Mbabazi petition lacked evidence - court

Continuation

Accordingly, we find that there was no failure on the part of the 2nd respondent to comply with section 11 of the PEA.
(ii) Failure by 2nd respondent to compile a national voters’ register. The petitioner alleged that contrary to Article 61(1) (e) of the 1995 Constitution, sections 12 (f) and 18 of the Electoral Commission Act, the 2nd respondent abdicated its duty of properly compiling and securely maintaining the national voters’ register.

He further alleged that the 2nd respondent instead illegally and irregularly retired the duly compiled 2011 Voters’ Register and purported to create another one using data compiled by the Ministry of Internal Affairs for purposes of issuing National Identity Cards (National IDs).

The 2nd respondent contended that it properly compiled, revised and updated the National Voters’ Register in accordance with its constitutional and statutory duties. That all voters were duly and legally identified as being on the voters’ roll in accordance with the PEA.

The findings
We have carefully studied the provisions of Article 61(1)(e) of the Constitution and sections 12 (f) and 18 of the ECA which govern this issue. We have also carefully considered the affidavits and submissions of the parties and made the following findings:

(i) There was a National Voters’ Register which was compiled, updated, displayed and used by the Electoral Commission to conduct the 2016 presidential elections. We have noted that section 18(1) of the ECA obliges the 2nd respondent to “compile, maintain and update on a continuing basis a National Voters Register.”

(ii) The petitioner received a copy of the National Voters’ Register in his capacity as one of the presidential candidates.

(iii) The allegation that the 2nd respondent used data compiled by the Ministry of Internal Affairs is not correct. The data was compiled by the National Identification and Registration Authority, on whose Governing Board the 2nd respondent is a member.

(iii) The compilation of the National Voters’ Register was in compliance with the Article 61(1)(e) and section 18(1) of ECA and section 65(2) of the Registration of Persons Act, 2015 which states that: “The Electoral Commission may use the information contained in the register to compile, maintain, revise and update the Voters’ Register.”

(iv) That the 2nd respondent’s use of data compiled by the National Identification and Registration Authority to compile the National Voters’ Register did not in any way negate the independence of the 2nd respondent which is guaranteed under the Constitution.

(v) That the petitioner did not adduce any evidence of any person who had been disenfranchised by the 2nd respondent’s use of the new National Voters’ Register in the 2016 presidential elections.
Accordingly, we find that the 2nd respondent complied with the provisions of the Constitution, the Electoral Commission Act and the Registration of Persons Act.

(vi) Failure by the 2nd respondent to issue and use voters’ cards during the presidential election, resulting into the disenfranchisement of voters

The petitioner alleged that contrary to sections 30(4) and 35 of PEA, the 2nd respondent identified voters using the National ID issued by the National Identification and Registrations Authority instead of voters’ cards issued by the 2nd respondent.

The 2nd respondent admitted that voters’ cards were neither issued nor used during the last presidential elections. Relying on section 26 of the ECA, the 2nd respondent submitted that that section is not couched in mandatory terms to require them to print and issue a voter’s card for use at each election.

Further reliance was placed on section 66(2) (b) of the Registration of Persons Act, 2015, which requires the mandatory use of national IDs for identification of voters.

In light of the provisions of the law cited, we find that the 2nd respondent complied with the law when it used the National ID for identifying voters instead of the voter’s card.

(vii) Use of unreliable Biometric Voter Verification Machine (BVVK) and failure by the 2nd respondent to identify voters
The petitioner alleged that contrary to section 35 (1) and (2) of the PEA, the 2nd respondent failed to identify voters by their respective voters’ cards but instead applied an unreliable, slow and suspect biometric identification machines, thereby denying legitimate registered voters their right to vote and creating room for persons not duly registered to vote.

Further that contrary to sections 30(4) of the PEA, voters were identified on polling day using the National Identity Cards instead of the voters’ cards. That as a result, eligible voters who did not register for the national identity cards were disenfranchised.

Ruling on affidavits
The petitioner relied on the affidavit of Nakafero Monica who was the petitioner’s agent at Kasangati Headquarters Polling Station and who deponed that “at 4:00 P.M., polling agents said that the biometric machine was no longer functional”

The 2nd respondent admitted that each polling station was supplied with the BVVK machine. They contended that the purpose was to improve transparency and integrity of the process of identification of voters at polling stations; prevent multiple voting, impersonation and to confirm or direct a voter to their polling station. That each polling station was supplied with a hard copy of the voters roll as the basic document for identification of voters registered to vote at that particular polling station.

That all registered voters were duly and legally identified as being the voters on the voters roll in accordance with the PEA and were allowed to vote. The 2nd respondent further averred that voter identification was three faceted:-

1. Use of the BVVK through verification of a voter’s fingerprints.
2. Use of National Identity Cards.
3. Use of a hard copy of the voters’ register at the polling stations.
There was evidence that some of the BVVK machines were not efficient and some did not work at all. However, the principal document used to identify voters was the voters’ register.
It is therefore our finding that the use of the BVVK did not, in itself, constitute noncompliance under the PEA and it did not disenfranchise voters.
(viii) Late delivery of polling materials

On the voter gadgets
The petitioner alleged that contrary to section 28(a) (b) (c) of the PEA, officials of the 2nd respondent delivered voting materials late on election day and that at many polling stations, voting did not commence until 2:00 p.m., 4:00 p.m. and 8:30 p.m. in some places and ended after 1:00 a.m. The petitioner relied on affidavit evidence of several deponents to support these allegations.

The 2nd respondent averred that late delivery of election materials occurred only in some polling stations in 2 districts out of 112, to wit Kampala and Wakiso. It was further averred that in the affected polling stations, the time for voting was extended and voting was carried out and completed. It denied that there was any polling which commenced at 8.30 p.m. and/or went on up to 1.00 a.m. anywhere in the country. The 2nd respondent relied on the affidavits of its chairman and of other officials.

The 2nd respondent conceded that polling material in some parts of Kampala and Wakiso were delivered late. Evidence was however adduced of late delivery of materials in some other polling stations in other parts of the country.

It is the court’s finding that the 2nd respondent did not comply with its duty under Section 28 of the PEA. The failure to deliver polling materials to polling stations within such close proximity to the Commission was evidence of incompetence and gross inefficiency by the electoral body.