ELECTION PETITIONS DEMYSTIFIED; Affidavits' Rule, Nullification, Remedies, Offences, etc...

A DEMYSTIFIED PRACTICAL APPROACH TO ELECTION PETITIONS IN UGANDA.

BY GUKIINA PATRICK M.

 

The concept of a free and fair election was enunciated in the case of Rtd. Col Kizza Besigye v. HE Yoweri Museveni No.1 of 2001, wherein the supreme court averred that: “a free and fair election is one that is representative of the will of the electorate which averment can be deduced from Article 1 of the 1995 Constitution which provides for the sovereignty of the people of Uganda. 

Furthermore, the Halsbury’s Laws of England Volume 38(a), 5^th Edition and the case of Rao and others, (1956) 1 MLJ 40, highlight the sound principle of natural justice that the success of a candidate who has won at an election should not be lightly interfered with, and any petition seeking such interference must strictly conform to the requirements of the law. Furthermore, the general rule is that a candidate who lost an election or a  registered voter in the constituency supported by the signatures of not less than 500 registered voters in the constituency can file an election petition and the same is asserted in S. 60 (2) of PEA and S. 138 (3) of LGA.

It is also noteworthy that an election is not a single day event as it involves the pre-election period which consists of campaigns, application of rules and guidelines and distribution of election material and similarly the Post-election period which entails the counting of ballots, announcing of election results and handling of complaints” et al and as thus this entire process lays ground for challenging the election process.

Without prejudice to the foregoing, the Constitution does not provide for the procedure to be used when challenging an election. However, it gives Parliament the powers to make laws necessary for purposes of this Article including laws for grounds of annulment and rules of procedure.

Be that as it may, some of the laws that Parliament has passed into law include the; Electoral Commission (Amendment) Act 2020. The Political Parties and Organizations (Amendment) Act 2020; the Parliamentary Elections (Amendment) Act 2020; and the Presidential Elections (Amendment) Act 2020.

Nevertheless, the procedure for trial is provided for by the Parliamentary Elections (interim provisions) (election petition) rules 141-2 which aver that Trial is by affidavit evidence and all affidavits are deemed to have been read at filing. The sequence include filing the petition accompanied by affidavits of the petitioner and his or her witnesses, which are replied to by the respondent who files an answer to the petition together with replies. The petitioner can file rejoinders. He can also file additional affidavits in case of new evidence not previously filed or supplementary affidavits to clarify or add to matters in an affidavit already filed however, the same may be subject to courts discretion depending on a case to case basis.

It should also be noted that a petition and its supporting affidavit thereto are pleadings as the same was affirmed in Mutembuli Yusuf vs. Nagwomu Moses Musamba & EC EPA No.43 of 2016.

Needless to add is the fact that the standard of proof in an election petitions is on a balance of probabilities and the burden of proof is on the Petitioner to prove their allegations. This can be deduced from  Section 101 of the Evidence Act which stipulates that the onus is always on the plaintiff and if he makes out a case which entitles him to relief, the onus shifts to the defendant to prove those circumstances if any which would disentitle the plaintiff to the same. The same position was re-affirmed in the Supreme Court in Col (Rtd) Kizza Besigye V Museveni Yoweri and Another Presidential Election Petition Number 1 of 2001 where court held that the burden of proof lies squarely with the petitioner to prove what he or she asserts. 

Be that as it may, courts have also adopted a test for nullification which is also known as ‘the substantiality test” and thus in the case of Col (Rtd) Dr. Kiiza Besigye v Yoweri Kaguta Museveni, SCEP No. 01/2001, Odoki CJ stated that ; “ For court to decide whether or not the non-compliance affected the results in a substantial manner, it must be proved to its satisfaction on a balance of probabilities that the non-compliance was calculated to really influence the result in a significant manner and as thus court is envisaged to assess the effect and to evaluate the whole process of election to determine how it affected the results.

 

     OTHER VITAL CONSIDERATIONS IN HANDLING ELECTION PETITIONS

AFFIDAVITS:

In the case of Odo Tayebwa v Kakuuma Arinda and EC EPA No.86 of 2016, court held that an affidavit is a written statement in the name of the deponent by whom it is voluntarily signed and sworn to or affirmed. It is confined to such statements as the deponent is able to their knowledge prove, but also in certain statements of information and belief with the sources and grounds thereof being disclosed.

Furthermore, without prejudice to the above, in the case of Assanand & Sons vs EA Records (1959) EA 360 and Standard Goods Corporation Ltd Vs Harakchand Nathu &Co. (1950) 17 EACA, court laid down a principle that it is well settled law that where an affidavit is made on information, it should not be acted upon unless the sources of information are specified.

Needless to add is the fact that in election petitions, evidence is by way of affidavit and it is therefore vital that the affidavit evidence which is the examination in chief of a witness and is relied upon by court and should be properly taken with the seriousness it deserves in terms of honesty and sincerity just like oral evidence is done. The same aspect was well elaborated in the case of Abala David vs Acayo Juliet Lodou Election Petition No.004 of 2021 Soroti High Court

In the same premise, in the case of Apollo Kantinti V Sitenda Sebalu, EC and the Returning Officer EPA No.31 &33 of 2016. Court held that Election matters are important proceedings and courts take a liberal approach to affidavits so that petitions are not defeated on the basis of technicalities.

To further buttress the above point, affidavits which divulge information must disclose their source of information and the same was averred in the case of Betty Muzanira Bamukwatsa Vs Masiko Winfred Komuhangi & 2 others EPA No.65 of 2016 where the court held that an affidavit may in certain cases contain statements of information and belief provided the sources and thereof are disclosed

Suffice to it as it may, it is well settled law that courts of law have discretion to sever and reject those parts of the affidavits that are defective. The same was provided for in the case of Dr. Kizza Besigye Vs Museveni Yoweri Kaguta and EC Presidential Election Petition   No.1 of 2001, where the court held that in a proper case, and depending on the circumstances before the court, the court has the discretion to sever and reject those parts of an affidavit that are defective or superfluous and to consider and rely upon the proper parts of the same affidavit.

Needless to add is the case of Apollo Kantinti V Sitenda Sebalu, EC and the Returning Officer EPA No.31 &33 of 2016, where court held that election matters are important proceedings and courts take a liberal approach to affidavits so that petitions are not defeated on the basis of technicalities.

DECLARATION OF RESULTS.

In the case of Kakooza John Baptsist V Electoral Commission & Yiga Anthony EP. Appeal No.11 of 2007 court held that a declaration of result for is a public document which requires CERTIFICATION if it is to be presented as an authentic and valid document in evidence.

                                GROUNDS FOR NULLIFICATION OF AN ELECTION

There are mainly four notorious grounds that have been used to set aside / nullify elections and the same are well out in S. 61 (1) of the Parliamentary Elections Act (PEA) and they include:

i)             That there was noncompliance with the provisions of the PEA relating to Elections. However, it’s upon the petitioner to prove the same and he or she has to show that the said non-compliance and the failure has affected the result in a substantial manner.

ii)            That a person other than the one elected won the election.

iii)           That an illegal practice or any other offence under the PEA was committed in connection with the 7 election by the candidate personally or with his or her knowledge and consent or approval,

iv)           That the candidate was, at the time of his or her election not qualified or was disqualified for election as a Member of Parliament.

NB: It should be noted that the same grounds can also be applied in nullifying an

       Election with the necessary modifications according to the governing Acts.

 

                          GROUNDS FOR OPPOSING AN ELECTION PETITION.

In many cases, election petitions are challenged on the basis of admissibility of evidence before court as stated hereunder:

1. Affidavits couched in similar words, differing names of deponents which offends the law on affidavits. This gives credence to the respondent’s assertion that the affidavits in support contain statements of falsehoods and are couched in similar words which renders them suspect. Nevertheless, courts have taken approach to the effect that to condone such a statements and considering such affidavits invalid would undermine the importance of affidavit evidence which is rooted in the fact that it was made on oath.

2.    The issue of uncertified public documents being relied upon by a petitioner.

Section 76 of the Evidence Act provides for proof of public documents by production of the original or certified copies. In light of the foregoing, a declaration of results form is a public document within the meaning of section 73(a) (ii) of the Evidence Act and thus requires certification if it is to be presented as an authentic and valid document in evidence. However, it is also noteworthy that Uncertified declaration of Results forms can be relied on only as secondary evidence, if there is proof that the person tendering them requested for certified copies and the one who is in possession refused to avail them to him and in the instant case, there must be proof of notice in order for one to benefit from the exception as provided for in Kakooza John Baptist V EC and Yiga Anthony EPA No.11 of 2007

In this particular case there is proof of notice that the petitioner requested for the certified copies.

 

  Affidavits Based On Hearsay AND the doctrine of severance.

It is trite law that all evidence at the trial of an election petition is required to be adduced by affidavits. However, Order 19 rule 3(1) of the Civil Procedure Rules provides that; Affidavits shall be confined to such facts as the deponent is able of his or her own knowledge to prove, except where the hearsay exception rule applies and on interlocutory applications, on which statements of his or her belief may be admitted, provided that the grounds thereof are stated

Furthermore, affidavits that are based on hearsay don’t disclose their source of information and as thus it may be presumed that there is a high likelihood of the petitioner putting words into the mouths of those named and or manufacturing both the evidence and their signatures to the jurat. The same was enunciated in the case of  Nsubuga Jona v. Electoral Commission & Bwanika Mathias Lwanga, Election Petition No. 34 of 2011.

 

In light of the aforesaid, it is also imperative to note that in Rtd. Col. Kizza Besigye v. Yoweri Museveni Kaguta & the Electoral Commission, Supreme Court Presidential Election No.1 of 2006, court noted that the parts of an affidavit which are hearsay and offend provisions of Order 19 rule 3 Civil Procedure Rules ought to be severed off without rendering the remaining parts of the affidavit defective or a nullity, and that a defective affidavit is not necessarily a nullity.

 

However, without prejudice to the foregoing, where the remaining paragraphs in the affidavit cannot sustain the required standard of proof in election petitions under Section 61 (3) of the Parliamentary Elections Act, when an affidavit fails for noncompliance with statutory requirements, even the petition it supports must fail because it remains unsupported. 

 

 

3.      Objections to the additional affidavits filed by a petitioner.

It is worth noting that time is of essence when it comes to filing election petitions. Similarly,  subsequent affidavit evidence can be adduced to prove an allegation made by a petitioner as long as it doesn’t introduce a new matter not pleaded in the petition. The same was held in the case of  Bantalib Issa Taligola V Wasugirya Bob Fred and the EC. Election Appeal No.11 of 2006. However, courts also have discretion to reject them.

 

4.    Affidavits with no jurat:

It should be noted that Courts have been liberal on the format of jurats as there is hardly any law condemning the separation of the signature page from the text of the affidavit yet it has been a subject of contention that this creates room for fraudulent drafting of the affidavit to manufacture or cook up evidence and simply attach the signature of the so-called deponent. Without prejudice to the foregoing, the practice of separating the jurat from the main body of the affidavit lends a hand to the ‘not-far-fetched’ suspicion that the deponent did not know the contents of the affidavit and did not swear to the truthfulness and correctness of the contents in the text of the affidavit.

However, in the case of Dr. Bayigga Michael Philip Lulume Versus Mutebi David Ronnie & Electoral Commission EPA No.014 of 2016, it was held that a stand-alone jurat signed separately from the main body of the affidavit can be attached to any other affidavit and that the practice of separating the jurat from the main body of the affidavit is unlawful and or irregular rendering the affidavit defective. Suffice to it as it may, there mere fact that this has been common practice does not make it lawful as the practice is irregular since It promotes the admission of fraudulent, forged or suspicious evidence. The same was held in the case of Dr. Bayigga Michael Philip Lulume Versus Mutebi David Ronnie & Electoral Commission EPA No.014 of 2016

Nevertheless, it is vital to note that mere lapses and errors in an affidavit cannot vitiate the affidavit in light of Article 126(2) (e) of the Constitution as they don’t constitute a major breach of the law on affidavit evidence.

 

5.                      THE ELEMENT OF QUALIFICATIONS OF CANDIDATES.

By law, a person is qualified to stand as a Member of Parliament if he is a citizen of Uganda, a registered voter and has completed his minimum formal education of A level or its equivalent. The same can be deduced from Article 59 of the constitution. Also refer to the case of George Patrick Kasajja v. Fredrick Ngobi Gume and EC EPA 68 of 2016 where it was held that evidence of that person’s name on the national voters’ register is conclusive proof that one is a voter and not just the mere Possession of a National ID.

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                       OTHER CONSTITUTIONAL QUALIFICATIONS TO NOTE.

 It is imperative to note that Article 80 (2) of the Constitution of the Republic of Uganda disqualifies the following persons from eligibility to be elected as a member of Parliament and these include:

i)             A person  of unsound mind;

ii)            holding or acting in an office the functions of which involve a responsibility for or in connection with the conduct of an election;

iii)           Traditional or cultural leaders as defined in article 246(6) of this Constitution

iv)           People who have  been adjudged or otherwise declared bankrupt under any law in force in Uganda and have not been discharged;

v)            People under a sentence of death or a sentence of imprisonment exceeding nine months imposed by any competent court without the option of a fine. Among others.

                                      THE EFFECT OF CHANGES IN ORDER OF NAMES

This element was well enunciated in the case of  Mulindwa Isaac Ssozi Vs Lugudde Kato Elizabeth   where it was held that it is not enough to merely allege a difference in the order of names but a petitioner must prove that there is also a difference in the person who owns the academic documents and in the instant case, the petition was dismissed on various grounds including the fact that the petitioner failed to bring another owner of the said academic documents

 

ELECTION OFFENCES AS A GROUND FOR NULLIFICATION OF A PETITON.

 

1.    Bribery and Illegal practices

In the case of Odo Tayebawa vs Nasser Basajabala, court held that one single incident alone can be relied on to nullify an election. Nevertheless, Section 68 (1) of the Parliamentary Elections Act is to the effect that a person who before or during an election intending to influence another to vote or refrain there from for any candidate gives or causes to be given or provides any money, gift or other consideration to that person commits the offence of bribery. However, in the case of Musinguzi Garuga James versus Amama Mbabazi and EC, Egonda-Ntende, J. at page 84 of his judgment para.307 defined Bribery to mean an event where any person before or during an election with intent either directly or indirectly to influence another person to vote or refrain from voting for any candidate, gives or provides or causes to be given or provided any money or gift or other consideration to that other person.” The effect of bribery is that the election can be set aside the under Section 61 (1) (c) which provides for the nullification of the election on grounds that an illegality or offence has been committed.

In the case of (Rtd) Dr.Besigye Kizza vs Museveni Yoweri Kaguta and EC, Odoki, CJ in his judgment at pages 164 and 165, while commenting on illegal practices or offences clearly averred that  there is no requirement to prove that the illegal practice affected the result in a substantial manner and furthermore, the learned justice modified the law on agency when he stated that the candidate can only  be liable for the actions of his agents only when they are committed with his knowledge and consent or approval. 

An agent was defined in Odo Tayebwa vs Nasser  Basajabalaba as any person who puts himself in a place as to act for the candidate with his consent or approval and  that once there is evidence of agency, gathered from the surrounding facts, the candidate should be held liable for the wrongful conduct of his agent/representative. Furthermore, the learned justice commented on the statutory provision in S.58 (6) (c) of the Presidential Election Act (similar to S.61 (1) (c) of the Parliamentary Elections Act) wherein Mulenga, JSC, stated that an illegal practice or other offence which was not committed by the candidate, can be sustained as a ground for annulment of his election, only if it is proved to the satisfaction of the court that it was committed with the candidate’s “knowledge and consent”, or with his or her knowledge and approval.”

2.    INTIMIDATION OF VOTERS

It is trite law that no candidate or member of the electorate has a right to intimidate another. Furthermore, Section 80 of the Parliamentary Elections Act, provides for the offence of undue influence, that where a person directly or indirectly in person or through any other person makes use of, or threatens to make use of, any force or violence, inflicts or threatens to inflict in person or through any other person any temporal or spiritual injury, damage, harm or loss upon or against any person, in order to induce or compel that person to vote or refrain from voting, or on account of that person having voted or refrained from voting.

The High Court in Musinguzi Garuga v. Amama Mbabazi & EC HCT-05-CV-EPA-0003 OF 2001 stated that , “the election must be conducted under conditions that enable the voter to cast his or her vote as he or she wishes, purely on his or her own accord. There must be no obstruction, harassment, hindrance, threats or intimidation. There must be no bribery to induce the voter one way or the other. There must be no conditions creating fear in the minds of voters for persecution or victimization after the elections have taken place.”

The element of intimidation was further enunciated by Fredrick M.S. Egonda-Ntende J., in Musinguzi Garuga v. Amama Mbabazi & EC(Supra) where it was stated that Intimidation in the electoral process may be manifested from acts of violence , harassment, invasion of secrecy of voting et al.

 

3.    THE ELEMENT OF UTTERING FALSE STATEMENTS

It is trite law that no candidate or his supporter has a right to make defamatory remarks intended to dent the image of another among the eyes of the electorate and thus in the case of Aggrey Awori Siryoyi versus Mugeni Stephen and Electoral Commission EP 5 of 2006 Justice katusti defined the word to “utter” inter alia as: “….to publish or to put forth. “The word ‘publish’ is defined by the same dictionary as: “To make public; to circulate, to make known to people in general.  To issue, to put in circulation.  Top utter, to present…”

The words uttered / complained of must have meaning attached to it and must refer to the petitioner, in the case of Amama Mbabazi versus Yoweri K. Museveni and others Presidential Election petition 1 of 2016 the supreme court held that the standard of proof is on the balance of probabilities and that the words referred to must have the meaning attached to them against the petitioner. The court also held that a court must be cautious in distinguishing vulgar vebarations from defamatory marks since the political campaigns are hotly contested.

 

THE POSSIBLE REMEDIES PROVIDED BY COURT.

Before indulging in the available remedies, it is vital to note that S. 64 of the parliamentary elections act provides for trial of election petitions to be heard in open court by the High Court and court has power after a due inquiry to dismiss the petition, declare that a candidate other the candidate declared elected was validly elected, set aside the election and order a new election.

Be it as it may, in addition to nullification of an election, court may also order a recount to be made. Application for recount is made to a Chief Magistrate and Section 55 (1) of the Parliamentary Elections Act provides that it has to be made within 7 days after the date on which a returning officer has, in accordance with section 58, declared as elected the candidate who has obtained the highest number of votes, any candidate may apply to the Chief Magistrate for a recount.  However, Subsection (2) provides that the Chief Magistrate shall appoint the time to recount the votes which time shall be within 4 days after receipt of the application under subsection (1) and the recount shall be conducted in accordance with the directions of the Chief Magistrate. The case of  Kasibante Moses versus Katongole Sign and another Election petition 23 of 2011, provides that the chief Magistrate does not only order for a recount but also conducts the recount and at the end of the court process, the chief magistrate will prepare and sign a certificate of recount order with seal of court.

 Conclusion.

In light of the above discussion, it is my humble submission that an election is not a single-fold day event and as thus it can be challenged right from the nomination period until the declaration period provided there is any non-compliance with the law as has been elaborated above and similarly, courts of law are not village council meetings where anybody without any genuine grievance can seek refuge. Be it as it may, one can successfully file /challenge election petition based on the deliberations as cited above.

 

Gukiina Patrick M is a writer, author and lawyer.