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

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31. That the number of registered voters rose from 10,672,389 to 10,775,836 due to inclusion of voter soldiers who had previously been registered separately to vote within the barracks and as a result the number of polling stations rose from 17,136 to 17, 308”

It is apparent that the 2nd Respondent compiled a separate “register” or “roll” for soldiers. This, in my view is another area where the 2nd Respondent misconstrued the law and principles underlying it. Section 38 of the Act empowers the Commission to make special provision “for the taking of votes” of the persons specified therein, including soldiers in restricted areas. The section reads:

“38. The Commission may make special provision for the taking of votes of patients in hospitals or persons admitted in sanatoria or homes for the aged and similar institutions and also for persons in restricted areas such as soldiers and other security personnel; but the Commission shall publish in the Gazette a list of the restricted areas under this section.”

While it is not necessary for the purposes of this petition to conclusively interpret the application of this provision, largely because the point was not canvassed, I am still constrained to observe that by virtue of the ejusidem generis rule, “restricted areas” should mean areas where the occupants, like patients in hospitals, and the aged in senatoria, are for some reason, like military operations, not able to come out of the areas readily, for voting with the rest of the community. It does not appear to me that barracks fall within that description. Be that as it may, while the provision clearly envisages the creation of separate polling stations, it does not envisage the setting up of a separate voters’ register as appears to have been done. Inevitably each polling station would have its voters’ roll containing only names of voters in the restricted area served by that polling station. However, by virtue of S. 18 of the Commission Act, each such voters’ roll forms part of the voters’ roll for the Constituency in which the restricted area is situated, and through that becomes an integral part of the national voters’ register. In my view having a parallel voters’ register for soldiers, which was not integrated in the national voters register is incompatible with the law, and the principle underlying voter registration, and transparency.

Furthermore there was some other evidence which tended to portray the electoral process for the army as parallel to, rather than integrated into, the national electoral process For example in his affidavit Cpl. Oyo, the Political Commissar at Akisim Barracks, deponed that he went through the Army Headquarters at Bombo, to call for the names of the soldiers from Olilim together with a ballot box to be transferred to Soroti. That gave the impression that there was a role in the electoral process for the Political Commissar and the Army Headquarters which is not apparent in the law. That would probably have passed off as an innocuous administrative procedure if it did not lead to unexplained polling stations unlawfully set up. Even more glaring is the evidence of Major Nuwagaba John of Bombo Army Barracks. He deponed that at the time of the Presidential elections he was a Captain in UPDF and was “in charge of the electoral process in the army that is organising conducting and administering the presidential elections.” He confirmed the evidence in the affidavit of one Ongee Marino that on 1 2tI March he flew to Kitgum by helicopter to deliver three ballot boxes containing electoral materials for three Ngom Oromo polling stations for soldiers. He arrived at 7.30 p.m. and held a meeting with the Returning Officer, the District Registrar and Brigade Political Commissar “concerning the voting of soldiers in Ngom Oromo” and thereafter flew back leaving the boxes with the District Registrar. Ongee Marino, the Petitioner’s monitor for Kitgum deponed that he objected to the three additional ballot boxes being taken to Ngom Oromo and they were taken to the Police Station at about 10 p.m. However the Returning Officer refused his request to open them so as to ascertain the contents.

Further evidence on parallel treatment of the special stations is in regard to the policing. Although Chairman Kasujja insisted in his supplementary affidavit in reply that on polling day, the police and election constables appointed by the Commission, were in charge at polling stations, while the Army was in charge of national security generally, in a circular letter to Returning Officers dated 22 February he instructed them to liaise with local Commanders/Political Commissars for the latter to identify army personnel who can act as Election Constables and additional Polling Assistants. This was corroborated by John Kisembo the Inspector — General of Police who after explaining the command structure of the Joint Security Task Force in his affidavit, deponed:

“11 policing of the polling stations and tallying centres during the electoral process was only under the Uganda Police save for the army barracks for which the Electoral Commission had made other arrangement” (emphasis is added)

With the foregoing in mind, I am constrained to reiterate my earlier observation that the concept of “taking of the votes of persons in restricted areas” appears to have been misconstrued. In my opinion, the Commission ought to re-consider its application of that provision if the possible abuse of the process and the general negative impact on transparency are to be avoided.

For the reasons I have endeavoured to articulate, I answered issue No.2 in a qualified negative. I was satisfied that while to a large measure the Presidential election was conducted in compliance with the principles laid down in the Act, there was non-compliance with some of the principles as I have indicated above and as summarised in the judgment of the Court.

ISSUE NO. 3

The third framed issue was:

“Whether, if the first and second issues are answered in the affirmative, such non-compliance with the provisions and principles of the said Act, affected the result of the election in a substantial manner.”

My answer to this issue was that the non-compliance with provisions and principles of the Act, found to have occurred, did not affect the result of the Presidential election in a substantial manner. Before I discuss my reasons for that conclusion, I will summarise counsel’s arguments submission the issue. The argument mainly centred on the test to be applied in determining the issue.

For the Petitioner, two counsels addressed the court. First, Mr. Mbabazi submitted that in assessing if non-compliance affected the result of the election the Court had to take into account the nature of the non-compliance. He contended that there were two categories of non-compliance; namely, non-compliance which goes to the root of the Constitution, and non-compliance with provisions of the Act only. He submitted that noncompliance which goes to the root of the Constitution IS a substantial noncompliance and must be deemed to have affected the result of the election in a substantial manner. He included in that category, non-compliance with the principle of voter registration which he submitted was so substantially violated that in the end there was no final national voters’ register. In the alternative, he submitted that the sum total of all the proved irregularities was so substantial that it affected the result of the election in a substantial manner. His submissions were augumented by Mr. Walubiri who, in reply to submissions by the Respondents’ counsel submitted that determination of the issue involved value judgment, whereby the test is qualitative rather than quantitative. He argued that noncompliance with principles cannot be quantified in terms of numbers in the manner counsel for the Respondents demanded. He stressed that the essential principle to be adhered to in a democratic society is that elections shall be free and fair. If, therefore, in an election, non-compliance goes to the root of that principle, the court must annul the result. He invited the Court to follow the approach taken by the Court of Appeal of Tanzania, in its decision in ATTORNEY GENERAL AND OTHERS vs. KABOUROU (1995) 2 LRC 757, rather than the precedents relied on by counsel for the Respondents. He specifically urged the Court not to follow the approach taken by the High Court of Tanzania in MBOWE vs. ELIUFOO (1967) EA 240, on the ground that it is not consonant with the democratic setting and values Uganda chose and entrenched in the new order, set out in the 1995 Constitution.

On the other hand, Dr. Khaminwa for the 1st Respondent premised his submission on the elementary proposition that, a Petitioner who comes to court seeking annulment of an election, on the ground of noncompliance with provisions of, and principles laid down in the Act, must prove that such noncompliance affected the result of the election in a substantial manner. It is not sufficient to prove that there was non-compliance, or even to prove that the non-compliance was substantial. For the Petitioner to succeed, it must be proved that the noncompliance had substantial effect on the result. He submitted that the standard of proof in election petitions generally is very high, and that it must be even higher in a petition seeking to annul a Presidential election. He argued that an election result involves figures and numbers, and contended that, therefore, in order to prove effect of non-compliance on the election result, it was inevitable to show that it affected numbers of voters or votes. Learned counsel submitted that, in the instant case, it was not proved that a substantial proportion of the electorate was prevented from voting freely. On the contrary, according to him, the high voter turn-up of 70.3% of the registered voters, and the high proportion of 69.3% and 27.8% of valid votes cast for the 1st Respondent and the Petitioner, respectively, were significant indicators that the election was free and fair and that the electorate was free to vote according to their will. Counsel pointed out the colossal margin between votes cast for the two candidates, and argued that it was not proved that the non-compliance effected that colossal margin. He submitted that far from proving that effect, the Petitioner had pleaded uncertainty and adduced inconclusive evidence. He pointed to sub-paragraph 3(i) (y) (vii) of the petition, where it was pleaded that: “It cannot positively be ascertained that the 1st Respondent obtained more than 50% of valid votes of those entitled to vote”; and to the evidence, of Frank Mukunzi who claimed to have analysed data related to the results of the election, and concluded that “from the data that was availed, it was not possible to determine to what extent the (above) errors affected each candidate.”

For the 2nd Respondent the learned Solicitor-General associated himself with counsel for the 1st Respondent and his submissions on the burden and standard of proof in regard to this issue. He submitted that isolated incidents of noncompliance with the principles cannot have had any substantial effect on the result of the election. He reiterated that the Petitioner had failed to prove that such non-compliance as was proved, had affected the result in a substantial manner.

Section 58(6) provides:

“(6) The election of a candidate as President shall only be annulled on any of the following grounds if proved to the satisfaction of the court-