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

Paragraph 3(1) (I) of the Petition — Arrest of Hajati Miiro:

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“(1) That Hajati Miiro a Member of the Respondent failed to live up to the Oath of Office as a result of which she was arrested in connection with electoral offences. Hajati Miiro, a Member of the 2nd Respondent was arrested and detained by the Police and charged in Court with two other Seminar Officers in charge of the Data Centre of the 2nd Respondent for being found to have indulged In practices amounting to electoral offences contrary to section 70 of the Act. Thus seriously undermining the whole electoral process.”

The 2nd Respondent’s answer to this ground of the Petition is that:

“11. In reply to paragraph 3(1) (l) of the Petition, the Respondent avers that Hajati Miiro and two other employees of the 2nd Respondent were arrested and charged in Court and their cases have not been finalized. Furthermore, there is no evidence that the Commission of the alleged offences if any, affected the results of the election substantially as alleged or at all and in any event this matter is subjudice.

Section 70 of the Act creates a long list of offences under the Act. It is not necessary to reproduce the long list of offences in this judgment. Only some examples may be given. These include forging, counterfeiting or destruction of ballot paper; without authority, supplying ballot paper to anybody etc.

In his submission, Mr. Balikuddembe mentioned Hajati Miiro’s case as an example of the 2nd Respondent’s failure to organize a free and fair election. Mr. Kabatsi said in his reply that the case is still in Court. Until proved guilty she is still innocent of the offence with which she has been charged.

In his affidavit filed with the Petition, the Petitioner said:

“49. That I know that Hajati Miiro a Member of the Electoral Commission was arrested together with two other Senior Officers in the Data Centre of the Electoral Commission the Polling day and were charged in Buganda Road Chief Magistrate’s Court with electoral offences and I herewith attach a copy of the Charge Sheet and is marked “P20.”

The affidavit of Mr. Kasujja, supporting the 2nd Respondent’s Answer to the Petition said:

“17. That in response to paragraph 49 of the Petitioner’s affidavit while It is true that Commissioner Miiro and two other officers were arrested and charged in Buganda Road Court they are not yet tried or convicted and one therefore, presumed innocent and their cases are subjudice.”

The charge in question is dated 14-03-2001 and was prepared at the CID Headquarters, as reference E/71/2001. It cites Mrs. Miiro Nassanga Hadija, a Member of the Electoral Commission; Timothy Wakabi, a Statistician, working with the Electoral Commission; Ibrahim Lutalo Acting Head of Voter Registration Department, Electoral Commission as co-accused. They are charged jointly on two counts. The offence in Count I is abuse of Office, contrary to Section 83 of the Penal Code Act, the particulars of which are that between February and March, 2001, at Plot No. 53/56 Jinja Road in Kampala District being persons employed by the Electoral Commission as Members of the Commission, Acting Head, Data Processing Department and Acting Head — Voter Registration Department respectively, did for purposes of rigging the Presidential Election 2001, and in abuse of authority of that office, arbitrary acts prejudicial to the rights of the Electoral Commission in that they printed excess Voters’ Cards in various names and for various electoral areas.

The offence charged in Count 2 is Neglect of duty, contrary to section 108 of the Penal Code Act. The particulars are that all the three accused persons on the same date and place, being persons employed by the 2nd Respondent, neglected to print the correct number of Voters’ Cards thereby resulting in printing of excess Voters’ Cards.

The Director of Public Prosecution gave written consent to the charge.

Under section 83 of the Penal Code Act, on conviction, the maximum sentence is seven years imprisonment and under section 108, the maximum sentence is five years imprisonment. These may be contrasted with the punishments for offences under section 70 of the Act, which is a fine not exceeding Shs. 100,000= or imprisonment not exceeding five years or both under the Penal Sections there is no alternative of a fine.

By charging the accused persons in question under the Penal Code Act the prosecuting authority, in my view, appears to have considered that the offences the accused persons are accused of are more serious than the offences under the Act.

Be that as it may, the accused persons are no more than that. They are innocent until they are proved guilty. However, their being suspected and charged in Court with electoral offences does not speak very well of the image of the 2nd Respondent as a respectable Electoral Commission which should organize and conduct a clean election, a free and fair election. This is because the accused persons are very high officials of the 2nd Respondent, not minor officials whose misdemeanours could not have serious consequences. They are charged with offences of dishonesty in the process of election, allegedly committed in the course of their duties.

Although they are still innocent, an adverse interference to a limited extent about the 2nd Respondent is in, my opinion, inevitable.

As the officials in question of the 2d Respondent are not convicted of the electoral offences they are charged with there is no evidence that this ground has been proved by the Petitioner. Ground 3(1) (l) of the Petition must, therefore, fail.

Paragraph 3(1) (m) of the Petition:

“(m) That contrary to section 12(b) and (c) of the Electoral Commission Act, 1997, the 2^nd Respondent failed to control the distribution and use of ballot boxes and papers resulting in the Commission of numerous election offences under part X of the Act as hereunder:

1.