1. KIDDU BONNY SSALI
2. ELECTORAL COMMISSION ::::::::::::::::::::::::::::::::::::: RESONDENTS
BEFORE: HON. MR. JUSTICE P. K. MUGAMBA.
results of the elections at Kamuwunga Polling Station and the manner the electoral exercise at the polling station was carried out.
It is contended the defects in the exercise at the polling station were substantial and that they affected the outcome of the results
in the entire Town Council in a substantial manner. For the record it should be mentioned that Kamuwunga Polling Station was
one of the fourteen polling stations in Lukaya Town Council.
It is stated in paragraph 4 of the petition that the entire electoral process at Kamuwunga polling station was characterised by acts
of lack of freedom and transparency, unfairness, commission of various electoral offences, illegal practices and or acts in contravention
of the Electoral Commission Act, the Local Governments Act and the Uganda Constitution. It is contended that contrary to section
12 (1) (e) and (f) of the Electoral Commission Act, the second respondent failed to conduct the elections at Kamuwunga polling station
fairly and/or transparently when:
that had been obtained immediately after vote counting at Kamuwunga Polling Station.
Different declaration of results sheets were signed by the presiding officer for Kamuwunga polling station and copies of the different
declaration of results are attached to the Petition as C1, C2, and C3.
The Returning Officer declared results different from those that had been obtained and filled in some of the declaration of results
forms immediately after vote counting at Kamuwunga polling station.
The balllot boxes containing the votes cast were carried away in a motor vehicle Reg. No. UCR 137 Toyota Corolla belonging to one
Mukasa a supporter and/or an agent of the 1st respondent together with other supporters of the 1st respondent leaving behind the policeman and/or security officer who had been deployed to guard the entire voting exercise at the
said polling station.
(c) Contrary to section 13 of the Electoral Commission Act, the 2nd respondent failed to act independently when the ballot box containing votes cast was carried away in a motor vehicle belonging to
one of the supporters and/or agent of the 1st respondent.
(e) Contrary to section 136 (4) of the Local Government Act the 2nd respondent failed and/or refused to announce the results of the voting at Kamuwunga polling station before communicating to the returning
The Petitioner alleges further that the 1st Respondent either personally or
through his supporters/agents committed illegal practices and offences
stated to be:
(a) In connivance with his agents and officers of the 2nd respondent he falsified and or manipulated the results and made wrong returns of elections at Kamuwunga polling station contrary
to section 167 of the Local Governments Act.
The petitioner contends that the 1st respondent should be held liable for the
offences and illegal practices. The petitioner prays also for the following
(a) A declaration that the 1st respondent was not validly elected as chairperson L.C. III for Lukaya Town Council.
(b) Nullification or cancellation of the election results for Kamuwunga polling station.
well as two others, each by one of his agents. The affidavits have
annextures to them. In their respective replies both respondents
contended there had been no wrong doing in the exercise and that the
elections had been carried out properly. Affidavits to that effect
It was agreed at the scheduling conference that evidence contained in the
Whether such non compliance affected the results of the elections in a substantial manner.
What remedies are available to the parties.
It is his evidence the 1st respondent had obtained 95 votes, one Ssentongo had obtained 53 votes while the Petitioner himself had obtained 68 votes. This
is the position illustrated in Annexture C to the petitioner’s affidavit and annexture A to the affidavit of Ssemanda.
It is also the evidence of the petitioner the results were later manipulated to read as illustrated by Annexture E to the petitioner’s
affidavit. The latter results show the 1st respondent obtained 112 votes, one Ssentongo obtained 53 votes while the petitioner got 51 votes. There is yet another annexture
which is Annexture D to the petitioner’s affidavit. This is bereft of any results on the occasion. The two agents
of the petitioner at Kamuwunga polling station, namely Nalukenge Mayi and Ssemanda Bashir in their respective affidavits narrate
what transpired at the polling station, on the day of the elections. It was from those two agents the petitioner got what information
he did regarding what happened. It was also from the two agents the petitioner says he got two different declaration of results
forms (DR Forms). The testimonies of the two agents merit scrutiny.
Nalukenge Mayi swore her affidavit in support of the Petition on 24th May, 2006. She avers she was one of the two polling agents for the petitioner at Kamuwunga polling station for elections held
on 10th March, 2006 for Chairperson L.C.III Lukaya Town Council. Paragraph 2 of her affidavit states that Matovu Grace William who
was the presiding officer at the polling station instructed all agents for the candidates to sign declaration of results form for
the polling station during voting hours. She adds in subsequent paragraphs of her affidavit:
the elections at the said polling station were filled in some of the declaration of results forms that had been signed by all the
agents leaving others blank.
at the said polling station at Kamuwunga and I delivered the same to my candidate. Copy of the said declaration of results
form is attached marked “A”.
and 53 (fifty three) votes for Mr. Ssentongo Edward at the said Kamuwunga polling station.
one) votes against 112 (one hundred twelve) votes for the first Respondent and 53 (fifty three) votes for Mr. Ssentongo Edward
at the said polling station.
first and second respondents by filling in the declaration of results forms results that were different from those that had been
obtained immediately after vote counting.
The blank form referred to in paragraph 4 of Nalukenge’s affidavit is the same as Annexture D to the affidavit of the petitioner.
The Petition also relies on the evidence of Ssemanda Bashir. His affidavit is dated 24th May, 2006. Paragraph 2 of the affidavit states that on the day of the elections for Chairperson of L.C.III and during voting
hours they signed several declaration of results forms `under the instruction of the presiding officer one Mr. Matovu Grace William’.
The affidavit goes on to state:
at the said polling station were filled in some of the declaration of results forms.
votes and Mr. Ssentongo Edward polled 53 (fifty three) votes immediately after vote counting at Kamuwunga polling station.
a copy of which I obtained and the same is attached hereto marked “A”.
above stated results under paragraph 4 hereof that had been obtained by the respective candidates.
and the petitioner ………with 51 (fifty one) votes and Mr. Ssentongo Edward 53 (fifty three) votes. Copy of
these declaration of results form with these results different from those obtained immediately after vote counting is attached and
I should note in passing that Annexture B referred to in the affidavit of Bashir Ssemanda is not on record. If it was one containing
the results being contested there is no indication of when and where Bashir obtained it. It is not clear also when he passed
on to the petitioner Annexture C1 to the petitioner’s affidavit. Was it before or after the recount? It is also
not certain from Bashir’s affidavit who it was who filled in the declaration of results forms with the results apparent therein.
Indeed in paragraph 9 of the petitioners’ affidavit he deponed that his agents at Kamuwunga polling station had reported to
him several electoral malpractices and illegal practices. It was reported to him for example that agents had been instructed
to sign several declaration of results forms by the presiding officer before the end of vote counting and that after vote counting
some declaration or results forms were not filled in. With regard to declaration of results forms section 50 of the Parliamentary
Elections Act, Act 17 of 2005 should be applicable by way of S. 172 of the Local Governments Act. Section 50 (1) of Act 17
of 2005 provides that each presiding officer shall fill the necessary number of copies of the prescribed form for the declaration
or results. The several relevant copies are mentioned. Section 50 (4) of the Act states that the declaration or results
form referred to in sub-section (1) shall be signed by the presiding officer and the candidates or their agents as are present and
wish to do so. And the presiding officer shall there and then announce the results of the voting at that polling station before communicating
them to the Returning Officer.
Matovu George William the presiding officer at Kamuwunga polling station on the occasion of the elections swore an affidavit in support
of the 1st respondent’s answer to the petition. At the time he swore his affidavit he had read the affidavit in support of the petition
by Ssenyondo the petitioner and that by Mayi Nalukenge. In paragraph 4 of his affidavit he deponed on 1st June 2006 he stated that declaration of results forms were filled and signed after voting and counting of votes. He averred
the actual results obtained by each candidate because:
one to be kept at the polling station, one in the box and one for the Returning Officer to be used for tallying.
(b) That all candidates’ agents present signed many DR Forms in excess of the required number above.
though signed by all agents present and myself.
signed by myself and all agents present.
7. That paragraphs 5 and 8 are false because the results I announced at the polling
station were as follows:
and twelve ) votes
Ssentongo Edward - 53 (fifty three)
Ssenyondo Gerald M.K – 51 (fifty one) votes.
- 0 (Zero)
650 (Six hundred fifty)
results obtained by the respective candidates which I announced and filled in all the necessary DR Forms that were duly signed by
all agents and I, in the presence of many residents of the area who attended the counting of votes at the polling station.
14. That paragraphs 8 and 10 thereof are false. No results of Kamuwunga were falsified
as manipulated as alleged.
15. That in reply to paragraph 7 of Ssenyondo Gerald’s affidavit the contents thereof are
A duly signed and filled DR Form was only given to one agent of the Petitioner.
some parts, those forms were not duly completed with votes polled by each candidate because enough DR Forms had already been completed,
and these were mere excess forms.
obtained a complete copy of the DR Forms.
“53 FIFTY THREE”
“68 SIXTY EIGHT”
to the Petitioner’s affidavit are false and a forgery and were not written by me.
or anywhere else as per my earlier explanation/account of events given above.
Besides the evidence of George William Matovu, the presiding officer, there is some
other evidence that runs counter to that given on behalf of the petitioner regarding
candidates’ respective results obtained at Kamuwunga polling station and the saga of
station. He got 112 votes against 53 for Ssentongo Edward and 51 for the petitioner, he averred. It is also his evidence
he was never given results where he had got 95 votes against the petitioner’s 68 votes. Molisi Kulabirawo was polling
agent for the 1st respondent at Kamuwunga polling station during the elections. In his affidavit sworn on 1st June 2006 in support of the 1st respondent’s answer to the petition he acknowledges the affidavit of the petitioner and the one of Nalukenge to have been read
to him. He states that contrary to what was deponed by Nalukenge the declaration forms were filled and signed after voting
and counting of votes. He adds that contrary to what Nalukenge deponed in paragraph 4 of her affidavit, she was given one copy
of the DR Form duly filled with results and signed by all agents present together with the presiding officer. It is the evidence
of Kulabiraawo that the results announced by the presiding officer showed the 1st respondent obtained 112 votes, Ssentongo Edward obtained 53 votes and the petitioner got 51 votes. It is his evidence that
he gave the DR form duly completed with the results above to the campaigner of his candidate at 10 p.m. on the night of 10th March 2006. Copy of the DR form is attached to his affidavit as `Annexture R1 - A’. According to Kulabirawo’s
evidence it is not true the petitioner obtained the alleged 68 votes as the votes he obtained are those already mentioned in the
affidavit. It is Kulabirawo’s evidence a duly signed and filled DR form was given to Nalukenge Mayi and not to Ssemanda
Bashir. It is his further evidence that the DR forms signed on the occasion were so many that it was found unnecessary to fill
results into all of them. In the event, he deponed, only one agent for each candidate was given a DR form duly filled with
results of voting at the polling station. Futhermore Kulabiraawo avers that Annextures C and D to the affidavit of Ssenyondo
in support of the petition were not duly filled with the results of the elections at the polling station because filling them with
results was found unnecessary by the presiding officer and that is how Nalukenge had kept them. Another affidavit in support
of the 1st respondent’s answer to the petition is that of Doreen Namukasa who deponed that during the elections for Chairperson L.C. III
Lukaya Town Council she was at Kamuwunga polling station as agent for Edward Ssentongo, one of the candidates. She swore her
affidavit in order to reply to the affidavits of Ssenyondo and Nalukenge. Her evidence concerning votes obtained by each candidate
at the polling station is similar to that of the 1st respondent, that of the presiding officer George William Matovu and that of Molisi Kulabiraawo. She avers that it is not true
to say the petitioner got 68 votes at Kamuwunga polling station and adds that a duly signed and filled DR form was given to Nalukenge.
She adds no such form was given to Ssemanda Bashir. Regarding annextures C and D to the affidavit of Ssenyondo her evidence
does not differ with that of George William Matovu the presiding officer and that of Molisi Kulabiraawo. It is her evidence
one agent of each of the three candidates was given a DR form which was fully filled with results and signed. She deponed that
she was one of the agents to who such a copy was given. She gave it to her candidate the following day.
The second respondent’s answer to the petition is supported by two affidavits, one is sworn by Sam Rwakoojo, Secretary to the
2nd respondent and the other is deponed by Joseph Mukwaya, the Returning Officer. In both affidavits the results at Kamuwunga polling
station are stated to be 112 votes for Kiddu Bonny Ssali, 53 votes for Ssentongo Edward and 51 votes for Ssenyondo Gerald M.K.
Both affidavits certify the elections were properly carried out.
The evidence in support of the petition disputing the results at Kamuwanga polling station and what transpired there has been rebutted
by evidence accompanying the respondents’ answers to the petition. I note the evidence from the respondents has not been
controverted. Consequently it is my finding that the petitioner concedes to the evidence advanced by the respondents
regarding the results at the polling station as being true.
The petition further alleges that there was no recount of votes by the 2nd respondent after a complaint had been lodged. This would be contrary to section 166 of the Local Governments Act. Paragraph
12 of the affidavit in support of the petition is to the effect that a complaint was lodged with the 2nd respondent on 10th March, 2006 and vote recount was sought. Evidence available however does not say at what exact stage or time the complaint
was lodged and a request for a recount made. Nevertherless the following day the 2nd respondent wrote annexture G to the petitioners’ affidavit in support of the petition. In it the 2nd respondent appointed the 13th March 2006 as the date of the recount and Ssaza Lukiiko hall as the venue for the exercise. According to the Petitioner the
exercise to recount the votes did not come to pass. This is not the recollection of the 1st respondent who in paragraph 14 of his affidavit depones that there was a recount on 13th March 2006 which the Petitioner himself attended. Then there is paragraph 9 of the affidavit of Joseph Mukwaya the Returning
Officer which states:
or manipulated as alleged, because a recount was done by myself in the presence of the District Police Commander, the Petitioner
and the 1st Respondent among others; and the votes in the box were found intact with a DR Form which had the same information as was/is on Annex.
“R1 – A” above’.
I should observe that the above evidence of recount, both by the 1st respondent and the Returning officer is not rebutted. Perhaps an affidavit in rejoinder or evidence of the District Police
Commander might have gone some way to salvage the Petitioner’s assertion that there was no recount. In the circumstances
I am persuaded to believe there was a recount which confirmed the vote result to be as stated on behalf of the respondents and not
as alleged on behalf of the Petitioner. On the evidence the tally at Kamuwunga polling station on 10th March 2006 itself cannot be faulted.
It is further urged by the petitioner that the 2nd respondent did not conduct the elections independently. Ferrying of the ballot box from Kamuwunga polling station by the presiding
officer in a car belonging to a supporter of the 1st Respondent is cited as an instance. It is pointed out that on the occasion the security officer detailed to guard election
material including the ballot box was left behind. In the process, it is argued, there was non-compliance with electoral laws.
The affidavit sworn by Nalukenge Mayi, already related to, which was sworn on 24th May, 2006 reads in part:
137 UCR Toyota Corolla belonging to one Mukasa a supporter of the first Respondent together with the presiding officer one Matovu
Grace William, one Makya Ronald and one unidentified woman leaving behind the security officer/police man who had been deployed
to guard the entire voting exercise’.
Pertinent to the above is the affidavit sworn by Ssemanda Bashir on 24th May, 2006 which states in part:
driven away in a white motor vehicle registration No. UCR 137 Toyota Corolla belonging to one Mukasa one of the supporter of the
10. THAT the ballot box was taken in the same car by the presiding officer Matovu Grace William,
and the supporters of the First Respondent to wit Mukasa, Makya Ronald, an un identified lady leaving behind the security officer
who had been deployed to guard the voting exercise.
George William Matovu, the presiding officer at Kamuwunga polling station swore an
affidavit in support of the 1st Respondents’ answer to the petition. In the
affidavit dated 1st June 2006 Matovu stated in part:
whose registration No. I do not have in my memory, and it is a taxi in Lukaya Town council.
11. That I merely used this vehicle as any means of transport and I was not aware that the owner
supported any of the candidates at the election.
12. That I do not recall other persons I found in the vehicle since I was a sharing passenger
who did hire the vehicle single handedly.
13. That the averment that the Policeman (Polling Constable) was left behind is not true because
the polling constable was following me on a motor cycle behind the taxi up to the Town Council Offices of Lukaya.
Reading the above extract one cannot help but conclude that the Police Constable travelled apart from the presiding officer and the
ballot box. Nevertheless I am at sea as to what capital the petitioner has made from that. For one it is not shown that
Mukasa was a supporter of the 1st respondent or that if he was the presiding officer knew him to be one. There is no evidence the other passengers were supporters
of the 1st respondent or that the presiding officer knew them in that capacity. Furthermore there is no evidence the presiding officer
travelled in the vehicle in issue for purposes other than commutation. No evidence of wrong doing is advanced to have occurred
in the course of the transportation. In particular no evidence of manipulation or falsification is shown to have occurred
then. The security officer has not been shown to have complained at all. Indeed the evidence contained in paragraphs 10, 11,
12 and 13 of George William Matovu’s affidavit has not been rebutted. I take it to have been conceded.
My answer to the first issue is that the elections held at Kamuwunga polling station on 10th March, 2006 taken as a whole, did comply with the relevant electoral laws and principles. One cannot however help but recall
the seemingly endless number of disparate declaration of results forms that were in circulation. This came about because on
the occasion the forms unfortunately were distributed to various candidates’ agents for signature prior to the entry
on them of the ultimate results. The agents did sign prematurely as did the presiding officer. Matters were not helped
when the presiding officer did not collect the excess forms in which he had not filled the tally results. Had he done so there
would not have been the various annextures to the Petition all claiming to be the actual results. Thankfully there is evidence
to show the results officially declared were the actual results as gathered from available testimony. I do not find electoral
laws and principles were breached in the event.
The second issue is whether non – compliance affected the results of the elections in a substantial manner. I have found
no evidence of non – compliance on the part of any of the respondents and as such elections could in no way be effected substantially
In the result I dismiss this petition with costs.