that the statement was false, lay on the Petitioner. The latter submitted that the Petitioner had not adduced evidence to discharge that burden. Counsel for the Petitioner maintained that the burden had been discharged by the Petitioner’s own evidence that he was not a victim of AIDS. He submitted instead, that the 1St Respondent had not proved that the statement was true or that he had reasonable grounds to believe it to be true. The Evidence Act (Cap.43) provides general guidelines for determining, on whom the law places the responsibility to prove facts that need to be proved. Sections 100,101 and 102 of that Act read as follows:



100. Whoever desires any court to give judgment as to any legal right or liability dependent on the existance of facts, which he asserts, must prove that those facts exist. When a person is bound to prove the existance of any fact, it is said that the burden of proof lies on that person.

101. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

102. The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existance, unless it is provided by any law that the proof of that
fact shall lie on any particular person.”

The term “burden of proof” which is at times also referred to as “onus of proof” is similarly defined in PHIPPSON ON EVIDENCE 12TH Ed. p.36 para 91 and in SARKAR’S LAW OF EVIDENCE 14th Ed., at p.1338. The learned author in the latter work states:

It has two distinct and frequently confused meanings: (1) The burden of proof as a matter of law and pleading- the burden of, as it has been called, establishing a case (2) The burden of proof as a matter of adducing evidence. The burden of proof in this sense is always unstable and may shift constantly, throughout the trial according as one scale of evidence or the other preponderates.

The learned author commenting on shifting of the burden of proof goes on to say, at p.1339:

It is not always easy to determine at what particular point the onus shifts from the plaintiff to the defendant and then again from the defendant to the plaintiff and so on but at the conclusion of the trial when the issues come to be judged it has to be seen whether the initial onus cast on the plaintiff, has been discharged or not it would be wholly wrong to allow the burden of proof to be shifted by a redundant averment in the pleading of an issue framed upon that averment.” (Emphasis is added).

The test to apply in determining the shift of the burden was put by Lord Hanworth M.R., in STONEY vs. EASTBOURNE RURAL COUNCIL (1962) 1 Ch.367 thus:

It appears to me that there can only be sufficient evidence to shift the onus from one side to the other if the evidence is sufficient prima facie to establish the case of the party on whom the onus lies. It is not merely a question of weighing feathers on one side or the other and of saying that if there were two feathers on one side and one on the other that would be sufficient to shift the onus. What is meant is that in the first instance the party on whom the onus lies must prove his case sufficiently to justify a judgment in his favour if there is no other evidence given.”

I agree with that test. In the instant case it is evident that the Petitioner had the burden as a matter of law and pleading. He had to show that the statement complained of was false in order for its publication by the 1St Respondent to constitute an illegal practice as defined under S.65, and to be a ground for annulment of the Presidential election under S.58(6) (c) of the Act. It must be in this sense that the Petitioner’s counsel conceded that the burden of proof lay on the Petitioner. However, he also had the onus to adduce such evidence as would at least establish prima fade that the statement was false, in other words to show that he was not a victim of AIDS.

What evidence did the Petitioner produce? In his affidavit accompanying the petition he deponed in paragraph 51:

“…..I know that I am not suffering from AIDS but the 1st Respondent maliciously made false allegation that I was victim of AIDS without any reasonable grounds for believing that was true…”


I agreed with Dr. Byamugisha’s submission that the assertion was no more than was pleaded in the petition, and standing alone, did not amount to proof that the statement was false, for it begged the question: how did he know that he was not suffering from AIDS? The assertion was however supplemented after the Petitioner had read the 1St Respondent’s affidavit setting out the reasons that led him to believe that the Petitioner was a victim of AIDS. On 5th April, 2001, the Petitioner swore an affidavit in reply, much of which was devoted to refuting the 1st Respondent’s reasons. But he also deponed, in paragraph 9:

“.... I am not and I have not been bed-ridden in my life and I am able to work normally and during the Presidential campaigns I travei4ed the whole of Uganda without breaking down or feeling particularly fatigued.”

And in paragraph 17 he deponed that he was not an invalid as suggested by the 1 Respondent. Presumably, though he did not indicate the necessary nexus, the new averments were in reference to signs and symptoms he would expect to find in a victim of AIDS.
Meanwhile, however, two affidavits sworn on April 2001 had been filed in support of the petition. One was sworn by Dr. Ssekasanvu Emmanuel, a Registered Medical officer of Makerere University, with 10 years experience, currently doing research in HIV infections. He annexed to his affidavit a “Report on case definition of AIDS.” In the report Dr. Ssekasanvu explained:

The acronym/term AIDS in full stands for acquired immune deficiency syndrome. This is used to mean a conglomeration of signs and symptoms associated with late HIV disease.”

He then mentioned two definitions of AIDS, namely the internationally accepted full definition compiled by the Centres for Disease Control, Atlanta, Georgia, USA; and the clinical definition arrived at by World Health Organisation (WHO) experts, using signs and symptoms. But he stressed that a clinical criteria can only be used by trained medical personnel to make presumptive diagnosis; and even then after detailed examination of the person in question. He also stressed that diagnosis of HIV infection, and AIDS, cannot be made on basis of loss of a partner and/or child, because infection may not be passed onto the partner despite intimate contact.

The second affidavit, sworn by Major Rubaramira Ruranga, who deponed that he had been living with HIV for 1 6 years was defective for not distinguishing what was sworn from his knowledge and what was on information. In any event it was not of assistance to the issue at hand.

Mr. Balikuddembe submitted that in considering the sufficiency of the evidence, the Court should take into account: (a) the fact that the Petitioner was a medical doctor, and (b) the peculiarity of proving a negative. The Petitioner’s evidence, however, was not stated to be from any professional examination or assessment carried out by himself or any other competent person, in the manner stressed by Dr. Ssekasanvu or at all. In my view, his evidence in that connection was, and had to be taken, on the same footing as evidence of any intelligent person describing his or her health condition, without assistance of medical professional knowledge or skills.

The question of proving a negative is more of a problem. We were referred to the decision of this Court in J.K.PATEL vs. SPEAR MOTORS LTD Civil Appeal No.4/91 where the question was considered in a suit for breach of contract. The plaintiff claimed, and gave evidence on oath, that he carried out the work he contracted for, but was not paid. The defendant did not dispute the work, but claimed that it had paid, its Managing Director giving evidence on oath to that effect. The trial court dismissed the suit on the ground that the plaintiff’s evidence was vague. The Supreme Court allowed the plaintiff’s appeal holding, inter alia, that the defendant had not discharged the onus on it to prove payment. In the leading judgment of Seaton J.S.C., there were quotations from judgments of the House of Lords in the case of CONSTANTINE STEAMSHIP LINE LTL vs. IMPERIAL SMELTING CORP. (1941) 1 All ER 165, of several expressions of misgivings about imposing on a litigant the burden to prove a negative, because it is always difficult, and often impossible, to prove a negative. However the decision in J.K. PATEL vs. SPEAR MOTORS LTD (supra) was not that the plaintiff did not have a burden to prove the non-payment, but rather that the burden had shifted. The Court clearly accepted the view expressed by Viscount Maughan in the CONSTANTINE LINE case (supra) at p.179 as follows:

“….I think the burden of proof in any particular case depends on circumstances in which the claim arises. In general the rule which applies is ei qui affirmat non ei qui negat incumbit probatio (the burden of proof lies on him who affirms a fact not on him who denies it). It is an ancient rule founded on considerations of good sense, and it should not be departed from without strong reasons In my considered opinion, the circumstances of the instant case provided good reasons for departing from the ancient rule, if indeed there was a departure. In the first place, proof of the negative, namely that the Petitioner was not a victim of AIDS, did not appear to be any more difficult, than proof of the affirmative, namely that the Petitioner was a victim of ADS. Secondly, the burden to prove that the statement was false, was imposed by statute, namely by the provision in S.65 of the Act. To prove that the illegal practice as defined in that provision was committed, the Petitioner had the onus to prove that the statement published by the 1 St Respondent was false, and he had to prove it so as to leave the court certain that it was false. Even if the 151 Respondent offered no evidence at all, the burden would not be any less. Whilst the illegal practice is similar to defamation in nature, it differs in the way it has to be proved. This may well appear harsh, as in the saying of adding insult to injury, but the illegal practice being quasi criminal, leads me to the conclusion that the onus of proof would shift only if a prima facie case had been made out. To my mind, evidence advanced by the Petitioner did not establish a prima fade case, sufficient to shift the burden of proof. I was therefore unable to find that the Petitioner had proved to the required standard that the statement was false. This would be sufficient to dispose of that as a ground for annulment. However, I am constrained to make known, in brief, my views on the evidence in respect of the other components of that illegal practice.

No reasonable grounds to believe:

The next ingredient of the illegal practice as defined in S.65 of the Act, is an in- built defence, which is expressed in two alternatives. It is that the false statement must have been published by the candidate, (a) knowing it to be false, or (b) not knowing or believing it, on reasonable grounds, to be true. It seems to me that, on a proper construction, the word “knowing” in the second alternative is superfluous. Although one can erroneously “believe” something false to be true, one cannot “know” something false to be true. He can only know it to be true if it is true.

Be that as it may, what the instant case turned on was the aspect of “believing” not that of “knowing.” The Petitioner pleaded in the petition, and repeated in the accompanying affidavit, that the 1 s Respondent did not have any reasonable ground for believing the maligned statement, to be true. The Respondent, in his answer to the petition and in his accompanying affidavit, averred that he had made the statement believing it to be true. He stated the grounds which led him to that belief to be

(a) that one Judith Bitwire, a woman with whom the Petitioner had cohabited, and a child born out of that relationship, had both died of AIDS; and

(b) that over time he had seen the Petitioner’s bodily appearance change, to bear obvious strong resemblance to that of other victims of AIDS he had observed in the past.

A death certificate in respect of Judith Bitwire was produced in evidence. It was annexed to an affidavit of Dr. Diana Atwiine of the Joint Clinical Research centre. She deponed that she had signed the death certificate in the ordinary course of her duties at the said centre. The information on the certificate is as follows:

JOINT CLINICAL RESEARCH CENTRE

DEATH CERTIFICATE

Name : JUDITH BJTWIRE

Village : KABALE

Date of Birth : 11/5/99

Date of Death : 21/5/99

Disease or condition directly leading to death

EMPYSEMA, RESPIRATORY FAILURE

Morbid condition if any leading to the above

EMPLMA PTB CRYPTOCOCCAL MENINGITIS

HEPATITIS RENAL FAILURE

Other significant condition contributing to the death,

but not related to disease or condition.

BRONCHO PLEURAL FISTULA, CMV RETINITIS

ADVANCED IMMUNOSUPPRESSION

Name of Medical Doctor: ATWIINE DIANA.”

In the affidavit in reply to which I have already referred, the Petitioner deponed –

(a) that his child with Judith Bitwire did not die of AIDS,

(b) that he did not know the cause of Judith Bitwire’s death,

(c) that his appearance was normal and cannot be used to know or believe that he was a victim of AIDS, and

(d) that there is no obvious resemblance of AIDS victims, from which a person can be known or be believed to be an AIDS victim.

In paragraph 6 he deponed:

6. That the statement was false in all respects and that the V Respondent has never diagnosed me or tested me and found me as an AIDS victim and has never asked me about my health status.”

Professor Rwomushana, Director of Research and Policy Development at the Uganda AIDS Commission, swore an affidavit in support of the 1 Respondent’s answer. He agreed with Dr. Ssekasanvu’s report as “a correct statement of the medical diagnosis of AIDS.” He however, pointed out that research in Uganda had established that there was a concept of “Community Diagnosis of AIDS based on Community perceptions beliefs and observations concerning HIV/AIDS.” According to Professor Rwomushana, research in Uganda had revealed that it is a common widespread practice in lay 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; and that it is normal practice for ordinary people to make presumptions that an individual is suffering from AIDS upon observation of skin changes.

On the application of the Petitioner, Dr. Diana Atwiine appeared in Court for cross-examination. In her testimony she confirmed that she had prepared and signed the death certificate in respect of Judith Bitwire. She said that it was not correct to say as put to her by counsel for the Petitioner that every sick person had immunosuppression. She pointed out that Judith Bitwiire was a case of advanced immunosuppression. She disclosed that she had given the death certificate to the three relatives of Judith Bitwire who came to the centre after her death, and who included her father, and the Petitioner whom she described as Judith Bitwire’s former husband. She was evidently uncomfortable from professional ethics point of view about discussing the subject and was not pressed for any more details.

From all that evidence the Court had to determine if, as maintained by the Petitioner, the 1 Respondent made the statement without reasonable ground for believing it to be true. The 1st Respondent stated the grounds on which his belief was based. The existance of those grounds was not seriously challenged. Although the Petitioner deponed that the child did not die of AIDS, he did not disprove it by stating any other cause of its death. And although he claimed that he did not know what caused the death of Judith Bitwire, the evidence that he was among the three relatives who received the death certificate tended to show that he most probably knew the cause. Lastly although he deponed that his appearance was natural, he did not dispute that it had changed over time as alleged by the 1st Respondent. The serious bone of contention, therefore, was whether the grounds stated by the 1st Respondent were reasonable grounds within the meaning of S.65 of the Act.

To my understanding, the phrase “reasonable grounds for believing” must refer to facts on which any reasonable person would base a belief. In this regard a reasonable person is one endowed with reason and possessed of common knowledge. It is in that context that I found the evidence of Professor Rwomushana to be more relevant on the point at hand, than that of Dr. Ssekasanvu. Dr. Ssekasanvu was concerned with facts (signs and symptoms) which lead a person trained in medical skills to conclude that someone he has examined is suffering from AIDS. Professor Rwomushana, on the other hand, referred to facts which lead a lay/common person in Uganda to believe that the neighbour is suffering from AIDS.

Mr. Balikuddembe criticised Professor Rwomushana’s evidence as based on idle talk and gossip, because the professor did not avail to Court evidence of the research he referred to. That criticism was not justified. Even the research must have been based on the so-called “idle talk and gossip.” In any case, the substance of the evidence is such common knowledge that even without the professor’s evidence; the Court could have taken judicial notice of it. In Uganda we have been with the epidemic of AIDS for two decades. The general public in Uganda knows some basic facts about it, including the fact that it is commonly transmitted through sexual contact, and the fact that an infected woman who gets pregnant passes the disease to her baby. This is common knowledge acquired, not from superstition or speculation, but from persistent propagation by those with medical knowledge, coupled with experience of realities on the ground. The fact that there are instances where infection is not passed on, as pointed out by Dr. Ssekasanvu, is in my view, a detail that would be more in the knowledge of medical professionals, than of the lay or common person referred to by Professor Rwomushana.

To insist, as seemed to be the Petitioner’s case, that the reasonable ground could only be derived from diagnosing, testing or consulting the Petitioner, would be to delude the provision in S.65 of its meaning and the in-built defence. If the 1st Respondent had done any of those things, then he would most probably have found out the health status of the Petitioner, and would therefore, have known the statement to be false when he published it. The question here, however, was whether his defence that he believed the statement to be true on basis of the grounds he stated was available to him. In my considered view it was. In this regard I would point out that while in the provision the legislature intended to condemn a candidate who publishes a statement about the illness of another knowing it to be false, it also clearly intended to excuse a candidate who does so, believing on reasonable grounds, that the statement is true.

For those reasons, I found that it had not been established that the 1st Respondent published the maligned statement without reasonable grounds to believe it to be true.

Had effect of promoting election of 1st Respondent:

The Petitioner pleaded that the statement had the effect of promoting the 1st Respondent’s election. He asserted in the petition, and repeated in the accompanying affidavit that:

“……….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.”

Later, in his affidavit in reply he added that the statement had been on a website, from where it could be accessed and down-loaded. He also deponed that in an explanation given to a press conference on 11th March, which was broadcast by various radio stations and was published the following day in the New Vision and Monitor newspapers (copies of which were annexed to that affidavit), the 1st Respondent had said that by the statement he had meant that “State House is not a place for the invalid. A President should be someone in full control of his faculties both mental and physical” The Petitioner reiterated:

“…..as a result of the 1st Respondent’s said statements, my agents... and some of my supporters expressed their concern with my health status and sought for my explanation.”

I am constrained to observe again, that the Petitioner pleaded what was not necessary to prove. To establish the illegal practice, it was not necessary to prove that the statement had the effect of promoting the election of the Respondent. What was required was to prove that the statement was published for the purpose of promoting or procuring the election of the 1st Respondent. As it happened no evidence was produced to prove the alleged effect, and not surprisingly therefore it was not canvassed in counsel’s submissions. The Petitioner’s counsel instead argued that from the evidence before the Court, the only rational inference that could be drawn as to the 1st Respondent’s motive in publishing the statement, was that he intended to undermine the Petitioner’s candidature thereby promoting his own. He stressed that this view was confirmed by the 1st Respondent in the explanation he gave at the press conference. The 1st Respondent’s counsel countered with an argument that the Respondent would not have addressed the statement to an American magazine, if its purpose had been to win himself votes in Uganda.

The 1st Respondent admitted making the statement, but did not disclose what his purpose was in making it. Ordinarily it is not difficult to discern the purpose of a statement from its context. However, the statement in this case, was not reported in its full context. Three documents, each containing a report about the original statement, were annexed to the Petitioner’s affidavit, namely:

(a) the article in Monitor of Thursday, March 08, 2001 under the title “Besigye has AIDS, Museveni tells American paper”;

(b) printout of an article also dated Thursday, March 8, 2001, under the title “Three’s a Crowd in Love and Politics” from the website: http: // www.time.com.; and

(C) the article in Time magazine of March 12, 2001, under the title “The Race of his Life”,

In each article the statement is put in such different setting that, but for the Respondent’s admission that he made it, it might have been difficult to place reliance on any of the reports. That notwithstanding, however, there was sufficient material in the evidence before the Court from which the 1st Respondent’s motive in making the statement was discernable. The statement was made in the middle of the election campaign. It was made to a journalist who was apparently covering the 1st Respondent’s campaign trail, albeit for a foreign magazine. It was made about a candidate who was posing the biggest challenge to the 1st Respondent. On the eve of polling day, at a press conference, and also at a rally at Kololo airstrip the Respondent did not opt to play down the remarks he had made to the foreign journalist, which he could have done if the remarks were not intended for the public targeted by the local media. Instead he chose to explain the statement to the media, which explanation he must have known, would reach out to the electorate by polling day. Because the making of the explanation was not disputed, I was able to rely on the newspapers as to what he said on 11th March. In its issue of Monday, March 12, 2001, the Monitor newspaper published under the heading: “Museveni explains his AIDS remarks”, an article which read in part:

President Yoweri Kaguta Museveni has admitted that he made remarks about Col Kiiza Besigye’s alleged HIV status to a Time Magazine journalist, but said he was quoted out of context. ‘I made the remarks but my friend Marguerite (Michaels, the author) put it out of context.’ Museveni told journalists at State House in Nakasero. Museveni said he believed State House is not a place for the invalid. “A President should be someone fully in control of his faculties both mental and physical’ he said, adding that there was no reason ‘to wait for someone to get into office and fall sick’



Museveni drew the wrath of anti-AIDS activists when he (was) quoted in the Time Magazine of the week ending March 12 as having said that ‘Besigye is suffering from AIDS’

Addressing thousands of his supporters at Kololo airstrip later yesterday Museveni said he was the best friend of people living with AIDS and that they should be grateful to him.”

If the fact that the statement was first made to a foreign journalist raised doubt as to its purpose, the 1s Respondent’s explanation to the journalists at State House on the eve of polling day erased that doubt. He made it clear that his message in the maligned statement was that the Petitioner as a victim of AIDS was not a fit person to be elected President. And in so doing he was promoting his own election.

I found therefore that the last component of the illegal practice had been established. I however found, that because the other two components were not established, the illegal practice pleaded under paragraph 3(2) (a) of the petition, was not proved. I now turn to the last illegal practice pleaded.

Offered gifts to induce voters:

In paragraph 3(2) (b) of the petition, the Petitioner pleaded:

Contrary to section 63 of the Act the 1st Respondent and his agents with the 1st Respondent’s knowledge and consent offered gifts to voters with the intention of inducing them to vote for him.”

Under s.63 of the Act, a candidate commits an illegal practice of bribery if he or she “before or during an election gives or provides any money, gift or other consideration, to a voter with the intention of inducing the person to vote for him or her.”

In the affidavit accompanying the petition, the Petitioner did not set out the facts on which that pleading was based as required under r.4 (7) of the Presidential Elections (Election Petitions) Rules, 2001. However he purported to do so subsequently, first in the affidavit in reply to the Respondent, dated 5th April, 2001, and again in the supplementary affidavit dated 6t April 2001. All in all, the Petitioner made allegations in his affidavits that the 1st Respondent had given out or offered to give, three forms of gifts to voters to induce them to vote for him. The allegations were:
(a) that he gave a new motor cycle to one Sam Kabuga in order to influence “motor cyclists/voters to vote for the 1st Respondent”;

(b) that with intention to induce persons to vote for him, he —

(i) abolished cost sharing in Government and Local Government Health Centres;

(ii) increased salaries of medical workers, and offered to increase teachers’ pay;

(iii) hurriedly caused to be signed contracts for tarmacking and upgrading several roads; and

(c) that he offered a gift of money to voters who attended his campaign rally at Arua on 12th February 2001 –

In the affidavit in reply he made on of 5th April, in which all those allegations were made, the Petitioner certified that they were true and correct to the best of his knowledge. He did not claim, however, to have witnessed the 1st Respondent handing over the gifts or making the offers. He only annexed to the affidavit, photocopies of cuttings from Sunday Vision and Sunday Monitor newspapers carrying a photograph of Sam Kabuga receiving a motor cycle from the 1st Respondent to support the allegation of that gift. But apart from an intimation that these were other affidavits to confirm the allegation on contracts for roads, the Petitioner adduced no evidence on the alleged “gifts” through public funds. In support of the allegation of the gift of money to voters who attended the rally at Arua, the Petitioner attempted to introduce in evidence, an alleged video recording of the rally. As the person who recorded it was not disclosed and did not swear an affidavit about the recording, the video clearly was not admissible in evidence. In the result the Petitioner did not adduce any evidence to prove the alleged acts of bribery by the 1st Respondent. Nevertheless there was evidence adduced on behalf of the Respondent in reply to the allegations, which the Court had to consider.

Sam Kabuga swore an affidavit admitting that he received a motor-bike from the 1st Respondent and narrating the background, which in a nutshell was as follows: He had always been an ardent supporter and admirer of the 1st Respondent. On 9th January, 2001, he was among colleagues who escorted the Respondent to Kololo airstrip to witness his nomination. At the request of one Moses Byaruhanga, which he gladly accepted, he carried the 1st Respondent on his motor bike through the congested crowd, to the podium at the airstrip, which the latter’s motorcade could not do easily. Thereafter he continued to solicit support for the 1st Respondent, and on 20th January 2001, was appointed his campaign agent in the capacity of “Mobiliser, Boda-Boda Task Force.” Later he agreed with the said Moses Byaruhanga that he should be given a motorbike to facilitate his task of mobilisation, and the motorbike was handed to him by the Respondent on 26th January 2001. He refuted the Petitioner’s allegation that the motorbike was given to influence his voting, arguing that he was already the 1st Respondent’s “supporter, mobiliser and agent.” That version of what led to the gift of the motorbike and its purpose was not disputed or in any other way challenged. I therefore did not find any basis on which the Court could hold that the motor bike was given to Sam Kabuga with a corrupt intent to induce him or other boda-boda voters to vote for the 1st Respondent.

In response to the Petitioner’s allegations concerning abolition of cost sharing in Health Centres, increase of salaries for medical workers and teachers, and contracts for road works, three Government Ministers swore affidavits to clarify that the matters complained of in the allegations, were done in implementation of on-going Government policy and programmes, and not as ad hoc acts, to induce voters to vote for the 1 Respondent. The Minister for Public Service, Hon. Benigna Mukiibi deponed that the Ministry had in a Pay Strategy Report made recommendations to address the plight of the middle rank professionals, and the Minister of Finance had made provision in the National Budget for the Financial Year 2000/2001 for implementation of those recommendations. According to the Minister, the increment of salaries for medical workers and teachers was from funds designated in the National Budget under the Public Service Pay Reform Program and was not done by the 1st Respondent to induce voters to vote for him. She annexed to the affidavit copy of the Budget Speech, read on 1 5th June 2000, which substantially confirmed what she deponed.

In his affidavit, Hon. Dr. Kiyonga, the Minister of Health gave the background to the abolition of cost-sharing which had been introduced years back. It had for long been subject of debate, and no consensus, whether it should be abolished, because it was blocking the poor people’s access to health services. His explanation, in a nutshell, was that from 1997 Government had introduced Primary Health Care Conditional Grant to assist Local Governments in the health sector; and the grant continued to grow, until the Financial Year 2000/2001 when it stood at shs.39 billion. By February 2001, it was no longer justified to deny health services to the poor due to inability to pay under the cost-sharing policy. The agenda on cost-sharing had been set by the Budget for the Financial Year 2000/2001. He denied the Petitioner’s allegation, that cost-sharing was abolished to induce voters to vote for the Respondent.

The Minister of Works, Housing and Communications, Hon. John Nasasira also swore an affidavit. He clarified that the alleged contracts were signed by the Permanent Secretary, but in his presence. He pointed out that tarmacking the several roads, was part of the implementation of the Government Ten Year Road Sector Development Program which commenced in 1 996. He annexed to his affidavit, copy of an executive summary of the program. He detailed the back ground to the signing of the contracts. Signing of the Credit Agreement with the World Bank for financing tarmacking and upgrading three of the roads, and advertising for short listing contractors, and for tenders for them, were done in November 1999. Letters inviting the short listed contractors were issued in July 2000. Copies of the advertisements, and the invitation letters were annexed to the affidavit. The Minister also explained that in respect of the fourth road which was also part of the same program, only the contract for tarmacking and upgrading one section had so far been signed.

The 1st Respondent did not put forward any evidence in regard to the alleged money gift to voters who attended the 1st Respondent’s campaign meeting/rally at Arua on 12th February 2001. The allegation was, however, indirectly challenged, in regard to the date of the alleged incident. Moses Byaruhanga annexed to his affidavit, the official programme for Presidential campaigns in which it was indicated that on 12th February 2001, the 1st Respondent was scheduled to campaign in Masindi not Arua.

When, on 6th April, 2001, the Petitioner’s Counsel addressed the Court on issue No.4, and in particular on the alleged illegal practice of bribery, the affidavits of Sam Kabuga and the three Ministers were not yet on record, as they were received on 7th and on 9th April 2001. Understandably therefore, he did not comment on them. However, even during the address in reply, well after those affidavits were filed and referred to by the 1st Respondent’s counsel in argument, counsel for the Petitioner did not comment on them. He did not abandon his earlier submission based on the Petitioner’s affidavits. He had contended that the decisions to abolish cost-sharing, to increase salaries, and to sign contracts for tarmacking the four roads, were made hurriedly without budgetary provision, and were not done in ordinary course of business of Government but rather in abuse of the office of 1st Respondent as Head of Government. Counsel invited us to follow the decision of ATTORNEY-GENERAL vs. KABOUROU (supra) and hold that the 1st Respondent had committed the illegal practice as alleged.

It seems to me that there was a very serious lapse in the handling of this aspect of the petition. Apparently there might have been anticipated supportive evidence at least in respect of the allegation on tarmacking roads which did not materalise. This is apparent from what the Petitioner said in his supplementary affidavit, where, after he deponed in paragraph 1 5 that he knew the 1st Respondent offered to cause repair of the roads “in a manner” which was out of the ordinary, with a view of inducing voters to vote for him, he certified that what was stated in paragraph 15, (among others,) was “further confirmed by the various affidavits filed in support of this petition.” No such confirming affidavits were filed. In those circumstances, it would have been more appropriate to concede that the allegation could not be proved, rather than appear to hold to submissions that did not fit the facts before the Court. I need only mention that the facts of this case are not comparable to those in ATTORNEY-GENERAL vs. KABOURDU (supra) where it was established by evidence, to the satisfaction of the court, that the repair of the road “had been undertaken by the central government not in the ordinary course of government but (with a corrupt motive) as a reward to voters for voting for the ruling party as promised by prominent cabinet ministers at well-attended rallies/n the constituency.” (see head-note (4) at p.759 h-i of the report).

In the result I did not find that the abolition of cost-sharing or the implementations of the salary reform and/or the road development program were done with a view to corruptly induce any voter to vote for the 1st Respondent.

Bribery of voters by agents:

The last aspect on the complaint of bribery was that the 1st Respondent’s agents, committed the illegal practice with his knowledge and consent or approval. Apart from the general pleading in the petition which I have already reproduced, the Petitioner did not, in any of his affidavits, allude to any evidence of acts of bribery by the 1st Respondent’s agents. However, there were allegations of bribery made by nine witnesses who swore affidavits in support of the petition. Counsel for the Petitioner Mr. Walubiri made reference to only four of them in his submissions. I have had to disregard six of those allegations either on the ground of the hearsay rule, or because they did not disclose the illegal practice as defined in s.63 (1) of the Act. Let me briefly allude to those six first.

Omalla Ram of Tororo, (one of those referred to by Mr. Walubiri) who was the Petitioner’s coordinator for Veterans in Eastern Region; Olwenyi Victor. Petitioner’s Election Monitor in Tororo Municipality; and Lucia Naggayi, Petitioner’s Head of Monitoring Team for Kiboga, deponed about alleged bribery reported to them by their respective agents. That was inadmissible hearsay. Mugizi Frank and Ssali Mukago both referred to by Mr. Walubiri and resident of Rubaare Trading Centre, and Idd Kiryowa of Nabiseke Sembabule, deponed about alleged offers of money made to themselves not as inducements to vote for the St Respondent or anyone else, but for other purposes. The offer to Mugizi was to lure him to return to the polling station (from where he had been chased during the day) to sign the Declaration of Results forms. The offer to Ssali was allegedly made on 9th March on behalf of the 1st Respondent’s Task Force so that he 7’can leave them to steal votes.” Kiryowa was offered money so that he ceases to act as the Petitioner’s agent. All those alleged offers were turned down, but more to the point, they were not offers, let alone gifts to a voter with intention of inducing the voter to vote for anyone.
That left three allegations which I reproduce here as told by the witnesses in their affidavits. Gariyo Willington, (relied on in Mr. Walubiri’s submission) was the Petitioner’s Overseer of polling agents in Rubaare Sub-county. He deponed:

At about 11 a.m. I visited Kyanyanzire cell and saw Mwesigwa Rukutana loading people on a motor vehicle Reg.No. UAA 006A Nissan pick-up and he was giving Shs.5,000/= to every person who was boarding and instructing them to vote Candidate Museveni Yoweri Kaguta.”


Three persons refuted this evidence. Mwesigwa Rukutana a Member of Parliament and one of the counsels for the 1st Respondent in this petition swore an affidavit in which he refuted that evidence. He deponed that on polling day he did not go to Kyanyanzire village, that he did not load any people on any vehicle, and that he did not give money to anyone as alleged by Gariyo Willington. He deponed further that he spent the day with his driver Asingwire Richard, and one Bob Kabonero driving around his constituency in a Prado vehicle Reg.No.UAA 91 5S. He was corroborated by Asingwire Richard and Bob Kabonero, on the facts that he did not go to Kyanyanzire village, and did not give out money as alleged by Gariyo and also that they were with him throughout the day. I was not impressed by the concerted denials.

Etetu John Stephen deponed that he was a voter at Kichinjaji polling station, Soroti Northern Division. He deponed —

2. That at this polling station Hon. Mike Mukula was present from around 8 a.m.
to 12 noon
moving among the buildings asking people to vote the 1st Respondent and dishing out money to voters.

3. That after voting I moved home which is about 120 metres from the polling station and that is where Hon. Mike Mukula was.” (Emphasis is added)

Captain George Michael Mukula, M.R, made an affidavit, in which he denied being at Kichinjaji Polling Station between 8 a.m. and 12 noon on 12th March 2001, dishing out money to voters. Ekunyu Beatrice, Elietu Paul and Angolo Martha, the Presiding Officers for Kichinjaji Polling Stations “B”, “C” and “D” respectively, averred in separate affidavits that Hon. Mike Mukula did not visit their respective polling stations on polling day and that they did not see him dishing out money to voters. Omuge George William, the Returning Officer for Soroti District averred that on polling day he visited Kichinjaji Polling Station between 11 a.m. and 12 noon. He did not find Hon. Mike Mukula there, nor did he get any complaint that he had been there dishing out money to voters. One other person, however, saw Hon. Mike Mukula at Kichinjaji. Obela Lawrence, the Presiding Officer of Kichinjaji “A” polling station, deponed that Hon. Mike Mukula called at that polling station at about 10 a.m., waved to people at a distance of about 3 metres, inquired how the voting was progressing and left shortly after. But he did not see, nor hear of, Hon. Mukula dishing out money to voters and/or telling them to vote for the 1st Respondent. This evidence corroborates that of Etetu in a material particular, namely the presence of Hon. Mukula in the area, which the latter denied. The failure of the others to see him was not very material particularly in view of the evidence of Etetu that he saw Hon. Mukula moving among buildings not in the polling stations.

Joseph Drabo, the Petitioner’s mobiliser, of Mite parish in Ayivu County, Arua, deponed that on 12th March 2001 he saw Godfrey Asea, the LC I Chairman of Ndru sub-parish, Mite parish “giving out unspecified amounts of money to one Odipio Inyasio, at Lia polling station with directives that the same be given to all the women so that they vote for Yoweri Kaguta.” The Presiding Officer of Lia B (Panduru) polling station, Awita John Bosco, confirmed in an affidavit that Drabo visited his polling station but averred that Odipio did not come there and that he did not see any money changing hands at that polling station, nor did he receive any report about it.

My observation on the evidence from the three witnesses to the alleged incidents of bribery is that though I believe the witnesses, each was lacking in particularity. I would have looked for some corroboration, before acting on the evidence. However the major deficiency, for purposes of establishing that the 1st Respondent was liable for any of the alleged bribery is that there was no shred of evidence that Mwesigwa Rukutana, Mike Mukula and/or Odipio Inyasio had each done what was alleged with the knowledge and consent or approval of the 1st Respondent.

For the reasons I have outlined I answered issue No.4 in the negative.

ISSUE NO. 5:

The last issue was on what reliefs were available to the parties. Upon dismissing the petition, we invited the parties to address us again on the question of costs specifically, in view of the holdings on the other issues. After hearing counsel the Court by unanimous decision, ordered each party to bear its own costs. The reasons for that decision were also reserved, to be given along with the reasons for the rest of the judgment.

Dr. Byamugisha had prayed for costs on the principle under S.27 of the Civil Procedure Act, that costs shall follow the event. He maintained that the case was very important. It had been very involved both on facts and the law, but it had to be conducted in a very short time. That had necessitated hard work and engaging many advocates. He prayed that for the 1st Respondent the award of costs should include instruction fees for 13 counsels. He recalled that counsel for the Petitioner had in his original submission prayed for costs for 10 counsels in the event of the petition being successful, and argued that he (Petitioner’s counsel) should not be heard to renage from the principle. Learned counsel urged the Court not to encourage frivolous litigation by denying costs to the successful parties. For the 2nd Respondent, Mr. Deus Byamugisha, submitted that there was no good reason for not following the principle in S.27 of the Civil Procedure Act. He maintained that an unsuccessful candidate at an election should weigh his chances of success before petitioning the Court and thereby compelling other parties to incur litigation costs. He also prayed that the 2nd Respondent be awarded costs as a successful party.

Mr. Balikuddembe for the Petitioner reiterated that the case was very important and submitted that the petition had been brought in the interest of the country. He stressed that the Petitioner had not been wholly unsuccessful since he had scored some success on some of the issues. Learned counsel also maintained in particular that “it would not be proper to award costs to the 2nd Respondent for failure to conduct the elections in compliance with the law”

It is trite that as a general rule, in civil litigation, the successful party is awarded costs of the litigation. It is also trite that in awarding costs, the Court has very wide discretion, which needless to say, it must exercise judicially, having regard to the circumstances of the case.

To my mind the first and main consideration was the importance of, and public interest in, the case. Here I mean public interest, not in the sense of curiosity, but in the sense that the country needs to ensure that the election of its President is a free choice of the citizens, made in accordance with the Constitution and the laws enacted to regulate the election. That interest is of particular significance in Uganda today, given her history that is not noted for democratic election of the political leaders. In that sense, in addition to the Petitioner and the Respondents as the obvious parties, the public was the un-participating and silent party in the case, seeking a just pronouncement, according to the law, on whether the election of the President was a free expression of the will of the majority. I agree with the submission that it is important for the Court, in the exercise of its discretion, not to do so in a manner that would encourage frivolous litigation. However it is equally, if not even more important, for the Court to avoid discouraging would-be petitioners with substantial causes of action, from petitioning the Court for fear of being crippled by orders for costs. In its discretion the Court should assess the merits and demerits of the particular case before it. That brings me to the second consideration in the instant case.

The Petitioner brought to court a tangible case, which deserved to be inquired into. Although some issues that came up during the trial may have been farfetched or even trivial, the case as a whole could not be described as frivolous as suggested by counsel for the 2nd Respondent.

I agreed with the view expressed in the extract from the Guildford Case:



Elkins vs. Onslow (1896) 19 LT 729, cited in The Digest: Annoted British, Commonwealth and European Cases Vol. 20 at p.71, para. 642.

Where the case as disclosed under a petition is proper for examination and the petition is founded upon strong prima fade grounds and attended with reasonable and probable cause for pursuing the inquiry to termination the Petitioner will not be condemned in the costs of the respondent although the result may be in favour of the latter.”

I hasten to add however that each case has to be considered on its own merits. For the reasons I have indicated I found it appropriate for the court to order each party to bear its costs of the petition.

I wish to add my expression of gratitude to counsel for all parties for tremendous assistance they rendered to the Court. Given the enormity of the task and the severe time constraint, the industry and skill put in the preparation and presentation of the cases of their respective clients was highly commendable.


I think they have set a good precedent and confirmed that the special procedure adopted for the undoubtedly special case can achieve the results.

J.N. MULENGA
JUSTICE OF THE SUPREME COURT


DATED at Kampala this 21st day of April, 2001

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