Court orders EC officials to present vote tallying sheets

The Electoral Commission (EC) yesterday made its submissions on the presidential election petition

Friday March 18 2016

Mbabazi lead lawyer Mohammed Mbabazi

Mbabazi lead lawyer Mohammed Mbabazi (L) interacts with EC lawyers Enos Tumusiime (R) and McDusman Kabega (C) during the presidential election petition hearing at the Supreme Court in Kampala yesterday. 

By Ivan Okuda, Anthony Wesaka and Isaac Imaka

Chief Justice (CJ) Bart Katureebe and eight justices of the Supreme Court walk into the courtroom at 9:50am. Lawyers for the four parties to the petition arise and bow. Court clerk reads out the case reference.

Deputy Attorney General (Mwesigwa Rukutana): My lord, the Chief Justice, and my lordships of the Supreme Court. Because of the nature of this case, representation keeps changing. (He re-introduces counsel for the parties).

Enos Tumusiime (for the Electoral Commission): May it please your lordships, I am appearing together with MacDusman Kabega, Enock Barata, Okello Oryem, Elison Karuhanga and Eric Sabiti. For the record, the chairman and secretary of the second respondent (Electoral Commission) are in court.

Severino Twinobusingye (counsel for the petitioner): My lords, we are constrained by our learned friend Mr Tumusiime. He wrote to this court on March 14 a letter where he lied that we inspected the documents. Unless this is handled, we are constrained.
Tumusiime: My lord, if that is what the letter says, we apologise.
CJ: That is why I said yesterday you should have copied in the other counsel when you wrote to court. We shall give appropriate directions on this matter.

Tumusiime: My lord, issue number one is whether the second respondent complied with the EC Act and the Presidential Elections Act (PEA). Permit me give a brief background to the duties and obligations of the EC, if I may go back to article 61 of the Constitution and the preamble of the Constitution of Uganda. First, before the Constitution was made, there is the Universal Declaration of Human Rights (UDHR) 1948. Article 21 of UDHR states that everyone has the right to take part in the governance of his country by electing representatives and the will of the people shall be the basis of the authority to govern.

My lords, these words rhyme again and again with our Constitution, EC Act and PEA. Article 1(1) states that all power belongs to the people who shall exercise it in accordance with the Constitution. The people shall express their will on who should govern them and how they should be governed through regular free and fair elections and referenda. Those provisions are captured in article 61 of the Constitution in as far it provides the functions of the EC; a) to ensure regular free and fair elections are held, organise, supervise elections in accordance with the constitution, ascertain, publish under its seal results, hear and determine election complaints arising before and after the polling, compile, maintain and update a voters register and perform other such duties as may be prescribed by parliament.

Section 4 of the EC Act repeats in the same terms and provides in more detail the powers of the EC….

My lord, the petitioner has made several allegations regarding this and it is my duty to look at those allegations in comparison with what the EC Act, PEA and Constitution say. The answer is supported by the affidavit of Eng Dr Badru Kiggundu and there are several other affidavits we shall refer to. As the chairman stated, the February 18 election was a process which you can trace from when the 2011 election was conducted. I invite court to look at the affidavit of Mr Joshua Wamala. He is the head of elections management at the EC. He gives background right from 1989 which, as your lordships fully know, we would line up behind candidates. In 1994, the Constituency Assembly used a hand-written register; in 1996 for the first time, the Interim EC came up with a computerised voters’ register which was used in 2001 where the EC started compiling a photo bearing register which used face matching technology to reduce multiple registration and as a result of that the voters’ number reduced from 11 million to 8.5 million, meaning 2.5 million ghosts voted previously. That register was updated and used in 2006 and in 2011, EC introduced a partial biometric and part photo register. It is necessary to give this background to comprehend where we have come from and reached.

The petitioner alleges that the EC failed to compile a voters’ register. My lords, the EC avers that it duly exercised its statutory duty to compile, maintain, revise and update the voters register and denies contents of the amended petition.

He states in that affidavit that despite the success in 2011, the register had challenges, including capturing partial finger prints (four instead of 10) and EC was only able to capture finger biometrics of 30 per cent of the registered voters….

In order to address challenges affecting the register, the EC decided to adopt full finger print technology and it was necessary to compile a fresh voters’ register. The EC submitted a proposal to government that had significant financial implications and in 2014, government took a multi-sectoral approach, bringing on board the EC, the Uganda Registration Services Bureau, the National Information Technology Authority and the Uganda Bureau of Statistics.

In the process of capturing data on the national ID, government undertook to incorporate necessary information that would enable the EC extract the same information to use this card for voting purposes. The registration process at village, parish, sub-county and district levels was managed by the EC under the supervision of the EC district registrars. We want to dispel this allegation that the national ID was not made or created for purposes other than the electoral process. Following that, EC appointed a period for general update, gazetted this notice and had an extensive media campaign to inform Ugandans about this exercise. Because of the high turn up, EC extended general update to May 11 and invited voters to confirm their particulars and those not eligible were reported... That is the register we all used.

CJ: Perhaps clarify, because at some point, the allegation was that EC had no powers upon which the register was compiled.
Tumusiime: My lord, the words the Constitution has used (compile, maintain, revise and update) are so wide that in 2006, you actually used the word prepare.

I will quote Justice Katureebe SC (as he then was); the word used was in that 2006 case of Besigye Vs Museveni “prepare”. Whether we call it by any other name, the truth is that the register was prepared. To crown it all, the petitioner has not filed affidavits to show there was no register. My learned friend [Asuman] Basalirwa kept talking of retiring and archiving voters; there is nothing like archiving a voter; what EC did and Dr Kiggundu explained was that when you prepare a new voters’ register, you don’t throw away the old; you keep in the archive, which is a sensible thing to do. If anyone wants to complain that record will be there. As in Wamala’s affidavit, it is not the first time it was done and the petitioner at that time was a minister of the government of Uganda, and he never raised a finger about this process. This is what the petitioner used on his nomination and there is an ID number; he cannot deny it now.

Asuman Basalirwa (for the petitioner): My lord, just to make the record straight, the words ‘retiring’ and ‘archiving’ appear in the gazette the EC issued, so they are not my words and those words were used by Dr Kiggundu. So it is not correct for my learned colleague to claim I used those words.
CJ: You have clarified.
Tumusiime: The problem was with my learned friend’s English; that you cannot retire and archive a voter and it was repeated thrice.
(Court bursts into bouts of hysterical laughter)
Tumusiime: My learned friend Kiwanuka Kiryowa referred you to the Registration of Persons Act (RPA), 2015, and I wish to refer your lordships to section 65 that talks about use of information in the register. Section 65(2) states the EC will use the information in the register to compile, maintain, revise and update the voters’ register.

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