.RU

PARTICULARS OF OFFENCE - Coram: odoki, cj, oder, tsekooko, karokora, mulenga, kanyeihamba and katureebe, jj. Sc

PARTICULARS OF OFFENCE



Dr. Byamugisha first contended that the accompanying affidavit of the petitioner especially para 10 does not set out the particulars of the offences of which the petitioner complained. He relied on

Bullen, Leake and Jacobs, Precedents of Pleading

and contended that the petitioner should have pleaded particulars of the offences. He criticised Mr. Matovu for failure to provide authority for his proposition that the alleged offences constitute strict liability. Dr. Byamugisha relied on the Australian case of

He Kaw Teh Vs. R(1986) a LRC (Crim.)

page 553, where the High Court of Australia held that “the presumption that

Mens rea

is required before a person can be held guilty of a grave criminal offence was not displaced in relation to [(S.233 B(1) (b) of the Customs Act, 1901 of Australia ].

In other words Dr. Byamugisha is of the view that the provisions cited by Mr. Matovu do not create strict liability. He contended that because allegations in the petition, if accepted, are serious in that they result in nullification of the election,

mens rea

has to be proved.

CAUSE OF ACTION



Dr. Byamugisha contended also that the petition does not disclose a cause of action because it did not allege that there was malice. ( I think that Para 11 (a) of the petition alleged malice). Counsel argued that it neither plead that the 2nd respondent was abusive nor that he called the petitioner a false prophet. Learned counsel relied on

Order 6 Rule 2 of CP Rules and Charan Lal Sahu Vs Singh & Another (1985) LRC (const.)

31, a decision of the Supreme Court of India, where that Court discussed the need for precision in pleadings in election petitions.

Dr. Byamugisha submitted that paragraphs 10 to 20 of the petitioner’s affidavit breached

Order 6 rules 2 of the CP Rules

in as much as they do not allege that the 2nd respondent made certain statements while campaigning in which case the allegations do not give the 2nd respondent a chance to respond to those allegations in a specific manner. He further contended that there is no evidence to support the allegation that the 2nd respondent contravened S.24 (5) of the PEA, because there was no evidence by affidavits read in court to support allegations in paras 10 to 20 of petitioner’s affidavit, there was no cause of action.

May I observe here that the argument by learned counsel for the respondents that we should ignore affidavits supporting the petitioner which were not read or specifically referred to in court ignores the fact that the respondents’ counsel never read out most of the affidavits of respondent’s witnesses. He only produced an index of those affidavits and even then, some were not indexed. Should those be ignored, too? I don’t think so.

FREEDOM OF EXPRESSION



Dr. Byamugisha urged court to bear in mind that under section 23(2) of PEA, candidates enjoy unhindered freedom of expression when campaigning for the presidential office. He relied on the decision of this Court (the judgment of Mulenga, JSC) in

Charles Onyango Obbo & Another Vs Attorney General Constitutional

Appeal

No.2 of 2002 (pages 16 to 17 in regard to the extent of freedom of expression). Learned Counsel contended that if both S.24 (5) and S. 23 (3) (b) of the PEA are to be preserved as law, they have to be read in conformity with the Constitution. He relied on the

Bill of Rights Handboo

k 4th Ed. Para 3.7, headed

Indirect Application of the Bill of Rights To Legislation

.

At page 70, the author states that: -

Since the Bill of Rights binds all the original and delegated law-making actors, it will always apply directly to legislation. But, before a court may resort to direct application and invalidation, it must consider indirectly applying the Bill of Rights to the statutory provision by interpreting it in such a way as to conform to the Bill of Rights. The indirect application of the Bill of Rights to legislation has become known as “reading down.”



Thereafter the author discusses, at page 71, the meaning of “Reading Down” in relation to certain sections of the Constitution of South Africa which are on the Interpretation of the Bill of Rights.

Dr. Byamugisha urged us to make liberal interpretation of Ss.24 (5) and 23 (3) (b) which allow candidate’s right to campaign. He relied on

Halsburys’ Laws of England

, 3rd Ed. Vol.14 pages 226 and 227, paragraph 394, as well as

Election Laws 3

rd

Ed., by

S. K.Gosh,

pages 149/150. The latter book is a commentary on the India election laws, especially regarding proof of allegations of corrupt practices. Dr. Byamugisha replied in answer to a question from court that if one section of PEA contradicts another, Court should uphold the section which is in conformity with the Constitution. He referred to paragraph 8 of the affidavit of the 2nd respondent accompanying his answer and submitted that in sub- paragraphs (a) to (h) of that affidavit, the 2nd respondent had to counter all the petitioner’s accusations, falsehood and misleading statements, contending that what his client stated were correct and honest statements during a political campaign for the Presidency. He cited

Hibbs (Clerk) Vs Wilkinson

IF & F 873 at para 610, a case decided in 1859 and which is a case of libel. (Here learned counsel contradicts, by implication, his earlier contention that allegations in the petition did not show that his client’s statements were made during campaigning. In fact the petitioner alleged that the statements were made during campaigns by the 2nd respondent and in para 11(a) of the petition the petitioner alleged malice.

Dr. Byamugisha urged that the contents of paras 10, 11, 12 & 13 of his client’s affidavit, show that paragraphs 10 to 20 of the petitioner’s affidavits cannot be true. According to Counsel, there is nothing false in para 12 of his clients affidavit, because politicians use colourful language which description is borrowed from the opinion of the Supreme Court of India (supra). Counsel justified what his client said explaining the need for the 2nd respondent to state what is contained in his affidavit and in that of Hon. Daudi Migereko to explain away Musumba’s second affidavit, as well as affidavits of Nandala Mafabi, Ekanya and other MPs. These MPs of the last parliament were blamed for being responsible for shortage of electricity and whether or not these MPs were FDC members at that material time. Dr. Byamugisha further contended that the supplementary affidavit of the petitioner in reply to the 2nd respondent’s answer cannot be used to support the petition as the reply was filed out of time. Counsel cited

Interfreight Forwarders Vs Uganda Development Bank

(at pages 2068 & 216) and

Norman Cameron Vs Sir Philip Fysh

(1904) HC of A 314) page 55 of R) The latter case appears to support the proposition that a petitioner cannot be allowed to belatedly introduce new facts to be relied upon to invalidate an election after the time allowed by law for presenting a petition has elapsed.

BRIBERY



Dr. Byamugisha submitted that bribery was originally not pleaded in the petition, but it was raised after the time of pleading. He contended that his client denied the bribery allegations pleaded in para 12 of the petition. He contended that counsel for the petitioner did not canvass it neither was evidence adduced to prove the allegation of bribery. So bribery was unsubstantiated. He also contended that there are no affidavits to support allegations of the giving out of saucepans, water containers and other gifts.

Learned counsel contended further, in effect, that Salaamu Musumba’s affidavit on disbursement of money is valueless because Musumba did not disclose the source of her knowledge and that in any case the second respondent answered the allegations in his own affidavit. Learned Counsel then arged that money given out was for facilitation as defined in S.64 of PEA, which is different from bribery as defined in the same section.

Counsel argued that money given out as stated in the affidavit of the second respondent was for the facilitation of NRM party functionaries/agents. He contended that there is no voter who has proved that he received money from the 2nd respondent. When counsel’s attention was drawn to the affidavits of Zedekia Karokora who deponed about distribution of money by NRM task force in Rukungiri and of Umar Bashir, learned counsel contended that Bashir was only asked to cross over and campaign and that Bashir never claimed he was given money as a voter. Counsel rubbished the evidence of many witnesses (already mentioned in these reasons) who deponed that they were paid between 300/= and 500/= because, according to Dr. Byamugisha, this amount was miserable and not evidence of countrywide bribery within the scope of S.59 (6) (a) of PEA.

He made references to affidavits of Najjemba and of Henry Lukwiya and contended that shs 100,000/= paid on 24/12/2005 was not a bribe and that there was no evidence that Lukwiya was a voter.

In view of the provisions of S.64 (1) of the PEA, Dr. Byamugisha’s views on this matter is with respect incorrect. Subs (1) of section 64 states as follows: -

A 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……………”



He relied on

Gosh’s

Election Laws

(Supra), pages 348 and 354 which explains how the inference of guilt can be made and on corrupt practices generally. He prayed that we should answer the 4th issue in the negative.

Mr. Ogalo Wandera wound up on behalf of the petitioner. In effect he contended that the petition disclosed a cause of action and it satisfied

Rule 4(2) of the Presidential Elections (Election Petition) Rules, 2001

. He argued that affidavits filed subsequent to the lodging of the petition provided requisite facts and particulars and complied with the law.

I agree with the view that proof of commission of an electoral offence or a practice results in annulment of the election, as president, of a candidate proved to have personally or through any agent committed an offence. This is evident from the reading of S.64 (1) and S.59 (6)(c). The latter reads as follows:

59 (6) The election of a candidate as President shall only be annulled on any of the following grounds if proved to the satisfaction of the court-



(a)…………………………………………………………………………….



(b) ……………………………………………………………………………



(c) that an offence under this Act was committed in connection with the election by the candidate personally or with his or her knowledge and consent or approval.”



In the 2001 Presidential Election Petition, I had occasion to discuss S.58 (6) (c) of the Presidential Elections Act 2000 which is almost identical to the above quoted provision. At page 132, I said…………

In the case before us, learned counsel were content to say that the standard of proof should be to the "

satisfaction of the Court,"

meaning that it is beyond the standard of the preponderance of probabilities and yet below the criminal law requirement of proof beyond reasonable doubt. This approach is about the same, as did

Lord Denning

in the

Bater case

(supra)

.



Draftsmen of legislation appear to be in the habit of sticking to well trodden paths. I say this because the expression of proof to the satisfaction of the Court is used in many legislations (both penal and non-penal) and yet when Courts are called upon to try criminal cases arising under penal enactments, those Courts require the prosecution to prove criminal charges under investigation beyond reasonable doubt. I know it is convenient and perhaps, a matter of practical draughtsmanship for legislative draftsmen to follow the old path of precedent. However I wonder why draftsmen of our election laws have avoided the inclusion of the commonly used expression of "proof beyond reasonable doubt" in the various enactments such as PEA. For this reason, I do not, with respect, subscribe to the view that the expression "proving to the satisfaction of the Court" inevitably means proof beyond reasonable doubt. I think it is safer to apply the words themselves and say that the standard of proof required to nullify an election of a President after a Presidential Election, must be proof to the satisfaction of the Justices trying the petition, namely proof so that the trial justices are sure that on the facts before them one party and not the other party is entitled to judgment.”

Mr. Ogalo Wandera raised the important point about the agency relationship, in a multiparty politics election, between a presidential candidate and his or her agents who are party functionaries. Apart from making a passing reference on facilitation of party functionaries, Dr. Byamugisha did not, as far as I can recall, address us on the question of agency relationship between a candidate and his or her party’s functionaries as regards responsibility or liability for acts of those agents in the conduct of electioneering under multiparty politics system elections.

Section 1 of PEA defines an agent as follows

:



Agent by reference to a candidate, includes a representative and polling agent of a candidate.”



Under the Act a polling agent is an agent of a candidate. Obviously, a candidate would be bound by the acts of his polling agent such as the signing of declaration of results forms. The important question is how would a candidate be bound by such agent’s offence(s) or illegal practice?

Under the law of agency, an agent is a person employed to act on behalf of another. An act of an agent done within the scope of this authority, binds his principal.

The definition in the Act does not say clearly whether party functionaries are or are not agents of a presidential candidate. However the affidavit of the 2nd Respondent explained aspects of this matter.

What about a representative? He/she is an agent. It is logical to infer from paragraphs 5 to 9 of the affidavit of the second respondent as to who would be an agent of a candidate. I reproduced these when I discussed the 3rd issue. Zedekiya Karokora confirms this in para 6 of his affidavit where he states that “the money I paid to Ruraka George and other sub county chairmen in Rukungiri District was received from the NRM National Task Force through the NRM task force for facilitation to the village or branch task forces to procure pens, writing pads, refreshments during campaign organization meetings to enhance the campaign effort and to contribute to the NRM candidates for various seats.

The obvious inference that flows from the contents of the said paras 5 to 9 of the affidavit of the 2nd Respondent is that in so far as NRM was concerned, members of the branch or village task forces and NRM functionaries were agents of party candidates at all levels of elections. In particular, they were agents of the second respondent for purposes of the Presidential election. It is thus clear from his own affidavit that the 2nd respondent and the NRM Central Executive Committee authorised their agents to carry out electioneering for the 2nd respondent in the presidential election. Those agents were to contact individual voters and persuade those individual voters to vote for the 2nd respondent. So if a member of the task force succeeded in persuading any body to vote for the 2nd respondent, the act of persuading a voter to vote for the 2nd respondent would be presumed to have been done with the knowledge and consent of or approval of the 2nd respondent because he and the Central Executive Committee knew or consented and approved the fact that the branch or village task force will have to make personal contact with individual voters to woo such voters to vote for the 2nd respondent for the office of President. That is why the Central Executive Committee set aside money to be paid to the task force, or party functionaries, at all levels for the purpose of furthering the task of physical contact with voters and persuading, voters to vote for the 2nd Respondent or for an NRM candidate for any office.

The question that arises then is: where a candidate and or his party have, as in this case, authorised agents to use physical contact to persuade voters, in what manner and to what extent can the physical contact and persuasion go? In other words what are the limits of the authority thus given? Can it be reasonably inferred that the candidate consented to or approved the giving of money or gifts to voters? What is that giving? Is it bribing? Should the 2nd respondent be exonerated from the act of any agent or party functionary who bribes voters? Mr. Ogalo Wandera has argued that the 2nd respondent is liable or responsible for acts of bribery by agents or party functionaries.

Dr. Byamugisha made three pronged reply to this. First he submitted that bribery was not pleaded and secondly that there was no evidence to support any bribery. Again learned counsel contended, in reference to Umar Bashir Kakoza and Henry Lukwaya, that there was no evidence that any of them was a voter. Third he argues that even if there is evidence of bribery, such evidence is not wide spread. Learned Counsel rubbished the evidence of witnesses such as those from Musoola in Mbale District or at Buseta (Janees Kiige) in Pallisa and Busia who deponed that the

2

nd

respondent’s agents

paid them between shs 300/= and shs 1000/= as being trivial. That a whole president could not pay shs 300/= as a bribe. Learned counsel does not seem to appreciate that to a peasant shs 300/= or 500/= at a given moment is money. Moreover that little money is not alleged to have been limited to only one location. There is evidence of this in Mbale, in Pallisa, in Nebbi, in Kabale, Palisa, and so on.

S.23 of the PEA relates to equality of treatment, freedom of expression by and access to information of a presidential candidate during campaign period. Similarly S.24 sets out what are called rights of a presidential candidate during the campaign period. On some aspects the two sections appear to contradict each other. Rights given to candidates in S.23 are whittled away by S.24.

I have no hesitation in accepting the view that Ss. 23 and 24 of PEA should be read together with the Constitution. But I would not accede to the argument that S.23 gives licence to candidates to say what they imagine or what they please without limitation.
In order to appreciate the contentions of the parties regarding offences alleged to have been committed by the 2nd Respondent, the context of both S.23 (3) (b) and S.24 (5) has to be set out. This means setting out the two sections.

S. 23 On equal treatment, freedom of expression and access to information of candidate reads this way –

“(1) During the campaign period, every public officer and public authority and public institution shall, give equal treatment to all candidates and their agents.



  1. Subject to the Constitution and any other law, every candidate shall enjoy complete and unhindered freedom of expression and access to information in the exercise of the right to campaign under this Act.



These above two sub sections together with S. 24 (1) and (2) (infra) or rights/entitlements of a candidate during campaign period.

Then subsection (3) states: -

  1. A person shall not, while campaigning, use any language-



    1. which constitutes incitement to public disorder, insurrection or violence or which threatens war; or



    2. which is defamatory or insulting or which constitutes incitement to hatred.”



Relevant parts of section 24 on the rights of candidates reads this way. During campaigns –

24 (1) All presidential candidates shall be given equal treatment on the State owned media to present their programmes to the people.


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