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

(c) to ascertain publish and declare in writing under its seal the results of the elections and referenda;
(d) to compile, maintain, revise and up-date the Voters’ Register;

(e) to hear and determine election complaints;

(f) ……………………………..

(g) to perform such other functions as may be prescribed by Parliament by law.”

Act 3/97 gives the 2nd Respondent additional powers for purposes of carrying out its functions under the Constitutions. Section 12(1) provides:

“(a) ……………………………..

(b) to design, print, distribute and control use of ballot papers;

(c) to provide, distribute, and collect ballot boxes;

(d) to establish and operate Polling Stations;

(a) to take measures for ensuring that the entire process is conducted under conditions of freedom and fairness;

(f) to take steps to ensure that there are secure conditions necessary for the conduct of any election in accordance with this or any other law;

(g) ………………………………….

(h) to ensure that the candidates campaign in an orderly and organized manner;

(i) to ensure compliance by all election Officers and candidates with the provisions of this” Act or any other.”

The 2nd Respondent’s duty regarding National Register of Voters and Voters’ Rolls are provided for in s. 18 of Act 3/97.

“18(1) The Commission shall compile, maintain and up-date, on continuing basis, a National Voters’ Register in this Act referred to as the Voters’ Register, which shall include the names of all persons entitled to vote in any National or Local Government Election.

(2) The Commission shall maintain as part of the Voters’ Register, a Voters’ Roll for each constituency under this Act.

(3) The Commission shall maintain as part of the Voters’ Roll for Each constituency, a Voters’ Roll for each Polling Station within the constituency, as prescribed by law.”

Section 32 (5) of the Act provides:

“(5) The Polling agents shall have an official copy of the Voters’ Register of that Polling Station at the candidates cost.”

Under section 19(7) of Act 3/97 when up-dating the Voters’ Register, the 2 Respondent shall up-date it to such date as the Minister may, by Statutory Instrument, appoint as the date on which the up-dating shall end. In accordance with the provisions of this sub-section the Commission issued Statutory Instrument No. 2 of 2000, appointing 22-01-2001 as the date on which updating the National Voters’ Register would be completed for purposes of the 2001 Presidential Election.

Section 1(2) of the Act provides that “The Commission Act shall be construed as one with this Act” (The underlining is mine). What does this mean? According to Craies on Statute Law, 7th Edition by S. G. G. Edgar, 1971, SEM (London) on page 138, the expression “Act to be construed as one with another” means that for purposes of construction certain Acts are to be read with another Act or Acts. The effect of enacting that an Act shall be construed as one with another Act is that the Court must construe every part of each of the Acts as if it had been contained in one Act, unless there is some manifest discrepancy making it necessary to hold that the Act has, to some extent, modified something found in the earlier Act, or that from internal evidence the reference of the latter to the earlier Act does not affect a complete incorporation of the provisions of the two Acts. In the instant case, I think that, that is what section 1(2) of the Act means, with regard to the Act and Act 3/97. I do not see any manifest discrepancy making it necessary to conclude that the Act has modified Act 3/97. On the contrary, I think that section 1(2) of the Act links Act 3/97 with the Act. The Court should construe every part of each of the two Acts as if it has been contained in one Act.

Back to the grounds of the Petitioner in question.

In his affidavit filed together with the petition the Petitioner stated in paragraph 13 thereof that he applied through his National co-coordinator to be supplied with the Final Voters’ Register for use by him and his polling agents on payment of the necessary charges by him but the 2nd Respondent did not do so.

In paragraph 12 of his affidavit filed in support of the 2nd Respondent’s answer to the petition, Mr. Aziz Kasujja, the Chairperson of the 2nd Respondent, answered paragraph 13 of the petitioner’s affidavit. The Chairperson said that the Petitioner’s request for a copy of the Register was received on 11-03-2001, and that there was no sufficient time to print the Register for the Petitioner on the eve of Polling day, and he informed the Petitioner accordingly.

Mr. Aziz Kasujja said more on this in his supplementary affidavit in reply, dated 9-04-2001. In apparent contradiction to what he had said in his affidavit dated 27-03-2001 in support of the 2nd Respondent’s answer to the Petition, Mr. Kasujja said in his later affidavit to the effect that for the Presidential Elections, the up-date of the Register was done at the village level from lithe January to 22 January 2001; that in February 2001, the National Voters’ Register was printed and displayed at polling stations in the form of Voters’ Rolls; and that the Constituency Rolls and Polling Station Rolls which make up the National Voters’ Register had already been printed by 11-03-2001, and the numbers of registered voters was known.

In his submission Mr. Mbabazi contended that the Chairperson’s answer could mean that the Voters’ Register was available much earlier, except, that there 220 was no time to print a copy for the Petitioner. That was not so, learned counsel contended, because in a letter dated 08-03-2001 and headed “Flaws in the Presidential Election Process, 2001” addressed to three of the Presidential candidates including the Petitioner, Mr. Kasujja said:

“You have expressed concern over the delay in producing the Final Voters’ Register. Please be assured that the Final Voters’ Register will be ready in time for polling.”

This letter is annexture P18 to the Petitioners’ affidavit in support of the petition.

Learned counsel submitted that this letter indicates that by 08-03-2001 there was no Final Voters’ Register. This inference is supported by the fact that display exercise for purposes of up-dating the Voters’ Register and Voters’ Rolls continued up to 28-02-2001. Learned counsel referred to the affidavit of Mukasa David Bulonge dated 1-4-2001, and its annextures. Annexture 3 conveyed guide lines by the 2d Respondent for display of the Voters’ Register; Annexture 4 was issued under sections 25 and 38 of Act 3/97 saying that display period had been reduced from 21 to 3 days, from 26th to 28th February 2001. Annexture 5 was a letter from the 2 Respondent’s Chairperson to Display Officers informing them of changes in the display guidelines. Instead of the Voters’ Register being displayed, four other documents were to be displayed.

Mukasa David Bulonge, the deponent of the affidavit in question, was the Petitioner’s witness. He was a registered voter, entitled to vote at Kabonera, Kibiba Parish, Kabonera Sub-County, Masaka District. During the 2001 Presidential Election, he was appointed to work in the National Task Force of the Petitioner as Head of Election Monitoring Desk and Electoral process from the time of nomination throughout until polling day and declaration of results. He said in his affidavit of 01-04-2001, that in the course of his work, he attended several consultative meetings with the 2^nd Respondent’s officials, representing the Petitioner, and his interest. That he knew the exercise of up-dating the National Voters’ Register for purposes of the Presidential Elections which was set down for 22-01-2001.

He then gave details of what is involved in up-dating of Voters’ Register and
stated in Paragraphs: -

“14. That throughout the electoral process up to polling date, the exact number of registered voters was not known as there was no National Voters’ Register compiled, maintained and up-dated by the 2nd Respondent containing the names of all persons entitled to vote at the Presidential Election of 2001.

15. That additionally, no Voters’ Roll for each Constituency containing the names of voters entitled to vote in the Presidential Election 2001, held on March 2001, was ever printed, neither did the Commission publish a notice in the gazette declaring any printed Voters’ Roll as one to be used for the purposes of identification of voters on the election day of 12th March 2001.”

In the “Summary of Affidavits” (hereinafter referred to as “the Chart”), handed in by counsel for both the Respondents to assist the Court, Mukasa David is listed on page 1 3 of the chart. Against his name does not appear to be any affidavit in rebuttal. But the affidavit of Mr. Kasujja dated 09-04-2001 and of Kiganda Abdullah Musobya dated 02-04-2001 appears to be relevant.

According to Mr. Mbabazi, another indication that the National Voters’ Register was not available is the difference between the number of voters of 10,674,080, announced by the Chairperson of the 2 Respondent at a briefing by him on 11- 03-2001, (Annexture 8 to Bulonge’s affidavit) as the number of voters on the Voters’ Register as by the date of 10-03-2001, and the figure of 10,775,836, shown in annexture R.2 to Chairperson Kasujja’s affidavit filed with the 2 Respondent’s answer to the Petition as the number of voters who had voted. There is a difference of 101,756 between the two figures. Where did the difference come from? Learned counsel asked. This, he contended, showed that there was no National Voters’ Register.

Learned counsel submitted that the next indication that there was no Voters’ Register is the excess number of persons who voted in Makindye East Division and in Mawokota County South. The percentage of voters who voted was 105.34% and 109.86% respectively as shown in the Petitioner’s affidavit from the two Constituencies. There were 2184 and 7797 votes cast respectively in excess of registered voters. Learned counsel contended that the excess was not the result of arithmetical error as it is alleged in paragraph 7 of Mr. Kasujja’s affidavit in reply of 27-03-2001, which does not show how the error arose. No tally sheets are attached. Instead only a letter dated 20-03-2001 written by the Returning Officer, Kampala to the 2nd Respondent is attached, saying that the original tallying was faulty. To the letter was attached a summary of results prepared by the 2nd Respondent’s officials, not tally sheets signed by the candidate’s agents- This was falsification of results to match the register in Makindye East after the results had been declared.

In his reply on the issue of the Voters’ Register, Mr. Kabatsi referred to the following paragraphs of Mr. Kasujja’s supplementary affidavit in reply dated 09- 04-2001:

“18. That I know that a National Voters’ Register exists since 1983, when a National Voters’ Register was first prepared for the purposes of the Constituent Assembly Elections.

19. That since then the National Voters’ Register has been maintained up-dated to date.

20. That before the 1996 Presidential Elections the National Voters’ register was cleared and up-dated and another up-dating and clearing exercise was carried out before the Referendum.

21. That for the 2001 Presidential Elections, the up-date of the Register was done at Village level from 11th January 2001, to 22nd January 2001.

22. That the said up-date of the National Register was carried out by up-date officers identified by Parish Councils, supervised by the Parish Chiefs and during the said update Tribunals were established to handle complaints.

23. That the staid up-date exercise involved three components: - Registration of Fresh Applicants, - Registration of transferred voters and clearing of existing Register by deleting dead people’s names, non - qualified voters and non — Citizens.

24. That Returns of the said up-date exercise were received from all Districts and entered into computers at the 2” Respondent’s Headquarters.

25. That in February, 2001, the National Voters’ Register was printed and displayed at Polling Stations in the form of Voters Rolls, in four components i.e. previously registered voters, the newly registered voters, the transferred voters and voters recommended for deletion for ease of scrutinizing the register.”

Mr. Kabatsi submitted that the exercise of compiling and up-dating the Voters’ Register is continuous. Mr. Kasujja’s affidavit evidence to that effect is corroborated by the affidavits of Abdullah Musobya Kigonda dated 02-04-200 1 and the affidavit of Balaba Dunstan, dated 02-04-2001, and Banabas Mutwe, un-dated, filed in support of the 2nd Respondent’s answer to the Petition. Kiganda Abdallah Musobya was the Returning Officer of Kisoro District. Part of his affidavit reads:

“5. That prior to the elections, village meetings were conducted throughout the District to afford the residents an opportunity to verify the Citizenships of all persons who registered to vote.

6. That during the verification exercise all non-Citizens were identified and removed from the register.”

The affidavit of Balaba Dunstan does not contain anything relevant to Voters’ Register.

So far as it is relevant on the point Barnabas Mutwe’s affidavit states:

“4. That I remember one Nabachwa has a Registration Certificate but no Voter’s Card and her name was not on the Register and disallowed her from voting.

5. That in all there were only four (4) people whose names did not appear in the Register and I did not allow them to vote.”

As section 18 of Act 3/97 provides, it is the responsibility of the 2nd Respondent to compile, maintain and up-date, on a continuing basis, a Voters’ Register which should include the names and persons entitled to vote in any election. The Voters’ Register consists of a Voters’ Roll for each constituency which in turn consists of a Voters’ Roll for each Polling Station within the Constituency. The display exercise mandated by section 25 must be intended to be an aspect of up-dating the Voters’ Roll. If, as Mr. Kasujja said in paragraph 21 of his supplementary affidavit in reply dated 9-4-2001, the up-date of the Register was done at Village level from 11-01-2001 to 22-01-2001, why is it that a display exercise was still necessary to be done between 26th February 2001, and 28 February, 2001 as per Notice dated 23-02-2001, issued by the 2nd Respondent’s Chairperson (Annex.4), to the affidavit dated 1-4-2001 of Mukasa David Bulonge, the Petitioner’s witness? Further, according to the circular to all Display Officers from the 2u,d Respondent’s Chairperson, Mr. Kasujja (Annex: 5 to Bulonge’s affidavit) the documents to be displayed from 26th to 28th February, 2001, at the polling Stations were not the Voters Rolls for the Polling Stations but four documents which appear to be different, namely:

“(i) Register for old voters (Doc. 1A)

(ii) Register for New Voters (Doc. 1B)

(iii) Register for New Voters (Doc 1C)

(iv) A list of persons recommended for election during the up-date exercise.”

The circular then goes on to say:

“2. Doc. 1A, Doc 18 and Doc. TC should be used to issue Voters Cards. Cards be issued to the OWNERS and signed for by them. No person should collect a Voters’ Card on behalf of another person at the polling Station.”

According to s.26 (1) of Act 3/97, the 2nd Respondent may issue Voters’ Cards only to Voters whose names appear in the Voters’ Register. But in the Circular in question the 2nd Respondent’s Chairperson instructed Display Officers to issue Cards according to the three documents listed in the circular. If there was a Voters’ Roll at the Polling Stations why were the Voters Cards not issued to voters whose names were on the Voters’ Rolls? Another point in this connection to which I have already referred is, if the Voters’ Register, consisting of the Constituency and Polling Stations Voters Rolls was available, why did the 2nd Respondent not give it to the Petitioner and his Polling Agents when he requested a copy thereof? If the Voters’ Register was available, surely, the Chairperson of the 2nd Respondent would have instructed the Display Officers to issue Voting Cards to persons whose names were in the Voters’ Roll for Polling Stations instead of some three other documents; and the 2nd Respondent would have given the Petitioner a copy of the Register of voters when he requested for them.

In the circumstances regarding paragraphs 18 to 25 of the Supplementary affidavit in reply, by the 2nd Respondent, my view is that the affidavit is not of much assistance to the 2nd Respondent’s case in this regard. It appears to state what, according to the Chairperson, was supposed to have happened; not what actually happened. The affidavits of the Petitioner and his witness Mukasa David Bulonge are more credible on this point. In the circumstances I am satisfied that on the available credible evidence as a whole, the Petitioner has proved and I find that:

(a) Contrary to section 32(5) of the Act, the 2nd Respondent failed when requested to give the Petitioner and his agents a copy of the Voters’ Register.

(b) Contrary to sections 18(o) of Act 3/97 the 2nd Respondent failed to maintain and update the National Voters’ Register, the Voters’ Rolls for each Constituency and each polling station within each Constituency and as a result, the Voters’ Register and the Voters’ Rolls contained many flaws such as dead people’s names and some of those who ought not to vote in Uganda - remaining on the Voters’ Register, while many people who were eligible to vote had their names omitted from the Voters’ Register and the Voters’ Rolls.”

The 2nd Respondent clearly did a very poor job of carrying out its responsibility under s.18 of Act 3/97. The standard of incompetence was high. There is credible evidence that in consequence thereof, some names of dead people, of those who ought not to vote remained in the Voters’ Register and some people who were eligible to vote had their names omitted from the Voters’ Register and Rolls.

Paragraph 3(1) (f) Failure to display copies of the Voters’ Rolls:

“(f) Contrary to section 25 of the Electoral Commission Act the 2”” Respondent failed to display copies of the Voters’ Roll for each Parish or Ward in a public place within each Parish or Ward for a period of not less than 21 days and as a result the Petitioner and his Agents and supporters were denied sufficient time to scrutinize and clean the Voters’ Roll and exercise their rights under the law.”

The 2 Respondent’s answer to this ground of the Petition is as follows:

“(5) In reply to paragraph 3(1), the 2^nd Respondent avers:

(a) that the Voters’ Register was initially displayed Country wide for three days and everybody was free to scrutinize thee said Register;

(b) that after consultations with and on request by agents of all Presidential Candidates including those of the Petitioner, the Second Respondent extended the time for display of the Voter’s Register for another two days;

(C) that in any case the contents of paragraph 3(1) (f) of the Petition do not constitute a ground upon which the election of a candidate as President can be annulled.”

Sub-sections (1) and (2) of section 25 of Act 3/97 provides:

“(1) Before any election is held, the Commission shall, by notice in the Gazette, appoint a period of not less than twenty one days, during which a copy of the Voters’ Roll for each Parish or Ward shall be displayed for public scrutiny and during which any objections or complaints in relation to the names included in the Voters’ Roll or in relation to any corrections shall be raised or filed.

(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.