Friday March 11 2016

Court refuses to grant automatic vote recount

Supreme Court Justices (L-R) Bart Katureebe,

Supreme Court Justices (L-R) Bart Katureebe, Esther Kisakye and Augustine Nshimye preside over the hearing of Mr Mbabazi’s election petition in Kampala yesterday. PHOTO BY DOMINIC BUKENYA 

By MONITOR TEAM

Kampala.

The Supreme Court yesterday declined to grant Mr Amama Mbabazi’s demand for an automatic vote recount, saying it was unnecessary at this stage because court can make such order if need arises during the hearing of the main petition.

However, the court agreed with Mbabazi’s lawyers and ruled that the Electoral Commission (EC) avails the results declaration forms from districts as signed by the respective returning officers, which they relied on to declare Mr Museveni winner of the February 18 election.

The former presidential candidate, in his petition challenging President Museveni’s election, has prayed to the Supreme Court to grant a recount of votes from 45 selected districts where they suspect was massive rigging.

The ballot recount was one of the issues tabled by Mr Mbabazi’s team and discussed by all the parties to be determined by court but it was rejected on account that it was unnecessary at this stage of the case.

Inter-party conference
During the inter-party conferencing, lawyers for both Mr Mbabazi and Mr Museveni agreed on issues for determination by the court but disagreed on the vote recount and the matter had to be brought to the judges to make a decision on.

“The law doesn’t give vote recount as a preliminary relief. One of the reliefs court can give is declare a candidate who was validly elected and not as a preliminary relief,” said Chief Justice Bart Katureebe as he overruled Mr Mohamad Mbabazi, the petitioner’s lead lawyer, who was labouring to convince the court.

Deputy Attorney General Mwesigwa Rukutana had argued that a decision for a ballot recount does not have to come as a prayer from petitioner because it is upon discretion of the court.

“Under section 59 (8) of the Presidential Elections Act, the court, upon hearing the petition, and before coming to a decision, if it is satisfied a recount is necessary and practical, may, whether prayed for or not, order a recount of votes cast,” Mr Rukutana argued.

“The same issue is repeated under the rules passed by the Chief Justice in the presidential election petition rules 2001, rule 21, which reads, ‘where upon hearing a petition and before coming to the decision, the court is satisfied that a recount is necessary and practical it may order a recount of the votes cast,” he further argued, and won.

The issues agreed upon
However, Mr Rukutana informed court that lawyers for all parties had agreed on six issues for determination and three facts that would be interrogated during the main hearing of the petition, which starts on Monday.

Whether there was non-compliance with the Presidential Elections Act (PEA) and the Electoral Commission Act (ECA) in the holding of the 2016 presidential election; whether the said election was not conducted in compliance with the principles laid down in the provisions in the two Acts and whether, if issues One and or Two above, are true, such non-compliance affected the final result of the presidential election in a substantial manner.

“Issue number four, my lords, will be whether the offence under the PEA was committed, in connection with the election, by the first respondent [Museveni] personally or with his knowledge and consent or approval.

Issue number five is whether the third respondent, the AG, is properly joined as a party to this petition.
Issue six is whether the petitioner is entitled to any of the reliefs sought,” Mr Rukutana submitted.

They also concurred on three facts: that there was a presidential election conducted by the Electoral Commission on February 18; that on February 20, 2016, Mr Museveni was declared as validly elected president with 5,617,503 votes representing 60.75 per cent of the valid votes and; that on the same day, Mr Mbabazi was declared to have polled 132,574 votes representing 1.43 per cent of the valid votes.

The judges agreed with lawyers for the respondents (Museveni, EC and AG) that three other issues tabled by the petitioners be ignored because they had already been catered for by in the six that had been agreed upon during the inter-party conferencing and were, therefore, superfluous.

Besides the demand for a recount, Mr Mbabazi’s lawyers wanted court to also ascertain whether the EC relied “on any results” from the polling stations and district tally centres as a basis to declare Mr Museveni winner of the presidential election.

Mbabazi lawyers task court

The lawyers representing Mr Museveni and Mr

The lawyers representing Mr Museveni and Mr Mbabazi consult at the hearing yesterday.


They also wanted court to decide on whether there was a national voter register compiled and maintained by the EC for the presidential election.

“It’s the view of the court that the issues as agreed are sufficient for the determination of the petition. The issues suggested by the petitioner are well covered. Accordingly, court endorses the agreed issues,” Justice Katureebe ruled.

When Mr Mbabazi’s team attempted to ask for more time to file the affidavits on account that their offices were broken into on Wednesday and vital evidence documents stolen, the Chief Justice didn’t want to hear any of that.

“I don’t have the time to give. The timelines are set by the Constitution. Today is the 11th day. You can still serve your affidavits, they should have been served yesterday but you have already given yourself an extra day. They should be served by close of business today (yesterday), so people can respond and raise skeleton arguments,” the CJ said in a tone that did not invite further arguments from Mbabazi’s team.

However, the court told the EC to avail the Mbabazi team the district ballot tally sheets signed by the returning officer (as demanded by the petitioner), not the summary of results tallies which were uploaded on the EC website and signed by the commission’s chairman, Eng Badru Kiggundu.

EC argument rejected
Mr Enos Tumusiime, counsel for the EC, attempted to skirt around the issue, saying those forms can only be availed if the EC gets them and only if Mbabazi lawyers are prepared to “wait a little longer”.

The Chief Justice overruled him, citing a provision in the Presidential Elections Act that requires returning officers to submit the results declaration forms to EC seven days after the election. He ruled that the said forms being requested for must and have to be in possession of EC in Kampala.

Justice Eldad Mwangusya said even if the EC did not have the forms by yesterday, it was matter of the chairman Kiggundu calling the district returning officers yesterday and asking for them. “You can have them in one day,” he interjected.

Mr Tumusiime yielded and pledged to inform court about the availability of the forms by close of yesterday.
“Much obliged my lord. I request time to consult my client and will write back to court this afternoon and inform what time they will be ready,” he said.

The team of justices
The petition is before a panel of nine justices led by Chief Justice Bart Katureebe. Others are Jotham Tumwesigye, Stella Arach-Amoko, Augustine Nshimye, Rubby Opio-Aweri, Prof Lillian Tibatemwa Ekirikubinza, Faith Mwondha, Esther Kisaakye and Eldad Mwangusya, .

Reported by Isaac Imaka, Ivan Okuda & Anthony Wesaka