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

(a) the Polling Station;

(b) the number of votes cast in favour of each candidate; and the presiding Officer shall there and then, announce the results of the voting at that Polling Station before 0mmunicating them to the Returning Officer.

(6) Votes cast for each candidate shall be recorded in both figures and words and then counter signed by Polling Agents before the declaration of results.”

These provisions of the Act have their origin in article 68 of the Constitution’

In his submission under this ground of the Petition, Mr. Mbabazi said that affidavits evidence adduced by the Petitioner shows that the Petitioner’s agents were chased away from Polling Stations by the Army. He referred to the affidavits of Kizza Davis which is corroborated by Baringo Ozo. Other affidavits are from Kipala John, James Musinguzi, Sentongo Elias, Robert Kironde, Ongee Marino, Charles Owor, etc. Evidence also shows that such Polling agents neither signed nor retained the declaration forms, which they were entitled to do under s.47(5) of the Act. The Polling agents chased away were not present to sign the declaration forms. Some of the declaration forms show that the votes cast exceeded the number of ballot papers issued at the Polling Stations.

In other cases, learned counsel submitted, candidates’ agents retained declaration forms. These have been exhibited as samples, annexed to the petition. Others are annexed to the Petitioner’s affidavit dated 6-4-2001. In reply to the 2 Respondent, learned counsel referred to the declaration forms as examples from Ishaka Adventist College in Bushenyi District and Makindye Division in Kampala. Declaration forms from such Polling Stations also proved falsification of results, Mr. Mbabazi contended.

In his counter submission under this ground of the Petition, Mr. Kabatsi said that affidavits supporting the Petition in this regard, i.e. chasing away of the Petitioner’s agents from, and excess votes cast over ballot papers issued, at Polling Stations, have been rebutted by affidavits opposing the petition. For instance affidavits of Kirunda Mubarak, alleging chasing away from Mpungwe Polling Station is rebutted by the affidavit of Balaba Dunstan, Ag. Chief Administrative Officer of Mayuge District who was the Returning Officer at the material time. The affidavit of John Tumusiime is rebutted by that of Johnson Bitarabeho, the Returning Officer of Bushenyi. Hamman Rashid, rebutted by Major Jero Bwende; Charles Owor, rebutted by the 2nd Respondent’s Deputy Chairperson, Flora Nkurukenda; Robert Kinende, rebutted by Joshua Wamala.

I shall now move to consider the evidence regarding the alleged chasing away of the Petitioner’s Polling Agents from Polling Stations and the alleged falsification of results through declaration forms and tally sheets and the evidence in rebuttal.

Kizza Davis was a registered voter at Kamwenge Primary School, Block I in Kamwenge District and an appointed Polling agent of the Petitioner. In his affidavit dated 23-03-2001, he deponed that on 11-03-2001, at 9.00 a.m. he was in the company of Wasswa Peter, his brother, and Robert, a friend, in Kamwenge Town, when he was arrested by members of the Local Defence Force named Kenneth and Friday. He was then taken to a railway line where he found another agent i.e. Faida Charles, arrested. Lt. Richard came at about 10.00 a.m. and instructed Kenneth and Friday to take away his identity card and continue to detain him. At 1 .00 p.m. he was transported in Katusabe’s car to Kamwenge Army Detach Barracks and put in a ditch where two armed soldiers guarded him. On polling day, he was taken to the Polling Station at Kamwenge Primary School, where the same 2nd Lt. Richard ordered the Presiding Officer to tick the witness’ ballot paper in favour of the 1st Respondent. Two armed soldiers escorted him to the ballot box where he cast the vote. There were two armed soldiers at the Polling Station. He was released at about 6.00 p.m. Due to the arrest and detention, he was unable to deliver letters appointing 5 other persons (whom he named) as the Petitioner’s Polling agents. Nor was he able to do his work as the Petitioner’s Polling agent. For the same reason the other 5 persons also failed to work as such.

Kizza Davis’ evidence that Kahesi Slaya was one of the 5 persons whose letters of appointment as the Petitioner’s Polling agent was taken away is corroborated by James Birungi Ozo in his affidavit of 22-03-2001. The affidavit of Kizza Davis is not rebutted.

James Birungi Ozo, a registered voter, was the Petitioner’s District monitor and District coordinator for Kamwenge District. In his affidavit of 22-03-2001, he mentioned many election malpractices including the one that Kahesi Slaya’s appointment letter as the Petitioner’s Polling agent was confiscated by the Army and that he (Ozo) was on 8-3-2001 shot at by Captain Komkiriho, C.O. of Bihanga Barracks in order to prevent him from campaigning for the Petitioner. He was shot at in the presence of Peter Byomanyire, Engineer Dan Byamukama and LC.lll Movement Chairman of Ibanda.

He deponed the affidavit on the basis of his knowledge. According to the Respondents’ Chart, Ozo’s affidavit was not rebutted.

Ssentongo Elias a resident of Ntungamo Town Council, Ntungamo District, had the responsibility of overseeing Polling agents for the Petitioner in Ntungamo Town Council and Kalunga Sub-County. When he proceeded to Nyaburiza Parish and Kabuhome Polling Station, one Tom Muhoozi, the Chairman of the District Service Commission and a known supporter of the 1 Respondent chased away all the Polling agents of all candidates except the ones for the 1St Respondent. Muhoozi Tom’s affidavit of 3-4-2001 rebuts that of Ssentongo Elias. Muhoozi said that he was a registered voter at Kabuhome Polling Station in Nyaburiza Parish. On Polling day, he went to the Polling Station at 10.00 a.m. and returned home immediately after casting his vote. Ssentongo Elias, whom he knew, was not at the Polling Station. Muhoozi denied that he chased away any candidates’ agents. He further said that in the evening he returned to the Polling Station. Voting closed in his presence. The Petitioner’s agents were all present and signed the declaration forms.

I have three brief comments on this rebuttal evidence. One is that Ssentongo’s accusation is made directly against Muhoozi. As a result he would not be expected to admit the allegations. If he did so, he would be admitting having committed an election offence. For a Chairman of the District Service Commission, which Muhoozi was, such admission would be unthinkable. It might be said that a person in his position would not be expected to do what Ssentongo alleged against him. That may be so, but it is the kind of action which one could take without serious thought of the consequences.

Secondly, without Muhoozi having been at the Polling Station the whole day it is not possible to say that Ssentongo did not go to the Polling Station at all. Thirdly, since it is Muhoozi who intended to prove that the Petitioner’s agents were not chased away by the fact that they signed the declaration form (if indeed they did) he ought to have annexed the form to his affidavit. He did not do so. Ssentongo’s affidavit is so detailed that I do not think that he would have invented what he deponed therein.

Kipala John of Lubira Zone, Kyotera Town Council, Rakai District deponed in his affidavit of 19-03-2001, that he was deployed at Magabi Parish, Kibanda Sub- County Rakai District as an election Monitor for the Petitioner. He was at Gayaza Polling Station at 7.00 a.m. The ballot box and voting was opened in his presence. In the course of the day, he made many complaints against election malpractices at the Polling Stations, such as missing ballot papers from a ballot papers book, multiple voting and ticking ballot papers for others by the 1st Respondent’s supporters. When Kipala demanded that the Presiding Officer should assert his authority a group of people armed with clubs charged at and threatened to kill him. He was chased away and was only rescued by his colleague, one Kimera, who whisked him away in a motor vehicle. The Respondent’s Chart does not show that Kipala’s affidavit is rebutted.

Senyonga John of Lwebitakuli Village, Lwebitakuli Sub-County, Sembabule District, was appointed the Petitioner’s Polling agent at Katutu Polling Station Lwebitakuli Parish. At Katuntu Polling Station he introduced himself to the presiding Officer Emmanuel. At first the Presiding Officer chased him away, saying that he was not a resident of that village. After explanation to, and argument with, the Presiding Officer, Senyonga was allowed and told to sit far away from the Presiding Officer’s desk. He sat 30 meters away. The Presiding Officer prevented him from looking at the Voters’ Register. At the end of voting, the Presiding Officer gave him documents to sign, but he refused to do so. Ssenyonga was threatened with arrest. His affidavit was based on knowledge and belief. Belief seems to be irrelevant because all that he spoke about was what happened in his presence.

Kiwanuka Fred was the Chairman of the 1st Respondent’s Task Force and Movement Chairman for Lwebitakuli Sub-County. He deponed in his affidavit of 12th April 2001, rebutting Ssenyonga's affidavit. He said that he cast his vote at Kezinga Polling Station and returned home. He denied that he went to Katutu Polling Station and voted there as alleged by Senyonga because he was not registered as a voter there. Kiwanuka Fred’s affidavit is not relevant to Senyonga having been chased away and having to sit 30 meters from the presiding Officer’s desk. It is relevant to other election malpractices, which I shall consider later in this judgment.

Bernard Matsiko was a registered voter at Nyabitunda Polling Station in Ntungamo Parish and a campaign agent for the Petitioner in Kayonza Sub-County. He deponed that on Polling day, he reached the Polling Station at 6.30 a.m. with fellow agents and found that voting had already started. When he attempted to stop the 1st Respondent’s agent, Rehema Biryomumaishoi from stuffing ticked ballot papers in the ballot box, he and other Petitioner’s agents were forcefully chased away from the Polling Station by election officials, with the help of armed personnel and their appointment letters were confiscated. He further went to Kyeshero Polling Station and found similar election malpractice going on. He witnessed Canon Mungakazi and Rwamahe ticking ballot papers as they liked. He found this strange. Rwamahe who was armed with an AK 47 chased Matsiko away with the help of LDU’s and some army men who were threatening voters. The affidavit was based on knowledge and belief but the grounds for belief were not shown. It is clear that belief was irrelevant because the deponent saw, experienced and witnessed what he said in his affidavit.

Bernard Matsiko’s affidavit is rebutted by Mugisha Muhwezi, the Deputy Resident District Commissioner of Rukungiri District. He deponed that he had read Matsiko’s affidavit. It contained falsehood. Muhwezi’s affidavit did not refer to Matsiko’s allegations about the Petitioner’s Polling agents being chased away. It referred to other malpractices, which I shall consider later in this judgment.

James Musinguzi was a registered voter at Ntungamo, Kayonza Sub-County, Kanungu District. He was also in charge of the Petitioner’s election campaign in the South - Western Region of Uganda. His affidavit dated 23-03-2001, speaks of many election malpractices. Regarding chasing away of the Petitioner’s agents, he deponed that on Polling day, he visited Kashojwa, Nyarurembi, Kijumbwe, and Ntungamo Polling Stations in Kanungu District. At all of them he found that the Petitioner’s Polling agents were chased away from Polling area, and there was no actual voting since ballot papers were being pre-ticked in favour of the 1st Respondent by Polling officials who would then direct the “voters” to put them in ballot boxes. He complained about this to the Presiding Officer, but he was disregarded. The GISO of Kiruma, in the presence of the Kiruma LC.lll Chairman, blatantly said to him that his complaints were a waste of time as it had already been decided that the Petitioner should be allowed not more than 4 votes in Kijumbwe Parish. The Petitioner ended up with 3 votes from that polling center comprising of three Polling Stations. At the Polling Station of Kijumbwe Polling Centre the Petitioner’s agents who had been chased away were dragged back after the “vote count” and forced to sign the declaration forms in respect of voting they had not witnessed. The malpractices were being done in the presence of police personnel. In the circumstances the witness did not vote since it was meaningless to do so. The affidavit was based on knowledge and belief. Grounds of belief were not revealed but in essence, the affidavit was based on knowledge of what the deponent witnessed.

The affidavit of Captain Atwoki B. Ndahura rebuts the affidavit of James Musinguzi about allegations against the Presidential Protection Unit (PPU), but not about the Petitioner’s Polling agents being chased away. I shall deal with the allegations about other malpractices later in this judgment.

Koko Medard of Kashambya Village Ruhandagazi Parish, Kambuga Sub-County, Kanungu District, was registered to vote at Komajume Polling Station. He was also a Polling Monitor for the Petitioner. When the Voter’s Register was displayed at the said Polling Station, he went there to check the register but Mrs. Bushingye and other officials in control of the register refused to allow him to search the register although he tried several times to do so. Others, namely Mr. Kuliku, Kijana, Saturday, Rwamulanda and many others also tried to search but they were refused to do so because it was said that they were supporters of the Petitioner, but supporters of the 1st Respondent were allowed to search the register.

Soon after the voting cards were taken there, the said Mrs. Busingye initially refused to give Koko his card, and eventually did so after a long quarrel. Koko monitored other Polling Stations including Nyamuto. When he reached there at 2.00 p.m. he found that Peter Mugisha, a District Councillor and an avowed supporter of the 1s Respondent had chased away the Petitioner’s agents from the Polling area and the agents had been forced to stand 50 meters away from the ballot boxes, where they could not see what was going on. At that time all other people except the 1 s Respondent’s agents, had been chased away from the Polling Station which was deserted. He also visited Nyarugendo Polling Station. As soon as he and one Bakunzi arrived there, one Yoramu, son of Bakunzi pounced on Bakunzi and started boxing him. They took off on their motorcycle as a whole crowd of the 1 Respondent’s supporters chased them away with stones. They lost their record book of voting in the process. Next he arrived at Ruhandazi at 11 .00 a.m. and found Arthur Mugisha Chairman L.C.III had just beaten Kwibwomanya Lawrence the Petitioner’s agent, and whose supporters were scattered in disarray. Koko was not allowed at the Polling Station itself. He found that Kwibonyanga, Polling agent and other agents of the Petitioner had taken refuge 150 meters away from the Polling Station and could not be allowed any nearer. Koko was not allowed any closer and he could not vote at that Polling Station as he was entitled to do. So he never voted.

In the respondents’ Chart, Captain Atwoki B. Ndahura is indicated as having rebutted the evidence of Koko Medard, but the Captain’s affidavit does not refer to the allegation of chasing away the Petitioner’s Polling agents made in Koko’s affidavit.

Kiwume A. Ibrahim, of Indifakula Parish, Bugiri Town Council was the Petitioner’s Polling Monitor for Bukoli South Constituency. On a date he did not mention in his affidavit of 20-03-2001, he said that he was from Bugiri and going to Namayengo. He met soldiers, Army/Civilians on a District Medical Officer’s motor vehicle, carrying 11 soldiers and four civilians. It was a double cabin Pickup. Kiwume had a Card of a Polling Monitor displayed on him. The occupants of the Pick-up stopped and told him to go back to Bugiri. When he was going back, he met Police Officers, a Mr. Mafabi and Mrs. Oteba whom he knew. He reported to the Police Officers that soldiers had harassed him. They allowed him to proceed to Namayengo. The soldiers told him not to move anywhere else, but to remain at Namayengo. Thereafter every Polling Station he reached, the Petitioner’s Polling agents had been chased away to eight meters, and told by the Presiding Officers to keep away.

The Petitioner’s Chairman in charge of Bukooli South West Constituency had been arrested and put inside Namayengo Police Station. He was put in for no reason, nor was a statement recorded from him. There were 11 other supporters of the Petitioner who were detained at Namayengo Police Station. The Chairman was released from custody on the orders of the R.D.C. Ms. Nava Nabagesera, who also ordered the Petitioner’s local office to close until further notice. In her affidavit of 03-04-2001, in rebuttal, Ms. Nava Nabagesera denied the allegation. There is no indication in the affidavit in rebuttal why Kimumwe A. Ibrahim should have fabricated lies against the R.D.C., if he did so. On the other hand, in my view, there is a good reason for her denial. An admission that a highly placed official like the R.D.C., Nava Nabagesera, had committed election offences as alleged against her would be unthinkable. I would therefore reject Ms. Nava Nabagesera’s denial and accept Kiwume’s evidence, and I do.

Suliman Miiro of Nkuusi Village, Naluwerere Parish Bugiri Town Council, Bugiri District, was the Petitioner’s Monitoring agent for Bukuli North Constituency. He also visited Bus Park “A” Polling Station to ensure that voting there was free and fair. In his affidavit of 02-03-2001, he said that soldiers from R.D.C.’S Office came threatening and forced young children below 18 years old to vote. Miiro and others tried to refuse but they were overpowered since the soldiers were armed. The Petitioner’s agents were chased away from the Polling Station by armed soldiers for about 4 hours. Soldiers started bringing small children to vote and they voted.

Ms. Nava Nabagesera, the RDC of Bugiri District also rebutted Suliman Miiro’s allegations. She denied that soldiers from her office threatened people and forced children below 18 years to vote. She further said that at no time did she receive reports of soldiers’ threats, harassment and intimidation of people throughout Bugiri District and that the election was free and fair in the District. The comment I made in respect of Ms. Nabagesera’s affidavit in rebuttal of Kiwume’s affidavit equally applies to her rebuttal of Miiro’s affidavit.

Basajabalaba Jafari resides at Ishaka, Bushenyi Town Council. He said in his affidavit that he was Secretary to the Elect Busingye Task Force for Bushenyi District. On Polling day, he was in charge of Bunyaruguru Sub-District for overseeing operations of the Petitioner’s Polling Agents. On that day, he witnessed at Katande Primary School Polling Station one 1st Respondent’s agent chasing away the Petitioner’s agents from the Polling Station and the presiding Officer allowed such incidence to take place. For about 3 hours voting went on in the absence of the Petitioner’s Polling agents, until the Sub-County Chief, Katerera and the Police, intervened following Jafari’s report to Katerera Police Post. The Respondent’s Chart does not indicate that the affidavit of this witness is rebutted. His evidence, therefore, stands controverted, and I accept it as true.

I have already referred to the affidavit of Boniface Ruhindi Ngaruye in this judgment. He said in paragraph 8 thereof that on Polling day, he witnessed a case where the Presiding Officer at Biharwe Polling Station denied the Polling agent for the Petitioner to be present at the Polling Station until around mid-day when Ngaruye explained to the Presiding Officer that he had no such authority. In the Respondents’ Chart, one Aspro Kwesiga is indicated as having rebutted Ngarunye’s affidavit, but where Kwesiga’s affidavit can be found is not shown.

Muhairwoha Godfrey, of Kijaaho Isingiro, Mbarara District was the Petitioner’s Polling agent at Kajaaho 4 in Kajaaho Parish, Kikagate Sub-County, Isingiro South Constituency. He deponed in his affidavit of 21-03-2001, that there were numerous election malpractices at Kajaaho 4 Polling Station and massive rigging in favour of the 1st Respondent. At around 10.00 a.m. one Charles Rwabambari, the Respondent’s supporter, went to the desk of the Presiding Officer accompanied by one Kanyahurwa Parish Chief of Kajaaho Parish, and took over the station from Katsimbazi, the Presiding Officer, and started issuing ballot papers and ticking them for voters. When Muhairwoha protested, the Parish Chief ordered that he be arrested tied and taken to the Parish Headquarters. One Paskali Katsigano a uniformed and armed UPDF reserve force tried to arrest him but Muhairwoha took off. He left together with his colleagues, equally chased away. The Respondents’ Chart does not show that the affidavit of Muhairwoha was rebutted. His evidence, therefore, is uncontroverted and I accept it as true.

Alex Busingye, of Kakiika, Mbarara, was in charge of overseeing the operations and welfare of the Petitioner’s agents in Kazo County. In his affidavit of 21-03-2001, he deponed that in the majority of Polling Stations he visited; he found that the Petitioner’s Polling agents had been chased away. The deponent does not disclose the source of this information. That part of the affidavit is therefore, defective and inadmissible. However, he also said that at Nkungu Polling Station, he found that the Petitioner’s Polling agent had been tied by UPDF Soldiers and bundled on a pick-up No. 114 UBS, in which they were traveling. The Respondents’ Chart indicates that Busingye’s affidavit is rebutted by Aspro Kwesiga, but where the rebuttal affidavit can be found is not indicated.

Kirunda Mubarak, of Misoli Village, Busuyi Parish, Bunya West Constituency, Mayuge District, was the Petitioner’s Polling Monitor for the entire District of Mayuge. In his affidavit of 20-03-2001, he deponed that at Mpungwe Polling Station, the letters of the Polling agents were withdrawn from them on the grounds that their appointment letters were fake. The agents were sent away; the voting continued. When Kirunda asked the Presiding Officer why, the latter said that they were not sure of them, so they were told to sit far. They were not allowed to write anything. Kirunda reported the matter to the CAO but the complaint was ignored. The LC.I and LC.II got hold of Kirunda and forced him out of the Polling house because he had queried why under age children were voting. In the same Polling Station Mrs. Wamulongo wife of the M.R for Bunya East constituency had Voters’ Cards and Ballot Papers and was giving them to any voter willing to vote more than once. Kirunda and his colleagues tried to arrest Mrs. Wamulongo, but they were overpowered and chased away. They boarded their motor vehicle and took off to Mayuge Police Station where they reported and requested for a Policeman to arrest Mrs. Wamulongo, but the Police said that they had no manpower. The complainants waited until 6.00 p.m. The Police did not assist. The Chart indicates that Kirunda’s affidavit is rebutted by Mrs. Kedres Wamulongo and that the rebuttal affidavit is on page 282. On checking page 282, in two volumes of the 1st Respondent’s volume of affidavits, I found the affidavit of Emodingo Anthony instead, which is irrelevant to the allegations by Kironde.

Ronald Tusiime, of Mparo, Rwamucucu Subsequently, Kabale District was the Petitioner’s Polling agent for Mparo Parish. He deponed his affidavit on 21-03- 2001. He said that he witnessed several election malpractices at Mparo and Kihanga Polling Stations. At Kihanga one of the malpractices was that the Petitioner’s only remaining Polling agent when Tumusiime arrived there was forcefully removed from the Polling agents’ seat and thrown out of the Polling Station. The Respondents’ Chart does show that Ronald Tumusiime’s affidavit was rebutted. It therefore, stands uncontroverted, and I accept it as true.

Charles Owor, an Advocate of the High Court and a registered voter in Nakawa Division, Kampala said in his affidavit of 22-03-2001, that on 13-03-2001, the National Elect Besigye Task Force appointed him and Architect Richard Turyahabe to witness the process of tallying election results at 2nd Respondent’s offices on Jinja Road, Kampala. They went there and showed their letter of introduction. Mr. Wamala the 2nd Respondent’s officer in charge of data processing tried many times to assist them to gain access to the offices concerned, but in vain. A man in plain clothes and seated at the entrance to the tallying center refused them entry into the center.

The man insisted that Owor and his colleague could enter the center only with express written permission of the 2nd Respondent’s Chairman, Mr. Kasujja. Alexandra Nkonge, the Legal and Public Relations Officer of the 2nd Respondent tried to assist, but also failed. Between 4.30 p.m. and 5.30 p.m. they gave up the efforts to enter the 2d Respondent’s tallying center. Unlike all other persons who appeared to be on duty at the center, the man who refused them entry had no identification tag of the 2 Respondent. The affidavit was based on knowledge and belief, but belief is irrelevant since the witness spoke of what he witnessed and heard in person.
The Respondents’ Chart indicates that Charles Owor’s affidavit is rebutted by Joshua Wamala and Mr. Kasujja. Wamala’s affidavit of 6-4-2001, does not mention Owor’s affidavit at all. Mr. Kasujja swore three affidavits in connection with this petition as the 2nd Respondent’s Chairperson. They are dated 27-03-2001, 9-4-2001 and 12-03-2001. None of them mentioned Charles Owor’s affidavit.

Ongee Marino, the Petitioner’s witness, whose affidavit I have already referred to concerning new Polling Stations, also said in his affidavit of 23-03-2001, that when the results were being tallied, the exercise continued smoothly for the gazetted Polling Stations but when it came to the six newly created Stations, the Returning Officer refused to declare the results and said that the details would be known later when the actual Ballot Boxes and Declaration Forms had been submitted to him. Ongee objected and requested that the results of the newly created Polling Stations should also be declared. Instead the Returning Officer ordered that he should be forcefully removed from the place of tallying by the Police. He was ejected and he reported the matter to Hon. Okello Okello M.P. who was in charge of the Petitioner’s Campaign in Kitgum District. The M.P wrote a letter annexture “A” to Ongee’s affidavit, sending Ongee back to his duty and saying that all tallies must be checked by candidates’ agents. Ongee returned to the tallying center but the Returning Officer refused him to see the election results of each Polling Station. Ongee refused to sign the tallying sheets.

He and other agents of the Petitioner and agents of candidate Francis Bwengye wrote a letter to the Returning Officer of Kitgum District dated 13-03-2001 complaining about a number of election malpractices. The letter is annexture “B” to Ongee’s affidavit, listing six such malpractices.

Respondent’s Chart indicates that Ongee Marino’s affidavit is rebutted by Geoffrey Okot and Ngomoromo Presiding Officers, but it is not shown where their rebuttal affidavits can be found.

In his affidavit dated 23-03-2001, Hon. John Livingston Okello Okello, M.P. for Chua Constituency deponed that as Deputy Co-ordinator for the Petitioner, he held a rally at Palabek — Kal on 5-3-2001. Campaign agents for the Petitioner informed him that many voters on the Voters’ Register did not have Voters’ Cards especially those at Paula, which he visited personally. Some voters received cards but their names were not in the Voters’ Register. Numerous soldiers and their wives in Kitgum District were issued with at least two Voters’ Cards. For instance Onek John and Onono Kenneth. The former surrendered both his Cards to Okello Okello M.R He wrote letters to the District Registrar, of the Electoral Commission about such election malpractice and to Kitgum Returning Officer Mr. Alfred Ocen Lalur about exclusion of Ongee Marino from the tallying process.

The affidavit of John Okello Okello M.R is rebutted by one of Colonel Fred Tolit, Assistant Army Chief of Staff, dated 30-03-2001, with particular reference to the allegation that Colonel Fred Tolit was expected on 12-03-2001, to bring ticked ballot papers in favour of the 1st Respondent under cover of darkness, which is not relevant to the allegation of the Petitioner’s Polling agent. Ongee Marino’s allegation that he had been sent away from a tallying center or the allegations of soldiers being issued with two Voters’ Cards were not adverted to in the Colonel’s rebuttal affidavit.

The Respondents’ Chart also indicates that the affidavit of Hon. J. L. Okello Okello, M.R is rebutted by Maj. Okot Wilit, but it is not shown where that affidavit can be found.

Robert Kironde, a Dentist, was asked by the Petitioner’s Task Force to go with one Kawalya to witness counting and tallying of votes at the 2nd Respondent’s Head Offices on 13-03-2001. In his affidavit of 19-02-2001, he said that the Deputy Chairperson Mrs. Flora Nkurukenda allowed them to enter. As Kironde wanted to make notes about the figures of the results being counted and tallied, Mr. Wamala No. 104 stopped him from taking any data and advised him to instead go to the International Conference Centre where the election results were being declared. On the first desk where election results were being received from the Communication room, the first person to receive results was Hon. Charles Bakkabulindi the workers’ M.R who was a well known Chief Campaign Agent for the 1st Respondent.

In the Respondents’ Chart, Kironde’s affidavit is shown as rebutted by “EC” but where the rebuttal can be found is not shown.

Sulaiman Miiro’s affidavit of 20-03-2001 has already been referred to in this judgment. He was the Petitioner’s Monitor in Bukooli North Constituency. He deponed, inter alia, that some calculations on the declaration result forms were inflated and very inaccurate, to with Kamango Polling Station Nkavule Parish, Kapianai, Buwolya Makoova Mayuge Parish, Budhaya Polling Station to mention but a few. The affidavit of Ms. Nays Nabagesera, the Bungiri RDC, dated 3-4-2001 which rebutted Miiro’s affidavit did not refer to his allegation of declaration of results being inflated.

The Petitioner’s learned Counsel Mr. Mbabazi, linked alleged falsification of results to the grounds of the Petition under consideration. He gave examples of incidences where the number of votes cast exceeded the number of ballot papers issued. For instance the Petitioner in his affidavit supporting the Petition said that the declared election result indicates that 109.86% and 105.34% of voters’ voted in Makindye East and Mawokota, respectively. From the two Constituencies a total of 991 votes were cast in excess if registered voters.

In his reply to the alleged falsification of results, Mr. Kabatsi submitted that if there were any errors in the declaration of results for Makindye and Mawokota, the two examples given by Mr. Mbabazi, it was human errors, not a deliberate act to falsify results. So with Makindye declaration of results, Mr. Kasujja said in his affidavit supporting the 2nd Respondent’s Answer, in response to paragraphs 7 and 8 of the Petitioner’s affidavit.

In his affidavit dated 27-03-2001 supporting the 2nd Respondent’s answer, Mr. Azziz Kasujja Chairman of the 2’ Respondent, denied that the number of votes cast in Makindye County East were more than the number of registered voters. What was shown in the table under paragraph 7 of the Petitioner’s affidavit, he said, was an arithmetical error due to a faulty original tallying which was corrected as a letter of 20-03-2001 from the Kampala Returning Officer shows. Mr. Mbabazi calls this election falsification done only by the 2nd Respondent’s officials after the election was completed.

Regarding Mawokota County South, Mr. Kasujja said in his affidavit that the results tabulated in paragraph 7 of the Petitioner’s affidavit were not correct. The correct results as shown by Mr. Kasujja’s annexture 4 votes cast was 27,234 out of 40,887, registered voters.

As evidence shows, these figures in Mr. Kasujja’s affidavit were not verified by any candidates polling agents. They were compiled by the 2nd Respondent’s officials after 12-03-2001 and are, therefore one sided, just as the ones which are said to have been the result of arithmetical errors in tallying the figures.

Some declaration of result forms show that more votes were cast that the number of ballot papers issued. In Bukade Primary School Polling Centre, Buwologoma Parish, Bukanga Sub-County, Iganga District, total votes cast for candidates, total ballot papers rejected, and spoilt ballot papers, add up to 651 yet 650 ballot papers were issued. The name and signature of the agents of the Petitioner are missing on this declaration of results form. But the ones for the Respondent and another candidate are filled in.

87 declarations of results forms from 19 Districts are attached to the Petitioner’s affidavit, dated 6-4-2001, in reply to the 2nd Respondent. The Petitioner’s affidavit in question provides a detailed account of what appear to be falsification of results from 29 Districts. Such falsifications are evidence of ballot stuffing in ballot boxes. The affidavit is too long for a complete evaluation in this judgment. After I have scrutinizing the figures they show, I find that most of them contain excess numbers of votes cast over the numbers of ballot papers issued at the respective Polling Stations. This could be the result either of arithmetical errors by the officials who filed the forms, as Mr. Kasujja deponed, or that more votes were actually counted as having been cast in excess of the number of ballot papers issued to the Polling Stations, in which case it would be the outcome of falsified results. If there were no such discrepancies the total number of votes cast including spoilt or invalid ballot papers plus unused ballot papers should be equal to the number of ballot papers issued at the Polling Stations.

In his supplementary affidavit in reply, dated 9-4-2001, the 2nd Respondent’s Chairman, Mr. Kasujja said that it is not true that in Polling Stations in 19 Districts the number of votes cast exceeded the number of ballot papers issued, but there were few and isolated cases of arithmetical errors, and the Petitioner has named a mere six stations in his affidavit of 6-4-2002. I find that the numb r is not so because in paragraph 19 of that affidavit, the Petitioner listed 19 Districts in which, he said, votes cast exceeded the number of ballot papers issued. In paragraphs 33 to 38 inclusive, he listed another 6, making a total of 25 Districts. He gave detailed figures in respect of Bukholi TCA Polling Station in Mbale District, Kamengo (M — Z) Polling Station in Masindi District; Mayembe Upper Prison C, in Mpigi District, Ishaka Adventist College in Bushenyi District; 2(L — Z) Polling Station in Mbarara Municipality, Mbarara District; and Buyego Trading Centre, Mayuge District.

If the discrepancies in the figures were arithmetical error,, I do not understand why they would be so many and spread in so many Districts. The only inference I draw from this is that many declaration of results forms falsified results.

After a careful consideration of all the affidavit evidence adduced by the Petitioner, by the 1^st and 2nd Respondent’s, I am satisfied and find that the Petitioner has proved to the required standard grounds 3(1) (g) and (p) that:

(a) Contrary to sections 32 and 32 of the Act, on polling day during polling exercise, the Petitioner’s polling agents were chased away from many Polling Stations in many Districts of Uganda, and as a result the Petitioner’s interests at those Polling Stations could not be safe guarded.

(b) Contrary to section 32 of the Act, the 2nd 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 progress.

I also find that in many polling stations the declaration of results forms compiled by the 2nd Respondent’s servants/agents after the announcement of the result of the elections falsified the election results.

I shall consider the effect of this non-compliance in the result of the election later in this judgment.

This also disposes of ground 3(1) (y) (v) of the Petition.