Nambooze Betty Bakireke v Bakaluba Peter Mukasa and Another (Election Petition No. 14 of 2006) [2007] UGHC 6 (19 January 2007)

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Nambooze Betty Bakireke v Bakaluba Peter Mukasa and Another (Election Petition No. 14 of 2006) [2007] UGHC 6 (19 January 2007)

.RTF of original document

THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
ELECTION PETITION NO 14 OF 2006
NAMBOOZE BETTY BAKIREKE:::::::::::::::::::::::::::::::::::: PETITIONER
VERSUS
1)BAKALUBA PETER MUKASA]
2)THE ELECTORAL COMMISSION]:::::::::::::::::::::::::::::::RESPONDENTS

BEFORE HON. LADY JUSTICE M.S ARACH-AMOKO

JUDGEMENT

National elections were held on the 23^rd February 2006. The petitioner contested with the 1^st Respondent, and one Kawadwa Dawood Katamba for the Parliamentary seat of Mukono North Constituency (MNC). They contested on DP, NRM and UPC tickets respectively.

The 2^nd Respondent organized the election. At the end of the election, the results declared by the second Respondent indicated that the 1^st Respondent had won by 22, 680 votes. The petitioner was second with 22,232 votes and Kawadwa third, with 627 votes. The results were published in the Uganda Gazette of 27^th March 2006. The first Respondent has since resumed that seat in Parliament.

The petitioner contends that the 1^st Respondent was not validly elected and filed this petition for an order setting aside the election on several grounds set out in paragraphs 3 to 8 of the petition. Broadly, the petitioner alleged that:-
The Electoral process in Mukono North Constituency was not conducted in compliance with the provisions and principles of the Constitution of the Republic of Uganda, 1995, the Electoral Commission Act, Cap 140 and the Parliamentary Elections Act, 2005.

The failure to conduct the election in compliance with the provisions and principles of the electoral laws affected the final result in a substantial manner, and benefited the 1^st Respondent.

The 1^st Respondent personally or through his agents, with his knowledge, consent or approval, committed numerous election offences and illegal practices.

The petitioner seeks from this Court orders that:-
a)

The 1^st Respondent was not validly elected as an elected Member of Parliament for Mukono North Constituency.
b)       The election of the first Respondent as directly elected Member of Parliament be annulled and instead the petitioner be declared the winner of the Parliamentary election for Mukono North Constituency.
c)       In the alternative but without prejudice to the fore going, a fresh election be conducted in the said constituency.
d)       The Respondents pay the costs of the petition.
e)       Such other remedy available under the electoral laws as the Court considers just and appropriate.

The petitioner deponed a lengthy affidavit in support of the petition. Other affidavits were filed by witnesses testifying to the various allegations contained in the petition. They were bound in volumes I to IV.
The first Respondent in his answer denied engaging in any illegal activities or any electoral offences. He also denied that the elections were characterized by irregularities and malpractices and contended that if there were any malpractices or irregularities, then they were not enough to affect the result of the election.

He contended that he was dully and validly elected and the result reflects the will of the people of Mukono North Constituency. He further contended that even if the Court were to find that there were any malpractices that affected the results, no evidence was adduced that the petitioner won the election. He also filed an affidavit in support of his answer and a supplementary affidavit dated 18/9/2006. He filed twenty other affidavits in support of his answer by various witnesses. They were bound in volumes I and II.

The second Respondent in its answer also denied any malpractices alleged against it in the petition. It contended that the election was held under conditions of fairness and freedom. It was impartial and did not support any candidate. In the alternative, the second Respondent contended that if there was any non-compliance with the provisions or the principles of the PEA, that non-compliance did not affect the elections in a substantial manner. The second Respondents’ answer was accompanied by the affidavit of E.C Chairman, Engineer Dr. B. Kiggundu, plus over thirty (30) affidavits sworn mainly by polling officials including the Mukono District Returning Officer, one Makki Ibrahim.

At the scheduling conference, the following facts were agreed by the parties:

1) The election, the date and the place.
2) The scores:

1^st Respondent -22,680.
Petitioner -22,232.
Kawadwa -627.

The agreed issues were:-
1(a) whether there was non compliance with the provisions of the PEA, 2005 and the principles governing the electoral laws in Uganda in the parliamentary elections of Mukono North Constituency conducted on the 23^rd February 2006, by the second Respondent, and,
(b) If so, whether the non compliance affected the result of the said election in a substantial manner.

2).Whether the first respondent committed any illegal practices and or offences either personally or by agent, with his knowledge and consent or approval.

3).What remedies are available to the parties.

The agreed documents were:-
-All affidavits and documents annexed there to .They were also all considered read, by agreement of the parties at the commencement of the hearing.

The grounds upon which the election of a member of Parliamentary may be set aside are specified in section 61(1) of the PEA. Although it was not set out in the petition, the grounds upon which the petitioner wishes this Court to set aside the elections of 1^st Respondent in the instant petition those are clearly those set out under section 61(1) (a) and (c) which reads:-

“61. Grounds for setting aside election
(1)

The elections of a candidate as a member Parliament shall only be set aside on any of the following grounds if proved to the satisfaction of the Court-

(a) Non-compliance with the provisions of this Act relating to elections, if the Court is satisfied that there has been failure to conduct the election in accordance with the principles laid down in those provisions and that the non-compliance and the failure affected the resulting in a substantial manner.
(b)……………………………………………..
(c)That an illegal practice or any other offence under this Act was committed in connection with the election by the candidate personally or with his or her consent or approval, or
(c)…………..” (underlining is for emphasis).

It is settled law that the burden of proof in an election petition lies upon the petitioner who is required to prove every allegation contained in the petition to the satisfaction of the Court.

Subsection 3 of section 61 of the PEA 2005, provides that the standard of proof required to prove an allegation in an election petition is proof
upon the basis of a balance of probabilities.

The degree of proof is also well settled. It is higher than that which is required in an ordinary civil suit because of the importance of the subject matter and the gravity of the allegations often contained in the election petitions. Court will there fore in this petition, just like all previous ones, analyze and evaluate the evidence bearing in mind these principles.( See: Col. Rtd Dr Besigye Kizza vs. M. Y. Kaguta and the E.C, Election Petition No. 1 of 2001 (Supreme Court ); Hon.Mukasa Anthony Harris vs. The E.C E.P No. 6/o6.(Musoke Kibuuka J.).

ISSUE NO 1: Whether there was non-compliance with the provisions and principles set out in the PEA.
All allegations relating to this issue are set out in paragraph 5 of the petition.

The law is set out in the PEA. The principles were summarized by Odoki C.J in E.P No. 1 of 2001 at P.39 and applied by this Court in similar petitions including Babu Francis -vs- E. Lukwago and Anor- E.P No. 10/06 at page 41-42. They are;
-The election must be free and fair. (The overriding principle).
-The election must be by universal adult suffrage, which underpins the right to register and to vote.
-The election must be conducted in accordance with the law and procedure laid down by Parliament.
-There must be transparency in the conduct of the elections.
-The result of the election must be based on majority of the votes cast.

The C.J at page 40 of the same judgment; that Elections are the highest expression of the general will. They symbolize the right of the people to be governed only with their consent”

At the international level, Articles 21 and 25 of the Universal Declaration of Human Rights 1948 and of the UN Convention on Civil and Political Rights 1966 recognize the rights of all citizens to take part in the government of their country directly or through freely chosen representatives.

Our Constitution the supreme law of our land incorporates those principles in article 1(4) which reads:
“The people shall express their will and consent to be governed through regular free and fair elections of their representatives or through referenda.”

At page 41, His Lordship further observed that:-
“An election is the mechanism whereby the choices of a political culture are known” These choices should be expressed in ways which protect the rights of the individual and ensure that each vote cast is counted properly. An electoral process which fails to ensure fundamental rights and citizens before and after the election is flawed.
------------------------------------------------------------------------
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To ensure that elections are free and fair, there should be sufficient time given for all stages of the elections, nominations, and campaigns, voting and counting of votes. Candidates should not be deprived of their right to stand for elections, and citizens to vote for candidates of their choice through unfair manipulation of the process by electoral officials. There must be leveling of the ground so that the incumbent or government ministers and officials do not have an unfair advantage.

The entire election process should have an atmosphere free of intimidation, bribery, violence, coercion or any thing intended to subvert the will of the people. The election procedure should guarantee the secrecy of the ballot, the accuracy of counting and the announcement of results in a timely manner. Electoral law and guidelines for those participating in the elections should be made and published in good time. Fairness and transparency must be adhered to in all stages of the electoral process”. (underlining is for emphsis)

The petitioner alleges that those principles were grossly violated. The allegations are contained in paragraph 5(a) to (l) and paragraph seven of the petition.

1) Disenfranchisement of votes.-
The petitioner pleaded in paragraphs 5(a) and (l) that contrary to section 19(3) of the Electoral Commission Act, the second respondent disenfranchised voters by deleting their names from the voters roll and by denying the petitioner’s supporters the right to vote.

The petitioner further pleaded under paragraph 5(l) that contrary to section 34(3) and (5) of the PEA, the second Respondents officers in connivance with the first respondents’ agents denied the petitioner’s ‘open supporters the right to vote by denying them the right to check their names on the voters register or roll for purposes of being issued with ballot papers.

The two sections read:

‘19. Registration of voters.
(1)Any person who………………………………
..……………………………………………..
(2)No person shall……………………………….
……………………………………………….
(3) Subject to this Act, a voter has the right to vote in the parish or ward where he or she is registered.”

“34. Procedure for handling ballot paper to voter.
(1)……………..
(2)……………..
(3)Where a person does not have a voters card but is able to prove to the presiding officer or polling assistant that his or her name or photograph is or are on the voters register, the presiding officer or polling assistant shall issue him or her with a ballot paper.
(4)……………..
(5)Subject to section 39, a person shall not be permitted to vote at a polling station unless the persons’ name appears on the voter’s roll of that polling station.
(6)…………………….”

To prove the allegation under 5(a), the petitioner averred in paragraph 7 of her supporting that on polling day, she received several complaints from her agents that many registered voters who were her supporters and holders of voters cards were unable to vote because their names did not appear on the voters roll. The petitioner repeated his averment in her additional affidavit in Paras 2, 3, 4, 5.

She averred that in Seeta parish, Goma sub county her voters had voters cards or registration certificates indicating that they were supposed to vote at Gwafu 1 and Gwafu 11 polling stations, but the two polling stations were not physically there. That on 23^rd January 2006, (on polling day), she notified the second Respondent about the absence of the said two polling stations, but no step was taken to address the situation. She attached a copy of the letter addressed to the DRO as annexure ‘T’. She further averred that she wrote on 23^rd June 2006 to the second Respondent requesting for a voters register for 2006 Parliamentary elections for Gwafu 1 and 11 polling stations, Seeta parish , Goma sub-county , but to date, the same has not been availed. A copy of the letter is annexed as ‘U’.

Other deponents in respect of Gwafu 1 and 11 are:
1) Makubuye Wasswa –(vol1 p.86). He stated that he went to vote on polling day but found no polling station I the name of Gwafu 1. He moved from one polling station to another in Seeta parish but everywhere he went, he was told that his name was not on the register. As a result, he did not vote for the petitioner, the candidate of his choice for the said seat. A Copy of the card No. 09279896 issued by E.C on 22/4/02 was attached.

2) Nakate Nsobya (pg.89 vol 1). She stated that she went to Gwafu village the place she was supposed to vote from but found no voting activity going on. She moved from one polling station to another trying to trace Gwafu 1 polling station but failed. She also failed to vote for her candidate, the petitioner. A copy of card No 09279827 also issued on 22/01/02 was attached.

(3)Gombe Yusuf- No. 08088483 (copy attached issued on 22/4/02. Found no polling station in the name Gwafu 1. He tried to find his name at the nearby polling stations but failed to trace it.

4) Takuwe Vincent- Gwafu1. (Pg 19vol2 card No. 091617359, issued on 22/4/02 Same story.

5) Ayub Khan Gwafu 11.(P.28 vol 2) card No. 08088327copy issued on 22/4/02.Same story.

6). Matumba Peter – Gwafu 11 (Pg 46 vol 2) No. 08088185. He stated that he found no polling station. The Presiding officer told him that his name was not on the register. He did not vote for the petitioner, the candidate of his choice.

7) Kisaka Josephine (pg 86 vol 2). No 08088185, found no polling station in the name Gwafu 11. She tried to find her name at the nearby polling station but failed to trace it therefore failed to vote for the petitioner, her choice.

8) Kisaka (pg 89 vol 2) Gwafu 11 Card No. 08088144- same story as (7).

9) Bukenya Fred (Pg 105 vol 2) Gwafu 1 Card No. 0961720. Same as No (7and and 8).
In Para 6 of its answer, the second Respondent specifically denied allegations of disenfranchisement and contended that all voters had the opportunity to check their material particulars on the register and to rectify any anomalies during the period of display.

Eng. Kiggundu deponed in Paragraphs 4-7 of his supporting affidavit that to the best of his knowledge, the second Respondent updated the voters register between 29^th Sept.2005 and 30^th October 2005. It again displayed the said voters register between 22^nd Dec 2005 and 17^th January 2006 for purposes of giving all eligible persons the opportunity to cross-check the particulars of their voter information in preparation for the elections. Persons who found any anomaly with their voter information were given an opportunity to correct such anomaly prior to polling day. Eligible persons who had registered as voters who found their names missing and wanted to vote were given the opportunity to fill the forms to include their names on the register.

Makki Ibrahim the Returning Officer filed an affidavit dated 31/7/06. In reply to the petitioners affidavit in support. He denied the allegation and averred that all persons who appeared on the register were allowed to vote. He swore a second affidavit on 20/9/06 in reply to the petitioner’s additional affidavit (sworn on 30/8/06). In response to para 3, he replied that he is not aware of the contents and no such complaint was filed in his office.

In response to Para 4, he replied that a parking (sic) list containing the polling stations was issued through the district party offices. There was however no copy of gazette attached or affidavit from any district party office or official that such list was received.

In response to Para 5, Makki averred that all the gazetted polling stations for the purpose of elections had accompanying registers for purposes of voting. He however made no mention of letters ‘T’ and ‘U’.

Andrew Songa the election official in charge of the voters register stated in his two affidavits (No. 8 and 29), names of the complainants were on the voters register during the polls held on the on 23/2/06. Annexture ‘A’ to his affidavit is a list which indicates that their names were not deleted from the register. That there was no disenfranchisement.

According to annexure ‘A’, the names of the complainants from Gwafu 1 and 2 were appearing at the following polling stations;
1)

Makubuya Wasswa -09279896- Seeta-Baggala.
2)       Nakate Nsobya-09279827-Seeta parish, Baggala.
3)       Gombe Yusuf- not on list.
4)       Takwe Vincent 09617359-Seeta parish -        Ntinda 1.
5)       Ayub Khan-08088327-Seeta parish-Sekatawa’s junction.
6)       Mutumba Peter -08088185-Seeta-Sekatawa’s junction.
7)       Kisaka Josephine-08088456-Seeta Sekatawa’s junction.
8)       Bukenya Fred –Seeta parish –Ntinda 1.

During cross-examination, Makki was asked and he admitted that Gwafu is not among the polling stations. He stated that they did not have any people registered to vote at that polling station. That he was not sure if there was anyone in MNC with voter’s cards reading Gwafu 1 and Gwafu 2. He admitted that he did not carry out a search to find out if there were any such people, although he had read the petitioner’s letter where she complained of people being disenfranchised at Gwafu 1 and 11, he answered the complaint it is in his affidavit. He stated that Gwagu 1 and 11 did not exist among the gazzetted polling stations.

The petitioner notified the second Respondent about the absence of the said polling station well in time, at 11 am on polling day the 2^nd Respondent took no step to inform them that he had been posted to other polling stations.

Makki was silent on this issue in both affidavits; however, during cross-examination and re-examination, he admitted that Gwafu 1 and 11 did not exist among the gazetted polling stations in Mekong North constituency.

Makki’s second affidavit that he is not aware as no such complaint was filed in his office is a general denial. When he was referred to the letter dated 23^rd Feb 2006, Annexure ‘T’ to the petitioner’s additional affidavit. He replied: ‘I am not seeing this document for the first time. I have responded to it.’ The relevant part of the letter said:
‘The District Returning Officer Mukono District.

RE: GWAFU1 AND GWAFU11 POLLING STATIONS AND
MISSING NAMES ON REGISTERS
“We have just learnt that a number of people in Seeta parish, Goma sub-parish Mukono North were issued with voters cards indicating that they are to vote at Gwafu 1 and Gwafu 11 polling stations.

We have discovered that both polling stations do not exist on the ground and voters are stranded. We wish to request you to urgently intervene in this matter. Most of the affected people are our supporter’s .Please note that we are talking about these two polling stations with over 1000 voters”

The letter bears the stamp of the office of the District Registrar Mukono District indicating that it was received on 23^rd /2/06. Although Makki says he responded to it, no copy of the response was produced before this Court. The court thus finds that the petitioner complained as averred to the returning officer and he took no steps.

Makki’s reply to paragraphs 3and 4 of the petitioner’s averment to the effect that a ‘parking’ list for all polling stations in the district was issued through the district party offices for purposes of election is unsupported by any concrete evidence. No such list was produced before this court from any of the party offices and no party official has filed any affidavit as proof of receipt of such a list.

His averment that polling stations were gazetted and Gwafu 1 and II are not among them, is also not supported by any concrete evidence. No such gazette was produced before this court to prove that the polling stations in MNC were gazzetted and that Gwafu 1 and 11 were not on the Gazette. The evidence of Songa Andrew is equally weak. A number of the complainants such as Makubuye Wasswa deponed that:-
‘On polling day 23^rd of February 2006, I went to vote but I found no polling station in the name of Gwafu 1 poling station. That I moved from one poling station to another in Seeta parish but everywhere I was told my name was not on the register.’

Songa says he has perused their affidavits and averred that the persons mentioned on the list in Annexture ‘A’ to this affidavit were onthe voting register during the polling held on 23^rd February 2006’ I have perused Annexure ‘A’. It is a list of names including the names of all the complainants who have sworn affidavits in respect of Gwafu 1 and 11 except Gombe Yusuf. I do not find it useful as it has no title and its origin is unknown. It is not on the second respondents Letter Head. It is not indicated anywhere nor is it a page from the voters register. I have thus disregarded it for the reasons given. Consequently the complainants’ evidence remain unrebbutted, and I accept their evidence that when they did not find the two polling stations, they moved from station to station and were told their names were not on the register. As a result they did not vote for their candidates the petitioner.

Section 35(5) of the PEA provides that;
“(5) Subject to section 39, a person shall not be permitted to vote at a polling station unless ones name appears in the voters roll for that polling station”

After perusal of the evidence on this point, the court finds that the allegation that a number of voters who were issued voters cards to vote at Gwafu 1 and 11 did not vote because they were told on polling day that their stations were non - existent is proved.

The Court is satisfied from their evidence that they were denied the opportunity to vote for their candidate, namely the petitioner as a result of the removal of the two polling stations by the 2^nd Respondent. Article 59 of the Constitution casts an obligation on the state to ensure that all Ugandans who qualified to vote, vote. The EC is charged with that duty under Article 61 of the Constitution.

The other category of voters who were allegedly disenfranchised are those voters who alleged that they went to the polling station and were openly told by the presiding officers that they were not on the voters register after the presiding officers hurriedly looked through the registers or at times, did not look at the register at all. The deponents included;

                                                  VOLUME 1

Name                                         Polling Station                              Page
1) Bumpeje Fred                            Wakiso                                      Pg 38.
2) Sekiyemba Mutwalibi                Wakiso                                      Pg 41.
No 09198859.
3) Mussaja Alumbwa Mukaya        Buliika                                     Pg.44.
   (No. 09198859)
4) Isabirye Fred                             Seeta 111                                 Pg.47.
    (No. 09196228)

He stated that he later on found his name on register during LC111 Polls on 10/3/06 and was allowed to vote.

5) Kayanga Gideon                           Bulika                                    P.g 50
     (No 09177652)
6).Mubiru Sulaiman                         Bulika                                    P.g 53.
     (No 09179080)
7) Bujingo Patrick                             Bulika                                   Pg. 56.
     (No. 09177440)
8) Kamagu Irene                              Wakiso                                  Pg.59.
    (No. 09178504)
9) Nabakka Hadija                            Bulika                                    Pg.62.
    (No. 09179358)
10) Nalwadda Rose                           Wakiso                                  P.g 65
     (No. 09178941)
(b) Ssekikubo Samuel                         Seeta 1                                  Pg.68.
     (No.08088271)

He also stated that his name was on the register during the LC111 polls in March 2006 and he was allowed to vote.
12) Kintu Musa Wakiso Pg.71.

(No.09178547).

13) Kambuyu Herbert Bulika Pg.74.

(No.09177045)

14) Senfuma Patrick Wakiso Pg.77.

(No.09178877)

15) Namungo Disan                         Wakiso                               Pg.80.
16) Nalule Fatuma                            Seeta 111B                          Pg.85.
17) Nakibule Sophia                         Buyoba                                Pg.92.

(No.02694396)

18) Kitandwe J. Fisher Misindye Pg.95.

(No. 09221528)

19) Nabisubi Deborah Mukono Academy Pg.98.

(No. 12875414)

20) Kitenda David Joggo

(No.09221241)

21) Magala Vincent Serunjogi. Seeta 11 Pg.104.

(No.09280714).

22) Namutebi Juliet Wakiso Pg.107.

She stated that her name appeared on the register as “Namutebi Julia” during the display of the voters register. She pointed out the anomaly to the Returning Officer who promised to rectify it, but he didn’t when she went to vote, she was refused on the ground that her name was missing thereon.
23).Kimera Bashiri Wakiso Pg.110.

(No. 09178518)

VOLUME 2

Name Polling station Page.

23) Wasswa Patrick Bajjo. Pg.8.

(N0. 11943419)

24) Ssonko Charles Bajjo. Pg.10.
25) Nabukenya Alison Bajjo. Pg.12.

(No. 04016511)

26) Wamala Edward Bajjo Pg.17

(No.09277939)

27) Ntege Amos Kimuli Nabutti Pg.22.

(No. 09187791)

28) Mayengo Jackson. Ntinda Pg.25.

He stated that he was told that his name was missing during the Parliamentary election yet during LC 111 elections held on 10/5/06, found his name on the register at the same station, and voted. He was an open supporter and campaigner of the petitioner.
29) Mukiibi Daniel. Seeta 1V Pg.34.

(No. 01670685)

He said that he insisted that the polling officer checks his name because it had appeared on the register during the display of the voters’ register. The polling officer refused and told him not to waste her time.
30) Kabitto Medd Kyuku                  Seeta IV                                Pg.37.
He was also told not to waste other voter’s time and ordered to leave.
31) Safari David                                 Seeta 111B                           Pg.40.
(No.09280741)
He was also told not to waste other voter’s time and was ordered to leave.
32) Nalubega Sarah                           Misindye                              Pg.55.

(No 09221016)

33) Sekaggya John Bosco Seeta 111B Pg.58.

Stated that when he presented his voters card to the polling officer, the polling officer without checking his name on the voters register, told him that his name was not there and that he should go and look for it at other nearby polling stations. He was an open supporter of the petitioner.

34) Najjuma Regina Seeta 111B Pg.61.

(No. 09281176)

35) Ddumba Robert Seeta Ntinda Pg.64.
36) Lubega Vincent Mukono Academy Pg.80.

(No.09173889).

Stated that he had earlier checked his name and found the same during the display of the voters register by the Electoral Commission.
37) Ssekandi Livingstone Seeta 11B Pg.107

(No. 09197126)

He insisted, because his name had appeared on the voters’ register during the display but the polling officer refused and told him not to waste other voters’ time and ordered him to leave.
38) Kigozi Ivan Seeta 11 A Pg.113.
No. 09279609.

Also stated that his name also appeared on the voters register during the display but the polling officer refused and told him not to waste other voters’ time and ordered him to leave.

The petitioner also stated in paragraph 2 of her additional affidavit that she received several complaints from her supporters who had voters cards or registration certificates but were had been denied a chance to vote on the ground that their names did not appear on the voter rolls. The relevant part of her letter annexure ‘T’ says in the last paragraph that:-

In addition a number of our supporters especially in Goma sub county, are reporting to our office complaining that despite their possession of voters cards, they are being sent away as presiding officers are claiming that their names are not on the voters register. It is now 5 hours down the voting time, if you do not make immediate arrangements for these voters, we shall hold you liable for the disenfranchisement of our voters.

Please act quickly,
Yours,
Namboze Betty Bakireke.
CANDIDATE”

In rebuttal, the Returning Officer Makki in his affidavit dated 20/9/06 denied that he received any complaint from the petitioner. However he admitted during cross-examination and the evidence on record proved that the letter was received in his office, yet he took no action.

Kiggundu’s affidavit is also a general statement since he was not on the ground on polling day at the various polling stations. It is therefore inconceibable that he can state with certainty the events that took place at the polling stations complained of.

Talenga Nathan the polling officer at Academy, Kakooza (A-M)swore two affidavits, the first one is dated 20/9/06 in support of the second Respondent’s case.(No. 28). He denied the allegations.

The second one is dated 25^th September 2006 in support of the petition. He retracted his earlier evidence and stated that he actually turned away over 53 people away who had come to vote because, although they had voters cards, their names were not on the register. He stated that many of the people whom he turned away bitterly complained loudly that their names had been deliberately deleted from the register because they were open supporters of the petitioner. One such person was Vincent Lubega.

Namatovu Carol (No. 7) The polling officer at Bajjo polling station, in reply to Wamala Edward, Nabukenya Alison and Sonko Charles denied that she hurriedly checked the voters register or refused any registered voters to vote. Her version is which is repeated by several other polling officials, that when a person reported to the polling station to vote, she would ask for the voters card and then check thoroughly the voters register and even though no voters card was given to her, she would check for the voters particulars on the register thoroughly.

Andrew Songa-Election Officer in Charge of voters’ register, Central North Region in the Electoral Commission referred to earlier on, denied any disenfranchisement of voters by the second respondent. He attached a list of persons as annexure ‘A’ to his affidavits; and averred that the persons named on the said list were on the voters register during the polls held on the 23^rd February 2006. That the persons whose names appear in bold as spelt on the database differing from the names given on the affidavit. The tick appearing on the column status indicates that the voter appears on the register of indicated polling stations and their names were not deleted from the register.

I have already rejected that annexture. But even if it was authentic, the annexure has four columns headed: Registration No; Names; Parish: Polling station and Status.

The names of all the deponents are on the list except THAT OF Gombe Yusuf. All registration numbers tally. Apart from Wamala Edward, all the names also tally.Wamala Edward has ‘Wasswa’ added in bold indicating, according to the key or explanatory note at the bottom of annexture ‘A’ a slight difference. The parishes and polling stations are not exactly the same.e.g.Sekaggya John Bosco (no13) is indicated as being registered at Seeta Parish, Seeta Ntinda 11 polling station but his voter’s card (annexure A to his affidavit and at pg 60 vol. 2) indicates that he was registered as the same number, 09281088 at Seeta Parish but at Seeta 111 B polling station.

This means his name was transferred to Seeta Ntinda 11 from Seeta 111 B, if this piece of paper is anything to go by or it was just deleted from Seeta 111 B.

Nalubega Sarah, (No. 1) whose Registration Number is indicated on 09221016. Annexure ‘A’ indicates that she was registered at Masindye Parish: Lumuli polling station yet her card indicates Misindye parish, but Misindye polling station. The two polling stations are different. Lumuli polling station is number 01 and Misindye is no 06 under Misindye parish. (See tally sheet annexure ‘Y’)

Mukiibi Daniel –No 01670685(No. 5 of the list). The same registration number but different poling stations are indicated. Annexture A indicates Seeta: Seeta 1.
His card (P.34 vol 2) indicates Seta 1V.He says his name appeared on the voters register during the display of the voters register. When was it transferred to Seeta 1? Why was it deleted from Seeta IV after the display of the voter’s register?

Sekikubo Samuel. Registration number 08088271(.No. 30) the number and parish is the same but name appears in different polling stations.Annexture’A’ indicates Bugoba while the card indicates Seeta 1. (See pg 68 vol 1.)-

Nalule Fatuma – Reg no 10314588 (No. 35 on list). Annexure ‘A’ indicates Seeta 11 Ntinda polling station, while her card indicates Seeta 111 B polling stations. (See p.85 vol.1).

Nakibule Sophia –No 02694396(No. 42 on the list). Same registration number and parish, but polling stations differ.Annexture ‘A’ indicates Seeta 111 B polling station. Her card indicates Bugoba polling station. (See P. 92 vol 1).

Magala Vincent Serunjogi (No 46 on list) is indicated in Annexure ‘A’ as Seeta: Bugoba Mt Elijah. But his card indicates Seeta: Seeta 11 A polling station (See P.104 Vol 1.

Kabitto Medd Kyuku (No 4 on list) Reg no 09195987. Same parish but polling station differed. Annexture ‘A’ indicates Ntinda 11 while his card indicates Seeta 1V, Polling station (vol 2 Pg 39).

Najjuma Regina (no 14 on list) Reg. No. 09195987.Same parish but the polling stations differed. Annexture ‘A’ indicates Seeta Ntinda II, while her card indicates Seeta 111B. (See p.61 vol 2). She averred that during the display of the voters register, her name appeared at Seeta, Ntinda 1 polling station; which was subsequently to be her polling station. But when she went to Ntinda 1 polling station on polling day, and presented her card, the presiding officer told her that her name was not there. She could therefore not vote. (See P.61 Vol 2).

Nabirye Beatrice stated that she was supposed to vote at Seeta 111B polling station but her name was missing on polling day.Annexture ‘A’ indicates that she was registered to vote at Seeta Ntinda 11 polling station instead as no. 09281231.

The rest appear on the list and at the same parishes and polling stations. All their names have been ticked which imply according to the key or explanatory note that ‘the voter appears on register of indicated polling station and was never deleted from the register.’

The question is then, why the polling officials who stated that they checked the register thoroughly failed to find their names on the register if the names were not deleted as alleged, or did they find the names on the register but lied to the complainants that their names were missing from the register? Or did the check hurriedly as alleged? Why would a polling officer lie to a voter that his name is missing from the register ? Is it because some of them were well known supporters or voters of the petitioner as alleged? Did the polling officials then connive with the first Respondents’ agents to deny those open supporters an opportunity to vote? Which is the actual voters register for the polling stations named. Why is Songa instead adducing another list? What is the evidentiary value of the list versus the allegations made and the copies of the registration cards attached to the complainants affidavits as evidence of registration and respective polling stations? So much for Songa’s affidavit.

Lumala Frederick , the presiding officer for Misindye polling station averred that he was a display officer for Misindye polling station. In his reply, he noted that a number of people did not come to check the voters register. Voters’ cards were issued by the second respondent during the 2005 referendum and others during the display for the presidential and parliamentary elections. There were a few names that were not on the voter’s register.Nalubega Sarah was on the voters register and voted.

According to her voter’s card however, she is as registered as No. 09221016. She was registered to vote at Misindye polling station.
According to annexure ‘A’ of Songa’s affidavit on the other hand, she register appeared on the register as having been registered to vote at Limuli polling station.

According to the 2^nd Respondent’s own evidence therefore, she was not on the register of Misindye polling station on polling day ( According to Annexure ‘A’) therefore she could not have voted from Misindye as stated by Lumala.

Secondly, Lumala Frederick contradicts Songa. Lumala evidence that Sarah Nalubega was registered at Misindye. Songa says she was registered at Limuli and her name was not deleted from the register. These are major contradictions and cannot be ignored by this court. It actually confirms the lack of authenticity of annexure ‘A’ as a mere list concocted by the second respondents’ officials to explain the disenfranchisement of the complainants. Lumula admits that there were a few people who were not on the voters register. Who are those? Could it include some of the complainants? (Para 5 of the affidavit pg 15).

Siraj Tibandeke, (No.20), deponed that, he was the polling official at Seeta 1V polling station. He was also the display Offficer at Seeta Church of Uganda Primary School where the register of Seeta 1, Seeta 11A, Seeta 11B, Seeta 111B, Bugoba and Seeta IV were displayed. During the display many names were posted to the correct villages and /or parishes and a good number of people came to check their names and the register. It is true some people’s names were not on the voters register, but he advised them to check in other polling stations in the center after carefully checking his register.

He admits that some peoples names were not actually on the voters register. He also confirms that a good number of people actually did go and check their names on the register during the display period. He also confirms that many names were posted in their correct villages /or residences. If that is true, where did those names go on polling day? Why were then the names missing on poling day?

Apio Catherine says she was the polling officer Seeta 111 (pg 25) polling station and responds to Fred Isabiryes’ affidavit (pg.47vol 1) that the allegations contained therein are not true because; when a voter would come to the polling station, she would request for the voters cards or ask them to mention their names aloud before checking their names in the voters register. That she took time to check for each voters name and if she found that they were not on the register, she would direct them to check at the next polling station within the polling center of the School.

This is another general statement. It is not specicific and does not describe how she handled Isabirye’s case. Did she know him? Did she see him at the poling station that day? Did she request for his card? Or did she ask him to mention his name aloud before witting it in the register. If she indeed took time to check on each voters name did she check for Isabiryes name? Did she find it on the register or not/? Did he vote?

If Songa’s list is correct, then she should have found Isabirye’s name on the register. Isabirye is No.27 on the list. His name was actually on the register there during the elections and his evidence that he voted during the LC III election in March 2006 is not rebutted.

Assimwe Vincent deponed that he was the polling officer at Buliika polling station. His affidavit is response to: Kayanja Gideon, Mubiru Sulaiman, Bugingo Patrick,
Nabbaka Haddija, Kambugu Herbert, and Mussaja Alumbwa Mikagga.

He also stated that, on voting day, he carefully checked the voters register for names and particulars of all the persons who presented them selves to vote. If the name of the person appeared on the voters register, then he would allow them to vote. Persons presenting themselves to vote would first loudly mention their names of the agents to him. He allowed voters to vote even though they did not have voters cards, if they properly identified themselves and most of them had their photos appearing against their names. The allegation that he hurriedly checked the register and told them that their names were not on the register is therefore not true.

Again it is too general. Did he know the complainants personally? Did they go to vote on polling day? How did he handle them? Did their names appear on the voters register? Annexure ‘A’ to Songa’s affidavit indicates that their names were on the register on polling day. Did they come as agroup? Did he identify them? Did he find their names? Their affidavits attach copies of their identity cards bearing their photos. (See vol1.pg44- 62 and 74). Did he allow them to vote? If so where is the documentary evidence that they voted? All this is lacking.

Proscovia Namuganza. (pg 30) stated that she was the polling officer at Baggala polling station .She responded to the affidavits of Makubuya Wasswa and Nakate Nsobya and stated that all persons who presented their voters cards and appeared on the voters register were allowed to vote. There are some people who came with voters cards reading Gwafu 1, Seeta 11 and Seeta 1V and checked at her polling station and those with their particulars at Baggala polling station were allowed to vote. She had been informed by the Parish Chief and polling assistant that Baggala was a newly created polling station and she together with her poling assistant checked the register for everyone who went to vote at the polling station. She saw Nsombya at the polling station but does not recall if she voted.

This is also too general, and not specific to the complaints case. Did the two complainants present their cards? Did they vote? How did she handle them? Annexure’ ‘A’ indicates both Nsombya and Makubuya as registered at Seeta Baggala polling station, yet both their cards read Seeta Gwafu 1. Both of them aver that they moved from one polling station to another in Seeta parish , after they found the polling station called Gwafu 1,on polling day; but everywhere they went , they were told their names were not on the voters register. If their names were on the register under Baggale, why didn’t they find their names during the search? Did she know Wasswa personally? Did she find Nsobya’s name? Baggala was a ‘newly created polling station.’ When was it created? Before or after the display of the voters register? All those questions are not answered by her response.

Nababazi Maria Scovia (pg 32), ststed that she was the polling officer of Seeta 11 B polling station. She responds to the affidavit of Sekandi Livingstone. She averred that no voter was chased away from her polling station and that she instead advised whoever was not on her register to cross-check with the nearest polling station within the polling centre.

Did she know Sekandi? Did she see him on poling day? How did she handle his case? Did he vote? Was his name on the register? Ssekandi is no 21 on annexure ‘A’ to Songa’s affidavit; under Seeta 11 B.under No. 09197126.This information tallies with the context of his affidavit at paragraph 7 volume 2. This means he went to the correct polling station on polling day, but he didn’t vote.

Why didn’t Ms Mbabazi find his name on the register then if she was so careful? Why did she tell him that his name was not on the voters register? Ssekandi says he insisted that his name be checked again after the polling assistant had hurriedly looked at the register and had told him that his name was missing thereon because his name. It was appearing on the register during the display of the voters register, but she returned and told him not to waste the other voters time and ordered him to leave.

From the foregoing evidence, the Court finds that all the deponents in this category had voter’s cards. They were not allowed to vote because the polling assistants told them that their names were missing from the voter’s register. They were mostly the petitioner’s open supporters. Songa says that they were on the register, but has not adduced any evidence that they voted anywhere. Court is accordingly satisfied that a large number of registered voters, who were mainly supporters of the petitioner were disenfranchised in MNC, which contravened the provisions of section 19(3) of the EC Act as wells section 34 (3) of the PEA.

Intimidation
The petitioner pleaded in paragraph 5(b) that:-
b) Contrary to section 2(1) (e) and (f) of the EC Act, the second respondent failed to take measures to ensure that the electoral process in MNC was conducted under conditions of freedom and fairness when:
(i) The officers of the Uganda Peoples’ Defence Forces (UPDF) and other Para-military/ militia groups intimidated the petitioner’s supporters during polling, aimed at preventing them from voting the petitioner.
(ii) The petitioner was denied representation at some polling stations during voting, counting of voters and declaration of results of the poll.

Section 2(1) (e) and (f) does not exist. The correct section is, I believe, section 12(1) “12. Additional powers of the commission and regulation of ballot papers.
(1) the Commission shall, subject to and for the purposes of carrying out its functions under Chapter Five of the Constitution and this Act, have the following powers:-

(a)………………
(b)……………….
(c )………………
(d)……………………………
(e) to take measures for ensuring that the entire electoral 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 his Act or any other law”

The supporting affidavit says nothing on intimidation by UPDF/Paramilitary. No mention of the polling stations affected is also made. Other supporting affidavits include the one of:
Wafula Mangeni (p. 6 vol 1) paragraphs 1, 5, 6 and 7. He stated that he was the appointed agent of the petitioner stationed at Buyuki polling station on polling day.
At about 11.15, a.m a white pick up full of soldiers wearing UPDF uniforms, which he knows belongs to one Kefa Sengendo , a resident of Naalya I Kampungu, Mpoma Parish in Naama sub county and a staunch supporter of the 1^st Respondent came.
The said soldiers disembarked from the said vehicle and moved around the polling station, causing a stampede among voters. One of the said soldiers went to the voting line with Luke Mayengo whom he knew to be the agent of the 1^st Respondent and started telling voters to vote for the 1^st Respondent.

The other witness, Kakembo Jamil vol 2 P.6 deponed that; He is a registered voter at Academy/Kikooza (A-M) polling station and LC5 Councillor, Mukono Town council. When they approached the presiding officer to verify the names of the students of Greenville S.S on the register , a security officer, one , Frank Banana, a former DISO of Mukono who was carrying a pistol intercepted them and ordered that everyone in the queue had to vote whether they wanted it or not. Whereupon Bakireke called the director of the school on phone and the teacher who had led the students took them away.

Sengendo Moses pg 119 Vol 2, he deponed that: He is a registered voter and petitioners agent at Takajjunge polling station.. At 11am Mukasa Bakireke came with other three men and found a van belonging to Greenville S.S ferrying students who were being allowed to vote by the polling officer without first crosschecking their names. When they tried to intercept him, former DISO of Mukono, Banana Frank, threatened Mukasa Bakireke and group with arrest.

The affidavits talked of ISO - not UPDF / Paramilitary. ISO is not UPDF or paramilitary. The affidavit does not state that they were prevented from voting.

Mukasa Bakireke Henry (pg 99 Vol 2). He deponed that; he was an election monitor /supervisor of the petitioner during the said elections. He received a telephone call that under age unregistered voters were being ferried from Greenville SS and being allowed by the polling officer of Takajunge polling station to vote even without verifying their names on the voters register. He immediately went to Takkajunge with the petitioner, monitors Kakembo Jamil, Kirega Musisi and Muwonge and found the students around the bus. When he protested to the polling officer, he was intercepted by one Frank Banana, a former DISO of Mukono District, a supporter and a campaign agent of the 1^st respondent who was carrying a pistol and threatened to shoot him if he dared stop the students from voting.

Again the witness does not state that the voters were intimidated by the said former DISO who could have been on a frolic of his own, and were actually stopped from voting as alleged.

In rebuttal 2^nd Respondent’s witness Eng. Kiggundu specifically denies the allegations of intimidation or violence.Kiggundu and contended that the second respondent took steps to ensure that the entire electoral process was smooth, transparent, free and fair.

Sengendo Kefa – (No 22) replied to Godfrey Mangeni and deponed that; he is an LC5 Councilor, Mukono district. He was a campaign Manager of the 1^st respondent in the whole of MNC during the said elections. He is the only Kefa Sengendo in the area and therefore believes that Mangeni’s affidavit referred to him. He does own a white pick-up registration number UAG 733-a Nissan Sahara. He drives the said vehicle himself. The pickup did not at anytime on 23^rd February 2006 carry soldiers to Buyiki polling station. After voting at 8:30 am, he went to Kyampisi Sub County in his pick-up to monitor the election process and he returned to Naama –Sub County at around 11 pm and he had to pass by each polling station in Kyampira on his way back. Wafula Mangeni is not well known to him personally.

The Court has evaluated this evidence and the Court finds that:-the truck exists, it is white, and it belongs to Kefa Sengendo. It is possible that the said truck passed through the polling station with soldiers at 11:00am.Wafula’s evidence needed corroboration by for example the other agents of the petitioner or supporters e.t.c for whom the soldiers caused a stampede. Sengendo averred that he left the polling station at 8:30 am after voting and did not return until 11:00pm.The petitioners’ witnesses needed to adduce concrete evidence to place him at Buyuki polling station any time between 8:30 am and 11:00pm.They made no attempt to do that.

Lord Herbert Sendegge ( P. 71 vol 2 paras 3-7) he deponed that: He was the campaign agent of the petitioner at Nantabulira parish, Goma. One week before polling day, he was approached by the NRM chairman, one Basambye, who accused him of being a rebel. The village LC Chairman, one Olono John, summoned him and informed him that the RDC had informed him that Sendegge was one of the people organizing a rebellion against the Uganda government. Olono told him that he could be exonerated of his offence, if he denounced his support for DP and the petitioner in particular. On the night of the 22^nd February, 2006, he saw some civilian residents in the village dressed in LDU uniforms. They included Senfuma Ronald, Ssemugenyi Herbert and others. They moved around the village from one home to another, together with men dressed in UPDF uniforms. He was around when they came to the home of one Ssebugwawo Martin and told them that if the NRM candidates, Yoweri Museveni, Bakaluba Mukasa (1^st respondent) and Naluggo Ssekiziyivu did not win the elections in that village, they will trace down all the non- supporters to be dealt with. They even told them that everybody should vote the ‘bus’.

Again the court is of the view that this evidence needed corroboration from other supporters to whose homes they allegedly went since it alleged’ The group moved from home to home.’ or Sebugwawo martin in whose home the statement was allegedly made.

Olono John –(No 6 2^nd Respondent) he deponed that: he is an LDU officer. On 22^nd and 23^rd February 2006, his duty was to ensure security in Seeta parish along with police officers and a few LDU’s. It is true that a few LDU’s were moving around on a police patrol pickup to ensure security during the general elections. It is not true that there were soldiers dressed in UPDF uniforms on the same pick-up moving around the parish on the 23^rd February or Election Day. He does not know anyone at Nantabulirwa village called Sebugwawo Martin. He knows Lord Herbert Ssendege as a fellow resident in the village. He denied summoning Sendege or receiving any communication from the RDC as alleged or telling Ssendege to denounce D.P.

Ssemugenyi Herbert. (No. 7) deponed that: he is an LDU Officer.
He denied that they moved from home to home threatening residents to vote for NRM candidates. The rest of his affidavit is exactly the same with Olono’s, that LDU’s had to ensure security.

Ben Bogere (pg. 8 117 vol 2) deponed that, a man called Salongo, an LDU, Prince Rose Sonko, a supporter and campaigner of the 1^st Respondent and another person whom he did not know, came and dragged him and forced him on a hired boda boda and drove him to Mbalala police station. While at the Police station, he refused to make a statement and Prince Rose Sonko threatened to detain him longer for having refused to support the 1^st respondent after getting money from Moses Byaruhanga, the Political Assistant of President Museveni. He was later released on police bond after the petitioner’s interventions. Afterwards, during the campaigns, He was always threatened by Prime Rose Ssonko and Mujumba Rose that his head would be chopped off for opposing the government.

Upon careful evaluation, the evidence before the Court indicates that there were some security personnel at the polling stations mentioned. But the Court does not find sufficient evidence to prove to its satisfaction that there was intimidation by the UPDF or the paramilitary military as alleged.

Failure to control the use of ballot papers
The petitioner pleaded in 5 (c) that:
‘Contrary to section 12 (1) (b) of the EC Act , the 2^nd respondent failed to control the use of ballot papers when there was massive rigging of votes through ballot staffing, multiple voting and preticking of ballots for voters and manipulation of voters’ roll.’
S.12 (1) (b) EC Act reads:
’12. Additional powers of the commission and regulation of ballot papers
(i) the commission shall………………powers…………………………………
(a) the……………………………….
(b) To design, print, distribute, and control the use of ballot papers.’

The allegations here are very serious. They are massive rigging through:-
-Ballot stuffing.
-Multiple voting.
-Pre-ticking and ballots for voters.
-Manipulation of voters roll.

The petitioner averred in paragraph 15 of her supporting affidavit that the vote difference between her and the first respondent was attained through ballot stuffing, pre-ticking of ballots, multiple voting, removal of the petitioner’s valid votes, forgery of the vote results, intimidation, chasing away of the polling station agents and other illegal acts and electoral malpractices stated therein.

No other affidavits were filed specifically to support the alleged failure by the 2^nd Respondent to control the use of ballot papers. This allegation fails.
Distrubution of Ballot Papers.
In paragraph 5(d) It is pleaded that: ‘ Contrary to section 27 (a) of the PEA the 2^nd respondent , through its returning officers, failed to control the distribution and use of ballot papers to eligible voters resulting in multiple voting and vote stuffing by a number of people.’

Section 27 (a) PEA read;
27. Distribution of election materials.

Within forty eight hours before voting day, every returning officer shall furnish each presiding officer in the district with –
a)

A sufficient number of ballot papers to cover the number of voters likely to vote at the polling station for which the presiding officer is responsible.’

Court finds no complaint that the number of ballot papers were insufficient. No such evidence was also adduced before court. This allegations fails.

Starting polling Late and ending late:
The allegation is similar to 5(c).

In paragraph 5(e) it is pleaded that:
‘Contrary to section 29(2) and (5) of the PEA , the second respondent, agents in connivance with the first respondent , and his agents started polling very late and ordered the same very late at some polling stations.’

Section 29 (2) and (5) of the PEA provide that:
’29.Polling stations and voting time.
(1).
(2).At every polling station, polling time shall commence at seven O’clock in the morning and close at five O’clock in the afternoon.
(3).
(4).
(5) If at the official hour of closing the poll in subsection (2) there are any voters in the polling station, or in the line of voters under sub section (3) of section 30 who are qualified to vote, but no person who is actually present at the polling station or in the line of voters at the official hour of voting shall be allowed to vote, even if the polling station is still open when he / she arrives.’

Subsection 3 of section 30 referred to above provides that:
’30. Polling and Polling procedure.
(1)
(2)
(3)On polling day, all voters intending to vote shall form one line commencing backward from a point each at least 20 meters away from the folder on which each voter is to place the authorized mark of choice on the ballot paper.’

There is no specific averment by the petitioner in her supporting affidavit save for the general averment on non compliance with the PEA

Others affidavits were filed by:-
Wafula Mangeni, (Pg 6 vol 1. Paras 4 and 5), deponed that:- At Buyuki, the electoral official arrived at 7; 45am. Voting started at about 8: 05am.

In rebuttal, the 2^nd respondent relied on the affidavit of Eriabu Nkalubo
The presiding officer (no.13.) He deponed that; It is true he arrived at 7:45 as Wafula Mangeni stated, but this was because he could not find a readily available boda boda to take him to the poling station. That when he reached the sub county headquarters at 6; 30 am, he found many presiding officers already lined up to collect the election materials and the bodaboda were very few. That indeed voting started at 8:05 am. The first respondent insisted. Court finds this explanation plausible. No bad faith is indicated.

Ssentongo Wasswa Joseph pg 67 vol 2 paras 5 and 10, deponed that voting ended at 7pm at Kiwanga 1 in rebuttal, the second respondent filed the affidavit of Issa Musoke (No. 4 2^nd respondent). He deponed that
He was the polling officer at Kiwanga polling station, on polling day. He did not specify the time in his affidavit. He merely stated that he arrived ‘early in the morning’ and stayed up to the end of the exercise. In cross-examination however, he stated that 9:30 pm is when they finished everything. Voting ended at 8:00pm. Many people joined the queue between 4 -7 pm. He stated that he would have stopped the exercise with the last man in the line.

Court finds that he was still in the provisions of section 29 PEA. He allowed those who were already in the line vote. The law allows that.

Salongo Mukalazi David. (P.101 vol 2 paras 3, 4, 5.6 and 13), he deponed that at Namiyango polling station, the presiding officer arrived at around 1pm.Voting had started at 10 am. At about 5 pm, they advised the returning officer to stop allowing people into the line, but he said they were delayed as a result of rain and he allowed them to join the line up to 5:30 pm.

In rebuttal, the first Respondent filed the affidavit of Massimo Peter (No 2, 1^st respondent). He deponed that, he is the LC1 Chairman of the village and the one referred to by Mukasa Salongo in his affidavit. He arrived at the polling station at 7am and stayed till 8pm. It is true that one of the originally designated polling assistants delayed to arrive at the polling station and he was appointed by the presiding officer to take his place in order to allow elections to proceed at about 10 am.

Court finds that voting started late at his polling station (10am) due to late arrival of the election officers including the presiding officer. It did not end very late .5:30 due to the rain is not too late. It can be accommodated.

Illegible voters
In paragraph 5 (f, it is pleaded that:
‘Contrary to sections 29(4) and 34(2) (3) and (5) of the PEA the second respondents’ officers and agents allowed persons whose names did not appear on the voters roll and/or who did not hold valid voters cards to vote.’

Section 29 (4) reads:
29. Poling stations and voting time.
(1)
(2)
(3)
(4)Any person registered as a voter and whose name appears in the voters roll of a poling station and who holds a valid voters card shall be entitled to vote at the polling station.’

Section 34 (2), (3) and (5) provide the ‘Procedure for handing ballot papers to voters. It reads:
1) A voter wishing to obtain a ballot paper for the purpose of voting shall produce his or her voter’s card to the presiding officer or polling assistant at the table under paragraph (a) of subsection (5) of section 30 .

(2) If a presiding officer or polling assistant is satisfied that a voters’ name and number indicated in the voters’ card correspond to the voters’ name and number in the voters’ register for the polling station, he /she shall issue a ballot paper to the voter.

3).Where a person does not have a voters card but is able to prove to the presiding officer or polling assistant that his or her name or photograph or both is or are on the register , the presiding officer or polling assistant shall issue him/ her with a ballot paper.

4) The presiding officer or polling officer shall place a tick against the voter’s name in the voters roll for the polling station.

5) Subject to subsection39, a person shall not be permitted to vote at a polling station unless that person’s name appears in the voters roll for the polling station.’

In the petitioner’s affidavits, general allegation of illegal acts and illegal malpractices were made. No specific averment on this allegation and no poling station or person was named.

The other affidavits are from:-
Nanjovu Justine-(pg13 vol 1 para 4), she deponed that: She was the petitioner’s agent at Namuumira polling station. The LC 1 Chairman, one Lukomu came to the polling station on several occasions with different people whose names were not on the register but he would direct polling officials to allow them to vote, claiming that they were known to him. She protested but the polling officer, Nakazibwe Peninah just ignored her. Her supervisor one Bengo George came and intervened, whereby a scuffle ensued and voting stopped for about 10 minutes. She counted 17 people of this caliber who voted. Mr. Lukomu is the NRM party Chairman for Namumira village and also a staunch supporter of the 1^st respondent.

In rebuttal, the 1^st Respondent filed the affidavit of Henry Lukomu 9(No. 24 1^st respondent), he deponed that, he is the Lukomu referred to by MS Nanjovu. He is not the NRM party Chairman for Namumira village. He is the LC 1 Chairman. He did not go to Namumira on polling day with different people whose names were not on the voters register and directed polling officials to direct them to vote as alleged by Nanjovu. It is not true that the voting process at Namumira polling station was stopped as alleged.

Peninah Nakaibwe , who was the presiding officer filed affidavit (no 5 2^nd respondent) on behalf of the 2^nd respondent. She was silent about this incident. She would have been the right person to file an affidavit in rebuttal since the alleged incident occurred at her polling station under her watch. Nanjovu’s evidence is therefore unrebutted.

Court finds most of the 2^nd Respondent’s evidence a general denial. Lokomu admits that he is the only Lukomu in the area and he is the LC 1 Chairman of Namumira village.

Kakembo Jamil (pg 6vol 2. Paras 2-5), he deponed that: On polling day, at around 11am, one of the petitioner’s monitors, one Bakireke Mukasa Henry requested him to accompany him to Takkajunga polling station where it had been reported that underage students who were not even on the voters register, from Greenwich Senior Secondary School were being allowed to vote. He together with the petitioners monitors, Bakireke Mukasa, Kiregga Musisi and Muwonge went to Takkajunge and indeed found these students and pupils in the queue voting. They approached the presiding officer to verify if actually these children’s names were on the register. A security officer, one Frank Banana, former DISO of Mukono who was carrying a pistol intercepted them and ordered that every one in the queue had to vote whether they wanted it or not, whereupon, Mr. Bakireke called the director of the school on phone and thereafter the teacher who had led the students took them away.

Sengendo Moses (pg 119 vol 2) deponed that: He was the petitioner’s agent at Tekkajunga Polling station. While there, at around 9:00am, a minibus and a truck belonging to Greenville SS ferried students to vote and that they really voted. He got concerned when he saw that the said students were being allowed to vote without the said presiding officer checking for their names in the voters register or producing voter’s cards and were under patronage of the 1^st Respondents’ campaigner Councilor Namubiru. When the minibus and truck ferried in students the second time he and his co-agent together with the FDC agents protested but the presiding officer ignored them. Whereby he made a call and reported to the petitioner. The call was received by Mukasa Bakireke. Mukasa Bakireke came to the said polling station at about 11am with three other men and found the van and truck had brought students for the fourth time. One Frank Banana, a former DISO of Mukono who was carrying a pistol threatened Mukasa and group with arrest when he tried to intercept the students. Mukasa then talked on the phone and later on handed his phone to the teacher who had led the students. After the teacher talked on phone, he told the remaining students to withdraw. He counted 67 students, some of them looked very young who voted before they were intercepted.

Bakireke Mukasa (pg 91 vol 2 Para 2-8) deponed that: He was the election-monitor / supervisor for the petitioner during the elections. On voting day at around 11am, he received a telephone call from one Ssengendo, the petitioner ‘s agent at Takkajunge polling station to the effect that underage and unregistered school students from Greenville Secondary School were being allowed to vote by the presiding officer without even verifying whether their names appeared on the voters register. He immediately proceeded to the said station in the company of other petitioners monitors to witness , Kakembo Jamil, Kiregga Musisi and Muwonge , and indeed found a school minibus and a truck with writing of Greenville Secondary School parked at the polling station with some students seated inside while others were in the queue waiting to vote.Sengendo had informed by the time he reached the said poling station, 67 students had been allowed to vote without verification of their names on the register. When he protested, Banana threatened to shoot him if he dared stop the said students from voting. He immediately called Joshua Serunjogi of Greenville SS and raised his concern to him. Mr. Serunjogi requested to speak to the teacher who had brought the students via his (Bakireke’s) mobile. All of a sudden, he saw the said teacher ordering the students to come out of the queue. Over 60 students came out of the queue immediately, boarded the vehicle and left the polling station. To the affidavits of Kakembo, Bakireke and Ssenyondo, in reply, there is the affidavit of Kyambadde Enoch (No.20, first respondent) where he deponed that:

He is the deputy H/M of Greenville SS in charge if monitoring and evaluation. He is the one who drove the students of the said school to Takajjunge polling station in a 22- seater minibus. It is true that students of Greenville SS came to Takajjunge polling station to vote on polling day around midday. He drove 20 students to Takkajunge and all of them had voter’s cards as it was a requirement before they could get out of the school compound. When they disembarked from the mini-bus at the said polling station, a group of persons he could not identify advanced in their direction to attack them alleging that the students were not in the voters register. He took steps to check and to ensure that all students he came with had voters’ cards and indeed all of them had voters’ cards. On knowing that the students had voters’ cards they decided to calm down as the students joined the queue and started to vote. Around 30 minutes from time, Frank Banana who is well known to them arrived at the station dressed casually. He moved to where he (Banana) was standing and he told him about the disturbance that had arisen. Those Greenville students were almost being barred from voting. Banana did not at any one moment pull out a pistol and ordered that all persons in the queue were to vote or threatened to shoot anybody. He is the deputy HM. He drove the van.

The witness admits that students came and voted around midday (not far from 11 am).
Where was the School driver? Why was he the one driving the school bus? Where are the voters’ cards? Copies should have been attached (only 20). What about Mr. Joshua Serunjogi- Who is he in Greenville S.S? What was Banana doing at the polling station? Who was he? In what capacity? What about the poling officials? All these questions required answered. There was none. The fact that Students were ferried at least 4 times is not rebutted.

Nakiwala Prossy – (pg 29, 1^st respondent) also filed a in reply to Senyondo Moses and Mukasa Bakireke, deponed that: She was the presiding officer at Takajjunge polling station. At about 12 noon, 10 people joined the queue. Later she came to learn that they were students from Greenville SS. She did receive complaints from candidates’ agents that students should not be allowed to vote. She then resolved the matter by ruling that as long as they were in possession of voters’ cards and appeared on the register they should be allowed to vote. Indeed those who met the criteria voted. From her perception, the students were of the apparent age of 18 years and she had no reason to doubt that they were eligible to vote. She knows a Frank Banana. She saw him at the polling station that day. At the time Banana arrived at the station, the issue of the students had already been resolved; and she did not see him involve himself in the matter as alleged by Ssenyondo and Mukasa Bakireke. She did not see Mr. Banana in possession of firearms at the polling station on that day nor did she hear him threaten anyone or make any orders regarding the voting process as alleged. The number of students (67) is an exaggeration, as she only counted 10 students.

Kyambadde Enoch, the Deputy H/M who actually drove them from school and ensured that each had a voters card before leaving the school compound says he drove 20 students

This witness admits that there were complaints. That students from Greenville SS came and voted. That Banana also came to the polling station. There is however a Contradiction: She talks of only 10 students. Why are they lying? I reject their evidence and I believe the Senyondo’s for that reason. I find that students from Greenville were ferried to vote at Tekkajunge. They were over 60.

Kawuma Abaas (pg 15 vol2 paras 4-6) deponed that; He is a registered voter at Nakagere poling station and an election monitor of the petitioner at Ngoma sub-county. He was at Seeta IV polling station at around 9 am on polling day. While there, one Namutebi Joyce, LC 1 Secretary for information, Baggala zone and also a member of the NRM village committee, and and also a campaign agent of the first respondent was issuing out voters cards to some voters of her choice. That he and one Elisa Nkoyoyo approached the said Namutebi Joyce and questioned her about the source of cards and the capacity in which she was distributing the same. She did not answer them, whereupon they arrested her and handed her over to an election constable, one Adang James who is the O.C C.I.D. Seeta police post. He took her to police together with the cards but police released her without being charged. The said constable told them that they should not worry because he had confiscated the cards.

Mukasa Elisa Nkoyoyo (pg 110 vol 2), corroborated the evidence of Kawuma Abaas, and deponed that: He is the LCIII, Goma Sub County. He was the election monitor for the petitioner for Goma-sub-county (. His evidence is similar to that of Kawuma).

Ssekatawa Robert. (Pg 77 Vol 2 paras 2 and 3), deponed that; He was a polling assistant for Seeta IV polling station). On polling day, two men who he later identified as Erisa Mukasa Nkoyoyo, the current LC III Chairman Goma sub-county and Abaas Kawuma, a DP mobiliser who introduced himself as election monitor for the petitioner arrested one Namutebi Joyce, a member of the NRM committee, Baggala Zone , Secretary for Information LC1 of the area and campaigner of the 1^st respondent. She had a bundle of voter’s cards which she was distributing to some people who would join the queue to vote. Namutebi was handed over to the OC CID Seeta Police post who was also the election constable at Seeta polling station. The constable took Namutebi to the police port with the bundle of cards but later she returned to the station.

In rebuttal, MS Namutebi swore an affidavit (no. 28 1^st respondent) paras 4 and 5), that: She is the only Namutebi Joyce in the area and she believes in the circumstances that the allegations in Mr. Ssekatawa’s affidavit were meant to refer to him. It is true she had five voters cards in her possession on polling day. The said cards belonged to her and four of her children who had accompanied her to the polling station and she was merely keeping them for safe custody. Upon arrival at the polling station, she had just handed over one card to her daughter when it caused disturbance as some people at the polling station believed that she was issuing out voters’ cards. She sought the assistance of one Akooli, a police constable at the station for protection and he assisted her to verify their ownership and allowed her to give them to her children. She knows Elisa Nkoyoyo as a fellow resident and Abaas Kawuma as a motorcyclist in Baggala zone; but she denied that either of them arrested her as they alleged. She further denied having been taken to the police as station as alleged.

This witness admits having voters cards and distributing them at the polling station .Why was she giving them out at the poling station? This explanation given.

The evidence on record required corroborates the evidence from Akooli, the police constable, if at all he exists; since he is the one who allegedly verified the ownership of those cards and allowed her give them to her ‘children’ who should under the law be over 18 years before being eligible for voters cards and adults who should have been capable of taking good care of their voters cards instead of giving them to’ mummy’ for safe custody! Her explanation is not plausible or logical, and, as counsel Lukwago said. It is an obvious lie. I reject it.

The 1^st Respondent is silent about these two incidents. He does not deny that Joyce Namutebi is his campaign agent. This allegation therefore succeeds in light of all this evidence.

Open voting
Under paragraph 5 (g), the petitioner pleaded that;

‘Contrary to section 30 (1) of the PEA, voting at some poling stations was not by secret ballot but by an open method where the voter’s choice of candidate would be known to the election officials and or other people.’

Section 30 (1) of the PEA regulates
‘30. Polling and poling procedure. It reads:
i)

Voting at every election shall be by secret ballot using one ballot box at each polling station for all candidates in accordance with this act.’

The Petitioner’s affidavit in support is again not specific. General averments of electoral malpractices were made.

In support, Baganja Bernard (pg33 vol 1 Para 6) deponed that: He was a duly appointed agent of the petitioner stationed at Nakapinyi A-M) polling station on polling day. As the voting process was going on, it started to rain around the voting table, obstructing him from observing the process. He complained to the presiding officer to organize the people but to no avail. He drew nearer to observe the voting exercise, but the presiding officer called a poling constable, who chased him away.

In rebuttal, the 1^st Respondent filed the affidavit of Sentongo (no 25, 1^st Respondents). He deponed that; He was one of the 1^st Respondent’s agent at Nakaapinyi A polling station. At 2: 00pm they all agreed to relocate the voting materials under a big tree to provide adequate shelter from rain. (Paragraph 5). This witness does not deny that voters converged around the voting table as a result of the relocation.

Indeed, there is evidence of rain and relocation, but no concrete evidence of open voting. This allegation fails.

In paragraph 5(h), it is pleaded that:
‘(h) Contrary to section 20(5) of the PEA, the 1^st respondent held campaign meetings within 24 hours before polling day.’
Section 20(5) provides that:’
20. Campaign programmes.
(5) A campaign meeting shall not be held within 24 hours before poling day.’

Petitioner’s affidavit in support of specific amount. General allegations of illegal practices in paragraphs 6 and 15. supporting affidavits include:

Mugambe Lovinder (pg vol 1 Para 4), who deponed that: ‘She was the duly appointed agent of the petitioner at Kiwumu polling station, in Kyampisi Sub County. While at the polling station, she heard the presiding officer, one Mubiru telling voters several times that the ‘NRM” bus appears near Bakaluba Peter Mukasa’s picture and they should find it there.

In rebuttal, Mubiru Bumbakali (No. 30, 1^st respondent), denied the allegation. He deponed that; He was busy that day with his official duties as the presiding officer of the said polling station. He did not tell anybody that the Bus was near the 1^st Respondent’s picture, and that voters should tick there.

Court finds that this is general denial. He knows Lovinder Mugambe as fellow resident of the village. He does not state any reason or motive why Lovinder should make such allegations against him amongst all other people who were at the said polling station on that day. Court therefore rejects his evidence.

Bayanja Bernard (pg 8 33 vol 1 paras 4-5) deponed that : He was a duly appointed agent of the petitioner. He was stationed at Nakapinyi (A-M) polling station on poling day. He saw the 1^st Respondents agents approaching the voters before they could join the line and telling them to vote the 1^st Respondent.

In reply, One of the 1^st respondents, agents at Nakapinyi polling station deponed in (n0.25, 1^st Respondent) that: It is not true that any agent of the 1^st Respondent involved himself or herself in acts for campaigning for the 1^st Respondent at the said polling station as alleged by Bernard Baganja. Court finds this is a general denial. He is not an independent witnesses.

Lamula Bukenya (pg 43 vol 2 Para 4) deponed that: He was a registered voter and a duly appointed agent of the petitioner at Ntinda 1 polling station. He stayed at the said polling station up to the end of the polling exercise. He heard Betty Kyambadde, a polling assistant tell voters upon checking the voter’s name from the register to vote ‘the bus’ implying voting for the 1^st respondent whom he knew as the only candidate at the election of directly elected member of parliament who used the NRM bus symbol.

In rebuttal, Betty Kyambadde replied (No.10, second respondent) that: She was indeed a polling assistant at Ntinda 1. The said statement by Lamula Bukenya is not true. She did not tell any voter to vote for the bus or any other symbol but left voters to exercise their own choice.

Ssempebwa Robert, (No. 16 2^nd respondent) replied that: Lumala is personally known to him as an agent for the petitioner at Ntinda 1 polling station. It is true that Betty Kyambadde was a polling assistant at Ntinda 1 polling station and she never told anyone to vote for the bus or any other symbol. She was sitting at table one therein.
Court finds this is another general denial.