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

The 2nd Respondent did not publish in the Gazette a list of Polling Stations in each Constituency 14 days before nomination of the Presidential Candidates in this election. This was non-compliance with section 28(1) of the Act. On the contrary the 2” Respondent’s published lists of Polling Stations in the Gazette of 19-02-2001 and another list on 11-03-2001. Many new polling stations not on the list of 11-03-2001 were also created on 12-03-2001. This was well outside the period stipulated in s.28 (1) of the Act.

The 2” Respondent’s gazetted list of 11-03-2001 contained new Polling Stations that had not been gazetted before totaling 1176. The Petitioner’s. Case was that these were newly created Polling Stations. The 2nd Respondent’s case was that no new Polling Stations were created by the list of I 103-2001 or on the morning of 1203-2001. Only old Polling Stations were spilt- In my view, whether they were old Stations which had been split or new ones, they ought to have been published within the time required by law because, as in Kasujja himself said in annexture R. 6 to his affidavit of 27-03-2001, “for this purpose Polling agents for each candidate should be appointed in the split Polling Stations-”

For all practical purposes split Polling Stations required to be treated as Polling Stations and required Voters Rolls for Polling Stations, polling agents1 ballot boxes, ballot papers, Voters’ Cards, Polling Assistants or other necessary Polling Officials, counting of the ballot papers announcement and tallying of results etc.

As evidence shows the Petitioner did not have polling agents in such Polling Stations or had them appointed when it was too late to serve any useful purpose. Consequently the Petitioner’s interest was not safeguarded in such Polling Stations with regard to the polling process.

(c) The Petitioner was not supplied with an official copy of the Voters Register, contrary to section 32(5) of the Act.

Paragraph 3(1) (q) of the Petition. Persons without Voters’ Cards were allowed to vote.

“3(1) (q). That contrary to sections 29(4) and 34 of the Act the 2nd Respondent’s agents/servants in the course of their duties allowed people with no valid Voters’ Cards to vote.”

The 2’ Respondent made a reply to this ground of the Petition as follows:

“15. In reply to paragraph 3(1)(q) of the Petition, the 2nd Respondent avers that it allowed people whose names appeared in the Voters’ Register but had not been able to obtain Voters’ Cards to vote after being properly identified, and that the number of such people was small and insignificant and the 2nd Respondent did this lawfully, in exercise of powers and functions given it by law.”

The 2nd Respondent did not say in his reply what law entitled it to allow voters whose names were in the Register but without valid Voters’ to vote. It was the 2nd Respondent’s duty to cite the law which allowed it to do this.

This ground in my view, is related to the one concerning failure by the 2nd Respondent to compile and publish as required by law the Voters’ Rolls iii the Constituencies and at the Polling Stations, because Voters’ Cards could only be properly issued to Voters whose names were on the Voters’ Register and Voters’ Rolls. If the exercise of compilation and publication of the same was messed up, as I have found was the case, then the exercise of issue of Voters’ Cards was proportionately affected.

Section 29(4) of the Act provides:

“Any person registered as a voter and whose names appear in the Voters’ Roll of a Polling Station and who holds a valid Voters’ Card shall be entitled to vote at the Polling Station.”
Section 34 of the Act:

“(1) A voter wishing to obtain a ballot paper for the purpose of voting, shall produce his or her Voters’ Card to the Presiding Officer or Polling Assistant at the tale referred to in paragraph

(a) of sub-section (6) of Section 30.”

Section 2(1) of the Act says:

“Voters’ Card” means a Voter’s Card issued under section 27 of the Commission Act to a voter whose name appears in the Voters’ Register.”

It is the duty of the 2nd Respondent to design, print and control the issue of Voters’ Cards whose names appear on the Voters’ Register.

In his affidavit of 2303-2001 filed together with the Petition, the Petitioner said in paragraph 47 thereof that on 1 203-2001, he heard Mr. Aziz Kasujja the Chairperson of the 2 Respondent announce on the radio that voters who had no Voters’ Cards were allowed to vote.

In his affidavit of 27-03-20o1 filed with the Respondents’ answer, Mr. Kasujja said in paragraphs 1, 15 and 16 thereof that a Meeting was held on 11-03- 2001 with candidate’s agents to discuss the issue of registered voters who had not obtained Voters’ Cards in time and the meeting resolved that the second Respondent should take a decision on the matter. Thereafter, the 2nd Respondent made a decision that registered voters who had not obtained Voters’ Cards be allowed to vote if they could be properly identified at the Polling Stations. He then made announcements, annexture R.7 to Mr. Kasujja’s affidavit. The announcement was a press release to the effect that as the Constitution gives to every Ugandan Citizen of 18 years and more the right to vote, all Citizens of that age and whose names appear on the Voters’ Register but have no Voters’ Cards should be allowed to vote if they can be identified by the Polling officials and Candidates agents at their respective Polling Stations.

In his affidavit in reply dated 6-4-2001, based on his own knowledge, the Petitioner deponed that the Voters’ Rolls for each Constituency was never published in the Gazette by the 2 Respondent. For purposes of the 2001 Presidential election such Rolls were to be used for purposes of identifying voters at the election. On the basis of such Registers, the 2nd Respondent issued Voters’ Cards to entitle voters to vote, but not all the people were issued with Voters’ Cards although their names were on the Register. In the result, people eligible to vote as of right under the Constitution were denied the right to vote, while others not qualified voted in the 2001 Presidential election.

In his submission on this ground of the Petition Mr. Mbabazi referred to Mr. Kasujja’s briefing to the media, representatives of the candidates and Ambassadors on 11-03-2001’ (Annexture 6 to the affidavit of Mukasa David. Bulenge dated 1-4-2001), in which Mr. Kasujja said that issuing of Voters’ Cards started on 1-3-2001 and ended on 1 003-2001. He also referred to Bulenge’s affidavit and others.

In reply Mr. Kabatsi contended that the 2nd Respondent was merely giving affection to the article 59(1) of the Constitution when it allowed persons whose names were on the Voters’ Register but had no Voters’ Cards to vote. Those not registered did not vote even if they had Voters’ Cards. That is the effect of the Chairperson’s press release and paragraphs 15 and 16 of his affidavit, the learned Solicitor General contended. He then said that the Petitioner has not informed the Court the number of persons who did not vote, because they did not have Voters’ Cards. It is necessary to know the numbers before the Court can decide that the result of the election was affected.

In my view, the right to vote under article 59(1) of the Constitution may be exercised by a Citizen of Uganda of the age of 18 years or more if his or her name appears in the Register of voters and has a Voter’s Card. A Voter’s Card is essential because it is a means of identifying the holder of the card as the person whose name appears in the Voters’ Register. It is mandatory for a voter to possess a Voter’s Card before he or she can exercise the right to vote. It is a condition precedent. For that any other reasons Mr. Kasujja, the 2nd Respondent’s Chairperson issued a statement dated 1 902-2001 (annexture 11 to the affidavit of Mukasa David Bulonge dated 1-4-2001). It was headed “Guide-lines for polling Presidential Elections, 2001.” t stated, interalia

“2.0
1 ……………………….

2. A voter wishing to obtain a ballot paper for the purpose of voting shall present his or her Voter’s Card to the presiding Officer or polling assistant (section 34(1).

3 …………………………..

4. A person who holds a Voter’s Card but whose name does not appear on the Voters’ Roll for that Polling Station shall not be allowed to vote.

5. Only those voters with valid Voter’s Card will be allowed to vote if their names appear on the Voters’ Roll for that Polling Station.”

In the circumstances, it was illegal for the 2nd Respondent to allow persons without Voters’ Cards to vote even if their names were on the Register of voters. The argument that by doing so, the 2nd Respondent thereby gave effect to article 59(1) of the Constitution is, with respect, not valid. A provision of the Constitution cannot be implemented by breaking other laws.

The Petitioner filed in Court a list of witnesses whose affidavit evidence is relevant to the matter at hand. The list contains 14 names. Since the 2nd Respondent concedes that it authorized voters without Voters’ Cards to vote if their names were in the Voters’ Register I shall took at some of the evidence to see what actually happened in practice and to gauge the extent of the noncompliance with sections 29(4) and 34 of the Act

Sulaiti Kalule of Habitat Village, Kasese Town Council, was a Monitor for the Petitioner in Kasese District. One Robert Kanunu went and handed to him 16 Voters’ Cards which had been given to him (Kanunu) to hand over to other people to be used illegally. Kule noted the names on the Cards in his note book. The Chart indicates that Kule’s affidavit was rebutted by Kugonza Charles but it is not shown where the rebuttal affidavit can be found.

Fazil Masinde’s affidavit has already been referred to in another context. He was the Petitioner’s Monitor for seven Polling Stations in Mayuge District, which he named. On polling day when he was moving to Bubali Polling Station, Masinde saw the LCI Chairman, Mr. Isa Bwana, distributing Voters’ Cards to people who had not registered as voters and instructing then’ to vote for the 1st Respondent.

The LC.I Chairman of Butangalo, Mrs. Kadiri Mukoda was also distributing cards to non registered voters. Isha Nabinye and Baina Nakagolo were two of them. The GISO, Ahmed Gesa, was also issuing Voters’ Cards and directing people to vote for the 1 Respondent at Busakira B Polling Station and threatening them that if they did not vote for the 1st Respondent, they would see. Gesa Ahmed, Defence Secretary LC2 Kaluuba Parish and the Gombolola Internal Security Officer (GISO) rebutted Masinde’s affidavit. In his affidavit of 2-4-2001, he said that what Masinde said was false. He was not an agent of the 1st Respondent; nor did he hold any official position in the electoral process. He did not issue any Voters’ Cards. He was neutral during Presidential Election.

I do not find Gesa Ahmed’s affidavit convincing. It was a blanket denial. He did not say why Masinde should have fabricated his story with such details. Mudaaki Emmanuel also rebutted Masinde’s affidavit. He was the presiding Officer of Butongala Trading Centre Polling Station. He deponed that he did not know Fazil Masinde since he was not at Butongala as a candidate’s agent. He denied having directed people to vote for the 1st Respondent. The voting exercise proceeded very smoothly and transparently according to him and at the end candidate’s agents signed the declaration forms. Mudaaki’s affidavit did not refer to Masinde’s allegation about distribution of Voters’ Cards. Masinde was not a Polling agent. He was a monitor moving around. Mudaaki did not say why Masinde should have fabricated this detailed story. As an electoral official, Mudaaki would be expected to deny any wrong — doing as a presiding Officer. He would be expected to say what he said namely that election exercise proceeded smoothly and transparently even if it did not.

Idd Kiryowa is from Lwebitakuta, Mawogola, Sembabule District. In his affidavit of 19-03-2001’ he deponed that he and one Tafayo Haussein were Polling agents for the Petitioner at Nabiseke Polling Station. At about 1.00 p.m. on information received, he went behind the building housing the Polling Station. He went there and found one Nabosi distributing Voters’ Cards. Nabosi was the 1st Respondents campaigner. Nabosi sought to give Kiryowa money so that he would conceal what he had seen. He refused, and lodged a complaint with the presiding Officer but to no avail.

Kakuba Nathan rebutted Kiryowa’s affidavit. He was the Respondent’s Polling agent at the same Polling Station, where he also voted. He denied that he was requested as Kiryowa alleged, and that he was requested by Nabosi to approach Kiryowa for any reason what so ever. He could not have gone behind the building since Polling agents were supposed to keep at the presiding Officer’s desk all the time during voting exercise. Kakuba did not refer to Kiryowa’s allegation of distribution of Voters’ Cards. I find that in the circumstances, the evidence to that effect is not rebutted and stands uncontroverted.

Guma Majid Awadson of Lumuga Parish, Yumbe District, in his affidavit of 9-3-2001, said that he was the Petitioner’s election Monitor for several Polling Stations. When he went to Aleapi Parish, Ojinga Polling Station he saw one Mawa a member of the i Respondent’s District Task Team and campaign Manager distributing Voters’ Cards to people whose names were not on the Voters’ Register and who did not have Voters’ Cards.

Drasi Ali, LCIII Chairman of Kuru Sub-County, Yumbe, rebutted Guma’s affidavit. His rebuttal affidavit IS relevant to multiple voting at Aliba Polling Station, not to Voters’ Cards distribution at Ojungo Polling Station.

Maliki Bukoli is from Doko Cell, Namatata Ward, Mbale Municipality. In his affidavit of 2103-2001, he said that on 1 203-2001, at 11.00 a.m. he went to Namatata Polling Station and cast his vote. On his way back he found a crowd of people gathered around a man at the Catholic Church Polling Station. He noticed that one Mukonge a man he knew had been arrested with 5 Voters’ Cards. He was arrested by the Police. Mukonge said that he was the Respondent’s supporter and that he was going to vote for the 1st Respondent. Maluku Bukoli’s affidavit is not rebutted.

Ojok David Livingston of Doko Cell, Namatota Ward, Mbale Municipality was the Namatata Task Force for the Petitioner on 12-03-2001. While on duty with Massa Musa, a fellow monitor for the Petitioner, they were sent to Doko, Nsambya Polling Station by Mr. Mayambala that there was a lady distribUtifl9 Voter’s Cards. They went with a Policeman to the lady’s home. She was Nakintu whom Ojok knew. The Police asked her. She admitted that she had received 50 Voters’ Cards from Councilor Wafula Charles of the Industrial Area Division to distribute them to the Respondent’s supporters. She had distributed 11 to her fellow supporters of the 1st Respondent. She produced the balance of 39 Voters’ Cards and gave them to a Police Officer. She also handed over a bottle of Jik, Cussons Imperial Leather Soap and rug which were intended to wash and remove marking ink from thumbs of people who had voted so that they could vote again.

Wafula Charles, a Councilor of Industrial Area, Mbale rebutted Ojok’s affidavit. In his affidavit of 24-2001, he deponed that it was not true as Ojok alleged that he gave Nakintu Margaret 50 Voters’ Cards to distribute to supporters of the 1st Respondent.

He never received Voters’ Cards from any person for distribution to the 1st Respondents’ supporters. Wafula did not say why Ojok should have invented his detailed story. His is just blanket denial which is not credible I prefer Ojok’s evidence to that of Wafula.

Wafidi Amir, of Nawuyo Village Bumutoto Parish, Bungokho Sub-County, Mbale District, was a Monitor for the Petitioner’s Task Force. His work was to monitor election in Mutoto. On 12-03-2001, when he was at a taxi stage the motor vehicle of the RDC, Hassan Galiwango, parked at the stage. The County Chief for Nambale Mutoto ran to Galiwango who had alighted from the motor vehicle. The two talked and left. Wafidi proceeded to Museto. At the same time, the local Movement Chairman also passed by on a motor cycle driven by one Sonya David towards Musoto, where Wafidi was proceeding to. At the local railway crossing, Wafidi and his own driver noticed Sonya David carrying a Black Hand bag. Wafidi grabbed the bag to see its contents. This was because he and colleagues had got information that plans were afoot to rig the election. As he and David Senya struggled for the bag, it got torn. More than 50,000 Voters’ Cards, official stamps, and Declaration Forms for Bungokho sub-County poured out of the bag.

Wafidi raised an alarm, which was answered by a crowd, who assisted Wafidi to hold Sonya and retained the bag. The Movement Chairman and the Sub- County Chief arrived at the scene and tried to rescue Sonya, but in vain. The crowd held Sonya until the Police arrived; and he and the bag were taken to Mbale Police Station. Wafidi’s complaint at the Police Station was registered SD.1L8/12/03/2001. Two days later Wafidi saw Sonya at large, in their area. The affidavit was based on knowledge and belief. Belief is irrelevant since what Wafidi said was based on what he witnessed.

Geoffrey Wanda rebutted Wafidi’s affidavit. He denied that on 12-03-2001, he was in the company of Sonya David as Wafidi alleged, or that he went to Musoto on that day. His Polling Station was Bukasa Kija Primary School where he cast his vote, and he did not engage in any electoral malpractice. Wanda did not say whether he was the local Movement Chairman as alleged by Wafidi. Wanda’s rebuttal affidavit is blanket denial. He did not say why Wafidi should fabricate such a detailed account of what he said he witnessed, including Police reference of his report at Mbale Police Station. I accept Wafidi’s evidence as true and reject Wando’s denials.

Kakuru Sam of Karuhinda Village, Kijubwa, Kirima Sub-County, Kanungu District, was the Petitioner’s Task Force Chairman for Kirima Sub-County. On l7-3-2001, when he went to collect his own Voter’s Card from Karulinda Polling Station, he found there one Nshekanabo receiving Voters’ Cards. He was given a stack of about 30 Voters’ Cards. When Kakuru asked why, he was told that it was none of his business. The affidavit was based on knowledge and belief. Since what he said in the affidavit in this regard was what he saw, belief is irrelevant.

Kakuru’s affidavit was rebutted by Capt. Atwoki B. Ndahura. Most contents of the Captain’s affidavit related to evidence from many witnesses alleging harassment and intimidation by the Presidential Protection Unit (PPU) in Rukungiri. Regarding Voters’ Cards, he said that he was not aware that Zikanga was found with Voters’ Cards. He did not refer to Nshekanabo who Kakuru said he had found with a stack of Voters’ Cards, which evidence consequently stands unrebutted.

Kako Medard of Kashambya, Ruhandagazi Parish, Kambuga Sub-County, Kanungu District was a registered voter at Komajune, and a Polling Monitor for the Petitioner. I have already referred to his evidence in another context. About Voters’ Cards, he said that as soon as the Cards arrived at his Polling Station, officials including a Mrs. Busingye, initially refused to give him his Card, but did so later after a long quarrel. With others at that time he personally witnessed the LCI Chairman of Koko’s Cell picked many Voters’ Cards saying he would distribute them to the owners.

Koko Medard’s affidavit was rebutted by Constain Atwoki B. Ndahura who was the Commander of the PPU in Rukungiri at the material time. He said in his rebuttal affidavit that he was not aware of the allegation that one Zikanga was found with Voters’ Cards. This is irrelevant to Koko’s allegation that it was LCI Chairman he found picking Voters’ Cards, unless, of course, the LCI Chairman was Zikanga. The Captain does not say why he should have been aware of the incident. He does not say that he was at Kamajune when Koko was there or at all. Consequently, I do not find that Koko’s evidence in this regard is rebutted. In the circumstances, I accept it as true.

It would take a lot of time to consider evidence from all the 14 witnesses listed by the Petitioner on this topic.

What I have referred to above are samples of the evidence which, in my view, illustrates the actual practice and the extent of the malpractices on the issue of Voters’ Cards, which was widely spread throughout the Country.

In the Guidelines for Display of the Voters’ Register for Presidential Election, 2001, issued by the 2 Respondent’s Chairperson, Mr. Kasujja, which was undated, it was said:

“IV ISSUANCE OF VOTERS’ CARDS:

1. Voters’ Cards are to be issued to all registered voters whose particulars appear on the Voters Register.

2. Voters whose particulars have been crossed out from the Register during the display must not be issued with Voters’ Cards.

3. All Cards must be signed (thumb print) for in the column marked “CHECKED” on the Register, by the OWNERS on receipt.

4. Voters’ Cards which will not have been issued by the end of the display must be returned to the Commissioner along with the rest of the display materials”

These guidelines in my view were issued under section 26 of Act 3/97.

The evidence I have evaluated under the ground of the Petition under consideration obviously indicates that many Voters’ Cards were not issued in accordance with the guidelines issued by the 2nd Respondent’s Chairperson. Such Voters’ Cards were not received by the owners in person. Under section 26(1) of Act 3/7 it is the 2nd Respondent who designs, controls and issues Voters’ Cards to voters whose names appear in the Voters’ Register. It follows that all Voters’ Cards can be issued out only by the 2nd Respondent or its officials and/or servants mainly Presiding Officers or Polling assistants. The Voters’ Cards which the evidence we have considered show were distributed by persons other than the 2nd Respondent’s officials were in the possession of persons who were not the legal owners of the Cards and were issued out not in accordance with the law.

In the circumstances the 2nd Respondent was liable for the acts of its officials such as Presiding Officers or Polling assistants who issued such Voters’ Cards.

The persons which the evidence shows were in possession of the Voters’ Cards illegally committed offences under section 26(2) and section 28(3) (a) of Act 3/97.

In the circumstances, I am satisfied that the Petitioner has proved to the required standard, and I find that:

“Contrary to sections 29(4) and 34 of the Act the 2nd Respondent and its servants/agents, in the course of their duties, allowed people with no valid Voters’ Cards to vote.

I shall consider the effect of this non-compliance on the election together with the effect of other non-compliance later in this judgment.

Paragraph 3(1) (g) and 3(1)(p) - Polling Agents chased away.

“3(11(g) That contrary to the provisions of sections 32 and 47(4) and (5) of the Act on the Polling day during the polling exercise, the Petitioner’s Polling Agents were chased away from many Polling Stations In many Districts of Uganda and as a result the Petitioner’s interests at those Polling Stations could not be safeguarded.”

“3(1) (p). Contrary to section 32 of the Act, the 2nd Respondent’s agent/Servants the presiding Officers failed to prevent the Petitioner’s Polling agents from being chased away from Polling Stations and as a result the Petitioner’s agents were unable to observe and to monitor the voting