Mbabazi winds up case, asks court to annul Museveni victory

Verbatim. It is second day of the main hearing of Amama Mbabazi’s presidential petition against president Museveni’s election. The petitioner’s lawyers, led by Mr Muhammed Mbabazi, made their final submissions in support of the petition, with the respondents’ lawyers scheduled to make their responses starting today. Ivan Okuda, Anthony Wesaka and Isaac Imaka were in court and bring you highlights of the proceedings.

Court starts at 10:12am.

Chief Justice (CJ): Mr Mbabazi proceed.

Muhammed Mbabazi: My lord, before we broke off yesterday, we had referred you to the affidavit of James Okello and Duncan; the essence of their evidence is that they didn’t do any tallying.

Justice Esther Kisakye: Which issue are you tackling in your argument?

Mbabazi: At the time of announcing the results, there was no tallying and when they went to the tally centre, they were only viewing what had been announced. In the affidavit of Pontius Namugera in paragraph 22, he says they were just shown what had already been tallied. How was the tallying done? Mr Namugera has the answer in the affidavit.
My lords, from this evidence, it is very clear at the national tally centre, there were no tally sheets, no Declaration of Results (DR) forms and this was in non- compliance with the Presidential Elections Act (PEA) that requires availability of those sources of results. My lords, why do we need DR forms? They are a creature of the Constitution, they are not a creature of the statute. The actual results of the vote are in the DR form. Article 68 is very clear on that, on polling after counting in the presence of all the agents, you sign the DR form witnessed by those present. Fortunately, when we had Eng Kiggundu, he gave an elaborate description of what happened.

The Constitution stipulates the results are in the DR form, which goes through the district tally centre to the national tally centre. So, Section 56 of the PEA is not out of the blue, it is a precipitation of the Constitution. Our submission is if there are no DR forms, then there are no results!
The Act has provisions, some of which are fundamental and others the breach, which is an irregularity. This one is fundamental. This is when you have mandatory and directive provisions, this is one of the mandatory provisions, you must do it, if you don’t, it is an irregularity.
From Namugera’s evidence, we have evidence of the chairman who was in court. When he was asked how they safe-guarded against irregularities and errors, he stated that technology replaced the old system.

My lords, at this stage, we may ask, what is tallying? I may not go into the definition but I will provide authorities other than the dictionary but it is to count, add up, and the totals correspond. In the same vein in Joshua Wamala’s affidavit paragraph 4 to 6, dated March 14, goes into what tallying is about, gives a hint at what it is. The question is; was this done at the national level? Namugera says they were given what to view, Kiggundu said they would just post what the system had already done and that’s all.

When Kiggundu was in court, he was asked if he had DR forms, tally sheets and return forms from districts at the national tally centre and he answered no. He said they had scanned; unfortunately the scanned copies are not available in court and were not produced. Our burden is to show the requirement under Section 56, wasn’t complied with. This, your lordships, we have discharged; an attempt to get DR forms and tally sheets was rendered futile. Indeed, we went for inspection, asked for documents and we never received them. Without those DR forms, tally sheets, return from districts, there were no results upon which EC could declare a winner. So we are saying the outcome of results declared was a nullity. If they had results, which were not the ones under Section 56, it was the duty of EC to bring them to court and say this is what we used and we start comparing. But now we don’t have DR forms and scanned copies, so where are we? We don’t have results!
I wish to refer to the affidavit of Sasha Juma, the second respondent’s affidavit; he was the returning officer of Kabale. Sub paragraph six, he says he received DR forms through the sub-county collection centre, then in seven, he says he supervised tallying.

Upon completion of the said tallying, he electronically submitted results to the national tally centre. Then in paragraph eight, he says he knows that both results for the presidency and MPs were tallied and announced at Kabale District tally centre in presence of all candidates’ agents and other stakeholders. He attached a report of what happened at the tally centre as annexture A. In the last page of that annexure, he says there was interruption as the server had to be transported to Kampala to download results as it was very slow. So why this contradiction? The first affidavit says results were announced and in his report, he says they couldn’t because the server broke down. Actually, it was so slow and was taken to Kampala. This shows there is something being hidden, there is concealment of fact.

The affidavit of Mike Sebalu gives a completely different picture of what happened at the tally centre, may be he attended some other place and not Namboole. In paragraph four, he says EC allocated each of the presidential candidates’ team a computer in the national tally centre. Namugera says how they (computers) were distributed, which showed breakdown of results as from districts. If you see what Namugera attached as results, he attached district summaries. There is no breakdown of polling stations, may be this was another tally centre. He also says the computer was updated online with EC results. He continues in paragraph eight, contrary to James Okello’s evidence, that there was no complaint by him (Sebalu) or his candidate (Museveni) and that he confirms all results were duly shown to them at the tally centre in Namboole and they had access to the whole process at the tally centre. My lords, Namugera’s evidence states that you could see just what was being tallied.

Masiko Douglas also swore an affidavit for the second respondent as returning officer of Hoima District. He attached tally sheets to his affidavit as annexure B under paragraph seven. Mr Masiko confidently says he signed the tally sheet on February 20, 2016. The question is if consolidation of results was done by the system (electronically transmitted), when did he sign this? Was it also scanned? At least it wasn’t mentioned in the evidence that it was scanned. All this shows the election process of course was in violation of Section 56 and principles in the underlying sections.

Why was this concealment? May be uncoordinated lies; one saying this and the other saying that. We can only get the answer in what we have been emphasising; the noncompliance was deliberate. You don’t have the DR forms, tally sheets, returns, you manipulate whatever you entre and get the results! The only way we could have solved that was through social media, people would have photographed some of the results, sent to right candidate, especially through Whatssap, Facebook but those ones were blocked and there is an affidavit, actually three affidavits, my lord. One is by Kale Kayihura (police chief) for the third respondent (Attorney General), another by Godfrey Mutabazi (Uganda Communications Commission) for the third respondent and Ndahura also for the third respondent (AG).

They justify why the social media was blocked by the Joint Operations Committee, that there was national security. Now, in the affidavit of John Butagira, also for the AG, we begin from paragraph six, he discovered an open seal in one of the ballot boxes, took photographs using a mobile phone, circulated via Twitter, Facebook and Whatssap and the DPC received calls from EC, USA embassy and he called the RDC to convene a district security committee meeting. A photo of an electoral offence now became a security matter. A district committee security meeting chaired by the RDC convened and complaint was that Kasigwa had taken photos of the open seal. So Kasigwa was summoned to attend a security meeting for taking a photograph. He accepted authoring the message and circulating it, the committee handed him over to police for further interrogation.

Mr Butagira says Kasigwa was detained, released on police bond on February 18, and the file forwarded. Butagira, who is referring to Kasigwa in his affidavit, was justifying the arrest. This shows why everything was being done in such a manner. So in the context of Section 56, and all other provisions, it is our submission that the election process wasn’t transparent nor fair. The second respondent instead enacted. I use the word enact, his own law and used his own results to declare the first respondent the winner.

The law requires they use the DR forms, they didn’t use them. Kiggundu clearly stated that what we wanted to discover isn’t what they used. There were scanned copies but not availed to us. Most importantly, wherever the electronic transmission method has been used, there is a law as we shall point out in the authorities. In Kenya, there is a law, there is a law in Ghana, as in Philippines. Now, what is the basis of using electronic transmission of results in contravention of Section 56, how did they move away from the hard copies as stipulated by the Constitution which says DR forms which go through district tally to the national tally and that EC consolidate results looking at the DR? Why did they have to do this?

In absence of DR forms, there was non-compliance with reference to Section 48 (3), read together with Sections 54 and 56 (9) that say the candidate is entitled to be present with agents at tallying for the purpose of safeguarding interests of the candidate. We have shown at tallying they weren’t there. My lords, it is our submission that fundamental departure from the principles underlying the sections we have brought forward rendered the outcome a nullity. Elections are a process; it begins from registration, to the voting, counting, signing, transmission, collecting of results, tallying and consolidation at the district and national level and then declaration. All that has to be transparent and impartial. Even the EC says at first stage, they did everything transparently but at the second one (district level), there were two tally clerks with DR forms to read, tally and send to national tally centre at Namboole; the EC announced results which are now the question of this petition, where did they come from in absence of tally sheets?

The second plea of defence, my lord, is paragraph 28 of the EC’s answer, that in any event the receipt of these documents referred to in Section 56 (2) by EC is not a prerequisite for declaring the winning candidate. In response, that is your (court) duty to interpret Section 56 in the context of the principles we have outlined and the section itself. We will submit the authorities. We need to determine whether the section is mandatory or directive, they say it is directive and our submission is that it is mandatory.
My lord, we tried to get the documents, they are not here but we had already discharged the burden of proof to the second respondent to show what they used was a nullity. We probably have to go back and do a fresh tally at the district and later at the national level or as we shall submit in the reliefs to have the election annulled.
My lords, Kiggundu was in court and he testified on the Biometric Voter Verification System (BVVS). He really praised the system but it failed in one aspect of being transparent, what it takes in it doesn’t take out.

Why? The engineer-doctor repeated the process, he says it takes 30 seconds but Duncan, who went for training, went through the processes, says it takes two minutes and there was a complication that it takes eight hours to verify 540 persons. That was his evidence. He also said it can produce records. The engineer confirmed that in his affidavit. He, however, said it was not configured to produce results. My lords, we have to evaluate if this is credible. You want to clean the system, there were problems of multiple voting, ballot-stuffing, now you brought a system which after it has done its work, its information remains yours, not the public. The transparency is what we need to interrogate.

Unfortunately, the affidavit in rejoinder was expunged from the record. However, I shall refer you to the affidavit of Mr Sasha Juma Adam in support of the second respondent. This is their evidence, this is evidence of a district returning officer; he is stating the use of BVVS made the polling slow such that by 2.30pm, very many voters were still queuing to cast their vote.

Enos Tumusiime: There is no such paragraph.

Mbabazi: I said in the annex, second page from the last. The use of BVVS made the polling process a bit slow such that by 2.30pm, many voters were still queuing to cast their vote. The RO says it was very slow, so many people were queuing, Kiggundu says it takes 30 seconds, the affidavit we have says two minutes; question is, why conceal the BVVS? If information had been availed, we would see the time it takes. He said information is available but we can give it you after the election cycle. He didn’t deny it is there which would have been relevant for this inquiry.

CJ: Conclude this and we take a break.

Mbabazi: My lord, on the BVVS that is the most I can do.

CJ: We shall resume at 11:30am.

Court resumes at 11:41am with counsel Mbabazi proceeding with the submissions.

Mbabazi: My lords, contrary to Section 48 of the PEA, (which says 48 hours within polling day), Eng Kiggundu says ideal time is 24 hours; we didn’t cross-examine him on the law but it says within 48 hours, every Returning Officer shall furnish the statement showing the number of ballot papers applied, other necessary voting materials. He asked to be forgiven and tried to explain in his affidavit. Most material is the numbers affected, in cross- examination, he said about two million were affected against 15 million registered voters. My lord, if you look at the results, you will note that at the time of announcement of results on 20th February, only 48 per cent of the registered voters had voted in these two districts.

Justice Lillian Tibatemwa: Are you talking of final or provisional results?

Mbabazi: Final results. This one they concede, the only difference is in figures, they say about one million, the whole of Kampala and Wakiso is about two million.

CJ:Registered voters?

Mbabazi: Wakiso has about 900,000 and at the time of announcing of results, only 48 per cent of registered voters had voted. The point is, the one million plus voters disenfranchised.

Ebert Byenkya: There is a misrepresentation of fact; there is no admission they hadn’t voted. It is not true.

Mbabazi: My lord, his time will come, that is how I have read it.

CJ:Proceed.

Mbabazi: We are saying they were not part of the results and why? This was a stronghold for other candidates.

Judge: You are saying this was a stronghold of the petitioner?

Mbabazi: I said not of the first respondent. He was in the 30s and others in the 60s, these are on the record.

Museveni’s counsel: We beg to interject, he refers to a record, refer to that record. Don’t make general statements.

Mbabazi: Much obliged.

CJ: Is there a particular part of the record you are referring to we move on?

Mbabazi: Annexure EC 14, tally sheet of final results. It shows first respondent trailing and the rest being taken by the petitioner and others. My lord, I was talking about what happened at the polling station and referring to the affidavit of Mikidad Yusuf.

CJ:Is that evidence of the petitioner or respondent?

Mbabazi: He is number one on the petitioner’s file. My lord, Yusuf tells what happened at Nalukolongo. He says voting began at 5pm. At 2.30pm, the presiding officer disappeared and returned with NRM pre-ticked ballot papers he handed to him.

The first respondent has filed in rebuttal of Asiimwe Amos’ affidavit. In paragraph four, Asiimwe states he received the said materials at 8.30am, and the said time indicated in DR form completed and signed at the end of the voting. The chairman said materials were sent late. Here, someone says they came at 8.30am. Who is telling the truth? That falsehood is what I need to emphasise. The chairman apologised, said the materials went late. Here, someone says they went at 8.30am, yet Yusuf’s evidence is in sync with the second respondent’s evidence. You can see the effect was deeper than materials arriving late. But even such occurrences; the presiding officer was not being at the station; so the people were disenfranchised more than we think because of late delivery of materials.
So my lords, as I conclude on this point, I need to refer you to paragraph 31 of the petition that having showed there was non-compliance with the law, the burden shifted and it was incumbent on the second respondent (EC) to avail what they used to declare the first respondent (Museveni) as the winner.

Asuman Basalirwa: I am going to specifically handle the issue of non-compliance with regard to the voters’ register and voters’ identity cards. My lords, it is the contention of the petitioner that the second respondent abdicated its constitutional responsibility under article 61 (e) that mandates it to compile, maintain, revise and update the national voters’ register. My lords, according to the affidavits of Joshua Wamala, affidavit in support of the respondent’s answer to the amended petition, particularly paragraph 12, Mr Wamala basically states that the second respondent obtained data that had been compiled by the National Security Information System taskforce to produce a voters’ register. That, my lord, is the essence of paragraph 12 of Mr Wamala’s affidavit. We contend that the duty to obtain data for purposes of establishing a national voters’ register is an exclusive preserve under the Constitution of the second respondent. That duty, my lords, cannot be ceded to any other authority in light of Article 62 of the Constitution.

The failure by the second respondent to compile its own data and instead use data from other agencies was in our view a statutory violation in the nature of an omission that certainly affected the credibility and integrity of the voters’ register.
My lords, during cross-examination yesterday, an attempt was made by Eng Kiggundu to seek refuge in the Registration of Persons Act (RPA) 2015 to claim that under that legislation, the EC was enjoined to use data compiled for the process of the national ID registration process. The RPA makes reference to that line. However, it has limitations that definitely affect the process of compiling a register by the EC. Registrations can be cancelled by the authority, meaning data can be lost.

The programme for registration under that law is certainly different from the registration programmes of the EC, making data obtained under that law insufficient for EC to compile a voters’ register. To make matters worse, Kiggundu, the chairman of the EC, mentioned that the EC retired the 2011 voters register. We contend that the said retiring and archiving of the register has no basis in law and an attempt to replace the 2011 register with another register was in itself irregular, my lords. My lords, nowhere does the law envisage retiring and archiving registers. The law talks about compiling, revising, updating, not retiring. The effect of this retiring and archiving was that there was disenfranchisement.

Kiwanuka Kiryowa (Museveni’s counsel): Just for guidance, if counsel could guide us where that evidence is.

Basalirwa: I am coming to that.

CJ:How many were disenfranchised?

Basalirwa: I have one case of Mao Norbert.

CJ: Yesterday, I told you that case wasn’t before us. If you say it resulted into disenfranchisement, how many were affected and tell us which record you are referring to.

Justice Opio Aweri:How many voters were retired?

Basalirwa: I will come to the numbers. I am looking at the legality, then I look at the numbers.

CJ:I thought you addressed the legality and said this resulted into disenfranchisement?

Basalirwa: Let me first address the effect and come to that. The effect of retiring the 2011 register was that people who didn’t register for the national IDs didn’t participate in the 2016 election.
Kiwanuka: What is your evidence? Refer us to it.

Mbabazi: My lords, the affidavit of Sesibeza Moses.

CJ: I have that affidavit. Can you point to which paragraph you are referring?

Basalirwa: My lords, there is Gerald Sendagire.

CJ:Are you abandoning this one?

Basalirwa: Yes, it doesn’t talk about that specifically. I would like to refer to the affidavit of Joselyn.

CJ: What happened to the others?

Basalirwa: I have abandoned them. My lords, this is the affidavit of Joselyn Kabasinguzi in the second respondent’s answer in support to the amended petition. (Basalirwa goes quiet, peruses his file for a while as CJ reminds him to proceed. Fellow counsel whispers to him.)

Justice Tibatemwa:Is it paragraph 3 (e)?

Basalirwa: Paragraph…….(goes silent). My lords, I think I will abandon that as well.

CJ: Mr Basalirwa, I assumed you knew the case you were presenting. You can’t take us on a fishing expedition of affidavits. You have to finish your case today.

Basalirwa: I am sorry I thought that affidavit was among these. My lords, people who were required to vote in the 2016 election were actually those who had been registered under the National ID Programme and those who had been on the previous register of 2011, were not eligible.

Kiwanuka: Where is the register?

Justice Stella Arach Amoko: What is your evidence?

Basalirwa: Kiggundu said it yesterday.

Eldad Mwangusya: What was his evidence on the act of retiring the register? What did he say happened to data of the old register?

Basalirwa: He said it was archived.

CJ:I seem to have heard something different.

Byenkya: He didn’t say people were archived.

Basalirwa: I hope counsel is not asleep, I am talking about data.

CJ:He talked of a hand-written register. If it is modernised by typing, would that discard the names there?

Basalirwa: My understanding of Dr Kiggundu was that whatever was contained in the 2011 register was archived and of no consequence.

CJ: So before he came, you didn’t have evidence to support allegations that people were disenfranchised?

Basalirwa: We had prepared it in the rejoinder.

CJ:The rejoinder was not your primary case. Proceed.

Basalirwa: According to Dr Kiggundu in his testimony, those not on the register in 2011 and information in that register was retired and archived, by implication it was of no use in the 2016 election. We submit that in itself was a grave omission that had consequences on this election.
My lords, finally the issue of voters cards. The second respondent failed in its duty to provide voters’ cards to Ugandans who actually qualified to register in the 2016 election and the absence of the voters’ cards undermined the identification of voters at polling stations.

Kiwanuka: My lord, I request my colleague to show us evidence of people who say their identity was compromised by absence of voters’ cards.

Basalirwa: Look at the affidavit of Joselyn Kabasinguzi in support of the EC’s answer to the amended petition 3(d). In response to paragraph 17 of the affidavit of Roy Peterson Mugasa, she states: “I know that around six people appeared at the station with their national IDs, but when we verified the national voters register, their names weren’t in the register.”

CJ: Wasn’t there an explanation for that in the affidavit you are reading? It says, “the sub-county supervisor told me people registered for national ID at 16 were not eligible to vote. That is why they didn’t qualify.”
Basalirwa: That is where the point lies. I want to explain the import of that. It is that in the absence of voters’ cards, if EC had issued the cards, such scenarios would not occur!

CJ: Would a 16-year-old vote?

Basalirwa: No.

Eldad:So where would they get a voter’s card at 16?

Basalirwa: The EC had an obligation to provide voters’ cards to all registered voters, they didn’t and the voting was undertaken through national IDs.

CJ:You would have been on firmer ground if you had your own evidence. You are replying to someone’s affidavit.

Basalirwa: This was expunged! So what do we do?

CJ: (visibly irritated) Proceed.

Basalirwa: The law requires the second respondent to issue voters cards, Section 26 of the EC Act and more vitally where one changes from one station to another, the EC is required to have that card cancelled and that person to be struck off the roll of that station. In the absence of voters’ cards, this is not possible, practically. I wish to emphasise that Section 19 of the EC Act is to the effect that for someone to become a registered voter, they have to apply and the import of Section 19 is that once you apply and you are a registered voter, only death can take you away from the register.

CJ: What if you cease to be Ugandan?

Basalirwa: That is the other incident (courtroom breaks into laughter). My lords, any act that seeks to deregister a voter through instances of retiring or utilising data from other agencies is a nullity.

CJ: You still haven’t given us evidence to go by that anybody was removed by virtue of retiring the register. You took us through five affidavits and didn’t find that evidence.
Basalirwa: I am submitting on the law. The EC chairman himself said it when I put it to him.

CJ: Is there a factual basis evidential for your submission of the law?

Basalirwa: The chairman confirmed that information was archived. Finally, we humbly submit that in the absence of a voters’ register compiled, revised and updated by the EC and absence of voters’ cards, this election was a nullity.

Justice Eldad: Counsel, we may assist you. Did the chairman say they have a form of registration? Did he say they went by the register combined with the National ID? I recall him saying it was combined with the IDs.

Basalirwa: They state in their affidavit, of (Wamala) how they came up with a new register.

Justice Mwangusya:They are talking of a register. Is there one?

Basalirwa: Yes, he states the EC obtained data from the ID project and was able to compile a full biometric register as of March 31, 2015.

Justice Mwangusya:Is there a register or none?

Basalirwa: There is a register. Our point is that it was illegally compiled, we are stating it was illegal to retire a register of people who applied to register and exclude them from the new register. I rest my case.

(Court takes a lunch break).

Petitioner Amama Mbabazi’s lawyers wind up their submissions.

Jude Byamukama: My lords, it’s our contention that in evaluating the petitioner’s case (Mr Amama Mbabazi), in particular and in determining issue three of determining the question of substantiality, you need to move away from the approach of the previous two decisions for various reasons, some of which are indicated in the persuasive decisions. My lords, I would like to refer to the dissenting judgment of Justice Wilson Tsekooko of 2006, in particular at page 218.
Commenting about Section 59, the learned Justice suggests that the provision appears to me to give the candidate to cheat or flout the law but do it in such a way that the cheating or flouting ought not to be so much. The cheating ought to be such that it can be tolerated by the courts. Then another portion if a presidential election is won through fraud, cheating or through flouting of the law and the Constitution, the dissatisfied candidates and their followers may create instability among the population.
Allowing candidates to cheat even as little as cannot affect the results would render the elections a nullity. Indeed, tolerating cheating and fraud can mean that it is not necessary to hold elections. Your lordships, these, in my view, are very powerful and prophetic words and in a sense, he (Justice Tsekooko) expresses this motion of the whole substantiality issue.

Justice Kisaakye:You are coming to the end of your case, have you laid down any evidence of cheating?

Byamukama: Yes

Justice Kisaakye:Non compliance and cheating are different.

Byamukama: But why should we have secrecy in conducting and tallying elections, that is the cheating I am referring to.

CJ:You need to wide up your submissions.

Byamukama: Yes my lord, thanks, the authorities will be availed to you.
CJ: Just before you finish, you raised a very important issue but quickly abandoned it, what forms the issue of inquiry.

Byamukama: Your lordships, I don’t think the manner required into inquiring into a presidential petition are meant to take away the court’s time . We are getting lost, expunge this affidavit from the court record, but you, the justices need to do a thorough inquiry into this petition. For example, the biometric voter machines - you could bring a neutral expert to demonstrate how they operate.

CJ: If it was an ordinary trial, well, we could give adjournments here and there but this is a special matter that has timelines.

Byamukama: First of all, making an inquiry, is not only for the petitioner to bring in evidence, actually, my lords have powers to ask for any evidence to be brought. In conclusion, we invite your lordships to determine the question of substantiality.

CJ: Thank you.

Mbabazi: My lords, in my submission, I had talked about directory and mandatory provisions of the Presidential Elections Act, I would cite the relevant laws. I would find that in Setinde Sebalu Vs Sam Njuba, we argue your lordship to look at the whole context and you come to a finding that there were no results, and if there were no results, then you cannot apply the substantial test when there are no numbers. So the numbers are based on valid input. This is what I was arguing in the morning that there were no results.
We urge you your lordships to consider these judgments in your inquiry and grant the petitioner (Mr Mbabazi) the reliefs sought and they were;

My lords the reliefs sought are in paragraph 41. Relief one is an order for a recount and we also seek for an order that Museveni was not validly elected as president and that his victory be annulled.
My lords, we have one issue remaining which that of AG to joined to the petition. When we are making our final response, we shall submit on that. Thank you.

CJ: Thank you, I think we have compensated for the time we lost yesterday, the respondents start tomorrow. We adjourn till tomorrow at 9.30am.

Court dissolves