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

Paragraph 3(1) (a), (b) and (c) of the Petition failure to gazette Polling Stations within time.

“3(11(a) That on 10th March 2001, less than 48 hours before polling day, in addition to the Polling Stations duly published in the Uganda Gazettes of 22nd December 2000, 19th February 2001, and 9th March 2007, the 2nd Respondent made and added new Polling Stations out of time contrary to the provisions of section 28(1) of the Act.

(b) That contrary to section 28 of the Act the 2nd Respondent failed to publish a full list of Polling Stations in each Constituency 14 days before nomination day of 8th and 9th January, 2001.

(c) That as a result of what is stated in paragraph. 3(a) and (b) above, your Petitioner was disabled from appointing his Polling Agents to supervise all the Polling Stations and safeguard the interests of your Petitioner as he was entitled to do under section 32 of the Act.”

In its answer, the 2nd Respondent pleaded:

“1. In reply to paragraph 3(1) (a) and (b) of the Petition the 2nd Respondent avers:

(a) That no new Polling Stations were created but rather some existing Polling Stations were split for purposes of easing the voting process due to the big numbers of voters in those stations and that it was within the 2nd Respondent’s power to split the said Polling Stations as was done.

(b) In the alternative but without prejudice to the foregoing, the second Respondent avers that there is no evidence that the splitting of the said Polling Stations substantially affected the result of the election or at all.

2. In reply to paragraph 3(1) (c) of the Petition the second Respondent avers that the splitting of Polling Stations affected all the candidates equally and that the Petitioner like all other candidates were duly notified of the splitting of the Polling Stations. There is no evidence that the said splitting affected the result of the election or at all”

Section 28 of the Act provides:

“28(1). The Commission shall, by a notice in the Gazette publish —

(a) A list of the Polling Stations in each Constituency at least fourteen day before nomination and

(b) ……………….

(2). The Commission shall also forward each list referred to in sub-section

(1) to all Returning Officers; and the Returning Officers shall ensure that the lists relevant to each Constituency are published widely in that Constituency.”

(The underlining is mine)

The Petitioner’s own affidavit in support of the petition in paragraphs 11, 12 and 13, repeated some of the contents of paragraph 3(1 )(a), (b) and (C) of the petition and added that following gazetting of the Polling Stations he appointed 2 Polling Agents for each of the Polling Stations to look after his interests. Copies of the relevant Uganda Gazettes were annexed as “P5”. “P6” and “P7” to the affidavit. He also said that on 11-3-2001, the 2nd Respondent supplied him with a list of gazetted Polling Stations with added new and ungazetted Polling Stations. As a result he failed at that 11th hour to appoint and deploy his polling agents to supervise all those new Polling Stations and to safeguard his interest. A copy of the letter and the list of the newly added Polling Stations were annexed to the affidavit as “P8” and “P9.”

What the Petitioner’s affidavit said in this connection was replied to by the affidavit of the 2nd Respondent’s Chairperson, Mr. Aziz Kasujja, to the effect that no new Polling Stations were created but existing ones were merely split to ease voter congestion and voter convenience as indicated to candidates’ task forces in a circular dated 11-03-2001, annexture “P6” to Mr. Kasujja’s affidavit. In his supplementary affidavit, Mr. Kasujja said that it was not necessary to display voters’ Rolls for the parent stations which included list of voters for the split stations already been displayed. He admitted that some Polling Stations which had been gazatted were deleted from the list published on 11-03-2001, because voters had migrated elsewhere.

In his submission, Mr. Mbabazi referred to the affidavits of the Petitioner, Mukasa D. Bulonge, James Oluka and Vincent Ebulu. The evidence from affidavits, learned counsel submitted, proved how non-gazetted, Polling Stations were created. Also shown were Polling Stations which did not appear on the list of 11-03- 2001. He mentioned certain Polling Stations for purposes of illustrating his point.

In his reply, Mr. Kabatsi said that Mr. Kasujja’s supplementary affidavit explained the reason why certain Polling Stations did not appear on the gazetted list of 11 - 03-2001. It was migration of the population from the areas concerned. He argued that the Petitioner did not adduce evidence that because of reduction in numbers of polling Stations some voters did not vote or were dis-enfranchised. Mr. Kabatsi referred to the affidavits of Francis Bwengye, one of the six Presidential Candidates, which shows lack of evidence that the result was affected by the manner the 2’ Respondent handled Polling Stations.

Notice by the 2 Respondent in the Uganda Gazette of 22-12-2000, listing Polling Stations, under section 28(1)(a) of the Act said:

“NOTICE is hereby given that in exercise of the powers conferred upon the Electoral Commission, by section 28(11(a) of the Presidential Elections Act No. 17 of 2000, the list of Polling Stations in the schedule attached to this notice is hereby published for purpose of the National Presidential Election.”

This was annexture “P5” to the petitioner’s affidavit.

On 19-02-2001, the 2 Respondent under special powers provided for in s.38 of Act 3/97, published a list of Polling Stations for Army Units. This was annexture P6” to the Petitioner’s affidavit.

Then in the Uganda Gazette of 09-03-2001, the 2nd Respondent published a list of what was called “new Polling Stations for the Army Units.” The Notice explained that the new Polling Stations were created as a result of transfers in the Army.

On 11 -03-2001, by a letter (annexture R8 to the Petitioner’s affidavit and annexture R.6 to Mr. Kasujja’s affidavit) addressed to all Task Forces of Presidential Candidates Mr. Kasujja, said:

“The Electoral Commission in forms all Presidential Candidates that the list of all Polling Stations Countrywide is herewith attached.

NOTE: That some of the Polling Stations have been spilt for purposes of easing the voting process. For this purpose the Polling Agents for each candidate should be appointed in the split Polling Stations. Please note that the changes have already been alphabetically effected on the Registers.

It should also be noted that these are not new Polling Stations. A copy of this hereby in forming the Returning Officers and the respective Presiding Officers.”

According to the affidavit of Mukasa David Bulonge of 01-04-2001, and annexture 13 to the affidavit the new list included 1176 new Polling Stations which were different from, and 303 missing from, the originally gazetted Polling Stations.

Following the Court’s order that the 2nd Respondent should let the Petitioner have access to election documents in its possession or control, Mr. Mukasa David Bulonge obtained certified copies of tally sheets from various Districts of Uganda. He attached as samples those from the Districts of Gulu, Kitgum, and Kamwenge to his Supplementary affidavit of 07-04-2001. He deponed in the affidavit that from the tally sheets from Kitgum, for instance, he discovered records of new Polling Stations that were never gazetted originally, nor were on 2 Respondent’s list of 11-03-2001. He named them. They were five. The results in those Polling Stations were tallied along with other results for Kitgum District appearing in Annex “B;” to the affidavit. In those new Polling Stations, the 1st Respondent’s votes contrasted sharply with the Parten of results obtained from Polling Stations that had been gazetted in the list of 11-03-2001. They were much higher. The sharp contrast of results also happened in 5 Polling Stations at Kasubi, in Gulu District which were neither gazetted nor on the list of 11-03-2001; in one Polling Station outside Quarter Guard Station in Pagele Parish, Amuru Sub-County; and in two Polling Stations at Bibia outside the Quarter Guard in Pupwonyo Parish, Atiak Sub-County, Gulu District.

The sharp contrast in votes received by the 1st Respondent and the Petitioner is illustrated by Ngomoromo (A-E); Ngomoromo (F. N. and Ngomoromo (O.) Polling Stations Pawor Parish, Lukung Parish, Lamwo County where the 1^st Respondent and the Petitioner got 292, 84, and 233 votes respectively while the Petitioner got 8, 3, 9 votes respectively. In Nkelikongo outside Quarter Guard, the Respondent received 263 and the Petitioner 13 votes.

In his supplementary affidavit of 10-04-2001, Mukasa David Bulonge said that he had looked at the tally sheets for Kamuli, Pader, Mbarara and Bushenyi Districts to identify Polling Stations that were not gazetted but were on the 2nd Respondent’s list of 11-03-2001; and that the results demonstrated that the 1st Respondent received a far higher percentage of the votes cast in the newly created Polling Stations than he did nationwide.

Section 28(1)(a) of the Act enjoined the 2nd Respondent to publish in the gazette a list of Polling Stations in each Constituency at least 14 days before nomination. The Presidential Candidates were nominated on 8th and 9th of January, 2001. The list of Polling Stations therefore ought to have been gazetted on or before 25 December 2000. The list published in the gazette of 22-1 2-2000, was therefore, within the prescribed time, but the list of Polling Stations at Army Units gazetted on 19-02-2001, was not. Nor was the list forwarded to the Petitioner by the 2nd Respondent’s letter of 11-03-2001. On 12-03-2001, as Mukasa Bulonge found new polling stations were created which had not been published even on 11-03-2001.

Although Mr. Kasujja in his affidavit and in that letter emphasized that the list includes split Polling Stations and not new Polling Stations, I accept the evidence adduced for the Petitioner that that list contained some new as well as split Polling Stations which had not been previously published in the gazette and that new polling stations appeared, so to speak, out of the blue, on 1 2-03-2001. A few examples may be given.

In the gazette of 22-12-2000, Kimabogo Parish of Buyende Sub-County, Kamuli, District, 4 Polling Stations were listed, namely, Bugogo Market, Buseete Primary School, Makenga T/C and Nambula Primary School. But in the list of 11-03- 2001, were shown 5 Polling Stations, namely Buseete Primary School, Nambula Leprosy Centre, Bugogo Market, Buseete Primary School and Makaya T/C. the new one was Makaya T/C. The new one was apparently a second Buseete Primary School, Nambula Leprosy Centre did not appear in the 22-12-2000; list.

The affidavit of James Oluka is one of those affidavits Mr. Mbabazi referred to. James Oluka said in his affidavit of 20-03-2001, that he was a Polling Assistant for the Petitioner at Akisim NRA Barracks A — D. He based his statement in the affidavit on his own knowledge and on belief. He does not state his grounds of belief. But I think it is severable. He deponed that in Akisim Ward, Soroti Municipality, where originally there were only two Polling Stations, namely Akisim NRA Barracks A — D, and Akisim NRA Barracks E —Z, on polling day two extra Polling Stations were created inside the Barracks while the first two were outside. Eventually the new un-designated Polling Stations were declared to be Polling Stations for wives of the Soldiers of Chum Barracks, which was outside Soroti Constituency. Apart from the designated Polling Stations of Akisim Barracks A — D and E — Z the other two extra Polling Stations had no Polling Agents and the Voters Register. Voters’ Cards originated from sources unknown to the witness.

James Oluka’s affidavit evidence was rebutted by affidavits of Omuge George William the Chief Administrative Officer who was the Returning Officer for Soroti Districts. He said that there were only three designated Polling Stations in Akisim Ward. These were Akisim Barracks A — D, Akisim Barracks F — Z and Akisim Barracks outside the Quarter Guard.

The affidavit of Omuge George William supports James Oluka that there were two Polling Stations in Akisim Ward designated as Akisim Barracks A — D and Akisim Barracks E — Z; and that, there were two others making a total of four. Oluka said that two of them were created on polling day. He was present in one of them as a Polling Agent and, therefore, was in position to know personally what happened on that day at Akisim Polling Stations. No doubt Omuge George William had the overall responsibility to supervise the election on polling day. A Returning Officer is unlikely to supervise a Polling Station closely.

Onen Francis was the Polling Agent for 1st Respondent at the Quarter Guard outside the Barracks Polling Station. He deponed in his affidavit in rebuttal of a date in April, 2001 that he had carefully read the affidavit of James Oluka. He did not refer to Oluka’s allegations that two new Polling Stations were created on the Polling day. With regard to the allegation that the two new Polling Stations had no Polling Agents he said that at the Quarter Guard outside the Barracks Polling Station, he was the 1st Respondent’s Polling Agent and one Oyuki was the Petitioner’s Polling Agent. The affidavit of Onen Francis does not in my view; properly answer the allegations in Oluka’s affidavit.

In the circumstances, I would prefer Oluka’s affidavit to those of Omuge George William and Onen Francis in this respect.

Another example of a new Polling Station was in Kagugube Parish, Kampala Central, Kampala District. In the gazetted list of 22-1 2-2000, there were six Polling Stations namely, Mr. Mukiibi’s Home, Kagugube, Kitamany’angamba, Kivvulu I, Kivvulu II, and NHCC Flats. But in the 11-03-2001, list, five of them had the same names as before but two were designated as Mr. Mukiibi’s Home (A — M) and Mr. Mukiibi’s Home (N — Z). This appears to have been the result of splitting old Polling Stations.

Mbuya Division in Nakawa Division in Kampala District is another example. In the gazetted list of 22-1 2-2000, Mbuya I and Mbuya II had 6 and 8 Polling Stations respectively. In the 11-03-2001 list, they had 10 and 8 Polling Stations respectively. Vincent Ebulu, the Petitioner’s Youth Co-ordinator for Nakawa Division proceeded to Mbuya Barracks with Polling Agents to over-see voting at the gazetted Polling Stations. He deponed in his affidavit of 23-03-2001, that while at Lower Mbuya at 7.30 a.m. he got to know that voting was being conducted inside the Barracks at 7 other Polling Stations at upper Mbuya. These were new polling stations inside the Barracks. He moved there and found that it was so. Consequently, he conducted the Petitioner’s head office and 5 Polling Assistants were sent to him escorted by Dr. Mukasa. This was because one Captain Ondoga, the Political Commissar of 1st Division, had chased away Ebulu and other Polling Agents he had mobilized to handle the crisis situation. Ebulu based his affidavit on knowledge and belief, but it appears that he only spoke about what he saw and observed. The Respondent’s chart does not indicate that Ebulu’s affidavit was rebutted.

According to the two lists, I have referred to above, there were four more Polling Stations at Mbuya I in the list of 22-12-2000. The list at Mbuya II appears to have remained the same as in the earlier gazetted list. In paragraph 15 of his Supplementary affidavit dated 9-4-2001 Mr. Kasujja said that the gazette indicated Mbuya Polling Stations outside the Quarter Guard. There were 12 Polling Stations for the soldiers outside the Quarter Guard due to the large number of soldiers. Annexture RB to the affidavit indicates 5 Polling Stations at Lower Mbuya and 7 at upper Mbuya which would still exceed the number in the list of 11-03-2001 at Mbuya I. That would tend to support the Petitioner’s case that on Polling day, more Polling Stations were added at Mbuya Parish than had been listed on 11-03-2001.

Other evidence for the Petitioner regarding new Polling Stations created came from several other witnesses and rebutted by equally many affidavits from the Respondents’ witnesses. For the Petitioner they included Hon. Winnie Byanyima, M/P/, Edson Bumeze, E. Bagenda Bwambale, Boniface Ruhindi, Ongee Mawino, and Perus Ogwok. Affidavits for the Respondents in rebuttal are from Rwakitavate, Hassan Galiwango, Zainabu Asiimwe, Mutabazi Pius, Hannington Byamukama, Nuwagaba, Geoffrey Okot, Ngomrom Presiding Officers, and Electoral Commission Presiding Officers. The evidence of the witnesses for the Petitioner as well as that in rebuttal from witnesses for the Respondents are not confined to matters of new Polling Stations. They are relevant to many topics, but for the present, I shall only look at the affidavits concerning new Polling Stations.

Hon. Winnie Byanyima M.P was a Member of the Elect Besigye Task Force. As such she traversed several parts of the Country to campaign for him as a candidate. In paragraph 11 of her affidavit dated 23-03-2001, she said that on 12-03-2001, she asked Ben Kavuya to check at the Barracks and he found that 4 new Polling Stations had been created in Mbarara Municipality. She found out that indeed new Polling Stations namely, Makenke I, Makenke II, Makenke Ill and Kabatereine had been created although the first three were actually located in Kashari County North of the border with Mbarara Municipality. This affidavit was deponed on the basis of knowledge of the deponent.

The Respondents’ summary of affidavits Chart does not appear to indicate that the affidavit was rebutted on this issue. The Hon. M.P’s evidence in this regard; therefore, remains un -controverted and accept it.

Edison Bumenze was a Monitor for the Petitioner for Bukonjo West Constituency for 8 Army Polling Stations in Kasese District. But instead of the 8 Polling Stations three more were added, to make a total of 11. The three extra Polling Stations were not disclosed to him as a Monitor till when the voting was coming to an end at 3.00 p.m., by which time most of the Army voters had cast their votes and left. There were no Polling Agents for the Petitioner at the three additional Polling Stations. Out of the 8 original Polling Stations, Kisebere Quarter Guard Polling Station in Kitholru Sub-County was shifted to Customs in Karombi Sub-County (where two of the new Polling Stations were created), and one Polling Station supposed to be at Karambi Gombolola Headquarters was shifted to Kanyabutumbi Quarter Guard. This affidavit was based on knowledge and belief, without disclosing the source of belief, but I have indicated above appears to be from knowledge. Zainabu Asiimwe, a Women’s Councilor for Kasese District Council, swore an affidavit in rebuttal of the one of Edson Bumenze. She said that on 12-03-2001, he saw Edson Bumenze at the offices of the Sub- County Chief of Kitholru at the time when the election materials arrived at the Sub-County Headquarters.

Immediately thereafter she proceeded to Kithobira Primary School Polling Station where she was registered to vote and she never saw Edson Bumenze again. She did not refer to Bumenze’s affidavit regarding new Polling Stations. It only denies as untrue Bumenze’s allegation that she threatened him with death. Another witness who mentioned Edson Bumenze in his rebuttal affidavit was Mutabazi Pius, the District Police Commander, Kasese. He said that Bumenze’s allegation in his affidavit that he was threatened with arrest and detention by one Major Muhindo Mawa it he did not stop campaigning for the Petitioner was not reported to the Police. In the circumstances Bumenze’s evidence that three Polling Stations were created on Polling day is not controverted. It must, therefore, be accepted.

Bagenda Bwambale Enock was an election Monitor for the Petitioner for Kasese District dated 20-03-2001. He said that at Hima main gate M- Polling Station, he noticed that there were two ballot boxes marked M — Z. When he complained to the Presiding Officer, Bob Kalenzi, one of the boxes was opened and found to be the correct one. The other one was found with Hima Main Gate A — L Polling Station materials contrary to what the label said. When the witness checked the A — L Polling Station, he found that the correct ballot box was there and voting was already in progress. The C.A.O. Hannington Syaluka withdrew the queried ballot box. When at Hima Main Gate U.P.D.F. Polling Station Bambwale noticed that instead of one ballot box, two were being used, he telephoned the C.A.O about the normally. The CAO informed him that Polling Stations had been increased from 6 to 11 on the morning of 1 2-03-200 1 by the 2nd Respondent. Due to the sudden change, the Petitioner did not have a Polling Agent for the second and additional ballot box at Hima Main Gate UPDF Polling Station. The Respondents’ summary of affidavits in the Chart indicates that Hannington Syaluka swore an affidavit in rebuttal of Bagenda Bwambale Enock’s affidavit but it does not indicate where it can be found.

Boniface Ruhindi Ngaruye, a Lawyer in private practice in Mbarara Municipality was a member of the Elect Besigye Task Force in Mbarara. He said in his affidavit dated 21-03-2001, that when he was on his way to Biharwe, he found a number of new Polling Stations at Makenke opposite 2nd Division UPDF Headquarters. They were Makenke A-J, Makenke A-N and Makenke O-Z, which had not been on the list handed over to him on 11-03-2001 by the Returning Officer, Mbarara, when candidates’ agents held a meeting with the Returning Officer in his office. He found voting in progress and there was no single agent for the Petitioner as none had been deployed there because those were newly created Polling Stations which had never been brought to the attention of the Petitioner’s Task Force. By the time he appointed the Petitioner’s agents for those Makenke Polling Stations, polling was about to close and the Petitioner’s Polling agents only witnessed the votes counting process. The deponent of this affidavit verily believed that the information regarding the newly created Polling Stations was concealed deliberately and not availed to the Petitioner’s Task Force in bad faith in so far as there were no credible reasons why the parking list availed to it on the eve of the polling day did not include these Polling Stations. The Respondent’s chart indicates that the affidavit of Boniface Ruhindi Ngaruye was rebutted by Asporo Kwesiga, but there is no indication where his affidavit can be found.

Ongee Marino’s assignment as the Petitioner’s monitoring agent in Kitgum District was to move around the District on polling day to ensure lawful voting and declaration of results. In the course of the day, at 2.00 p.m. he found that six new polling stations had been created and voting was conducted there, without the Petitioner’s Polling Agents at Pajimo Barracks 4, Pajimo Barracks B, Ngomoromo, A — E, Ngomoromo, F — N, Ngomoromo, O — Z and Malimu Abondios Wem. He deponed on the basis of his knowledge and belief, without disclosing the grounds of his belief. But all he spoke about appear to be what he saw and witnessed. The Chart indicates that Captain Nuwagaba, Geofrey Okot and Presiding Officers of Ngomoromo rebutted Ongee Marimo’s affidavit, but it does not show where their affidavits can be found.

Denis Odwok was a campaign agent for the Petitioner in Kitgum District. He deponed to the effect that he moved on a motorcycle to monitor polling in Luking and Padibe Sub-Counties. On information received, he went to Ngomoromo and found there three Polling Stations about which Ongee Marino deponed. The Uganda gazette of 1 9-02-200 1 did not list the three Ngomoromo Polling Stations in question. The only two gazetted Polling Stations in Lukung Sub-County were Nkelikongo (outside Quarter Guard) and outside Quarter Guard (Lukung). In those Polling Stations UPDF Soldiers were the persons conducting the election instead of the 2td Respondents officials. The affidavit was based on knowledge. The Chart indicates that the 2id Respondent’s Presiding Officers of Ngomoromo Polling Stations swore affidavits in rebuttal. But there is no indication where such affidavits can be found.

On the available evidence, there can be no doubt and I am satisfied that:

1.