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

FINDINGS ON ISSUE 3

The evidence adduced by the Petitioner has satisfied me that most of the allegations in paragraph 3(1) of the petition have been proved to my satisfaction:

(i) 3(1)(a) that new Polling Stations added or created by the 2nd Respondent were out of time contrary to the provisions of S.28 (1)(a) of PEA.

(ii) 3(1)(b) that contrary to S.28 (I) a of the Act, the second Respondent failed to publish the full list of all Polling Stations in each Constituency 14 days before nomination days of 8th and 9th January, 2001.

(iii) Because of proved facts in (a) & (b), above the Petitioner was disabled from appointing his Polling agents as provided for under S.32 of the Act. This violated the two provisions and the principle of transparency. Therefore ground 3(1) (c) of the petition succeeds.

(iv) The 2nd Respondent failed to supply copies of the Final Voters Register C/S 32(5) of the Act. Therefore ground 3(1) (d) is proved.

(v) The second Respondent contravened Ss. 12 (e) and 18 of the ECA by failing to efficiently compile maintain and update National Voters Register, the Voters Roll for each Constituency. Ground 3(1) (e) succeeds but this appears Pyrrhic victory because S.58 (6) does not appear to make breach of ECA, 1 997 a ground for annulment.

(vi) The 2nd Respondent contravened S.25 of the ECA by failing to display copies of the voters register for 21 days as required. Ground 3(1) (f) must succeed. But because of S.58 (b) of PEA, this is not ground for annulment.

(vii) Contrary to Ss.32 and 47(4) & (5) of PEA, 2000, in many districts such as Kabale, Bushenyi, Ntungamo, Rukungiri, Kanungu, Kamwenge, Mbarara, Sembabule and Kisoro, on the Polling day, during Polling time, agents of the Petitioner were chased from Polling Stations during polling and counting of the votes in the above mentioned districts. As pointed out earlier agents and or servants of the two Respondents in some instances participated in the chasing. Therefore the interests of the Petitioner were not taken care of in such districts as Mbale, Rukungiri, Kanungu, Ntungamo districts. Ground3 (1) (g) succeeds.

(viii) Agents and servants of the 2nd Respondent allowed voting by the army in stations outside barracks, outside statutory time. This contravened the provisions of S.29 (2) and 29(5) of PEA, 2000, and the principle of transparency and therefore ground 3(1) (h) succeeds.

(ix) C/S.30 (7) of PEA, agents/servants of the second Respondent in the course of their duty allowed commencement of the poll without first opening ballot box. This also breached the principle of transparency. Ground 3(1)(l) succeeds.

(x) The agents and servants or presiding officers of the second Respondent allowed multiple voting in the District of Pallisa, Mbale, (Bungokho), Mayuuge, Busia, Iganga, Soroti, Kumi, Kisoro, Kabale, Ntungamwo, Bushenyi, Mbarara, Rukungiri, Kanungu, Kamwenge and Kabarole districts. This contravened S.31 and 71 of PEA. This also violated the principle of one-person one vote. Therefore ground 3(1) (J) succeeds.

(xi) The second Respondent failed to take steps to protect the integrity of the Data Processing Centre in contravention of S.70 of the PEA. This also affects the principle of transparency and fairness. Ground 3(l) (1) has been proved.

(xii) The Petitioner has proved Ground 3(l)(m) in the petition in that c/s.12 (b) & (c) of the ECA, 1997 the second Respondent failed to control the distribution and use of ballot papers in some districts (e.g. the District of Kampala, Kabale, Mbale, Tororo, Busia, Ntungamo, Bushenyi, Mbarara, Sembabule, Rukungiri, Kanungu, Kamwenge and Kabarole). Lack of control enabled the ballot papers to be stolen. This also affects the principles of transparency. Ground XII is proved.

(xiii) The Petitioner brought evidence to prove allegations in para 3(1) (o) of the petition that persons aged below 18 years were allowed to vote in such districts as Kamwenge, Kabarore, Kabale, Ntungamwo, Bushenyi, Mbarara, Kanungu, Rukungiri. This contravened S.19 (1) (b) of the ECA, 1997 as well as S.71 of the PEA, 2000. However the evidence is not of the quality that has satisfied me about the underage voting. So the ground fails.

(xiv) The Petitioner alleged and adduced evidence to prove that contrary to section 32 of the PE Act, the 2 Respondent’s agents/servants, the Presiding officers, failed to prevent the Petitioner’s polling agents from being chased away from Polling Stations and as a result, the Petitioner’s agents were unable to observe and to monitor the voting process. Witnesses include C. Owor, R. Kironde, Kimumwe, Acko H, James Birungi, Sentongo, B. Matsiko, J. Musinguzi and Kirunda. Therefore the principles of transparency, and fairness were contravened. Paragraph 3(1) (p) succeeds.

(xv) The Petitioner adduced evidence to prove that contrary to sections 29(4) and 34 of the PEA Act, the 2nd Respondent through its agents/servants namely the chairman and Presiding officers in the course of their duties allowed people with no valid Voters’ Cards to vote. Witnesses includes S. Kule, Masinde, I. Kiryowa, Ojok D. of Mbale, Kakuru Sam of Kanungu and
B. Bwambale of Kasese. This affects the principle that election is for citizens. Allegations in paragraph 3(l) (q) are proven.

(vxi) The Petitioner adduced evidence to prove that contrary to section 42 of the PEA Act, the 2 Respondent through its agents/servants in the course of their duties allowed people with deadly weapons to wit, UPDF soldiers, LDU soldiers and para-military personnel and other armed people at Polling stations in the districts of Mbale, Palisa, Rukungiri, Kabale, Kanungu, Kamwenge, Soroti, Kabarole, Mbarara, Busia, Tororo, Arua, Iganga and Sembabule Those armed people had no right to be at stations. Their presence intimidated many voters. See evidence of Kyimpaire, Matsiko, Tibanyendera, Kiiza and Musinguzi’s evidence. This affected the Petitioner. The principle of voting under conditions of freedom was violated. Ground

3(I) (r) succeeds.

(xvi) The Petitioner has proved that in the Districts of Rukungiri, Mbale, Kanungu, Kamwenge, Mbarara, Sembabule, Kampala, Ntungamwo, Kabale and contrary to section 47 of the PEA Act, the 2 Respondent’s agents/servants in the course of their duties denied the Petitioner’s Polling agents information concerning the counting and tallying process. This also contravened the principle of transparency. Ground 3(I) (s) is proven.

(xvii) The Petitioner has produced evidence by way of affidavits to prove that in the districts of Rukungiri (J. Musinguzi and Kakuru Sam) of Ntungamwo, Kabale, Kanungu, Mbarara, Pallisa, Mayuge, Soroti, Sembabule, Tororo, and contrary to section 47 of the PEA Act, the 2nd Respondent’s agents! servants, the presiding officers, allowed the voting and carried out the counting and tallying of votes in the forced absence of the Petitioner’s agents whose duty was to safeguard the Petitioner’s interests by observing and verifying the voting, counting and tallying process and ascertain the results. The principle of transparency was violated. Therefore, the allegations in paragraph 3(l) (t) of the petition have been proven to my satisfaction.

(xviii) The Petitioner adduced the evidence of Dr. Mukasa, to show that in the District of Kampala and contrary to section 56 (2) of the PEA Act, the 2nd Respondent declared the results of the Presidential Election when all the Electoral Commissioners had not signed the Declaration of Results Form B. But as there is no requirement in the Act to that effect, allegations in paragraph 3(l) (u) though proven have no effect on the result.

(xix) The Petitioner produced the evidence of himself, of Kakuru Sam, of Major Rabwoni Okwir, of Winnie Byanyima, J. Musinguzi, of J. Kijumba, Henry Tumusime of Mpabwoowa C. and D. Okello to prove that contrary to section 12(1)(e) and (f) of the ECA, the 2nd Respondent failed to ensure that the entire Presidential Electoral process was conducted under conditions of freedom and fairness and as a result the Petitioner’s and his agents’ campaigns were frequently interfered with by personnel of the UPDF, including the PPU, and the Para-military personnel such as the group led by Major Kakooza Mutale. The evidence by the first Respondent, by Chairman Kasujja, by Lt. Col. Mayombo, by Major General Odongo Jeje has not disproved this. In the result the allegations in paragraph 3(l) (v) of the petition are upheld as proved.

(xx) The Petitioner proved by evidence of Major Rabwoni, of Henry Tumusime,

J. Musinguzi and Winfred Nalusiba among others, that some of the Petitioner’s agents and supporters were abducted and some were arrested assaulted and intimidated by the army to prevail upon them to vote for the first Respondent or to refrain from voting contrary to section 74 of the PE Act. The evidence by Captain Rwakitature, Captain Ndahura, Capt. Byaruhanga, Lt. Col. Mayombo does not disprove petitioner’s claim. I find that the allegations in ground 3(I) (w) of the petition have been proved to my satisfaction. The principles of freedom and fairness were violated.

(xxi) The petitioner has proved through witnesses such as Mulindwa of Pallisa, Muhairwoha, J. Birungi and J. Musinguzi of Kanungu, J. Tumusime and Kyimpaire of Kamwenge, that contrary to sections 70 (f) and (j) and S.71 (b) of the Act, some of the 2nd Respondent’s agents/servants namely the Presiding Officers/Polling Assistants in the course of their duties ticked ballot papers in the 1st Respondent’s favour and later gave them to voters to put in the ballot boxes; and polling officers interfered with ballot boxes and stuffed them with already ticked ballot papers. This breached the principle of fairness, freedom of choice and the scarcity of secret ballot. Ground 3(1) (x) succeeds.

In summary, evidence has established or proved that various provisions of the Presidential Election Act 2000 (and of the Electoral Commission Act which is now irrelevant for our decisions) were contravened and the non-compliance affected the result of the Presidential Election in a substantial manner in so far as the PEA is concerned.