Court orders EC officials to present vote tallying sheets

Friday March 18 2016

Mbabazi lead lawyer Mohammed Mbabazi

Mbabazi lead lawyer Mohammed Mbabazi (L) interacts with EC lawyers Enos Tumusiime (R) and McDusman Kabega (C) during the presidential election petition hearing at the Supreme Court in Kampala yesterday. 

By Ivan Okuda, Anthony Wesaka and Isaac Imaka

Chief Justice (CJ) Bart Katureebe and eight justices of the Supreme Court walk into the courtroom at 9:50am. Lawyers for the four parties to the petition arise and bow. Court clerk reads out the case reference.

Deputy Attorney General (Mwesigwa Rukutana): My lord, the Chief Justice, and my lordships of the Supreme Court. Because of the nature of this case, representation keeps changing. (He re-introduces counsel for the parties).

Enos Tumusiime (for the Electoral Commission): May it please your lordships, I am appearing together with MacDusman Kabega, Enock Barata, Okello Oryem, Elison Karuhanga and Eric Sabiti. For the record, the chairman and secretary of the second respondent (Electoral Commission) are in court.

Severino Twinobusingye (counsel for the petitioner): My lords, we are constrained by our learned friend Mr Tumusiime. He wrote to this court on March 14 a letter where he lied that we inspected the documents. Unless this is handled, we are constrained.
Tumusiime: My lord, if that is what the letter says, we apologise.
CJ: That is why I said yesterday you should have copied in the other counsel when you wrote to court. We shall give appropriate directions on this matter.

Tumusiime: My lord, issue number one is whether the second respondent complied with the EC Act and the Presidential Elections Act (PEA). Permit me give a brief background to the duties and obligations of the EC, if I may go back to article 61 of the Constitution and the preamble of the Constitution of Uganda. First, before the Constitution was made, there is the Universal Declaration of Human Rights (UDHR) 1948. Article 21 of UDHR states that everyone has the right to take part in the governance of his country by electing representatives and the will of the people shall be the basis of the authority to govern.

My lords, these words rhyme again and again with our Constitution, EC Act and PEA. Article 1(1) states that all power belongs to the people who shall exercise it in accordance with the Constitution. The people shall express their will on who should govern them and how they should be governed through regular free and fair elections and referenda. Those provisions are captured in article 61 of the Constitution in as far it provides the functions of the EC; a) to ensure regular free and fair elections are held, organise, supervise elections in accordance with the constitution, ascertain, publish under its seal results, hear and determine election complaints arising before and after the polling, compile, maintain and update a voters register and perform other such duties as may be prescribed by parliament.

Section 4 of the EC Act repeats in the same terms and provides in more detail the powers of the EC….

My lord, the petitioner has made several allegations regarding this and it is my duty to look at those allegations in comparison with what the EC Act, PEA and Constitution say. The answer is supported by the affidavit of Eng Dr Badru Kiggundu and there are several other affidavits we shall refer to. As the chairman stated, the February 18 election was a process which you can trace from when the 2011 election was conducted. I invite court to look at the affidavit of Mr Joshua Wamala. He is the head of elections management at the EC. He gives background right from 1989 which, as your lordships fully know, we would line up behind candidates. In 1994, the Constituency Assembly used a hand-written register; in 1996 for the first time, the Interim EC came up with a computerised voters’ register which was used in 2001 where the EC started compiling a photo bearing register which used face matching technology to reduce multiple registration and as a result of that the voters’ number reduced from 11 million to 8.5 million, meaning 2.5 million ghosts voted previously. That register was updated and used in 2006 and in 2011, EC introduced a partial biometric and part photo register. It is necessary to give this background to comprehend where we have come from and reached.

The petitioner alleges that the EC failed to compile a voters’ register. My lords, the EC avers that it duly exercised its statutory duty to compile, maintain, revise and update the voters register and denies contents of the amended petition.

He states in that affidavit that despite the success in 2011, the register had challenges, including capturing partial finger prints (four instead of 10) and EC was only able to capture finger biometrics of 30 per cent of the registered voters….

In order to address challenges affecting the register, the EC decided to adopt full finger print technology and it was necessary to compile a fresh voters’ register. The EC submitted a proposal to government that had significant financial implications and in 2014, government took a multi-sectoral approach, bringing on board the EC, the Uganda Registration Services Bureau, the National Information Technology Authority and the Uganda Bureau of Statistics.

In the process of capturing data on the national ID, government undertook to incorporate necessary information that would enable the EC extract the same information to use this card for voting purposes. The registration process at village, parish, sub-county and district levels was managed by the EC under the supervision of the EC district registrars. We want to dispel this allegation that the national ID was not made or created for purposes other than the electoral process. Following that, EC appointed a period for general update, gazetted this notice and had an extensive media campaign to inform Ugandans about this exercise. Because of the high turn up, EC extended general update to May 11 and invited voters to confirm their particulars and those not eligible were reported... That is the register we all used.

CJ: Perhaps clarify, because at some point, the allegation was that EC had no powers upon which the register was compiled.
Tumusiime: My lord, the words the Constitution has used (compile, maintain, revise and update) are so wide that in 2006, you actually used the word prepare.

I will quote Justice Katureebe SC (as he then was); the word used was in that 2006 case of Besigye Vs Museveni “prepare”. Whether we call it by any other name, the truth is that the register was prepared. To crown it all, the petitioner has not filed affidavits to show there was no register. My learned friend [Asuman] Basalirwa kept talking of retiring and archiving voters; there is nothing like archiving a voter; what EC did and Dr Kiggundu explained was that when you prepare a new voters’ register, you don’t throw away the old; you keep in the archive, which is a sensible thing to do. If anyone wants to complain that record will be there. As in Wamala’s affidavit, it is not the first time it was done and the petitioner at that time was a minister of the government of Uganda, and he never raised a finger about this process. This is what the petitioner used on his nomination and there is an ID number; he cannot deny it now.

Asuman Basalirwa (for the petitioner): My lord, just to make the record straight, the words ‘retiring’ and ‘archiving’ appear in the gazette the EC issued, so they are not my words and those words were used by Dr Kiggundu. So it is not correct for my learned colleague to claim I used those words.
CJ: You have clarified.
Tumusiime: The problem was with my learned friend’s English; that you cannot retire and archive a voter and it was repeated thrice.
(Court bursts into bouts of hysterical laughter)
Tumusiime: My learned friend Kiwanuka Kiryowa referred you to the Registration of Persons Act (RPA), 2015, and I wish to refer your lordships to section 65 that talks about use of information in the register. Section 65(2) states the EC will use the information in the register to compile, maintain, revise and update the voters’ register.

Having said that, it is my humble submission that the EC didn’t fail to compile the voters register and we pray you so hold.
Let me now address you on the nomination of the first respondent (Yoweri Museveni).

My lords, EC denies any alleged illegality and states General Museveni was duly nominated on November 3 as the NRM sponsored candidate. It didn’t extend any deadline to give him unfair advantage. My lords, Joshua Wamala’s affidavit captures more detail of the nomination process and he states that the election roadmap was prepared by EC fixing dates for nomination of candidates and on October 2, EC, following amendments to the PEA, extended the date to November 3-4, to enable candidates and EC comply with the amended law. That is the reason EC extended the nomination dates.

Looking at section 11 of the EC Act, I don’t find anywhere any reason, because Mr Twinobusingye claimed NRM had not held a national conference, but as far as section 11 is concerned, no one can read into this section what my learned friend claimed. The nomination was in conformity with the law. We pray that pleading be dismissed.

(Court adjourns and resumes at 11:30am)

L-R: Electoral Commission officials Sam

L-R: Electoral Commission officials Sam Rwakoojo (secretary), Jotham Taremwa (spokesperson) and petitioner’s lawyer Mohammed Mbabazi share a light moment outside the Supreme Court in Kampala yesterday. Photo by DOMINIC BUKENYA

Tumusiime: The petitioner alleges that EC delivered polling materials late. I wish to draw the attention of this court to section 28 of the PEA; distribution of materials within 48 hours before polling day. Each returning officer (RO) shall furnish a presiding officer (PO) in a district with sufficient polling materials.

This is from the RO to the polling officers at the polling stations. Section 6(2) of the same act reads: the commission shall also transmit each RO a sufficient number of ballot papers not later than 24 hours before polling day. If the RO receives from the commission polling materials in 24 hours, then it will be very difficult for the RO to move or provide to the polling station these materials in that time. So I think there is a problem with the law and the court may wish to advise the legislature on these provisions. The AG has heard and I believe he can also take note.
My lords, the EC avers that it carried out its duty and only authorised persons handled the materials and refers to the petition as vague.

In the affidavit, reasons are given for the delay; there was miscalculation of the time required to make improvements to the Declaration of Results (DR) forms. Previously, the details had to be filled by hand but now the new design has bar codes, particulars per polling stations and candidates’ names and photos printed. The chairman has attached the samples to show the distinction between the old and new design.

This affected the closest districts of Kampala and Wakiso and it was not deliberate. In fact, mitigation measures were put to ensure no voter was disenfranchised. In I.5 per cent of the polling stations in Kampala and Wakiso, voting was postponed and all affected voters cast their votes in accordance with the law.
Justice Eldad Mwangusya: But if it is true, the farthest districts got materials on February 15, where you have Kaabong and you also have Mukono.

Tumusiime: There are certain exceptions but I agree with court that Mukono is nearer.

Justice Mwangusya: On February 17, you have Arua, Nwoya but you also have Kampala central in the same group….
Tumusiime: I don’t want to guess from the bar but I wish to point out that there were no complaints. Mulekwa gives the reason why there was a miscalculation. He talks about the old forms that were generic and goes into detail on why it was necessary to change to a different form. He indicates the commission was required to print 11 pages of the 28,000, roughly 300,000 copies custom made to 28,010 variations and you can imagine how big this job was.

Justice Mwangusya: In 110 (districts), there was no problem but why were you able to do it 110 and not these two [Kampala and Wakiso]?
Tumusiime: My lords this………………(he stammers).

Justice Mwangusya: This gigantic problem you are talking about; I don’t think you can compare the number of polling stations in Kampala and Wakiso with those other places, some of which have less than a million voters.