Verbatim: Supreme Court Judgment on 2016 Presidential Election Petition

5175 Views Kampala, Uganda

In short
We hereby declare that the 1st respondent was validly elected as President in accordance with Article 104 of the Constitution and section 59 of the Presidential Elections Act. Accordingly, this petition is dismissed with no order as to costs.

 



                                  THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA AT KAMPALA PRESIDENTIAL ELECTION PETITION NO. O1 OF 2016
 
 
 
 
10        (CORAM:   KATUREEBE,C.J;   TUMWESIGYE,   KISAAKYE,ARACH AMOKO, NSHIMYE, MWANGUSYA ,OPIO-AWERI, MWONDHA, TIBATEMWA-EKIRIKUBINZA, JJ.SC.)
 
 
 
AMAMA MBABAZI …………………………………….PETITIONER
 
15                                                                                               VERSUS
 
YOWERI KAGUTA MUSEVENI……………………1st RESPONDENT ELECTORAL COMMISSION………………………2ND RESPONDENT THE ATTORNEY GENERAL ………………………3RD ESPONDENT
 
 
20        PROFESSOR OLOKA ONYANGO & 8 ORS………..AMICI CURIAE
 
 
 
 
DECISION OF THE COURT
 
The Petitioner, who was one of the candidates in the Presidential election that
 
25        was held on the 18th  February, 2016 petitioned the Supreme Court, under the Constitution, the Presidential Elections Act and the Electoral Commission Act. He challenged the result of the election and sought a declaration that Yoweri Kaguta Museveni, was not validly elected and an order that the election be annulled.
 
30        On the 20th  February 2016, the 2nd  respondent declared the election results as follows;

 
 
5
-     Abed Bwanika
86,075 (0.93%)
 
-     Amama Mbabazi
132,574 (1.43%)
 
-     Baryamureeba Venansius
51,086 (0.55%)
 
-     Benon Buta Biraaro
24,675. (0.27%)
 
-     Kiiza Besigye Kifefe
3, 270,290 (35.37%)
 
10
-     Mabiriizi Joseph
23,762 (0.26%)
-    Maureen Faith Kyalya Waluube  40,598 (0.44%)
 
-    Yoweri Kaguta Museveni             5,617,503 (60.75%)
 
 
The petitioner contends that the election was conducted without compliance with the provisions and the principles of the Presidential Elections Act, 2000
15        the Electoral Commissions Act, 1997 ( hereinafter referred to as the "PEA", and the "ECA" ) and the 1995 Constitution and that this affected the result of the election in a substantial manner. For this, he faults the 2nd respondent.
 
Among  the  specific  complaints  against  the  1st   respondent  are  that  several illegal  practices              and  electoral   offences  were   committed  by  him  either
20        personally, or with his knowledge and consent or approval.
 
 
The  petitioner  made  no  specific  complaint  against  the  3rd   respondent  but
 
several allegations were made against public servants and security personnel.
 
 
The 1st  respondent denied the petitioner's allegations of breaches of the law. The 2nd  respondent opposed the petition and contended that the election was
25        held in compliance with the provisions of the electoral laws and asserted that, if there was any noncompliance, which was denied, it did not affect the results of the election in a substantial manner.
 
The 3rd  respondent opposed the petition and also contended that the Attorney
 
General was improperly joined as a party to the petition.

5        All the respondents sought the dismissal of the petition with costs.
 
 
At the commencement of the hearing, counsel for the petitioner applied under Article 126 of the Constitution, Section 100 of the Civil Procedure Act and Rule 15 of the Presidential Elections (Election Petitions) Rules, 2001 vide Miscellaneous  Application  No.  1  of  2016  to  amend  the  petition.  The
10        application was allowed and the Amended Petition was filed on the 7th  March
 
2016. The Respondents filed their answers to the Amended Petition on the 9th
 
March 2016.
 
 
Two applications were brought before court prior to the hearing of the petition for leave to intervene as amicus curiae in the petition. The first one, Professor
15        Oloka Onyango & Ors (MA No 2 2016), was brought by lecturers from Makerere University Law School jointly. The second application, Foundation for Human Rights Initiative & Ors, (MA No 3 of 2016), was brought by Civil Society organizations. Court allowed Miscellaneous Application No. 02 of  2016  and  dismissed  Miscellaneous  Application  No.  3  of  2016.  The
20        Makerere University lecturers filed their amicus brief on the 17th  of March
 
2016 which was copied to the parties.
 
 
The hearing commenced on 14th March, 2016 and ended on 19th March, 2016. Article 104 of the Constitution and Section 58 of the Presidential Elections Act   require   that   the   petition   must   be   inquired   into   and   determined
25        expeditiously and Court must declare its findings not later than thirty days from the date the petition was filed. Judgment was thus set to be delivered on 31st March 2016.
 
In accordance with the Presidential Elections (Election Petitions) Rules 1996,
 
the parties filed affidavit evidence in support of each party's case. Furthermore,

5        the chairman of the 2nd  respondent, Engineer Dr. Badru Kiggundu was cross- examined by the petitioner's counsel. Although the petitioner stated in his affidavit that he had annexed affidavits set out in a list mentioned as Annexture
‘A' as well as copies of Election Observers reports, that was not the case. These  affidavits  were  in  fact  never  filed  in  Court  nor  were  the  Election
10        Observer Reports. The petitioner however, filed other affidavits on or about the
 
10th of March 2016.
 
 
At the pre hearing conference, the parties agreed on the following facts:
 
 
1.  That there was a presidential election conducted by the 2nd respondent on the 18th February, 2016.
 
15                2.  That on 20th February 2016, the 1st respondent was declared as validly elected president with 5,617,503 votes representing 60.75%of the valid votes cast.
 
3.  That on the 20th  February 2016, the petitioner was declared to have polled 132,574 votes representing 1.43% of the valid votes cast.
 
20        The agreed issues were:
 
 
1.  Whether  there   was   noncompliance  with   the   provisions   of   the, Presidential  Elections  Act  and  Electoral  Commission  Act,  in  the
conduct of the 2016 Presidential Election.
 
 
 
25                2.  Whether the said election was not conducted in accordance with the principles laid down in the Constitution, Presidential Elections Act, and the Electoral Commission Act.

5                3.  Whether if either issue 1 and 2 or both are answered in the affirmative, such noncompliance with the said laws and the principles affected the results of the elections in a substantial manner.
 
 
4.  Whether the alleged illegal practices or any electoral offences in the
 
10                        petition under the Presidential Election Act, were committed by the 1st respondent  personally,  or  by  his  agents  with  his  knowledge  and consent or approval.
5.  Whether the 3rd respondent (Attorney General) was correctly added as
 
a respondent in this election petition.
 
15                6.  Whether the petitioner is entitled to any of the reliefs sought.
 
 
Representation
 
 
At the hearing, the petitioner was represented by learned counsel Mohamed Mbabazi, Michael Akampurira, Asuman Basalirwa,  Severino Twinobusingye and Jude Byabakama. The 1st respondent was represented by learned counsels
20        Didas  Nkurunziza,  Ebert  Byenkya,  Kiryowa  Kiwanuka,  Joseph  Matsiko, Edwin Karugire and 30 others.
 
The 2nd respondent represented by learned counsels Enos Tumusiime, MacDosman Kabega, Elison Karuhanga, Okello Oryem, Enoch Barata, Eric Sabiti, Tom Magezi and Ivan Kyateka.
 
25          The learned Deputy Attorney General, Hon. Mwesigwa Rukutana led the team of learned   counsel for the 3rd   respondent  which  comprised   the   learned Solicitor General Mr Francis Atoke and learned counsel Martin Mwambutsya, Phillip Mwaka , George Karemera, Elisha Bafirawala, Patricia Mutesi and Jackie Amusugut .

5        DISCUSSION AND COURT FINDINGS:
 
 
We have since completion of the hearing had opportunity to peruse and evaluate the evidence before us. We have also studied the authorities cited to us and carefully considered the submissions by learned Counsel for the parties.
We have made findings on each of the allegations presented to Court.
 
 
10        We are however, not in a position to give detailed reasons for our findings and decision due to the Constitutional timeline imposed on the Court to render judgment within 30 days from the date of filing the petition. We shall therefore announce our decision on the issues framed and will give our detailed reasons and findings at a later date.
 
15   Burden and Standard of Proof
 
 
Section 59 (6) of the Presidential Elections Act authorises the Court to annul an election only if the allegations made by the petitioner are proved to the satisfaction of the Court. An electoral cause is established much in the same way as  a  civil  cause:  the  legal  burden  rests  on  the  petitioner  to  place  credible
20   evidence before court which will satisfy the court that the allegations made by the petitioner are true. The burden is on the petitioner to prove not only noncompliance with election law but also that the noncompliance affected the result of the election in a substantial manner. Once credible evidence is brought before  the  Court,  the  burden  shifts  to  the  respondent  and  it  becomes  the
25   respondent's responsibility to show either that there was no failure to comply with the law or of if there was any noncompliance, whether that  noncompliance was so substantial as to result in the nullification of the election.
 
Where a petitioner in a Presidential Election Petition brings allegations of noncompliance with electoral laws against the electoral body on the one hand

5   and allegations of electoral offences and/or illegal practices against a candidate declared as the President Elect on the other, as is in the matter before us, varying standards of proof exist within the same case. For the Court to be satisfied that an electoral offense was committed, the allegation must be proved beyond reasonable doubt. On the other hand, the standard of proof required to satisfy the
10   Court that the Electoral Commission failed to comply with the electoral laws is above balance of probabilities, but not beyond reasonable doubt.
 
Evidence adduced
 
 
The petitioner relied on his amended Petition as well as the following evidence
 
to support his case:
 
 
15                (a) The  Petitioner's  Affidavit  in  Support  of  his  Amended  Petition  and additional affidavit:
(b) 67 Affidavits sworn in support of the Petition.
 
(c) Video  CDs  attached  to  his  affidavit  but  which  his  counsel  neither referred to in his submissions nor specifically introduced in evidence
20                          and was thus not viewed during the hearing;
 
(d) Oral evidence adduced by the petitioner through the cross examination of the Chairman of the 2nd respondent;
(e) the Election Results of all the 112 Districts of Uganda, which included the Return Form for each respective District as at 20th  February 2016,
25                          the Results Tally Sheet for each District as at 20th  February 2016 and the Declaration of Result Forms for all the 28010 Polling Stations in Uganda;
(f) We  further  note  that  in  both  his  initial  and  amended  Petition,  the
 
Petitioner indicated that he intended to rely on reports from election

5                          observers.  The reports were however neither attached to the pleading filed in Court nor to the copies that were served on the respondents. When counsel for the 1st  respondent brought this matter to the Court's attention, the Court directed counsel for the Petitioners to file the attachments and also to serve the parties. On the 12th  March ,2016,
10                          Counsel for the petitioner wrote to counsel for the 1st respondent copied
 
to the Registrar of the Court enclosing the Observer Reports which he said had been inadvertently left out. However, on March 18th 2016, before  the  close  of  the  hearing  of  the  Petition,  counsel  for  the respondent brought to the Court's attention the fact that they had agreed
15                          with counsel for the Petitioners for the said documents to be withdrawn.
 
This position was confirmed by counsel for the Petitioner.
 
 
We further note that on the last day of the hearing, counsel for the Petitioner attempted to tender into evidence, a document he referred to as a matrix which he alleged would show polling stations where the total number of persons who
20        voted exceeded the registered voters in the said stations.   Upon objection of counsel for the respondents that the matrix was based on forgeries, the Court directed counsel for the petitioner to indicate the primary source of the information he was presenting. On failing to do so, Counsel withdrew the
matrix.
 
25
 
The 1st, 2nd  and 3rd  respondents each filed various affidavits in rebuttal of the allegations.
 
ISSUE No.1: Whether there was Non-compliance with the provisions of the
Presidential Elections Act and Electoral Commission Act, in the conduct of
30        the 2016 Presidential Election.

5        In  his  Amended  Petition,  the  Petitioner  made  several  allegations  of  non- compliance with the provisions of the PEA and the ECA against the 2nd Respondent, the Electoral Commission (EC). Some of the allegations relate to noncompliance  that  occurred  prior  to  the  elections,  while  others  focus  on alleged noncompliance that happened on Election Day and those that happened
10        after the close of polling up to the time of declaration of the 1st  respondent as the winner of the Presidential elections.
 
Illegal Nomination of the 1st Respondent
 
 
The petitioner alleged that contrary to sections 9 and 10 of the PEA, the 2nd
 
respondent nominated the 1st  respondent on the 3rd  November, 2015, when he
 
15        had not yet been sponsored by the National Resistance Movement (NRM) on whose ticket he purportedly contested.  The Petitioner relied on his affidavit in support of his Petition to support this allegation.
 
 
The 2nd  respondent denied the allegation and contended it properly and duly
 
20        nominated the 1st respondent after he had complied with all the requirements of the law.
 
 
The 1st  respondent also denied this allegation and relied on the affidavit of
 
Kasule Lumumba, the Secretary General of the NRM party, which confirmed
 
25        that the 1st  Respondent was endorsed by the NRM Delegates' Conference on
 
2nd   November  2016  as  the  presidential  candidate  for  the  NRM  party,  in accordance with its Constitution.
 
 
We have carefully considered the affidavit evidence adduced by the parties.
 
30        We have studied the provisions of section 9 and 10 of the PEA which govern

5        sponsorship and nomination of presidential candidates. We have also carefully considered section 11 of the PEA which provides for the factors on the basis of which the nomination of a person duly nominated can be invalidated. The allegations made by the petitioner do not fit any of these factors.
 
 
10        Based on our findings above, we find that the 2nd respondent nominated the 1st Respondent as a Presidential candidate in accordance with provisions of the PEA.
 
 
(i)      Illegal   Extension   of   deadline   for   nomination   of   Presidential
 
15                                Candidates
 
 
The petitioner alleged that contrary to sections 11 of the PEA, the 2nd respondent failed to declare the 1st respondent's nomination papers null and void and instead acted improperly when it extended the deadline to give the 1st respondent more time after all other candidates had submitted their respective
20        documents.
 
 
Counsel for the 2nd respondent acknowledged that the 2nd respondent extended the deadline for nomination. It was averred that section 50 of the ECA empowers the 2nd respondent to extend the time for doing any act and that the extension was necessitated by the late passing of electoral law reforms by
25        Parliament. That the extension was not meant to benefit any of the presidential candidates.
 
 
We  have  carefully considered  the  affidavit  evidence  and  respective submissions of the parties. We note that indeed section 50 of the ECA grants
30        powers to the EC to extend the time for doing any act.  Section 50(2) in

5        particular  provides  that  the  provisions  of  section  50  apply  to  the  whole electoral process, including all steps taken for the purposes of the election which includes nomination. We are also of the view that section 11 of the PEA is not applicable to this situation.
 
 
10          Accordingly, we find that there was no failure on the part of the 2nd respondent to comply with section 11 of the PEA.
 
 
(ii)     Failure by 2nd respondent to  Co mpi le  a Na tio na l  Voters '  Reg is ter
 
 
The  Petitioner  alleged  that  contrary  to  Article  61(1)  (e)  of  the  1995
 
15        Constitution, sections 12 (f) and 18 of the Electoral Commission Act, the
 
2nd Respondent abdicated its duty of properly compiling and securely maintaining the National Voters' register.   He further alleged that the 2nd respondent instead illegally and irregularly retired the duly compiled 2011
Voters' Register and purported to create another one, using data compiled by
 
20        the Ministry of Internal Affairs for purposes of issuing National Identity Cards
 
(National IDs).
 
 
The 2nd respondent contended that it properly compiled, revised and updated the National Voters' Register in accordance with its constitutional and statutory duties.  That all voters were duly and legally identified as being on the voters'
25        roll in accordance with the PEA.
We have carefully studied the provisions of Article 61(1)(e) of the Constitution and sections 12 (f) and 18 of the ECA which govern this issue. We have also carefully considered the affidavits and submissions of the parties and made the following findings:
 
30

5        (i)  There  was  a  National  Voters'  Register  which  was  compiled,  updated, displayed and used by the Electoral Commission to conduct the 2016
Presidential Elections.  We have noted that section 18(1) of the ECA
obliges  the  2nd   respondent  to  "compile,  maintain  and  update  on  a continuing basis  a National Voters Register."
 
10
 
(ii) The petitioner received a copy of the National Voters' Register in his capacity as one of the Presidential candidates.
 
 
(iii) The allegation that the 2nd respondent used data compiled by the Ministry
 
15                      of Internal Affairs is not correct. The data was compiled by the National
 
Identification and Registration Authority, on whose Governing Board the
 
2nd respondent is a member.
 
 
 
(iii)   The compilation of the National Voters' Register was in compliance with
 
20                      the Article 61(1)(e) and section 18(1) of ECA and section 65(2) of the Registration of Persons Act, 2015 which states that: "The Electoral Commission may use the information contained in the Register to compile, maintain, revise and update the Voters' Register."
 
 
25      (iv)    That  the  2nd    respondent's  use  of  data  compiled  by  the  National Identification and Registration Authority to compile the National Voters' Register  did  not  in  any  way  negate  the  independence  of  the  2nd respondent which is guaranteed under the Constitution.

5      (v)     That the petitioner did not adduce any evidence of any person who had been  disfranchised  by  the  2nd   respondent's  use  of  the  new  National Voters' Register in the 2016 Presidential elections.
 
 
Accordingly, we find that the 2nd  respondent complied with the provisions of
 
10        the Constitution, the Electoral Commission Act and the Registration of Persons
 
Act.
 
(vi)     Failure by the 2nd respondent to issue and use Voters'  Cards during the Presidential Election, resulting into the Disenfranchisement of Voters
 
 
15        The petitioner alleged that contrary to sections 30(4) and 35 of PEA, the 2nd respondent identified voters using the National ID issued by the National Identification and Registrations Authority instead of voters' cards issued by the
2nd respondent.
 
 
The 2nd  respondent admitted that voters' cards were neither issued nor used
 
20        during the last Presidential elections. Relying on section 26 of the ECA, the
 
2nd respondent submitted that that section is not couched in mandatory terms
 
to require them to print and issue a voter's card for use at each election.
 
 
Further  reliance  was  placed  on  section  66(2)  (b)  of  the  Registration  of
 
Persons Act, 2015, which requires the mandatory use of national IDs for
 
25        identification of voters.
 
 
In light of the provisions of the law cited, we find that the 2nd respondent complied with the law when it used the National ID for identifying voters instead of the voter's card.

5        (vii)   Use  of  unreliable Biometric  Voter  Verification  Machine (BVVK)
 
and Failure by the 2nd respondent to identify Voters
 
 
The Petitioner alleged that contrary to section 35 (1) and (2) of the PEA, the
 
2nd respondent failed to identify voters by their respective voters' cards but
 
instead  applied  an  unreliable,  slow  and  suspect  biometric  identification
 
10        machines, thereby denying legitimate registered voters their right to vote and creating room for persons not duly registered to vote.
 
 
Further that contrary to sections 30(4) of the PEA,     voters were identified on polling day using the National Identity Cards instead of the voters' cards. That
15        as a result, eligible voters who did not register for the national identity cards were disenfranchised.
 
 
The  petitioner  relied  on  the  affidavit  of  Nakafero  Monica  who  was  the
 
petitioner's agent at Kasangati Headquarters Polling Station and who deponed
 
20        that "at 4:00 P.M., polling agents said that the biometric machine was no
 
longer functional"
 
 
 
The 2nd respondent admitted that each polling station was supplied with the
 
BVVK machine. They contended that the purpose was to improve transparency
 
25        and  integrity  of  the  process  of  identification  of  voters  at  polling  stations; prevent multiple voting, impersonation and to confirm or direct a voter to their polling station.  That each polling station was supplied with a hard copy of the voters roll as the basic document for identification of voters registered to vote at  that  particular  polling  station.  That  all  registered  voters  were  duly  and
30        legally identified as being the voters on the voters roll in accordance with the

5        PEA and were allowed to vote. The 2nd  respondent further averred that voter identification was three faceted:-
 
1.  Use of the BVVK through verification of a voter's fingerprints.
 
2.  Use of National Identity Cards.
 
3.  Use of a hard copy of the Voters' register at the polling stations.
 
10
 
There was evidence that some of the BVVK machines were not efficient and some did not work at all. However, the principal document used to identify voters was the Voters' register.
 
 
15        It is therefore our finding that the use of the BVVK did not, in itself, constitute noncompliance under the PEA and it did not disenfranchise voters.
 
 
(viii)   Late delivery of polling materials
 
 
The petitioner alleged that contrary to section 28(a) (b) (c) of the PEA,
 
20        officials of the 2nd Respondent delivered voting materials late on Election Day and that at many polling stations, voting did not commence until 2:00 p.m.,
4:00  p.m.  and  8:30  p.m.  in  some  places  and  ended  after  1:00  a.m.  The
Petitioner relied on affidavit evidence of several deponents to support these allegations.
 
25
 
The 2nd respondent averred that late delivery of election materials occurred only in some polling stations in 2 districts out of 112, to wit Kampala and Wakiso. It was further averred that in the affected polling stations, the time for voting was extended and voting was carried out and completed. It denied that
30        there was any polling which commenced at 8.30 p.m. and/or went on up to 1.00

5        am anywhere in the country. The 2nd  respondent relied on the affidavits of its chairman and of other officials.
 
 
The 2nd respondent conceded that polling material in some parts of Kampala and  Wakiso  were  delivered  late.  Evidence  was  however  adduced  of  late
10        delivery  of  materials  in  some  other  polling  stations  in  other  parts  of  the country.
 
 
It is the Court's finding that the 2nd  respondent did not comply with its duty under Section 28 of the PEA. The failure to deliver polling materials to polling
15        stations  within  such  close  proximity  to  the  Commission  was  evidence  of incompetence and gross inefficiency by the electoral body.
 
 
(ix)    Failure by the 2nd respondent to control polling materials
 
 
The petitioner alleged that contrary to  sections 12 (b) and (c) of the ECA,
 
20        the 2nd respondent failed to control the distribution of ballot boxes and ballot boxes resulting in the commission of numerous election offences in that unauthorized persons  and or officials of the 2nd respondent got possession of election materials and used them to stuff the ballot boxes, tick the ballot papers on  behalf  of  voters,  vote  more  than  once  and/or  doctor  figures  in  the
25        Declaration of Results Forms (DRFs) and Tally sheets.
 
 
 
The Petitioner relied on the affidavit evidence of two deponents to support his allegation.

5        The 2nd respondent averred that it carried out its duty of distributing ballot boxes and papers in accordance with the law and only authorized persons handled the polling materials, DRFs and Tally Sheets.
 
 
This allegation encompasses several other allegations made by the petitioner
 
10        which include starting voting without opening ballot boxes, pre-ticking and stuffing of ballot papers which we deal with in our subsequent discussion.
 
 
 
(x)     Starting Voting without first Opening Ballot Boxes.
 
This assertion by the petitioner was not supported by any other evidence.  In
 
15        the absence of evidence of persons who witnessed incidents of voting without opening ballot boxes, Court finds that noncompliance has not been proved.
 
(xi)    Allowing Voting without Secret Ballot
 
 
The petitioner alleged that in some places such as in Kiruhura District and ‘the cattle corridor', voting was not done following the principle of secret ballot.
20        The  petitioner  relied  on  the  affidavit  of    Kenneth  Kasule  Kakande,  his appointed agent at Kinyogoga Barracks, Nakaseke District, who claims that when the voting started the ballot box was not sealed and the voters were dropping the votes in the open box rather than through the hole on top of the box.
 
25        The same witness claimed that a security official stood near the basin where the voters were ticking their votes and thus compromising the secrecy of their ballots.

5        The 2nd respondent denied that any voting was carried out in breach of the principle of secrecy of the ballot as alleged by the petitioner.
 
 
This claim could not be verified by the Court.  It is therefore our finding that the allegation was not proved.
 
10        (xii)   Pre-Ticking and Stuffing of Ballot Papers
 
The petitioner alleged in his petition and in his affidavit in support that there was pre-ticking and ballot stuffing at polling stations in favour of the 1st respondent. Several affidavits were sworn in support of this allegation.
 
 
15        There was, for example, the affidavit of Ruhangariyo Erias and Amanyire Fred who were Presiding officers in some polling stations in Kyangwali, Hoima District. They deponed that they were instructed by Nelson Atumanya, the Electoral Supervisor of Kyangwali sub county, to tick any unused ballot papers in favour of the 1st respondent and put them in their ballot boxes. Atumanya in
20        his affidavit strongly denied this allegation. We find his affidavit in rebuttal more credible.
 
 
There was the affidavit of Patrick Gustine Orwata who claimed that he was a registered voter at Low polling station. He deponed that he saw pre-ticket
25        ballot papers in the RDC of Oyam's car on the 18th  February, 2016. This
 
statement was strongly refuted by Akullu Julian, the RDC of Oyam District who deponed that she was not in Oyam District on that day but was instead in Lira District where she had gone to vote. This allegation was also refuted by Nabukenya Teddy, the Returning Officer of Oyam District who deponed that
30        Loro polling station does not exist in Oyam District.

5
 
We also considered the affidavit of Makidadi from Nalukulongo who deponed that the Presiding Officer of Nalukulongo polling station M-N returned to the polling station with pre-ticked ballot papers at 4 pm. This affidavit was also
strongly refuted by the respondents.
 
10
 
We have carefully analysed the affidavit evidence of both parties and we find that the evidence contained in the affidavit evidence in support of the petitioner's allegation is not convincing. We therefore find that this allegation
has not been proved.
 
15
 
(xiii)   Voting before and after Polling Time
 
 
The petitioner alleged that contrary to section 30 (2) and (5) of the PEA, the
2nd Respondent allowed voting before the official polling time.  The Petitioner did not adduce any evidence to support this allegation.
 
20
 
The petitioner further alleged that contrary to section 30 (2) and (5) of the PEA, the 2nd Respondent allowed voting beyond the official polling time by people who were neither present at the polling  stations nor in the line of voters at the official hour of closing. The Petitioner relied on his affidavit to support
25        this allegation.
 
 
The 2nd respondent contended that the petitioner had not adduced any credible evidence of voting before official polling time.  It was further asserted  that all voting after polling time was a deliberate measure taken by the 2nd respondent in accordance with section 50 of the ECA to mitigate the effect of late delivery

5        of polling materials at the affected polling stations. The second respondent relied on the affidavits of its chairman and of other officials.
 
The petitioner is the one who asserts that there was polling before and after polling time, but there is no other evidence as to the circumstances under which voters voted outside the time allowed by the law except for those places where
10        the Chairman  of the second respondent explained the circumstances under which he extended voting to enable voters where voting material had been supplied late to vote.
 
On that basis, and given the vague nature of the allegation, we find no cogent evidence of noncompliance.
 
15        (xiv)   Multiple Voting
 
 
The petitioner alleged that contrary to section 32 of the PEA, the Presiding officers in the course of their duties allowed some voters who had already voted to vote more than once.
 
The petitioner's allegation was supported by 4 other deponents.
 
 
20        The 2nd respondent contended that the petitioner had not adduced any credible evidence to support the alleged multiple voting. The 2nd  respondent asserted that it took measures, including upgrading of the Voters Register to include biometrics, and introduced a Biometric Voter Verification System (BVVS) to enhance the transparency of the electoral process and the integrity of the result.
25        The 2nd respondent further averred that the (BVVS) was designed to eliminate the possibility of multiple voting and that no incident of multiple voting was reported to the 2nd respondent on polling day. The 2nd respondent relied on affidavits of its officers.

5        We have considered both the petitioner's affidavits and affidavits in rebuttal and we find that two of the petitioners affidavits are based on hearsay evidence and two are in respect of incidents where the deponent claims to have seen polling agents issuing four ballot papers to one voter and another, where a deponent claimed to have seen a lady being issued with two ballot papers.
10        There is no evidence whether the ballot papers were actually cast as alleged.
 
 
We find no evidence of multiple voting because the allegations could not be verified, given the nature of the evidence adduced before us.
 
(xv)   Allowing unauthorized persons to vote in the Presidential Elections
 
 
The petitioner alleged that contrary to sections 30(4) and 35 of the PEA, the
 
15        Presiding officers in the course of their duties allowed people with no valid
 
voters' cards to vote or denied those who had cards from voting.
 
 
 
The 2nd respondent contended that no credible evidence had been adduced by the petitioner to support this allegation as well. It averred that only voters
20        appearing  on  the  National  Voters'  Register  and  could  be  identified  were allowed to vote.
 
 
Counsel  for  the  respondent  submitted  that  the  EC's  improvements  in  the
 
National Voters Register and Voter identity verification technology; Biometric
 
25        Voter Verification System (BVVS) eliminated the possibility of unauthorized
 
voting. This was supported by affidavits of the respondent's officers.
 
 
 
The petitioner relied on the affidavit affidavits of three persons. One of the deponents was Waguma Amos who stated that he saw some individuals who

5        had turned up at the polling station when they were not on the Register. He does  not  state  that  these  individuals  voted.  There  is  also  the  affidavit  of Sezibera Moses who deponed that he saw an underage voter at a polling station but does not mention that he saw him voting. Then Kasule Kakande who said he saw around 50 youths at a polling station dressed in UPDF uniforms who
10        appeared to him to be below 18 years. Apart from his own perception that they were below 18 years, there was no other evidence that they were indeed below
18 years and he has not stated that their names were not on the Register.
 
 
 
This evidence does not prove that anybody ineligible to vote was allowed to
 
15        vote.
 
 
 
(xvi)  Prevention of Petitioner's  Ag ents  fro m  Vo ti ng
 
 
The petitioner alleged that contrary to section 76 (b) of the PEA, his agents and supporters were abducted and some arrested by some elements of the
20        security forces to prevail upon them to vote for the 1st respondent or to refrain from voting. The petitioner did not adduce any evidence by way of affidavit to support his allegation about his agents being prevented from voting.
 
 
 
(xvii) Cha si ng  aw ay  Peti tio ner's  Ag ents  fro m  Po ll i ng  Sta tio ns
 
 
25        The petitioner alleged that contrary to the provisions of sections 33 and 48(4) and (5) of the PEA, his polling Agents were chased away from the polling stations in many districts and as a result, his  interests at those polling stations could not be safeguarded.

5        The petitioner further averred that contrary to section 33 of the PEA, the 2nd respondents' agents/servants, the Presiding officers, failed to prevent the petitioner's polling agents from being chased away from polling stations and as a result, the petitioner's agents were unable to observe and to monitor the voting process.
10        The petitioner relied on 10 affidavits to support this allegation.
 
 
 
All the three respondents denied this allegation. The 2nd respondent in particular contended that the petitioner had not adduced any credible evidence of the 2nd respondent's involvement in chasing away of the petitioner's agents.
15        The 2nd respondent relied on the affidavit of Eng. Badru Kiggundu.
 
 
Having considered all the affidavits in support and in rebuttal, we have found it difficult to believe that the absence of the petitioner's polling agents in the
districts that were cited was caused by the chasing away of his agents.
 
 
 
20        When we looked at the Declaration of Results Forms of the Polling Stations where this allegedly happened especially in areas like Wankole, Kamuli, we found that his polling agents actually signed the Declaration of Results Forms. We also noted that this allegation would have been more credible if the polling agents  in  the  polling  stations  allegedly  involved  had  sworn  supporting
25        affidavits.
 
 
 
(xviii) Deny i ng  Peti tio ner's  Ag ents  I nfo rma tio n
 
 
The petitioner complained in his petition that contrary to section 48 of PEA, his  polling  agents  were  denied  information  concerning  the  counting  and
30        tallying process. Apart from his own affidavit, other supporting affidavits were

5        sworn by his polling agents who were allegedly affected by the denial of information.
 
The 2nd respondent contended that the petitioner had not adduced any credible evidence to support this allegation. It averred that all voting and tallying was conducted in full view of the public at polling stations and Tallying Centers.
10        The 2nd  respondent generally denied this allegation but we did not see any
 
affidavit  filed  specifically in  rebuttal  of the petitioner's  allegation  and the
 
supporting affidavits.
 
 
 
Having  carefully  considered  the  affidavits  in  support  of  the  petitioner's
 
15        allegation, we find that in some cases the petitioner's polling agents were
 
indeed denied information to which they were entitled.
 
 
(xix)   Alleged noncompliance by the 2nd  respondent during the process of counting, tallying, transmission and declaration of results
 
20
 
The petitioner made the following allegations of noncompliance by the 2nd
 
respondent, which we shall consider together under this section.
 
 
 
1.      Counting and Tallying of Electio n  Resul ts  i n  th e  abs en ce  of  Peti ti on er 's
 
25                        Agents
 
 
Under this allegation, the petitioner contended that contrary to section 49 of the PEA, the 2nd respondent's agents/servants allowed voting and carried out the counting and tallying of votes in the forced absence of the petitioner's agent whose duty was to safeguard the petitioner's interest by observing the
30        voting,  counting  and  tallying  process  and  ascertaining  the    results.  The

5        petitioner  relied  on  the  affidavit  evidence  of  7  deponents  to  support  his allegation.
 
 
The 2nd  respondent denied this and adduced affidavit evidence to show that at all polling stations, the counting of votes was done openly and in the presence
10        of candidates' agents who chose to be present.
 
 
 
Our analysis of the evidence provided to us shows that at most polling stations, counting of votes was smooth and transparent. Only in a few of the polling stations were there reports of incidents. There is also evidence that the
15        Petitioner did not have agents at all polling stations.
 
 
2.      Declaration of Results without Declaration of Results Forms (DRFs)
 
 
Under this allegation, the Petitioner contended that the declaration of the 1st respondent  as  the  winning  candidate  was  illegal,  unlawful  because  under section 54 of the PEA, the Returning Officer is required to receive all the
20        envelopes containing the DRFs in the presence of the candidates or their agents before opening the same and adding up the number of votes cast for each candidate as recorded on each form.
 
He further contended that the 2nd respondent instead announced Provisional  Results without the Returning Officer receiving all the Declaration of Results<

 

About the author

Olive Nakatudde
Olive Nakatudde is a URN journalist based in Kampala. Nakatudde has been a URN staff member since 2013.

Nakatudde started out in journalism in 2009 with Dembe FM radio in Kampala. In 2012, Nakatudde joined Voice of Africa as a political reporter. She has been a photographer since her journalism school days at Makerere University.

Nakatudde is interested in good governance and public policy, which she reports on intensively from the Uganda Parliament. She is a keen follower of cultural affairs in Buganda Kingdom and covers the kingdom's Lukiiko (parliament). Nakatudde also reports on education and health.