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

MESSRS BALIKUDEMBE AND MBABAZI FOR PETITONER

The petition cited non-compliance with sections 12,18,19,25 of the ECA and sections 25,28,29,30,31,32,34,42,47,56,63,70,71, of the Presidential Elections Act, 2000 (PEA). It seems from the wording of S.58 (6) (a) and (C) that violation of the ECA does not matter for purposes of annulment.

Be that as it may, Mr. Balikuddembe made submissions together with Mr. Mbabazi. Mr. Balikuddembe opened by stating that the 1995 Constitution did away with political instability by putting the people of Uganda in charge of their own destiny. He referred to Articles 1,60 and 61 of the Constitution to the provisions of the Electoral Commission Act, 1997 (the ECA) especially S. 12 thereof which spells out the special functions of the Electoral Commission (hereinafter called the Commission); to the Presidential Elections Act 2000 (PEA), especially Ss.2 (2) and 5. Counsel pointed out malpracticeS and non-compliance with the provisions of PEA and ECA. He criticised the Commission for its failure to display the Voters roll for 21 days as a result of which the Voters Register was not cleaned up of names of people whose names should not appear in the register. That the Commission did not complete the Voters Register, which in the event contained two million ghost voters.

He criticised the Commission for the establishment, at the eleventh hour, of over 1716 new and ungazetted Polling Stations on 11/3/2001. Because of this, it was contended, the petitioner was unable to appoint Polling agents to most of the new Polling Stations to protect his electoral interests. He criticised the Commission for printing excessive Voters cards as well as excessive ballot papers numbering about two million of them. These ended up in wrong hands. As a result, the agents of the first respondent used the excess ballot papers to stuff the same into ballot boxes. Counsel complained of the deployment of the Army during the campaign period, contending that the militarization of the electoral process hindered the petitioner and his agents and his supporters from canvassing for support and also the Petitioner’s supporters were terrorised into abandoning the petitioner. He referred to the exercise of undue influence exerted by the first respondent and the Army of which he is the Commander-in-Chief.

Mr. Mbabazi stepped in to further argue the merits of the first issue and indeed his arguments overlapped into the second issue. Learned counsel referred to the affidavits of Major (RTD) Rwaboni Okwir, that of Mukasa D. Bulonge, of J. Oluka of Soroti, Ebulu, Ongee Mariono of Kitgum, Kiiza Davis and Birungi Ozo, both of Kamwenge, Kipala J, James Musinguzi of Rukungiri, Charles Owor and Kironde both referred to general situation, Ogute Nicholous, Frank Mukuunzi to support his arguments.

Counsel contended that the Commission failed to compile, maintain, revise and update registers and rolls as required by Article 61(a) of the Constitution, and sections 12, 18 and 19 of the ECA. By 8/3/2001, the National Voters Register was not ready. As a result many voters could not inspect the registers and they were unable to raise objections as provided for by S.25 of ECA (Act 3/97); that the commission violated the law by displaying some registers for less than 21 days. That because of this, about 101,000 voters surfaced and there was no time available to enable voters and agents of the petitioner to verify any of these new voters. As a result there was falsification of registers and the creation of sham polling stations on the eve of the Polling Day.

Counsel argued that in terms of S.28 (1) (a) of PEA, (17/2000) polling stations should be published 14 days before nomination day, i.e., before 8/1/2001, but not later, as was done in this case.

He referred to the chasing of the Petitioner’s polling agents from Polling Stations. That there was voting before the appointed time which perpetuated multiple voting and ballot stuffing. Counsel contended that as a result of these, there was non-compliance with the provisions of PEA (Act 17/2000) and ECA (Act 3/97) because of:

1) Failure to update registers by 22/1/2001.

2) No updated register on voting day.

3) Failure to print and gazette constituency rolls.

4) Failure to display voters rolls for all the Polling Stations for at least 21 days.

5) Failure to gazette all Polling Stations within 14 days before nomination.

6) Failure to notify voters within reasonable time of Polling Stations where they were to vote contrary to S.33 (1) of ECA.