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

Paragraph 3(1)(h) of the Petition

Voting before or beyond time allowed.

“3(1)(h) That contrary to section 29(2) and (5) of the Act the 2nd Respondent’s agents/servants allowed voting before the official Polling time and allowed people to vote beyond the Polling time by people who were neither present at the Polling Stations nor in line of voters at the official hour of closing.”

The 2nd Respondent’s answer to this allegation is that:

“7. In reply to paragraph 3(1) (h) of the Petition, the 2” Respondent avers that neither itself nor its agents or servants allowed people to vote before or after official Polling time. Only people present at Polling Stations or those in the line of voters at the official closing time were allowed to vote out of time.”

Section 29(2) of the Act provides:

“(2) At every Polling Station, Polling time shall commence at seven O’clock in the morning and close at five O’clock in the afternoon.”

Sub-secti0n (5):

“(5) If at the official hour of closing the Polling in subsection (2) there are any voters In the Polling Station in the line of voters under sub-Section” (3) of section 30 who are qualified to vote and have not been able to close, the Polling Station shall be kept open to enable them to vote, but no person who is not actually present at the polling Station or in the line of voters at the official hour of closing shall be allowed to vote even if the Polling Station is still open when he or she arrives.”

The Petitioner’s learned Counsel did not make any submission on this ground of the Petition but merely filed a list of deponents who swore affidavits to support the allegation.

In his reply, Mr. Kabatsi also said little apart from referring to certain affidavits in support of, and in opposition to, this ground of the Petition. Musisi Francis, of Lugolole, Baitabongwe Sub-County, Mayuge District, was the Petitioner’s Polling agent at Baitabongwe Sub-County Headquarters Polling Station. In his affidavit of 20-03-2001, he said that he arrived at the Polling Station at 6.00 a.m. only to discover that the voting exercise had already started in the absence of all other Polling agents for the different candidates. When the first booklet of ballot papers containing 100 leaves got finished, the Presiding Officer produced a second booklet which had only 23 ballot papers. The rest were missing. Only 23 ballot papers were displayed to the Polling agents from that booklet. When Musisi enquired, the presiding Officer told him that they had been removed and taken to another Polling Station.

The affidavit was based on knowledge and belief, but belief is irrelevant since the deponent related only what he saw. The Chart does not show that Musisi’s affidavit is rebutted.

Tumusiime Enock said in his affidavit that he was the Petitioner’s agent overseeing the operation of Polling agent for him in Kajara County, Ntungamo District. He was also a tallying agent. At 7.30 p.m. after the tallying exercise was completed one Moses Rinyerere brought information that at Polling Station Kayenre in Rwikiniro, voting was still going on. At about 11.30 p.m. the Returning Officer of Ntungamo District, Mr. Nshemereize, Tumusiime and six Police Officers proceeded to Ntungamo Social Centre following information that voting was still in progress. Reaching there, they found people still casting votes. They were casting votes for the 1st Respondent only although the Catholic Centre was not a Polling Station. At the center, the team also found nine ballot boxes had been delivered from Ngoma, Rugarama, Kasugu, Kayonze, Kikoni, Kalungyere, Kabuigo, Rwebirizi and Rusinga.

When the Returning Officer asked the presiding Officer why he allowed voting at an ungazetted place, and beyond official time the latter responded that the Chairperson of the 2nd Respondent had extended the voting time to mid-night. Consequently, only the 1st Respondent’s tallying agents signed the declaration of results form. Those of the other candidates did not. The affidavit was based on knowledge. The Chart indicates that the affidavit of Tumusiime Enock is rebutted by Nshemereza Topher, but there is no indication where the rebuttal affidavit can be found.

Moses Babikinamu, of Lwebitakuli, Mawogola, Sembabule District was Chairman of the Petitioner’s Lwebitakuli campaign Task Force. Together with Kafero Anthony, he was also the Petitioner’s Polling agent at Lwebitakuli Polling Station. He arrived at the Polling Station at 6.30 a.m. and found that people had already started voting. The presiding Officer who was also the 1st Respondent’s campaigner, Oliver Karinkiza, wondered why Babikinamu was querying the voting before time. She simply told him to sit down and concentrate on what he was supposed to be doing. She showed him where to sit which was 5 meters away from the desk at which he should have sat. So Babikinamu was prevented from scrutinising Voters’ Cards vis-à-vis the Register.

The affidavit was based on knowledge and belief, but belief IS irrelevant since the deponent said what he saw.

Babikinamu’s affidavit was rebutted by Oliver Karinkiza. In her affidavit dated 2-4-2001, she said that she was the presiding Officer of Lwebitakuli Polling Station on 12-03-2001. She denied that she was a campaigner for the Respondent. At that Polling Station, voting started at 7.00 a.m. not 6.30 a.m. as Babikinamu alleged. Voting started in the presence of Byaruhanga Fredrick, Polling agent for the 1st Respondent and many others including Bakinga Monica. Babikinamu arrived at the Polling Station after 7.00 a.m- and introduced himself as the Petitioner’s Polling agent, and Karinkiza showed him where to sit with other Polling agents, not 5 meters away. The effect of her affidavit is that Babikinamu fabricated what he said in his affidavit. It was, therefore, a pack of lies. There would appear to be no sensible reason, and Karinkiza does not suggest any, why Babikinamu should tell lies against her. On the other hand; it would be unthinkable for her to admit having committed electoral malpractice as a presiding Officer which Babikinamu’s allegations amounted too. In the circumstances, I would accept Babikinamu’s evidence and reject that of Karinkiza.

I have already referred to the affidavit of Kedega Michael in another context. One of the things he said therein is that after voting ended at 5.00 p.m. voting was restarted at 7.30 p.m. and continued until 10.00 p.m.

As I have said before fl this judgment, the Chart indicates that Kedega’s affidavit was rebutted by the “Electoral Commission.” it does identify who in the Electoral Commission and where the rebuttal affidavit can be found. Kedega’s evidence, therefore, remains uncontroverted.

I have considered the evidence from all sides of the Petition regarding this ground of the Petition. I am satisfied that the Petitioner has proved it to the required standard, and I find that in some Polling Stations, presiding Officers and/or Polling assistants, as agents/servants of the 2nd Respondent commenced polling before the stipulated time and closed polling beyond the official time, in contravention of section 29(2) and (5) of the Act. The effect of this noncompliance on the result of the election shall be considered together with the effect of other incidences of noncompliance.

Paragraph 3(3) (i) of the petition stuffing ballot boxes with ticked ballot papers.

“3(3) (i) That contrary to section 30(7) of the Act, the 2^nd Respondent’s agents/Servants’ in the course of their duties, allowed commencement of the Poll with ballot boxes already stuffed with ballot papers and said boxes in full view of all present to ensure that they are devoid of any contents.”

The 2 Respondent’s reply to this ground of Petition that:

“8. In reply to paragraph 3(1)(i) of the Petition, the 2nd Respondent avers that it never allowed commencement of the poll, with ballot boxes already stuffed with ballot papers in full View of all presents as alleged.”

The provisions of section 30(7) of the Act are that:

“30(7) The presiding Officer at each polling Station shall, at the commencement of the Poll and in the full View of all present open the first ballot box, turn it upside down with the open top facing down to ensure to the satisfaction of every one presents that the ballot box is devoid of any contents and after that place the ballot box on the table referred to in paragraph (c) of sub-section (j).”

The Petitioner’s learned Counsel did not make submissions under this ground of the Petition, but they filed in Court a list of witnesses and their affidavits for purposes of proving the ground.

In his submission, Mr. Kabatsi said that he had not seen any affidavits in support of this ground, proving when and where the provisions of section 30(7) of the Act were not followed. Alternatively, if there were such affidavits they were rebutted by affidavits opposing the Petition. He then criticized some of the affidavits filed to support this ground of the Petition.

Abdurahman Mwanja’s affidavit is indicated as one of those filed in support of this ground of the Petition. I have already referred to the affidavit in another context. He said in his affidavit of 2-3-2001, that as Chairman of the Petitioner’s Task Force for Kigulu South Constituency and Bulamogi Sub-/County he visited Iganga Town Council Polling Station to ensure that voting was free and fair. He saw a motor vehicle Hilux Double Cabin No. UG. 0095B bring ballot boxes and “plant” them at Iganga Hospital. The ballot boxes already had ballot papers in them. Mwanja approached the people who brought the ballot boxes and they were forced to leave the area. The boxes were shifted to Kagekobo Primary School which had two Polling Stations, A and B. He followed them with his motor cycle, and he insisted to check the ballot boxes but they refused. Since they were armed, they overpowered Mwanja and his colleagues and took the boxes away with one of the Petitioner’s agents, who later jumped off the vehicle. At 3.30 p.m. they returned, picked up the Petitioner’s agent under arrest, and took him to Iganga Police Station. The arrested agent was released on Police bond of Shs. 50,000 =, and was bound to report back on 29-03-2001.

Ismail Kyeyago rebutted Mwanja’s affidavit. In his affidavit of 4-4-2001, Kyeyago said that he was the Chairman of LC lll, Iganga Town Council and of the Movement in Iganga Town Council. He was also Chairman of the 1 Respondent’s Task Force in Iganga Town Council. He said that Mwanja’s affidavit was false because he never ordered any persons to vote as alleged by Mwanja. Ismail Kyeyogo’s affidavit did not refer to Mwanja’s allegation about stuffed ballot boxes, which evidence, therefore, stands uncontroverted.

Ndifuna Wilber of Busia Town Council, Busia District, was an Electoral Monitor for the petitioner in Busia Town. In his undated affidavit, he said that in the course of his movements he met a man called Bazilio, a beer seller at Marach “b” area, with two girls in his bar. On information that he had bundles of ballot paper he was issuing to people Ndifuna went to him with two plain clothes Police Officers, and asked Bazilio that he (Ndifuna) was a voter and wanted to go and vote for the 1st Respondent. This was a trick, which worked. Bazilio came out with a bundle of ballot papers marked Voters’ Cards and Voters’ Register. Bazilio gave Ndifuna one Voter’s Card in the name of Jogo Joseph and ticked that in the Register. The two girls were also going out with ballot papers they had obtained from Bazilio. Police Officers, whom Ndifuna had tipped, came and arrested all of them, including Ndifuna. Later the same day, the suspects were released from Police custody, allegedly on orders of Busia District Officials. The affidavit was based on knowledge and belief, but since what Ndifuna said was what he witnessed, belief was irrelevant. The affidavit appears to be undated but the date of 22-03-2001, is written above the stamp of the Chief Magistrate of Tororo, before whom the affidavit was apparently sworn. That date appears to be adequate for the validity of the affidavit.

The Chart does not show that Ndifuna’s affidavit is rebutted. It therefore, remains uncontroverted I accept the evidence.

I have already referred to the affidavit of Moses Babikinamu in another context. He said, inter alia, that when Hon. Sam Kutesa, MP appeared at Lwebitakuli Polling Station, at 10.00 a.m. the M.P. asked the presiding Officer, the number of people who had by then voted. The presiding Officer, Oliver Karunkiza replied, 300, but Babikinamu had counted only 52 to have voted. Between 7.00 a.m. and 5.00 p.m. he recorded the number of people who had cast their votes. They were 160. After counting the cast ballot paper at the end of the Poll, the Presiding Officers declared that the votes were 510. Babikinamu disputed that figure, but the 1st Respondent’s agents threatened him and his colleagues saying that they were going to be arrested. The presiding Officer got annoyed with Babikinamu and told him to sign the documents without reading through. He signed and left immediately for fear of his life.

Oliver Karunkiza, the presiding Officer at Lwebitakuli rebutted Babikinamu’s affidavit. She denied that she was the 1st Respondent’s campaigner during the Presidential Election. She said that Polling started at 7.00 a.m., not at 6.30 a.m. as Babikinamu alleged, in the presence of Byaruhanga Fred Olwick, Polling agent for the 1st Respondent and many others. On that day Babikinamu arrived after 7.00 a.m. and introduced himself, and she did not make him sit at a distance as he alleged. The M.P. for Mawogola, Hon Sam Kutesa came to the polling Station in the afternoon; not at 10.00 a.m. as alleged. The total number of votes cast was 510. This was counted in the presence of Polling agents for both candidates. Babikinamu willingly signed the declaration of results and tally sheets together with Kafero Anthony, Byaruhanga Fredrick, Polling agents’ and Nabakoza Joyce and Bekinga Munica, Polling assistants. She did not threaten Babikinamu with arrest. The rebuttal was therefore, a complete denial of what Babikinamu alleged Oliver Karinkiza as the presiding Officer did. She did not say why he should have made up such serious lies against her if the allegation were lies. It would be difficult to imagine credible reasons for such a complete fabrication of what did not happen. Further, Karinkiza would not be expected to admit to have committed such electoral malpractices as a Presiding Officer. In the circumstances my view is that it is Karinkiza’s denials which were false, not Babikinamu’s account of what happened. I accept the latter’s evidence as true.

Imoni Steven, of Mella Village, Kwasa Sub-County, Tororo District was a campaign agent for the Petitioner for Mella Parish. In his affidavit of 22-03-2001, he said that, while he was at Mella Primary School Polling Station, he saw the presiding Officer Arthur Etyang Osilo issuing more than one ballot papers to some voters especially members of the clan of the MP — Tororo County, Hon. Paul Etyang, whom Imoni knows very well since they are his relatives. He pointed this out to the polling officials and Polling agents, but the presiding Officer ignored his concerns. Before voting started, the LC3 Chairman Kwapa sub-County, arrived at the Polling Station, called aside the presiding Officer and the Polling agents of the 1st Respondent and had a long discussion with them. At the close of poll, the presiding Officer convinced all the Polling agents to sign declaration forms before the votes were tallied. Before the votes could be counted, the LC3 Chairman, Mr. Alfred Obore returned to the Polling Station at 6.00 p.m. with a gun, cocked it and ordered everybody to disappear. All ran away except the Polling officials. After about 30 minutes Imoni and some other people gained courage and returned to the Polling Station, and found that the votes were not tallying, because 750 ballot papers were recorded when the poll began and 525 voters cast their votes, 160 ballot papers had not been used, leaving 65 ballot papers unaccounted for. The ballot papers unaccounted for had been ticked in favour of the 1st Respondent. Thereafter a disagreement ensued between the Polling agents. The Petitioner’s Polling agents wanted the 65 votes destroyed. The CID Officer of Malaba present held on to the 65 ballot papers. The O.C., CID, Malaba was called. He purported to arrest the presiding Officer. The following morning Imoni found the presiding Officer in Malaba Town, out of custody.

The affidavit was based on knowledge and belief. Belief appeared to be irrelevant

since what Imoni said in it was what he witnessed.

Alfred Obore, Chairman LC3, Kwapa Sub-County was also the Chairman of the 1st Respondent’s Task Force for Kwapa. In his rebuttal affidavit dated 3-4-2001, he said that what Imoni Steven said in his affidavit was false. On 12-03-2001, he visited Mella at about 7.30 a.m. where voting had already started, not before as alleged. While there, he called his agents aside to find out if they had any problem and to give them lunch allowance. I think what Obore called “my agents” were the 1st Respondent’s agents. He said that he did not call the presiding Officer aside for a discussion or at all, because voting was already in progress, and he was issuing ballot papers to voters in the line. On his way back to Malaba, he passed by Mella Polling Station at 7.00 p.m., where he found a group of people arguing. The O.C. Police Malaba came by and advised that due to darkness, the ballot box should be carried to Malaba Police Station for purposes of counting and tallying the ballots because of insufficient light. He did not follow the ballot boxes; nor did he participate in the counting of votes, or tallying as alleged. He did not have a gun, nor order anybody to disappear as alleged.

I find that Obore’s affidavit is consistent with that of Imoni in certain particulars for instance presence of the O.C. Malaba Police Station. Imoni called him O.C, CID. The two affidavits differ with regard to what Obore allegedly did, which he says was false. Obore says nothing about the excess 65 ballot papers, about which Imoni went on details. There would appear to be no sensible reason, and Obore does not suggest any, why Imoni would make up all he said in his affidavit. On the other hand it would be unthinkable for Obore to admit the criminal acts which Imoni alleged against him. I would therefore, believe Imoni’s evidence and reject Obore’s, which I do.

Tukahebwa Kenneth was from Kyenzaza, Kichwamba, Bunyaruguru, Bushenyi District. In his affidavit of 21-03-2001, he deponed that he was a Polling agent for the Petitioner at Kyenzaza Trading Centre Polling Station. At about 2.00 p.m. on Polling day the driver of Watuwa Sikola alias Maama Chama, by the names of Ntare Banyenzaki Abdu, arrived at the Polling Station. Watuwa Sikola is employed in State House and was a vigorous Campaign Manager for the 1st Respondent. At about 2.00 p.m. the said Banyenzaki tried to stuff several ballot papers into the ballot box. Tukahebwa and his colleague protested. A home guard was called and he arrested Banyenzaki with the ballot papers. Within five minutes Watuwa Sikola alias Mama Chama arrived and took away her driver and the home guard. The latter returned, disarmed.

Kyomuhangi Allen, sister in law of Sikola was caught red handed with 13 ballot papers all ticked in favour of the 1st Respondent at the same Polling Station, while trying to stuff them into the ballot box. The same were removed from her and handed over to the Monitor who in turn handed it over to the coordinat0r, and they were taken to Bushenyi Police Station, where a case was opened vide SD 39/12/3/2001, CRB. 107/2001. The affidavit was based on knowledge.

Watuwa Sikola, of Kyambura Bunyaruguru Bushenyi District, rebutted Tinkahebwa’s affidavit. In her rebuttal affidavit of 3-4-1001, she said that she served on the District Task Force of the 1st Respondent. On Polling day she was coming from Monitoring election in Kichwamba and arrived at Kyenzaza Trading Centre in the late afternoon. She got information that her driver Abdu Banyenzaki had had a scuffle with a vigilante. At the Polling Station she and LC3 Chairman Frank Mubangazi found the vigilante drunk and armed, near the Polling Station. The Chairman disarmed the vigilante and summoned the LDU Commander to deal with the vigilante for being drunk and carrying a gun near the Polling Station. It is not true, as Tukahebwa alleged, that she rescued Abdu from arrest or that she disarmed a home guard. Nor is true that Allen Kyomuhangi is her sister — in — law. Her late husband was from Mbale and could not have had a sister with that name, which is a name indigenous to Western Uganda. I find that the affidavit of Watuwa and that of Tukahebwa agree in certain particulars except with regard to the alleged possession by Watuwa’s driver and Kyomuhangi of ticked ballot papers, about which Watuwa did not refer to in her affidavit. She does not mention anything about ballot papers at all. There would appear to be no sensible reason for Tukahebwa to fabricate the detailed account of what he said happened. His evidence is preferable to that of Watuwa.

Abdu Ntare Banyenzaki also rebutted Tukahebwa’s affidavit. In his affidavit of 3-4-2001, he said that on Polling day, his task was to transport the sick after they had voted at Kyenzaza to their respective homes. He did not stuff or attempt to stuff ballot papers into a ballot box as alleged by Tukahebwa. It is not true that he was arrested by a home guard with ballot papers. On the contrary, he was accosted by a drunk and armed vigilante near the Polling Station, who wanted to know who he was and what he was doing there. As a result he went home where Mrs. Watuwa Sikola his employer, found him. She proceeded to the polling Station. It is not true that he was arrested by a home guard with ballot papers or that Mrs. Watuwa rescued him (Banyenzaki) as alleged by Tukahebwa. Banyenzaki’s evidence is simply a denial of Tukahebwa’s evidence. If the denial is true, then Tukahebwa must have invented what he said in his affidavit. It would appear to be unlikely that such detailed evidence would be invented. I do not accept Banyenzaki’s denial. I accept Tukahebwa’s evidence as true.

Bangirana James, Asp. and O.C., CID. in Bushenyi District also rebutted Tukahebwa’s affidavit. In his rebuttal affidavit of 1-4-2001, he said that in preparation for the election Police Mobile Units comprising officers and men were deployed in every route in Bushenyi District, well equipped with transport and communication which made frequent checks at all Police Posts and polling Stations. All election related offences were reported to Police Posts and transmitted to the mother Police Station at the District level. A tabulated Chart of such reports was annexture “A” to Bangirana’s affidavit. This evidence in my view does not rebut Tukahebwa’s affidavit. The police mobile units were not stationed at Kyenzaza Polling Station at all times. On the contrary the tabulated Police Chart reported electoral offences corroborates .Tukahebwa’s evidence. The Chart shows No. 15, SD 39/12/3/2001. CRB 107/2001 (the Police reference mentioned by Tukahebwa) as reported by Rev. Fr. Birungi. Tukahebwa said that the ballot papers were handed over to a Monitor who handed them over to a co-ordinator. He did not say whether Rev. Fr. Birungi was any of these. It is well known that election was monitored by a Christian Coalition. Presumably Rev. Fr. Birungi was a member of that group. Tukahebwa’s evidence, therefore, still remains credible.

On the evidence available on this ground as a whole, which I have carefully considered, I am satisfied that the Petitioner has proved to the required standard, and I find that at the commencement and during the course of polling, the 2’ Respondent’s agents/servants1 namely the Presiding Officers allowed ticked ballot papers to be stuffed into ballot boxes, contrary to section 30(7) of the Act.