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

Failure to Publish Polling Stations in due time:

The other complaint I considered to be under this issue was made in sub- paragraphs 3(1) (a) and (b) of the petition which in a nutshell was that the 2nd Respondent did not publish the polling stations in compliance with provisions of the Act. Section 28 of the Act, requires the Commission to publish, by notice in the Gazette, a list of the polling stations in each constituency at least 14 days before nomination. Nominations for the Presidential election were on 8” and 9th January, 2001. On 22nd December 2000, about 1 6 days before nomination, the 2nd Respondent published the list of polling stations for the purposes of the “Presidential Elections 2001” Subsequent to nominations, it published, in the Gazettes of 19th February and 9th March 2001, an additional list of special polling stations for soldiers and alterations thereto, respectively. Finally the Commission compiled another list stated to be of “all” polling stations, and without publishing it in the Gazette, distributed it to all candidates on 11th March, 2001. According to the evidence adduced for the Petitioner that list included 1,176 new polling stations, and omitted 303 polling stations which were previously gazetted. The 2nd Respondent did not dispute those figures but explained that the apparent increase of polling stations was not a result of creating new polling stations, but of splitting some of existing ones previously gazetted; and that the splitting was for voter convenience. With regard to the omissions, the explanation was that some polling stations had to be disbanded because of movement of the people. The explanation is understandable but it does not change the fact that for all intents and purposes the number of polling stations was increased.

Under S.38 of the Act, the Commission may make special provision for, inter alia, the taking of the votes of persons in restricted areas, such as soldiers and other security personnel, but when it does so, it must publish in the Gazette a list of the restricted areas. In addition, under S.38 of the Commission Act, the Commission is empowered under stated circumstances to increase the number of polling stations.

The 2nd Respondent did not show what led to the late publication of the special polling stations, and to the last minute splitting of existing polling stations to justify resorting to the power under S.38 of the Commission Act. Those powers ought not to be invoked arbitrarily or at the whims of the Commission, but only in the circumstances envisaged in the section. I will comment on the exercise of those powers, as well as the powers under S.38 of the Act, when discussing the second issue. For this issue, in view of the foregoing reasons, I found that failure to publish the special voting areas for soldiers prior to nomination, and the failure to gazette the increased polling stations at all, contravened, and was non-compliance with, S.28 of the Act.

ISSUE NO.2:

The second framed issue was:

“Whether the said election was not conducted in accordance with the principles laid down in the provisions of the said Act.”

This issue, like the preceding one, arises from the Petitioner’s allegations in the petition, which the Respondents denied, that in the conduct of the election there were diverse violations of the election law and principles underlying that law. I will first identify the principles I took into consideration in answering the issue in the affirmative.

In construing the principles laid down in the provisions of the Act it is necessary to read the Act along with the Constitution. Apart from being the foundation of all the laws in Uganda, to which all laws in the country must conform, the Constitution relates to the Act more specifically under Art.103 which provides in clause (9): as follows:

“(9) Subject to the provisions of this Constitution, Parliament shall by law prescribe the procedure for the election and assumption of office by a President.” (emphasis is added)

The Act is the law made by Parliament pursuant to that clause. As far as relates to principles therefore, that Act must be read together with the applicable provisions of the Constitution, to which it is subjected.

In their respective addresses to Court, Counsel were unanimous in the view, and I agree, that the major principle on which all others are hinged is that elections shall be free and fair. This is entrenched in the Constitution, particularly in Art.1 (2) and (4), and Art. 61 (a). The ancillary principles which need to be mentioned for their relevance to this petition include, registration of voters:

(Art. 61 (e)); universal adult suffrage, through secret ballot: (Arts. 17 (a), 59 and 103 (1)); transparency (Art. 68); and decision by majority vote, (Art.104 (4)). The Act reiterates some of these, and sets out rules to ensure adherence to the principles.

The concept of “free and fair election” is not defined in the Constitution or the statutes governing elections, but it is not difficult to discern. A free and fair election entails freedom of candidates and their agents to lawfully, solicit support from the electorate without hindrance or interference; and it entails the right of every entitled citizen, to vote freely in accordance with his or her will without hindrance or interference. It also entails equal opportunity among candidates to access the electorate, as well as, among the electorate, to choose between the competing candidates. For those attributes to be attained, public and private campaign meetings must be unhindered, voter registration must include only entitled voters and exclude persons not entitled to vote. Voting must be in accordance with the procedure laid down by law, and the candidates must have opportunity to observe the proceedings of voting and of counting votes, either in person or by appointed agents. It is therefore obvious that in assessing whether the election was or was not conducted in accordance with the principles; the Court must consider the entire electoral process, not the polling exercise on polling day alone.

It was the case for the Petitioner that the Presidential election was not conducted in accordance with those principles. In that regard, he sought to prove the following assertions, namely, that:

(1) intimidation interfered with free and fair campaigning and voting;

(2) voters’ register included names of non-voters and excluded names of persons entitled to be voters;

(3) there was use of ungazetted polling stations and exclusion of the Petitioner’s agents from polling, counting and tallying centres;

(4) there was cheating through various illegal methods of casting votes.

I will now discuss the evidence on basis of which I made findings on each of those assertions.