WORD BY WORD: Full Judgement of Jim Muhwezi Victory

Kabale High Court has today upheld the victory of Security minister, Maj Gen Jim Muhwezi Katugugu as MP for Rujumbura, Rukungiri District.

Justice Phillip Odoki, who has been hearing the petition for the past one month, delivered the ruling through an email.

Below is the full judgement

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA HOLDEN AT KABALE

ELECTION PETITION NO. 003 OF 2021

TUMUHEIRWE FRED TURYAMUHWEZA============PETITIONER

-VERSUS-

I. MUHWEZI JIM KATUGUGU

2. THE ELECTORAL COMMISION===============RESPONDENTS

BEFORE HON. MR. JUSTICE PHILLIP ODOKI

JUDGMENT

Introduction:

[1] This petition was filed by Tumuheirwe Fred Turyamuhweza, herein after referred to as the Petitioner, seeking this Court to nullify the election of Muhwezi Jim Katugugu, hereinafter referred to as the 1^st Respondent, as a Member of Parliament for Rujumbura County Constituency.

Background:

[2] The Petitioner and the 1^st Respondent were among the four candidates who contested for the Parliamentary seat of Rujumbura County Constituency, Rukungiri District, in the Parliamentary election which was held on the 14^th January, 2021. Subsequent to the said election, the Electoral Commission, hereinafter referred to as the 2^nd Respondent, declared the 1^st Respondent as the duly elected Member of Parliament for Rujumbura County Constituency, having obtained 25,799 votes as against the Petitioner who obtained 20,556 votes.

[3] The Petitioner brought this Petition challenging the results of the said election, alleging that the election was not conducted in accordance with the provisions and principles laid down in the electoral laws, in so far as, the 1^st Respondent committed various illegal practices and election offences and yet, the 2^nd Respondent, despite numerous pleas to intervene and call the 1^st Respondent to order, failed to prevail over him.

[4] The Petitioner specifically alleged that the 1^st Respondent at various places and on different occasions; committed illegal practices of fundraising and giving illegal donations during campaign period contrary to Section 68 (7) of the Parliamentary Elections Act (PEA) and committed illegal acts of voter Bribery during the campaign period contrary to Section 68 (1) of the PEA. The Petitioner also alleged that the 1^st Respondent, at a campaign rally, made a false statement that the Petitioner had contracted COVID -19 illness and urged people to shun him contrary to Section 70 of the PEA. The Petitioner further alleged that during the campaigns, he made a complaint to the 2^nd Respondent about the illegal practices committed by the 1^st Respondent, but the 2^nd Respondent failed to restrain the 1^st Respondent from committing the illegal practices, thereby giving the 1^st Respondent an unfair advantage over the other candidates.

[5] The Petitioner accordingly prayed that this court should; declare that the 1^st Respondent committed illegal practices during the campaign period and was therefore not validly elected as a Member of Parliament for Rujumbura County Constituency, annul the elections of the 1^st Respondent and order for a fresh election be conducted in the said constituency and order that the Respondents should pay the costs of the petition jointly and severally to the Petitioner. 

[6] The 1^st and 2^nd Respondents filed their answer to the petition denying all the allegations of the petitioner. They contended that the election was conducted in accordance with the provisions and principles laid down in the PEA and other laws relating to the conduct of Parliamentary elections.

Legal Representation and Submissions:

[7] The Petitioner was represented by Mr. Jude Byamukama, Phillip Mwesigwa and Stephen Birinkano all of JByamukama & Company Advocates. The 1^st Respondent was represented by; Senior Counsel Mwesigwa Rukutana and Mr. Derick Muhumuza Kahima all of Mwesigwa Rukutana & Company Advocates, Mr. Peter Nkurunziza of PMK Advocates, Mr. Ahmed Kalule Mukasa of Crane Associated Advocates and Mr. Ronald Tusingwire of Ortus Advocates. The 2^nd Respondent was represented by Mr. Eric Sabiti from the Legal Department of the 2^nd Respondent. Counsel filed written submissions. Counsel for the 1^st and 2^nd Respondent filed Joint submissions. Although the court ordered counsel to file written submissions of not more than 20 pages, since counsel for 1^st and 2^nd Respondent filed Joint submissions which was 36 pages, I had no issue with it.

Issues:

[8] At the commencement of the hearing, four (4) issues were framed for the determination of the court, namely;

1. Whether the Petitioner’s electronic evidence is admissible.
2. Whether the 1^st Respondent committed any illegal practices or election offences personally or through his agents, with his knowledge and consent or approval during the said election.
3. Whether the 2^nd Respondent conducted the election in accordance with the provisions and principles laid down in the electoral laws and if not, whether the non – compliance affected the results of the election in a substantial manner.
4. Whether the Petitioner is entitled to the reliefs sought.

Burden and Standard of proof:

[9] The election of a member of Parliament can only be set aside upon proof to the satisfaction of the court any of the grounds set out in Section 61(1) of the PEA. Section 61(3) of the same Act provides that the ground has to be proved on the basis of a balance of probabilities. Therefore, the burden of proof lies on the Petitioner to prove the assertions in the petition to the satisfaction of court, and the standard of proof required is proof on a balance of probabilities. See the case of Bwino Fred Kyagulaga and another versus Badogi Ismail Waguma Court of Appeal Election Petition Appeal No.15 and 20 of 2016.

[10] The Petitioner has the duty to adduce credible and/ or cogent evidence to prove the allegations to the above required standard of proof. The evidence must be free from contradictions and truthful so as to convince the court to give judgement in his favor. See the case of Matsiko Winifred Komuhangi versus Bamuhiga J Winnie, Court of Appeal Election Petition Appeal No. 9 of 2002 and the case of Mugema Peter versus Mudiobole Abedi Nasser, Court of Appeal Election Petition Appeal No. 30 of 2011

[11] The court must be alive to the fact that in election petitions, witnesses, though not necessarily always, tend to be partisan in supporting their candidates against rivals in the election contest. This may result in deliberate false testimonies or exaggerations and to make the evidence adduced to be very subjective. This calls upon the court to have the authenticity of such evidence to be tested from an independent and neutral source by way of collaboration. See the case of Mugema Peter(supra).

[12] The court shall bear in mind the above legal principles when resolving the issues in this petition.

The evidence:

[13] According to Rule 15 of the Parliamentary Elections (Election Petition) Rules (PEEPR), all evidence at the trial of Parliamentary Elections has to be by way of affidavit read in open court. With leave of court, a person who has sworn an affidavit may be cross-examined and re-examined. The court may examine any witness or call and examine any witness if it is of the opinion that the evidence of the witness is likely to assist the court to arrive at a just decision.

[14] The Petitioner relied on 45 affidavits (in support of the Petition and in rejoinder to the affidavits of the Respondents). The 1^st Respondent relied on 46 affidavits while the 2^nd Respondents relied on 4 affidavits.

[15] At scheduling, the parties agreed that the Petitioner should produces 6 of his witnesses and the Respondents to produce 8 of their witnesses for cross-examination. Although the Respondents produced all the witnesses requested by counsel for the Petitioner for cross – examination, counsel for the Petitioner only produced the Petitioner and informed the court that they lost touch with the other witnesses. The witnesses who did not turn up for cross-examination were; Wycliff Musinguzi, Henry Kabonekyera, Christine Tulyarugayo, Denis Kamugisha and Twinomujuni Samu.

[16] The position of the law is that a deponent who fails to appear for cross – examination when so required, his or her evidence is of the weakest kind and the court hardly places any reliance upon the same. See the case of Hon. Odo Tayebwa versus Gordon Kakuuna Arinda and Another Court of Appeal Election Appeal No. 86 of 2016.

Preliminary objections:

[17] At scheduling, counsel for the Petitioner and for the Respondents indicated to the court that they intended to raise some preliminary objections. The court advised counsel to raise them in their final submissions in order not to delay the hearing of the petition, which advice counsel accepted.

Preliminary objections by counsel for the Petitioner: 

[18] Counsel for the Petitioner, raised 4 preliminary objections regarding the propriety of 41 affidavits in support of the 1^st Respondent’s Answer to the Petition. The objections relate to the affidavits of; Beinobwengye Topher Katwiremu, Kamuhangire David, Kemigisha Peace, Tumwikirize John, Turyomurugyendo Wilson, Ndyabijuka Africano, Byamukama Purtazio, Tumukunde Peter, Bitambo Denis Maryarya, Kobusingye Beatress, Mugarura Bernard, Muhire Taujen, Oworinawe God, Mwesigwa Bernard Charles, Tumwine Charles, Basaaja Wilber, Byakatonda Ben, Kyabasaaki Glorious, Tumusiime Sadress, Niwabimanya Herbert, Rev. Mwebaze Nelson, Tumushabe Wilber, Turyagumanawe Dinnah, Byamukama Gideon, Byaruhanga Edison, Kuteesa Edwin Kaziriri, Asimwe Julius Actor, Beyunga Kenneth Baguma, Kobusingye Miriam, Mugarura Boaz, Tumushabe Francisco, Canon John Matongo, Atuhurira Eric, Julius Tukakira, Mugarura Micheal, Tushemereirwe Jennifer, Bamuhiga Clesi, Katabazi David, Muyambi Milton, Mwesigwa Julius and Kwijuka Alex.

[19] The 1^st objection was that 40 of the said affidavits violate Section 3 of the Illiterates Protection Act (IPA) in so far as the person who prepared the said affidavits, on behalf of the illiterate deponents, did not indicate his full name and address at the bottom of the affidavits. Counsel submitted that the 40 affidavits merely show that the contents of the affidavits were translated and explained to the deponents by a one Muhumuza Derrick but the affidavits do not indicate who drafted or prepared them. According to counsel, those affidavits are incompetent and they invited the court to strike them off the court record. Counsel relied on the case of Mugema Peter versus Mudiobole Abedi Nasser, Court of Appeal Election Petition Appeal No. 0016 of 2016, in which the Court of Appeal held that translation and preparation are two different things and one cannot be held to suffice for the other. Counsel also relied on the case of Hon. Yona Musinguzi versus Hon. Gerald Kafureka Karuhanga and Another, High Court Election Petition No. 006 of 2016 and the case of Mubiru Eliphaz Versus Kiviiri Tumwehe Geofrey and Another, High Court Election Petition No. 003 of 2021 on the same principle.

[20] The 2^nd objection was that the said 40 affidavits of the illiterates were prepared in violation of the Oaths Act, in so far as the interpreter, Muhumuza Derrick, did not take the interpreter’s oath and the Commissioner for Oath did not include any jurat to confirm that the said interpreter had taken the oath as required by Section 1 and form E of the Oaths Act. According to Counsel, the interpreter should have taken an oath and the same should have been certified in the jurat. This non-compliance with the Oaths Act, according to Counsel, is an incurable illegality that goes to the root of the affidavit. Counsel relied on the case of Nsubuga Silvest Ssekutu Versus Kalibala Charles and Another, Court of Appeal Election Petition Appeal No. 70 of 2016 and the case of Alenyo Marks versus Uganda Supreme Court Criminal Appeal No. 8 of 2007 on the effect of non-compliance with the Oaths Act.

[21] The 3^rd objection was that Ndyabijuka Africano swore an affidavit in support of the 1^st Respondent’s answer to the petition as a literate person and yet during cross-examination he testified in Runyankole Rukiga language which, according to counsel, means that he is an illiterate. Counsel submitted that the affidavit of Ndyabijuka Africano is therefore in violation of Section 1 and 3 of the IPA and should be expunged from the court record. Counsel relied on the case of Kasaala Growers Co-operative Society Versus Kakooza Jonathan and Another, Supreme Court Civil Application No. 19 of 2010 in which, according to counsel, the court expunged the affidavit of a deponent, which was prepared as though the deponent was literate but at the hearing, he preferred to use the Luganda language.

[22] The 4^th objection was that the 40 affidavits were translated by counsel Derrick Muhumuza and yet he appeared as one of the advocates representing the 1^st Respondent. According to counsel, a translator of an affidavit becomes a witness the moment he translates an affidavit. Counsel argued that the involvement of counsel Derrick Muhumuza in interpreting the contents of the affidavits for the illiterates was in violation of the Advocates (Professional Conduct) Regulations S.I. 267 -2 which bars an advocate from appearing in a matter where he is a witness. Counsel further submitted that the involvement of counsel Derrick Muhumuza in interpreting the contents of the affidavits for the illiterates point to possible manipulation of the said witnesses and violates the tenets of a fair trial. Counsel invited the court to reject the 40 affidavits on that account. Counsel relied on the case of Kintu Alex Brandon Versus Walyyomu Moses and Another, Court of Appeal Election Petition Appeal No. 64 of 2016.

[23] In reply to the 1^st objection, Counsel for the Respondents submitted that the certificate of translation in all the impugned 40 affidavits contain the full name and address of the person who prepared the affidavits on behalf of the illiterates. According to counsel, once this was done, it implies that the requirements of the law was complied with. Counsel relied on the case of Ngoma Ngime versus Electoral Commission and Another Court of Appeal Election Petition Appeal No. 11 of 2002 and the case of Nsubuga Silvest Ssekutu supra in which, according to counsel, affidavits that contained a certificate like the one in the impugned affidavits were held to have fully complied with the requirements of the law.

[24] In reply to the 2^nd objection, counsel submitted that there is no requirement in the law for the oath of the interpreter to be inserted in the affidavit and the Petitioner did not adduce evidence to show that Muhumuza Derrick was not sworn as the interpreter. Counsel submitted that the certificate of the Commissioner for Oath confirmed that the requirements of the law regarding the oath of the translator were complied with and that the case of Alenyo Marks supra does not apply. Counsel further submitted that although the commissioner for oath slightly deviated from Form E of the 1^st Schedule to the Oaths Act, the requirement of the law regarding the oath of the translator were complied with. Counsel relied on the case of Nakate Lilian Segujja and Another Versus Nabukenya Brenda, Court of Appeal Election Petition Appeal Nos. 17 and 21 of 2016. 

[25] In response to the 3^rd objection, Counsel submitted that according to Section 1(b) of the IPA, an illiterate means, in relation to a document, a person who is unable to read and understand the script or language in which the document is written or printed. The section has nothing to do with speaking the language in which the document was written and printed. According to counsel, although the witness could read and understand the language in which the affidavit was prepared, he could not comfortably speak the same. Counsel argued that, although the witness was not comfortable in speaking in English, does not in any way make him an illiterate person within the meaning of the law. According to counsel, the witness was permitted by court to speak the language of his comfort. Counsel submitted that the case of Kasaala Growers Co-operative Society supra was cited out of context because in that case, the deponent clearly stated to the court that he could not understand the English language. Counsel submitted that in the instant case, the witness stated to the court that he understands English but he is comfortable speaking in vernacular.

[26] In response to the 4^th objection, counsel submitted that the objection is misconceived. First, because in election petitions, evidence is by affidavit in accordance with Rule 15(1) of the PEEPR. Under that Rule, a person becomes a witness only if he has deposed an affidavit. Under Rule 15(3) any person may be summoned to be examined by the court or give evidence if deemed necessary to assist the court. According to counsel, the Rules do not provide for any other way a person can become a witness in an election petition. Counsel relied on the case of Mutembule Yusuf Versus Nagwomu Moses Musamba and Another, Court of Appeal Election Petition Appeal No. 43 of 2016 and the case of Apolot Stella Isodo Versus Hon. Amongin Jackline and Another, Court of Appeal Election Petition Appeal No. 06 of 2016.  Counsel argued that the case of Kintu Alex Brandon supra, relied upon by counsel for the Petitioner is inapplicable to the facts of this case, since in that case, the 1^st Respondent and his Counsel approached and threatened the Petitioner’s witnesses into recanting their evidence which they had earlier given in support of the Petition and subsequently swore affidavits in support of the 1^st Respondent. The court struck out the subsequent affidavits for having been obtained against ethical standards, which is not the case here. Counsel invited the court to overrule all the objections.

[27] In rejoinder, on the 1^st objection, Counsel for the Petitioner submitted that the certificate of Muhumuza Derrick confirms that he was a translator which certificate cannot be synonymous with preparation of affidavit on the instructions of the illiterates.

[28]   In rejoinder, on the 2^nd objection, counsel submitted that the Court of Appeal departed from its decision in the case of Nakate Lilian Segujja, supra, which was rendered on the 7^th June 2017 and adopted a new position of the law  in the case of Mugema Peter, supra, which was rendered on the 22^nd of March, 2018 on the question whether translation of an affidavit amounts to its preparation.

[29] In rejoinder, on the 3rd objection, Counsel submitted that the court granted permission to Ndyabijuka Africano to speak in vernacular upon realizing that he was not comfortable with the English Language. Such a conduct, according to counsel, rendered him a person who could not read and understand the language in which the affidavit was prepared.

[30] In rejoinder on the 4^th objection, Counsel distinguish the case of Apolot Stella Isodo supra with the facts in this case because, according to counsel, the advocate in that case was a mere agent but in this case Muhumuza Derrick was the translator of the 40 affidavits, which action rendered him a witness and that is why he was required to take an oath.

Determination of the court:

[32] On the 1^st objection that the 40 affidavits in support of the 2^nd Respondent’s answer to the petition violate Section 3 of the IPA, for purposes of brevity, I shall reproduce the section. It states as follows:

“3. Verification of documents written for illiterates.

Any person who shall write any document for or at the request, on behalf or in the name of any illiterate shall also write on the document his or her own true and full name as the writer of the document and his or her true and full address, and his or her so doing shall imply a statement that he or she was instructed to write the document by the person for whom it purports to have been written and that it fully and correctly represents his or her instructions and was read over and explained to him or her.” (Underlined for emphasis).

[34] The Supreme Court in the case of Kasaala Growers Co-operative Society held that the IPA was intended to protect illiterate persons and that Section 3 is coughed in mandatory terms. Failure to comply with it renders the document inadmissible.

[35] The IPA however does not provide for any specific form in which the verification should be made. Consequently, there is no unanimity on the form of verification. Different advocates or persons who draft documents for illiterate persons adopt the form of verification which in their view meets the requirements of Section 3 of the IPA. In this case, all the impugned affidavits contain a Certificate of Translation which reads as follows;

“CERTIFICATE OF TRANSLATION

I Muhumuza Derrick of M/s Mwesigwa Rukutana & Co Advocates, M.R Chambers, Plot 61 Kira Road Kamwokya, P.O Box 73326, Kampala being proficient in both English and Runyankole/Rukiga languages, having first truly, distinctly and audibly read over the contents of this affidavit to the Deponent, him being illiterate, translated and explained the nature of the contents of the affidavit to him in Runyankole/Rukiga, he appeared perfectly to understand the same and put his signature hereto in my presence.

Signed

TRANSLATOR”

[36] Counsel for the Petitioner has submitted that the above certificate only show that the contents of the affidavits were translated and explained to the deponents by one Muhumuza Derrick but does not indicate who drafted or prepared them.  Counsel for the Respondents on the other hand has submitted that the certificate of translation contained the full name and address of the person who prepared the affidavits on behalf of the illiterates. According to Counsel for the Respondents, once this was done, it implies that the requirements of the law have been complied with.

[37] The Court of Appeal has pronounced itself in several cases in relation to Certificates of Translation coughed in a similar way like the one in the instant case, as to whether it meets the requirements of Section 3 of the IPA. In the case of Nsubuga Silvest Ssekutu supra, the affidavits in support of the petition contained Certificates of Translation which read as follows;

“CERTIFICATE OF TRANSLATION

I, Nantongo Mary Dinah of P.O Box 33471, Kampala, do certify that I am proficient in both English and Luganda Languages, have read and explained the contents of this affidavit to the deponent herein in Luganda who has seemed to have understood it before affixing his signature thereto.

Signed by the said;

Nantongo Mary Dinah

(TRANSLATOR)”

[38] Trial Judge in the High Court expunged the affidavits from the court record on account that they did not comply with Section 2 and 3 of the IPA since the certificate of translation did not indicate that the document was written by the translator upon instructions of the deponent. On appeal, the Court of Appeal held that;

“The appellants’ contention is that the certificate of translation set out above does not state that the document was written by the translator upon instructions of the deponent. A careful reading of Section 3 of the illiterates Act reproduced above reveals that upon a translator affixing his name and address on the certificate of translation, the deponent’s instruction to write the document are implied. We find that, the certificate of translation set out in the impugn affidavits complied with the law.”

[39] In Tamale Julius Konde versus Ssenkubuge Isaac and Another, Court of Appeal Election Petition Appeal No. 75 of 2016 the Certificate of Translation by a one Mpenje Nathan in the affidavits (page15 of the judgement of the High Court in Election Petition No.30 of 2016 between the parties) read as follows:

“I, Mpanje Nathan of C/o M/s Lukwago & Co. Advocates, 1^st Floor Media Plaza, Plot 78, Kira Road, P.O.Box 980, Kampala being conversant with both English and Luganda languages do hereby certify that I have translated and or interpreted the contents of the affidavit of ———in Luganda the language that he/she understands and he has appeared to have understood the same (sic) signing or appending his thumb print thereon.

Certified by the said Mpanje Nathan this 23^rd day of July, 2016.

—————-

Mpanje Nathan”

[40] Trial Judge, in the High Court, expunged the affidavits for non-compliance with Section 2 and 3 of the IPA in so far as the certificates on the impugned affidavits did not indicate that Mpenje Nathan wrote the document and that he received instructions from the illiterate persons to write the affidavits. This, according to the trial judge, indicated that the said illiterate persons were manipulated by Mpenje Nathan.  On appeal, the Court of Appeal held that;

“Upon careful perusal of the certification in the impugn affidavits, with due respect, we hold a different view from that of the trial judge. We find that the certification by Mpanje Nathan passes the test under section 2 and 3 of the Illiterates Protection Act which stipulates that by him writing the name of the deponents of the affidavits and also writing on the document his own name and address as witness, his so doing implies that he did so after the deponents had appended their marks on their respective affidavits and that he was instructed so to write by the deponents and that prior to the deponents appending their respective marks, the document was read over and explained to each of them.”   

[41] Similarly, in the case of Nambowa Rashida Versus Bavekunda Mafumu Godfrey Kyeswa and Another Court of Appeal Election Petition Appeal No. 69 of 2016 in which the trial court struck out 83 affidavits in support of the petition for not complying with section 2 and 3 of the IPA, one of the certificates of translation provided that;

“I, MPANJE NATHAN of C/o M/s Lukwago and Co. Advocates, Plot 78, Kira Road-Kamwokya,1^st Floor Media Plaza Building, P.O.Box 980 Kampala, being conversant with both English and Luganda languages do hereby certify that I have read and translated the contents of the affidavit of Kibombo Ismail the deponent herein in Luganda the language he appeared fully to have understood the same before appending his signature thereon.

CERTIFIED BY;

—————-

MPANJE NATHAN”

The Court of Appeal held that;

“We note that the Illiterates Protection Act does not provide for a specific form in which the verification should be made and in our considered view, we find that the above certification complied with the requirement stipulated in section 2 and 3 of that Act.”

[42] In the case of Hon. Otala Sam Amooti Owor versus Taban Idi Amin and Another, Court of Appeal Election Petition Appeal No. 93 of 2016 in which a one Nangkai Charles deponed one affidavit on the 6^th April, 2016 and another on the 10^th June, 2016. The affidavit of the 6^th April, 2016 had a certificate of translation while the affidavit of the 10^th June, 2016 did not have the certificate of translation. The Court of Appeal had this to say;

“Section 3 requires that a document written on behalf of an illiterate person bears certification to prove that the contents represent his or her wishes and that they were explained and read back to him or her.

Having perused both Nangkai Charles’ affidavits, dated 6^th April 2016 and 10^th June 2016, we find that the former bears a certificate of translation while the latter does not. We therefore accept the trial Judge’s finding that Nangkai Charles’ affidavit dated 10^th June 2016 offended the provisions of the Illiterates Protection Act.” (Underlined for emphasis).

[43] From the above authorities, it appears to me that the Court of Appeal has been consistent in their decisions that since the IPA does not provide fora specific form in which the verification should be made, an affidavit of an illiterate which has a Certificate of Translation containing the name of the illiterate deponent and also the true and full name of the translator or witness, complies with the requirements of section 3 of the Illiterates Protection Act.

[44] In my view, the case of Mugema Peter, supra, was cited out of context by counsel for the Petitioner since the facts in the Mugema Peter are distinguishable from those in this case. First, in the Mugema Peter case, a one Lubale who purported to have translated the affidavit to the deponents stated that;

“I, Lubaale of Rugando and Co Advocates being conversant with both English and Lusoga languages do hereby certify that I have interpreted the contents.”

The true andfull names of Lubaale was not indicated nor was his true and full address indicated in the affidavit. Second, Lubaale did not indicate the name of the illiterate for whom he translated the document. In the instant case, Muhumuza Derrickindicated in the certificate his true andfull names and his true and full address.

[44] It would also appear to me that the Court of Appeal was persuaded to expunge the 23 affidavits because the trial court had acknowledged that the affidavits were not administered in the right manner and yet went ahead to rely on them.

[45] In my view, since the Court of Appeal in the Mugema Peter case, did not make any reference to its earlier decisions stated above, it cannot be said therefore that the Court of Appeal departed from them. In fact, in the much recent decision in the case of Stanbic Bank Uganda Ltd versus Ssenyonjo Moses and Another, Court of Appeal Civil Appeal No. 147 of 2015, which decision was delivered on the 29^th March 2019, Madrama JA, who wrote the lead judgment, with which the other Justices of Appeal concurred, had this to say, in relation to certificates of translation;

“Secondly, the duty under section 3 of the illiterates Protection Act is to verify any document written for or at the request or on behalf of any illiterate by writing the translators name and full address as evidence that he or she was instructed to write the document on behalf of the illiterate, and by the illiterate.”

(Underlined for emphasis).

[46] Counsel for the Petitioner also cited the case of Hon. Yona Musinguzi, supra, in support of the 1^st objection. However, the facts in the case of Hon. Yona Musinguzi are distinguishable from the facts in this case. In that case, the affidavits did not have any certificate of the translator. The affidavit only bore the stamp and signature of the Commissioner for Oaths who stated in the jurat that he read and explained the affidavits to the deponents before they signed them. Counsel for the petitioner in that case tried to argue that the words, “Drawn and Filed by M/S Ngaruye Ruhindi, Spencer & Co. Advocates” satisfies the requirement of section 3 of the IPA, which the Learned trial Judge did not agree with.  

[47] The other case which was cited by counsel for the Petitioner in support of the 1^st objection was the case Mubiru Eliphaz supra. However, the facts in that case of are also distinguishable from the facts in this case. In the Mubiru Eliphaz case, there was only a statement of the Commissioner of Oaths that the affidavits were read over and explained to the deponents. There was no certificate of translation similar to the one in the instant case.    

[48] I accordingly find that the 1^st preliminary objection raised by counsel for the Petitioner without merit. The same is overruled.

[49] As regards the 2^nd preliminary objection which was to the effect that Muhumuza Derrick who translated the affidavits did not take the oath as required by Section 1 and form E of the Oaths Act, I agree with counsel for the Respondents that there is no legal requirement for the oath of the interpreter to be recorded in the affidavit. I also agree with counsel for the Respondents that the Petitioner has not adduced any evidence to show that Muhumuza Derrick was not sworn as the interpreter. I have carefully read the case of Nsubuga Silvest Ssekutu cited by counsel for the Petitioner. The court in that case did not consider the issue being raised by counsel. The case of Alenyo Marks cited by Counsel for the Petitioner is equally not applicable. The case relates to non-swearing in of assessors in a criminal trial. It has nothing to do with affidavit evidence. I accordingly find no merit in the 2^nd preliminary objection. It is accordingly overruled.

[50] As for the 3^rd preliminary objection regarding the affidavit Ndyabijuka Africano, the record is very clear. During the cross-examination of Ndyabijuka Africano, he preferred to testify in vernacular and not in English because, according to him, although he can try to speak in English, he was comfortable speaking in vernacular. Counsel for the Petitioner did not cross examine Ndyabijuka Africano on whether he was able to read and understand English. Section 1(b) of the Illiterates Protection Act provides that;

““Illiterate” means, in relation to any document, a person who is unable to read and understand the script or language in which the document is written or printed.”

In the case of Stanbic Bank Uganda Ltd, supra, the Court of appeal held that;

“The expression “illiterate” does not mean unable to understand the English Language but it means unable to read and write in that language.”

[51] I am in agreement with the submissions of Counsel for the Respondents that the case of Kasaala Growers Co-operative Society supra, was cited out of context by counsel for the Petitioner. In that case, the deponent clearly stated to the court that he could not understand the English language. When the court asked him, who drew the document which was in perfect English, he told the court that it was drawn by another person to whom he spoke in Luganda and that person recorded in English. It was after the court had examined the deponent on his ability to read and understand English that it formed the opinion that the deponent was an illiterate. The facts in this case are thus very different from those in the Kasaala Growers Co-operative Society case. This preliminary objection is also accordingly overruled.

[52] In regard to the 4^th  objection, which was that the 40 affidavits were translated by counsel Derrick Muhumuza making him a witness and yet he appeared as one of the advocates representing the 1^st Respondent, I agree with the submissions of Counsel for the Respondents that under Rule 15(1) of the PEEPR, evidence in parliamentary election petitions is by affidavit and a person becomes a witness only if he has deposed an affidavit. The only exception is under Rule 15(3) where any person may be summoned by court to be examined or give evidence if deemed necessary to assist the court.

[53] I also agree with the submissions of counsel for the respondents that the case of Kintu Alex Brandon supra, relied upon by counsel for the Petitioner is inapplicable to the facts of this case. In the case of Kintu Alex Brandon, the Court of Appeal made a finding that the 2^nd Respondent and his Counsel approached and threatened the Petitioner’s witnesses into recanting their evidence earlier given in support of the Petition and subsequently were made to swore other affidavits in support of the 2^nd Respondent. The court struck out the subsequent affidavits for having been obtained in contravention of Regulation 19 of The Advocates (Professional Conduct) Regulations S.I 267 – 2 which provides for advocates not to hinder witnesses. In this case, the Petitioner did not adduce any evidence to show that Derrick Muhumuza manipulated the said witnesses and thereby violating the tenets of a fair trial.  

[54] On the objection relating to the appearance of Derrick Muhumuza in this matter, Regulation 9 of The Advocates (Professional Conduct) Regulations S.I 267 – 2 which was relied upon by Counsel for the Petitioner bars an advocate from appearing before court in any matter in which he or she has reason to believe that he or she will be required as a witness to give evidence whether verbally or by affidavit. The Regulation provides that;

“No advocate may appear before any court or tribunal in any matter in which he or she has reason to believe that he or she will be required as a witness to give evidence, whether verbally or by affidavit; and if, while appearing in any matter, it becomes apparent that he or she will be required as a witness to give evidence whether verbally or by affidavit, he or she shall not continue to appear; except that this regulation shall not prevent an advocate from giving evidence whether verbally or by declaration or affidavit on a formal or noncontentious matter or fact in any matter in which he or she acts or appears.”

[55] In the instant case, Derrick Muhumuza did not swear any affidavit nor was he called as a witness by court. There was no reason for him to believe that he would be required as a witness to give evidence. Even he had reason to believe so, it would not have the effect of rendering the document he translated improper.  I find no merit in this objection. It is accordingly overruled.

Preliminary objections by counsel the Respondents:

[56] Counsel for the Respondents, raised a preliminary objection regarding the propriety of 43 affidavits in support of the Petition and in rejoinder. The objections relate to the affidavits of; Mary Kabogonya, Alex Ruhara, Richard Kamugisha, Steven Tryabe, Vastina Tugume, Dan Akozire, Baryabigamba Gelvas, Muhumuza Didas, Nkwazibwe Wilson, Tibiryeba Evalisto, Muhumuza William, Kashumbusa Julius, Muhwezi Amon, Kenneth Byaruhanga, Twinamatsiko Annet, Orikiriza Anniset, Ayebare Nickson, Abaho Mark, Katunguka Geofrey, Turyasingura Justus, Kusiima Junior, Ainebyona Naboth, Amanya Perez, Matumbika Denis, Tugumisirize Deus, Ndamwesiga Gerald, Amuri Elias, Tumuranze Medard, Wycliff Musinguzi, Martin Byomuhangi, Natukunda Mareen, Nathwera Levi, Boaz Tugugabirwe, Beatrice Tusiime, Tweheyo Docus Fortunate, Tuheise Elias Rwambuka, Kyomuhendo Priscilla, Moses Tukamuhebwa, Monica Kyarisiime, Henry Kabonekyera, Christopher Turyarugayo, Katushabe Julius and Kamugisha Denis.

[57] Counsel submitted that the 43 affidavits do not comply with the provisions of Sections 2 and 3 of the Illiterates Protection Act in so far as they do not bear the certificate of the person who wrote the affidavits on behalf of the deponents. According to counsel, the certificate of Ayebare Jenniffer on all the affidavits is for a translator and not for the person who wrote the affidavits.

[58] Counsel further submitted that the said certificates do not strictly comply with the law because they do not show the full address of Ayebare Jenniffer but only shows that she is from Rukungiri. Counsel relied on the case of; Mugema Peter supra, Kasaala Growers Co-operative Society supra and Namboowa Rashidah supra.

[59] Counsel further submitted that although the foot of all the affidavits bear a note that they were written by a one Phillip Mwesigwa, if he had the instruction to write the affidavit, it is his certificate which should have appeared on the affidavit and not that of Ayebare Jenniffer.

[60] In reply, Counsel for the Petitioner submitted that the impugned affidavits were prepared by Phillip Mwesigwa who indicated his full names and address at the bottom of each affidavit as required by Section 3 of the IPA and the affidavits were translated by Ayebare Jeniffer for purposes of taking oath.

[61] Counsel argued that the submissions of counsel for the respondents ignore the fact that instructions to prepare the document can be given by an illiterate deponent way before the time for taking oath and it also ignores the fact that drafting an affidavit on the instructions of a deponent is a prerequisite whether the commissioner for oath understands the language of the deponent or not.

[62] Counsel further argued that the submission of counsel for the Respondents does not also take cognizance of the fact that while drafting an affidavit is done by an advocate on behalf of a law firm, interpretation can be done by anyone else whether they are advocates or not. Counsel submitted that drafting of an affidavit should not be confused translation. They relied on the authority of Mugema Peter supra.

Determination of the court:

[63] As I have already pointed out above, while resolving the objections raised by counsel for the Petitioner, the IPA does not provide for any specific form in which the verification of documents written for illiterates should be made. Consequently, the form of verification varies from case to case. In the instant case, the verification was stated as follows;

“This affidavit was prepared on the instructions of the deponent, by Phillip Mwesigwa, an advocate of JByamukama & Co. Advocates plot 102 Kanjokya Street, Kamwokya.

Stamped and signed by Mwesigwa Phillip.”

The certificate of translation read as follows;

“CERTIFICATE OF TRANSLATION

Sworn at the Chief Magistrate’s Court of Rukungiri in the district of Rukungiri this——–day of —–2021 through the interpretation of Ayebare Jenifer of Rukungiri, the said interpretor having first sworn that she had truly and faithfully interpreted the contents of this affidavit to the deponent, ————and that ——–truly and faithfully interpreted the oath administered to —–.

————————

AYEBARE JENNIFER

(INTERPRETOR)

BEFORE ME

—————————-

NTALO NASULU HUSSEIN

COMMISSIONER FOR OATHS”

[64] In my view, the above verification complies with the requirement of Section 2 and 3 of the Illiterates Protection Act. The translation by Ayebare Jeniffer was for purposes of fulfilling the requirements of the Oaths Act. I agree with the submissions of counsel for the Petitioner that the writer of the document for purposes of satisfying the requirement of section 2 and 3 of the IPA need not be the translator for the illiterates for purposes of satisfying the requirement of the Oaths Act. It is also true that in other cases the same person who drafted the document for the illiterate may be the translator, in which case he or she would have fulfilled both the requirement of section 2 and 3 of the IPA and the Oaths ACT. I therefore find no merit in the objection. the same is accordingly overruled.

I shall now proceed to determine the issues in this matter.

Issue 1: Whether the Petitioner’s electronic evidence is admissible.

Evidence before court on the issue:

[65] The Petitioner relied on electronic evidence, in the form of audio recordings (5 in number) and video recordings (2 in number) which were put in Compact Discs (CDs) and attached to affidavits in support of the petition together with what was stated to be their transcribed record and their English translation.

[66] Hope Kemirembe Ngabirano, one of the witnesses for the Petitioner, stated in her affidavit that she recorded her telephone conversation with Edwin Kuteesa, whom she stated was the agent of the 1^st Respondent. Her evidence is that Edwin Kuteesa called her to alert her that the 1^st Respondent would call her. She further stated that she recorded her telephone conversation with the 1^st Respondent on the 8^th January, 2021 when the 1^st Respondent telephoned her, requesting her to work with him and to convince her supporter to vote for him. She stated that she was advised by the petitioner to keep the audio recordings (two of them) which were later handed over to an IT expert called Peter Niwagaba who extracted them and placed them on CD. She listened to them and they accurately reflect their conversation.

[67] Wycliff Musinguzi, another witness of the Petitioner, in his affidavit stated that on the 18^th October, 2020 while at Kajwamushana Church of Uganda in Rujumbura County, Rukungiri District, he used his iPhone 6S Plus to video record the 1^st Respondent while giving a speech to the congregation in which he announced a five million shillings donation to the church. He stated that he informed the Petitioner about the incident and the Petitioner advised him to keep the said video. He stated that he was later requested to hand over the phone to an expert called Peter Niwagaba who extracted the video from his phone and put it in a CD which he (Wycliff Musinguzi) watched and it is the same video on his phone. He also stated that he read the transcript which is a true reflection of the speech of the 1^st Respondent.

[68] Martin Byomuhangi, another witness of the Petitioner, stated in his affidavit that on the 5^th November 2020, he used his smart phone Itel – 53LTE to video record the 1^st Respondent giving a speech at the funeral of Jane Nsemereirwe in Bugarama, Rukungiri District and donating five hundred thousand to Turyomurugyendo Wilson, the husband of the late Jane Nsemereirwe.    He stated that he reported the matter to the Petitioner who advised him to keep the video recording and he was later requested to hand it over to an IT expert called Peter Niwagaba who extracted it and put it in a CD. He (Martin Byomuhangi) stated that he watched the CD, read the transcript as well as the translation, they adequately covered the contents of the video he recorded.

[69] Twinomujuni Pius, another witness of the Petitioner, stated in his affidavit that on the 10^th January, 2021 while at Kateramo Revival Mission Church, he recorded the 1^st Respondent while addressing the congregation in which address the 1^st Petitioner promised to roof the church. He further stated in his affidavit that he was later requested to hand over the audio recording to an IT expert Peter Niwagaba who produced a CD. He (Twinomujuni Pius) listened to it and it accurately reflects the audio he recorded.

[70] The Petitioner, in his affidavit in support of the Petition, stated that he obtained a recording of his radio interview by Kanungu Broadcasting Services and another radio interview by Boona FM in which he was interviewed in respect of rumors making rounds that he was COVID -19 positive. He stated that he handed over the 2 recordings to an IT expert Peter Niwagaba who produced a CDs.  He (the Petitioner) listened to the CDs, they accurately reflect the interview.

[71] Peter Niwagaba, in his affidavit, stated that he is a visual effect expert with 10 years’ experience and he has a bachelor’s degree from Multimedia University. He stated that he obtained two audio recordings from Hope Kemirembe Ngabirano, a video recording from Wycliff Musinguzi, a video recording from Martin Byomuhangi, an audio recording from Twinomujuni Pius and two audio recordings from the Petitioner. He stated that he was to establish the authenticity of the audios and the videos and to ensure that they are not doctored and to produce them into CDs. He stated that he placed the recordings into CDs and listened to them and confirmed their content.

[72] Wehire Laumech, a Digital Forensic Analyst working with the Department of Cybercrime, Department of Forensic Services of Uganda Police Force swore an affidavit in support of the 1^st Respondent’s answer to the petition. He stated in his affidavit that on the 23^rd August 2021 upon a request from M/s Mwesigwa Rukutana and Company advocate, he carried out forensic examination analysis of 7 CDs and compiled a report, which report was annexed to his affidavit. He stated his qualifications as being; a Bachelor’s Degree in IT from Bishop Stuart University, a Certified Electronic Examiner from Gujarat Forensic Sciences University in India, a Certified Digital Forensic Examiner from Miles 2 in the USA, a Certified Network Security Specialist from International Cyber Security Institute in the UK and that he also did a training in cyber security and digital forensics in Cyber/Digital Forensics on Counter Terrorism Investigations by IGAD.

[73] Mr. Wehire Laumech stated that upon his analysis, he found out that the audio recordings in Annexure A1 and A2 (the radio recordings of the Petitioner), were created on the 13^th March, 2021 at 1952 hours and modified at the same time by an agent software adobe premiere pro CC version 2019 which is a timeline – based software for editing, developed by Adobe Incorporation, installed on windows operating system that changed the audio meta data as revealed by his Amped5 professional.

[74] Mr. Wehire Laumech stated that he found that the video recording in Annexure B (the video recording by Wycliff Musinguzi), was a WhatsApp video, created on the 20^th January, 2021 with a WhatsApp extension and modified on 17^th March, 2021 at 09:17:23 AM. According to him, the file was edited hence tampering with its original form.

[75] According to Wehire Laumech, upon examination of the recording in Annexure C1 (the recording by Hope Kemirembe Ngabirano of her alleged conversation with the 1^st Respondent), he found out that the file name was changed to “JIM AUDIO” which according to him does not constitute the original creation because it was tampered with.   Upon examination of the recording in Annexure C2 (the recording by Hope Kemirembe Ngabirano of her alleged conversation with Edwin Kuteesa), he found out that the file name was changed to “KUTEESA Audio” and it does not have the original creation date.

[76] Wehire Laumech stated that upon examination of the recording in Annexure D (the recording by Martin Byomuhangi), he found out that the file does not have original creation date because it was tampered with.

[77] Wehire Lamech stated that upon examination of Annexure E (the recording by Twinomujuni Pius) he found out that it is a WhatsApp audio which was created on 22^nd April, 2021 and recreated on another device on 9^th August, 2021 at 9:32:16. He concluded that its originality was tampered with.   

[78] The conclusion of Wehire Laumech in his report is that the authenticity of the audio and video recordings submitted are questionable. According to him, there was need to have the source of the recordings submitted for forensic recovery and analysis.

[79] Peter Niwagaba swore an affidavit in rejoinder to the affidavit of Wehire Laumech, in which he denied tampering with the recordings. He stated that he only enhanced the volume of the radio recordings since they were very low. He stated that he only renamed the recording by Hope Kemirembe Ngabirano, Martin Byomuhangi and Twinomujuni Pius for purposes of cataloging and to ensure that there is no mix up in the process.

Submissions of counsel:

[80] Counsel for the Petitioner submitted that the electronic evidence presented by the petitioner is admissible since the actual recordings were adduced alongside the transcripts in the actual language in which they were recorded and the English translation duly made by a certified language translator, Centre for Languages and Communication Services, Makerere University. Counsel relied on Section 8 of the Electronic Transactions Act which provides that in legal proceedings, the rules of evidence shall not be applied so as to deny the admissibility of a data message or electronic record.

[81] Counsel also relied on the case of Micheal Wawanda Versus Electoral Commision and Honourable Andrew Martial, Court of Appeal Election Petition Appeal No. 98 of 2016 in which the Court of Appeal held that it is incumbent on the person who wanted to produce recordings in evidence to not only prepare copies of the recordings, but also to transcribe the same in the actual language in which the recording was and then a translation thereof in the language of the court and the persons who transcribed and/or translated the same should swear affidavits attaching the transcript and the translation done.

[82] Counsel for the Petitioner attacked the evidence of Wehire Laumech because, according counsel, he had failed to identify any form of tampering with the audios and videos. Counsel also attacked the evidence of Wehire Laumech because he stated in cross-examination that he was only given the audios and Videos on CDs together with a cover letter to analyze, but he did not access the affidavits to which the CDs were attached or the transcripts and the translations of the recordings. Counsel further submitted that Wehire Laumech could not tell whether the recordings were not tampered with by the Respondent’s legal team nor was he aware of the source of the recordings he analyzed. According to counsel, Wehire Laumech contradicted himself when he stated in cross-examination that zooming a video on a CD is not tampering and yet renaming of a file is tampering. Counsel submitted that Wehire Laumech was biased by the cover letter requesting for examination of the recordings.

[83] Counsel further submitted that the evidence of Wehire Laumech was rebutted by the evidence of Peter Niwagaba who asserted that the recordings were not doctored. 

[84] Counsel for the Respondents, on the other hand, submitted that the electronic evidence adduced by the Petitioner are not admissible in evidence in so far as their authenticity are highly questionable. Counsel relied on the case of Coin Limited versus Attorney General, HCCS No. 799 of 2014 in which the court warned of the danger of admitting electronic evidence especially if such evidence is contested. The danger of digital evidence being that it can easily be created, tampered with or modified.

[85] Counsel submitted that due to the intangible nature of electronic documents, courts have subjected them to a higher standard than ordinary documents. Counsel also relied on; Section 8(2) of The Electronic Transactions Act, 2011 which places the burden of proof on the person seeking to introduce a data message or electronic record to prove its authenticity, Regulation 3(1) of The Electronic Transactions Regulations, 2013 and the case of Amongin Jane Francis Okili Versus Lucy Akello and Another, High Court Election Petition No. 1 of 2014 which provide for the parameters for authentication of a data message and the Kenyan case of William Odhiambo O’Doul Versus Independent Electoral & Boundaries Commission & 2 Others  Election Petition No. 2 of 2013 [2013] eKLR in which the High Court of Kenya declined to admit a CD because the Petitioner did not adduce any evidence to show how the information was extracted and the particulars of the computer used to produce the CDs.

[86] Counsel pointed out that the Petitioner’s witnesses failed to give full description of the electronic devices used to record, store, extract, protect and produce the information in the CDs. They submitted that Peter Niwagaba did not produce proof of his expertise nor did he establish the date of the creation of the CDs or if the same were not doctored and did not give technical procedures used to establish the authenticity of the recordings.

[87]Counsel submitted that Wehire Laumech on the other hand noted the procedure he employed to analyze the digital evidence and his evidence was not challenged. Counsel further submitted that there was no proof adduced to show that the CDs which were analyzed by Wehire Laumech were not the ones served onto counsel for the Respondents.

[88] In rejoinder, counsel for the Petitioner submitted that the argument of counsel for the Respondents that the recordings are highly suspect and that the burden of proof lies on the Petitioner to prove their authenticity is misleading and intended to defeat a clear provision of The Electronic Transactions Act, 2011  on admissibility of electronic evidence. According to counsel, ordinary rules of evidence is waived when it comes to electronic evidence in accordance Section 8(7) of The Electronic Transactions Act, 2011. Counsel submitted that the electronic evidence of the Petitioner consists of electronic record in the form of videos and audios. They are not in the category of data messages as asserted by Counsel for the Respondents.

[89] According to Counsel, the Court of Appeal in the case of Sematimba Peter Simon Versus Sekigozi Stephen Court of Appeal EPA No. 0008 and 0010 of 2016 and the case of Micheal Wawanda suprahas guided the courts to adopt a liberal standard in handling electronic evidence contrary to the assertions of counsel for the Respondents that courts have subjected electronic documents to higher standard than ordinary documents.

[90] Counsel further submitted that the cases cited by counsel for the Respondent are not in consonance with Section 8 of The Electronic Transactions Act, 2011.  The cases are also not binding on this court. Counsel further submitted that the decision in Amongin Jane Francis Okili supra is not relevant since it confuses admissibility with evidential weight that the court should attached to electronic evidence.

[91] As regards the credibility of Peter Niwagaba, counsel submitted that his evidence was not challenged by cross-examination and he presented himself as a neutral witness.

Consideration and determination of the court:

[92] The position of the law on electronic evidence in legal proceedings in Uganda has been settled by The Electronic Transactions Act, 2011 and The Electronic Transactions Regulations, S.I. 42 of 2013. Before any data message or electronic record is admitted in evidence and evidential value is attached to it, proof of its authenticity has to be established by the court. The burden of proof lies on the person seeking to introduce electronic evidence in legal proceedings, to prove the authenticity of the electronic evidence. Proof of authenticity is by way of adducing evidence capable of supporting the finding that the data message or electronic record is what the person seeking to introduce it in evidence claims it to be. See Section 8(2) of The Electronic Transactions Act, 2011.

[93] I find the submissions of Counsel for the Petitioner that ordinary rules of evidence are waived when it comes to electronic evidence fatally flowed in view of the above cited provision of the Act. The requirement of authenticating electronic record is further emphasized in section 8 (3) of the Act where the best evidence rule is applicable in respect of electronic record, the rule is fulfilled upon proof of authenticity of the electronic record system. Section 8(7) which counsel for the Petitioner alluded to only modifies the rules of evidence relating to authenticity and best evidence to suit the special nature of electronic evidence. It does not, in any way, waive the requirement of authentication of electronic evidence.

[94] I equally find no merit in the submissions of counsel for the Petitioner that the Court of Appeal in the case of Sematimba Peter Simon supra and in the case Micheal Wawanda suprahas guided the courts to adopt a liberal standard in handling electronic evidence. In the Micheal Wawanda case, the court dealt with the procedure of presenting recordings in evidence and in the Sematimba Peter Simon, the court of appeal agreed with the trial judge’s reliance on The Electronic Transactions Act to admit an annexure to affidavit and also agreed with the trial judge’s consideration that given the time frame within which the Petition had been filed, the annexures that were attached to the affidavit of one of the witnesses were probably the best evidence he could get. The court in both cases did not in any way adopt a liberal standard in handling electronic evidence.

[95] I also find no merit in the submissions of Counsel for the Petitioner that the electronic evidence of the Petitioner consists of electronic record in the form of videos and audios and not data messages. Section 3 of The Electronic Transactions Act, 2011 defines data message to mean;

“… data generated, sent, received or stored by computer means and includes –

(a) voice, where the voice is used in an automated transaction; and

(b) a stored record.”

(underlined for emphasis)

Electronic record is defined to mean;

“…data which is recorded or stored on any medium in or by a computer system or other similar device, that can be read or perceived by a person or a computer system or other similar device and includes a display, printout or other output of that data;”

(Underlined for emphasis).

[99] In my view, audio and video recordings stored by a computer system or other similar device, is an electronic record, which falls under the definition of a data message.

[100]  In order for a data message to be regarded as authentic, under Section 7 of The Electronic Transactions Act, 2011, the information must have integrity from the time when it was first generated and the information must also be capable of being displayed or produced to the person to whom it is to be presented or it must have remained complete and unaltered (except for addition of endorsements and any change which arises in the normal course of communication, storage or display) in light of the purpose for which the evidence was generated and having regard to all relevant circumstances.

[101] According to Regulation 3(1) of The Electronic Transactions Regulations, S.I. 42 of 2013, where the authenticity of the electronic evidence is in issue, it has to be proved by evidence showing that; The data message is self -authenticating, the electronic evidence has a harsh mark or metadata, there is factual specificity about the process by which the information is created, acquired, maintained and preserved, among others. Under Regulation 3(2), there has to be evidence that the person uses the computer from which the message originated, that the computer is reliable, that the person has developed a procedure for inserting data into the computer and that the procedure has in built safeguards to ensure accuracy and identify errors.   

[102] Under regulation 7, the integrity of a data message must be assessed by; the mode of preparing the data, programming error, completeness of the data entry, mistake in output instructions, damage and contamination of the storage media, power outages and equipment malfunctions, improper search and retrieval techniques, data conversion or mishandling during discovery, that the computer used retaining and retrieving information.

[103] It appears to me, from the above cited provisions of the law, that before any electronic evidence can be admissible in evidence, the court must establish its authenticity. Authenticity of a data message is established if the data message has remained complete or unaltered from the time when it was first generated. In ascertaining whether the data message has remained complete or unaltered, the court must have regard to; the process by which the information was created, acquired, maintained and preserved; the reliability of the computer used; the competency of the person who has created, acquired, maintained, preserved and retrieved or converted the data to avoid any loss. The list is by no means exhaustive.

[104] The rationale for establishing the authenticity of electronic evidence/ digital evidence is that digital evidence can be easily created, tampered with or modified. See the case of Coin Limited supra. According to Stephen Mason, Electronic Evidence, 3rd Edition at page 48 the authors state that;

“… the media upon which electronic data are stored is fragile. The media is inherently unstable, and unless the media is stored correctly, it can deteriorate quickly and without external signs of deterioration. It is also at risk from accidental or deliberate damage and accidental or deliberate deletion. Furthermore, the form of storage media also changes.”

[105] Therefore, just because digital evidence is found, it does not follow that the evidence is genuine. The court has to be meticulous in determining authenticity of electronic evidence before admitting it in evidence.

[106] Both the Petitioner and the Respondents in this case relied on experts to analyze the recordings in issue. Although Peter Niwagira stated that he is a visual effect expert with 10 years’ experience and having a bachelor’s degree from Multimedia University, he did not mention or demonstrate that he has any expertise in digital evidence or computer forensics. He stated that he was given audio and visual recordings to establish their authenticity and to ensure that they were not doctored and to produce them into CDs. However, from his affidavit evidence there is nothing to show that he carried out any forensic analysis of the files, in whatever form they were submitted to him, to establish their authenticity. He only renamed the files, enhanced the sound and produced the CDs.   He did not state the media used to deliver the data to him, the protocols he adopted in his work, the computer and the computer software he used to retrieve the data and whether the process was free from any damage or alteration.

[107] At the very least, he should have examined the metadata of the files which would have shown him information such as the date and time when the files were originally created, the last user to modify the file, file size, file location and the type of device used to record the information. Merely placing the recordings into CDs and listening to them cannot establish the authenticity of a data message. He needed to have looked at the attributes of the data. According to Stephen Mason supra at page 89;

“A digital evidence specialist is not only required to obtain and copy digital evidence that has high probative value, but must also provide an analysis of the evidence. The analysis of the evidence will involve reviewing the text of the data, and the attributes of the data.”

[108] My finding is that the evidence of Peter Niwagira, in so far as establishing the authenticity of the impugned recordings is concerned, is extremely lacking.

[109] Wehire Laumech, on the other hand explained his expertise in Digital Forensics with a wealth of knowledge and experience. He explained the protocols, the computer and the computer software he used to carry out the analysis. His evidence was thus very useful to the court in determining the authenticity of the recordings. Although counsel for the Petitioner attacked his partiality based on the cover letter requesting for the analysis, there is no evidence adduced by the Petitioner to prove that allegation. Counsel for the Petitioner also attacked the evidence of Wehire Laumech because, in counsel’s view, he did not look at the affidavit which introduced the CDs in evidence and that he failed to prove that the recordings were not tampered with by the Respondent’s legal team. I do not think that the attacks are justified. Firstly, no evidence was presented by the Petitioner to prove that the CDs which were examined by Wehire Laumech were not the one served onto the Respondents. Secondly, counsel did not point out why Wehire Laumech should have looked at the affidavit and the transcripts to enable him analyze the files. The subject of the analysis were the CDs, the text of the data therein and the attributes of thedata which could and were in fact analyzed.

[110] I have carefully analyzed the evidence regarding the alleged audio recordings by Hope Kemirembe Ngabirano. She did not disclose to the court what equipment she used to record the audios, what media was used to keep the recordings and the media used to transmit the recordings to Peter Niwagaba. Peter Niwagaba did not also state the media by which he received those recordings.  Upon examination of the audios by Wehire Laumech, he found out that the audio file names were changed and they did not have the original creation date. Although in my view change of the name of a file does not have any effect on authenticity of a data message as per Regulation 7 (2), of the The Electronic Transactions Regulations, S.I. 42 of 2013, the lack of a creation date does. No evidence was adduced to rebut the evidence of Wehire Laumech nor was any evidence adduced which shows that the 2 audios have a creation date which matches with the date Hope Kemirembe Ngabirano claims to have recorded the conversations. It is also not clear how the recordings were created, acquired, maintained and preserved. This casts serious doubt on the authenticity of the audios.

[111]   As regards the recordings by Wycliff Musinguzi, he told the court that he handed his iPhone 6S Plus to Peter Niwagaba who extracted the video from his phone. Peter Niwagaba on the other hand did not state in what media he received the recording. Upon examination of the video by Wehire Laumech, he found that the recording was a WhatsApp video, created on the 20^th January, 2021 with a WhatsApp extension and modified on 17^th March, 2021 at 09:17:23 AM. Firstly, it is inconceivable that the recording which was allegedly forwarded to Peter Niwagaba by taking the phone itself and turned to be WhatsApp video. What that means is that either Wycliff Musinguzi created the WhatsApp file and sent it to Peter Niwagaba or Peter Niwagaba himself altered the original file into a WhatsApp file or somebody in the process of transmitting the file from Wycliff Musinguzi to Peter Niwagaba altered the file.  Secondly, if indeed the files were created on the 18^th October, 2020 as Wycliff Musinguzi would like the court to believe, the creation date would not be showing 20^th January, 2021. The Petitioner did not produce any evidence to rebut the evidence of Wehire Laumech in this respect. The date when the video was created and the media by which it was taken to the Peter Niwagaba cast serious doubt as to its authenticity.

[112] There is no evidence of how the recording by Martin Byomuhangi was delivered to Peter Niwagaba. Upon examination of the video by Wehire Laumech, he found out that the file does not have original creation date because it was tampered with. The recording is a WhatsApp audio which was created on 22^nd April, 2021. He concluded that its originality was tampered with. The Petitioner did not produce any evidence by way of the original meta data of the file on the CD to rebut the evidence of Wehire Laumech and to prove that the creation date is indeed 5^th of November 2020 as stated by Peter Niwagaba and not 22^nd April, 2021. It appears that the recording which was done by a smart phone Itel – 53LTE was not forwarded to Peter Niwagaba in its original form but rather through WhatsApp media, in the process the original creation date was lost. The authenticity of this recording cannot therefore be ascertained.

[113] Twinomujuni Pius did not state the equipment he used to generate the recording. He did not also tell the court the media he used to kept the recordings and in what way he forwarded the recordings to Peter Niwagaba. Peter Niwagaba did not also disclose to the court how he received audio. Upon examination of the recording by Wehire Laumech, he found out that the file does not have original creation date because it was tampered with. The file is a WhatsApp audio which was created on 22^nd April, 2021.  The petitioner did not produce any evidence which shows the original meta data of the file to rebut the evidence of Wehire Laumech and to prove that indeed the file has a creation date that matches with the evidence of Twinomujuni Pius as to when the recording took place. Without any evidence of how the recordings were created, acquired, maintained and preserved, there is serious doubt on the authenticity of the audio. 

[114] The Petitioner stated that he obtained a recording from Kanungu Broadcasting Services and from Boona FM which he handed over to Peter Niwagaba who produced CDs.  There is no evidence of who generated the recordings and the equipment used for recording. The medium of transfer of the recording to Peter Niwagaba is not known. Peter Niwagaba did not state in what medium he received the recordings from the petitioner. Upon examination of the recording by Wehire Laumech, he found out that the audio recordings were created on the 13^th March, 2021 at 19:52 hours and modified at the same time by an agent software adobe premiere pro CC version 2019 which is a timeline – based software for editing, developed by Adobe Incorporation, installed on windows operating system that changed the audio meta data. No evidence was presented to rebut the evidence of Wehire Laumech. Without such evidence of how the recording was created, acquired, maintained and preserved, its authenticity cannot be ascertained.

[115] My finding on this issue, therefore, is that the Petitioner failed to discharge his burden to prove that the electronic evidence which he relied on are authentic. They are thus not admissible in evidence. Since the recordings have not been admitted, the transcripts and the translations are therefore of no use to the court. In any case, the person who transcribed and translated them did not even swear any affidavit to confirm the content as per the decision of Micheal Wawanda supra.

Issue 2: Whether the 1^st Respondent committed any illegal practices or election offences personally or through his agents, with his knowledge and consent or approval during the said election.

[116] The Petitioner alleged that the 1^st Respondent personally or through his agents, with his knowledge and consent or approval committed several illegal practices of giving out donations during the campaign Contrary to Section 68(7) of the PEA and bribery Contrary to section 68(1) of the PEA. I will deal with each of the allegations in the order in which they were presented in the Petition and in the submissions of counsel.

Allegations of donations:

• Donation of Ugx 5,000,000/= at Kajwamushana Church of Uganda on the 18^th October, 2020:

[117] The Petitioner alleged in the Petition that the 1^st Respondent on the 18^th October, 2020, atKajwamushana Church of Uganda, personally donated the sum of Ugx 5,000,000/= towards the building fund of the said church and urged the Christians to support him in the parliamentary election. The 1^st Respondent in his Answer to the Petition denied giving the donation, during the campaign period or at all. 

[118] In his affidavit in support of the petition, the Petitioner stated that he received the information of the donation from Kumanya Jackson, Wycliff Musinguzi and various other Christians from Kajwamushana Church of Uganda. He stated that he was told that the money was received by the treasurer of the church and the purpose of the donation was to influence the voters.

[119] The Petitioner produced 9 witnesses who swore affidavits in support of the allegation of the said donation. The witnesses were; Wycliffe Musinguzi, Boaz Tumugabirwe, Beatrice Tumusiime, Moses Tukamuhebwa, Monica Kyarisiima, Ester Nuwamanya, Jeniffer Kembabazi, Kumanya Jackson (in support and in rejoinder) and Ainembabazi Christine. The summary of their evidence is that they attended the said church service, which was also attended by the 1^st Respondent. The 1^st Respondent addressed the congregation and gave a donation of 5 Million to the church treasurer, John Bwinzana (also called John Tumwikirize) for the construction of the church veranda. The above witnesses, except Boaz Tumugabirwe, stated that when the 1^st Respondent realized that he was being recorded, he made a remark about Hon. Winfred Matsiko who was removed from Parliament on account of giving donations in a church but he said for him he was fulfilling a pledge.  

[120] The 1^st Respondent in his answer to the petition denied giving the donation, during the campaign period or at all.  In his affidavits, he stated that on the 18^th October, 2020 he attended church service at Kajwamushana Church of Uganda, during which service he was invited by Rev. Herbert Barirakye to speak to the congregation which he did. He further stated that as he was about to finish his speech, he was requested by Kamuhangire David, the head of Church Building and Development of Kajwamushana Church of Uganda to contribute to the construction projects of the church but he informed the congregation that he could not make the donation to the church during the election period. He stated that he reminded the congregation of how Winfred Matsiko lost her Parliamentary seat because of contributing to the church during election period.

[121] The 1^st Respondent produced 5 witnesses who swore affidavits in support of his answer to the allegation of the donation. The witnesses were; Beinobwengye Topher Katwiremu, Kamuhangire David, Kemigisha Peace, Tumwikirize John and Byamukama Purtazio.

[122] Beinobwengye Topher Katwiremu stated that he attended the church service with the 1^st Respondent and that when the 1^st Respondent addressed the congregation, Kamuhangire David asked the 1^st Respondent to make a contribution towards the construction projects of the church but the 1^st Respondent reminded the congregation about the danger of making contributions to church activities during elections and gave the example of Hon. Winfred Matsiko who was removed from Parliament because she contributed towards church projects during election time. The evidence of

[123] Kamuhangire David stated that he attended the said church service where the 1^st Respondent gave a speech. He further stated that when the 1^st Respondent was about to finish his speech, he (Kamuhangire David) asked the 1^st Respondent to contribute to the construction projects of the church but the 1^st Respondent said the laws do not allow him to donate money during elections. He said he did not see the 1^st Respondent hand over any money to Tumwikirize John.

[124] Tumwikirize John (church treasures of Kajwamushana Church of Uganda) denied receipt of any money from the 1^st Respondent. The statement of Kemigisha Peace (warden of Kajwamushana Church of Uganda) and Byamukama Purtazio were similar to the evidence of Kamuhangire David, denying the allegation that any money was handed over by the 1^st Respondent toward the construction projects of the church.

Submissions of counsel:

[125] Counsel for the Petitioner submitted that the evidence on court record supports the conclusion that the 1^st Respondent made a donation while campaigning and thereby committed an election offence. Counsel further submitted that the 1^st Respondent confirmed during cross-examination that he was nominated on the 16^th of October, 2020 and that he was aware that candidates are prohibited from giving donations during the campaign period.

[126] Counsel for the Respondents on the other hand submitted that the alleged illegal practice is not made out for the reason that the donation was alleged to have been made outside the gazetted campaign period. Counsel submitted that according to Section 68(7) of the PEA, candidates and their agents are prohibited from carrying out fundraising or giving donations during the period of campaigning. Counsel argued that campaigns commenced on the 9^th of November 2020 and therefore the alleged donation was outside the ambit of the law. Counsel relied on the case of Apolot Stella Isodo Versus Amongin Jacqueline Court of Appeal Election Petition Appeal No. 60 of 2016. 

[127] Counsel further submitted that since none of the Petitioner’s witnesses alleged that money was counted in their presence, it is not clear how they knew that the denominations of the money was 20,000/=. Counsel further submitted that apart from Esther Numanya, none of the other witnesses for the Petitioner stated that the 1^st Respondent talked about his role in roofing the church.

[128] In rejoinder, Counsel for the Petitioner submitted that, the allegation that official campaigns started on the 9^th November 2020 is not proved by a gazette as required by section 20(1) of the PEA. Counsel further submitted that Section 68(7) does not only prohibit donations in the gazetted campaign period but prohibits candidates from giving donations generally.

Determination of the court:

[129] Section 68(7) and (8) of the PEA creates the illegal practice of carrying out fundraising or giving donations. Section 68(7) provides that;

“A candidate or agent of a candidate shall not carry on fundraising or giving of donations during the period of campaigning.”

Section 68(8) provides that;

“A person who contravenes subsection (7), commits an illegal practice”

The above sections has have to be read together with section 61 (1) (c) of the same act which provides that the offence must be committed by the candidate personally or with his knowledge and consent or approval.

[130] Therefore, in order for the Petitioner succeed to set aside the election of the 1^st Respondent on the ground that he committed the illegal practice of giving a donation, he has to prove to the satisfaction of the court the following ingredients;

1. The 1^st Respondent was a candidate on the date of the alleged donation.
2. The 1^st Respondent personally or through his agent with his knowledge and consent or approval carried out fundraising or giving of donations.
3. That the fundraising or the giving of the donation was during the period of campaigning.

[131] Under Section 1 of the PEA, the term candidate is defined. It states that;

““candidate” means a person nominated as a candidate for election as an elected member of parliament.”

The 1^st Respondent in cross-examination stated that he was nominated on the 16^th October, 2020. It therefore follows that on the 18^th October 2020 when the alleged donation took place, he was a candidate.

[132] As to whether the alleged donation was given during the period of campaigning. Section 1 of the PEA defines the term “campaign period”. It states that;

““campaign period” means the period determined by the Commission under section 20 as the period during which campaigning may take place.”

 Section 20 (1) provides that;

“Subject to the provisions of the Constitution and this Act, the Commission may determine the manner and the period during which campaign shall take place and shall publish the information in the gazette and forward a copy to each returning officer” (Underlined for emphasis).

Section 20(4) of the PEA provides that;

“Campaign meetings shall not commence until the expiry of nomination days.”

 Section 20(5) of the PEA on the other hand provides that;

“A campaign meeting shall not be held within twenty-four hours before polling days.”

From the reading of the above section, it appears to me that the period of campaigning starts after the expiry of nomination days and ends twenty-four hours to the polling day. Although the Electoral commission may determine the period when campaign shall take place, it has to be within the confines set out in Section 20(4) and (5) of the PEA.

[133] In the instant case, no evidence adduced to the court to show that the Commission issued out a gazette to determine the period during which campaign was to take place other than the period provided for in section 20(4) and (5). The electoral roadmap stated in the press statement dated 22^nd of October 2020, which was attached to the affidavit of the 1^st Respondent does not, in my view, fulfil the requirement of Section 20(1) because it was not put in the gazette or at least no evidence that it was put in the gazette was availed to the court.

[134] In the absence of any evidence that the Commission determined the date when the period of campaigning was to start, the only conclusion that can be drawn is that the period of campaigning started after nominations were closed in accordance with section 20(4) of the PEA. The 1^st Respondent told the court in cross-examination that nomination was for only 2 days, that is, 15^th and 16^th of October, 2020.   I will accordingly find that the 18^th October 2020 when the alleged donation took place, was a period for campaigning. 

[135] I have also subjected the evidence of the Petitioners and those of the 1^st Respondent, in regard to the donation of the 5 Million Shillings at Kajwamushana Church of Uganda, to thorough scrutiny. I have noticed that while other witnesses of the Petitioner stated that the money was handed over to the church treasurer, John Bwinzana who is also called John Tumwikirize, Beatrice Tumusiime said the money was given to the treasurer called John Mugisha. This contradiction was not explained anywhere. Wycliff Musinguzi did not turn up for cross-examination. His evidence is of the weakest kind. I have not placed any reliance upon the same. All the witnesses of the Petitioner, with the exception of Monica Kyarisiima, stated that the money was given in the denomination of 20,000/=. It is inconceivable that they could assert that all the notes were of 20,000/= without any evidence that the money was counted. In the case of Hon. Odo Tayebwa supra, the Court of Appeal wondered how the Petitioner’s witness in that case came to know that a bribe of 1,250,000/= was given by Hassan Basajabalaba and another 1,000,000 was given by the 1^st Respondent without the money being counted.

[136] In addition, out of all the witnesses of the Petitioner, it is only Ester Nuwamanya who stated that the 1^st Respondent reminded the congregation of how he had played a major role in roofing the church and he could not allow it to collapse. It is doubtful that all the witnesses were present at the same place and at the same time. if indeed they were, there is no reason why only Ester Nuwamanya heard the 1^st Respondent talk about the roof of the church.

[137] The witnesses of the Petitioner stated that the 1^st Respondent gave the 5 Million Shillings to the treasurer of the church, John Bwinzana who is also called John Tumwikirize. John Kwikirize denied receipt of any money from the 1^st Respondent. This was confirmed by Kemigisha Peace (warden of Kajwamushana Church), Kamuhangire David who said he is the one who requested for the donation from the 1^St Respondent, Byamukama Purtazio and Beinomugisha Topher Katwiremu who attended the same service and listened to the 1^st Respondent speak. The Petitioner did not produce any evidence to explanation why the church officials would have denied receipt of the money if indeed they received it.

[138] The Petitioner’s witnesses stated that when the 1^st Respondent saw someone recording him that is when he stated that Winfred Matsiko lost her Parliamentary seat because of contribution to the church during election period. The 1^st Respondent and his witnesses on the other hand stated that the he (1^st Respondent) remarked about Winfred Matsiko losing her seat after Kamuhangire David requested for the donation from the 1^St Respondent. I find it unbelievable that after the 1^st respondent noticing that he was being recorded and having stated the consequence of such donation, he could still go ahead and give the donation.

[139] My finding therefore is that the Petitioner has not proved to the required standard, with cogent evidence, that the 1^st Respondent on the on the 18^th October, 2020 at Kajwamushana Church of Uganda gave out a donation.

• Donation of Ugx 500,000/= to the Family of the late Nsemereirwe Jane:

[140] The Petitioner alleged that the 1^st Respondent on the 5^th November, 2020, atBwambara, Kyabahanga, Bugarama, personally made a donation of Ugx 500,000/= to the family of the late Nsemereirwe Jane at her burial ceremony where he expressly campaigned and urged the mourners to vote for him.

[141] The Petitioner produced 9 witnesses who swore affidavits in support of the allegation. The witnesses were; Martin Byomuhangi, Tweheyo Dorcus Fortunate, Tuhaise Elias Rwambuka, Henry Rubanekyera, Christopher Turyarugayo, Twinomujuni Samu, Christine Tumusiime, Jackson Mubangizi and Kisakyakatondo Liberty. The summary of the witnesses’ evidence is that they all attended the burial ceremony of the late Nsemereirwe Jane. The burial was also attended by the 1^st Respondent who gave a speech in which he solicited for votes and donated Ugx 500,000/= to Turyomurugyendo Wilson, the husband of the late Jane Nsemireirwe. After concluding his speech, the 1^st Respondent handed the money to Turyomurugyendo Wilson.

[142] The 1^st Respondent denied the allegation. In his affidavit, he stated that on the 5^th November 2020, he attended the burial of the late Nshemereirwe Jane who was his personal friend and supporter. He gave a condolence/ bereavement contribution (Amaziika) of Ugx 500,000/= to Turyomurugyendo Wilson who was also his personal friend, supporter, coordinator for Bugarama Cell and a family member of the late Nshemereirwe Jane.

[143] The 1^st Respondent produced 1 witness, Turyomurugyendo Wilson who stated that on the 5^th November 2020 he held a burial ceremony for his late wife Jane Nshemereirwe at his home. The burial was attended by many people including politicians like the 1^st Respondent. It was his evidence that he was, together with his wife Jane Nshemereirwe, supporters and personal friends of the 1^st Respondent.  In addition to that, he was the coordinator of the 1^st Respondent for Bugarama cell. He further stated that on the date of the burial, the 1^st Respondent addressed the mourners and gave him a personal condolence contribution of Ugx 500,000/= to assist him in the burial expenses.

Submissions of counsel:

[144] Counsel for the Petitioner submitted that although the 1^st Respondent claimed that the money was a mere condolence message, the campaign speech he made before giving the money demonstrates that the purpose of publicly announcing the contribution was to influence voters at the said funeral.

[145] In reply, Counsel for the Respondents submitted that the money was a condolence and was never intended as a donation within the meaning of the law. According to counsel, Turyomurugyendo Wilson could not be influenced to vote for the 1^st Respondent since he had already confessed his support for the 1^st Respondent. Counsel relied on the authority of Turyamureeba Paul Kahigi Versus Basajabalaba Jafari and Another Court of Appeal Election Petition Appeal No. 103 of 2016 in which it was held that it was illogical that the NRM District Chairman would bribe fellow NRM Party leaders to vote for their own party flag bearer for whom they had been campaigning.

[146] Counsel further submitted that it was not pleaded and proved by the Petitioner that anyone was influenced to vote for the 1^st Respondent or anyone refrained from voting for the Petitioner. Counsel further submitted that in order to prove a donation, the motive of the giver of the donation is critical. Counsel relied on the case of Kamba Saleh Moses Versus Hon. Namuyangu Jenniffer Court of Appeal Election petition Appeal No. 27 of 2006.

[147] According to counsel, no one could seriously read a corrupt motive in a condolence and that it would be preposterous to imagine that the legislature in enacting section 68(7) of the PEA, intended to turn candidates for parliamentary elections into hard hearted, inhuman and inconsiderate individuals to the extent that a candidate cannot offer condolence to a bereaved supporter. According to counsel, to give the Section 68(7) of the PEA such an interpretation it would lead to an absurdity.   

[147] In rejoinder, Counsel for the petitioner submitted that an election is premised on free will of the voter. It is possible that Turyomurugyendo Wilson might not be a supporter of the party flag bearer. Counsel relied on the decision of Peter Mugema suprain which, according to counsel, one of the NRM party leaders was found not to be a supporter of the party flag bearer.

Determination of the court:

[148] I wish to point out that I did not find the case of Turyamureeba Paul Kahigi (supra) and the case of Kamba Saleh Moses (supra) cited by Counsel for the Respondents relevant to this case. In those cases, th court was dealing with the illegal practice of bribery and not giving donation. I did not also find the case of Peter Mugema (supra) cited by counsel for the Petitioner applicable. In that case, the court did not make a finding about any NRM party leader not being a supporter of the party flag bearer. What the Court of Appeal found was that Waibi being the NRM Party chairperson and being responsible for pursuing the political interest of that party did not automatically place him in a principle agent relationship with the appellant in that case.

[149] In determining whether the Ugx 500,000/= was a donation or a condolence, I have found the decision of the Court of Appeal in the case of Peter Mugema Versus Mudiobole Abedi Nasser, Court of Appeal Election petition Appeal No. 30 of 2011 quite instructive. In that case, Kasule JA stated that;    

“In my view the language of section 68 (7) of the Parliamentary Elections Act appears to be too general and wide and yet at the same time appears to be of strict application, imposing strict liability.

In enacting the said section, the legislature intended to restrain candidates in Parliamentary elections during the campaign period from, through fundraising activities, influencing voters to vote one way or the other at the elections by being paid money or being given other material objects and considerations.”

(Underlined for emphasis).

The Learned JA further stated that;

“…I find that section 68 (7) and (8) of the Parliamentary Elections Act must be interpreted and applied in such a way that it relates to fundraising functions or occasions, during election campaigns in which a candidate or his/her agent participates with the knowledge and consent of a candidate, for the purpose of influencing voters to vote in a particular way.”

(Underlined for emphasis).

The Learned JA further stated that;

“It is therefore a legitimate consideration, though not a condition precedent, for the application of the section, to find out whether or not, those said to have participated in the fundraising were registered voters, or how the fundraising would influence those attending when election time comes.  It also matters for the court to appreciate as to how many people are involved in the fundraising.”

The Learned JA also stated that;

“I also take judicial notice of the fact that in Uganda, as a matter of practicing and manifesting their faith, Ugandans carry out some sort of fundraising as part of their prayer services.  Many Christians do this during the “offertory” period of praying, while members of the Islamic faith carry out “sadaq” as part of praying and manifesting the faith.  What is true of religious faith is also true of cultural and other social functions.  Articles 29 and 37 of the Constitution would offer protection in such instances.  I therefore hold the view that each case must be judged on its own facts and the burden is upon the petitioner to show that the alleged fundraising campaign was within the scope of the said section 68 (7) and (8) of the Parliamentary Elections Act and was not protected by the Constitution.”

(Underlined for emphasis).

[150] In the instant case, the function was a burial ceremony and not a fundraising ceremony. I take judicial notice of the fact that in Uganda, it is not unusual for any person making a speech at a burial ceremony to announce a condolence message which is intended to assist the bereaved family in burial expenses. The money in this case was handed to Turyomurugyendo Wilson who had lost his wife. The 1^st Respondent and Turyomurugyendo Wilson stated in their affidavit the relationship that existed between them before the said event justifying why the 1^st Respondent had to attend the ceremony. In fact, in my view, it would be uncultured for the 1^st Respondent not to give a condolence at such a ceremony based on his relation with the family.

[151] Although the witnesses of the Petitioner stated that 1^st Respondent campaigned at the burial ceremony before giving the alleged donation, the 1^st Respondent in cross-examination when asked about the alleged speech and what he said about the history of the NRM, he said he did not remember making that speech but instead remembered that he mourned the deceased. Two of the witnesses of the Petitioner in support of the allegation of the donation of the 500,000/= failed to turn up for cross-examination (Henry Rubanekyera and Christopher Turyarugayo). I have not placed any reliance upon their evidence.

[152] It is therefore my finding that the Petitioner has not proved to the required standard, that the 1^st Respondent to the family of the late Nsemereirwe Jane.

• Donation of sports uniforms and balls on the 11^th November 2020:

[153] The Petitioner alleged in the Petition that the 1^st Respondent on the 11^th November, 2020, atNyakanyika Playground, promised to donate sports items such as balls and jerseys to the youth while addressing a campaign rally at the said playground. He stated that the balls were delivered on the 17^th November 2020 to Kasenyi Football Club by Africano Ndyabijuka and the football jersey were delivered on the 14^th December 2020 in fulfilment of the 1^st Respondent’s promised donation.

[154] The Petitioner produced 6 witnesses who swore affidavits in support of the allegation. The witnesses were; Hamlet Otafiire, Agrey Asinguza, Dan Akozire, Gelvas Biryabigambo, Papson Biryomumaiso and Didas Muhumuza. The summary of their evidence is that they are members of Kasenyi Football Club. On the on the 11^th November, 2020, they were atNyakanyika Playground for training. The 1^st Respondent came to them and requested them to vote for him and he promised to give them sports related items such as balls and jerseys. They stated that the promised balls were delivered on the on the 17^th November 2020 and the football jersays were delivered on the 14^th December 2020 by Africano Ndyabijuka.

[155] The 1^st Respondent denied the alleged donation. He stated that on the 11^th November 2020, while on his campaign trail in Ruhinda Subcounty, he briefly passed by Nyakanyinya play ground where he found some youths. Tumukunde Peter requested him to help the team with sports items but he explained to them that the law does not allow such donations during the election period.

[156] The 1^st Respondent produced 3 witnesses, who swore affidavits in support of his case. The witnesses were; Ndyabajuka Africano, Byamukama Putazio and Tumukunde Peter. Ndyabajuka Africano stated that he was not the 1^st Respondent’s agent and that the allegation that he delivered the balls and the jerseys to Kasenyi Football Club at Nyakanyinya play ground is false. Byamukama Purtazio stated that on the 11^th November 2020 the 1^st Respondent made a brief stopover at Nyakanyinya play ground where he met some youths and he asked them to vote for him. One of the youths who introduced himself as Tumukunde Peter requested the 1^st Respondent to give them balls and t shirts but the 1^st Respondent informed them that it was not a good time to give such donation since the time was for campaigning. Tumukunde Peter stated that he is the one who requested the 1^st Respondent to give them sports equipment but the 1^st Respondent informed the club members that the law forbids such donations during elections.

Submissions of counsel:

[157] Counsel for the Petitioner submitted that the affidavit of Ndyabajuka Africano is a bare denial in response to the allegations, which is insufficient. Counsel relied on the case of the case of Tubo Christine Versus Akello Rose Lily, Court of Appeal Election Petition Appeal No. 80 of 2016 in which the Court of Appeal upheld the decision of the trial judge when he rejected the general denial by one of the agents and ardent supporter of the 1^st Respondent.

[158] In reply, Counsel for the Respondents submitted that the Petitioners evidence is insufficient to prove the allegation. According to counsel, there is doubt as to how the items were received, who received the items, from where they were received. Counsel further submitted that only one witness stated that the sports items bore the name of the 1^st Respondent and that no evidence was led to show that any person voted for the 1^st Respondent on account of the name. Counsel relied on the case of Hellen Adoa Versus Alice Alaso, Court of Appeal Election Petition Appeal No. 057 of 2016. Counsel further summitted that the Petitioner had not presented any evidence to prove that Ndyabajuka Africano was the agent of the 1^st Respondent.

[159] In response to counsel for the Petitioner’s argument that the affidavit of Ndyabajuka Africano was a bare denial, counsel relied on the case of Apolot Stella Isodo versus Amonging Jacqueline, Court of Appeal Election Petition Appeal No. 60 of 2016 in which the Court of Appeal held that a toto denial is a complete defence in itself.

[160] In rejoinder, counsel for the Petitioner submitted that proof of the voter voting as a result of the donation is not a legal requirement. What is required is the intention to influence the registered voter.

Consideration and determination of the court:

[161] I am in agreement with the submissions of Counsel for the Petitioner that in proving a donation under Section 68(7) & (8) of the PEA, the Petitioner need not prove that as a result of the donation, the registered voter actually voted in a certain way. As was indeed held in the case of Peter Mugema Versus Mudiobole Abedi Nasser, Court of Appeal Election petition Appeal No. 30 of 2011, the language of section 68 (7) of the PEA appears to be of strict application, imposing strict liability.

[162] I have however found the evidence of delivery of the sports items extremely lacking. First, all the witnesses of the Petitioner, with the exception of Gelvas Biryabigambo, state that the balls were delivered on the 17^th of November 2020 and the jerseys were delivered on the 14^th of December 2020. Apart from Didas Muhumuza, all the other witnesses do not state whether they were present when those items were delivered. None of the witnesses stated to whom specifically the items were delivered. Even Didas Muhumuza who stated that the balls were delivered to them at the playground, he did not state with whom he was at that time. He did not also state what they were doing at the playground on that day when the balls were allegedly delivered or whether they were called to go there to receive the balls. None of the witnesses stated from where the jerseys were delivered.

[163] Secondly, Papson Biryomumaiso and Didas Muhumuza stated that the balls were delivered on the 17^th of November 2020 in the evening while the jerseys were delivered on the 14^th of December 2020 in the morning. It is not clear where they were in the morning of the 14^th of December 2020 when the jerseys were delivered.

[164] Thirdly, Ndyabajuka Africano denied being an agent of the 1^st Respondent. The Petitioner did not present any evidence of how Ndyabajuka Africano got in touch with whoever he delivered the alleged sports items to. Was it on phone or Ndyabajuka Africano was introduced to the person who received the items by 1^st Pespondent or any other person? It is not explained how Ndyabajuka Africano knew where to find whoever was to receive the sports items on the dates when he is alleged to have delivered the items.

[165] For the reasons stated above, I find that the Petitioner failed to prove to the required standard that the 1^st Respondent personally or through his agent donated the alleged sports items to Kasenyi Football Club during the period of campaigning.

•  Donation of iron sheets to Nyabugando Church of Uganda, Bugarama church of Uganda and Kyabahanga Catholic Church:

[166] The Petitioner alleged in the Petition that the 1^st Respondent on the 28^th December 2020 donated 150 iron sheets to 3 different churches namely; Nyabugando Church of Uganda, Bugarama Church of Uganda and Kyabahanga Catholic Church. According to the Petitioner, the iron sheets were for the implicit purpose of influencing voters in the said churches. The Petitioner produced 4 witnesses who swore affidavits in support of the allegation of donation of 50 iron sheets to Nyabugando Church of Uganda.

[167] Tugumisirize Deus stated that on the 28^th December, 2020 he was a Priest at Nyabugando Church of Uganda. On that day, Denis Bitambo, a coordinator of the 1^st Respondent, telephoned him and asked him to send somebody to pick 50 iron sheets as a donation for his church.  He (Tugumisirize Deus) then sent Namara Daniel, the head of development at Nyabugando Church of Uganda, for the iron sheets which were delivered.

[168] Namara Daniel stated that he received a call from Rev. Mwesigwa Bernada requesting him to go to Rukungiri Town to pick iron sheets from Denis, the coordinator of the 1^st Respondent. He stated that he travelled to Rukungiri town together with Mwesigwa Julius and Mapenduzi Amos in the Tipper of Otiko Balikudembe to pick the iron sheets. He stated that he met Denis Bitambo at the Hardware shop of Mugarura Kaharata where he received 150 iron sheets and delivered 50 iron sheets to Tugumisirize Deus.

[169] Matumbika Denis and Ndamwesiga Gerald stated that they were present when the 50 iron sheets were delivered at Nyabugando Church of Uganda. According to them, the iron sheets were donations to the church from the 1^st respondent.

[170] In regard to the allegation of donation of 50 iron sheets to Bugarama Church of Uganda, the Petitioner produced 2 witnesses. Tumuranze Medard stated that he was present at Bugarama Church of Uganda when the 50 iron sheets were delivered by; Namara Daniel, Denis Bitambo, Kamugisha Denis and Mapenduzi Amos. He stated that Denis Bitabo, is a renowned coordinator of the 1^st Respondent who told them that the iron sheets were a donation by the 1^st Respondent. He stated that the iron sheets were received by Reverend Mwesigwa Bernada. Namara Daniel stated that he delivered 50 iron sheets to Rev. Mwesigwa Bernada.

[171] On the allegation of donation of 50 iron sheets to Kyabahanga Catholic Church, the Petitioner produced 5 witnesses. The witnesses were; Amuri Elias, Tumuhimbise Seperiano and Turyatunga Malius.  Turyatunga Malius said they assisted to offload the iron sheets, Kamugisha Denis said he got a lift in the truck which delivered the iron sheets and Namara Daniel said he delivered the iron sheets. Tumuhimbise Seperiano in his affidavit in rejoinder stated that on the 27^th December, 2020, their catechist, Mapenduzi, announced that they had to pick iron sheets donated to their church by the 1^st Respondent and on the 28^th December, 2020 Mapenduzi picked the iron sheets and he offloaded the iron sheets with the help of Kamugisha Denis, Amuri Elias, Sunday Melius.

[172] The allegation was denied by the 1^st Respondent. He stated that he does not know Namara Daniel nor did he instruct, authorize or give him iron sheets to deliver to the above-mentioned churches. He also stated that Denis Bitambo was not his coordinator. He produced 9 witnesses in support of his answer to the allegations of donation of iron sheets to the abovementioned churches.

Mugarura Bernard denied selling or giving any iron sheets to the 1^st Respondent or Bitambo Denis. Bitambo Denis denied ever acting as an agent of the 1^st Respondent or delivering any iron sheets donated by the 1^st Respondent. Mwesigwa Julius denied traveling to Rukungiri Town with Namara Daniel and Mapenduzi Amos to pick the iron sheets.

[173] The Church officials of Bugarama parish which has ecclesiastical jurisdiction over Bugarama Sub-parish and Nyabugando sub-parish (Mwesigwa Julius- head of the laity, Rev. Mwesigwa Bernard-Parish Priest and Tumwine Charles- Chairman for development) all stated that neither Bugarama Sub-parish nor Nyabugando sub-parish received donation of iron sheets from the 1^st Respondent. Bitambo Denis, Mwesigwa Julius, Rev. Mwesigwa Bernard and Tumwine Charles all stated that Gugumisiriza Deus is a lay reader who has never been ordained as a priest. Oworinawe God, the secretary for development and construction at Nyabugando Church of Uganda, stated that the church did not receive any donation of iron sheets from the 1^st Respondent. Tyomurugyendo Wilson stated that he is a church pillar at Bugarama church of Uganda and he knows that the 1^st Respondent did not donate any iron sheets to the church.

[175] The church official of Kyabahanga Catholic Church (Kobusingye Beatress- treasurer and Muhire Taujen-chairperson for development) stated that their church did not receive any donation of iron sheets from the 1^st Respondent.

Submissions of counsel:

[176] Counsel for the Petitioner submitted that the Petitioner presented credible and solid evidence in support of the allegations.

[177] Counsel for the Respondents on the other hand submitted that the Petitioner’s Evidence was full of contradictions and lies. Counsel submitted that the Respondent on the other hand produced witnesses who are senior leaders of the church. They denied the said donations. According to counsel, they are more believable. Counsel further submitted that the Petitioner did not produce any evidence to show that Bitambo Denis was an agent of the 1^st Respondent.

[179] In rejoinder, Counsel for the Petitioner submitted that Namara Daniel clarified in his affidavit in rejoinder that the Bitambo Denis was the coordinator of the 1^st Respondent. 

Determination of the court:

[180] I have carefully examined the evidence presented by the Petitioner and that of the 1^st Respondent in relation to the allegations of giving donation in the form of iron sheets to the abovementioned churches. The evidence of the Petitioner is that the donations of the iron sheets were given by Denis Bitambo, a coordinator of the 1^st Respondent. The 1^st Respondent stated that Denis Bitambo was not his coordinator. The duty was on the Petitioner to prove that Denis Bitambo was an agent of the 1^st Respondent. In Mugema Peter Versus Mudiobole Abedi Nasser, Court of Appeal EPA No. 0016 of 2016 the Court of Appeal held that an agency relationship is not assumed. There has to be evidence that the candidate gave the agent authority to act on his or her behalf, under his instructions and with his consent.

[181] In the instant case, the Petitioner’s witnesses stated that Denis Bitambo, is a known coordinator of the 1^st Respondent. Tumuranze Medard stated that Denis Bitambo told the people who were gathered at Bugarama Church of Uganda that the iron sheets were a donation from the 1^st Respondent. There was however no evidence to prove that 1^st Respondent authorized Denis Bitambo to deliver the said iron sheets or that Denis Bitambo was acting under his instructions, if at all. There was no evidence that it is the 1^st Respondent who bought the iron sheets or hired the truck that delivered the iron sheets or was cited with Bitambo Denis in the campaigns which could have proved that he was his agent. Bitambo Denis himself denied ever acting as an agent of the 1^st Respondent or delivering any iron sheets donated by the 1^st Respondent. Mugarura Bernard denied selling or giving any iron sheets to the 1^st Respondent or Bitambo Denis.  I therefore find that no agency relationship was proved to exist between Denis Bitambo and the 1^st Respondent.

[182] One of the witnesses of the petitioner’s witnesses, Kamugisha Denis, did not appear after he was summoned. I therefore did not place any weight on his evidenece.

[183] As for the other witnesses of the Petitioner, they did not appear to be truthful witnesses.  Tugumisirize Deus in his affidavit sworn on the 16^th March 2021stated that he is a priest. After the Respondent’s witnesses swore affidavits in reply stating that he is not a priest but actually a lay leader, he did not swear any affidavit to explain why he lied to the court in the first place that he is a priest. Namara Daniel in his affidavit in rejoinder admitted that Tugumisirize Deus is not a priest but a lay leader.

[184] Namara Daniel in his affidavit sworn on the 15^th May 2020 stated that he traveled to the Rukungiri Town in a tipper lorry of Otiko Balikudembe together with Mwesigwa Julius and Mapenduzi Amos. In his affidavit in rejoinder, he stated that he rode to town with Mapenduzi Amos to Rukungiri Town where he met Mwesigwa Bernard, Bitambo Denis and Mugarura Bernard. the question is, did he travel with Mwesigwa Julius in the same vehicle to Rukungiri Town or he found Mwesigwa Julius already in Rukungiri Town. The two versions of the statement are not the same. At least in one he was telling the court a lie. His evidence is therefore unbelievable.

[185] Mutambika Denis and Ndamwesigye Gerald did not explain how they came to know that the iron sheets were a donation from the 1^st Respondent. Tugumisiriza Deus stated that he dispatched Namara Daniel to pick the iron sheets. Namara Daniel on the other hand did not state that he was sent by Tugumisiriza Deus. To the contrary, he stated that he received a call from Rev. Mwesigwa Bernada to go and pick the iron sheets from Deus Bitambo. None of the Petitioner’s witnesses stated whether there was any earlier discussion or promise by the 1^st Respondent to donate the iron sheets. Otiko Balikudembe who could have explained who hired his truck and how he went to pick Namara Daniel, Mwesigwa Julius and Mapenduzi Amos was not called as a witness by the Petitioner.

[186] According to Namara Daniel, the iron sheets were first delivered at Bugarama Church of Uganda, then at Kyabahanga Catholic Church and finally at Nyabugando Churh of Uganda. According to Turyatunga Malius, the iron sheets were delivered at Kyabahanga Catholic Church at around 7.00pm. It was not explained by Mutumbuka Denis and Ndamwesiga Gerald what they and others, who they did not disclose, were doing at Nyabugando Churh of Uganda at night, since it was the last place where the iron sheets were alleged to have been delivered.

[187] Tumuranze Medard stated that on that day he went to Bugarama Church of Uganda where he usually goes for church service and yet it was not a day of prayers. Tumuhimbise Seperiano in his affidavit in rejoinder tried to justify why they were at Kyabahanga Catholic Church on a Monday saying that the previous day the catechist had announced that they had to pick iron sheets donated by the 1^st Respondent. He however did not state the time they were to pick the iron sheets and from where.

[188] Tugumisiriza Deus stated that 150 iron sheets were delivered. He did not explain how he came to know of the 150 iron sheets delivered and yet his church is alleged to have received iron sheets last. The Church officials denied receipt of the iron sheets.

[189] I have not found any reason why I should not believe in their evidence especially when the evidence of the Petitioner’s witnesses is simply unbelievable.

[190] I therefore find that the Petitioner failed to prove to the required standard that the 1^st Respondent donated the alleged iron sheet to the 3 different churches as alleged.

• Donation of Ugx 5,000,000/= to Kyabahanga Bataka Kweterana Association:

[191] The Petitioner alleged in the Petition that on the 5^th January, 2021 the 1^st Respondent personally donated Ugx 5,000,000/= to Kyabahanga Bataka Kweterana Association and the money was received by Byakatonda Ben.

[192] The Petitioner produced 6 witnesses who swore affidavits in support of the allegation. The witnesses were; Tumuhimbise Seperiano, Turyatunga Malius, Akankwasa Laison, Byamukama Bernard, Byaruhanga Amos and Behangano Pio. Their evidence was that on the 5^th January, 2021 Kyabahanga Bataka Kweterana Association held a meeting in which the 1^st Respondent gave a speech and donated Ugx 5,000,000/= to the association. The money was received by the Chairperson of the Association, Byakatonda Ben.

[193] The 1^st Respondent denied the allegation. He produced 5 witnesses in support of his case. They were the leaders of the Association (Byakatonda Ben- Chairperson, Basaaja Wilber – Vice Chairperson and Tumusiime Sadress – Treasurer). All of them stated that the 1^st Respondent did not attend the meeting nor did he donate any money to the association.

[194] The 1^st Respondent produced other witnesses; Turyomurugyendo Wilson and Kyabasaaki Glorious who stated that they attended the meeting and that the 1^st Respondent did not attend the meeting nor did he give any donation to the association. Byakatonda Ben stated that attendance of the meeting was restricted to only members. Byakatonda Ben and Turyomurugyendo Wilson attached to their affidavit the list of attendance.

Submissions of Counsel:

[195] Counsel for the Petitioner submitted that Byakatonda Ben’s evidence in cross-examination contradicted the 1^st Respondents witnesses who stated that whoever attended the meeting signed the attendance book.

[196] In reply, Counsel for the Respondents submitted that the Petitioner’s evidence is contradictory and insufficient to support the allegation. According to counsel, Tumuhimbise Seperiano did not state that the money was counted. Turyatunga Malius did not state that she was at the venue of the meeting. Akankwasa Laison and Byaruhanga Amos stated that the money was donated in cash during the speech while Tumuhimbise Seperiano said it was received near the car.

[197] Counsel further submitted that the 1^st Respondent’s witnesses gave evidence that the 1^st Respondent was not the venue. According to counsel, the Petitioner’s witnesses failed to place the 1^st Respondent at the scene. Counsel relied on the case of Ernest Kiiza Versus Kabakumba Labwoni Matsiko Court of Appeal Election Petition Appeal No. 44 of 2016.in which the Court of Appeal held that the Petitioner in an Election petition has the burden to prove their case, not the respondent. Even where the respondent raises the defense of alibi, the Petitioner still had the burden to place the witness at the scene.

[198] In rejoinder, counsel for the Petitioner submitted that all the Petitioner’s attended the meeting as per the attendance book.

Determination of the court:

[199] I agree with the position of the law as stated by counsel for the Respondents that Petitioner in an Election petition has the burden to prove their case, not the respondent. Even where the respondent raises the defense of alibi, the Petitioner still had the burden to place the witness at the scene. In the instant case, the 1^st Respondent denied giving the donation or being present at the scene, at Bugarama church of Uganda where the meeting of Kyabahanga Bataka Kweterana Association took place. The Petitioner had the duty to place him at Bugarama Church of Uganda on the 5^th January, 2021. 

[200] The Petitioner’s witnesses; Tumuhimbise Seperiano, Turyatunga Melius, Behangana Pio and Bernard Byamukama stated that the 1^st Respondent attended the meeting and addressed the members. Akankwasa Laison and Byaruhanga Amos stated that the 1^st Respondent was invited as a guest of honor and he gave a speech. The 1^st Respondents witnesses; Basaaja Wilber, Byakatonda Ben, Tumusiime Sadress stated that the 1^st Respondent is not their member and he did not attend the meeting. Kyabasaaki Glorous and Turyomurugyendo Wilson stated that the 1^st Respondent did not attend the meeting. Turyomurugyendo Wilson produced in evidence the list of attendance of the day. In rejoinder, Bernard Byamukama stated that when the 1^st Respondent came to the meeting, Byakatonda Ben gave him a copy of the constitution to read and when he gave his speech, he said he liked the constitution but it does not admit members from outside otherwise he would have joined.

[201] I have carefully read the affidavit of Turyatunga Melius, nowhere does she indicate that she attended the meeting. She does not also appear on the list of attendance. Her source of knowledge of what happened at the meeting is therefore not known. Although Bernard Byamukama, in his affidavit in rejoinder stated that the 1^st Respondent commented on their constitution, that evidence is doubtful since all the other witnesses did not make any mention of it. The evidence as regards the time when the 1^st Respondent is alleged to have come to the meeting is also contradictory. Bernard Byamukama in his affidavit sworn on the 15^th May 2021 stated that the 1^st respondent came into the meeting at around 12.00pm. However, in his affidavit in rejoinder, he stated that the 1^st Respondent came at around 10.30 am.  

[202] The evidence of the witnesses of the Petitioner as to where the money was received from is contradictory. Akankwasa Laison and Byaruhanga Amos stated that the money was donated in cash during the speech of the 1^st Respondent while Tumuhimbise Seperiano says it was received near the car of the 1^st Respondent. Byamukama Bernard and Behangano Pio stated that the money was received at the car of the 1^st Respondent. In his affidavit in rejoinder, Byamukama Bernard stated that when the 1^st Respondent concluded his speech, he moved out with Byakatonda Ben and Tumusiime Adress to his car where he handed over the Ugx 5,000,000/= in cash and then he left. According to Byamukama Bernard, after the 1^st respondent left, Tumusiime Adress came back to the meeting and informed them that she had received the money. He did not state that Tumuhimbise Seperiano or Behangano Pio also went to the car from where the money was given. The source of the information of Tumuhimbise Seperiano or Behangano Pio as to where the money was given from is not known.

[203] Bernard Byamukama in his affidavit sworn on the 15^th May 2021 stated that the money which was given by the 1^st Respondent was in the denomination of 50,000/=. From his affidavit in rejoinder, he clearly did not follow the 1^st Respondent to the car where the money is alleged by him to have been given. How he got to know the denomination of the money is very doubtful.

[204] The witnesses of the Petitioner also gave different account of the alleged speech of the 1^st respondent. Although Tumuhimbise Seperiano, Bernard Byamukama and Behangano Pio stated that the 1^st Respondent reminded them of how Kyabahanga bridge was constructed as a result of his efforts, the other witnesses of the petitioner do not mention this. If indeed all the witnesses attended the same meeting, on the same day, at the same time, there is no reason why there should be such divergence in their evidence.

[205] Counsel for the Petitioner attacked the evidence of Byakatonda Ben who stated that on that day his work was to pass the attendance register for members to sign and that every person who attended signed in the attendance sheet and the evidence of Turyomurugyendo Wilson who stated that attendance of the meeting was only restricted to members and yet when he was cross-examined he admitted that his name was not in the attendance list. I have looked at the record of proceeding of the day, Byakatonda Ben explained that it was only him who did not sign on the attendance list because he had signed the minutes of the previous meeting.

[206] From the above analysis of the evidence presented to the court, my finding is that the Petitioner failed to place the 1^st Respondent at the scene where the alleged donation of the Ugx 5,000,000/= took place. The Petitioner also failed to prove, by cogent evidence, that the 1^st Respondent gave the said donation to Kyabahanga Bataka Kweterana Association.

• Donation of Ugx 200,000/= to the youth of Bugarama:

[207] The Petitioner alleged in the Petition that on the 5^th January, 2021 the 1^st Respondent, while at the meeting of Kyabahanga Bataka Kweterana Association, donated Ugx 200,000/= to the youth of Bugarama to thank them for winning a sports tournament he had organized.

[208] The Petitioner produced 6 witnesses who swore affidavits in support of this allegation. The witnesses were; Tumuhimbise Seperiano, Turyatunga Melius, Akankwasa Laison, Byamukama Bernard, Byaruhanga Amos, Behangano Pio. Their evidence was that in the same meeting of Kyabahanga Bataka Kweterana Association held on the 5^th January, 2021 which was attended by the 1^st Respondent and in which he gave a speech, the 1^st Respondent donated Ugx 200,000/= to the youth of Bugarama as appreciation for winning the sports tournament and the said money was received by Akankwasa Laison.

[209] Bernard Byamukama, in his affidavit in rejoinder, stated that the 1^st Respondent talked about the good performance of Bugarama youth in the football tournament and that the 1^st respondent counted 200,000/= which he handed over to Akankwasa Liason in his presence and in the presence of other members of Kyabahanga Bataka Kweterana Association. Akankwasa Laison, in his affidavit in rejoinder, stated that the money was handed over to him in his capacity as team manager and it was handed over to him in the presence of the members of Kyabahanga Bataka Kweterana Association.

[210] The 1^st Respondent denied the allegation. He produced 5 witnesses in support of his case. They were; Turyomurugyendo Wilson, Basaaja Wilber, Byakatonda Ben, Kyabasaaki Glorious and Tumusiime Sadress. They all stated that the 1^st Respondent did not attend the meeting nor did he donate Ugx 200,000/= to the youth of Bugarama.

Submissions of Counsel:

[211] Counsel for the Petitioner submitted that the Petitioner’s witnesses testified that the 1^st Respondent donated the Ugx 200,000/= to the youth of Bugarama which money was received by Laison Akankwasa. According to counsel, the affidavit evidence of the Petitioner’s witnesses is cogent and uncontested.

[212 In reply, Counsel for the Respondents submitted that the Petitioner failed to place the 1^st Respondent at the scene of the alleged donation. Counsel further submitted that the allegation of the donation lacked specificity.  Petitioner’ witnesses do not mention which youth the money was donated to and whether the unspecified youth are voters. They do not mention the alleged sports tournament they were allegedly being thanked for and whether it was organized by the 1^st Respondent. Counsel relied on the case of Ernest Kiiza Versus Kabakumba Labwoni Matsiko Court of Appeal Election Petition Appeal No. 44 of 2016 for the proposition of the law that failure to mention who was allegedly bribed weakens the evidence and the case of Hon. Kevina Taka Wandera Versus Macho Geoffrey and 2 Athers, Court of Appeal Election Petition Appeal No. 35 of 2016 for the proposition of the law that where  the Petitioner’s allegations lack specificity, the allegation is held as unproved.

[213] In rejoinder, counsel for the Petitioner submitted that the witnesses of the Petitioner stated that the money was given to the youth of Bugarama for performing well during the tournament. Counsel submitted that Akankwasa Liason received the money as team manager.

Determination of the court:

[214] I have already pronounced myself on the failure by the Petitioner to place the 1^st Respondent at Bugarama Church of Uganda on the 5^th January, 2021 while deciding on the allegations of donation of Ugx 5,000,000/=. I need not repeat myself since the alleged donation of the Ugx 200,000/= to the youth of Bugarama is said to have taken place on the same day, at the same meeting and the Petitioner’ witnesses and the Respondent’s witnesses are the same. I will adopt the same reasons and find that the Petitioner has failed to place the 1^st Respondent at Bugarama Church of Uganda on the 5^th January, 2021 where he was alleged to have given the donation of the Ugx 200,000/= to the youth of Bugarama.

[214] I will however add that, I agree with the position of the law as stated by counsel for the Respondents regarding failure to mention to whom the money was allegedly donated to. I have already pointed out above, citing the case of Peter Mugema Versus Mudiobole Abedi Nasser, Court of Appeal Election petition Appeal No. 30 of 2011 in which Kasule JA held that by enacting section 68(7) and (8) of the PEA, the legislature intended to restrain candidates in Parliamentary elections, during the campaign period from, through fundraising activities, influencing voters to vote one way or the other at the elections by being paid money or being given other material objects and considerations.

[215] In the instant case, there is no evidence of who the youth of Bugarama are, whether they are of voting age, how many they are and how they could be influenced by the alleged donation if any, which tournament was organized and when it was organized. Without such specificity, the allegation is held as unproved.

[216] The exact place where the alleged Ugx 200,000/= was given is also not clear. From the evidence of Bernard Byamukama and Akankwasa Laison the 1^st Respondent handed over the money in their presence and in the presence of other members of Kyabahanga Bataka Kweterana Association. Those other members are not stated. The question that remains unanswered is whether the 1^st Respondent gave the money from the meeting or from his car as was alleged in relation to the Ugx 5,000,000/=.

[217] My finding therefore is that this allegation that the 1^st Respondent, gave the donated Ugx 200,000/= to the youth of Bugarama is not proved to the satisfaction of the court.

• Donation of Ugx 1,000,000/= and promise of 50 bags of cement to Kateramo Church of Uganda:

[218] The Petitioner alleged in the Petition that on the 10^th January, 2021 while at Kateramo Church of Uganda, Kigonyi, the 1^st Respondent personally and publicly donated Ugx 1,000,000/= towards the building fund of the said church and also promised 50 bags of cement with an objective of influencing voters.

[219] The Petitioner produced 7 witnesses who swore affidavits in support of this allegation. The witnesses were; Kusiima Junior, Ainebyona Naboth, Amanya Perez,Natukunda Maureen, Katushabe Julius, Tumukurate Samuel and Yoromu Sarturday. The summary of their evidence is that on the 10^th January, 2021 they attended church service at Kateramo Church of Uganda. The church service was led by Rev. Nelson Mwesigwa. The 1^st Respondent also attended the service and he gave a speech asking the congregation to vote for him. The 1^st Respondent donated Ugx 1,000,000/= and promised 50 bags of cement toward the construction of the church.

[220] The 1^st Respondent denied the allegation. He stated that on the 10^th January, 2021 he attended the thanksgiving service which was for his friend Tumushabe Wilber wherein he made a speech. During his speech, Turyagumanawe Dinah, head of laity and senior Warden of the church requested him to contribute to the church construction project but he informed the congregation that he could not make a contribution during election period because it is prohibited by law.

[221] The 1^st respondent produced 4 witnesses who swore affidavits to support his answer to the petition. They were; Nuwagaba Hebert, the church priest of Kateramo Church of Uganda, Rev. Mwebaze Nelson who led the service on that day, Tumushabe Wilber who invited the 1^st Respondent for his thanksgiving and Turyagumanawe Dinah head of laity and senior Warden of the church. They all confirmed the statement of the 1^st respondent and denied that he donated any money to the church on that day.

Submissions of Counsel:

[222] Counsel for the Petitioner submitted that the Petitioner’s witnesses proved that the 1^st Respondent donated Ugx 1,000,000/= to Kateramo Church of Uganda and promised 50 bags of cement.

232] In reply, counsel for the Respondent submitted that the occasion was not a thanksgiving event, the Petitioner’s witnesses did not state that they saw money being counted. None of the witnesses stated that the cement was delivered. Counsel submitted that the evidence of the 1^st Respondent and his witnesses was not rebutted. It is more believable.

Consideration and determination of the court:

[224] Upon careful examination of the evidence presented by the Petitioner and that of the 1^st Respondent, it is basically the words of the Petitioner’s witnesses against those of the Respondent and his witnesses. The Petitioner did not produce any evidence that the cement which was promised was delivered. I find the evidence of Ainembabazi Naboth and Natukunda Maureen that the money was in the denomination of 10,000/= unbelievable without any evidence that there was counting of the money. Apart from Sturday Yoromu, none of the witnesses of the petitioner stated who received the money. If indeed they all attended the same service, at the same place, there is no reason why they did not state so.

[225] The evidence of the Petitioner’s witnesses on the alleged request for donation by Rev. Mwebaze Nelson varied. Ainembyona Naboth, Amanya Perez, Natukunda Moureen stated that Rev. Mwebaze Nelson stated that the church needed 22 million for construction. According to Kusiima Junior, Samuel Tumukurate and Sarturday Yoramu, Rev. Mwebaze Nelson said they were building and they needed contribution. They make no mention the 22 million. Katushabe Julius does not even state that Rev. Mwebaze Nelson asked for any contribution.  

[226] I however have found no reason to doubt the evidence of the 1^st Respondent’s witnesses particularly the senior leaders of the church (Nuwagaba Hebert -the church priest, Rev. Mwebaze Nelson – parish priest and Turyagumanawe Dinah, head of laity and senior Warden of the church). They denied that the 1^st Respondent donated any money to the church on that day.

[227] I accordingly find that this allegation of donation at Kateramo Church of Uganda against the 1^st Respondent was not proved.

• Donation of 100 iron sheets to Kateramo Revival Mission Church:

[228] The Petitioner alleged that on the 10^th January, 2021 while at Kateramo Revival Church, the 1^st Respondent personally and publicly promised a donation of 100 iron sheets which were delivered on the 13^th January 2021. The 1^st Respondent in his Answer to the Petition denied the allegation.

[229] The Petitioner relied on 4 witnesses who swore affidavits in support of this allegation. The witnesses were; Turyasingura Justus, Natuhwera Levi, Ampaire Aphia and Twinomujuni Pius. They stated that on 10^th January, 2021 they attended the church service at Kateramo Revival Church which was led by Pastor Edison Byaruhanga. After service, they were told to wait for the 1^st Respondent who wanted to speak to them. The 1^st respondent later came, gave a speech asking the congregation to vote for him and made a donation.

[230] The 1^st Respondent denied the allegation. He relied on 2 witnesses Paster Edison Bryaruhanga and Byamukama Gidion who both denied that the 1^st Respondent made any donation of 100 iron sheets to the church. Paster Edison Bryaruhanga stated that the 1^st Respondent came to the church in the afternoon. 

Submissions of counsel:

[231] Counsel for the Petitioner submitted that the donation of the iron sheets was proved by the witnesses of the Petitioner.

[232] In reply, Counsel for the Respondents submitted that the allegation was not proved. They pointed out that in the Petition, the Petitioner mentioned 100 iron sheets and yet in the affidavit in support of the Petition, the Petitioners made reference to 50 iron sheets, which they submitted was a contradiction. Counsel further submitted that apart from Natuhwera Levi and Twinomujuni Pius, the rest of the Petitioner’s witnesses do not state who delivered the iron sheets and whether they were present when they were delivered. Counsel also pointed out that none of the witnesses stated that the iron sheets were delivered with the instructions, knowledge, consent or approval of the 1^st Respondent. Counsel pointed out that Natuhwera Levi did not mention what she was doing at the church on the day the iron sheets were delivered and that Pastor Edison Bryaruhanga denied the donation. According to counsel, given his religious standing, he is a more believable.

[233] In rejoinder, Counsel for the Petitioner submitted that the contraction in the Petition and the affidavit in support was minor and was cured by the affidavit of the other witnesses of the Petitioner. Counsel further submitted that the affidavits in support of the petition give substance of the issues raised in the petition. Counsel relied on the case of Chebrot Stephen Chemoiko Versus Soyekwo Kenneth and Another, Court of Appeal Election Petition Appeal No. 56 of 2016.

[234] Counsel further submitted that Twinomujuni Pius clarified in his affidavit in rejoinder that the iron sheets were delivered on the 13^th January, 2021 on a truck belonging to Frank Rwengyengye and he (Twinomujuni Pius) was among the people who offloaded the iron sheets.

Determination of the court:

[235] From the evidence presented by the Petitioner and the 1^st Respondent, it is common ground that the 1^st Respondent on the 10^th January, 2021 was at Kateramo Revival Church. It is also common ground that the church service on that day was led by Paster Edison Bryaruhanga.

[236] I have noted that although Turyasingura Justus, Natuhwera Levi and Ampaire Aphia stated that the 1^st Respondent in his speech announced a donation of 100 iron sheets. They do not state that he promised to roof the church. Twinomujuni Pius on the other hand stated that the 1^st Respondent promised that he was going to roof the church. Nowhere in his statement does he state that the 1^st Respondent mentioned iron sheets and the specific number. Petitioner in his affidavit in support of the petition mentioned the number of the iron sheets to be 50 and yet Turyasingura Justus, Natuhwera Levi and Ampaire Aphia mentioned 100. Although counsel for the petitioner downplayed this contradiction referring to it as minor, I do not agree. Clearly the issue as to whether the iron sheets were donated and the number is in issue. No explanation was given why he mentioned a different number.

[237] I have also noted that Turyasingura Justus and Ampaire Aphia stated that the iron sheets were delivered on the 13^th January 2021 but they did not state that they were there when they were delivered. They did not explain how they came to know when, where, how and by who the iron sheets were delivered. Natuhwera Levi and Twinomujuni Pius stated that the iron sheets were delivered on the 13^th January 2021 in their presence. Twinomujuni Pius stated that the iron sheets were delivered using the truck belonging to Frank Rwenzengye. It is not clear why they were at the church on that day on a Monday or who had told them to be there on that day. Could they have been told of the date of the delivery that is why they were at the church to offload, this question remained unanswered. The driver of the truck who delivered the iron sheets was not mentioned nor did he swear the affidavit indicating who sent him with the alleged iron sheets. This would have shed light whether the alleged iron sheets were from the 1^st Respondent or with his approval or consent.

[238] The content of the speech of the 1^st Respondent as mentioned by the Petitioner’s witnesses varied. It is only Twinomujuni Pius who stated that the 1^st Respondent stated that people should pray the way they want, that he the 1^st Respondent had met pastors at his home, that 1^st Respondent talked about how he supported development in the area that is why he had come back to stand for Member of Parliament, that he does not do development based on religion and that he remarked that a basket full of gifts goes back to the owner and the hand ha gives receives. If all the witnesses of the petitioner attended the same occasion, at the same time and place there is no reason why only Twinomujuni Pius could have remembered those words.

[239] I have found no reason to disbelieve the evidence of the 1^st Respondents, Paster Edison Bryaruhanga is the one who led the service and Byamukama Gidion attended the same event. They both denied that the 1^st Respondent made the donation of the iron sheets.

[240] I consequently find that the Petitioner failed to prove the allegation of giving donation at Kateramo Revival Church.

Allegations of bribery:

• Bribery of Glorious Kyabasasi with Ugx 300,000/=

The Petitioner alleged that on the 5^th January, 2021 at a meeting held at Bugarama Church of Uganda for Kyabahanga Bataka Kweterana Association, the 1^st Respondent while campaigning at the said gathering, gave Ugx 300,000/= to Glorious Kyabasasi. The 1^st Respondent in his Answer to the Petition and in the affidavit in support of the answer to the petition denied the allegation.

The Petitioner produced 6 witnesses who swore affidavits in support of this allegation. The witnesses were; Tumuhimbise Seperiano, Turyatunga Melius, Akankwasa Laison, Byamukama Bernard, Byaruhanga Amos and Behangano Pio. Their evidence was that in the meeting of Kyabahanga Bataka Kweterana Association held on the 5^th January, 2021 which was attended by the 1^st Respondent and in which the 1^st Respondent gave a speech, the 1^st Respondent gave Ugx 300,000/= to Glorius Kyabasaasi.

The 1^st Respondent denied the allegation. He produced 5 witnesses in support of his case. They were Turyomurugyendo Wilson, Basaaja Wiber, Byakatonda Ben, Kyabasaaki Glorious and Tumusiime Sadress. They all stated that the 1^st Respondent did not attend the meeting nor did he give Ugx 300,000/= to Kyabasaaki Glorious.

Submissions of Counsel:

Counsel for the Petitioner submitted that the Petitioner’s witnesses testified that the 1^st Respondent gave Ugx 300,000/= to Kyabasaaki Glorious purportedly as a condolence and yet she lost her husband 10 years ago. According to counsel, the evidence of the Petitioner’s witnesses is cogent and uncontested.

In reply, Counsel for the Respondents submitted that none of the Petitioner’s witnesses stated that the money was counted in order to know that it was Ugx 300,000/=, they do not state the denomination of the money. They submitted that the 1^st Respondent denied giving the bribe and since the person who was alleged to have been bribed denied being bribed and her evidence was not challenged, it means, according to counsel, that the allegation was not proved.

Determination of the court:

[267] Bribery is an electoral offence/malpractice, proof of any incidence, however insignificant it might be, has the effect of nullifying an election. The offence is provided for under Section 68 (1) of the PEA which provides that;

“Any person who, either before or during an election with intent, either directly or indirectly to influence another person to vote or to refrain from voting for any candidate, gives or provides or causes to be given or provided any money, gift or other consideration to that other person, commits the offence of bribery and is liable on conviction to a fine not exceeding seventy two currency points or imprisonment not exceeding three years or both.”

[268] Under Section 68(4) of the same Act, the offence under subsection (1) is an illegal practice. Section 68(1) of the PEA has to be read together with Section 61(1) (c) of the PEA which requires that the offence must have been committed by a candidate personally or with his knowledge and consent or approval in order to constitute a ground for setting aside an election. Therefore, the ingredients that the petitioner needs to prove are;

1. That 1^st Respondent personally or with his knowledge and consent or approval gave money, gift or other consideration.
2. That the giving was to a registered voter.
3. That the giving was with the intent to influence the voter to vote or to refrain from voting. 

The court is required to subject each allegation of bribery to thorough and high-level scrutiny.  

[269] In the instant case, I have already pronounced myself on the failure by the Petitioner to place the 1^st Respondent at Bugarama Church of Uganda on the 5^th January, 2021 while deciding on the allegations of donation of Ugx 5,000,000/=. I need not repeat myself since the allegation that the 1^st Respondent gave Ugx 300,000/= to Kyabasaaki Glorious is said to have taken place on the same day, at the same meeting and the Petitioner’s witnesses and the Respondent’s witnesses are the same.  I will adopt the same reasons and find that the Petitioner failed to place the 1^st Respondent at Bugarama Church of Uganda on the 5^th January, 2021 where he was alleged to have given a bribe of Ugx 300,000/- to Kyabasaaki Glorious.

[270] I have examined the evidence specifically in relation the giving of Ugx 300,000/= to Kyabasaaki Glorious. Bernard Byamukama stated that in the course of the 1^st Respondent’s address at the meeting, Byakatonda Ben reminded the 1^st Respondent of the pledge of Ugx 300,000/= 1^st he made at the burial of the husband of Kyabasaaki Glorious and the 1^st Respondent immediately counted the money and handed it over to Kyabasaaki Glorious in the presence of the members in attendance. This would suggest that the money was given in the meeting. All the other witnesses of the Petitioner do not mention this fact. Bernard Byamukama did not state the denomination of the money, if at all he saw the 1^st Respondent count the money. Tumuhimbise Seperiano, Turyatunga Melius and Byaruhanga Amos stated that the 1^st Respondent apologized for the delay to give the money. The other witnesses did not make any mention of this.

[271] Given the fact that Kyabasaaki Glorious denied being bribed and the inconsistencies in the evidence of the Petitioner’s witnesses, I have no reason to doubt her. I therefore find that this allegation that the 1^st Respondent bribed Kyabasaaki Glorious was not proved.

• Bribe of Ugx 500,000/= at Moses Kwijuka’s home:

[272] The Petitioner that on the 6^th January, 2021 at the home of Moses Kwijuka in Kyakagyeme Sub-county, the 1^st Respondent gave Ugx 500,000/= to be distributed among the individual voters who had been mobilized by Moses Kwijuka and had gathered at Moses Mwijuka’s home to meet the 1^st Respondent.

[273] The Petitioner produced 5 witnesses who swore affidavits in support of this allegation. They were; Kashumbusa Julius, Muhwezi Amon, Byaruhanga Kenneth, Twinamatsiko Annet and Orikiriza Anniset. The summary of their evidence is that on the 5^th January 2021, Moses Kwijuka made an announcement that the 1^st Respondent would be at his home and they were to meet him. On the 6^th January, 2021 they went to the home of Moses Kwijuka where they found the 1^st Respondent who asked them to vote for him. They stated that the 1^st Respondent gave them Ugx 500,000/= in cash so that they vote for him. According to them, those who were present got each Ugx 3,500/=.

[274] The 1^st Respondent denied the allegation. He produced 1 witness, Moses Kwijuka who denied that there was any meeting at his home wherein he hosted the 1^st Respondent. He denied receiving any money from the 1^st Respondent to give to anybody.

Submissions of counsel:

[275] Counsel for the Petitioner submitted that all the Petitioner’s witnesses were registered voters. They are credible and did not have any motive against the 1^st respondent. Counsel submitted that Moses Kwijuka in cross-examination admitted being a friend of the 1^st Respondent. he could not be expected to tell the truth.

[276] In reply, counsel for the Respondents submitted that the evidence of the Petitioner was insufficient to prove the allegation. They failed to place the 1^st Respondent at the scene. Counsel pointed out that the Petitioner’s witnesses did not mention the means of invitation or announcement used by the Moses Kwijuka to invite them to his home and how they got to know that the alleged money was Ugx 500,000/=. Counsel further submitted that athough Kashumbusa Julius and Twinamatsiko Annet stated that all those who were present got money, Muhwezi Amon and Byaruhanga Kenneth said they did not get the money.

Determination of the court:

[277] I have subjected the evidence of the Petitioner and that of the 1^st Respondent to thorough scrutiny. I agree with the submissions of counsel for the Respondents that the petitioner’s witnesses contradicted themselves since Kashumbusa Julius and Twinamatsiko Annet stated that everybody who attended the meeting got money and yet Muhwezi Amon and Byaruhanga Kenneth who alleged that they attended the meeting stated that they did not receive the money. I also agree the Petitioner’s witnesses did not mention the means of invitation used by the Moses Kwijuka to inform them of the meeting. They did not state how they got to know that the money was Ugx 500,000/=.

[278] I find it inconceivable that out of the more than 100 people alleged to have gathered at the home of Moses Kwijuka, the Petitioner’s witnesses could only identify themselves and not any other person. Moses Kwijuka denied organizing the meeting at his home. Although counsel for the Petitioner submitted that he cannot be expected to tell the truth because he is a friend of the 1^st Respondent, I do not agree. He was not shaken during cross-examination. There is nothing on the court record to show that he was not telling the truth. The fact that he stated that he is a friend of the 1^st Respondent is not a ground in itself to conclude that he is not a truthful witness. I have no reason to disbelieve his evidence given the nature of the contradictions in the petitioner’s witnesses.

[279] I therefore find the Petitioner failed to prove the allegation of the bribery at Moses Kwijuka’s home.

• Bribe of Hope Kemirembe Ngabirano with Ugx 100,000/=:

[280] The Petitioner alleged that on the 8^th January, 2021 the 1^st Respondent through his agent, Edwin Kuteesa, paid Ugx 100,00/= to Hope Kemirembe Ngabirano, the petitioner’s agent, to lure her away from campaigning for the Petitioner.

The Petitioner produced one witness, Hope Kemirembe Ngabirano, who stated that on the 8^th January, 2021 she received a telephone call from the 1^st Respondent who informed her that he got information from one of his agents called Edwin Kuteesa that she had a large following of voters and he requested her to work with him. The 1^st Respondent promised to send his agent, Edwin Kuteesa, to take for her money for onward transmission to her supporters so that they could vote for him. The money was also consideration to persuade her to leave campaigning for the petitioner. She stated that prior to talking to the 1^st Respondent, Edwin Kuteesa had called her to alert her that the 1^st Respondent was going to call he. She further stated that on the 12^th January, 2021 Edwin Kuteesa sent her Mobile money Ugx 100,000/= on her phone 0774153805 using Telephone No. 0772972704 on behalf of the 1^st Respondent.

[281] The 1^st Respondent denied the allegation. He produced one witness, Edwin Kuteesa Kaziriri, who denied that he was an agent of the 1^st Respondent or that he sent money to Hope Kemirembe Ngabirano on behalf of the 1^st Respondent. He stated that he never received any instructions from the 1^st Respondent to send any money to Hope Kemirembe Ngabirano.

Submissions of counsel:

[282] Counsel for the Petitioner submitted that the Petitioner produced evidence of Hope Kemirembe Ngabirano in which the 1^st Respondent promised a reward to her and subsequently sent her Ugx 100,000/=.

[283] In reply, counsel for the Respondents submitted that this allegation and the evidence adduced to support it is of the weakest kind. Counsel submitted that Hope Kemirembe Ngabirano did not state that she was given money to vote for the 1^st Respondent. Counsel submitted that the petitioner did not provide any call logs as proof of the calls or the mobile money print out to prove that money was sent to her. Counsel relied on the case of Betty Muzania Bamukwasa Versus Matsiko Winfred Komuhangi and 2 others Court of Appeal Election Petition Appeal No. 65 of 2016 in which the Court of Appeal faulted the Appellant for not producing documentary evidence in the form of mobile money print outs to prove money sent.

[284] Counsel further summitted that Hope Kemirembe Ngabirano is a self-confessed supporter of the Petitioner. She is therefore a partisan witness and her evidence is suspect and yet there was no independent evidence which was adduced by the Petitioner to corroborate her evidence.  

Determination of the court:

[285] Upon carefully reading the Petition, I noticed that the petitioner alleged that the Ugx 100,000/= was paid on the 8^th January 2021. However, the Petitioner in his affidavit in support stated that he was informed by Hope Kemirembe Ngabirano that the money was paid on the 12^th January 2021. Hope Kemirembe Ngabirano also stated in her affidavit that the money was paid on the 12^th January 2021. There is thus a serious discrepancy between the petition and the affidavit in support.

[286] I have also noted that while the Petitioner in his affidavit, sworn on the 17^th March 2021, stated that Hope Kemirembe Ngabirano informed him that the Ugx 100,000/= was paid for the purpose of influencing her to campaign for the 1^st Respondent, Hope Kemirembe Ngabirano swore her affidavit on the 15^th May 2021 in which she stated that the purpose of the money was for onward transmission to her supporters so that they would vote for the 1^st Respondent, in addition to that the money being consideration to persuade her to leave campaigning for the petitioner.

[287] I find this contradiction deliberate, it appears to me that Hope Kemirembe Ngabirano after realizing that the reason for giving the money which she had given to the Petitioner would not fit within the definition of bribery, decided to add another reason claiming that the money was for onward transmission to her supporters so that they would vote for the 1^st Respondent. I find this contradiction very material rendering the evidence of both the Petitioner and that of Hope Kemirembe Ngabirano unbelievable.

[288] I agree with the submissions of counsel for the Respondents that if at all Edwin Kuteesa and the 1^st Respondent telephoned Hope Kemirembe Ngabirano and if at all Edwin Kuteesa sent her the money, there is no reason why she did not produced documentary proof of the phone call by way of call logs or mobile money print out to confirm that indeed money was sent to her.

[289] I also agree with the submissions of counsel for the Respondents that Hope Kemirembe Ngabirano is a self-confessed supporter of the Petitioner, thereby making her a partisan witness and her evidence is suspect. There was need of some independent evidence to corroborate he evidence, which was not provided by the Petitioner.    

[290] For the reasons stated above, I find that the Petitioner failed to prove to the required standard that the 1^st Respondent paid Hope Kemirembe Ngabirano any bribe.

• Bribery incident at Nyakinengo Secondary School:

[291] The Petitioner alleged that on the 10^th January, 2021 at Nyakinengo Secondary School, in the school main hall, the 1^st Respondent personally and publicly gave Ugx 1,800,000/= to be shared among a gathering of voters that had been mobilized to meet him at the said venue and the money was shared.

[292] The Petitioner produced 5 witnesses who swore affidavits in support of this allegation. The witnesses were; Ayebare Nickson, Abaho Mark, Katunguka Geofrey, Kyomuhendo Priscilla and Caleb Turuahabwe. The summary of their evidence is that on the 10^th January, 2021 they attended a meeting at the main hall of Nyakinengo Secondary School having been mobilized by Julius Tukakira. In that meeting, the 1^st Respondent addressed them, asked them for their votes and gave Ugx 1,800,000/= to Julius Tukakira who distributed it to them. Each person received 20,000/=.

[293] The 1^st Respondent denied the allegation. He stated that the people he met at the school were his supporters who were organized by Julius Tukakira and he did not give them any money.  He produced 6 witnesses in support of his case. The witnesses were; Asimwe Julius Actor, Beyunga Kenneth Baguma, Julius Tukakira, Kobusingye Mariam, Mugarura Boaz and Tumushabe Francisco

[294] Asimwe Julius Actor is the Director of Nyakinengo Secondary School. He stated that Julius Tukakira requested for the hall at his school to be used by NRM supporters to meet the 1^st Respondent which request he accepted. Beyunga Kenneth Baguma stated that during the campaigns he moved with the 1^st Respondent in Nyakinengo Sub County where he conducted meetings and he was the one who coordinated the meeting at Nyakinengo Secondary School. Julius Tukakira stated that he was the coordinator of the 1^st Respondent in Nyakinengo Sub County and that he secured the venue for the meeting. Kobusingye Mariam, Mugarura Boaz and Tumushabe Francisco said they are NRM supporters who attended the meeting. All the witnesses stated that they attended the meeting. They denied that the 1^st Respondent gave any money to the people who attended the meeting.   

Submissions of counsel:

[295] Counsel for the Petitioner submitted that this incidence was proved by the Petitioner’s witnesses who are all registered voters and their evidence was not challenged. Counsel submitted that Asimwe Julius Actor’s evidence lack credibility because he claimed to be a director of Nyakinengo Secondary School and supervises all staff and yet he deponed an affidavit as an illiterate.

[296] In reply, counsel for the Respondents submitted that the Petitioners witnesses did not state how they came to know that the people who attended the meeting were 90 since they did not count them and how they came to know that the money was 1,800,000/= since it was not counted.

[297] Counsel further submitted that since all the witnesses of the Petitioner are confessed to have received the alleged bribe, their evidence is not conclusive proof of bribery. Clear, unequivocal and independent proof is required. Counsel relied on the case of Col (Rtd) Dr. Kizza Besigye Vesus Electoral commission and Another Supreme Court Presidential Election Petition No. 1 of 2006.

Counsel further submitted that all the witnesses of the 1^st Respondent attended the meeting and denied that money was given to anybody in the meeting.

Determination of the court:

[298] I have considered the fact the Petitioner’s witnesses in this case admitted taking the alleged money given to them by the 1^st Respondent, which money according to them was a bribe. The position of the law is that their evidence needs independent corroborative evidence in order to stand. Bribery is a criminal offence in which both the giver and the receiver are culpably responsible thereby making the receiver an accomplice, hence the need for corroboration. See the case of Spencer William Versus Abbas Agaba Mugisha and Another Court of appeal Election Petition Appeal No.6 of 2016. The Petitioner did not provide any such independent witness.

[299] On the other hand, I find that Asimwe Julius Actor was an independent witness. He did not confess to being a supporter of the 1^st Respondent. He stated that he attended the meeting in his capacity as the director of the school. I have believed his evidence that 1^st Respondent did not give any money to the Julius Tukakira to distribute.

[300] I do not also agree with the submission of counsel for the Petitioner that that the evidence Asimwe Julius Actor’s lacks credibility because he claimed to be a director of Nyakinengo Secondary School who supervises all staff and yet he deponed an affidavit as an illiterate. First, there is no legal requirement that a director of a school must be literate. Secondly, the Petitioner did not produce evidence to prove that Asimwe Julius Actor was not the director of the school or cross-examine him on his affidavit.

[301] In addition, none of the witnesses of the Petitioner stated how they came to conclude that the people who attended the meeting were 90. The witnesses do not also state how they came to conclude that the alleged money was Ugx 1,800,000/= without the same being counted. They do not state that the 1^st Respondent announced the amount of money he had allegedly given.

[302] I find it unbelievable that Ayebare Nickson, Abaho Mark, Katunguka Geofrey, Kyomuhendo Priscilla who swore affidavits on the 16^th March 2021, not too long after the elections, did not state the denomination of the money and how it was distributed and yet Caleb Turuahabwe who swore his affidavit on a much later date, that is on the 15^th May 2021 stated that the denomination of the money was Ugx 50,000/= and that they were divided in groups of 5 and each group was given Ugx 100,000/=. In my view, if Caleb Turuahabwe’s evidence was the true account of what took place on the 10^th January, 2021, there was no reason why the other witnesses who swore affidavits before him did not state those facts.

[303] For the reasons stated above, I find the evidence of the witnesses Petitioner not believable and uncorroborated. The petitioner thus failed to satisfy me that the 1^st Respondent bribed voters at Nyakinengo Secondary School in the school as alleged.

• Bribery incident at the home of Canon John Matongo:    

[304] The Petitioner alleged that on the 12^th January, 2021 at the home of Canon John Matongo, the 1^st Respondent personally and publicly gave to Canon John Matongo Ugx 200,000/= and also gave out Ugx 2,000,000/= to be shared by all individual voters who had been mobilized to gather at the said home.

[305] The Petitioner produced 6 witnesses who swore affidavits in support of this allegation. The witnesses were; Wilson Nkawazibwe, Tiryeba Evalisto, Muhumuza William, Geresiano Mwesigwa, Anthony Baguma and Nsimenta Cylus. The summary of their evidence is that on the 12^th January, 2021, they attended a meeting at the home of Canon John Matongo having been mobilized by Julius Tukakira. In that meeting, the 1^st Respondent addressed them, asked them for their votes and gave Ugx 2,000,000/= to Julius Tukakira who distributed to them. Each person received 10,000/=. The 1^st Respondent also gave Canon John Matongo Ugx 200,000/= and the son of Canon John Matongo Ugx 100,000/=.       

[306] The 1^st Respondent denied the allegation. He stated that the people he met at the Canon John Matongo were his supporters organized by Julius Tukakira and he did not give them any money.

[307] The 1^st Respondent produced 8 witnesses in support of his Answer to the Petition. The witnesses were; Beyunga Kenneth Baguma, Canon John Matongo, Ahebwa Ivan Matongo and Atuhire Eric, Julius Tukakira. The other witnesses were Kwijuka Alex, Mugarura Micheal and Tushemereirwe Jenifer who were also present.  All the witnesses stated that they attended the meeting. They denied that the 1^st Respondent gave any money to Canon John Matongo, any son of his or to the people who attended the meeting. Ahebwa Ivan Matongo stated that Tibiryeba Evalisto actually complained that the 1^st Respondent had not given the people money.

[308] The Petitioner and Tibiryeba Evalisto swore affidavits in rejoinder. Tibiryeba Evalisto denied the allegation by Ahebwa Ivan Matongo that he complained that the 1^st Respondent had not given the people who had gathered money. He stated that he received Ugx 10,000/=.

The Petitioner stated that the statement of Ahebwa Ivan Matongo should not be believed because he was coerced into testifying on behalf of the 1^st Respondent since he was his (Petitioner’s) witness. He stated that he was in constant contact with Ahebwa Ivan Matongo on his known numbers 0775597229 and 0783898609 and he was ready to depone an affidavit confirming that the 1^st Respondent bribed voters with Ugx 2,000,000/=, gave him Ugx 100,000/= and his father Canon John Matongo 200,000/=.

[309] The Petitioner further stated that he instructed his lawyers to wait for Ahebwa Ivan Matongo in Kabale to draft his affidavit on the 20^th August 2021 so as to file it court but Ahebwa Ivan Matongo did not show up. The Petitioner stated that he was later informed by his agent Salary Turyakira that Ahebwa Ivan Matongo had been threatened by the caretaker of North Kigezi Diocese, the retired Bishop Patrick Tugume Tusingwire that if he continued to testify for him, he would lose his job over some disciplinary issues. The petitioner further stated that another agent of his called Stephen Twinomujuni informed him that Ahebwa Ivan Matongo intimated to him that he had been bribed with Ugx 2,000,000/= with threats of dismissal.  

Submissions of counsel:

[310] Counsel for the Petitioner pointed out that at the scheduling of this case, leave was granted to the Petitioner to file his final additional affidavit of his witness, Ahebwa Ivan Matongo. The said witness was on the list of the Petitioner’s witness in the joint scheduling Memorandum on the court record. Counsel stated that in a strange turn of events, the said witness was approached by the 1^st Respondent’s legal team and he changed sides and swore an affidavit in support of the 1^st Respondent’s answer to the petition.

[311] Counsel pointed out that during cross-examination, Ahebwa Ivan Matongo confirmed that he uses his telephone number 0775597229. Counsel argued that given the substantial evidence on the court record in respect of the said incident, the conduct of the 1^st Respondent and his lawyers only gives credence to the evidence of the Petitioner’s witnesses and only confirms that the 1^st Respondent bribed the voters. Counsel further submitted that the affidavit of Ahebwa Ivan Matongo be expunged from the court record. Counsel relied on the case of Kintu Alex Brandon Versus Walyumu Moses Court of appeal Election Petition Appeal No. 64 of 2016.

[312] In reply, counsel for the Respondents submitted Ahebwa Ivan Matongo was not a witness for the Petitioner since one becomes a witness only when they have sworn an affidavit or have been summoned by the court under Rule 15(1) and (3) of the PEEPR. Counsel further submitted that Ahebwa Ivan Matongo during cross-examination was unshaken that he never discussed the issue with the Petitioner and had no intention of being his witness.

[313] Counsel submitted that the case of Kintu Alex Brandon (supra) is not applicable in the instant case since Ahebwa Ivan Matongo does not have two affidavits before court and he has not recanted any affidavit.

[314] Counsel further submitted that none of the Petitioner’s witnesses stated that the money was counted for them to confirm the amount. They summitted that the allegation in relation to the giving of Ugx100,000/= to the son of Canon John Matongo was not pleaded in the petition. Counsel further submitted that the 1^st respondent’s witnesses denied the allegation that any bribe was given.

[315] In rejoinder, counsel for the petitioner submitted that although Ahebwa Ivan Matongo had not yet become a witness, he was in the process of swearing an affidavit for the Petitioner but he was unethically made to swear an affidavit for the 1^st Respondent. According to counsel, this gives credence that the 1^st Respondent bribed voters. Counsel submitted that the decision in the case of Kintu Alex Brandon (supra) is instructive on this matter.

Determination of the court:

[316] I agree with the submissions of counsel for the Respondents that the facts in the case of Kintu Alex Brandon (supra) are not applicable in this case. In that case, there was evidence, by affidavit, that the witnesses who had sworn affidavits were intimidated and they recanted their evidence.

[317] In the instant case, although Ahebwa Ivan Matongo was a witness “likely to be called” by the Petitioner, the Petitioner did not present any evidence of intimidation or inducement of Ahebwa Ivan Matongo. The Petitioner stated that he was informed by his agent Salary Turyakira that Ahebwa Ivan Matongo had been threatened by retired Bishop Patrick Tugume Tusingwire not to continue to testify and that he was informed by Stephen Twinomujuni that Ahebwa Ivan Matongo intimated to him that he had been bribed with Ugx 2,000,000/= with threats of dismissal. Salary Turyakira and Stephen Twinomujuni who informed the Petitioner did not swear any affidavit to that effect. The evidence of the Petitioner in this regard is therefore hearsay evidence not admissible in evidence.

[318] The Petitioner presented evidence of call print out which shows that there was communication between the Petitioner and Ahebwa Ivan Matongo on the 17^th, 18^th, 19^th and 20^th August 2021. The content of their discussion, the Petitioner has indicated was for him to swear an affidavit. Ahebwa Ivan Matongo in cross-examination denied ever discussing the issue with the Petitioner. I therefore find no reason why I should strike out the affidavit of the Ahebwa Ivan Matongo.

[319] In determining whether the Petitioner has presented cogent evidence to support the above allegation of the bribery incidence at the home Canon John Matongo, I have taken note of the fact that all the witnesses of the petitioner are self-confessed accomplices. They all admitted taking the money which was a bribe for them to vote for the 1^st Respondent. The Petitioner did not present any independent witness to corroborate their evidence.

[320] Although the Petitioner’s witnesses stated the amount of money allegedly given by the 1^st Respondent, it is not certain how they came to ascertain the amount. They did not state that the money was counted in their presence nor did they state that the 1^st Respondent informed them of the amount. If indeed they were telling the truth, at least one of them would have stated so.

[321] I have also noted that while Wilson Nkawazibwe, Tiryeba Evalisto and Anthony Baguma stated that they were made to count themselves, the other witnesses do not state this in their evidence. I consider this aspect of counting themselves material since I believe the purpose was, if at all, to ascertain the number of those in attendance. If indeed all the witnesses attended the same event, they should have been consistent on that fact. It is doubtful that they attended the same event. The 1^st Respondent on the hand denied the allegation that any bribe was given. Their I have found their evidence consistent and believable.

[322] I agree with counsel for the Respondents that the allegation in relation to the giving of Ugx100,000/= to the son of Canon John Matongo was not pleaded in the petition. The 1^st Respondent cannot be expected to defend himself on an allegation not pleaded, but introduced in evidence. The son of Canon John Matongo who was alleged to have been bribed was not named by the witnesses of the Petitioner. It is impossible to know if he is a voter or not without his name being disclosed.

[323] I therefore find that the Petitioner has failed to satisfy me that the 1^st Respondent bribed voters at the home of Canon John Matongo as alleged.

Allegation of making a false statement that the Petitioner had contracted Covid-19 illness:

[324] The Petitioner alleged that the on the 9^th December, 2020, at a campaign rally held at Bigaaga Ward, Rwerere Town Council, the 1^st Respondent made a false statement that he (the Petitioner) had contracted Covid-19 illness and urged people to shun him contrary to Section 70 of the PEA.

[325] The Petitioner stated that he was informed of the incident by several of his voters. He stated that he was also interviewed by Ronald Mwinegaro, a presenter of Kanungu Broadcasting Services and Isaac Bernard Tushabe, a presenter with Boona radio about the news which was making rounds on social media and some radio stations that he was admitted in the hospital with Covid-19.

[326] The Petitioner produced 7 witnesses who swore affidavits in support of this allegation. Out of the 7 witnesses, 6 of them stated that they attended the rally of the 1^st Respondent where he stated that the Petitioner had Covid-19. The witnesses were; Babongoya Mary, Alex Ruhara, Richard Kamugisha, Stephen Turyabe, Vastina Tugume and Kenneth Mucunguzi. Out of the 7 witnesses, 5 witnesses mentioned the radio interview. The witnesses were; Alex Ruhara, Richard Kamugisha, Stephen Turyabe, Kenneth Mucunguzi and Medius Atuhaire.

[327] The 1^st Respondent denied the allegation. He produced 3 witnesses in support of his case. The witnesses were; Bamuhiiga Clesi, Katbazi David and Muyambi Milton.

[328] Bamuhiiga Clesi stated that he is the chairperson NRM of Rwerere Town Council whose work was to mobilize the people and coordinate party activities in Rwerere Town council. He stated that on the 9^th December 2020 he moved with the 1^st Respondent who held a campaign meeting at Bigaaga ward. He denied that the 1^st Respondent stated that the Petitioner had contracted Covid-19. Katbazi David and Muyambi Milton stated that they attended the campaign meetings of the 1^st Respondent in Rwerere Town Council and in all the meetings the 1^st Respondent did not mention that the Petitioner had contracted Covid-19. Muyambi Milton stated that the 1^st Respondent informed the different groups that any person, regardless of political side, could contract Covid-19 and that everyone ought to be careful.

Submissions of counsel:

[329] Counsel for the Petitioner submitted that the Petitioner adduced evidence of witnesses who attended the rally in which the 1^st Respondent falsely alleged that the Petitioner had Covid-19 which evidence was corroborated by the petitioner who was called by two different radio stations. According to counsel, the allegation was proved.

[330] In reply, counsel for the Respondents submitted that the publication was not set out verbatim in the petition. They further submitted that the evidence of the Petitioner’s witnesses is full of contradictions, outright lies and hearsay. Counsel pointed out that none of the witnesses stated the actual words used by the 1^st Respondent, they did not mention the people who were scared on account of the allegations or were prevented from voting. They relied on the case of Dr. Lulume Baiga Versus Mutebi David and Another, Court of Appeal Election petition Appeal No. 14 of 2016 and the case of Acire Christopher Versus Reagan Okumu and Another, Court of Appeal Election petition Appeal No. 09 of 2015.

[331] Counsel submitted that the 1^st Respondent gave evidence that he did not make the statement and he was not shaken during cross-examination. His version of the story was corroborated by his witnesses. Counsel invited the court to find that this allegation was not proved.

Determination of the court:

[332] Section 70 of the PEA creates the illegal practice of publishing a false statement. The Section provides that;

“A 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.”

[333] A person alleging the illegal practice of publishing a false statement, under Section 70 PEA, as a ground for nullifying the election of a member of Parliament has to plead and prove the following ingredients.

• That a statement was published,
• That the statement was false,
• That the statement concerned illness, death or withdrawal of a candidate,
• That the maker knew that the statement was false, or knew or believed it on reasonable ground not to be true,
• That the statement was made for the purpose of promoting or procuring the election of another candidate.

[334] I have carefully read paragraph 6 of the Petition and the affidavits in support of the Petition, they make no mention of the 4^th and 5^th ingredients of Section 70 of the PEA. The Petitioner needed to have set out, in the Petition, the complaint as per the ingredients stated in Section 70 of the PEA and presented evidence to support it. It is only then that the 1^st Respondent would know what case he is responding to.

[335] Although the Petitioner pleaded that the 1^st Respondent made a false statement about his health, the reason for making the statement as per the petition is to make people to shun him. This is not one of the ingredients of Section 70 of the PEA. The Petitioner should have pleaded and proved that the purpose of the statement was for promoting or procuring the election of another candidate, in this case the 1^st Respondent.

[337] The petitioner did not also plead and prove that the 1^st Respondent must have known that his statement was false or that he did not know or believe it on reasonable grounds to be true. In Col (Rtd) Besigye Kizza Versus Musevini Yoweri Kaguta and Another Presidential Election Petition No. 1 of 2001 in which, Section 65 of the Presidential Election Act applicable at the time, which Section was couched in similar words like those in section 70 of the PEA, Odoki CJ state that;

“In other words, it is not sufficient to prove that the statement was false, it must also be proved that the maker knew that the statement was false or did not believe it to be true.”

[338] Although the Petitioner pleaded that the statement was false and, in his affidavit, stated that the statement was a lie, he did not present any medical or independent evidence to prove that actually he did not contract Covid-19. In the Col (Rtd) Besigye Kizza (supra) Odoki C.J found that;

“The Petitioner adduced no independent or expert evidence to support his statement that he has no AIDS and that his looks are normal and was able to campaign throughout the whole country presumably like a healthy person.”

The petitioner needed to have presented such evidence to convince the court that the statement, if at all, was actually a lie.

[339] I agree with the submissions of counsel for the Respondents that the publication was not set out verbatim in the petition. Each of the witnesses of the Petitioner used different words to describe what in their view the 1^st Respondent said.  

According to Kabagonya Mary, the 1^st Respondent stated that;

“…the Petitioner herein had been diagnosed of Covid-19 and he cautioned us not to get close to him.”

Alex Rurara said the 1^st Respondent stated that;

“… the Petitioner, had contracted Covid-19 and people should avoid him since it was spreading at a high rate in the community and the petitioner was bedridden in Kampala.”

According to Richard Kamugisha, the 1^st Respondent stated that;

“…the Petitioner had been diagnosed with Covid-19 and people should avoid him if they do not want to get the virus.”

Stephen Turyabe said the 1^st respondent stated that;

“…the Petitioner herein had been diagnosed with covid-19.”

Vastina Tugume said the 1^st respondent stated that;

 â€œThe 1^st Respondent in his address at the rally cautioned people not to get close to Hon. Fred Turyamuhwezi as he had been diagnosed with Covid-19.”

As for Kenneth Mucunguzi, the 1^st respondent stated that;

“…Hon. Fred Turyamuhwezi had contracted Covid-19 and had been admitted to hospital in Kampala and people should avoid his rallies since the virus was spreading at an alarming rate.”  

[340] Therefore, while Kabagonya Mary, Alex Rurara, Richard Kamugisha and Vastina Tugume stated that the 1^st Respondent cautioned people to avoid the Petitoner, Kenneth Mucunguzi on the other hand stated that the Petitioner said people should avoid the rallies of the petitioner. Stephen Turyabe on his part did not mention of any caution to the public against the Petitioner. According to Muyambi Milton who is the witness of the 1^st Respondent, the 1^st Respondent while at the rallies informed the different groups that any person, regardless of political side, could contract Covid-19 and that everyone ought to be careful.

[341] I have noted that the affidavits of the witnesses of the Petitioner were based on knowledge but also based on belief whose source was not disclosed. Kabagonya Mary and Vastina Tugume did not disclose the source of their information that people were scared and started fearing attending the Petitioner’s subsequent meetings. Alex Rurara, Richard Kamugisha and Stephen Turyabe did not disclose the source of their information that the Petitioner was interviewed on radio to confirm the allegation and the petitioner denied. They did not state that they listened to the radio show. All those relevant parts of their affidavits are severed and cannot be relied upon. The radio presenters who interviewed the Petitioner did not swear any affidavit disclosing their source of information. The information got by the Petitioner from them is hearsay evidence.

[342] Given the different versions by the witnesses of the Petitioner on what the 1^st respondent is alleged to have stated at the alleged rally, I am not satisfied that the 1^st Respondent made the statement attributed to him. Even if the 1^st Respondent had said the words, which I have already found that I am not convince that he did, the Petitioner needed to have set out the very words used by the 1^st Respondent to enable the court to determine the purpose of the publication which he also failed to do. The petitioner also failed to prove that the statement was false. I therefore find that the Petitioner failed to prove this allegation.

Issue 3: Whether the 2^nd Respondent conducted the election in accordance with provisions and principles laid down in the electoral laws and if not, whether the non – compliance affected the results of the election in a substantial manner.

[343] The Petitioner alleged that during the campaigns, he made a complaint to the 2^nd Respondent through the returning officer about numerous illegal practices that were committed by the 1^st Respondent but the 2^nd Respondent failed to restrain the 1^st Respondent from committing the illegal practices thereby giving the 1^st Respondent an unfair advantage over other candidates. The Petitioner stated that the 2^nd Respondent’s returning officer merely wrote to the Uganda Police in Rukungiri to investigate the said complaints after meeting the Petitioner and the other candidates who had similar complaints and that the returning officer of did not follow up with the police.

[344] The Petitioner produced 2 witnesses who swore affidavits in support of this allegation. They were Sylvin Gumisiriza and Muhozi Grace. The summary of their evidence was that they were candidates who participated in the last election of directly elected member of parliament for Rujumbura County. According to them, they were summoned by the returning officer of Rukungiri district for a meeting which was also attended by the 1^st Respondent. In that meeting, they raised issues of voter bribery and other illegal practices that were being committed by the 1^st Respondent and his agents as per the reports they were getting from their agents. After the meeting, the returning officer wrote to the District Police Commander of Rukungiri to investigate the claims and report back to him. According to them, none of the candidates was called by the police to make statements.

[345] The Respondents denied the allegation. The 2^nd Respondent presented 3 witnesses. They were Namara K. Abas who was the returning officer/ district registrar Rukungiri district, Kamugisha Onesmus stated that he was the Officer in Charge of Criminal Investigations Rukugiri District at the time of the election and D/SGT Twesigye Francis.

[345] Namara K. Abas stated that he forwarded the complaint of the Petitioner to the District Police Commander for Investigations. He stated that the complaint was fairly investigated and found to be false. Kamugisha Onesmus stated that on the 8^th January 2021, he received instructions from the District Police Commander to investigate allegations against the 1^st Respondent. He in turn instructed the Officer in Charge of Electoral and Political Desk, Detective Corporal Twesigye Francis to investigate the matter and report back to him. He further stated that on the 12^th January 2021, Detective Corporal Twesigye Francis handed to him an investigation report stating that the allegations were baseless and on the same day he informed the district registrar of the findings.  D/SGT Twesigye Francis stated that he investigated the allegations against the 1^st respondent but found it not true. He stated that he contacted the 1^st Respondent to give him details of the allegations but he failed

Submissions of counsel:

[347] Counsel for the Petitioner submitted that under Article 61(1) (a) and (f) of the Constitution, the 2^nd Respondent has the function of ensuring that free and fair elections are held as well as hearing and determining election complaints arising before and during polling. Counsel submitted that in this case, the Petitioner lodged a complaint to 2^nd Respondent against illegal practices committed by the 1^st Respondent which resulted into a meeting but the 2^nd Respondent failed to intervene and address the complaint of voter bribery. According to counsel, the failure of the 2^nd Respondent to perform its key statutory role in ensuring a fair election is an illegality that by itself substantially affects the outcome of an election. Counsel relied on the case of Joy Kabatsi Kafura Versus Anifa Kawoya and Another, Supreme Court Election Petition Appeal No. 25 of 2007.

[348] In reply, counsel for the Respondents submitted that the Petitioner did not present any written complaint to the 2^nd Respondent to act on. The compliant was verbal. The 2^nd Respondent did what the law required it to do by forwarding the matter to the police. Counsel argued that the 2^nd Respondent does not control police investigations or how they should do their work. According to counsel, the Petitioner did not provide the necessary details to the police. Following the investigations, the 2^nd Respondent got a report that the matter was investigated and found to be false. Counsel submitted that the 2^nd Respondent discharged its burden. Counsel further submitted that if the Petitioner felt that the matter was not satisfactorily handled, he should have filed a complaint with the commission under Section 15 of the Electoral Commission Act.

[349] In rejoinder, Counsel for the Petitioner submitted that the 2^nd Respondent’s letter to the police was only intended to hoodwink the aggrieved candidates. They invited the court to find that the 2^nd Respondent failed to prevail over the 1^st respondent.

Determination of the court:

[350] This ground of the petition is on noncompliance by the 2^nd Respondent in carrying its mandate under the electoral laws. Section 61(1)(a) of the PEA provides that;

“(1) The election of a candidate as a member of Parliament shall only be set aside on any of the grounds if proved to the satisfaction of the court-

• noncompliance with the provisions of this Act relating to elections, if the court is satisfied that there has been failure to conduct the election in accordance with the principles laid down in those provisions and that the noncompliance and the failure affected the result of the election in a substantial manner;”

(Underlined for emphasis).

[351] Therefore, in order for the Petitioner to succeed in setting aside the election of the 1^st Respondent under the above provision of the PEA, the Petitioner must prove that there was non-compliance with the PEA or the principles laid down in the PEA and that the non-compliance affected the result in a substantial manner.

[352] The Petitioner did not cite any provisions of the PEA which the 2^nd Respondent failed to comply with. In their submissions, counsel for the Petitioner submitted that the 2^nd Respondent did not comply with the provisions of Article 61(1) (a) and (f) of the Constitution on ensuring free and fair elections and hearing and determining electoral complaints before and during elections. The facts in the instant case relate to pre- polling complaints not provided for in the PEA but rather in Section 15(1) of the Electoral Commission Act.

[353] Be that as it may, I agree with the submissions of counsel for the Respondents that the 2^nd Respondent acted on the verbal complaint of the Petitioner by writing to the police to investigate. How the police carried out their investigations cannot be faulted on the 2^nd Respondent since the 2^nd Respondent has no control over the police.  The 2^nd Respondent later got a report from the police that the matter was investigated and found to be false. If there is anyone to blame, it should be the Petitioner who should have followed his compliant with the police since he was aware that the matter had been referred to them. The Petitioner has not pointed out what the 2^nd Respondent should have done, in the circumstances, which they failed to do.

[354] The case of Joy Kabtsi Kafura (supra) cited by counsel for the Petitioner was clearly cited out of context. In that case, there were several breaches of the PEA. In this case the petitioner has not even cited any section of the PEA which was breached.

[355] Even if I were to hold that there was any non-compliance, the Petitioner was still under duty to prove that the non-compliance affected the result in a substantial manner. In Amama Mbabazi Versus Yoweri Kaguta Museveni and 2 others Supreme Court Presidential Election Petition No. 1 of 2006. while interpreting Section 59 (6) (a) of the Presidential Elections Act, which is coughed in the same wording like section 61(1)(a) of the PEA, the Supreme Court stated at page 224 that;

“The import of Section 59 (6) (a) of the PEA is that it enables the court to reflect on whether the proved irregularity affected the election to the extent that the ensuing results did not reflect the choice of the majority of voters envisaged in Article 1(4) of the Constitution and in fact negated the voters’ intent.”

[356] On the test to applied in determine whether the noncompliance affected the result in a substantial manner, the Supreme Court in the same case, at 227 stated that;

“We must however emphasize that although the mathematical impact of noncompliance is often critical in determining whether or not to annul an election, the Court’s evaluation of evidence and resulting decision is not exclusively based on the quantitative test. Courts must consider the nature of the alleged noncompliance. It is not every violation that can be evaluated in quantitative terms. But whatever the nature of the violation alleged, the quantum and quality of evidence presented to prove the violation must be sufficient to satisfy the Court that what the Constitution envisaged as a free and fair election, as the expression of the consent and will of the people on who should govern them, has been circumvented… If there is evidence of such substantial departure from the constitutional imperative that the process could be said to have been qualitatively devoid of merit and rightly be described as a spurious imitation of what elections should be, the court would annul the outcome. The Courts in exercise of judicial independence and discretion are at liberty to annul the outcome of such a sham election.”    

[357] Therefore, in determining whether any irregularity had any substantial effect on the outcome of the elections, the court employs both the quantitative test and the qualitative test. The quantitative approach examines the numerical impact of the noncompliance while the qualitative approach examines the overall process to determine whether the election was so badly done that it is devoid of any merit.

[378] Applying quantitative test, the voter margin between the Petitioner and the 1^st Respondent was 5,243 votes, the Petitioner did not adduce any evidence to show that this numerical margin would have been different or he would have won the election if there was compliance.

[359] Applying the qualitative test, the question that begs to answered is, based on the evidence presented before the court, can it be said that the election which was held on the 14^th January 2021 in Rujumbura County Constituency, was qualitatively devoid of merit and can be rightly described as a spurious imitation of what an elections should be or was conducted so badly that it amounts to a sham election? In my view, considering that the petitioner did not produce evidence that can lead to the conclusion that the election was a sham, the answer is a clear no.

[360] I therefore find that the Petitioner failed to prove to the satisfaction of court that the 2^nd Respondent did not conduct the elections in accordance with the electoral laws. The election of the 1^st Respondent therefore reflects the choice and will of the majority voters of Rujumbura County Constituency, Rukungiri District.   

Issue 4: Whether the petitioner is entitled to the reliefs sought.

[361] Since the Petitioner has failed to prove to the satisfaction of the court all the grounds of the petition, the petition is accordingly dismissed with costs.

I so order.

Dated this 1^st day of November, 2021.                                     

Phillip Odoki

JUDGE.