[1996] UGHC 84

## THE REPUBLIC OP UGANDA

IN THE HIGH COURT OP UGANDA HOLDEN AT LIRA

ELECTION PETITION NO\* ¹ OP 1996

BETWEEN

BEATRICE LAGADA ......................................... PETITIONER

AND

1 . ROSEMARY KERWEGI )

*4*

2. THE RETURNING OPPICER )... RESPONDENTS

3; THE INTERIM ELECTORAL COMMISSIONER)

BEFORE.: -THE HONOURABLE JUSTICE, ^G \*M\* OKELLQ

## JUDGEMENT ^j •—-•\* - - ——

Tliis is an Election Petition. It was 'brought by Beatrice Lagada seeking to set aside the results of the Apac District Women's Parliamentary Representative Election held on 20th June 1996. Beatrice Lagada hereinafter referred to as the Petitioner was one of the three contestants for the Apac District Women's Parliamentary Representative ^j seat. The other two contestants were Rosemary Kerwegi and Mrs Santa ¹ Ajep. Rosemary Kerwegi was declared the winner in that contest with the Petitioner as the runner up. According to the evidence of the Re-burning Officer for Apac District, the vote margin between the win- ⁱ ner and the runner up was slightly over 1,000 votes. " ,^a

Pour grounds were given by the Petitioner for her petition. They wcre:-

a) that during the conduct of the said election, there was noncompliance with the provisions of the Parliamentary Elections (Interim Provisions) Statute 1996 relating to elections, and particularly (and without limiting the aforesaid) in that many persons qualified to vote being non-members of the electoral college wore allowed to vote and your petitioner says that these irregularities affected the result of the election in a substantial manner.

- "k) that the said election was characterised by the 'bribery of voters by the first Respondent in person or by her agents acting with her knowledge and consent or approval. - c) that there was non-compliance with the provisions of the Provisions of the Parliamentary Elections (Interim Provisions) Statute ¹⁹⁹⁶ relating to registration of voters, voting procedures, display of registers and membership of the electoral college with a result that the entire election result was influenced in your petitioner's disfavour. - d) that the election exorcise was inarred by grave irregularities and illegal practices committed by the first and second respondents personally or by other people with their knowledge, consent and/or approval particulars of which are set out in the affidavit of the petitioner annexed hereto".

Tho petition was supported by several affidavits. One was deponed by tho Petitioner on 25th July ¹⁹⁹⁶ and ³⁵ other affidavits deponed by various agents of the petitioner between 10th and 23rd of September 1996.

In their answers to the petition the Respondents denied all the allegations made therein against them and filed a total of ³³ affidavits sworn by various witnesses including the 1st and 2nd Respondents in reply to the affidavits sworn in support of the petition

In Uguada, the law governing the Elections of District Vomen's Parliamentary Representatives and the Fetitions arising from them are do be found in the Parliamentary Elections (Interial Provisions) statute No. 4 of 1996 and the Rules for the Election of District Women Representative in the third schedule to that statute. Section $90(1)$ of the Statute defines the court in which Election Fetition shall be filed. Section 90(2) defines who has the right to file such Petition. Section 91 (1) gives the circumstances when the election of a candidate as a member of Parliament shall be set aside. It reads thus,

- " (1) the election of a candidate as a member of Parliament shall only be set aside on any of the following grounds if proved to the satisfaction of the court:- - $(a)$ non-compliance with the provisions of this statute 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 such failure affected the result of the election in a substantial manner. - $(b)$ that a person other than the one elected won the election. - $(c)$ that an illegal practice or any other offence under this stabute was convitted in connection with the election by the candidate personally or with his knowledge and consent or approval or - $(d)$ that the candidate was at the time of his or her election not qualified or was disqualified for election as a member of Parliament"

$... / 4.$

Rulo ³ (1) in the third schedule to the statute provides that the woman representative for every district

" shall he elected by an electoral college."

lhe composition of the electoral college is: to include):-

- (a) all councillors at R. C. II and R. C. Ill level v/ithin the district and - (h) all members of the Women Councils and sub-county Women Councils within the district.

Women Councils were established by statute Ho. ³ of 1993.

It is clear from the above that the Petitioner in her Petition seeks to set aside ⁴ he Election of the 1st. Respondent as a member of Parliament under Section ⁹¹ (a) and (c) of Statute 4 of 1996. Under Sections ¹⁰¹ and 102 of the evidence Act (Cap 43) Laws of Uganda, the burden of proof lies cn the Petitioner who would like the election Result of Apac Pistrict Women¹ s Parlia.-iontary Represontativc sot asido.

- ⁴ -

only be set aside on any of the following grounds if proved to the satisfaction of the court. The term "proved to the satisfaction of the court" was considered in Howe... Vs. Eliufoo (1967) EA 240 and was hold to mean that where a reasonable doubt existed, then it was impossible to say that one was satisfied and that the standard of proof must be such that one had no reasonable doubt.

It follows therefore that in view of the wordings of section (91(1) of the Parliamentary Elections Statute 4 of 1996. The standard of proof required to establish to the satisfaction of the court an allegation made to set aside an election of a nember of Pauliament, is beyond reasonable doubt. That means that for a Potitioner to succeed in her/ his Potition, to secure an order of the court to set aside an election of a Member of Parliament, the Petitioner had to prove beyond reasonable doubt not only one or all the grounds he/she had alleged but also that one or all affected the result of the election in a substantial manner.

On the voting procedure, rule 7(1) in the third schedule to statute 4 of 1996 provides that "the voting procedure laid down in the provisions of the statute shall apply to ele-tions for women representatives." That means that the voting procedure for the election of women representative shall be in accordance with the provisions laid down in the Parliamontary Election (Interim Provisions) statute No. 4 of 1996.

At the commencement of submission, for reasons of convenience, the following issues were agreed to and framed as under for guidance:-

> (1) whether there was non-compliance with the principles laid down in the provisions of the statute No. 4 of 1996.

> > $... / 6.$

$-5$

At the commencement of submission, for reasons <f convenience, the following issues were agreed to and framed as under for guidance:-

- (l) whether there was non-compliance with the principles laid down. in the provisions of the statute £<•-.- -4 of 1996. - (2) If so, whether the non-compliance affected the result •f the Election in a substantial manner. - (3) whether illegal practices in the election were committed by the first Respondent or by her agents. - (4) Jf so, whether the illegal practices were committed with the knowledge consent or approval of the first Respondent. - (5) whether the Petitioner is entitled to the remedies sought in the Petition.

As regards the first issue above, the Petitioner alleged non-compliance in four categories. They were:—

- (a) In preparation of voters Registers. This was alleged to have been incomplete and unsatisfactory. - (b) In the display of voters Registers. It was alleged there had been non display of voters Registers all •ver Apac District. - (c) In the handling of voting materials. It was alleged that unauthorised persons were permitted and did handle election materials on voting day. - (d) In regards to voting. It was alleged that ^a good number of the women councillors were wrongfully barred from voting. - (a) ?.2?opara.tiqn of Voters . RoisterS£-

It was the Petitioner¹ ^s case that the preparation of Registers of the members of the electoral college was

- ⁶ -

incomplete and unsatisfactory\* It was averred that in some Parishes in Apac District, such Registers were not prepared Toy the Returning Officer as required of him. under rule 4(1) in the tinrd schedule to the statute\* Relianacc was placed on the affidavits sworn Dy some Agents of the Petitioner. Cypriano Anap of Orupo Parish of Iconic Sub-county deponed that in his parish five villages did not vote because their names were omitted from the Register\* He named the villages as Ajalo \*Br, Ajalo '^A', Ogony Dao, Adag Ani and Ayita\* The said Cypriano Anap deponed that lie was the Petitioner's Polling agent at Alcwangi P.7 School Polling Station.

Kellen Amodo of Aungu Parish, deponed that she was the Petitioner's Polling Agent at Akuti Polling Station in Aungu Parish. In paragraph ⁴ of her affidavit, she named three villages in Aungu Parish which had no Register and whose members of the electoral, college were turned away on the polling day. The named villages were Aimto, Ajobi and Abura.

Okello Omara of Ayara Parish of Alito Sub-county deponed that he was a campaign manager for the Petitioner\* He named two villages where the ^Docel^L Council and Women Council did not vote because their Registers were missing. The villages named in Paragraph ⁸ of his affidavit were Tekworo and Agoma.

Dawercncc- 01d.no of Agweng Nylon village, Atek Ober Parish of Acaba Sub-county deponed in his affidavit sworn at lira on ¹⁰th. Sept. ¹⁹⁹⁵ that he was the General Secretary of Docal Council ¹ of Agweng Nylon -Tillage. According to paragraph ⁵ of his affidavit, the four villages of Obot, Wigweng, Ojul and Agweng Nylon had no Registers and consequently the electorates in those villages wore denied to vote by Okello Yang the presiding Officer (P0)« He further deponed in paragraph ⁶ of his said affidavit that women councils of the entire Atek Ober Parish, did not vote because of the faulty

Registers. Names of many members of the electoral college did not appear on the Rc/,ictors;

La?. Kiapi submittod from ':ho above evidence that the 2nd Respondent hod failed in his duty to proparc Registers of voters\* That the failure constituted non compliance since the law requires him to prepare Registers of the members of the electoral college within each Parish of the District. He accused the Returning Officer of Apac District of incompetence for lack of record of women council in various Parishes in the District because according to him, the Returning Officer bad the duty to provide those record since Women Councils throughout the country were established by Statute No. ³ of 1993.

Ur. Dongc Opar for the 1st. Respondent did not agree with Mr. IQapi. He submitted that there was no such failure on the part oi the Re turning Officer to prepare the Registers of members of the Electoral College. He argued that the Returning Officer had to prepare such Registers from available informations. ^He Ind no duty to hold elections of RC or Woman Council. That where such informations were missing because the elections of D. C. or Women Councils had not been held, the Returning Officer would not prepare air. According to Dongc, it was proved that there were Registers of members of the Electoral college in Apac District, that was why the election of Women Representative was held. He finally submitted fat non compliance in this regard had not been proved.

Dyamtugisha Kamugisha who represented the 2nd. and 3rd. Respondents agreed with Dongo's argument. He stressed that the duty to conduct elections of DC and Y/C did not rest with the Returning Officer but\* with other arms of the Government.

/9.

He argued theit the ar<y.icnt of Kiapi that by ¹⁹⁹³ the Women Council tb-roughout the country were elected was misleading and erronous. According to Byaw.gisha Kamugisha, Statute Ho. ³ of ¹⁹⁹³ had set up offices of Women Councils but did not *qo* ahead to set up time limit when these vacancies would be fil.led, People were free to hold elections to fill those offices, but that in sozir- places the offices remained vacant\* He added that person compiling the Register of member of the electoral college would not include any name whore the vacancies had not been filled\*

In reply, Sokabanja' who assisted Kiapi in representing the Petitioner, submitted that rule 4(3) of the 3rd Schedule to the statute was irrelevant because it referred to vacancy created by a member moving to a higher council but not whore council had not been elected\* He concluded that the 2nd Respondent committed non-compliance when he failed to prepare the Registers of Member of Electoral college where the council had not been elected since it was his duty to hold the election

lie gist of the Petitioner's argument would appear to be that the Returning Officer had a duty to cl- ct Local Councils or Women Councils set up by Statute ³ of ¹⁹⁹³ where they had not been elected and to include the names of those elected in the Registers oi members of the Electoral college\* I find that argument devoid of any legal support because no whore in the Parliamentary Election Statute Ho. ⁴ of 19'96 or in the Rules in the 3rd Schedule to that statute has the Returning Officer boon charged with the duty while preparing the Registers of members of the Electoral college, to elect LC or WC where they bad not been elected before. I t.'iink rule 4(3\$ in the 3rd Schedule to the statute is sufficiently clear. ''Any vacancy occuring in any council referred to in Rule ³ shall not affect the result of an election." That in my view meant that whereas the ^R turning Officer is charged under

- ⁹ - nile 4(l) in the 3rd Schdulc to the statute to prepare Registers of members of the Electoral college, where the offices either' in t'-e ¹⁰ or in the v7C had not been filled by election, any such vacancy shall not affect the election\* The vacancy io not limited towhere a member has moved to a higher council\* But it includes where election for example in the- Women Council had not hc-.cn held since statute Ho. ³ of 1593 carlo into force⁴

In that regard, I agree with Counsel for the Respondents that the. Returning Ofiioc??,s duty was to prepare the Registers of the- members of tlK Electoral College from the infor7.1at.ion available. Where such informations were lacking because no elections wore held to fill the vacancies, no names would be included. By the standard of proof required in this case, to establish non compliance in this regard, the Petitioner had to show beyond reasonable doubt that there were available informations from which the Returning Officer could prepare the Register but that he did not. None of the affidavits referred to by Mr. Kiapi or any other in this regard over mentioned tliat records of elections of the- ??\*ombcrs of the lectorol college in thos Parishes were available but that the Returnin'. Officer did not prepare their Registers. In the absence' of such proof, I am unable to find that the Petitioner had proved beyond reasonable doubt that the Returning Officer committed non compliance by not preparing Registers of members of the Electoral college in those Parishes referred to or any others.

## (b) Noil. dismlayj?.f \_Votor's,. Regi.stors. *o*meniber^s of Electoral Cel^e^e:-

It was the case for the Petitioner that there had been a wide spread non displays of Regis ers of members of Electoral

relied o?i nearly al.l the 36 affidavits sworn by her agents or supporters in support of ihe Petition. About the same number of Counter affidavits were also sworn by the Respondents and their witnesses in rejoinder to those filed in support of the Peition. rhey denied that there were such non displays al ¹ over the const\*i tuency. Llr. Kinpi invited mo to reject the blanket denial made in t.\c Counter affidavits sworn in support of the Rosgoadents¹ case. According to Kiapi, most of thoss? affidavits filed by the Respondents and their witnesses did not specify when and where those displays were made. He pointed out that the evidence of the Returning Officer in crossexaiiination brought out non compliance with the provisions of the Parliamentary Election Statute No. 4- of 1956 when he stated that the displays were made at the homos of the Parish Chiefs and that the displays were done for between ⁶ and ⁹ days only, ICLapi aiy;ued that the above evidence contravened Section 25(2) of the Parliamentary statute which requires the displays to be in public places. I think a more realistic practical view needed to bo taken io co nsider this section 25(2) of the statute sine-¹ the term Public place has not been defined in this statute. In most Parishes in this part of the country, Parish Cliefs do not have office promises to be regarded as Public places# In some cases there may be too distant a public place like market, Trading centre or school witl-in a Polling Idvision to be convenient for display of Registers of members of the Electorate college of a given Parish to enable members to travel to the place to inspect the Registers. In such cases whore a Parish Chief uses his home as bis office such a none should in my viev; be deemed for the purpose of this section to bo a Public place, but vzlerc ''.here is evidence that there was a public place for ozanplc, Ilarket, framing Center or a School but that the- displays were nverthcloss made in the chiefs hone, such a display would h: non compliance with the provisions of this

......... /12,

section 25(2) of the statute. In the instant case, trie affidavits available did not disclose that where the displays were made in f ^c homes of t.-x Parish Chief, public places were available but wer~ not used.

J.r. Kiapi submitted that there wore no displays\* In support ha cited the affidavit of Cranimo Onyik Parish Chief of Aun\$o parish who deponed in paragraph ⁵ of his affidavit that tb.o Re.-P-sters wore displayed by the LC II Chairman. Accoi' din<< to Kiapi that contradicted the evidence of the Returning officers who had told court in cross examination that the displaces wore made by Parish Chiefs yet the Parish Chief did not specify vzhere and when the displays were made but instead deponed that the displays wore made by the LC Chairman\*

Both Messrs Don/-e Opar and Dyamu;;isha Kamujisha did not a&ree wit''- •. Me view that there were non di.splays of Registers of t'-.u Diechoral College throughout the constituency. They contended that there wore such displays throughout the District. They relied on equally numerous counter affidavits sworn by various deponents to that effect. Mr. Donge Opar cited the affidavit of Raymond Ajobo (33) which was filed in support of the Petition. According to Donge, the deponent of that affidavit swore that Registers wore displayed in the chiefs¹ office. In Council's view, that affidavit wliich was filed in support of the Petition, sup-orted the Respondents¹ case that there were displays of i?? !stars of voters. Counsel further pointed out t-hzi the Returning Officer's evidence in crossexamination also revealed that Displays of Registers of voters were made\*

Mr. Donge further relied on Annexturc 'A^f to the answers of the 2nd and 3rd Respondents to tlx Petition to show that there were displays of voters Registers throughout the

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Constituency. The Anriexxure ^A is a letter dated loth. June, 1996 by L??s. Sa'ita Ajc-p m«\*i Rosen...ry Kcrwegi who wore contestants for seat in that constituency. They were complaining in that letter against the Petitioner and the RDC Apac for taiaxrin. with voters Registers at various Sub-county ofiices. Donge argued that such a letter would not have boon issued if there were no displays ot voters Registers in tie district.

Byamugisha Kamugisha relied on the affidavits of DrlOngu Elim \?.'O was the Election Supervisor in Kole County; of Sadat Ojok the Vice CKairman IC II Atura Parish; of Paulino Angara Chairman T-C II of Cnuye Parish of Bala County; and of Ogv/al Odor livingirtoro Secretary 5. or Inior-'a '-ion LC II of Agcge Parish al?. of woof. deponed t.hat there had been displays of Registe??s of voters. According to Byamugisha Kaiiiugiska those affidavits only confirmed the evidence of the Returning Officer who told court in cross-cx.?n;ination that he went around the District to supervise displays and found that Registers of voters were being displayed.

In reply L\*r. Kato Sel-abanja submitted that the Returning Officer claimed on oath that he went around and saw the Registers displyuod at the Chiefs¹ horns. But that in his affidavit of 12/8/96 paragraph ⁵ the Returning Officer deponed that ho was informed by the Election Supervisors that the Registers ••//orc displayed tliroughout the District. According to Sokabanja the above contradiction showed that- the R- turning Cfiicor was not truthful.

It is to be noted that Ron display of Registers of -.-.embers of the Electoral college is a serious allegation, so the proof Must be clear. There were several affidavits infavour and equal/.y several, against, ir. Kiapi urged me not to believe the affidavits stating tint thci'c vzero displays because they did not specify the place aad the time when tb;c displays were

made. I think that argument had the effect of shifting the burden of proof from the Petitioner to the Respondent. Yet the Petitioner on whom the burden of proof lies had to show beyond reasonable doubt that infact there were no displays of Registers of <nejj.es> of Electoral College. Io do so he had to specify the steps that had been taken to confirm that there were no displays in the areas alleged. It was not enough to merely assort that there was no display without substantiating it. Rone of the affidavits sworn in support of the Petitioner's case that there vzorc no displays included information as to the steps token to verify that there were no displays.

fhc Re turning Officer was subjected to one oi the-.most cruel cross-examinations I have seen but ho remained firm. <Ho told court that ho went around the District to Supervise the display and that he found that there were displays. I found this humble officer a truthful witness because ho did not even pretend that he covered the- whole District by himself. He told court that ho reached most of the stations except a few. I find no contradiction between his verbal evidence under crossexamination and his affidavit of 12/8/96 as alluded to by Lb?. Sekabanja. As ho did not cover the whole District, he was justified in relying on information from Election Supervisors to cover the whole District. lj^c was specifically asked if he wont to Cheger^e to which he replied that he did between 11th. and ¹²th of June, 1996 where he found that the Registers vzorc displayed. The evidence of the 2nd. Respondent and those other affidavits which indicated that there wore displays of the Registors of the names of members of Electoral college, raised reasonable doubt as to whether there were no displays as alleged. In those circumstances I am unable to find that the Petitioner had proved beyond reasonable doubt that there wore non displays of Registers of moribers of the Electoral college throughout the ^c onetitn zniy as allogcd.

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$\cdot \cdot$

$(c)$ Devial of Women Council to Vote:-

The Petitioner's case was that a greater number of the members of the Women Council did not vote either because their names did not appear on the Registers or because they were denied to vote on the strength of a circular letter written by the 2nd Rebpondent to the presiding officers. The letter was annexed to the Position and was marked annexiume 'A'. It is dated 15/3/96. In that letter the Returning Officer told the presiding officer and under N. B. thus,

> "there is very little record on Parish Women Council as a result of lack of information on election at L. C. I. You are therefore instructed to ignore Parish Women" Council. Exception is where a village comes with comparete record list of 1994 Women Council Election since after C. A. Election, no election of village Women Council continued. The fielding came in after nomination of Parliamentary Candidates on $21/5/96$ . This fielding has been declared null and void as per circular/ Press release from IEC. In the same Parish and Sub-county, Loc:1 Councils in (a) above (village L. C. I Executives who flow Parish Council, Parish L. C. II Executives who are Sub-county Councillors and Sub-county Executives mervers originating from respective Parishes) who are not democratically elected either in normal or byeelections disqualify. Stand unshaken on this issue please."

That letter was copied amongst others to the Chairman I. E. C. I shall revert to this letter later.

For evidence to prove denial of Women Council to vote, The Petitioner relied mainly on the information she recieved from her agents like, Okello Omara, Ojuka Dickson and Alex Tino to mention a few. According to the Petitioner's affidavit, Okello Ohara informed has that in Alito Sub-county Kole County, Women Council were stopped from voting. Ojuka Dickson and Sophia Comy informed for of the same occurrence at Adyeda Polling Station in Abelo Sub-county. She was also informed by

... $1/16$ .

Ogwang Acura that the same happened in Aboke Sub-county where 30 members of the electronal college did not vote. Time Alex informed her that at Ajok Parish in Kwamia, though the Parish Chilf declared that Women Council in his Parish had been duly elected in 1994, Paulo Odom, o stopped them from voting.

Okello Omara Fingeli awore an affidavit in which he confirmed that Women Council 3 members were barred from voting at Lwala P.7 School Polling Station. He did not talk of the Women Council in the whole of Alito Sub-county being stopped from voting.

Alex Fino also swore an affidavit but discussed the information attributed to her in the Petitioner's affidavit. Attempt was then under by counsel for the Potitioner to have the said Alex Timo declared hostile witness.

Even Neulo Odongo swore an affidavit refuting the avorment made in Lagada's afhidavit against him.

Reverting to the Returning Officer's letter referred to above, it is to be pointed out that the Petitioner blamed the denial of Women Council to vote on this ltter. It was argued that the latter was unlawful since the Returning Officer had no authority to issue such an instruction. It was the view of the Potitioner that by that letters, the Returning Officer gave the presiding officers unlimited powers to bar the Women Council from voting. It was further argued that by that letter, the Refuguing Officer usurped the powers which should have been exercised by the Wribunal.

Counsels for the Respondents did not agree with the above arguments. They contended that the letter was lawfully written by the Returning Officer as an Agent of the I. B. C. That the letter was not, intended to confuse the presiding

$-15 -$

$... / 17$ .

officers but to caution then to screen the eligible voters only to vote\* According to counsels for the Respondents, the letters merely expressed what had been ag cod on at mooting by the candidates and the Returning Officer in the latter'^s office on 19/3/96.

I have had the chance to read that letter and the opinion ^I formed io that ^a correct interpretation of it doos not give the moaning that the Returning Officer intended t.he presiding officers to stop or prevent eligible voters from voting. It merely gave a caution or advice to the presiding officers to screen only eligible voters to vote. I tliink this vzas compatible with the spirit of ensuring a free and fair election contained in the Statute. In doing so, the Rotnn?ning Officer acted as th. agent of \he 1.2.0. The j&fcer was copied to the Chairman I. P. C. and there was no evidence that he objected to it. I would not therefore hold that the Returning Officer acted illegally in issuing that letter.

As regards the proof of denial of Women Council to vote, there had ocm counter affidavits stating that there were no such denial where the councillor's name appeared on the Registers. That means that, a'-better evidence is called for to establish beyond reasonable doubt that Women Council members whose manes were on the Registers of Electoral College wore denied to vote. This type of evidence in my view is the Registers of voters. Unfortunately the Registers had not been produced in evidence. Without such evidence, it is not easy to say that those claimed to have been denied voting were eligible voters.

(d) Rpn-Elt^blc members of the. Electoral Cpl\_log-c wore allpj'Zed to ^uvote^~

The case for the Petitioner was that a sizeable number of

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non-cligible members o? th electoral college were al? owed to vote while a good number of eligible members were refused to voir In support, the affidavits of the following people wore cited:-

(1) Elida Ogi.no of Apao Town Council Eastern Ward, She deponed that Anna Aide, Hetty Clwit and Margaret Oyoo who were all non members of t.'.u electoral college wore allowed by the presidin.';; officer upper central Polling Station Apac Town Council to vote. She further named Hrs. Okcllo Ammon and Erina Ogwang as -ion number of doctoral College both from Agulu who were allovzed to vote.

(2) Ogwan. of I.oro Sub-county, deponed that he was the Petitioner¹ s Polling Agent at Loro Headquarters Polling Station, He -wed Sylvia Olwata as a non member of electoral college who was allowed to vote.

The Respondents denied that non-cligible members of 'the electoral college were ever dlowod to vote, lire. Pose Ctim deponed denying that t.- oso nailed by PiIda Ogino voted. The learned counsels for the Respondents submitted that the allegation had .not been adequately jproved. They argued that in the absence of the Registers of r.e?d.^rs of the Electoral college, it was difficult for court to accurat'cly decide on who was and who -vas not eligible r.cj'i.bcr of the electoral college•

^Z agree with that argumoat because as I .had already mentioned earlier in this judgment, the best evidence- to prove the eligibility or othoi'wise of a person alleged to have voted when not cligiblo to do so is the Register of members of the Electoral college. This would reveal the names of those eligible mom"jors. It was alluded by the Petitioner that the 2nd Respondent was to produce the Register of the Electoral college because he had their possession- In my view the ......... /19. Petitioner oujit in the first place to have sent notice to t?ic 2nd Respondent to produce the Resistor if she wanted the production of the same unless the ease was an exc..ption to that general rule of eviduic.. But no argument was led to tlirow light to that fact. Bor that I would not blame the 2nd Respondent .for not producing the Register when no . notice had been sent to him to produce the scone.

I havu hr.d ».c c.-ancu to read 'ho affidavits filed in support of • ' - al.? nation particularly those of Pilda <O15i.no> a d George Ongoru Both ■Kpono.uts did not disclose the source of thoir laiowlodgc that the persons they named were ?ion-eligible members of the Electoral college. Theii affidavits neve?? disclosed for exa.-iplc whether they had read the Registers 03? the members of the Electoral college and found that the names of those nai?.ed were not included or how they camo to know that they were non-cligable members. Without a clear and cogent avid.,neo as to how they came to the conclusion that those -"hey named were non eligible members of the electoral college, their mere assertion that those wore non eligible mombors of the leetoral college would .not do. It was not enough. Such evidence c m not amount to preof; beyond reasonable doubt. The Registers of members of the Electoral ^colioge re: tains t'■ be-^st ^evi cl.. .nco.

## (e) Un~ ay-tb.orisc.d Borsorts j?llp? .d.jbq handle\_vo ting Tfeteriaj.ssp-

it was the ease for the Petitioner that the 2nd Respondent having refused or failed to publish the names of t ^e presiding officers, consequently on polling day, unauthorised persons wore allowed to and actually handled election loato.rials and even sujx'rviscd the exorcise. In proof, the Petitioner relied on the afiilr^/it *oy.* Phoebi ICLduli of Ongo cung Parisjh i.n ACrJcu Sub-county.

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She demoned that she was the Potitioner's Agent at Ongorong Polling Station. Station. Stational in her affidavit Okello Omach. Ewranuel Amuse and Olong Diek as non-authorised persons who

handled election unterials. According to her affidavit, they brought ballot papers in Comman Adyebo's Vehicle.

The Respondents defined that unauthorised persons over handled election interials. To mustantiate their denial. Old To Onach and Remanuel Amute swore addidavits. In their affilavits that each denied involvement. There was also an affidavit of Ofwary Adaa who was the Presiding Officer of Ongocong Polling Station. Me demied that ballot papers were brought by the persons named by Kidulu. According to Adaa's affidavit, the extra ballet papers were brought by Abal Patrick on Assistant Returning Officer who came in his (the officer's own) vehicle but not in Adyebo's vehicle as sworn by Kiduli. Ogwang further demied that Okello Onach and Emhamuel Asute came to the Polling Station. We attached to his affidavit a declaration of Results Form (FORM DR) which showed that the number of ballot papers issued tallied with the numbers of ballots used as under:-

| | Humber of ballot papers issued | | 128 | |--|--------------------------------|--|--------------| | | Number of ballot papers east | | 125 | | | Number of ballot papers spoilt | | $\sim$ 2 | | | Number of ballot papers used | | $128 \ldots$ |

The above reflated the averant in paragraph 10 of Kiduli's affidavit the number of ballot papers issued and those used did not tally. at Choocag Polking Station.

It is trite law that affidavit being document on eath must be taken seriously. If it contains falsehood it is bound to be rejected. In the instant case, the affidavit of Phoebe Kiduli states what the number of votes east did not tally with

$.../21$ .

$-20 -$

the number of ballot papers issued at Ongoccng Polling Station. ¹ find this to be a false statement in view of the Declaration of Results form. which Kidull herself had signed. Per the *'c* reason I do act believe her affidavit# it is not truthful- I do not therefore find, as sufficiently proved the allegation that unauthorised persons handled election materials#

## (f) Other irre^gt^nriti<,\_s£-

It was ^a further case of the Petitioner t'lat the election exercise was marred by other grave irregularities and illegal practicics by the first and second Respondents personally or by other people \/ith their knowledge, consent and approval-In the particulars of the allegation, these irregularities were named as: -

- (a) Wrongful dojband for voters Card by presiding officers. - (b) Allov/i.iv, so:\e voters to vote twice# - (c) Late com-'cr.coiiient of Tolling at some stations# - (d) Issuance of ballot papers haphazardly# - (s) Wrony^ful, dpieand \_ by .9X£^g.^. hoards fro.n. Vo.ters.:-

It was contended fox\* tJis. Petitioner that some pi'ssiding Officers were demanding voters Card before voters could be allowed to vote. He submitted that such demands were illegal becaused it was not the requirement in the election for Women Ro prescntativo #

Th?# Donga did not agree with that submission. Ho contended that t'u dc.-Jind for voters Card was a require ..'.ent in the election for Women# He cited rule 7(1) in the 3rd# Schedule to the- Statute# ISiis rule says that "Voting procedure laid

.#.../22#

down in the provisions of the statute shall ap ly to the election for Woodn Representatives" He also cited Section 63(1) of the Statute 4 of 1996 which is to the effect that a voter visiting to obtain a Ballot Paper shall produce his/ her Voters Card.

Section 25 of the Parliamentary Election Statute No. 4 of 1996, provides for the issue of voters Cards. There is no provisions in $\mathbf{t}$ , sawe statute for the issue of voters cards to the members of the electoral college for the election of Women Representatives. Even the Rules in the 3rd. Schedule to the statute did not make reference to the issue of such card. In that regard, I mm of the view that a desired for such eard from numbers of the Electorel college was improper. That was an irregularity since production of votors card was net a requirement for Election of Women Representatives. There was however no evidence as to the number of voters turned away because of want of voters card.

- (b) Allowing some Voters to Vote Ivice:-There had not been adequate proof of this allegation. - (c) Late Commencement of Polin:-

There had been allogations of late commencement of voting in some Polling Stations for various reasons. Evidence in proof were provided by Catherine Obura of Akalo, Okello Omara of Alito and Fedrick Luker of Atongtidi. But none of these witnessed stated in their affidevits that because of the late com encoment of the polling, some voters went without easting their votes. Even the neumber of voters who did not vote on this ground were not disclosed.

## Issuance of Ballo: Papers: -

It was the case for the Petitioner that the Returning Officer having failed to prepare voters Registers, ballet

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papers were issued haphazardly. It was argued for the Politioner that the effect of that issuance of ballot papers, was that voting in some stations were interrupted where ballot papers got finished.

The Respondents denied that ballot papers were issued haphazardly. They contended that there was no proof of that allogation.

I could find me evidence that bellot paners were issued by the Returni: Officer hapkazardly. There was however. evidence that in some Pollin; Stations hallot papers not finished but that such shortages were quickly remedied. Examples of that is the affidavit of Ongodo Ogoro Alfonse. He demoned that he was the presiding Officer in Opeta Parish where voting stopped at 3.00 p.m. when all had voted. Amuju Geoffery replied the affidavit of Anna Edule. He depend that <pre>complaint<br>by anybody of missing voting because of</pre> there was no the dolay. According to him voting closed at 4.00 p.m. when all had voted.

From the ovidence available therefore, I find that the allegation of non compliance with the principles laid down in the provisions of the statute 4 of 1996 had not been proved beyond reasonable doubt. Consequently I hold that there was substantial compliance.

In view of that finding, issue No. 2 is also answered in the negative.

The next is issue No. $3 -$ whether illegal practice was committed by the first Respondent personally or by her agents with her knowledge, consent or approval.

It was the case for the Petitioner that illegal practices were committed by the 1st. Respondent personally during

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the election on by her agents with her knwooldge, consent or approval. The kind of illegal practices complained of were bribary of voters, obstruction of voters, undue influence and unauthorized handling of election materials.

The Respondents denied those allegations.

I have perused all the 37 affidavits swern in support of the Petitioners Case. I could find none of these affidavits pinpointing the first Respondent with the Commission of any of the illegel practices complained of.

Cejoria Ogwong of Amii Patish deponed in paragraph 7 of her affidavit that

"during the polling exervise, one Achanga Otee, an agent of the 1st. Respondent did enage in the bribary of voters in the very presence of Ogwang Veto the Presiding officer."

The above evidence is unhelpful to prove such a serious allogation because it did not disclose what act of bribery the said Achanga Oteo actually did to the voters. Secondly, the affidavit did not disclose whether the alleged act of bribery was committed by the agent with the knowledge, consent or approval of the 1st. Respondent.

Raymond Ajeb of Anwangi Parish Massicco also deponed that Etim Armaphroy arrounced to an assumbled voters that they should be proposed to vote for the St. Respondent and later Left with then $30,000/=$ . This affidavit had the same shortcoming. It did not disclose whether that act was condited with the knowledge or approval of the 1st. Respondent.

Leo Otoma of Alido Parish Cawente also depend in his affidavit that

"Bosco Oyotta, (Farish Chica) Fabiano Adul dad Ojwang agents and supporture of the 1st Respondent openly distributed money at the Folling Station and further threatened to assault the Telling Constable."

Similarly the above evidence does not connect the 1st. Respondent with the alleged act of bribery since it was not disclosed whether the act was consisted with the knowledge, consent or ap rovel of the 1st. Respondent.

An allogation of under influence was also made. Peter Ogwong provided Ve evidence. To deponed in his affidavit that Opio Augustian an agont of the 1st. Respondent brought a 20 litrus Jammican of Crude Jaragi within 50 maters of the Polling station of Awir P.7 School in Apac Sub-county Maruzi County. He further depend that the Waragi was used to intoxicate and influence the votors before they casted their votes.

That evidence is also lacking in that it did not connect the 1st. Respondent to the net. It was stated in the affidavit that the 20 Litros Jerrican of Waragi was taken close to the Polling Station. Taking Liquor within such a distance from the Polling Station on Polling day in an offence. But to establish it, requires clear and cogent evidence. There was no evidence that the 1st. Respondent took it there, nor that ab had includge of it, consented to it or approved of it.

From the above evidence, I find that no illegal practice has been adequately proved to have been committed by the first Respondent personally or by her agent with her knowledge, coasent or approval.

This leads me to issue No. $4 -$ If so whether the said

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acts were committed with tlx knowledge, consent and approval of the first Respondent# This ¹ ns already been covered in answer- to issue lie, 3\* The answer is in the negative.

Thu final issue is whether the Petitioner is on-titled to the remedies souht in the; Petition#

TI1c Pc tj. tionur ^sought two re•. io di ^c s: -

(a) that tlx election Result of tlx- Apac District Women Parliamentary lUpresuatutivo be set aside and a, fresh election be held#

(b) that cost of this Petition be provided for.

As I had pointed out earlier in this Judgment, the Pc titione r broug) • t thi^s Pc tition under Sc ^c tion ⁹¹ (1) (a) and (c) of the Parliamentary Elections Statute Mo# ⁴ of 1996# Those were' the grounds on which she fought this Petition# Under See-bion ⁹¹ (l), tlx election of a Candidate as a member of Parliament shall only sp/b j^sid.e jjC .those irounds^zx proved to the sa'bisfaction of tlx court#

In the instant case, thorx grounds on which the Petition was fought were not proved h-.yond reasonable doubt. Consequently the Elect-ion of Apac District Women Parliamentary Representative shell not be set aside#.. The- Petitioner is therefore not untitled to the remedies sought in the Petition Instead, the petition shall be and is hereby dismissed with cost#

Or# TI< OxCHjJjO ,

Judge\* 4/10/96

Mr. Mwesigwa Rubutama holding brief for Mr. Kiapi for the Petitioner.

Mr. Dongo Opar for the 1st. Respondent. Mr. Byemugishe for 2nd. and 3rd. Respondents. $\overline{a}$ Mr. Opio Edward - Court Clark.

Court Judgmont Delivered.

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$C$ Chile<br>G. N. CICELLO Judge

4th October, 1996