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

MORE EXAMPLES OF BALLOT STUFFING AND OTHER MALPRACTICES

On the same issue of ballot stuffing, there is the evidence of James Birungi Ozo who was the petitioner’s district monitor in Kamwenge. At Bushyenyi polling station, he saw the presiding officer called Mwesigye pre-ticking ballot papers for voters before they cast the ballots. Mwesigye was also L.C.II chairman. There was evidence of ballot stuffing at the station. Birungi reported the malpractices to the Returning officer who in turn sent his Assistant to attend to the complaints. The police wanted to arrest the presiding officer. They were advised against arresting the presiding officer. They were advised against the arrest because there was no replacement. In that way the Assistant Returning Officer condoned or acquiesced in the contravention of the provisions of the PEA. I failed to get any affidavit in rebuttal of these claims. I must accept them as true. They are on the record other affidavits about ballot stuffing. Mr. Muhamed Mbabazi, Junior counsel for the petitioner in his address to us described some stations as sham polling stations. He cited the various stations created belatedly at Mbuya in Kampala. He contended, and I agreed and the Court has so found, that there was breach of S.28 (1) of the PEA by creating new polling stations over night without gazetting them. It was argued by the learned Solicitor General, on behalf of the second respondent, that in one new polling station, Katwe Nursery School, Makindye Division in Kampala, where the Petitioner got more votes and therefore that there was no breach of the law. I cannot accede to this. A new polling station created in Kampala is not the best example to prove that a candidate or his agents had access or ample opportunity of access to new Polling Stations generally. A new Polling Station in Kampala can be accessed in a matter of minutes. Not so up country. In any case, the complaint is that of failure to gazette the stations and not distance.

Mr. Moses Byaruhanga, secretary to the National Task Force of the 1st respondent swore affidavit on 12/4/200 1 denying that any new polling stations were created. He echoed Chairman Kasujja’s view that old stations were split and that in some of the stations, which were split, the petitioner got more votes than the 1st Respondent. He cited 8 stations most of them from Kampala. I am not impressed by these examples. He then cites unsplit stations where the petitioner got less than the 1st Respondent. He cited 20 stations from outside Kampala. We do not know the criterion used in the selection. Moreover it must not be forgotten that in some of the Districts cited, there is evidence of intimidation, e.g. Mbarara and Kamwenge. So the value of winning or loosing is distorted in the face of brutal violence and harassment of the supporters and agents of the petitioner.

The essence of publishing polling stations many weeks in advance is intended to enable voters to ascertain the location of the stations where voters will cast their votes. Likewise publicity of polling stations in advance enables presidential candidates to appoint their agents in time for the agents to ascertain the location of the stations at which they will officiate and take care of the electoral interests of their candidates. Early creation of stations is evidence of transparency and it enables candidates to determine the possibility of raising objections so that those objections can be dealt with before voting. How could objections be raised about these new stations which were created on the evening before polling? To gloss over this action would constitute a total disservice to the electoral law and the democratic principles of transparency and fairness.

It was argued that as old stations were merely split into more stations only, even the agents appointed earlier to the old stations by the candidates could cover all the new stations in the same centre. First of all this assumes that there will be a very simple arrangement in such a way that the polling stations and the respective officials manning the stations are cooperative and very close together. This may not be practical. And in any event too close an arrangement would in operation violate the Constitutional principle of secret ballot voting: see Article 68 of the Constitution and sections 7 and 30 (1) of PEA.

There have been attempts by witnesses and officials of the second Respondent to deny that there was voting by people below the age of voting. There is the argument that the Petitioners’ witnesses might not have known the ages of the voters. They may or may not be correct. Remember that there was evidence of children voting for their sick parents or indeed relatives: See Zeyi Patrick Manja of Iganga Luwemba of Busunju Barugahare (Kabarole) Okwele (Kumi), Byaruhanga (Busia). The evidence is not from one or two places but it is reasonably widespread, persistent and consistent as not to be a creation of one or two people. I believe that S.64 of the PEA, 2000 was breached because of voting by the under aged or those not entitled to vote. Consequently I hold that there was noncompliance with the provisions of the Presidential Elections Act. Adult people use will power to make choice at an election. Children can easily be manipulated. In any case I do not think that it is proper or lawful for a person barred by law from himself voting for him to vote on behalf of another person.

There is evidence of the presence of armed soldiers at Polling Stations in Rukungiri, Kanungu, Kamwenge, Palisa, Tororo, and Mbarara, among other Districts. Soldiers intimidated agents of the Petitioner in Pallisa, in Rukungiri, in Kanungu and in Soroti. This contravened S.42 of PEA. The presence of soldiers on voting day is not seriously contested. Evidence for the Respondents is that soldiers did not interfere with voting. On the evidence available I disagree.

There were submissions by Counsel for the respondents that because this is a presidential election petition the standard of proof of the allegations by the Petitioner placed on Petitioner is very high. I know that a presidential election is a very serious national exercise, which requires that every participant in the exercise must be aware of the consequences that would follow a mismanaged presidential election. Whilst, therefore, we must examine each complaint with due care before making a definite finding on it, it must be recognized that we are engaged in performing the function of the due process which is part of the concept of the rule of law. If after observing the essentials of the due process of the law as an ingredient of the rule of law, it is found that the law has been breached, the normal and natural consequences of breach of the law must follow. Once I am satisfied that the evidence establishes the allegations in the manner prescribed by law, I must grant appropriate relief.

A number of decided cases were cited in respect of noncompliance. These include Attorney General vs. Kabourou (1995) 2LRC757, Odetta John vs. Omeda Omax Soroti H ct. Election Petition 001 of 1996, Eng. V. Katwiremu Bategana vs. E. D. Mushemeza and 2 others, Mbarara H.C. Petition No. 1 of 1996 and P K. Ssemogerere & Another vs. Attorney General Const. Petition Non. 3 of 1999 (unreported). I think that there is a distinction between this petition and the authorities cited which arise from election petitions. There were claims of threats and violence in the Odetta case. The trial judge did not believe the evidence on violence. I have not come across credible evidence in the other authorities cited of obvious violent military involvement on a large scale in campaigns as in this petition. This in my opinion is a very significant factor in this petition and it must be appreciated.

I do not think that on this issue, Ssemogerere’s case is helpful. The facts of Attorney General vs. Kabourou and Katwiremu Bategana make these cases relevant in respect of the 3rd issue.

Meantime I am satisfied that the Petitioner proved noncompliance with provisions of PEA (ACT 3/2000). It is remarkable that by 8/3/2001, hardly three days to go before elections were held, the whole chairman of the electoral Commission could not in his letter say that the violence, the intimidation and the harassment of the Petitioner’s supporters had been eliminated. How then can I say that there is compliance with the provisions of the PEA? The answer to the first issue surely must be in the affirmative.