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.