MBARARA – Following the ongoing hearing of an election petition where FDC’s Virginia Plan Mugyenyi petitioned court challenging the election results of Elioda Tumwesigye in Sheema Municipality election, so far from the look of things Mrs Mugyenyi has lost round one Wednesday as court quashed her 26 witnesses’ affidavits that were found not conforming with the section 1,2 and 3 of the illiterates and Protection Act.
Counsel for the respondents (Elioda and Electoral Commission) argued that some of the disputed affidavits have certificates of translation but largely lack proper addresses of the purported persons who read and translated the affidavits of the illiterate deponents which counsels submitted that its contrary to the mandatory provisions of section 3 of the Illiterate and Protection Act and that they should are not admissible in court.
Section 3 of the illiterates and protection Act states that, “any person who shall write and document or at the request on behalf or in the name of any illiterate shall also write on the document his or her true names as the writer of the document and his or her true and full address and shall imply a statement that he or she was instructed to write a document for a person for whom it purports to have been written and that it fully and correctly and was read over and explained to him or her”
They further argued that some of them did not show that were translated nor signed by the person who translated them to the illiterate persons before commissioning for oath. They pointed out some of the affidavits that appeared after the stamp and signature of the commission for Oath.
“This is not a matter of form but substantive requirement of the law under the provisions of Oath Act that a certificate of translation must be made signed by the person translating to the illiterates, his address and stamp before the commission for oath signs and appended his signature not after, some of these affidavits its not even easy to tell whether in fact, the alleged illiterate deponents appeared before the commission for oath ”
Those that were found faulting the provisions of section 3in the first category are those, one of Idrisa Ikabashemeza, Kukunda Othwal, Rwenshare Lazaro, HadijaNamasera, Kato Husein, Paul Tushabe, Francis Rwahikayo and Dorcus Atwijukire and those in the second category include Boaz Akankwasa, Robert Kamugisha, John Arinaitwe, Elia Katera Muhweza,Vicent Fokushaba, Ebert Tumwesigye,Scola Taremwa, Hilda Ayebare,Urban Tumwine,Damba Wizir,Ephraim Mugarura,Ruth Mushabe,Emily Twebaze, Simon Kiiza,Sowedi Baguma, Pleasure Twongirwe, Mbera Milton, Joshua Muzahura.
Counsel for the respondents prayed that the mentioned affidavits be scrapped off for authentic provisions of section 3 of the illiteracy and protection Act and oath Acts with costs.
In response, counsel for the petitioner submitted that the purpose of section 3 as interpreted is to help the illiterate deponent to understand and form the content of government. That the certificate of translation must show that the illiterate deponent had the opportunity to be read to the document and understood it.
“For as long as the document shows that it was explained to the illiterate person and that the illiterate person seemed to understand it materially conforms to the provisions of law, I maintain that the mentioned affidavits comply in regard to the certificate of translation being read to the commission of oath, it’s a matter of fact that all the deponents appeared before the commissioner of oath and it should be encompassed as evidence, not the matter of law that should lead to the disposal of the petition at this early stage” Prayed John Isabirye counsel for petitioner.
He further submitted that where issues of law need evidence to establish those issues cannot be disposed of off without examining witnesses. He vehemently insisted that all the affidavits referred to substantially conform to the form and provisions of the Oath Act. They prayed that the preliminary objection be disregarded and dismissed.
Justice Bashaija while ruling on the matter said that according to the provisions of section 3, the referred to affidavits did not comply with the above provision that because the person who allegedly translated the documents of the purported illiterate deponents never indicated his true and full address as required by the law.
“I have heard a chance to read through all the certificates of translation of all the disputed affidavits indeed they do not meet the statutory requirements of section 3, its mandatory for such person not only writes his full and true names but also his true address, failure to do so it shall not be implied that he or she was instructed to by illiterate person for whom it purports to have been written” Said Justice Bashaija.
He added, “It’s a requirement under the oath Act that affidavits sworn by illiterate person before even sign before the commissioner for oath is required to include a jurat at the end of the affidavit stating that the content therein was read over and it should state that the deponent has understood the same”
He maintains that court found out that the provisions of section 3 are substantive requirements of the law and as a result, they did not fall within the procedural technicalities under article 126 (I) c of the Ugandan constitution.
“All the affidavits in the first category where reading and translating those statements to the illiterates was not stated are all incompetent and are all quashed out with costs, regarding the second aspect of the preliminary point of law on the listed affidavits where certificates of translation appear after the commissioner for oath has endorsed I disagree with joint counsels’ submission for petitioner, it’s a blatant violation of the provisions of the Oath Act which was intended to guard against ill practices, this applies to the second category of the affidavits.
He adds that in an election petition evidence is by affidavits and that it is very important that the affidavits in defence and the examination in chief of witnesses which is read in open court should be taken with the seriousness it deserves.
Meanwhile, the examination of witnesses is still going on at Mbarara high court. Virginia Plan Mugyenyi is being represented by John Isabirye of Isabirye &Co Advocates while Minister Elioda Tumwesigye and Electoral commission are being represented by Geoffrey Kandebe and Eric Sabit respectively.
Virginia during her cross-examination by respondent’s lawyer Kandebe contradicted herself when she was asked why she voted yet she is not in the Sheema municipality register. She replied that she voted for her mother at Migyina polling station who is diabetic but when a video clip was played in court, she was seen voting and after voting, she was thump marked on her finger. She even went ahead and gave a media interview where she stated that she has voted.