Tumusiime: My lords, the EC has apologised but most importantly, they did everything possible and ensured not a single citizen was disenfranchised.
Section 50 of the EC Act was enacted with some of these difficulties in mind and it gives some discretionary powers to EC to, among others, extend the voting time in case of unforeseen circumstances and miscalculation.
CJ: Mr Tumusiime, the law is there. Time could be extended but what we are interrogating is the reason for the delay. Why EC took more than usual time for Kampala and not other districts and when was printing completed? At the time the EC chairman started waving materials to other districts, can we assume printing for Kampala was ongoing?
Tumusiime: Following your lordships raising of this point, I contacted the EC chairman and he confirmed it was complete before the polling date but because of the burden here, it was the volume of work that led to this delay. The petitioner has alleged it was because these were not the stronghold of the first respondent but it was not even the petitioner’s stronghold. In fact, evidence of Mulekwa hasn’t been contradicted to prove there were ulterior motives to show why Kampala was delayed.
Section 15 of the EC Act obliges any person who has any complaint and empowers the EC to resolve complaints during the entire electoral process….
Justice Mwangusya: But how would you apply section 15 to complaints related to polling day because instead of going to the EC one goes to the petition.
Tumusiime: Much obliged, but as you note, there is a host of matters.
Justice Mwangusya: Yes, those could have been handled at EC level but there are those to be handled at this level (court).
Tumusiime: So, if those meant to go to EC can be removed from the list of complaints in conformity with section 15 so be it.
Justice Mwangusya: But the Constitution says inquire; so the court is inquiring into what happened in the election and it is a process not an event. So the fact that the petitioner didn’t complain doesn’t stop him from seeking inquiry.
Tumusiime: Much obliged.
Twinobusingye: (protests about a previous petition by Mbabazi in the High Court which Tumusiime had referred to in his submissions and said it was dismissed for being defective). My lords, we are taken by surprise by the manner in which counsel is handling this matter. He didn’t only ambush us but the reason why the matter went to the High Court was because we filed several complaints with EC and the said officers were intransigent. This matter is before the Court of Appeal. I am shocked counsel is bringing up a matter pending on appeal.
CJ: What he brought to us is what he thinks is an authority.
Tumusiime: My lord, we submit that the voting process was compliant with the Constitution, EC Act, PEA, and achieved the fundamental purpose of enabling every voter who intended to vote to vote.
There was also an allegation about social media blockade. As far as the EC is concerned, this blockade was not selective, it didn’t select in the whole population, the petitioner’s supporters. It didn’t stop anyone from going to vote.
There is another allegation of unequal coverage of New Vision and UBC. My lords, Justice Katureebe, as he then was, clearly pointed out that the law doesn’t impose any duty on the EC; it imposes duties on those organs referred to as UBC and New Vision. This is a very wrong attack on the EC. These two bodies are independent of the EC, it has never alleged to control, manage or direct activities of these two organs. Besides, assuming UBC and New Vision and UCC [were culpable], if the petitioner felt aggrieved by acts of these bodies, he could have filed an application for review of the action or a suit if he lost anything.
(Court takes lunch break and resumes at 2:30pm)
Tumusiime: My next issue is counting of votes by the 2nd respondent. The petitioner claims that without declaration forms and tally sheets from the districts, there were no election results that the 2nd respondent (EC) used to declare the 1st respondent the winner. This is a very dangerous statement. I wish to refer to the evidence of Dr Badru Kiggundu where he pointed out that the petitioner did not even have 50 per cent of polling agents across the country.