Wakilii

Tumuheirwe v Muhwezi Jim Katugugu and Another (Election Appeal 71 of 2021)

Court of Appeal · [2022] UGCA 341 · 2022 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
First and final appeal from High Court dismissal of a parliamentary election petition
Decision
Appeal dismissed; election of the 1st Respondent as Member of Parliament for Rujumbura constituency upheld

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Cited — treatment unverified cited in 1 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Court of Appeal, sitting as first and final appellate court, dismissed the appeal. It held that the appellant failed to prove the alleged illegal practices of donations and voter bribery with cogent evidence to the satisfaction of the court, the evidence being marred by major inconsistencies and largely from self-confessed accomplices uncorroborated by independent witnesses. It upheld the trial Judge's findings that the appellant's electronic evidence was inadmissible for want of authentication under the Electronic Transactions Act, that the 1st Respondent's illiterate affidavits complied with the Illiterates Protection Act, that no oath of an interpreter need appear in a jurat, and that the 2nd Respondent committed no non-compliance affecting the result. One ground was struck out for being argumentative under Rule 86(1).

Facts

At the parliamentary elections of 14 January 2021, the Electoral Commission declared the 1st Respondent the winner of the Rujumbura Constituency seat with 25,799 votes against the appellant's 20,556 votes. Dissatisfied, the appellant petitioned the High Court at Kabale seeking to annul the election, alleging that the 1st Respondent committed illegal practices of giving donations during the campaign period (including money and pledges at various churches and gatherings), bribed voters at several locations, made a false statement that the appellant had contracted COVID-19, and that the 2nd Respondent failed to restrain the 1st Respondent despite his complaint. The High Court answered all issues in the negative and dismissed the petition with costs. The appellant appealed on ten grounds. The Court of Appeal re-evaluated the evidence, finding the appellant's witnesses inconsistent on material details, that much of the evidence came from self-confessed accomplices lacking independent corroboration, and that key electronic recordings were unauthenticated and inadmissible.

Issues

  1. Whether the trial Judge adopted a one-sided evaluation of evidence in finding that the appellant had not proved illegal practices of donations and voter bribery by the 1st Respondent.
  2. Whether the trial Judge correctly interpreted the Electronic Transactions Act in holding the appellant's electronic evidence inadmissible for lack of authentication.
  3. Whether the 1st Respondent's affidavits by illiterate deponents complied with the Illiterates Protection Act and Oaths Act.
  4. Whether there is a legal requirement for the interpreter's oath to be recorded in the jurat of an illiterate's affidavit.
  5. Whether an advocate who translated affidavits to illiterate deponents was disqualified from appearing as counsel under the Advocates (Professional Conduct) Regulations.
  6. Whether the trial Judge erred in exonerating the 2nd Respondent regarding non-compliance with electoral laws.
  7. Whether grounds of appeal that are argumentative and narrative contravene Rule 86(1) of the Rules of the Court.

Orders

  • Ground 3 of the Memorandum of Appeal struck out for contravening Rule 86(1).
  • The trial Judge's decision upheld and the appeal dismissed.
  • Each party to bear its own costs both in the Court of Appeal and in the lower court.
  • The 1st Respondent, Muhwezi Jim Katugugu, remains the validly and lawfully elected Member of Parliament for Rujumbura constituency, Rukungiri District.

Key headnotes

Election Petitions — Burden and Standard of Proof — Cogent Evidence to the Satisfaction of Court
A petitioner in an election petition bears the legal burden throughout and must adduce cogent evidence, free from material contradictions, to prove allegations of illegal practices on a balance of probabilities to the satisfaction of the court; major inconsistencies in witness evidence cannot be wished away.
Illegal Practices — Giving of Donations — Ingredients and Funeral Contributions Exception
To set aside an election for the illegal practice of giving donations under section 68(7) of the Parliamentary Elections Act read with section 61(1)(c), it must be proved that the candidate, personally or through an agent with his knowledge and consent or approval, carried out the donation during the campaign period; customary funeral contributions to a known supporter do not, without more, constitute a prohibited donation intended to influence voters.
Voter Bribery — Accomplice Evidence — Need for Corroboration
Evidence of witnesses who admit receiving a bribe is accomplice evidence which, in the absence of independent corroboration, is weak; bribery is double-edged so that proof of solicitation is unnecessary, but the petitioner must still place the candidate at the scene and establish the gift was given with intent to induce a vote.
Electronic Evidence — Authentication as a Condition Precedent to Admissibility
Under sections 7 and 8(2) of the Electronic Transactions Act, the authenticity of a data message or electronic record must be established before it is admitted in evidence, and the burden of proving authenticity lies on the party seeking to introduce it; the statutory criteria are not subject to a liberal standard.
Affidavits of Illiterates — Verification under the Illiterates Protection Act
The Illiterates Protection Act prescribes no specific form of verification; an affidavit of an illiterate deponent that bears a certificate of translation containing the deponent's name and the true and full name and address of the translator complies with section 3, to be assessed case by case.
Affidavits — Jurat and Interpreter's Oath under the Oaths Act
There is no legal requirement that the oath of an interpreter be recorded in an affidavit; what must appear is the jurat, and it is the duty of the commissioner for oaths to ensure the interpreter is sworn before interpreting the contents to the deponent.
Grounds of Appeal — Compliance with Rule 86(1) of the Rules of the Court of Appeal
A ground of appeal must challenge a holding or ratio and specify the point wrongly decided, set forth concisely and without argument or narrative; a ground that constitutes an argument or narrative contravenes Rule 86(1) and is liable to be struck out.

Legislation cited (24)

  • Parliamentary Elections Act 2005 s.68(7)
  • Parliamentary Elections Act 2005 s.68(8)
  • Parliamentary Elections Act 2005 s.68(1)
  • Parliamentary Elections Act 2005 s.61(1)(c)
  • Parliamentary Elections Act 2005 s.61(1)(a)
  • Parliamentary Elections Act 2005 s.61(3)
  • Parliamentary Elections Act 2005 s.70
  • Electronic Transactions Act 2011 s.7(1)
  • Electronic Transactions Act 2011 s.7(2)
  • Electronic Transactions Act 2011 s.8(2)
  • Electronic Transactions Regulations S.I. 42 of 2013 reg.3(1)
  • Illiterates Protection Act s.3
  • Illiterates Protection Act s.1(b)
  • Oaths Act s.6
  • Commissioner for Oaths (Advocates) Act s.5
  • Advocates (Professional Conduct) Regulations S.I. 267-2 reg.9
  • Electoral Commission Act s.15(1)
  • Parliamentary Elections (Interim Provisions) (Election Petitions) Rules S.I. 41-2 r.15(1)
  • Parliamentary Elections (Interim Provisions) (Election Petitions) Rules S.I. 41-2 r.15(3)
  • Constitution of Uganda Article 126(2)
  • Constitution of Uganda Article 61(1)(a)
  • Constitution of Uganda Article 61(1)(f)
  • Rules of the Court of Appeal r.86(1)
  • Rules of the Court of Appeal r.30(1)

Cases cited (37)

  • Betuco (U) Ltd and Another v Barclays Bank of Uganda Limited and Another (Civil Appeal No. 1 of 2017)
  • National Insurance Corporation v Pelican Air Services (Civil Appeal No. 15 of 2003)
  • Woboya Vincent v Ssasaga Isaias Jonny (Election Appeal No. 11 of 2016)
  • Betty Muzanira Bamukwatsa v Matsiko Winfred Komuhangi and 2 Others (Election Appeal No. 65 of 2016)
  • Pandya vs R (1957) EA 336
  • Ntende Robert v Isabirye Iddi (Election Petition Appeal No. 74 of 2016)
  • Amama Mbabazi v Yoweri Museveni and Another (Presidential Election Petition No. 1 of 2016)
  • Re B (Children) (Fc) UKHL 35
  • Mugema Peter v Mudiobole Abedi Nasser (Election Petition Appeal No. 30 of 2021)
  • Sematimba Peter Simon v Sekigozi Stephen (Election Petition Appeal No. 8 and 10 of 2016)
  • Michael Mawanda v Electoral Commission and Hon. Andrew Martial (Election Appeal No. 98 of 2016)
  • Paul Mwiru v Igeme Nathan Nabeta (Election Petition Appeal No. 6 of 2011)
  • Kizza Besigye v Yoweri Kaguta Museveni and Another (Presidential Election Petition No. 1 of 2011)
  • Alfred Tajor v Uganda (Criminal Appeal No. 167 of 1969)
  • Kabuusu Moses Wagaba v Lwanga Timothy Mutekanga and Another (Election Petition No. 15 of 2011)
  • Arim Alex Clive v Stanbic Bank (Civil Appeal No. 3 of 2013)
  • Mifumi (U) Ltd and 12 Others v Attorney General and Another (Constitutional Appeal No. 2 of 2014)
  • Ernest Kiiza v Kabakumba Labwoni Matsiko (Election Appeal No. 44 of 2016)
  • Sgt Baluku Samuel and Another v Uganda (Criminal Appeal No. 27 of 1989)
  • Oddo Tayebwa v Gordon Arinda and Another (Election Petition Appeal No. 86 of 2017)
  • Chebrot Stephen Chemoiko v Soyekwo Kenneth and Another (Election Petition Appeal No. 56 of 2016)
  • Kizza Besigye v Yoweri Museveni and Another (Presidential Election Petition No. 1 of 2001)
  • Blyth vs Blyth [1966] 1 ALLER
  • Rwalinda John v Uganda (Criminal Appeal No. 3 of 2015)
  • Spencer William v Abbas Agaba Mugisha and Another (Election Petition Appeal No. 6 of 2016)
  • Bwino Fred Kyagulaga and Another v Badogi Ismail Waguma (Election Petition Appeal No. 15 and 16 of 2016)
  • Aligawesa Phillip v Byandala Abraham James and Another (Election Petition Appeal No. 24 of 2011)
  • Oddo Tayebwa v Nasser Basajabalaba (Election Petition Appeal No. 13 of 2011)
  • Mugema Peter v Mudiobole Abedi Nasser (Election Petition Appeal No. 16 of 2016)
  • Namboowa Rashidah v Bavekuno Mafumu and Electoral Commission (Election Petition Appeal No. 69 of 2016)
  • Stanbic Bank Uganda Ltd v Ssenyonjo Moses and Another (Civil Appeal No. 147 of 2015)
  • Kasaala Growers Co-operative Society v Kakooza Jonathan and Another (Civil Appeal No. 19 of 2010)
  • Nsubuga Silvest Ssekutu v Kalibala Charles and Another (Election Petition Appeal No. 70 of 2016)
  • Tamale Julius Konde v Ssenkubuge Isaac and Another (Election Petition Appeal No. 75 of 2016)
  • Otala Sam Amooti Owor v Taban Idi Amin and Another (Election Petition Appeal No. 93 of 2016)
  • Akugizibwe Lawrence v Muhumuza David and 2 Others (Election Petition Appeal No. 22 of 2016)
  • Mwogezaddembe v Gagawala Wambuzi (Election Petition No. 2 of 2001)
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