Mr Kibedi and Mr Wakida supported the trial judge for relying on the authority
of Dr Kiiza Besigye Museveni Kaguta (supra) and for applying the standard of
proof which was set out by the Supreme Court because its decisions are binding
on all courts in Uganda by virtue of Article 132(4) of the Constitution.
Section 61(3) of the PEA sets out the standard of proof in parliamentary
election petitions. The burden of proof lies on the petitioner to prove the
allegations in the petition and the standard of proof required is proof on a
balance of probabilities. The provision of this subsection was settled by the
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Supreme Court in the case of Mukasa Harris v Dr Lulume Bayiga (supra)
when it upheld the interpretation given to the subsection by this court and the
High Court. In the case of Jugnauth v Raj Direvium Nagaya Ringadoo which
Mr Kyazze cited the Privy Council put the standard thus:
“An election petition is unquestionably a civil proceeding. Their Lordships
are persuaded that the legislature used the language in section45 (1), by
contrast with the language used in section 64(1), it was deliberately choosing
to approach the matter, not as one where criminal standard should apply, but
as one in which the court t should adopt the civil standard of proof.”
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In instant appeal the learned judge in dealing with the standard of proof said:
“The forgoing authorities suggest that election petitions should be determined
on a high degree of probability; and certainly in the event of reasonable doubt
as to the allegations pleaded, a petition( or ground thereof) should be
disallowed.”
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