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

“3(1) (q) That contrary to sections 29(4) and 34 of the Act, the 2nd Respondent and its agents/Servants the presiding Officers in the course of their duties allowed people with no valid Voters’ Cards to vote-”

The 2nd Respondent made a reply to this ground of the Petition fl its Answer as follows:

“15. In reply to paragraph 3(1) (q) of the Petition, the 2nd Respondent avers that it allowed people whose names appeared in the Voters’ Register but had not been able to obtain Voters’ Cards to vote after being properly identified, and that the number of such people was small and insignificant and the 2nd Respondent did this lawfully in exercise of powers and functions given it by law-”

The 2nd Respondent did not state in his reply what law permitted it to allow voters with their names on the Voters’ Register but without valid Voters’ Cards to vote.

Section 29(4) of the Act provides:

“29(4) Any Person registered as a Voter and whose name appears in the Voters’ Roll of Polling Station and who holds a valid Voter’s Card shall be entitled to vote at a Polling Station.”

Section 34(1) of the Act provides:

“A voter wishing to obtain a ballot paper for the purpose of voting, shall produce his or her Voter’s Card to the Presiding Officer or Polling assistant at the table referred to in paragraph (a) of sub-section (5) of section 30.”

As far as my notes of the Proceedings show, the Petitioner’s learned Counsel did not specifically submit on this ground. Nor did Mr. Kabatsi in reply, unfortunately, because if he made a submission in reply, he would have referred to the relevant law (if any) on which the 2^nd Respondent allegedly relied.

The Petitioner’s learned Counsel filed a list of deponents and their affidavits relevant to this ground of the Petition.

Zeeyi Patrick, of Mukutu Sub-County, Iganga District said in his affidavit of 20-03-2001 that he was the Petitioner’s monitoring agent for Nondoe, Makandwa and Busimo A and B Polling Stations. At 12.00 noon, he met the Presiding Officer (he does not say of which Polling Station) and the LCI Chairman distributing ballot papers to people whose names were not on the Register of Voters to cast votes and he saw them cast votes. He met a Cadre in the area also ordering the Presiding Officer to allow all people whose names were not on the Register to vote without restriction from anybody. When Zeeyi questioned why this was happening, 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 and voting continued with both Registers. When he went to Polling Stations in Busimo A and B, he found the same problems. I find contradictions in this witness’ evidence. If people whose names were not in the Register were being allowed to vote, why was a Register necessary and used when the Sub-County Chief arrived with a second Register? In the circumstances, I do not accept Zeeyi’s evidence in this regard.

Bwambale Solomon Kisaka, of Habitat Kamaiba, Kasese Town, was a Polling agent for the Petitioner at Kamaiba Primary School Polling Station. He saw a person calling himself Karuhanga John, holding a card in those names, was allowed to vote although his name did not appear on the Voters’ Register. Maate Joseph, also holding a Voter’s Card also voted although his name did not appear on the Voters’ Register. The Chart shows that Bwambale’s affidavit is rebutted by Grace Maiso, but it is not shown where the rebuttal affidavit can be found. This evidence shows that people with valid Voters’ Cards but whose names were not in the Register were allowed to vote, which the 2nd Respondent has said it was authorized to do by law.

I have already referred to Lucia Naggayi’s affidavit in another context. At Budimbo Polling Station, Rwansama and Naggayi were informed by the Petitioner’s agent that many soldiers, whose names were not on the Voters’ Roll, were allowed to vote and did vote. David Kkeeya, of Kateera Parish, Bukomero, Kiboga District, was the presiding Officer at Bukomero A — M Polling Station. In his rebuttal affidavit of 4-4-2001, he said that Lucia Naggayi, was the Petitioner’s election Monitor where he was presiding Officer. He denied that the several electoral malpractices alleged by Naggayi occurred at the Polling Station. Lucia Naggayi did not give the source of her information. Her evidence was therefore hearsay, and inadmissible.

Baguma John Henry was the petitioner’s electoral Monitor for Bukonjo County, Kasese District. In his affidavit of 20-03-2001, he said that on 12-03-2001, the RDC in charge of Bukonjo County, one Aggrey Mbomi went with a lorry full of armed soldiers to Munsana Polling Station and ordered the Presiding Officer to allow all the soldiers to vote. He handed to the presiding Officer a parcel allegedly containing names of the soldiers. Presiding Officer already had his Voters’ Register before the RDC brought his. Baguma protested but he was overpowered after he had been threatened with death by a soldier in charge of operations at Nyabirongo Army Battalion headquarters. He noted that army men who were voting at Nyabirongo Army Barracks were transported to Rwenghuyo and Kisinga Trading Centre Polling Station A, where they voted again. When Baguma pointed this out to the presiding Officer at those two polling stations, he was chased away by one Major Mawa, who threatened to kill Baguma if he continued with his “nuisance about the soldiers voting from many polling stations”.

The Chart shows that the affidavit of Baguma is rebutted by Mumywami Johnson on page 270, but page 270 contains the affidavit of Achaga Safi which is irrelevant to Baguma’s affidavit. Aggrey Mwami the Deputy Resident District Commissioner of Kasese, based at Bwera, rebutted Baguma’s affidavit. In his rebuttal affidavit of 2-4-2001, he said that the affidavit of Baguma contains false allegations against him Mwami e denied that he went with a lorry full of armed soldiers and ordered the presiding officer to allow them to vote. Nor it is true that he handed over a list to the presiding officer as alleged by Baguma. On Polling day he moved around to ensure that security was alright. He was not traveling in a lorry and he had no soldier’s in his company. He never entered any polling stations. It is therefore false allegation that he ferried soldiers to the polling stations and ordered the presiding Officer to allow them to vote. He never saw any lorry carrying soldiers.

According to what Mwami’s rebuttal affidavit means, all that Baguma said in his affidavit was fabricated. But he does not suggest why Baguma should invent such serious and detailed lies against him. Due to his office, Mwami would not be expected to admit that as a Deputy R.D.C he committed such electoral offences or malpractice. In the circumstances, it is his denial that I find to be false. I accept Baguma’s evidence as true.

Major Mawa Muhindo also rebutted the affidavit of Baguma. He was stationed at the 13th Battalion in Bwera. He said that he did not go to Rwenjuhya and Kisinga Trading Centre as Baguma alleged. The allegation by Baguma that he (Muhindo) chased away and threatened to kill Baguma never took place and it is completely false. Again, according to Muhindo’s affidavit in rebuttal, all that Baguma said in his own affidavit is a fabrication. But he did not say why Baguma should have invented such false stories against him. Major Muhindo would not be expected to admit having committed the electoral and other offences which Baguma alleged against him. It is to be expected that he old deny them. In my view, it is the Major’s evidence which is false, not Baguma’s evidence, which I believe to be true.

Bwambale Kasinini, of Kirembo Village, Kagando, Kisinga, Kasese District, was a Polling agent for the Petitioner at Kirembo polling Station. He said in his affidavit that the ballot box arrived at 12.00 noon instead of 7.00 a.m. Soldiers came looking for their Register of Voters, but it was not there. The Soldiers left on a hired motor vehicle and returned with a Register upon which 62 of them voted. It was a separate Register from the one civilians used at the Polling Centre. The affidavit is based on knowledge and belief. Belief is irrelevant because Bwambale spoke of what he saw. The Chart does not show that Bwambale’s affidavit is rebutted. The evidence therefore, stands uncontroverted.

Magumba Abdu was the Petitioner’s Polling agent at Munyonyo Muslim School Polling Station. He deponed in his affidavit that out of nine ballot paper booklets one of them had only 10 ballot papers. He was informed by the Presiding Officer that the booklet had been handed over to him in that form. Thereafter people whom Magumba knew and whose names he listed in his affidavit did not have their names in the Voters’ Register and had no Voters’ Cards but they were allowed to vote on the instructions of the area LC5 Chairman, one Abubaker Ikoba. Magumba and other Polling agents, except the ones for the 1st Respondent, resisted the malpractice in vain. They were forced to sign the declaration of results form by army men who had been summoned by the said LC5 Chairman.

Mainogovu Jowali rebutted Magumba’s affidavit. In his rebuttal affidavit of 2-4-2001, he said that he was the 1st Respondent’s Polling agent at Mioni Muslim School, which he said Magumba must have meant when he referred to Munyonyo Muslim School. The Polling agents, including Mugumba verified the ballot papers and found that only one out of 9 booklets had less than 100 ballot papers. All this tallied with the Packing list in the ballot box. At no time did any army man come to the Polling Station and no person whose names were not on the Voters’ Register or who had no valid Voter’s Card was allowed to vote. The whole voting exercise went on freely and fairly and was endorsed by all Polling agents by willful signing of the declaration forms.

Mainogovu does not mention Abubaker Ikoba, the LC5 Chairman whom Mugumba accused of giving instructions to allow thirteen people whose names were not on the Voters’ Register to vote. Nor did he suggest any reason why Mugumba should have fabricated what he said in his affidavit, including inventing names of thirteen people out of the blue. In the circumstances, I do not believe Mainogovu’s denials. In my view, they are false. I find Magumba’s evidence preferable and I accept it.

I have already referred to the evidence of Musisi Francis in another context. He said further that at Baitambogwe Sub-County Headquarters Polling Station, Yasin Muyinda, Mbowa, Richard Basi, Waiswa John, and others whose names Musisi could not be ascertained, were allowed to vote when their names were not on the Register. The affidavit was based on knowledge and belief. Belief is irrelevant since Musisi spoke of what he witnessed.

The Chart does not show that Musisi’s affidavit was rebutted. His evidence, therefore, stands uncontroverted, and I accept it.

I have already referred to the affidavit of Abdurahaman Mwanja in another context. He further said that at around 4.00 p.m. the Health Council Medical Officers and the Mayor of Iganga, Ismail Kyeyago, ordered those who had old Voters’ Cards to vote and those who had cards but whose names did not appear on the list of Voters’ Register to vote and they voted. He further saw that in Bulamogi Sub-County, at Kasolo Mosque Polling Station one Councilor called Adam Wambuzi gave children (below 18 years) Cards to go and vote and told them that “go and vote Museveni or the one who has got the hat.” The 1st Respondent election poster pictured him with a hat. At Walugogo Primary School Polling Station, students-teachers who had registered in 1 996, when they were at Iganga Teachers’ College and Iganga Technical and whose names came back in the Register yet they had completed their studies and gone away, their Cards were given to other people who used them to vote and voted. At Budwege Primary School Polling Station, the area of the Vice President of Uganda, “soldiers in her company were allowed to vote yet they were not registered voters at that Polling Station.”

Ismail Kyeyago rebutted the affidavit of Abdurahaman Mwanja in another context. He is the LCIII Chairman — Iganga Town Council, the Chairman of the Movement in Iganga Town Council and Chairman of the 1st Respondent’s Task Force in Iganga Town Council. In his rebuttal affidavit he said that Mwanja’s affidavit was false. He denied that he ever ordered any person to vote as Mwanja alleged or at all. It was not part of his duties and he had no power to do as it was alleged. He said that he monitored all the Polling Stations in Iganga Town Council, and he confirmed that the election in his area of jurisdiction was freely and fairly conducted. The same reasons I gave for rejecting Kyeyago’s rebuttal evidence earlier in this judgment apply to the instant denial of what Mwanja said Kyeyago did in this connection. I also accept Mwanja’s evidence in this regard.

The affidavit of Mrs. Odong Margaret has already been considered earlier in this judgment. It is also relevant to this ground of the Petition. In the Chart it is indicated as rebutted by Pious Margaret Obol, but Obol’s rebuttal affidavit is not relevant to Odong’s affidavit. It rebuts what one Joyce Bongomu had alleged against Obol that she distributed money to voters. In the circumstances, Odong’s affidavit in this regard, stands uncontroverted, and I accept it as true. What I have said about the affidavit of Mrs. Odong Margaret equally applies to the affidavit of Kedega Michael under this ground of the Petition.

The 2nd Respondent’s answer to the ground of Petition under consideration, admitted that it allowed people whose names appeared in the Voters’ Register but had no Voters’ Cards to vote after proper identification. The 2nd Respondent contends that it did this because it was authorized by law to do so.

However, it did not indicate what law it was. My view is that the 2nd Respondent is under a duty to cite the law which justifies its action in this regard.

In a “Press Release” dated 11-03-2001, the 2nd Respondent stated:

“Although the Commission has been issuing Voters’ Cards since the lst March, 2001, complaints are still being received that some Voters have not received their cards and yet their names appear on the Voters’ Register.

The Constitution gives a right to every Ugandan Citizen of 18 years or above to be registered and vote. The Commission therefore wishes all to note that all Citizens of 18 years or above whose names appear on the Register but have not received their Cards but can be identified by the Polling Officials and Candidates’ agents at their respective Polling Stations, should be allowed to vote.”

As I understand them the effect of the combination of sections 29(4) and 34(1) of the Act, is that a Citizen of Uganda wishing to vote and whose name is in the Register of Voters, must produce his or her Voter’s Card to the presiding Officer of the Polling Station at which he or she wishes to vote. The requirement for a valid Voter’s Card is mandatory. That is the only way in which a person can exercise his or her right to vote under article 59 of the Constitution. The 2nd Respondent by its press release, I have referred assumed that it was thereby implementing the Constitution. With due respect, I think that it was mistaken. It was acting in contravention of sections 29(f) and 34 of the Act.

The evidence I have evaluated under this ground of the Petition has proved that the 2nd Respondent contravened the law in theory as well as in practice. In the circumstances, I am satisfied that the Petitioner has proved to the required standard and I find that contrary to sections 29(4) and 34 of the Act, the 2nd Respondent allowed some people with no valid Voters’ Cards to vote and they voted.