judgment on grounds that the trial judge’s analysis seemingly shifts the burden of
proof to the appellants. Mr. Lukwago submitted that by posing the said questions,
the trial judge was simply pointing out contradictions and discrepancies in the
appellants’ evidence which contradictions she found to be grave.
It is also argued by appellants that the presiding officer could not have known the
voters save for checking their names. Mr. Lukwago pointed out that some of the
presiding officers who swore affidavits claim to know the voters and they saw them
vote, e.g. affidavit of Fredrick Lumala, presiding officer, Misindye polling station.
Ineligible Voters
It is the contention of counsel for the appellants that this particular allegation was not
pleaded in the petition and accompanying affidavits. Mr. Lukwago referred us to
Paragraph 5(7) of the petition that reads:
Contrary to sections 29(4) and 34(2), (3) and (5) of the Parliamentary
Elections Act, 2005, the 2nd Respondent’s officers and agents allowed
persons whose names did not appear on the voters’ roll and/or who did not
hold valid voters’ cards to vote”.
Mr. Lukwago hastened to point out that Paragraph 5(d) also talks of failure by the
Electoral Commission to control the distribution and use of ballot papers to eligible
voters. In counsel’s view, the allegations of ineligible voters was pleaded with all the
accompanying affidavits.
There is also a contention that the finding of the judge on this issue was erroneous in
as much as the judge observed that the evidence of Nanjovu Justine was not rebutted
yet there was an affidavit by Lukomu. Mr. Lukwago submitted that the trial judge
correctly found that Lukomu’s affidavit contained general denials and therefore she
rejected it. Counsel pointed out that Penninah Nakazibwe, the presiding officer,
swore an affidavit but she never rebutted the averments of Nanjovu Justine.
Further, counsel for the appellants contend that Najovu’s evidence required
corroboration. Mr. Lukwago replied that there is no stringent legal requirement for
corroboration in such cases. In counsel’s view, the case of Amama Mbabazi vs
Musinguzi Garuga (supra) is not applicable under the circumstances where the