Court starts at 10.34am. Chief Justice (CJ) Bart Katureebe and justices of the Supreme Court walk in. CJ apologises for late coming.
Mwesigwa Rukutana (Deputy Attorney General):
My lord, the Chief Justice, Justices of the Supreme Court, I am Mwesigwa Rukutana, the Deputy Attorney General, appearing for the Attorney General (AG). Counsel for all the parties are the same.
To a large extent, the reporting has been calculated to arouse anxiety and speculation in the population and paint a gloomy picture on the likely outcome of these proceedings…. It has been a consistent pattern, reporting that is suggestive of the manner in which your lordships may decide is not allowed under our jurisprudence and the media, much as we want the matter to be publicised, should be prevailed upon to report objectively. I thought on behalf of the respondents we would raise these matters and pray the court directs the media to be objective in their reporting. I am much obliged.
CJ: We are very concerned; right from the beginning I raised this matter here. We allowed the press in to cover this matter live for no other reason other than that people know what is happening, so the truth comes out. It is wrong to try and distort something that has come out in the open and give it a spin. If that is freedom of the press, then I believe media council should pick interest. It is professionally wrong, especially if you are telling lies. It is in the interest of people and justice to know what is going on. This court will be guided by evidence and the law.
(The Chief Justice invites Justice Tibatemwa to read the ruling of the application by Makerere University law lecturers, who last week applied to join the petition as friends of court (amicus curiae). Court admitted the lecturers to the petition).
Justice Tibatemwa: We are satisfied that the applicants (Makerere law dons) raise relevant points of law and will benefit court in the hearing. The court is satisfied that the applicants are quite competent, experienced in the field of law and human rights.
(Hearing of the main petition by Mbabazi starts with the Chief Justice asking the Attorney General to make his submissions)
CJ: Attorney General?
AG: My lords, the parties are both present in court.
CJ: Is representation the same?
AG: It is the same, my lords.
CJ: We shall now be moving to the merits of the petition, you can see that these preliminary applications have taken three days but we are there. From today, we have barely six days to go.
(Ping pong between Yoweri Museveni and Amama Mbabazi’s lawyers on non-delivery of affidavit evidence in time. Court takes a break. Court resumes at 12:56am
Mohammed Mbabazi (for petitioner): As we had earlier stated, we shall proceed to cross-examine Eng Dr Badru Kiggundu who has sworn an affidavit in support of the second respondent (Electoral Commission).
CJ: Yes, you have leave of court to cross-examine.
Enos Tumusiime: My lord, it is true counsel wrote to us to cross-examine chairman of the second respondent. However, under rule 14 sub-rule 2, he needs to obtain leave of court.
CJ: We have granted leave. Let’s not waste too much time on that.
(Badru Kiggundu walks to the dock as the CJ orders out journalists who had stationed their equipment. He takes oath)
Counsel Mbabazi: Dr Badru Kiggundu, you swore an affidavit dated March 9, 2016. Do you have a copy?
Kiggundu: I do.
Mbabazi: You availed us Declaration of Results (DR) forms, tallied and returned for inspection and we are grateful. Are those the DR forms and tally sheets that you used during the declaration of the winner of the election?
Kiggundu: They are the basis and foundation of my results declaration.
Mbabazi: Are those the documents you used on that day?
Kiggundu: I had an electronic transmission of the same.
Mbabazi: I am asking, did you have a copy as we saw them at Namboole?
Kiggundu: I had the electronic version of the same that you saw.
Mbabazi: So what you showed us wasn’t electronic but hard copy, so you didn’t have them at Namboole?
Kiggundu: I didn’t have at that moment they were in electronic form. First of all, let me discuss the tallying process that starts from polling stations. After announcement at the polling station, the presiding officer encloses a signed copy of the DR form in an envelope, transmit it to the sub-county, then to the district where the returning officer sits, and he is our first point of call as far as tallying is concerned. He opens the envelope, reads results as per the DR form then he submits it to the technical officer who scans the DR. The DR scanned copies come out in two or three computers depending on size of the district. The results as seen on the screen are entered, compared to see if they match. If they don’t match, questions are asked to the tally clerk until those entries match. Then the tallying officer will approve that transaction and it is entered and transmitted to the national tally centre. Why encryption? Because of hacking business going on in the world, there have been so many attempts to hack into our system so we developed encryption, so results reach as they are from the polling station. That is the basis of the declaration.
Mbabazi: You said they are signed and transmitted to the screen.
Kiggundu: Yes and wired off.
Mbabazi: Do the agents see?
Kiggundu: The DR forms are read before agents for candidates who have agents. Observers who are present are part of the assembly. So results are read, scanned and transmitted.
Mbabazi: So what is scanned isn’t screened to the public?
Kiggundu: It is read out to the audience in the hall and then transmitted.
Mbabazi: I am asking, is it screened for the agents to see?
Kiggundu: Are you talking of live screen? Limitations of funding couldn’t afford us live screens at all polling stations.
Mbabazi: When entries are read by the clerk, are they seen by the agents?
Kiggundu: On the monitor it shows.
Mbabazi: Do candidates’ agents see?
Kiggundu: I don’t know which direction you are heading; the agents were informed from the start so they are party and each of the agents had his own copy of the DR form.
Mbabazi: Let’s get this clear. When clerks enter, they enter for themselves and that is not accessible for agents to see.
Kiggundu: The arrangement is such that before that is entered, agents check on DR copies. If there is any discrepancy, it is brought forth by agents and rectified.
Mbabazi: You have observed elections elsewhere, including Kenya where this was used. Have you?
Kiggundu: I have observed systems in Ghana, the most celebrated African country in election management, and the attempted system in Kenya to see what befell of it, at least those are close home cases.
Mbabazi: Did you get to know their law allows accredited agents and in transmitting and entering, there is a specific law?
Kiggundu: I didn’t exhaust and go to areas of law as far as they are concerned.
Mbabazi: Do you know whether we have a law that allows you do scanning and transmit as you did?
Kiggundu: We have the Constitution that empowers us to manage the elections; there are no specifics that stipulate ‘manage to the last letter of these laws.’ In 2011, we had technology partly with biometric kits.
Enos Tumusiime (EC lawyer): I beg to object, the witness is not a lawyer and these are legal questions.
CJ: I thought he has protected himself adequately and counsel moved away from that question.
Mbabazi: Look at paragraph 45 of the affidavit and read the first two lines.
Kiggundu: The second respondent avers that the declaration of results was in accordance with section 57 of the Presidential Elections Act.
Mbabazi: That is your affidavit. You know provisions of section 57.
Kiggundu: I know them in and out.
Mbabazi: Can you also read 47(c). You also know provisions of section 54.
Kiggundu: Absolutely! The transmitted results of the districts were in accordance with section 54, all candidates’ agents were given opportunity to be present and observe the tallying and transmission of results.
Mbabazi: So you also know provisions of section 56.
Kiggundu: I am aware.
Mbabazi: You are required to have a return form, tally sheets, DR forms on which the official addition of votes was made.
Kiggundu: I know.
Mbabazi: Did you have them?
Kiggundu: We exercised international practice as far as election management is concerned, especially the deadline of 48 hours. It was passed on to us by a counterpart from Ghana who taught us dedicatedly. It is the process he followed in Ghana, so I haven’t made any invention.
Mbabazi: You have talked of provisional results. Section 54 says before announcing results, all envelopes have to be received by district Returning Officers. Was this done?
Mbabazi: By the time you started announcing provisional results?
Kiggundu: They had been received but when we have districts with 1,000 envelopes, we can’t tally all in a minute. That’s acceptable internationally.
Mbabazi: Can you give us a list of these polling stations?
Kiggundu: I can’t carry details on my head.
Mbabazi: We asked for the list.
Kiggundu: You didn’t ask for the list of the 500 but if you want them, we can avail them.
Mbabazi: I am saying the list of 580 Polling stations you read out in the provisional results.
CJ: You didn’t ask him to come with it.
Mbabazi: How did candidates’ agents participate in the tallying?
Kiggundu: At the national tally centre?
Mbabazi: At the district.
Kiggundu: There are a few computers, each of those agents at the polling stations got a copy of DR forms. Those not present, up to 50 per cent, you weren’t there. I have that information. If you had agents, you would have a copy but you weren’t there. I don’t see the direction you are heading my brother.
CJ: Dr Kiggundu, I suggest you answer the questions. Don’t go too far into background.
Mbabazi: Can you tell us what happened at the tally centre? Were the forms signed?
Kiggundu: There is no room for signature of the agent because the presiding officer has already read results to the public from the DR form; that is not included in the current law, you can propose in the amendments.
Mbabazi: Read paragraph 43.
Kiggundu: In reply to paragraph 41, 42 in support of the petition allegations therein are false, all agents were allowed to be present during tallying but you can see no signing is provided for.
Mbabazi: So at the polling stations they signed DR forms and not at district tally centres?
Kiggundu: It is not provided for under the law.
Mbabazi: Say yes or no.
Kiggundu: I don’t know how many times I have said no.
Mbabazi: Which law are you following?
Kiggundu: We have powers under the Constitution to manage elections in the best way possible. If it means employing technology no law specifies it, you have to be part of this side of the river to know the technicalities. This is the second time we use electronic transmission of results.