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

(10) That on 27th I had to leave the Country as I felt my life was in danger and presently living in the United Kingdom with my family.

(11) Consequently I did not vote in the 12th March 2001, Presidential elections which is a denial of many constitutional right.”

Lt. Col. Noble Mayombo is the Ag. Chief Military Intelligence and Member of Parliament (hereinafter referred to as “Mayombo” for the sake of brevity). He swore an affidavit in rebuttal of Rwaboni’s statutory declaration. He said that Rwaboni was arrested on 20-02-2001, at Entebbe Airport on his (Mayombo’s) instruction. He was arrested for his own safety. Following the arrest, arrangements were made, at Rwaboni’s request and on the 1st Respondent’s directive, for Rwaboni to travel to the United Kingdom.

There is no doubt that, Rwaboni’s arrest led to his having to go out of the Country and being unable to vote in the 12-03-2001 Presidential Election.

Evidence was adduced to show that other people were also denied the right to vote.

Fazil Masinde, of Butongala Village Kityerera, Mayuge District, was the Petitioner’s Monitor in 7 Polling Stations (which he named). At Butangala Polling Station the Presiding Officer, one Mudaki was directing people openly to vote for the 1st Respondent at the time voters were being issued with ballot papers. Saina Mukade and Zaibo Hambo did not vote because they found that others had received ballot papers and cast votes in their names.

Fazil Masinde’s affidavit was rebutted by Gesa Ahmed, in his affidavit of 2-4- 2001. Gesa of Kuluuba Village, Mayuge District is the GISO of Kityetera Sub- County and the L.C.2 Kaluuba Parish. He said that Fazil Masinde’s affidavit is false. While Gesa’s affidavit is relevant to other malpractices, he did not refer to voters who did not vote because their names in the Voters’ Register had already been ticked.

Mudaaki Emmanuel also rebutted Fazil Masinde’s affidavit. In his rebuttal affidavit of 4-4-2001, he said that he was the Presiding Officer of Butangala Polling Station. He did not know Masinde because the latter was not at that place as a Polling agent for any of the candidates.

Mudaaki denied that he directed voters to vote for the 1s Respondent because he was faithfully exercising his duty as the Presiding Officer. He also said that he did not receive any complaint that Saina Makade and Zaibu Gimbo did not vote. I have three comments on Mudaaki’s rebuttal affidavit. First Masinde did not say that he was a Polling Assistant at Butangala. He was a monitor for seven Polling Stations, of which Butangala was only one of them. Secondly, the fact that Mudaki did not receive any complaint does not mean that Mukade and Gimbo voted. Thirdly, I would not expect Mudaki, a Presiding Officer, to admit that he committed the various election offences which Masinde alleged against him. In my view it is not in the least surprising when Mudaaki said: “The voting exercise proceeded very smoothly and transparently.”

In the circumstances, I reject Mudaaki’s denial, and I accept Masinde’s affidavit as true.

I have already referred to the affidavit of Ronald Tumusiime in another context. He swore in his affidavit that one of the many election malpractices he saw at Mparo Polling Station was that voting was not secret. Shortly after 8.00 a.m. the Presiding Officer announced that voting was not going to be secret, and that all ballot papers should be ticked at the Presiding officer’s desk. The Respondent’s supporters were being allowed to vote for the dead such as V. Konyenda and for the absent such as Allen Asiimwe. On the other hand some of the Petitioner’s supporters such as Ivan Byamukama found their names already ticked as having voted. The Respondent’s Chart does not indicate that Ronald Tumusiime’s affidavit was rebutted. His evidence is not controverted. I accept it as true.

Tumwebaze Arthur of Kiyoora Nisakyera, Ntungamo District, was the Petitioner’s Polling agent at Kataraka Primary School Polling Station. In his affidavit of 21- 03-2001, he said that persons who never appeared at the Polling Station for voting such as Bangirana Livingstone and Tukahiirwa Arthur had their names ticked in the Voter’s Register as having voted when they never voted because their cards were used by other persons who impersonated them.

Kanyima Nilson of Kishoreno Village, Nyakyera, Ntungamo District, rebutted Tumwebaze’s affidavit. In his affidavit of 4-4-2001, Kanyima said that he was an Election Constable at Katakaka Primary School Polling Station, where he was also a registered voter. He knew Tumwebaze Arthur. The latter’s allegation that he asked him to sit 20 meters away from the Polling Station was false. The allegation that he was giving out Voters’ Cards was also false. Kanyima did not refer to Tumwebaze’s allegations that two voters did not vote because others had impersonated them and used their voting cards which, therefore, remains uncontroverted I accept it as true.

Tukahirwa David, of Nsambya Village, Busujju parish, Kakindu, Mubende District, and his wife Nabacwa were registered as voters and received their Registration Certificates on 2201-2001. In his affidavit of 19-03-2001, he said that on 26-02-2001, they went back to collect their Voters’ Cards. They were told by the officials concerned that their cards had not yet been brought. On 11-03-2001, the officer issuing cards, one Kirumira informed them that the cards had not yet arrived from Mityana. On 12-03-2001, Tukahirwa and his wife went to the Polling Station and found Kirumira acting as the 1st Respondent’s agent. The Voters’ Cards were being issued by the Presiding Officer, one Mutwe. They joined the queue. When it was his turn to receive the Voter’s Card he and his wife were told to stand aside. The presiding Officer retained their Registration Certificates. The exercise of issuing cards and voting continued together. Tukahirwa, his wife and two other people, continued to wait for their Voters’ Cards. At 5.00 p.m. voting closed. Tukahirwa and his wife complained to the presiding Officer and requested to be given their Certificates but the presiding Officer refused consequently they never voted.

Kirumira Edward rebutted Tinkahirwa’s affidavit. In his affidavit of 4-4-2001, he said that he was the 1st Respondent’s Polling agent at Nsambya Village Polling Station. He denied that he acted as an official who issued cards. As a candidate’s agent that was not his role. The voting process was conducted in an. orderly manner, and he did not hear or see anybody complaining to the Presiding Officer Bernabas Mutwe. This affidavit does not refer to Tukahirwa’s complaint that he and his wife were never issued with Voters’ Cards. Kirumira did not say why he should have known if Tukahirwa or anybody else had complained to the Returning Officer.

Barnabas Mutwe also rebutted the affidavit of Tukahirwa. In his affidavit, which has no date, except the year 2001, he said that he was the presiding Officer at Nsambya Polling Station. He remembers that one Nabachwa had a Registration Certificate, but no Voter’s Card, and her name was not on the Voters’ Register so he disallowed her from voting. In all there were 4 people whose names did not appear in the Register of voters and he did not allow them to vote.

I find that Barnabas Mutwe’s affidavit corroborates Tukahirwa’s evidence that they did not vote, but for different reasons. Mutwe said that they did not vote because their names did not appear in the Voters’ Register, but Tukahirwa’s reason .is that because they were not issued with Voters’ Cards. Whatever the reason, it is evident that Tukahirwa, his wife and two unnamed other voters were denied the right to vote by the 2nd Respondent.

Mulindwa Abas, of Kobolwa Zone, Kibuku Parish, Pallisa District was the Petitioner’s monitoring agent for Kibuku Parish. In his affidavit of 21-03-2001, he said that at all Polling Stations he went to, there were voters who could not vote, because they were told that their names had been ticked and that they were not supposed to vote. His affidavit is based on knowledge and belief. Belief is irrelevant because all he talked about was what he had observed.

Malik Kitente rebutted the affidavit evidence of Mulindwa Abasi. The rebuttal affidavit of 5-4-2001 is not relevant to the allegation that voters did not vote because their names in the Voters’ Register had already been ticked. Mulindwa’s evidence that some people were denied the right to vote was, therefore, not controverted. I accept it as true.

Ekadu Sam of Soroti Senior Quarters, was registered as a voter at Golf Course Polling Station B. In his affidavit of 20-03-2001, he said that on 9-3-2001, he found that his name was in the Voters’ Register, but his Voters’ Card was not there. He was told that since his name was in the register he could vote using the pink form he was given when he registered. But on Polling day, his name had disappeared from the Voters’ Register. He was thus denied the right to vote. 169 other persons did not vote at that polling Station alone. The affidavit was based on knowledge and belief, but since all he said was what he saw, belief is irrelevant.

Omuge George William was the Returning Officer for Soroti District. In his affidavit of 1-4-2001, rebutting the affidavit of Ekudu Sam, he said that he did not receive any complaint, verbal or written from any agent of a Presidential Agent or an aggrieved person of Golf Course Polling Station B that about 169 people were denied opportunity to vote because their names were missing on the Voters’ Register. In my view there would appear to be no good reason why Ekudu Sam should have fabricated what he said in his affidavit. Further the fact that Omuge George William as the Returning Officer did not receive any complaint about 169 persons not having voted because their names were not in the Voters’ Register does not necessarily mean that the incident did not happen. A Returning Officer’s electoral function covers a whole District. Omuge George William did not say in his affidavit that he visited the Polling Station in question. In the circumstances I believe Ekudu Sam’s evidence and reject Omuge’s denial in this regard.

Bukenya Samuel of Kinawataka Village, Mbuya, Kampala, was a registered voter at Mbuya Lower (A-C), Mbuya Parish, Nakawa Kampala District. He said in his affidavit of 23-03-2001, that he was appointed the Petitioner’s National Election Task Force and was campaign agent. On 11-03-2001, at 6.30 p.m. he was arrested at Kinawataka Trading Centre by armed soldiers in a car covered with the 1st Respondent’s election posters. He was detained at Mbuya Military Barracks, where he was asked which candidate he supported and intended to vote for. He replied that it was the Petitioner. Thereafter he was detained until 21 -03-2001, when he was released at 11 .00 a.m. On the Election Day he did not vote. During his arrest, he was beaten, tortured and bundled into a car, which torture and beating continued while he was in detention in the Barracks.

In the Respondent’s Chart the name of Bukenya Samuel does not appear; nor is it indicated therein whether his affidavit evidence was rebutted.

Ogule Nicholas of Soroti, registered as a voter at Kichinjaji Polling Station. In his affidavit dated 20-03-2001, which he swore because he was a registered voter, he said that his name did not appear in the register. He kept on checking up to 11-03-2001. On Polling day he and 40 other people were denied the right to vote because their names did not appear in the Voters’ Register although they had Voters’ Cards. He also said that on Polling day, the Aide of Hon. George Michael Mukula, MP, came driving a motor vehicle No. UDE 745 to Kichinjaji Polling Station, campaigning and giving people, especially women, soap and salt and enticing them with the symbol of thumps up. This was a well- known election symbol for the 1St Respondent. Richard George Onyait, an Aide to Mukula MP, rebutted Ogule’s affidavit, denying that he went to Kichinjaji Polling Station driving motor vehicle No. UDE 745. He also denied that he campaigned using the “thumps-up” symbol or that he gave out salt and soap. He said that he was a registered voter at Golf Club “A” Polling Station. At no time did he go too Kichinjaji Polling Station. Onyait did not say why Ogule should have made up such detailed allegations. He was only a voter. There is no apparent reason why he should have fabricated all that he said. I find his evidence truthful. I believe it. I do not believe Onyait’s evidence in rebuttal.

Ogule’s affidavit was also rebutted by Omuge George William, who was the Returning Officer for Soroti District. He said in his affidavit in rebuttal that voters whose names were not in the register were not allowed to vote although they had Voter’s Cards. This corroborates Ogule’s affidavit that he and 40 others did not vote because their names were not in the Register. Omuge also said that he did not receive any report from any person in Kichinjaji about his or her failure to vote. Nor did he receive any report that the Aide of Mukula MP campaigned at Kichinjaji by a “thumps up” symbol. I do not find that Omuge’s affidavit makes Ogule’s affidavit any less credible. As a Presiding Officer responsible for the election for the whole of Soroti District, it is doubtful if he would attend to individual Polling Stations. In any case even if he did not receive reports of malpractices from Kichinjaji Polling Station, it does not necessarily mean that what Ogule said in his affidavit in that regard did not happen. It was the duty of the 2nd Respondent to compile Voters’ Register including all the names of persons who registered as voters if their names were not on the register on polling day or before the 2nd Respondent was responsible for that omission.

I have considered the evidence as a whole on the issue regarding denial of the right to vote. I am satisfied that the Petitioner has proved to the required standard, and I find that many voters were denied the right to vote. The effect of this denial on the election result shall be considered with the effect of other malpractices and noncompliance later in this judgment.