THE REPUBLIC OF UGANDA

IN THE COURT OF APPEAL OF UGANDA, AT KAMPALA

ELECTION PETITION APPEAL NO.30/2011

MUGEMA PETER :::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT

VERSUS

MUDIOBOLE ABEDI NASSER :::::::::::::::::::::::::::::::::RESPONDENT

(An appeal from the Judgement and Orders of His Lordship, The Honourable Mr.
Justice Lameck.N. Mukasa delivered at Jinja on the 20 th day of August 2011, in Election
Petition No.7 of 2011)

10 CORAM:

HON.JUSTICE A.E.N. MPAGI-BAHIGEINE, DCJ

HON. JUSTICE A.S. NSHIMYE, JA

HON. JUSTICE REMMY KASULE, JA.

JUDGEMENT OF REMMY K. KASULE, JA

This is an election appeal from the Judgement and Orders of the High
Court (Lamek.N. Mukasa; J.) Sitting at Jinja, delivered on the 20 th day of
August, 2011, in Election Petition No.7 of 2011.

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 The learned trial judge allowed the petition on the sole ground that the
appellant, 1st respondent in the court below, had committed an illegal
practice of fundraising by donating Shs.100,000/= towards construction of
St. Gonzaga Prisons Chapel during the campaign period of the
Parliamentary Elections. The trial judge set aside the election of the
appellant as Member of Parliament, Iganga Municipality Constituency. The
Electoral Commission was directed to organize and conduct fresh elections
for the constituency.

10

The appellant was ordered to pay 40% of the respondent’s taxed costs in
the High Court. As between the respondent and the Electoral Commission,
each party was to bear its own costs.

GROUNDS OF APPEAL

Dissatisfied with the judgement of the trial judge in the court below, the
appellant appealed to this court on three (3) grounds:-

1. The learned trial judge of the High Court erred in law in

disregarding the testimony of Rev. Fr. Ndanda given under oath
20 in court.

2. The learned trial judge of the High Court erred in law and in fact
in finding that the appellant committed an illegal practice by
carrying on fundraising and donating money in the sum of Ug.
2
 Shs.100, 000/= (Uganda Shillings One Hundred thousand only)
at the fund raising for St. Gonzaga Prisons Chapel.

3. The learned trial judge of the High Court erred in law in finding
that the appellant by participating in the fundraising of his
church, St. Gonzaga Prisons Chapel, committed an illegal
practice.

The appellant prays that this appeal be allowed, the judgement of the High
Court be set aside, declare that the appellant was validly elected Member
of Parliament for Iganga Municipality Constituency. Appellant also prays to
10 be awarded costs of the appeal and those in the court below.

Legal Representation:

The appellant was represented by learned counsel Kiryowa Kiwanuka

assisted by Thomas Ochaya. Learned Counsel Ambrose Tebyasa assisted
by Denis Kwizera represented the respondent.

Agreed facts:

The Electoral Commission conducted elections for directly elected Member

of Parliament for Iganga Municipality Constituency on the 18th February
20 2011. The appellant, the respondent, as well as Kawudha Grace, Mwiri
Med Mohamed and Naigubya Tommy Mukwenda were all candidates in the
elections. The Electoral Commission declared the appellant winner with
7,288 votes while the Respondent, was the runner up with 6,652 votes.
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 The respondent not being satisfied with the results, petitioned the High
Court at Jinja vide Election Petition No.7 of 2011, on the grounds that the
elections were not conducted in compliance with the provisions and
principles of the Constitution, the Electoral Commission Act and the
Parliamentary Elections Act, 2005. Consequently this affected the results
in a substantial manner. The trial court heard the petition and allowed the
same. Hence this appeal by the appellant.

Issues for determination on appeal:

10 These are the same as the grounds of appeal.

Submissions:

a) For appellant:

As regards issues 1 and 2, counsel for appellant criticized the learned trial
judge for disregarding the oral evidence of Rev. Father Ndanda which, if
accepted, would have established that the appellant did not commit the
illegal practice of fundraising at Iganga Prisons Chapel, on 13.02.2011.
Father Ndanda’s testimony given in court on oath ought not to have been
disregarded as it was valid evidence, from a competent witness, his
20 affidavit having been held by court to be incompetent notwithstanding.

4
 Further, the trial judge ought not to have relied upon the affidavit evidence
of Luganda Alex, who testified for respondent, because this witness was
evasive and untruthful. This witness claimed to have been in Kampala on
08.06.2011 at 3:00p.m to depone to his affidavit, yet he was seen in Iganga
at about the same time on the same day. So his affidavit evidence was
suspect.

As to the affidavits of the respondent’s witnesses, Hassan Muyinda and

Paul Waiswa, these ought to have been rejected according to the
10 appellant’s counsel, because no fees were paid upon them when being
filed in court. They did not have any endorsements or stamps to show
payment of such fees.

The same affidavits of both witnesses were wrong in law and ought to have
been rejected as the jurat of each did not indicate the place where they had
been sworn. Each one of them had no certificate of translation, yet the
deponents, according to the evidence, were not conversant with the
English language, the language of the affidavits.

20 The appellant had denied participation in the fund-raising and with the
rejection of the affidavit evidence of Hassan Muyinda and Paul Waiswa,
then there would be no credible evidence to prove the allegation of the
appellant’s having participated in the fund-raising at St. Gonzaga Prisons
Chapel.
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 In respect of the third issue, appellant’s counsel submitted that Article 29
(1) of the Constitution protected the appellant’s right to participate in
activities of his faith. By attending a function of his church, appellant
cannot be held to have engaged in fundraising and thus committing an
illegal practice.

Appellant’s counsel prayed to have the appeal allowed with costs.

b) For Respondent:

10 For the respondent, counsel Tebyasa, maintained in respect of

grounds 1 and 2, that the trial judge rightly rejected the evidence of
Rev. Fr. Ndanda as his affidavit had not been properly
commissioned. The evidence of testimony in court by this witness
was tied up with that of his affidavit evidence and accordingly the
same collapsed when the affidavit evidence was rejected by the trial
judge.

According to counsel, the appellant must be taken to have admitted

taking part in the fundraising since he did not specifically deny having
20 done so. This is the more so, given the fact that, the evidence of
Luganda Alex, Hassan Muyinda and Paul Waiswa pinned the
appellant as having participated in the fundraising at St. Gonzaga
Prisons Chapel. The trial judge observed the demeanour of these

6
 witnesses and found them to be truthful. The affidavit sworn by each
one of these witnesses had been, according to counsel, properly
commissioned and drawn up and each one was valid evidence.

As to non-payment of fees, there was no evidence of this as the

magistrate who commissioned them clearly testified to court that he
had seen the receipts of payments of fees before he commissioned
each affidavit. That there was no such endorsement on the affidavits
was a minor discrepancy which should not divert the court from doing
10 substantial justice.

In respect of the third issue, respondent’s counsel urged this court to

strictly interpret section 66 (7) and (8) of the Parliamentary Elections
Act. The intention of Parliament was to restrain candidates from
participating in fund-raising during campaign period. Therefore
Article 29 (1) (c) of the Constitution was inapplicable. Counsel invited
court to dismiss the appeal with costs.

c) Appellant Counsel’s reply:

Counsel reiterated in reply that the appellant never admitted to

20 participating in the fundraising. There was, at any rate, nothing
wrong for one to participate in the activities of his church. The law as
to illegal practice of fund-raising must not be interpreted as taking
away the constitutional right of one to participate in the activities of
his church. Counsel once again prayed court to allow the appeal.
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 The duty of this court:

The duty of this court, this being an appeal of first instance, is set out
in rule 29 of the Rules of this court. On a first appeal, an appellant is
entitled to have the appellate court’s own consideration and views of
the evidence as a whole and its own decision thereon. The first
appellate court has a duty to re-hear the case and to reconsider the
materials before the trial judge. The appellate court must then make
up its mind by carefully weighing and considering the evidence that
was adduced at trial.

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When the question arises as to which witness is to be believed, and

resolution of that question turns on the manner and demeanour of the
witness, then the appellate court must be guided by the impression
made by the trial judge who saw the witness at trial.

However, there may be other circumstances, apart from the manner

and demeanour of a witness, which may show whether a particular
statement of a witness is credible or not, which may warrant a court in
differing from the trial judge even on a question of fact turning on the
20 credibility of a witness whom the appellate court has not had the
opportunity to see at trial.

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 The duty of a first appellate court to re-appraise or re-evaluate the
evidence applies to both oral testimony of a witness in court as well
as to affidavit evidence, except in case of the affidavit evidence
where the deponent is not cross-examined on the affidavit in court,
the issue of demeanour of a witness does not arise: See: Judgement
of Oder, JSC, (RIP) in Supreme Court of Uganda Civil appeal
No.8 of 1998: BANCO ARABE ESPANOL VS BANK OF UGANDA.

This being an appeal in an election petition of first instance, this court

10 cautions itself, like the trial court also ought to have cautioned itself
that, in re-appraising and re-evaluating the evidence adduced at trial,
regard must be had to the fact that witnesses, though not necessarily
always, tend to be partisan in supporting their candidates against the
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 court to have the authenticity of
such evidence to be tested from an independent and neutral source
by way of collaboration. See: Uganda Court of Appeal Election
Petition Appeal No.7 of 2006: MBAYO JACOBS VS ELECTORAL
20 COMMISSION & ANOTHER, Judgement of Lady Justice C.K.
Byamugisha, JA. See also the Tanzanian court of Appeal case of
NELSON VS ATTORNEY GENERAL & ANOTHER [1999] EA 160.

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 I am to re-evaluate and re-appraise the evidence in this appeal
bearing in mind the above stated principles.

Burden and standard of proof:

The burden of proof lies on the petitioner to prove the assertions in

the election petition and the standard of proof required is proof on a
balance of probabilities according to Section 61 (1) and (3) of the
Parliamentary Elections Act. See: also Supreme Court of Uganda
Election Petition Appeal No.18 of 2007. Mukasa Anthony Harris
10 Vs. Dr. Bayiga Michael Philip Lulume.

Though the standard of proof is set by the statute to be on a balance

of probabilities, because of the public importance of an election
petition, the facts in the petition must be proved to the satisfaction of
the court. A petitioner has a duty to adduce credible and/or cogent
evidence to prove the allegations to the stated standard of proof:
see: Court of Appeal Election Petition appeal No.9 of 2002:
Masiko Winifred Komuhangi Vs Babihuga J. Winnie

and also

20 Court of Appeal No.6 of 2011: Paul Mwiri Vs Hon. Igeme Nathan

Nabeta and Two Others (Byamugisha, JA).

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 In Blyth Vs Blyth [1966] AC 643 Lord Denning observed as to the import
and meaning of the word “satisfied” that:

“The courts must not strengthen it, nor must they weaken it. Nor
would I think it desirable that any kind of gloss should be put upon it.
When Parliament has ordained that a court must be satisfied only
Parliament can prescribe a lesser requirement. No one whether he be
a judge or juror would in fact be “satisfied” if he was in a state of
reasonable doubt………..”

Odoki, C.J. in Col. (Rtd) Dr. Besigye Kiiza Vs Museveni Yoweri Kaguta
10 and Electoral Commission, Election Petition No.1 of 2006, agreed and
applied the above observations of Lord Denning. He stated:

“It is true court may not be satisfied if it entertains a reasonable

doubt, but the decision will depend on the gravity of the matter to be
proved……”.

Resolution of issues:

Bearing in mind the principles of law stated above as to the duty of this
court as the first appellate court and the burden and standard of proof
required in an election petition, I now proceed to resolve the issues in this
20 appeal.

(i) Competency of affidavits:

Appellant submitted in respect of a number of affidavits that the same

ought to have been rejected by the trial judge for non-payment of fees on
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 their being filed in court, that the jurat did not show the date and place
when and where the oaths on them had been taken. Further, that there
were no certificates of translation on these affidavits and that the
deponents had not been identified by the commissioner for oaths.

The evidence of the commissioner for oaths, Oluge Richard, who handled
the affidavits, was to the effect that he saw a number of receipts of
payment of fees on these affidavits, and that, though not bearing
certificates of translation, the contents, in the affidavits were first translated
10 into Lusoga before the deponent signed. He also administered an
oath/affirmation to each deponent before signing.

I am satisfied on the review and re-appraisal of the relevant evidence that

the affidavits were paid for on being lodged and that the contents thereof
were translated into Lusoga to the deponents before each one signed. The
rest of the complaints such as lack of a jurat or certificates of translations
are procedural transgressions and cannot prevent this court from
administering substantive justice. I therefore find that the affidavits in
question constituted valid evidence and the trial judge was right to rely on
20 those affidavits that he chose to rely on to reach the conclusions that he
arrived at.

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 (ii) Testimony of Rev. Fr. Vincent Ndanda:

Consideration of the issue relating to the testimony of Rev. Fr. Ndanda

revolves upon the trial judge’s finding.

“I find that the petitioner has proved that the 1 st respondent

committed the illegal practice by carrying on fundraising and
donating money in the sum of Shs.100,000/= at the fundraising for St.
Gonzaga Prison Chapel.”

The learned trial judge came to this conclusion basing himself on section
10 68 (7) (8) and (9) of the Parliamentary Elections Act, as amended by the
Parliamentary Elections (Amendment) Act No.12 of 2010; which he applied
to the evidence that was before him, after whose analysis and evaluation,
he reached the stated conclusion.

The evidence in the nature of affidavits and some oral testimonies in cross-
examination on the contents of the affidavits, that was before the trial
judge, was that of the petitioner, now respondent to the appeal, and that of
his witnesses Hassan Muyinda, Waiswa Paul and Alex Luganda. The
evidence in rebuttal was that of the appellant, then respondent to the
20 petition and that of his witness Rev. Fr. Vincent Ndanda.

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 The issue for resolution is whether or not the learned trial judge was right in
law to disregard the testimony of Rev. Fr. Vincent Ndanda given under oath
in court.

Fr. Vincent Ndanda stated in his affidavit dated 08.06.2011 that he was
then a Roman Catholic Parish priest of St. Peter Claver Church, Iganga
Municipality, Iganga District. The appellant had belonged to his church for
the last 8 years. On 13.02.2011, he conducted mass and a ground
breaking ceremony at the proposed site for Iganga Prisons Chapel. The
10 appellant appeared towards the end of the function. The witness
administered a blessing to the appellant who stated that being a candidate
during election period, he could not engage in fundraising. He however
promised to avail a bag of maize to the construction workers in future when
the construction would have begun. He was to do this as a member of the
choir of the church. According to this witness, the appellant did not
campaign at all, did not offer cash of 100,000/=, a bag of maize flour there
and then, or pledge to give in future a trip of aggregate stones for the
chapel construction.

20 Fr. Ndanda was cross-examined in court before the trial judge on

11.07.2011. His testimony under cross-examination was on oath.
Regarding how he came to depone to his affidavit of 08.06.2011, he
explained that he signed the same in the chambers of counsel for the
appellant in the presence of Counsel Thomas Ochaya, a member of the

14
 firm of lawyers representing the appellant. After signing the affidavit he left
the lawyers’ chambers.

The learned trial judge, on perusing the affidavit of Rev. Fr. Ndanda found
that it had been commissioned by one NOAH EDWARD MWESIGWA, an
advocate and a commissioner for oaths, and not counsel Thomas Ochaya.
He therefore found that the affidavit had not been legally commissioned
and he rejected the same and struck it off the record.

10 Section 5 of the Commissioners for Oaths (Advocates) Act, cap.5, and

section 6 of the Oaths Act, cap.19 and Rule 7 of the Commissioners for
Oaths Rules require a deponent of an affidavit to personally appear and
sign the affidavit before the Commissioner for Oaths and swear by saying
or repeating after the commissioner administering the oath the words
prescribed by the law. The place and date of attestation must also be
stated in the affidavit. Before signing, the commissioner must ensure and
satisfy him/herself that the person signing is the one who is stated in the
affidavit and that the contents in the affidavit are of that person’s own
knowledge. Where the same are based on information or some other
20 sources, then the grounds of belief and the sources of information must be
disclosed. The commissioner must be satisfied, in all the circumstances
that the deponent understands fully what he/she is deponing to.

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 The Supreme Court in Election Petition Appeal No.1 of 2007 Kakooza
John Baptist Vs The Electoral Commission and Anthony Yiga upheld
the decision of both the High Court and Court of Appeal to reject the
affidavit of a deponent who had, explained as to how he had deponed to an
affidavit thus:

“I read through the affidavit, signed it before I sent it to the

Commissioner.”

I find, on the basis of the evidence and the law before me, that in this case,
10 the trial judge was right in rejecting and striking off the affidavit of Rev. Fr.
Ndanda.

The complaint of the appellant however, in this appeal, is that in the course
of the cross-examination of Rev. Fr. Ndanda on the contents of his affidavit,
he testified on oath by way of oral evidence, which evidence supported the
appellant’s case. It is the case of the appellant that the trial judge ought to
have considered this evidence that was given viva voce before reaching
the conclusions that he reached the rejection of Fr. Ndanda’s affidavit
notwithstanding.

20

The respondent’s contention, on the other hand, is that once an affidavit is

struck off the record, all the evidence elicited in cross-examination, in

16
 connection with that affidavit, must also be expunged from the record and
the court cannot rely upon it in resolving the issues at hand.

Rule 15 of the Parliamentary Elections (Election Petitions) Rules provides

that evidence at the trial in favour of or against the petition shall be by way
of an affidavit read in open court. With leave of court, a person swearing
an affidavit which is before the court may be cross-examined by the
opposite party and re-examined by the party on behalf of whom the affidavit
is sworn.

10

Section 58 of the Evidence Act provides that facts in a case, except the
contents of documents, may be proved by oral evidence. This evidence
must be direct in that, if it refers to a fact that could be seen, then the one
who saw it, if it refers to a fact that could be heard, then the one who heard
it, if it refers to a fact that could be perceived, then the one who perceived it
and if it refers to an opinion or grounds of that opinion, then the one who
holds that opinion must be the one to testify.

An affidavit is a statement/declaration in writing made on oath/affirmation

20 before one having authority to administer an oath/affirmation. It is made
ex-parte, unlike evidence given orally in open court in the personal direction
and superintendence of a judge. While the opposite party has opportunity
to cross-examine the one giving oral evidence, in case of an affidavit, the
deponent to it can only be cross-examined on the contents of an affidavit
17
 after the affidavit has been deponed to, filed in court or in the cause, and
usually with the permission of the court or whoever is presiding over the
cause. See WARNER VS MOSSES, 16 ChD 100 at Page101.

However, unless it is by agreement of the concerned parties or by some

legislation, that evidence in a cause shall be by affidavits alone, a party
may supplement affidavit evidence by viva voce evidence in court. See
GLOSSOP V HESTON & 1 LOCAL BOARD, 47 LJ Ch.536. Also where
court finds affidavit evidence to be unsatisfactory, it has jurisdiction to
10 exclude the affidavits and to direct the witnesses to be examined orally not
withstanding any agreement to the contrary: See Re whiteley, 1891, 1 Ch
559. See also SARKAR ON EVIDENCE, 14TH ED. P.2188.

I conclude, on the basis of section 58 of the Evidence Act and on

appreciating the above legal authorities on the point, that evidence given to
court on oath viva voce, under the supervision and superintendence of a
presiding judge, is proper and valid evidence that the court must consider.
It is up to the presiding court presiding to consider the said evidence
together with the fact that the affidavit evidence has been rejected or has
20 been contradicted, and then decide what value to put on such evidence.

Accordingly I hold that the learned trial judge was in error to reject the viva
voce evidence of Rev. Fr. Vincent Ndanda given on oath under cross-

18
 examination on the ground that Rev. Fr. Ndanda’s affidavit had been
rejected. This ground of appeal thus succeeds.

(iii) Whether or not the appellant committed an illegal practice of

fundraising:

The essence of appellant’s contention is that the learned trial judge erred in
law and fact when he found that the appellant had committed an illegal
practice by participating in fundraising and that the fundraising was
constituted in the acts of the appellant attending a ground breaking
10 ceremony by the local Roman Catholic Church for St. Gonzaga Prisons
Chapel and donating Shs.100,000/= towards the construction of that
church.

In the court below, the respondent alleged in paragraph 28 (b) of his

affidavit supporting the petition, that on 13.02.2011, a date in an election
period, the appellant participated in a fundraising for construction of a
catholic prison chapel, where he donated Shs.100,000/=, a bag of maize
flour (posho) and pledged a trip of aggregate stones.

20 The respondent had not attended the function and so his allegations were
as a result of information given to him by third parties who claimed to have
attended the function.

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 My re-appraisal of the evidence adduced at trial shows that the respondent
did not deny the assertion of his agent, one Luganda Alex, that he, the
respondent himself, had sent the said Alex Luganda to represent him to the
function. In effect the respondent, through his said authorized agent
Luganda Alex also participated in the function, at least by attending the
same.

Alex Luganda, the respondent’s agent filed an affidavit and was also cross
examined about this fundraising function. In it he asserted that respondent
10 requested him to represent him at the function because there was a rumour
that respondent was only interested in Muslim voters and not Christians. At
the function he heard the organizers refer to the appellant as one of those
who had always supported the activities of the Catholic Church in Iganga
Town.

This witness then claimed to have heard the appellant call upon the
gathering not to forget to vote their fellow catholic and that he was looking
forward to return soon to the area as the Member of Parliament for the
area. The witness then saw the appellant give a cash amount of
20 Shs.100,000/= and promised to give a bag of maize for the builders in the
following week and to give aggregate stones later on.

Waiswa Paul, a registered voter in the constituency and who was a

candidate for L.C IV/Mayor, Iganga Municipality, also claimed to have
20
 attended the function, and according to him, the appellant after giving the
cash of Shs.100,000/= and promising to give a bag of posho the following
week, heard and saw the appellant pledge to give the church aggregate
stones for the church construction only if “they voted wisely when voting
time comes.”

Witness Hassan Muyinda, also a witness to the event, a registered voter

who contested for Chairperson LC III, Iganga Central Division, stated in his
affidavit in support of the petition, that he saw and heard the appellant
10 pledge a cash amount of Shs.100,000/= and a bag of posho to be delivered
the following week. Appellant also pledged to give the gathering a trip of
aggregate stones if they voted wisely and prayed them to remember those
who gave them something when voting time comes.

Witnesses Waiswa Paul and Hassan Muyinda do not claim to have heard
the appellant appeal to the gathering to vote for their fellow catholic, which
appeal Luganda Alex claims to have heard. Further, while Luganda Alex
and Waiswa Paul saw and heard the appellant give a cash sum of
Shs.100,000/=, Hassan Muyinda’s version is that the appellant just made a
20 pledge of Shs.100,000/= payable on some future date when the bag of
posho would also be delivered. No attempt was made to explain away
these contradictions.

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 The appellant denied participating in the fundraising, explaining that he
came to the ground breaking function when it had ended or was about to
end. The purpose of his going there was to get a blessing from his parish
priest as the day was a Sunday and this was his church of prayer for the
last eight or so many years. All that he did was to promise to provide some
posho as food to the workers on the church construction at some future
date when the construction would have begun. He made this promise
because he was a church member who was also at the same time serving
on the church choir.

10

The viva voce evidence of Rev. Fr. Ndanda has already been commented
upon. While it remained valid evidence adduced before the court, my
appreciation of that evidence is to put little value on the same given the fact
that the affidavit evidence of Rev. Fr. Ndanda had been rejected by the trial
court. The little value that can be placed on it supports the version of the
appellant as to what transpired at this ground breaking function of St.
Gonzaga Prisons Chapel.

I note from the evidence adduced that it was not in dispute that this function
20 was a religious function with the main participants being the willing
members of the church in the area. From celebrating Sunday mass at St.
Peter Claver Church, the church faithful were invited to the function by the
priest who had celebrated the mass. This independent evidence

22
 collaborates the account of the appellant as to what the real nature of the
occasion was.

Section 68 (7) of the Parliamentary Elections Act provides that:

“(7) A candidate or an agent of a candidate shall not carry on

fundraising or giving donations during the period of campaigning.”

A candidate who contravenes the subsection commits an illegal practice.

Fundraising does not include the soliciting of funds for candidates to
10 organize for elections.

The above section must of course be read, interpreted and applied subject
to the Constitution, more particularly in this regard Article 29 (1) (c) of the
Constitution which vests a right into every person the freedom to practise
any religion and manifest such practice which shall include the right to
belong to and participate in the practices of any religious body or
organisation in a manner consistent with the Constitution.

The burden to prove that the appellant was involved in fundraising by

20 paying Shs.100,000/= at the ground breaking function of St. Gonzaga
Prisons Chapel, Iganga Municipality, to the satisfaction of the court on a
balance of probabilities, lay upon the respondent.

23
 Having reviewed the evidence adduced and the position of the law, as set
out above, I find that the versions of the respondent’s witnesses who
claimed to have attended the same function at the same time are
contradictory in the areas already set out and thus cannot provide proof of
what exactly transpired. The possibility that the appellant did what he did
purely as a matter of the practise and manifestation of his faith cannot also
be ruled out.

In my view the language of section 68 (7) of the Parliamentary Elections

10 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.

The words of a statute, in cases of doubt about the meaning, are to be

20 understood in the sense in which they best harmonize with the subject and
object of the statute: See TOWERFIELD (OWNERS) V WORKINGTON
HARBOUR BOARD [1948] 2 ALLER 736. Thus, in England, one making a
bonafide collection in the street for a charitable object was held not to be
violating the provisions of the Vagrancy Act, 1824, intended to get rid of
24
 beggars off the streets in England. The Act had to be interpreted and
applied according to its purpose and effect. This principle has been applied
in Uganda in Supreme Court Constitutional Petition Appeal No.1 of
1998: Attorney general Vs Salvatori Abuki.

Courts of law are by principle enjoined to interpret and apply statutes so as

to avoid absurdity or injustice, except where the language of the statute is
clear and explicit, in which case the court must give effect to it, whatever
the consequences. But where the language of the statute is unclear or is
10 capable of several meanings then the court must interpret the same
avoiding absurdity and causing injustice. See: REPUBLIC VS EL MANN
[1969] EA 357

and

CONSTITUTIONAL PETITION NO.8 OF 2006: DARLINGTON SAKWA &

ANOTHER VS THE ELECTORAL COMMISSION & 44 OTHERS:
JUDGEMENT OF L.E.M MUKASA-KIKONYOGO, DCJ, as she then was.

Applying the above principles to this case, I find that section 68 (7) and (8)
of the Parliamentary Elections Act must be interpreted and applied in such
20 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.

25
 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 trial judge never addressed any of these
aspects at all.

I also take judicial notice of the fact that in Uganda, as a matter of

10 practising 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.

20

The learned trial judge did not address himself to all the above
considerations. Had he done so, he would possibly have concluded, like I
have concluded after appraising the evidence on record, that the
respondent did not discharge the requisite burden of proof of satisfying

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 court, on a balance of probabilities, that the appellant participated in the
fundraising function of his church, St. Gonzaga Prisons Chapel or that he
committed any illegal practice.

In conclusion all the grounds of appeal succeed. The appellant’s appeal is

allowed and the judgement of the High Court, dated 20 th August, 2011, is
set aside. The same is substituted with an order dismissing Election
Petition No.7 of 2011.

10 It is hereby declared that the appellant MUGEMA PETER is the validly

elected Member of Parliament of IGANGA MUNICIPALITY
CONSTITUENCY having got the majority votes in the Parliamentary
Elections held on the 18th day of February, 2011.

The appellant is awarded costs of the appeal and those in the court below.

Dated this …13th …….day of ……April………2012.

20 Remmy K. Kasule

JUSTICE OF APPEAL

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 JUDGMENT OF A.S.NSHIMYE, JA

I have had the benefit of reading in draft the lead judgment of my brother
Justice Remmy Kasule, JA.

I associate myself with it and fully adopt his reasoning in deciding that the
appeal be allowed with costs to the appellant here and in the High Court.

Dated at Kampala this …13th …day of …April…2012.

A.S.NSHIMYE,
JUSTICE OF APPEAL
10
JUDGMENT OF A.E.N.MPAGI-BAHIGEINE, JA

I have read in draft the judgment of my brother Remmy Kasule, JA.

I fully concur that the appeal must succeed.
Since my brother A.S.Nshimye, JA also agrees, the appeal succeeds with
orders as stated in the lead judgment.

Dated at Kampala this ….13th…day of …April…2012.

A.E.N.MPAGI BAHIGEINE
20 DEPUTY CHIEF JUSTICE

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