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

Paragraph 3(1)(i) of the Petition: Multiple voting.

“That contrary to section 31 of the Act the 2nd Respondent’s agents/servants/Presiding Officers in the course of their duties and with full knowledge that some people had already voted allowed the same people to vote more than once.”

In its reply, the 2nd Respondent averred:

“9 In reply to paragraph 3(1) (j) of the Petition, the second Respondent denies that it allowed anybody to vote more than once.”

Section 31 of the Act provides:

(1) No person shall vote or attempt to vote more than once at any election.

(2) For the purpose of ensuring that no voter casts a vote more than once, a Presiding Officer or a Polling assistant shall before issuing a ballot paper, inspect the fingers of voters in order to ascertain whether or not the voter has been marked with indelible ink in accordance with section 30; and the Presiding Officer or Polling assistant, as the case may be, shall refuse to issue a ballot paper to that voter if the Presiding Officer or Polling assistant has reasonable grounds to believe that the voter has already voted or if the voter refuses to be inspected.

Counsel for the Petitioner did not submit on this ground but supplied a list of deponents of affidavits in support of the ground. I think that the Court is bound to consider the affidavits and their corresponding rebuttals provided by the 2nd Respondent’s Counsel.

In his submission in reply on this ground, Mr. Kabatsi referred the 2nd Respondent’s answer, which denied the allegation. He then referred to affidavits in rebuttal which, he said, supported the denials.

The Petitioner tiled a list of 17 witnesses who deponed affidavits in support of this ground of the Petition. It is not possible, in the time available, to consider all the affidavits in question and the corresponding rebuttal affidavits. I shall deal with samples to see what happened in practice and to gauge the extent of the problem.

Kirunda Mubarak, whose affidavit I have already referred to in another context was the Petitioner’s Polling monitor in the entire District of Mayuge. He said in his affidavit that the wife of Wamulongo, MP for Bunya East Constituency had Voters’ Cards and ballot papers and was giving them to any willing voter to cast even more that once and there were many who voted more than once. This was at Mpungwe Polling Station. As I said before, Kedres Wamulongo’s affidavit in rebuttal is shown in the Chart as being on page 282 of the Respondents’ volume of affidavits. I checked there and found the affidavit of Emoding Anthony instead. The 2nd Respondent’s Volume of affidavit does not reach page 282. In short, I am unable to trace Kedres Wamulongo’s rebuttal affidavit.

I have considered the evidence of Ssentongo Elias in another context. Regarding multiple voting, he said that he went to Karegeya Polling Station and found that armed Soldiers who had camped at Ireenga, the home of the wife of the 1st Respondent, were supervising the Polling process. The soldiers allowed supporters of the 1st Respondent to vote more than once. Complaints by Polling agents were ignored by the Presiding Officer.

Muhoozi Tom rebutted Ssentongo’s affidavit. He said that on Polling day, he voted at Kabuhowe Polling Station and returned to his home immediately thereafter. He never saw Ssentongo at the Polling Station. In the evening he returned to the Polling Station. Voting closed in his presence. The Petitioner’s agents were present and signed the declaration form. In my view, what Ssentongo said he saw happened at Karegeya Polling Station, was not at Kabuhowe, where Muhoozi Tom voted. Secondly Muhoozi’s affidavit does not refer to Ssentongo’s allegation of multiple voting.

Mugizi Frank of Rubone Cell, Rubone Trading Centre, Rusheyi, Ntungamo District was the Petitioner’s Polling agent for Rubanga Polling Station. In his affidavit of 21-03-2001, he said that at Rubanga Polling Station, he witnessed massive rigging by which people were allowed to vote more than once. When he protested, the 1st Respondent’s supporters namely Simon, Twahirwa Sura, Kanyagira, Siriri, Kakyota Muyambi threatened to assault him and he was chased away from the Polling Station. Musinguzi Siriri, of Rubanga, Rubane, Ntungamo District, rebutted the affidavit of Mugizi Frank. In his affidavit of 4-4-2001, he said that there was no massive rigging, or even any rigging at all as falsely alleged by Mugizi Frank at Rubanga Polling Station. On Polling day as he (Siriri) lined up to vote, one Kapere approached the Presiding Officer’s table. Mugizi Frank then falsely referred to Kapere as “Bateyo” who had already voted. Mr. Simon Twahirwa, the LCI, Chairman objected as they knew the Kapere’s identity. Siriri and others identified Kapere and he duly cast his vote. After the incident Mugizi Frank left for his Village, saying that he was going for lunch. Nobody chased him away from the Polling Station. What Siriri said in his affidavit tends to corroborate Mugizi Frank’s evidence that he complained about people having voted more than once and that Siriri and Twahirwa were persons whom he accused to have been amongst those who chased him away. Siriri’s rebuttal is a blanket denial of Mugizi’s allegation. He did not indicate why Mugizi should have fabricated his detailed allegation. In the circumstances, I would accept Mugizi’s evidence and reject Siriri’s denial.

Kasigazi Noel, of Rwenamira, Kitashekwa, Ruhama, Ntungamo District was the Petitioner’s polling agent for Rwenamira Polling Station. In his affidavit of 21-03-2001, he said that at the Polling Station, one Sibomaana Amos, who was the 1st Respondent’s Campaign agent in Kitashekwa, colluded with the Presiding Officer and was seen casting a bundle of ballot papers. Kasigazi lodged a written complaint to the Presiding Officer who rejected it and refused to initial it or annex it as part of the official record of the Polling Station. When he cross- checked with the Voters’ Register, Kasigazi found out the names of people who had migrated to Rwanda in 1 994, such as Rugaruka John, Bazubagira, Kaitita and Tinkasimire E. were all ticked as having voted.

When Kasigazi and Kikwekije Augustine questioned why Sibomaana was allowed to cast a bundle of ballot papers, they were threatened with beating by LCI Chairman, one Kananura George, Sibomaana Amos, and the LC3 Chairman Karuhanga Denis Muvara. In the middle of the scuffle one Turyakira, a known 1st Respondent’s supporter was given all the remaining ballot papers by the Presiding Officer, which he ticked and put in the ballot box. Kasigazi refused to sign the Declaration of Results Forms.

Sibomaana Amos of Rwenanura, Rwekiniro, Ruhoma, Ntungamo, rebutted Kasigazi Noel’s affidavit. In his affidavit of 4-4-2001, Sibomaana said that he was just an ordinary voter, registered as such at Rwenanura. He was at no time the 1st Respondent’s Campaign agent as falsely alleged by Kasigazi. At no time did he cast more than one vote let alone, a bundle as Kasigazi falsely alleged. Nor did he at any time threaten to beat anybody as falsely alleged by Kasigazi. I find this a blanket denial of Kasigazi’s evidence. There would appear to be, and Sibomaana did not suggest, any sensible reason why Kasigazi should have fabricated the detailed allegations he made in his affidavit. In the circumstances, I reject Sibomaana’s evidence in rebuttal and accept Kasigazi’s evidence, given in his affidavit based on his own knowledge.

Ssali Mukasa of Rubone cell, Rubone Trading Centre, Rushenyi, Ntungamo. On 12-03-2001, he was at Rubone Moslem, Primary School L — Z Polling Station when the Presiding Officer and the Polling assistant counted votes at 5.00 p.m. He witnessed 10 ballot papers, folded together and ticked for the 1st Respondent. When he complained to the Presiding Officer, the latter said that it was allowed. On 9-3-2001, one Daudi Kahurutuka, the 1st Respondent’s Campaign agents found him at 8.00 p.m. at Ali Mutebi’s Hotel and told him to mention any amount of money he wanted from the 1st Respondent Task Force “in order to allow them steal votes.” The affidavit was based on knowledge and belief. Belief is irrelevant since what Mukago said occurred was what he saw. The Chart does not show that the affidavit of Ssali Mukago is rebutted. The evidence therefore, remains uncontroverted. I accept it.

I have already dealt with the affidavit of Idd Kiryowa in another context. In paragraph 7 of his affidavit he said, that Kakuba, the 1st Respondent’s agent at Nabiseke Polling Station where Kiryowa was also the Petitioner’s polling agent, who had earlier cast his vote came back and stuffed a heap of ballot papers in the ballot box. Robert, a security official, also pushed into the ballot box a heap of ballot papers. This time Kiryowa and his colleague, Toferyo Hussein kept quiet because they had already been threatened once before. The earlier threat had been made to Kiryowa and his colleague at 1 .00 p.m. when they complained because one Elias and his wife, Balekye cast their votes but did not dip their thumbs in the indelible ink. Robert told them not to be too critical because they risked being arrested.

Kakuba Nathan was the Respondent’s Polling agent at Nabiseke A — L where he also cast his vote. In his rebuttal affidavit of 1-4-2001, he denied that he stuffed heaps of ballot papers in the ballot box; nor did he see anyone else doing the same, contrary to Kiryowa’s allegations. Voting was done in the presence of Polling agents law and order officials and the public, thus ruling out the possibility of stuffing heaps of ballot papers in the ballot box. Kabuba’s rebuttal is a bare denial. There would appear to be no sensible reason, and Kakuba does not indicate any, why Kiryowa should have fabricated this detailed allegation. Moreover it would be unthinkable that Kakuba would admit having committed an electoral offence which is what Kiryowa’s allegations amounted to. In the circumstances I would reject Kakuba’s rebuttal evidence and accept Kiryowa’s evidence.

Kana Harward, a registered voter at Kochi Parish, Romogi, Yumbe District was a Polling agent for the Petitioner at Kochi B Polling Station. At that Polling Station, he saw a ballot box without code number, a Voters’ Register containing names of 171 army men and 17 women. He again saw Betty Angudu, the daughter of his cousin, Silver Opidio, born in 1985, on the queue with other soldiers, where upon Kana complained to the Presiding Officer about the girl and the number of 15 women in the queue when all the 17 women on the Register had already voted. When the Presiding Officer called her, Betty Angudu was found to be holding a Voter’s Card of a 50 year old woman. The Chart does not show that Kana’s affidavit is rebutted. His evidence is, therefore, not controverted. I accept it as true.

I have already referred to the affidavit of Guma Majid Awodson in another context. He said that on 12-03-2001, he saw LC3 Vice Chairman of Kuru Division and members of the 1st Respondent’s Task Force, Achaga Safi, cast a ballot paper at Bura B Polling Station where he was registered with Voter’s Card No. 0027587. He again cast a ballot paper at Bura A Polling Station, where his Voter’s Card was No. 00267715. Guma complained to a Prisons Constable deployed to take charge of the Polling Station and the Presiding Officer, but the two told Guma that they could not arrest Achaga Safi as he was a member of the 1st Respondent’s Task force. At Alibi A polling station, Guma saw the Presiding Officer, Abale Young Majid, giving six ballot papers to the LC.lll Chairman of Kuru sub-county Drasi All a member of the 1st Respondent’s Task Force. He got the register and saw that 23 people had voted. When he checked the serial numbers of the ballot papers issued to 23 voters he found that the serial numbers ran from 531 to 560, which was in excess by six. He directed one Olenga, his colleague, to arrest Drasi All while he (Guma) went to the police. When Guma returned to the polling station he found Olenga absent and he (Gum a) was threatened with arrest. Drasi All rebutted Guma’s affidavit saying that he never saw Guma at Alibi polling station. He denied that he was given six ballot papers by Abele as Guma alleged. This is a blanket denial by Drasi Au of Guma’s detailed evidence. He does not say, nor there appears to be any sensible reason, why Guma should have fabricated such allegations with such details, which should be the case in view of Drasi’s blanket denial. Guma took the trouble to check the Register of voters to compare with the number of votes cast, and he found that six extra ballot papers had been issued which tallies with the six ballot papers which Guma said was given to Drasi by the presiding Officer, Abele Young Majid. It would also be unthinkable for Drasi, an LC 1ll Chairman to admit that he committed an electoral offence. In the circumstances, I believe Guma’s evidence and reject Drasi’s as a lie.

Kassim Seganvi of Kibuku village, Kibuku sub-County, Pallisa District was the Petitioner’s polling agent at Kobolwa polling station, where he was also registered voter, and voted. One Haji Bubakali Nangeje, not a voter at the polling station, came and campaigned that all women should vote for the Respondent. Seganyi appealed to the Presiding Officer and the polling constable in vain. One Naulo, who had cast his vote in the morning returned at 2.00p.m., was given a ballot paper and again voted at about 3.00p.m. Another man, not a resident of the area came, holding a voter’s card from that polling station. His thumb showed that he had already voted. Seganvi appealed to the presiding Officer to investigate the matter, but the presiding Officer allowed the man to vote the second time. The presiding Officer and polling constable told Seganyi that he was wasting his time because whatever he did his candidate, the (Petitioner), would not succeed.

The rebuttal affidavit of Haji Abubakali Nangeje said that he was at Kabolwa polling station only for the purpose of assisting his mother Mary Garrett Kyagala, aged 85 years to vote. He did not campaign there for the 1st Respondent. Nangeje’s affidavit does not refer to Seganyi’s allegation that one Naulo voted twice. To that extent therefore he did not rebut Seganyi’s affidavit regarding multiple voting, which remains uncontroverted I accept it as true.

Byaruhanga Yahaya of Customs Road, Busia Town Council, Busia District was the petitioner’s polling agent at March “D” polling station. On polling day at 6.00 a.m. before voting began he noticed that 100 ballot papers meant for the polling station were missing with serial numbers 3596381.3596400 and 35972013597300. He also noticed that one Birungi voted twice at March “D” polling station with voters card No.0872813

A Kenyan called Muhamed, and known to Byaruhanga very well, crossed into Uganda to vote at March “D” with voters card 084100 bearing the name of Hassan All. He was arrested and handed over to the police.

The affidavit was based on knowledge and belief. Belief appears to be irrelevant because what Byaruhanga deponed was what he witnessed. Byaruhanga’s affidavit was not rebutted. i accept his evidence as true.

Patrick Matsiko wa Mucoori is a senior reporter with “Monitor” Newspapers. He was not an agent of the Petitioner. To that extent he should be regarded as one of the few truly independent witnesses for the Petitioner. He registered to vote at his home village Bihanga. He was there from 1st March to 13th March 2001. After voting on 12th March, 2001 he proceeded to Kanyarugiri, Nyamarebe sub-county, Ibanda Sub-District to cover the electoral process there in his duties as a journalist. On his way to Kanyarugiri Polling Station for the army he was intercepted by a soldier in civilian clothes, who told him that nobody was allowed at that polling station, because it was a special area. All the same Mucoori managed to reach the polling station.

The presiding Officer, Charles Muchuguzi, was a soldier and teacher in Bihanga Barracks. When he asked the presiding Officer whether all the six candidates had their polling agents there, he replied that only the 1st Respondent’s agents were present.

A man who was the 1st Respondent agent was standing near the basin, where voters ticked their ballot papers. The 1st Respondent’s polling agent was carefully observing which of the six candidates’ voters ticked. As voting progressed Matsiko noticed that people who had already voted did vote again. At this same polling station, many voters voted multiple times.

The chart does not show that the affidavit of Patrick Matsiko wa Mucoori is rebutted. I therefore accept his evidence as truthful. What happened in this polling station and others was in contravention of the instruction by the 2nd Respondent’s Chairman Mr. Aziz Kasujja, contained in his circular letter of 22nd February 2001 addressed to all Returning Officers, to the effect that presiding Officers and Polling Assistants for each polling stations should be civilians.

The circular is headed “Polling stations for the Army” and attached as annex “A” to Lauis Otika’s affidavit of 23rd March 2001 who was the National Coordinator for the Petitioner with overall supervision monitoring and coordinating the electoral process on behalf of the Petitioner.

Zeyi Patrick of Makuttu sub-county Bugweli Constituency, Iganga District, was the Petitioner’s monitoring agent for Nonchwe Makondhwa and Busiro A and B polling stations amongest others. At 12.00 p.m. (the date not stated) he met the Presiding Officer and LC 1 Chairman distributing ballot papers to people whose names were not in the Register of Voters to cast votes and he saw them cast votes.

He also met a Cadre fl the area ordering the presiding Officer to allow all people whose names were not in the Register to vote without any restriction from anybody. Zeyi questioned why, because some had already voted. They stopped for about ten minutes but when the sub-county Chief arrived with the second Register, he ordered them to use both the old and the new Registers. They were used and voting continued with both Registers. Zeyi went to Busiro A and B and Makandwa Polling Stations in Makandwa Parish. He found the same thing happening at those Polling Stations.

The Chart does not show that the affidavit of Zeyi Patrick was rebutted. His evidence therefore remains un- controverted. I accept it as true.

Mrs. Odong Margaret of Layibi Anywer, Pece Division, Gulu Municipality was the Petitioner’s Polling agent at Barracks (O— O) Polling Station. In her affidavit, she said that an Army Major came and chased away the Polling assistants sent from the office of the 2nd Respondent. Soldiers voted without identification. The names in the Voters’ Cards did not rhyme with the tribe and real age of the persons written on the Voters’ Cards. When Mrs. Odong and another Polling agent tried to report about the abnormality in the voting process the Army Polling assistants reported to their Senior Officers in the Barracks who, as a result, harassed the Polling agents. The affidavit was based on knowledge and belief. Belief is irrelevant since the deponent spoke only of what she witnessed. The Chart indicates that Mrs. Odong’s affidavit was rebutted by Pius Margaret Obol. However, Pius M. Obol’s affidavit dated 1-4-2001, is relevant only to what one Joyce Bangomu alleged in her affidavit of 22-03-2O01. In any case Pius M. Obol deponed about what apparently happened at Pece Polling Station, another place, where she stayed as the 1st Respondent’s throughout the day on 12-03-2001. Mrs. Odongo’s evidence therefore remains uncontroverted, and I accept it.

Kedega Michael of Kabedo Opong Village, Bar Dege Division, Gulu Municipality was working as the Petitioner’s Monitor in Nwoya County, which took him to Alero Polling Station outside the Barracks. He found about 50 soldiers who had Voters’ Cards but their names were not on the Register of voters. When he tried to intervene, the soldiers told him that they had got orders from their superior who was a Major. Later he went to Paraa Polling Station where voting ended at 5.00 p.m. but started again at 7.30 p.m. and continued to 10.00 p.m. He discovered that the same soldiers he had found in Alero Polling Station were the same soldiers voting at Paraa Polling Station, led by a Lieutenant Peter. The affidavit was based on knowledge and belief, but belief is irrelevant since the deponent only spoke about what he saw. The Chart indicates that Kedega’s affidavit is rebutted by the “Electoral Commission,” but it does not say by who in the Electoral Commission and where the rebuttal affidavit can be found. I accept Kedega’s evidence.

On the evidence as a whole from all parties to the Petition, which evidence I have carefully considered I am satisfied and find that the Petitioner has proved paragraph 3(1)(J) of the Petition to the required standard. The 2nd Respondent’s agents/servants, namely, presiding Officers and Polling assistants, with full knowledge that the voters concerned had already voted allowed them to vote more than once. This was an act of non — compliance with section 31 of the Act. The 2nd Respondent is accountable for the acts or omission of its agents/servants done in the course of their duty, which happened in this case. I shall consider the effect on the election of this non-compliance together with the effect of the other incidences of noncompliance.