The republic of uganda in the supreme court of uganda at kampala

(2) The Commission shall maintain as part of the voters Register, Voters’ Roll for each constituency under this Act.

(3) The Commission shall maintain as part of the Voters Roll for each constituency a Voters Roll for each Polling Station within the constituency as prescribed by law.”

Section 12 of the Commission Act provides for additional powers to enable the Commission carry out its functions under chapter five of the Constitution. Article 65 of the Constitution sets out the functions of the Commission, which include compiling, maintaining and updating the Voters Register.

The 2nd Respondent has a statutory duty to update the Voters Register before any election is held. The 2’ Respondent must display for public scrutiny the Voters Roll for each Parish or ward for a period of not less than 21 days duly notified in the Gazette. In this connection Section 25(1) of the Commission Act stipulates:

“Before any election is held, the Commission shall by notice in the Gazette appoint a period of not less than twenty one days, during which a copy of the Voters Roll for each Parish or Ward shall be displayed for public scrutiny and during which any objections or complaints in relation to the names included in the Voters Roll or in relation to any necessary corrections; shall be raised or filed.”

In the present case, it admitted that the display was carried out for only five days. The only question to be decided is whether the 2nd Respondent has powers to abridge the period of display. It was contended for the 2nd Respondent that it has powers to do so under Section 38(1) of the Commission Act which provides,

“Where during the course of an election it appears to the Commission that by reason of any mistake miscalculation, emergency or unusual or unforeseen circumstances any of the provisions of this Act or any law relating to the election other than the Constitution, does not accord with the exigencies of the situation, the Commission may by particular or general instructions extend the time for doing any act, increase the number of election officers or Polling Stations or otherwise adapt any of those provisions as may be required to achieve the purposes of this Act, or that law to such an extent as the Commission considers necessary to meet the exigencies of the situation.”

It was contended for the Petitioner that the above provision authorised the 2nd Respondent to increase but not reduce the period of display. I believe counsel was relying on the ejusden generis rule which is explained in Halsburv’s Law of England Vol.44 4” edn. Para 877, page 535 in these terms:

“As a rule where in a statute there are general words following particular words, the general words must be confined to things of the same kind as those specified, although this as a rule of construction must be applied with caution and subject to the primary rule that statutes are to be construed in accordance with the intention of Parliament. For the ejusden generis rule to apply the specific words must constitute a category class of genus, and the general words must not by their nature exclude themselves from the category class or genus, so that for example, a superior thing will not be held within a class of inferior things. If the particular words exhaust a whole genus the general words must be construed as referring to some larger genus. It seems that the ejusden generis rule can have no application where the general words precede the enumeration of particular instances and may not be relevant for the construction of international conventions.”

On the other hand counsel for the 2nd Respondent submitted that the Commission has powers to reduce the period of display, to meet the exigencies of the Situation.

In my opinion, the ejusden generis rule of construction does apply to the provisions of Section 38(1) of the Commission Act with the result that the 2nd Respondent has no powers to reduce the period of display of the Voters Register. Display must be given sufficient time to enable the updating and cleaning of the Register to promote the principle of voter registration and transparency. Failure to display for the prescribed minimum period undermined those two principles and was responsible for complaints relating to voting.

The question is whether the 2nd Respondent failed efficiently to compile, maintain and update the National voters Register, the Voters Roll for each Polling Station with each constituency as a result of which the register and Rolls contained many flaws. There is no direct evidence that the Voters Register and Voters Rolls were not efficiently compiled, maintained and updated. It was contended by Mr. Mbabazi for the Petitioner that there was in fact no National Register of Voters. Evidence was called of Mr. Mukasa David Bulonge who testified about the disparity in the total number of voters as communicated by the Chairman of the 2nd Respondent from time to time.

Mr. Mukasa stated in his affidavit that on 10th March 2001 while the display of Voters Register was still in progress the Chairman of the 2nd Respondent announced while addressing International Observers that the number of registered voters was still 11.6 voters, this number having been obtained from the returns received from the field after the National Voters Register update exercise as claimed by the Chairman in his letter to candidates dated 7 March 2001 in which he admitted he had no final Voters Register. But on 11 March 2001, the Chairman of the 2nd Respondent announced at a final briefing for candidates that the number of registered voters was 10,674,080 while the number of Polling Stations was 17,147. But when the results were declared the number of registered voters and Polling Stations had increased to 10,775,836 and 17,308 respectively as per provisional declaration of results. The Petitioner contended that because the exact number of registered voters was not known, the 2nd Respondent procured more ballot papers than the number of voters whose use or whereabouts remain undisclosed.

In his supplementary affidavit in reply, Mr. Kasujja stated that the National Voters Register had existed since 1993 when a National Voters Register was first prepared for the purpose of the Constituent Assembly and that since then the National Voters Register has been maintained and updated. It was updated before the 1996 Presidential Elections and the Register was subsequently cleaned before the Referendum. Re repeated that for the Presidential Election the update of the Register was done at village level from 11th January 2001 to 22nd January 2001. Mr. Kasujja pointed out that in February 2001 the National Voters Register was printed and displayed at Polling Stations in the form of Voters Rolls in four components i.e. the previously registered voters, the newly registered voters, the transferred voters and the voters recommended for deletion for ease of scrutinising the register.

Furthermore Mr. Kasujja stated that the display was carried out for three days and after consultations and in agreement with all candidates’ agents, the period was extended for another two days and both periods were gazetted. He explains that the time of display and update of the Register was affected by a decision to have photographic voters’ cards, which required fresh registration. The exercise was commenced but due to unforeseen delays in delivery of all the necessary equipment which had not arrived by 31st December 2000 the 2nd Respondent was forced to revert to the old system of updating the existing Register having lost a lot of time.

Explaining the disparity in the total number of registered voters Mr. Kasujja stated that after the Referendum of June 2000, the Register on cleaning had about 9,308,173 voters. After the update the number rose to 9,308,173 voters. After the display and cleanup the number reduced to 10,672,389. This number however did not include soldiers and adults living with them and when they were included the number rose by 103,447 to 10,775,836. Mr. Kasujja stated further that the National Voters Register is made up of 214 Constituency Rolls and the Constituency Rolls are in turn made up of all Polling Stations rolls in the Constituency and on 11th March 2001 these had already been printed, and the number of Registered Voters was known.

On the evidence adduced in this petition I am satisfied that the 2nid Respondent did not efficiently compile, maintain and update the National Voters Register and Voters Rolls for each Constituency for the Presidential Elections. This violated the principles of registration of voters, fairness and transparency.