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

(4) Any objection under subsection (3) shall be addressed to the returning officer through the chairperson of the parish council of the person raising the objection.

(5) The returning officer shall appoint a tribunal comprising five members to determine objections received by him or her under subsection (4).”

From the affidavits of Chairman Kasujja it is apparent that these exercises were undertaken if they were of little importance. In the affidavit accompanying the 2nd Respondent’s answer to the petition, he deponed that the voters’ register was displayed country wide for five days and could not be displayed for 21 days or more because of time constraint. In a supplementary affidavit in reply, he deponed that the national voters’ register which had existed since 1993, was updated at village level for the 2001 Presidential election, from 11th to 22nd January 2001, and that during the update, “Tribunals were established to handle complaints.” He also deponed that in February 2001, the register was displayed at polling stations in form of voters’ rolls, and that for ease of scrutinising, it was displayed in four components, i.e. previously registered voters, newly registered voters, transferred voters, and voters recommended for deletion. In the said affidavit he explained:

“26. That the display was initially done for three days, and after consultations and in agreement with all candidates’ agents, the period was extended for another two days and both periods were gazetted.

27. That the time for display and update of the register was affected by a decision to have photographic voters cards which required fresh registration. This exercise was commenced but due to unforeseen delays in delivery of all the necessary equipment which had not arrived by 31 December, 2000, the 2nd Respondent was forced to revert to the old system of updating the existing register, having lost a lot of time.”

The background to the delay referred to in paragraph 27 was elaborated on, in two statements Chairman Kasujja made on 4th January, and 10th March, 2001. The first was a general public notice while the second was specifically addressed to International groups who had come to observe the election. Both statements were annextures to Mukasa David Bulonge’s affidavit. In a nutshell, Chairman Kasujja revealed that originally the Commission had planned for the exercise of general update of the voters’ register to be carried out between 13th and 26th October 2000. That plan was put off when, in a speech on 9th October, 2000, the President of Uganda “announced the government’s commitment to provide funds for computerising the voters’ register and issuing of photographic voter’s cards.” Some efforts were made towards to achieving that objective. However “due to delays experienced in the procurement process and release of funds from the Ministry of Finance to enable the Commission open letters of credit with various suppliers” none of the necessary equipment and materials had arrived by 3l December 2000. Hence the decision to revert to the “old system.”

I am constrained to make the following observations

(1) It was not explained why, and so I was not persuaded that, the so-called “old system” of updating the existing register could not have proceeded while the equipment and materials required for the desired new system were pursued. In my opinion, if the Commission had acted more diligently knowing, as it did, that the time for holding the Presidential election was fixed by the Constitution, and that the duration of the period for at least the display exercise, was fixed by the Act, it would not have put off the exercises until so late.

(2) By a Notice dated 23d February 2001, Chairman Kasujja announced that in exercise of the special powers conferred on the Commission under S.38 of the Commission Act, “the display period of the Voters’ Rolls for the National Presidential Election, 2001 (had) been reduced from 21 days to 3 days “. Under that section the Commission is empowered to “extend the time for doing any act.” However it is not similarly empowered to reduce time. I considered whether the special power to extend time included, by implication or inference, power to reduce time fixed by the Act, but I failed to put that interpretation. As I understand it, the special power is conditional. For clarity I would paraphrase the provision thus:

“The Commission (may) ……….otherwise adapt any of those provisions as may be required to achieve the purposes of this Act …….to such extent as the Commission considers necessary to meet the exigencies of the situation.” (Emphasis is added)

Clearly, it is a condition for the exercise of that power that adapting provisions of the Act to meet the exigencies of the situation must be restricted or limited to what is required to achieve the purposes of the Act to exigencies of the situation. It follows that the power cannot be invoked to adapt a provision of the Act, if doing so would defeat the purposes of the Act. In my view reduction of the period for display of the voters’ rolls was not required to achieve the purposes of S.25 of the Commission Act. On the contrary it served to defeat those purposes. In my considered opinion therefore, the reduction of the period for display was ultra vires the powers of the Commission.

(3) If it be true, as deponed by Chairman Kasujja, that the tribunals to handle complaints, were set up during the update exercise, that was inconsistent with the letter and spirit of the provisions in S.25 of the Commission Act. Tribunals are supposed to handle disputes generated from objections raised under S. 25(3) “during the period of the display of the voters’ roll.” In the circumstances I could not see what the tribunals he mentioned could have handled during the updating exercise. I am inclined to infer that during the short display of 3 plus 2 days no fresh Tribunals were set up to handle objections as required in sub-section (5).

The importance of the system of voter registration in a democratic election cannot be over emphasised. It is through it, that the voters to participate in the election are identified and ascertained. To ensure that only persons entitled to vote remain on the voters’ register the two exercises of updating and displaying the register must be carried out diligently and meticulously. In the instant case, owing to what I must call self-imposed shortage of time, the 2nd Respondent did not execute the exercises diligently, let alone meticulously. However, there was not sufficient reliable evidence to show the overall impact of this failure.

For the Petitioner, Frank Mukunzi deponed that he carried out an analysis of data related to the Presidential election which “revealed an error margin of over 50% in the Electoral Commission’s figures of the voters’ register”. Counsel for the Respondents strongly criticised that evidence on two grounds. First, his C.V. revealed that Frank Mukunzi had no professional training in statistics, and he was therefore, not competent as an expert witness; secondly his analysis was based on erroneous or doubtful premise. I was not inclined to disregard the evidence purely on the ground that the deponent lacked formal training in statistics. The subject of his report was one which he probably could handle from the practical experience in data analysis he claimed to have. However upon going through the report I was not impressed that it was well founded. Accordingly I did not place any reliance on it and I do not find it necessary or useful to discuss it here.

Nevertheless, there was scanty and scattered evidence to the effect that some names of deceased persons and of non-citizens who had left the country, were still on the register on polling day. And conversely there was equally scanty evidence of persons entitled to vote but who did not vote because their names were not on the register. Needless to say that this was largely a consequence of not carrying out the two exercises properly. However, the proportion of names which wrongfully remained on the voters’ register was not established. Nor was the proportion of the eligible voters who were disfranchised because their names were omitted from the voters’ register. I should point out that the 2nd Respondent’s contention that failure to clean up the register would not per se be a ground for annulment is not entirely correct. If the failure translated into disfranchising a large proportion of citizens entitled to be registered as voters, it could be construed as non-compliance with the principle of voter registration which affected the result. That, however, was not the situation proved in the instant case.