Kampala- In what can be interpreted as a move to firm up his case in court, Mr Amama Mbabazi, moved to substantially amend his presidential election petition by successfully pushing through last-minute changes, that left the defence lawyers not amused.
It was not an easy job. Filed at 10.04am, when court was supposed to already be in session, the move first met queries from the Chief Justice Bart Katureebe, who referred to it as a rumour, because he had not seen it, and made the court adjourn twice in order to rule on the matter.
“How do you want court to proceed on an amended petition it has not seen?” the Chief Justice asked. “This is a presidential election petition which has timelines this court has no control over. It has to be heard and disposed of in 30 days; you cannot come on the 31st day and say you have a right to be heard.”
But Mr Mbabazi’s lead counsel, Mr Mohammed Mbabazi, calmly submitted: “My Lord, there is no law that bars a petitioner from amending the petition. I haven’t heard my learned friends cite any law that bars a petitioner from amending.”
Mr Mbabazi was at the end of day able to convince the Bench, which hence ruled, “the amendment is the basis of the case and importance of the issue demands that we allow the filing of the amendments on the orders that the amended petition be served to all the respondents counsel before close of business and the respondents are given up to close of business on March 9 to have filed their reply.”
The ruling was a unanimous decision read by Justice Eldard Mwangusya. It was a good first day in court for the Mbabazi team.
Mr Asuman Basalirwa, a lawyer on the Mbabazi team, told the press during the second adjournment that the amendment is the crux of the petition and ruling in their favour meant a buttressed case in court.
Senior lawyer Peter Walubiri, who played a pivotal role in Dr Kizza Besigye’s 2006 election petition, told this newspaper yesterday that Mr Mbabazi’s amended petition is hinged on compelling the court to audit the results from the 112 districts in general and 28,010 polling stations in particular.
The Presidential Elections Act requires the court to be satisfied that noncompliance with the law substantially affected the outcome of the election and the court has twice previously in 2001 and 2006 petitions, ruled citing the rather ambiguous premise.
Mr Mbabazi yesterday seemed to go straight for the substantiality test and convince the court that had the votes in the more than 45 districts not been tampered with, Mr Museveni would not have scored 60.7 per cent or the former premier would have got more than 1.4 per cent of the votes cast.
Mr Walubiri said: “The contention by many people is that the results as announced by the Electoral Commission do not tally with what was announced in the polling stations. That is why the European Union asked the Electoral Commission (EC) to bring declaration of results forms for each of the polling stations.”
One of the options the law gives the court is to order a recount of the votes. In the new petition, Mr Mbabazi wants a recount to be made in 45 districts, saying a recount would be necessary and practical to determine the substantial effect of the malpractices and non-compliance acts of the EC in the conduct of the elections.
The districts include Jinja, Kampala, Wakiso, Kiruhura (where every registered voter voted for Mr Museveni), Sembabule, Sheema, Arua, Gulu, Lamwo, Kanungu, Buhweju, Kween, Serere, Mubende and Soroti, among others.
Mr Mbabazi is also asking for the disclosure and discovery of the data on the biometric voter verification kits for each polling station and their database on the national basis to prove that the number of voters declared by the EC was materially different from the number of voters recorded on the biometric kits.
“The biometric machines working for nine hours and allocating two minutes per voter could verify approximately 270 voters per polling station yielding approximately 7,562,700 voters nationally. In effect the 10,329,131 voters the Electoral Commission declared as having voted could not have voted on polling day.
“The number of voters declared by the Electoral Commission included numbers of the pre-ticked ballot papers stuffed at various polling stations and post-ticked and stuffed in favour of President Museveni,” the amended petition reads in part.
If it (EC) is sure and confident that the results it announced were a true reflection of what transpired on the voting day, Mr Mbabazi, also, challenges the EC to disclose and produce the declaration forms together with the images/clones of the Biometric Voter Verification System (BVVS) and electronic results transmission and dissemination system for purposes of adding up and tallying the number of votes cast for each candidate as recorded on the forms for ascertainment of the final result in comparison with that announced and declared by the Electoral Commission
“Since each voter had their finger prints recorded and names verified, and stored, its record (of the biometric machines) is relevant and necessary in determining the number of voters that voted during the election in comparison with what was declared by the Electoral Commission included numbers of the pre-ticked ballot papers at various polling stations and post,” Mr Mbabazi argues.
In what appears a change of strategy read from the shortcomings in Mr Besigye’s herculean attempt at passing the rigorous quantitative and qualitative substantiality test, Mr Mbabazi now wants the court to order a recount which brings to doubt Mr Museveni’s victory.
The court has discretionary powers to allow or dismiss the request for a recount if it deems it necessary.
“If court allows a recount that means you open ballot boxes, get original DR forms, ballot papers, report of the returning officer, compare with disc images of the biometric voter verification system that shows how many people voted,” the seasoned lawyer said, adding, “If you show that what was announced doesn’t tally that would obviously affect the result substantially. That is the real test.”
So why didn’t Besigye’s team in 2006 and 2001 ask for a recount? “We were weary then that the ballot boxes are already tampered with and if people pre-ticked you will recount and confirm the number, it is a bit of a gamble,” he said.
The peculiarity Mr Mbabazi’s team enjoys, which technological advancement did not afford Mr Besigye’s team then, is the BVVS which Mr Mbabazi wants to put to test, especially in instances where there was 100 per cent voter turnout and 100 per cent of the valid votes cast in Mr Museveni’s favour.
This means they will deploy experts to, for instance, prove it is practically impossible for 500 voters to have cast votes between 9am-4pm in areas where Mr Museveni got 100 per cent as the BVVS indicates the number that voted per polling station.
“But can the experts be believed? In 2006, we brought statisticians but court did not believe their evidence,” Mr Walubiri said.
Mr Mbabazi filed a petition challenging the announcement of Yoweri Museveni as the winner of the recent presidential elections. He contends that the process was a sham and what was announced was not a reflection of what transpired on voting day.
The nine justices, who are hearing the case, had yesterday convened pre-trial conference to set the pace for the main hearing. However, the unplanned filing of the amendment meant that a new date, Thursday March 10, had to be set.
The main hearing of the case will start on Monday next week. Court is required by law to hear and make a judgement within 30 days from the time the petition is filed. It has up to the end of this month.