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

(2) The display of the Voters’ Roll referred to in Sub-section (1) shall be carried out in a public place within each Parish or Ward.”

Paragraph 11 of the Petitioner’s affidavit filed with the petition said:

“14. The 2nd Respondent failed to display the Voters’ Register and Rolls for each Parish or Ward in a public place within each Parish or Ward for a period of not less than 21 days stipulated by law, and as a result, my agents, supporters, and myself were denied sufficient time to scrutinize and clean the Voters’ Rolls and exercise our rights under the law.”

In his affidavit in reply, dated 6-4-2001, the Petitioner deponed

“48. That without the National Voters’ Register the Voters’ Rolls for each Constituency and polling Stations could not be displayed and instead the 2nd Respondent used a number of Registers (Sic) as per the letter of 4th February 2001.

49. The printed Voters’ Rolls for each Constituency containing the names of voters entitled to vote in the Presidential Election 2001 were never published in the Gazette to declare that such Roll was to be used for purposes of identifying voters at the 2001 Presidential Elections.”

In support of its answer to the petition, the affidavit of Mr. Aziz Kasujja, Chairperson of the 2 Respondent, stated:

“13. That in answer to paragraph 14 of the Petitioner’s affidavit, the Voters Register was displayed Country-wide for five days and given very wide publicity, and anybody who wished to scrutinize the same was free to do so. Scrutinizing of the Register was clear and the bulky Nation-wide returns were kept at the Electoral Commission Headquarters.

14. That the Voters’ Register could not be displayed for 21 days or more because of time constraint and this was duly explained to candidates’ agents during a consultative meeting, which was held at the Electoral Commission Offices.”

Documentary evidence available, for instance annextures 4 and 5 to Mukasa David Bulonge’s affidavit, to which I have already referred in this judgment, shows that what was purported to be the Voters’ Register was displayed for three days. That was from 21st to 28t February 2001. The display period according to Mr. Kasujja’s affidavit was extended for two more days, making five days altogether, but the effect would still be the same, whether the display was for 3 or 5 days.

Mr. Kabatsi conceded that the display of Voters’ Register was for 5 days not 21 days. Mr. Kasujja explained this irregularity in paragraph 27 of his affidavit to the effect that the time for display and up-date of the Register was affected by a decision to have photographic Voters’ Cards which required fresh registration. That exercise was commenced but due to unforeseen delays in delivery of all the necessary equipment which had not arrived by 31-12-2000 the 2nd Respondent was forced to revert to the old system of up-dating the existing Register, having lost a lot of time.

According to Mr. Kabatsi, the display exercise was successful although the period was shorter than what the law required. The success is reflected in the fact that as Mr. Kasujja said in paragraph 28 of his affidavit, after the display exercise, the number of voters on the Voters’ Register reduced from 11 ,093,948 to 10,672,383. The learned Solicitor General also submitted that the 2nd Respondent is empowered under section 38(1) of Act 3/97 to abridge the period of doing certain things in case of an emergency. Mr. Kabatsi further contended that in any case even if the 2nd Respondent did not comply with the provisions of s.25(1) of Act 3/97 the non — compliance did not affect the result of the election in a substantial manner.

With respect, I am unable to accept Mr. Kabatsi’s argument that 2 Respondent validly reduced the display period. Section 38(1) gives the 2nd Respondent power to extend the time for doing any act where it appears to it that by reason of any mistake, miscalculation, emergency or unusual or unforeseen circumstances any of the provisions of Act 3/97 or any law relating to election does not accord with the exigencies of the situation. The section gives express power to extend time, not to abridge it.

The language of section 25(1) of Act 3/97 is mandatory. It does not provide for any exception. The 2nd Respondent was under a duty to comply with it without any excuse. In view of the provisions of s.25(1) and the relevant evidence available, I am satisfied and find that the 2^nd Respondent acted in breach of section 25(1) of Act 3/97. It did not comply with that law.

The rationale for the exercise of display of Voters’ Rolls is all stated in section 25(2), (3), (4), (5), (6), (7) and (8) of Act 3/97. Briefly, it is to enable the local members of the public, voters, potential voter’s and officials to object to names of persons not qualified to vote or to be registered as voters in the constituency, parish or ward or to complain that names of persons qualified to vote or to be registered have been omitted. Objections are made to the returning officer who subsequently appoints a tribunal of five members to determine the objections. Any decision of a tribunal is subject to review by the 2nd Respondent. In my view, the importance of a display for the period prescribed by Act 3/97 cannot be over emphasised. The exercise is bound to take some time. If Parliament thought that it needed less time, it would have expressly given the 2nd Respondent power to decrease the period. It did not do so. Regarding what effect this non — compliance had on the result of the elections, I shall discuss it with the effect of other incidences of non — compliance later in this judgment.