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

(2) The Commission shall maintain as part of the Voters’ Register, a Voters’ Roll for each constituency under this Act.

(3) The Commission shall maintain as part of the Voters’ Roll for Each constituency, a Voters’ Roll for each Polling Station within the constituency, as prescribed by law.”

Section 32 (5) of the Act provides:

“(5) The Polling agents shall have an official copy of the Voters’ Register of that Polling Station at the candidates cost.”

Under section 19(7) of Act 3/97 when up-dating the Voters’ Register, the 2 Respondent shall up-date it to such date as the Minister may, by Statutory Instrument, appoint as the date on which the up-dating shall end. In accordance with the provisions of this sub-section the Commission issued Statutory Instrument No. 2 of 2000, appointing 22-01-2001 as the date on which updating the National Voters’ Register would be completed for purposes of the 2001 Presidential Election.

Section 1(2) of the Act provides that “The Commission Act shall be construed as one with this Act” (The underlining is mine). What does this mean? According to Craies on Statute Law, 7th Edition by S. G. G. Edgar, 1971, SEM (London) on page 138, the expression “Act to be construed as one with another” means that for purposes of construction certain Acts are to be read with another Act or Acts. The effect of enacting that an Act shall be construed as one with another Act is that the Court must construe every part of each of the Acts as if it had been contained in one Act, unless there is some manifest discrepancy making it necessary to hold that the Act has, to some extent, modified something found in the earlier Act, or that from internal evidence the reference of the latter to the earlier Act does not affect a complete incorporation of the provisions of the two Acts. In the instant case, I think that, that is what section 1(2) of the Act means, with regard to the Act and Act 3/97. I do not see any manifest discrepancy making it necessary to conclude that the Act has modified Act 3/97. On the contrary, I think that section 1(2) of the Act links Act 3/97 with the Act. The Court should construe every part of each of the two Acts as if it has been contained in one Act.

Back to the grounds of the Petitioner in question.

In his affidavit filed together with the petition the Petitioner stated in paragraph 13 thereof that he applied through his National co-coordinator to be supplied with the Final Voters’ Register for use by him and his polling agents on payment of the necessary charges by him but the 2nd Respondent did not do so.

In paragraph 12 of his affidavit filed in support of the 2nd Respondent’s answer to the petition, Mr. Aziz Kasujja, the Chairperson of the 2nd Respondent, answered paragraph 13 of the petitioner’s affidavit. The Chairperson said that the Petitioner’s request for a copy of the Register was received on 11-03-2001, and that there was no sufficient time to print the Register for the Petitioner on the eve of Polling day, and he informed the Petitioner accordingly.

Mr. Aziz Kasujja said more on this in his supplementary affidavit in reply, dated 9-04-2001. In apparent contradiction to what he had said in his affidavit dated 27-03-2001 in support of the 2nd Respondent’s answer to the Petition, Mr. Kasujja said in his later affidavit to the effect that for the Presidential Elections, the up-date of the Register was done at the village level from lithe January to 22 January 2001; that in February 2001, the National Voters’ Register was printed and displayed at polling stations in the form of Voters’ Rolls; and that the Constituency Rolls and Polling Station Rolls which make up the National Voters’ Register had already been printed by 11-03-2001, and the numbers of registered voters was known.

In his submission Mr. Mbabazi contended that the Chairperson’s answer could mean that the Voters’ Register was available much earlier, except, that there 220 was no time to print a copy for the Petitioner. That was not so, learned counsel contended, because in a letter dated 08-03-2001 and headed “Flaws in the Presidential Election Process, 2001” addressed to three of the Presidential candidates including the Petitioner, Mr. Kasujja said:

“You have expressed concern over the delay in producing the Final Voters’ Register. Please be assured that the Final Voters’ Register will be ready in time for polling.”

This letter is annexture P18 to the Petitioners’ affidavit in support of the petition.

Learned counsel submitted that this letter indicates that by 08-03-2001 there was no Final Voters’ Register. This inference is supported by the fact that display exercise for purposes of up-dating the Voters’ Register and Voters’ Rolls continued up to 28-02-2001. Learned counsel referred to the affidavit of Mukasa David Bulonge dated 1-4-2001, and its annextures. Annexture 3 conveyed guide lines by the 2d Respondent for display of the Voters’ Register; Annexture 4 was issued under sections 25 and 38 of Act 3/97 saying that display period had been reduced from 21 to 3 days, from 26th to 28th February 2001. Annexture 5 was a letter from the 2 Respondent’s Chairperson to Display Officers informing them of changes in the display guidelines. Instead of the Voters’ Register being displayed, four other documents were to be displayed.

Mukasa David Bulonge, the deponent of the affidavit in question, was the Petitioner’s witness. He was a registered voter, entitled to vote at Kabonera, Kibiba Parish, Kabonera Sub-County, Masaka District. During the 2001 Presidential Election, he was appointed to work in the National Task Force of the Petitioner as Head of Election Monitoring Desk and Electoral process from the time of nomination throughout until polling day and declaration of results. He said in his affidavit of 01-04-2001, that in the course of his work, he attended several consultative meetings with the 2^nd Respondent’s officials, representing the Petitioner, and his interest. That he knew the exercise of up-dating the National Voters’ Register for purposes of the Presidential Elections which was set down for 22-01-2001.

He then gave details of what is involved in up-dating of Voters’ Register and
stated in Paragraphs: -

“14. That throughout the electoral process up to polling date, the exact number of registered voters was not known as there was no National Voters’ Register compiled, maintained and up-dated by the 2nd Respondent containing the names of all persons entitled to vote at the Presidential Election of 2001.

15. That additionally, no Voters’ Roll for each Constituency containing the names of voters entitled to vote in the Presidential Election 2001, held on March 2001, was ever printed, neither did the Commission publish a notice in the gazette declaring any printed Voters’ Roll as one to be used for the purposes of identification of voters on the election day of 12th March 2001.”

In the “Summary of Affidavits” (hereinafter referred to as “the Chart”), handed in by counsel for both the Respondents to assist the Court, Mukasa David is listed on page 1 3 of the chart. Against his name does not appear to be any affidavit in rebuttal. But the affidavit of Mr. Kasujja dated 09-04-2001 and of Kiganda Abdullah Musobya dated 02-04-2001 appears to be relevant.

According to Mr. Mbabazi, another indication that the National Voters’ Register was not available is the difference between the number of voters of 10,674,080, announced by the Chairperson of the 2 Respondent at a briefing by him on 11- 03-2001, (Annexture 8 to Bulonge’s affidavit) as the number of voters on the Voters’ Register as by the date of 10-03-2001, and the figure of 10,775,836, shown in annexture R.2 to Chairperson Kasujja’s affidavit filed with the 2 Respondent’s answer to the Petition as the number of voters who had voted. There is a difference of 101,756 between the two figures. Where did the difference come from? Learned counsel asked. This, he contended, showed that there was no National Voters’ Register.

Learned counsel submitted that the next indication that there was no Voters’ Register is the excess number of persons who voted in Makindye East Division and in Mawokota County South. The percentage of voters who voted was 105.34% and 109.86% respectively as shown in the Petitioner’s affidavit from the two Constituencies. There were 2184 and 7797 votes cast respectively in excess of registered voters. Learned counsel contended that the excess was not the result of arithmetical error as it is alleged in paragraph 7 of Mr. Kasujja’s affidavit in reply of 27-03-2001, which does not show how the error arose. No tally sheets are attached. Instead only a letter dated 20-03-2001 written by the Returning Officer, Kampala to the 2nd Respondent is attached, saying that the original tallying was faulty. To the letter was attached a summary of results prepared by the 2nd Respondent’s officials, not tally sheets signed by the candidate’s agents- This was falsification of results to match the register in Makindye East after the results had been declared.

In his reply on the issue of the Voters’ Register, Mr. Kabatsi referred to the following paragraphs of Mr. Kasujja’s supplementary affidavit in reply dated 09- 04-2001:

“18. That I know that a National Voters’ Register exists since 1983, when a National Voters’ Register was first prepared for the purposes of the Constituent Assembly Elections.