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

“A” to Ongee’s affidavit, sending Ongee back to his duty and saying that all tallies must be checked by candidates’ agents. Ongee returned to the tallying center but the Returning Officer refused him to see the election results of each Polling Station. Ongee refused to sign the tallying sheets.

He and other agents of the Petitioner and agents of candidate Francis Bwengye wrote a letter to the Returning Officer of Kitgum District dated 13-03-2001 complaining about a number of election malpractices. The letter is annexture “B” to Ongee’s affidavit, listing six such malpractices.

Respondent’s Chart indicates that Ongee Marino’s affidavit is rebutted by Geoffrey Okot and Ngomoromo Presiding Officers, but it is not shown where their rebuttal affidavits can be found.

In his affidavit dated 23-03-2001, Hon. John Livingston Okello Okello, M.P. for Chua Constituency deponed that as Deputy Co-ordinator for the Petitioner, he held a rally at Palabek — Kal on 5-3-2001. Campaign agents for the Petitioner informed him that many voters on the Voters’ Register did not have Voters’ Cards especially those at Paula, which he visited personally. Some voters received cards but their names were not in the Voters’ Register. Numerous soldiers and their wives in Kitgum District were issued with at least two Voters’ Cards. For instance Onek John and Onono Kenneth. The former surrendered both his Cards to Okello Okello M.R He wrote letters to the District Registrar, of the Electoral Commission about such election malpractice and to Kitgum Returning Officer Mr. Alfred Ocen Lalur about exclusion of Ongee Marino from the tallying process.

The affidavit of John Okello Okello M.R is rebutted by one of Colonel Fred Tolit, Assistant Army Chief of Staff, dated 30-03-2001, with particular reference to the allegation that Colonel Fred Tolit was expected on 12-03-2001, to bring ticked ballot papers in favour of the 1st Respondent under cover of darkness, which is not relevant to the allegation of the Petitioner’s Polling agent. Ongee Marino’s allegation that he had been sent away from a tallying center or the allegations of soldiers being issued with two Voters’ Cards were not adverted to in the Colonel’s rebuttal affidavit.

The Respondents’ Chart also indicates that the affidavit of Hon. J. L. Okello Okello, M.R is rebutted by Maj. Okot Wilit, but it is not shown where that affidavit can be found.

Robert Kironde, a Dentist, was asked by the Petitioner’s Task Force to go with one Kawalya to witness counting and tallying of votes at the 2nd Respondent’s Head Offices on 13-03-2001. In his affidavit of 19-02-2001, he said that the Deputy Chairperson Mrs. Flora Nkurukenda allowed them to enter. As Kironde wanted to make notes about the figures of the results being counted and tallied, Mr. Wamala No. 104 stopped him from taking any data and advised him to instead go to the International Conference Centre where the election results were being declared. On the first desk where election results were being received from the Communication room, the first person to receive results was Hon. Charles Bakkabulindi the workers’ M.R who was a well known Chief Campaign Agent for the 1st Respondent.

In the Respondents’ Chart, Kironde’s affidavit is shown as rebutted by “EC” but where the rebuttal can be found is not shown.

Sulaiman Miiro’s affidavit of 20-03-2001 has already been referred to in this judgment. He was the Petitioner’s Monitor in Bukooli North Constituency. He deponed, inter alia, that some calculations on the declaration result forms were inflated and very inaccurate, to with Kamango Polling Station Nkavule Parish, Kapianai, Buwolya Makoova Mayuge Parish, Budhaya Polling Station to mention but a few. The affidavit of Ms. Nays Nabagesera, the Bungiri RDC, dated 3-4-2001 which rebutted Miiro’s affidavit did not refer to his allegation of declaration of results being inflated.

The Petitioner’s learned Counsel Mr. Mbabazi, linked alleged falsification of results to the grounds of the Petition under consideration. He gave examples of incidences where the number of votes cast exceeded the number of ballot papers issued. For instance the Petitioner in his affidavit supporting the Petition said that the declared election result indicates that 109.86% and 105.34% of voters’ voted in Makindye East and Mawokota, respectively. From the two Constituencies a total of 991 votes were cast in excess if registered voters.

In his reply to the alleged falsification of results, Mr. Kabatsi submitted that if there were any errors in the declaration of results for Makindye and Mawokota, the two examples given by Mr. Mbabazi, it was human errors, not a deliberate act to falsify results. So with Makindye declaration of results, Mr. Kasujja said in his affidavit supporting the 2nd Respondent’s Answer, in response to paragraphs 7 and 8 of the Petitioner’s affidavit.

In his affidavit dated 27-03-2001 supporting the 2nd Respondent’s answer, Mr. Azziz Kasujja Chairman of the 2’ Respondent, denied that the number of votes cast in Makindye County East were more than the number of registered voters. What was shown in the table under paragraph 7 of the Petitioner’s affidavit, he said, was an arithmetical error due to a faulty original tallying which was corrected as a letter of 20-03-2001 from the Kampala Returning Officer shows. Mr. Mbabazi calls this election falsification done only by the 2nd Respondent’s officials after the election was completed.

Regarding Mawokota County South, Mr. Kasujja said in his affidavit that the results tabulated in paragraph 7 of the Petitioner’s affidavit were not correct. The correct results as shown by Mr. Kasujja’s annexture 4 votes cast was 27,234 out of 40,887, registered voters.

As evidence shows, these figures in Mr. Kasujja’s affidavit were not verified by any candidates polling agents. They were compiled by the 2nd Respondent’s officials after 12-03-2001 and are, therefore one sided, just as the ones which are said to have been the result of arithmetical errors in tallying the figures.

Some declaration of result forms show that more votes were cast that the number of ballot papers issued. In Bukade Primary School Polling Centre, Buwologoma Parish, Bukanga Sub-County, Iganga District, total votes cast for candidates, total ballot papers rejected, and spoilt ballot papers, add up to 651 yet 650 ballot papers were issued. The name and signature of the agents of the Petitioner are missing on this declaration of results form. But the ones for the Respondent and another candidate are filled in.

87 declarations of results forms from 19 Districts are attached to the Petitioner’s affidavit, dated 6-4-2001, in reply to the 2nd Respondent. The Petitioner’s affidavit in question provides a detailed account of what appear to be falsification of results from 29 Districts. Such falsifications are evidence of ballot stuffing in ballot boxes. The affidavit is too long for a complete evaluation in this judgment. After I have scrutinizing the figures they show, I find that most of them contain excess numbers of votes cast over the numbers of ballot papers issued at the respective Polling Stations. This could be the result either of arithmetical errors by the officials who filed the forms, as Mr. Kasujja deponed, or that more votes were actually counted as having been cast in excess of the number of ballot papers issued to the Polling Stations, in which case it would be the outcome of falsified results. If there were no such discrepancies the total number of votes cast including spoilt or invalid ballot papers plus unused ballot papers should be equal to the number of ballot papers issued at the Polling Stations.

In his supplementary affidavit in reply, dated 9-4-2001, the 2nd Respondent’s Chairman, Mr. Kasujja said that it is not true that in Polling Stations in 19 Districts the number of votes cast exceeded the number of ballot papers issued, but there were few and isolated cases of arithmetical errors, and the Petitioner has named a mere six stations in his affidavit of 6-4-2002. I find that the numb r is not so because in paragraph 19 of that affidavit, the Petitioner listed 19 Districts in which, he said, votes cast exceeded the number of ballot papers issued. In paragraphs 33 to 38 inclusive, he listed another 6, making a total of 25 Districts. He gave detailed figures in respect of Bukholi TCA Polling Station in Mbale District, Kamengo (M — Z) Polling Station in Masindi District; Mayembe Upper Prison C, in Mpigi District, Ishaka Adventist College in Bushenyi District; 2(L — Z) Polling Station in Mbarara Municipality, Mbarara District; and Buyego Trading Centre, Mayuge District.

If the discrepancies in the figures were arithmetical error,, I do not understand why they would be so many and spread in so many Districts. The only inference I draw from this is that many declaration of results forms falsified results.

After a careful consideration of all the affidavit evidence adduced by the Petitioner, by the 1^st and 2nd Respondent’s, I am satisfied and find that the Petitioner has proved to the required standard grounds 3(1) (g) and (p) that:

(a) Contrary to sections 32 and 32 of the Act, on polling day during 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 safe guarded.

(b) Contrary to section 32 of the Act, the 2nd Respondent’s agents/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 progress.

I also find that in many polling stations the declaration of results forms compiled by the 2nd Respondent’s servants/agents after the announcement of the result of the elections falsified the election results.

I shall consider the effect of this non-compliance in the result of the election later in this judgment.

This also disposes of ground 3(1) (y) (v) of the Petition.

Denial Of The Right To Vote:

Mr. Mbabazi submitted that some voters were denied the right to vote in various ways. He did not, however, relate such denial to any specific ground of the Petition or to any Provisions of the Act. However, the Constitution is clear on this. Article 59 provides:

“(1) Every Citizen of Uganda of eighteen years of age or above has a right to vote.

(2) It is the duty of every Citizen of Uganda of eighteen years of age or above, to register as a voter.”

The provisions of Section 19 of Act 3/97 are also to the effect that every registered voter has a right to vote in the Parish or Ward where he or she is registered. To prevent any registered voter from voting is therefore a violation of his or her constitutional and statutory right. In his submission, Mr. Mbabazi gave examples of persons who were prevented from voting by being arrested and detained by the Military; being chased away from Polling Stations; their names in Voters’ Register being ticked by other person or persons etc. He gave examples and named people prevented from voting. Hon. Okwir Rwaboni M.P (hereinafter referred to as “Rwaboni” for the sake of brevity) was a prominent example.

The Solicitor General Mr. Kabatsi did not submit in reply to the Petitioner’s allegation that some registered voters were denied the right to vote. I have already found that Rwaboni’s statutory declaration dated 23-03-2001, made in London, is admissible evidence in these proceedings. Part of his declaration relevant to the matter at hand reads as follows:

“(5) That on the 20th February 2001, 1 was unlawfully and violently arrested at Entebbe International Air Port, beaten and sat upon in a military Police Pickup, in the presence of Journalists. Diplomats and colleagues and illegally detained at the Chieftaincy of Military Intelligence (IMI), Headquarters in Kampala. During the arrest I sustained injuries to my legs and chest and I am still undergoing treatment for these injuries.

(6) That from 4.00 p.m. on the 20th February to 5.00 p.m. on 21st February 2001, I went through a grueling six hour interrogation session, conducted by seven officers of the Chieftaincy of Military Intelligence.

(7) On the 21st February 2001, I had a telephone conversation with H.E. Museveni when he was in Gulu where he tried to convince me to leave what he called “the wrong group” and promised to allow me to leave the Country and to take some of my interests while abroad.

(8) That on the 21st February 2001, I was again forced to make a statement disassociating myself from the Presidential Candidate Dr. Besigye Task Force, this time the presence of Ma). Gene. Elly Tumwine. Maj. Gen. Tinyefuza, Ma). Mayombo; a statement I later read to press at Parliament building that same evening.

(9) That between the 21st of February 2001, I was under virtual house arrest at my residence in Bunga, guarded by officers and men of the UPDF under the guises of “State Protection” against my own candidate and his supporters.

(10) That on 27th I had to leave the Country as I felt my life was in danger and presently living in the United Kingdom with my family.

(11) Consequently I did not vote in the 12th March 2001, Presidential elections which is a denial of many constitutional right.”

Lt. Col. Noble Mayombo is the Ag. Chief Military Intelligence and Member of Parliament (hereinafter referred to as “Mayombo” for the sake of brevity). He swore an affidavit in rebuttal of Rwaboni’s statutory declaration. He said that Rwaboni was arrested on 20-02-2001, at Entebbe Airport on his (Mayombo’s) instruction. He was arrested for his own safety. Following the arrest, arrangements were made, at Rwaboni’s request and on the 1st Respondent’s directive, for Rwaboni to travel to the United Kingdom.

There is no doubt that, Rwaboni’s arrest led to his having to go out of the Country and being unable to vote in the 12-03-2001 Presidential Election.

Evidence was adduced to show that other people were also denied the right to vote.

Fazil Masinde, of Butongala Village Kityerera, Mayuge District, was the Petitioner’s Monitor in 7 Polling Stations (which he named). At Butangala Polling Station the Presiding Officer, one Mudaki was directing people openly to vote for the 1st Respondent at the time voters were being issued with ballot papers. Saina Mukade and Zaibo Hambo did not vote because they found that others had received ballot papers and cast votes in their names.

Fazil Masinde’s affidavit was rebutted by Gesa Ahmed, in his affidavit of 2-4- 2001. Gesa of Kuluuba Village, Mayuge District is the GISO of Kityetera Sub- County and the L.C.2 Kaluuba Parish. He said that Fazil Masinde’s affidavit is false. While Gesa’s affidavit is relevant to other malpractices, he did not refer to voters who did not vote because their names in the Voters’ Register had already been ticked.

Mudaaki Emmanuel also rebutted Fazil Masinde’s affidavit. In his rebuttal affidavit of 4-4-2001, he said that he was the Presiding Officer of Butangala Polling Station. He did not know Masinde because the latter was not at that place as a Polling agent for any of the candidates.

Mudaaki denied that he directed voters to vote for the 1s Respondent because he was faithfully exercising his duty as the Presiding Officer. He also said that he did not receive any complaint that Saina Makade and Zaibu Gimbo did not vote. I have three comments on Mudaaki’s rebuttal affidavit. First Masinde did not say that he was a Polling Assistant at Butangala. He was a monitor for seven Polling Stations, of which Butangala was only one of them. Secondly, the fact that Mudaki did not receive any complaint does not mean that Mukade and Gimbo voted. Thirdly, I would not expect Mudaki, a Presiding Officer, to admit that he committed the various election offences which Masinde alleged against him. In my view it is not in the least surprising when Mudaaki said: “The voting exercise proceeded very smoothly and transparently.”

In the circumstances, I reject Mudaaki’s denial, and I accept Masinde’s affidavit as true.

I have already referred to the affidavit of Ronald Tumusiime in another context. He swore in his affidavit that one of the many election malpractices he saw at Mparo Polling Station was that voting was not secret. Shortly after 8.00 a.m. the Presiding Officer announced that voting was not going to be secret, and that all ballot papers should be ticked at the Presiding officer’s desk. The Respondent’s supporters were being allowed to vote for the dead such as V. Konyenda and for the absent such as Allen Asiimwe. On the other hand some of the Petitioner’s supporters such as Ivan Byamukama found their names already ticked as having voted. The Respondent’s Chart does not indicate that Ronald Tumusiime’s affidavit was rebutted. His evidence is not controverted. I accept it as true.

Tumwebaze Arthur of Kiyoora Nisakyera, Ntungamo District, was the Petitioner’s Polling agent at Kataraka Primary School Polling Station. In his affidavit of 21- 03-2001, he said that persons who never appeared at the Polling Station for voting such as Bangirana Livingstone and Tukahiirwa Arthur had their names ticked in the Voter’s Register as having voted when they never voted because their cards were used by other persons who impersonated them.

Kanyima Nilson of Kishoreno Village, Nyakyera, Ntungamo District, rebutted Tumwebaze’s affidavit. In his affidavit of 4-4-2001, Kanyima said that he was an Election Constable at Katakaka Primary School Polling Station, where he was also a registered voter. He knew Tumwebaze Arthur. The latter’s allegation that he asked him to sit 20 meters away from the Polling Station was false. The allegation that he was giving out Voters’ Cards was also false. Kanyima did not refer to Tumwebaze’s allegations that two voters did not vote because others had impersonated them and used their voting cards which, therefore, remains uncontroverted I accept it as true.

Tukahirwa David, of Nsambya Village, Busujju parish, Kakindu, Mubende District, and his wife Nabacwa were registered as voters and received their Registration Certificates on 2201-2001. In his affidavit of 19-03-2001, he said that on 26-02-2001, they went back to collect their Voters’ Cards. They were told by the officials concerned that their cards had not yet been brought. On 11-03-2001, the officer issuing cards, one Kirumira informed them that the cards had not yet arrived from Mityana. On 12-03-2001, Tukahirwa and his wife went to the Polling Station and found Kirumira acting as the 1st Respondent’s agent. The Voters’ Cards were being issued by the Presiding Officer, one Mutwe. They joined the queue. When it was his turn to receive the Voter’s Card he and his wife were told to stand aside. The presiding Officer retained their Registration Certificates. The exercise of issuing cards and voting continued together. Tukahirwa, his wife and two other people, continued to wait for their Voters’ Cards. At 5.00 p.m. voting closed. Tukahirwa and his wife complained to the presiding Officer and requested to be given their Certificates but the presiding Officer refused consequently they never voted.

Kirumira Edward rebutted Tinkahirwa’s affidavit. In his affidavit of 4-4-2001, he said that he was the 1st Respondent’s Polling agent at Nsambya Village Polling Station. He denied that he acted as an official who issued cards. As a candidate’s agent that was not his role. The voting process was conducted in an. orderly manner, and he did not hear or see anybody complaining to the Presiding Officer Bernabas Mutwe. This affidavit does not refer to Tukahirwa’s complaint that he and his wife were never issued with Voters’ Cards. Kirumira did not say why he should have known if Tukahirwa or anybody else had complained to the Returning Officer.

Barnabas Mutwe also rebutted the affidavit of Tukahirwa. In his affidavit, which has no date, except the year 2001, he said that he was the presiding Officer at Nsambya Polling Station. He remembers that one Nabachwa had a Registration Certificate, but no Voter’s Card, and her name was not on the Voters’ Register so he disallowed her from voting. In all there were 4 people whose names did not appear in the Register of voters and he did not allow them to vote.

I find that Barnabas Mutwe’s affidavit corroborates Tukahirwa’s evidence that they did not vote, but for different reasons. Mutwe said that they did not vote because their names did not appear in the Voters’ Register, but Tukahirwa’s reason .is that because they were not issued with Voters’ Cards. Whatever the reason, it is evident that Tukahirwa, his wife and two unnamed other voters were denied the right to vote by the 2nd Respondent.

Mulindwa Abas, of Kobolwa Zone, Kibuku Parish, Pallisa District was the Petitioner’s monitoring agent for Kibuku Parish. In his affidavit of 21-03-2001, he said that at all Polling Stations he went to, there were voters who could not vote, because they were told that their names had been ticked and that they were not supposed to vote. His affidavit is based on knowledge and belief. Belief is irrelevant because all he talked about was what he had observed.

Malik Kitente rebutted the affidavit evidence of Mulindwa Abasi. The rebuttal affidavit of 5-4-2001 is not relevant to the allegation that voters did not vote because their names in the Voters’ Register had already been ticked. Mulindwa’s evidence that some people were denied the right to vote was, therefore, not controverted. I accept it as true.

Ekadu Sam of Soroti Senior Quarters, was registered as a voter at Golf Course Polling Station B. In his affidavit of 20-03-2001, he said that on 9-3-2001, he found that his name was in the Voters’ Register, but his Voters’ Card was not there. He was told that since his name was in the register he could vote using the pink form he was given when he registered. But on Polling day, his name had disappeared from the Voters’ Register. He was thus denied the right to vote. 169 other persons did not vote at that polling Station alone. The affidavit was based on knowledge and belief, but since all he said was what he saw, belief is irrelevant.

Omuge George William was the Returning Officer for Soroti District. In his affidavit of 1-4-2001, rebutting the affidavit of Ekudu Sam, he said that he did not receive any complaint, verbal or written from any agent of a Presidential Agent or an aggrieved person of Golf Course Polling Station B that about 169 people were denied opportunity to vote because their names were missing on the Voters’ Register. In my view there would appear to be no good reason why Ekudu Sam should have fabricated what he said in his affidavit. Further the fact that Omuge George William as the Returning Officer did not receive any complaint about 169 persons not having voted because their names were not in the Voters’ Register does not necessarily mean that the incident did not happen. A Returning Officer’s electoral function covers a whole District. Omuge George William did not say in his affidavit that he visited the Polling Station in question. In the circumstances I believe Ekudu Sam’s evidence and reject Omuge’s denial in this regard.

Bukenya Samuel of Kinawataka Village, Mbuya, Kampala, was a registered voter at Mbuya Lower (A-C), Mbuya Parish, Nakawa Kampala District. He said in his affidavit of 23-03-2001, that he was appointed the Petitioner’s National Election Task Force and was campaign agent. On 11-03-2001, at 6.30 p.m. he was arrested at Kinawataka Trading Centre by armed soldiers in a car covered with the 1st Respondent’s election posters. He was detained at Mbuya Military Barracks, where he was asked which candidate he supported and intended to vote for. He replied that it was the Petitioner. Thereafter he was detained until 21 -03-2001, when he was released at 11 .00 a.m. On the Election Day he did not vote. During his arrest, he was beaten, tortured and bundled into a car, which torture and beating continued while he was in detention in the Barracks.

In the Respondent’s Chart the name of Bukenya Samuel does not appear; nor is it indicated therein whether his affidavit evidence was rebutted.

Ogule Nicholas of Soroti, registered as a voter at Kichinjaji Polling Station. In his affidavit dated 20-03-2001, which he swore because he was a registered voter, he said that his name did not appear in the register. He kept on checking up to 11-03-2001. On Polling day he and 40 other people were denied the right to vote because their names did not appear in the Voters’ Register although they had Voters’ Cards. He also said that on Polling day, the Aide of Hon. George Michael Mukula, MP, came driving a motor vehicle No. UDE 745 to Kichinjaji Polling Station, campaigning and giving people, especially women, soap and salt and enticing them with the symbol of thumps up. This was a well- known election symbol for the 1St Respondent. Richard George Onyait, an Aide to Mukula MP, rebutted Ogule’s affidavit, denying that he went to Kichinjaji Polling Station driving motor vehicle No. UDE 745. He also denied that he campaigned using the