McDusman Kabega: The petitioner cannot be saying there were no results when he was given an opportunity to look at them. The petitioner has made no cogent evidence to show that the entire electoral process was flawed, nor does he adduce any evidence to show that he had any evidence from their own DR forms and tally sheets to challenge that of the 2nd respondent (EC), perhaps of their own.
Finally, my lords, the petitioner (Mr Mbabazi) has laid nothing before court to disprove evidence in support of the second respondent and did comply with the Electoral Commissions Act and the Presidential Elections Act. I will go with the prayer that the petition lacks merit and be dismissed with costs.
Okello Oryem: May it please you my lords, my name is Okello Oryem Alfred, for the second respondent. I will be addressing you on issue number three and my colleague will touch on issue number 4. My issues will be submitting on the law and my colleague on the noncompliance.
First of all, I want to associate myself with the submissions of my learned colleague especially the submissions of Byenkya.
My lords, that section has been read my times, I only want to say that the petitioner must produce evidence of incidents of non compliance. My lords, the petitioner in this case chose to instead invite the court to revisit the requirement of proof of substantiality by either ignoring the requirement of proof or by shifting the burden to the EC.
My lords, as pointed out by Mr Byenkya, that doctrine is attainable on the doctrine of precedent. I want to add another doctrine, called doctrine of substantial justice, in fact my lords, I don’t want to be the author but I want to refer you to the court’s judgment, the 2006 petition, in particular the judgment of then CJ at page 189. (he reads it out).
The point I am making is that my learned friend Mbabazi said those sections from the Presidential Elections Act are picked from the constitution and that they are fundamental. My lords, the article that provides for the departure is article 142 (4) (reads out the article)
Of course the court can recommend other submissions. The duty of the court is to enforce section 59 (6) as it is. My lords, that being the position, our next submission is that the petitioner did not provide any materials to prove non-compliance. This point has been made and I want to just focus on the other side of it. I have started with this article because the complaint of the petitioner states that there was no transparency.
CJ: There was no transparency in what?
Okello Oryem: Tallying, ascertaining and declaring the results. My lords, I was submitting that the Presidential Elections Act has several measures to ensure transparency. I don’t intend to go through the sections but I will point out at a few. If you look at the principle, one person, one vote, even at the time of polling, it should be in broad day light. All the sections that relate to polling, qualify principles of transparency.
The most important of all is the participation in the polling and tallying of the results.
There is a role for candidate’s agents to apply under section 54, which deals with tallying at the district.
However, when it comes at ascertaining the results, first of all my lords, the law does not define the role of the agent. In fact section 57 does not provide for the presence of the agents at the place where the results are being ascertained.
Let me make my point my lords, the only way the agents can protect the results of the candidate at the district and the tally centre is if they are in possession of results at the polling stations. That is the only way my lords.
The agents at the polling station, at the district and nationally tally are the eyes and ears of the candidate. In this testimony, we have heard this particular candidate (Mbabazi) did not have polling agents.
CJ:But he had 50 per cent of the agents.
Oryem: I will start from there, once the candidate has deployed polling agents, he disarmed himself from protecting his interests at the polling station, district and the national tallying centres.
Let me answer your question my lord now, the role of the agent is to make a comparison. My argument is that we don’t have evidence that relates to the discrepancy of even the 50% agents he had and that is where the problem is. The problem is that he didn’t benefit from the transfer control mechanism. My humble submission is that he is the one who did not comply with the law and not the EC.
CJ:How did he fail to comply with the law?
Oryem: By not deploying agents
CJ: Is it mandatory?
Okello Oryem: No, but he lost track of what was going on; the solution is not to assume to know what was going on. They assumed that something wrong was going on, my submission is that it not the case of concealment. The petitioner did not know what was going on as they didn’t have agents. Because of this, they could not bring evidence as they could not make comparisons and that is conjecture. My lords, the petitioner had Duncan Mutojo and James Okello as his agents at Namboole National Tally Centre. My submission is that it was futile for them as they were both incompetent. (Submissions continue for a while for the Chief Justice closes the session).