Court name
High Court of Uganda
Judgment date
20 June 2016

Waguma v Electoral Commission & Anor (Election Petition-2016/11) [2016] UGHC 11 (20 June 2016);

Cite this case
[2016] UGHC 11
Short summary:

Elections

Coram
Mutonyi, J

THE REPUBLIC OF UGANDA

 

IN THE HIGH COURT OF UGANDA AT JINJA

 

ELECTION PETITION NO.11 OF 2016

 

BADOGI

ISMAIL WAGUMA:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::PETITIONER

 

VERSUS

 

ELECTORAL COMMISSION &

BWINO FRED KYAKULAGA::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

 

 

JUDGEMENT BY HON. LADY JUSTICE MARGARET MUTONYI

 

 

  • My Lord Alex Luganda appears for the Petitioner.  My Lord I am also holding brief for Counsel Kafuzi Kwemala with whom we are jointly representing the Petitioner.
  • Counsel Mwebya Mathias appears for the first Respondent.
  • Counsel Isingoma Esau appears for the second Respondent and he notifies me he is equally holding brief for Counsel Kiryowa Kiwanuka for the second Respondent.
  • The Petitioner and the second Respondent are present in court.
  • There is no representative from the first Respondent.

 

Alex Luganda:

 

My Lord this matter is coming up for Judgment and we are ready to receive the same.

 

Court:

The Judgment is ready.

 

Both the Petitioner and second Respondents were candidates for the Election to the seat of the Member of Parliament for Kigulu North Constituency in Iganga District which attracted a total number of 8 candidates.

 

The Parliamentary Elections were held on 18th February 2016 throughout Uganda.  The first Respondent conducted the elections as per his statutory mandate and declared the second Respondent as the winner having polled 17800 votes as compared to 15651 votes for the Petitioner.  Consequently the second Respondent was named the Uganda Gazette of 03rd March 2016 as the winner.  The Petitioner presented this Petition on 01st April 2016 seeking for the followings reliefs:

 

(a)        A declaration that the first Respondent did not conduct the Election in compliance with the law.

(b)        A declaration that non compliance with the law and practices of the Elections affected the results substantially.

(c)        The second Respondent was not validly elected as Member of Parliament for Kigulu North Constituency.

(d)       In order for a recount to issue for votes cast in the Polling Stations in Nawandala Sub county which total to 23.

(e)        A declaration that the Petitioner was the person validly elected as Member for Kigulu North Constituency.

(f)        The costs of this Petition to be paid by the Respondents.

 

In the Petition, the Petitioner in summary made several allegations as below:

 

That there was none compliance with the Electoral Laws and the Constitution during the election as it was infested with illegal practices and electoral offences like ballot staffing, multiple voting, manipulation and falsification of results on declaration of Results Forms at various Polling Stations particularly at Nawandala Sub county.  That the results from Nawandala took too long to be transmitted to the tally centre until the Petitioner complained.  This was after he was leading in Nambale, Nabitende, and Namungalwe with a big margin.  Nawandala results were later on announced around 7:00 p.m. on 19th February 2016 amidst protest and heavy secret deployment.  That persons other than the designated presiding officers for certain Polling Stations, signed declaration of result forms for Kiwanyi Primary School N-Z, Nawangaiza Primary School Polling Station, Nawandala Primary A-M Polling Station, Kiringa Primary School Polling Station and that several declaration results forms indicate that there signed at 4:00 p.m. meaning that they signed them before counting started.  He further alleged that the Polling Agents of the Petitioner were chased away from some stations like at St. Andrews Memorial Primary School and Nawangaiza Catholic Church and other people who were not known to him signed for example Wakibi Ismail was chased away and there was multiple voting was cited at Namusisi A-M St. Andrews Memorial Primary School and Bugongo Namabwere Headquarters N-Z.  It was alleged that violence and spreading of false propaganda was also done in this election.  That generally the Election was not free and fair.

 

The Petitioner provided the statements of grounds; he wishes to rely on to sustain his prayers in paragraph 7 – 22 of his Petition.  His Petition was accompanied by his Affidavit and 10 of his witnesses later on filed supplementary Affidavits and some other Affidavits in rejoinder.  He filed further 4 more Affidavits in rejoinder from his witnesses.  The first Respondent in response to the Petition filed an answer to the Petition denying the allegations.  It relied on the Affidavit of Jackson Higenyi Kabire the Returning Officer of Iganga District.  The second Respondent filed an answer to the Petition denying all the allegations his evidence was contained in his Affidavit together with 27 Affidavits of his witnesses. 

The parties intend to rely on the declaration of results forms supplied by the Electoral Commission for Nawandala Sub County and generally for the whole Kigulu North Constituency. 

 

The Issues:

 

The parties agreed that on the following issues:

 

  1. Whether there was none compliance with the law on the conduct of the Parliamentary Elections for Kigulu North Constituency in Iganga District.
  2. Whether such none compliance if there was any substantially affected the results of the elections.
  3. What remedies are available?

 

The law applicable this Petition was filed under a provisions of section 61 1(a) of the Parliamentary Elections Act herein referred to as PA of 2005 as amended which provides that the Election of the candidate as a Member of Parliament shall only be set aside on any of the following grounds if proved to the satisfaction of the court;

 

  1. None compliance with the provisions of this Act relating to Elections if the court is satisfied that there has been failure to conduct the Elections in accordance to the principles laid down in these provisions and that non compliance and failure affected the results of the Election in a substantial manner and subsection 2; that when an Election is set aside a fresh election shall be held as if it was a by Election in accordance with section 31. 

 

  1. It is trite law that the burden of proof in an Election Petition is generally on the Petitioner who bears the burden to prove all the allegations made by him or her unless accepted under special circumstances and by statute.  The proof has to be to the satisfaction of court.  The standard of proof is on the balance of probabilities as stipulated under section 61 sub section 3 of the Parliamentary Elections Act.  The question of the degree of probability required in order for the Trial Court to be satisfied that an allegation has been proved to its satisfaction or settled in the land mark case of Election Petition No.01 of 2001 Canol Rtd Dr. Kizza Besigye Vs. Museveni Yoweri Kaguta and the Electoral Commission where Odoki Chief Justice as he then was in his leading majority Judgment used the following words and I quote; “that since the legislature chose to use the words proved to the satisfaction of the court, it is in my view that that is the standard of proof required in an Election Petition of this kind.  It is a standard of proof that is very high because the subject matter of the Petition is of critical importance to the welfare of the people of Uganda and their democratic governance”.  This implies that the degree of probability required for proving allegations in Election Petition is higher than that required in ordinary civil suits.  True democratic governance entails people choosing or electing their leaders through voting which is conducted in a free and fair elections in full compliance with the Electoral laws and regulations. 

 

  1. The first Respondent is body cooperate that is entrusted with conducting Elections and ensures that the Electoral process is conducted in accordance with the electoral laws.

 

 

  1. The electoral Commission Act CAP 140 spells out particular functions of the electoral Commission pertaining to preparations and conduct of Elections under parts 2, 3, & 4 of the Act.  If the commission is to be faulted it must have acted contrary to its statutory obligations.  Under the constitution and the electoral laws made there under through its none identified staff since it is a body Corporate.  It does not have a body and mind of its own, it operates through its employees who are its brain.  The employees of the first Respondent must therefore comply with the Electoral laws in the course of execution of their mandate.

 

The Petitioner was represented by Rwakafuzi and Co. Advocates together with Luganda Ojok & Co. Advocates.  They filed their written submissions which are on record.  The first Respondent was represented by Sekana Associates Advocates & Consultants who also filed written submissions and the second Respondent was represented by Kiwanuka and Karugire Advocates who filed their written submissions.

 

I have carefully considered their submissions and the relevant authorities cited and needless to mention I found them very useful.

 

Issues:

 

I am starting with the first one of whether there was none compliance with the law in the conduct of the Parliamentary Elections for Kigulu North Constituency Iganga District.  Various allegations were made in respect of non compliance with the electoral laws at various Polling Stations.  The main allegations raised pertained to the declaration of results forms and sections 50 sub section 1 of the Parliamentary Elections Act provides for the declaration of results forms as follows:-

 

Each Presiding Officer shall fill the necessary number of copies of the prescribed form for the declaration of results as follows:-

 

  1. 1 copy of the completed form shall remain attached to the report book referred to section 6 (1 c).
  2. Once 1 copy should be retained by the presiding officer for display in a conspicuous place at the Polling station.
  3. 1 copy shall be enclosed in an envelope supplied by the Commission for the purpose sealed by the Presiding Officer and delivered to the sub county Headquarters or division headquarters to the designated officer of the Commission together with a report book for transmission to the Returning Officer.
  4. 1 copy shall be delivered to each of the candidates Agents or in the absence of those Agents to any voters present claiming to represent the candidate.
  5. 1 copy shall be deposited and sealed in the ballot box.
  6. The Presiding Officer shall in the presence of the candidates and the candidates’ Agents as may be present seal the ballot box with a seal provided for the purpose by the Commission.
  7. A copy in the context of section 50 supra is a reproduction of the same record for avoidance of doubt.  All the 5 copies must contain the same information. 

 

This in my opinion would ensure that the results cannot be altered at any one time.  The candidate would be in position at any one time to compare his copy with a copy which is used to declare results that is the one that is sealed in the ballot box and transmitted to the Electoral Commission.  The provision of the use of a prescribed form and copies is also intended to safeguard against forgeries and or alteration and falsification of results which is an Electoral office under section 78 (a) of the Parliamentary Elections Act.  The details of the information on the prescribed form are provided for under section 47 of the Act. 

It is therefore a statutory requirement that the presiding officer duly fills and signs the form as provided for under the law. 

It is also clearly indicated on the declaration of result forms that note and I quote; “the Presiding Officer should ensure that all and ALL is in capital letters, ALL information is duly filled and signed”.  I believe ALL is in capital letters for emphasis.  Any Presiding Officer who is not an illiterate which is defined as a person who cannot read or write or understand the contents of a document written in a particular language should be in position to duly fill the form and sign it.  A form that is not duly filled even if it is signed by the Presiding Officers breaches the law. 

 

It should however be noted that failure or refusal by the candidates Agents to sign the declaration of result form cannot by itself invalidate the results announced.  The same applies to announcing results in their absence but the above is subject to clear indication on the declaration of the result form by the Presiding Officer as to why they did not sign.  The moment reasons are not indicated and issues are raised to the effect that they were denied an opportunity to sign or their signatures were forged then once the allegation is proved to the satisfaction of court, it can be a ground for invalidation of the announced results.  Needless to mention all stages of the Electoral process are very important but the declaration of result form is very crucial because this is the document that is used to declare results.  Its filling and signing must be in compliance with the law.  Bearing the above provision of the law in mind and the importance of the declaration of result forms in the electoral process.  Let me look at specific allegations. 

 

  • It was alleged that at Nawangaiza Catholic Church Polling Station, the Petitioner’s Agent, Buyinza Simon did not sign because he claimed on that day they were approached by the Agents of the second Respondent with an offer of money so that they allow him to steal the vote. 

 

  • That they refused and they were chased from their post.  The complained to their Supervisor who came to the Polling Station.  He was also ruffed by the supporters of the second Respondent but he insisted and they resumed their seats but he remained at the Polling Station but when it came to signing he did not sign because he had not witnessed part of the voting.  This evidence was contained in the Affidavit of Buyinza Simon.  Ngobi Balidawa Moses translated for him and also signed as the Commissioner this Affidavit as evidence is dated 01st April 2016.  The form the Affidavit took was a bit regular but given the liberal approach courts have taken up Affidavits in Electoral Petition, Court has allowed it and this was similar to all those Affidavits which needed certification.

 

  • The second Respondent relied on the Evidence of Kiwumo Julius the Presiding Officer of the first Respondent who presided over the Elections at Nawangaiza Catholic Church Polling Station.

 

  • The Petitioner obtained 10 votes while the Respondent obtained 438 votes.

 

Kiwumo Julius the Presiding Officer deponed under paragraph 7 of his Affidavit dated 11th May 2016 that after closure of the voting, we started counting the votes, and after counting the votes all the Agents of the candidates at the Polling Station signed the DRFs without raising any complaint.  Under paragraph he avers that voting went on smoothly and peacefully at my Polling Station and there was not a single interruption.  When court looked at the copy of the Petitioner’s DRF for this station and compared with that of the first Respondent, a certified copy of which was supplied to court the Presiding Officer was Kiwumo Julius and no single Agent for any candidate signed.  He indicated they were not present on this declaration of results form that they were not present. 

This is a serious contradiction with his evidence on oath.  Buyinza Simon stated he refused to sign.  The Presiding Officer claims he signed.  The official document indicates that he did not sign.  In court while under cross examination Kiwumo Julius came face to face with his lies and then claimed some Agents get excited and did not sign the declaration of result forms.  He was at liberty to clearly indicate that reason on his declaration of result form, he did not.  In submission Counsel for the first Respondent, submitted that failure to sign by an Agent does not invalidate the results.  This is in line with what I have already explained above.  However this is not the case here.  It is not a question of refusing or failing to sign.  It is a question of lies told under by an Officer of the first Respondent who is mandated to ensure that Elections are conducted in a free and fair environment in compliance with the law.  It is a question of the purity of the electoral process.  It is not believable that even the Agents of the winning candidates did not sign and witness the results.

 

In view of the fact that the first Respondent Presiding Officer lied under oath because his incompetency was put into question and the truth had to suffer, Court is convinced that the Elections at Nawangaiza Catholic Church Polling Station were not conducted in compliance with the law.  Court cannot believe a Presiding Officer who lies under oath to protect his image that is in question.  In case an Agent does not raise the complaint in writing he is at liberty to refuse the DRF as an indication that he does not believe in the results.  It is up to the Presiding Officer to fill in the DRF clear reasons why the Agent did not sign.  Lying that he signed well as not raises a lot of suspicion on the purity of the results.

 

Another regularity or non compliance was reported at Malobi Primary School Polling Station where one Kakaire Hassan in rejoinder deponed in his Affidavit dated 23rd May 2016 disputing the allegation of him having signed the DRF for Malobi Primary School Polling Station. He stated under paragraph 4, 5, 6, & 7 that Mutadhuba Peter and Kunya Emmanuel were lying about the alleged smooth exercise.  The 2 had deponed that the exercise went on smoothly and peacefully without any incident and that he signed the DRF.  He attached his National Identity Card that is Kakaire Hassan and an old students Card from Kaliro Technical Institute showing his signature.  He denied the signature appearing under his name on the DRF. 

 

The Petitioner’s witness stated under paragraph 5 of his Affidavit that he ran away for his dear life.  This allegation again faults the first Respondent in conducting the Election. 

Mutadhuba Peter who claimed to be the Parish Supervisor claims he was personally and voting went on smoothly.  That he personally witnessed the counting of votes at this Station.  Kunya Emmanuel the Presiding Officer averred under paragraph 8 of his Affidavit dated 13th May 2016 that all Agents signed the DRF.  The Petitioner at Malobi Primary School Polling Station got 131 votes while the second Respondent got 318 votes.  The signature appearing on the DRF is clearly and distinctly different from the official signature of Kakaire Hassan.  It appears like writing of letter H on letter K and adding S to make it appear like a signature comparing the official on Kakaire’s official document and that on the DRF one cannot rule out forgery.

 

Counsel for the first Respondent submitted the alleged forgery case has not been reported to Police.  Failure to report to Police the allegation of forgery does not invalidate the allegation.  This court in fact has the authority to refer matters to Police for investigations because forgery as a criminal offence can only be proved beyond reasonable doubt in an Election Petition it is to be proved on the balance of probabilities. 

 

 

In my opinion comparison of the signatures appearing on the DRF and the official National Identity Card of Kakaire prema facie established the need to refer to Police the investigation of the handwriting and the signature appearing on the DRF with that of Kunya Emmanuel, Ikoba Abdu, Kyaterekera Enos and Kakaire Hassan to establish who indeed wrote Kakaire Hassan’s names and signed as him.

 

In view of the prema facie case established the results appearing on the DRF for Malobi is questioned as it raises suspicion as to the authenticity of Hassan Kakaire’s signature.  This means that the DRA is not reliable.  In the case of Mbugadhi Fredrick Nkayi Vs The Electoral Commission and Dr. Nabwiso Frank W.B. in Election Petition No.14 & 16 of 2011.  Court of Appeal pronounced itself on a case where the Judge conclusively decided that the signature of a Polling Agent was a forgery.  It held that where the signature of the Respondent’s Agent was in question the matter assumed are criminal element and should have been subjected to experts investigative assessment with respect the learned Judge ought to know to have allocated to himself the role of a handwriting expert especially where there was nothing to compare the signature with.  This in essence implies that where there is a signature to compare with the Judge may as an expert of experts comfortably discern that the questioned signature was a forgery.

 

In view of the above I am satisfied that the Petitioner has raised a prema facie case sufficient to raise doubt on the authenticity of the DRA for Malobi Primary School Polling Station.  He did not have to prove the allegation of forgery beyond reasonable doubt.  I have no cogent reasons to doubt the reasons advanced by the Petitioner for failure by his Agent to sign on the DRF for Malobi Primary School Polling Station.

 

 

The Petitioner also raised the issue of either denying his Agents the right to sign the DRF or tricking them into signing them before filling in the results this was under paragraph 7 (b) of the Petition.  These included Kyaterekera James at Kiringa A Polling Station.  Wambi Alex at Nawangaiza Primary School and Wakibi Ismail for St. Andrew Memorial Polling Station. 

 

The DRF for Kiringa Primary School A did not indicate Kyaterekera James as the Polling Agent for the Petitioner.  It indicated Twedede Julius I did not either find any other evidence about this Polling Station about Twedede Julius.  The first Respondent’s Counsel submitted that the Agent signed and he is estopped from denying.  He lied on the case of Babu Edward Francis Vs The Electoral Commission and Erias Lukwago Election Petition No.10 of 2006 where Justice M. H. Arach Omok now JAC held that when an Agent signs a DRF he is confirming the truth of what is contained in the DRF.  He is confirming to his Principle that this is a correct result of what transpired at the Polling Station.  The candidate in particular is therefore stopped from challenging the contents of the form because he is the Appointing Authority of the Agent.

 

I do agree with the above holding entirely.  The Electoral Commission must however show that the person who signed was indeed the candidate’s Agent.  Under section 32 sub section 2 of the Parliamentary Elections Act the Polling Agent is appointed in writing and the letter is addressed to the Presiding Officer.  This implies that the Presiding Officer must have the letter and put it on the file.  It is part of his record since the Polling Agent’s work is to guard the interest of the candidate.  Where a candidate turns around that the person who signed was not his Agent, the letter addressed to the Presiding Officer is sufficient to prove that the candidate appointed a person who guarded his interest.

 

In the instant case there was no letter confirming that Twedede Julius was the petitioner’s Polling Agent at the Station.  Babu’s case supra is therefore applicable where the DRFs are signed by the official Agent of the candidate not just any person.  The case of Shaban Sadik Nkutu Vs Asuman Kyafu Election Petition No.8 of 2006 was also quoted by the Counsel for the first Respondent.  It can be distinguished from this case.  The Petitioner’s Agents signed the DRF and the Petitioner did not disown them.  In this case the Petitioner’s Agent denied signing the DRF and there was no evidence that there are his Agents.

 

With due respect to Counsel for the first Respondent he submissions that Kyaterekera James did not sign because he was not available yet he clearly stated under paragraph 6 & 7 that he waited to be given the DRF to sign in vain and his evidence was not controverted is not tenable.  An imposter in the names of Twedede Julius signed for the Petitioner.  Court is satisfied that the Petitioner’s Agent did not sign.

 

The same facts apply to the DRF for Nawangaiza Primary School where Wambi Alex deponed to the fact he was the Petitioner’s Polling Agent but he did not sign the DRF.  He claimed the Presiding Officer refused to fill the DRF in their presence.  Incidentally one Mukama Bosco was the one who was indicated at the Agent of the Petitioner who was present.  Bulago Fred who signed as a Presiding Officer was not officially stationed at Nawangaiza primary School.  Kantono Susan who was the Polling Assistant deponed to the above fact in her Affidavit dated 01st April 2016.  At Nawaingaiza Primary School Polling Station the Petitioner got only 18 votes as against the second Respondent’s 478.  The Polling Agent for the Petitioner who were indicated to be present and signed were Mukama Bosco, and the evidence of Wambi Alex which stated that that was not the Agent was not that he was the Agent was not controverted.

 

I found the DRF of St. Andrew Memorial Primary School very interesting.  At this station the second Respondent got 424 votes while the Petitioner got 67.  The Presiding Officer Kwagala Eseza filled on the DRF the names of Mugabi Bosco and Mukibi Ismail as Agents who were present for the second Respondent.  She again indicated they did not actually refuse to sign but they did not avail themselves at the station. 

 

Wakibi Ismail deponed that he was the Polling Agent at this Polling Station for the Petitioner.  He stated that the Presiding Officer refused to give him the DRF to sign.  In her Affidavit dated 15th of May 2016 paragraph 14 she stated and I quote; “After filling the DRF at around 7:00 p.m. all Agents signed the DRFs and I gave my Polling Assistant one copy to go and photocopy for all candidates Agents. 

 

This evidence was given on oath before the Commissioner.  This evidence given on oath before the Commissioner is contrary to the official DFR for St. Andrew Memorial Polling supplied by the first Respondent which did not bear any signature of any Agent and she claimed they did not avail themselves much as they were present.  The certified copy indicated that she filled and signed it at 4:00 p.m.  Now in her Affidavit evidence she is saying at 7:00 p.m. on the real document which was used for results which was transmitted to the Electoral Commission she signed at 4:00 p.m.  This was the official DRF she claimed she saw him sign and he is Wakibi Ismail but on her DRF she indicated Mukibi Ismairi.  If Kwagala Eseza is not a professional liar, then she is at falsious in her work that she did not even know what she is supposed to do.  He evidence was so cosmetic that one would easily fall into the trap of believing if the DRF did not show the contrary in terms of what happened to the Agents and the time of signing the DRF.

 

All the above irresistibly point to the possibility with a high probability that the Presiding Officer Kwagala Eseza merely filled in the DRF for St. Andrew Memorial Primary School Polling Station exhibiting despicable conduct of the elections at her Polling Station. 

 

Her evidence in support of the second Respondent’s answer not even in support of her employer the first Respondent shows how bound she is to the second Respondent putting her independence into question and badly damaging the independence of the first Respondent.  Kulaba Godfrey the Agent of the second Respondent is equally a liar as his averments in his Affidavit dated 13th May 2016 under paragraph 8 is false.

 

The so called signed DRF was actually not signed because the DRF that was used to declare the second Respondent as winner at the Station was not signed by any Agents, not even Kulaba Godfrey.  I do not agree with Counsel for the first Respondent’s submission that failure by Kwagala Eseza the Presiding Officer at the said Polling Station to accurately state facts pertaining to the signing of the DRF for the said Station does not in any way invalidate the results and the Petitioner does not dispute the results and hence court should overlook the same. 

 

First and foremost the Petitioner is disputing the results hence this Petition.  I don’t know where Counsel got that impression that they were not disputing the results when we have a Petition in court.  Secondly the DRF is a very crucial document in the Electoral process which cannot be filled casually out of imagination.  It is the Apex of the Electoral process.  Before signing the Presiding Officer has to read these words, and I quote;”I the undersigned certify that the above information is true and correct” before signing.

 

 

 

Failure to accurately state facts in the DRF is actually an electoral offence under section 78 (a & b) which states that an Election Officer or other person having any duty to perform in relation to an Election who (a) makes in any record return or other document which he or she is required to keep or make under this act any entry which he or she knows or has reasonable cause to believe to be false and (g) without reasonable cause acts or omits to act in breach of his or her official duty commits an offence and is liable to conviction to a fine not exceeding 120curreny points or imprisonment not exceeding 5 years or both. 

 

The above provision shows how serious and dangerous it is to fill in falsehoods in a DRF.  Lying about Agents is a very serious breach because they safeguard the interest of their candidate and play a very important role in assessing the quality of the Electoral process on the Polling day. 

It is only in situations where does has been none compliance with the laws that a Presiding Officer who is compromised can fabricate information on the DRF. 

 

It is my humble view that Kwagala Eseza deliberately filled her own information for the benefit of the second Respondent on the official DRF.  The Petitioner under paragraph 14 of his Petition alleged that the first Respondent’s Presiding Officer signed DRF from Polling Stations where they were not designated.  I am only going to use Nawangaiza Primary School and Nawandala Primary School A-M Polling Stations, he used the evidence of Kantono Susan the Polling Assistant at the Polling Station who confirmed that her Presiding Officer at Nawandala Primary School was Bulago Fred.  The DRF for Nawandala was signed by Phillip Birombo.  The first Respondent claimed that was a mispacking of materials.  This was in his Affidavit evidence dated 13th May 2016 in support of the second Respondent. 

He was the Election Supervisor for Nawandala Sub County Iganga District.  He was the one responsible for distributing the election materials he averred under paragraph 9 & 10 as follows:

 

That during this process it was established that there had been a mispacking of the DRFs for Nawangaiza Primary School and Nawandala Primary School and 10. I took a decision and directed the Presiding Officer to sign the DRFs and indicate below the name of the actual Polling Station that each one was actually at.  That is the copies of the DRF for the two Polling Stations were attached.  Phillip Birombo the Presiding Officer at Nawangaiza denied Bikado Abasi’s allegations in his Affidavit in rejoinder dated 23rd May 2016.  He confirmed that he was at his station at Nawangaiza and his Supervisor was Babirye Joan not Bikado.  He signed his DRF we don’t know where it went as he had the correct Polling materials.  He even escorted the materials after voting to the Sub County.

 

He disowns the allegations of Bikado.  The second Respondent in the disputed Polling Station polled 301 against 48 and at Nawandala Primary School Polling Station A-M; he polled 478 against 18 votes respectively. 

 

Serious scrutiny of the DRF for Nawandala Primary School Polling Station A-M allegedly signed by Birombo Phillip who has denied it shows that Birombo Phillip who signed was an imposter and fraudster who is very good at forging signatures.  Since Birombo Phillip who was the Presiding Officer of the first Respondent has denied signing for Nawaingaiza Primary School Polling Station, this calls for investigation into this matter.

 

In my humble opinion materials are checked at the beginning of the exercise to ensure that everything is well.  It cannot be discovered at the time of filling in the results. 

If that be the case then it is a manifestation of gross negligence on the part of the first Respondent’s official which affects the quality of elections.  A Presiding Officer worthy the title cannot fail to discover at the beginning of the voting exercise that the DRF is not for the place for his station unless he is an illiterate who does not know how to read and understand English.  This is because the DRF are in bold capital letter print in terms of details on the first page.  The name of the Polling Station cannot be missed out until at the time of filling the DRFs.

 

The court is not satisfied with the evidence of the second Respondent and explanation in submission by the first Respondent.  Lastly there was an allegation of false propaganda that led to violence, ballot stuffing or multiple voting.

 

The Agents of the Petitioner had to abandon their Stations for fear of their dear lives.  Kapala Brian the Petitioner’s Agent at Bugongo Primary School deponed in support of this allegation.  He stated that voting was going on smoothly until after around 3:00 p.m. when people stormed the Station claiming that an Agent for the second has been killed at Nabitende.  He was threatened with death and ran away as people claimed there was ticking of ballot papers at will at Nabitende and they should also be allowed to do the same.  Later on it was false propaganda. 

 

The DRF for Bugongo Primary School indicates that the Petitioner got 6 votes while the second Respondent got 456 votes.  The Agent for the Petitioner were named as Bakali Yunusi and Muwanguzi D and the Presiding Officer was Namususwa Rachel.  The DRF was signed at 4:00 p.m.  Now imagining counting votes of almost more than 450 and we are finishing at 4:00 p.m. which is not possible because that is the time when voting officially closes. 

Even if there were no people the queue preparing the place, counting of the votes for all the candidates including Presidential and Woman Mp takes some time.  This shows that the DRF was merely filled and signed.  Unfortunately the Presiding Officer was naive and could not even imagine indicating the correct time is important.

 

Kapala Brian was not cross examined to challenge his evidence neither did the first Respondent prove that the people who appear on their DRF were Agents of the Petitioner.  No letter was produced introducing the Petitioner’s Agents since it is addressed to the Presiding Officer.  At Nawandala Primary School N-Z the Polling Agent for the Petitioner Kintu Ngobi Moses, in his Affidavit dated 01st April 2016 stated he witnessed a man who came after closure of voting and the crowd insisted they re-open, they also uttered the propaganda of killing the second Respondent’s Agent at Nabitende

Banada and beating of his supporters. 

 

Voting was re-opened and the people started afresh including those who had finished.  His testimony is collaborated with that of the first Respondent’s Officer who was the presiding officer – this was an employee of the Electoral Commission, he clearly stated that he closed the voting at 4:00 p.m. but the crowd came and demanded to re-open.  His Supervisor and the constables did not help; they were useless Police Constables around.  Voting was re-opened until 5:00 p.m.  At this Station the second Respondent had a landslide victory of 511 votes against 7 for the Petitioner.  Others got 0 while one Kifumbo got only 1. The DRF was filled and signed at 18:30 p.m.  Counsel for the second Respondent submitted that since no report was made as required under section 46 and 51 (2) of the Parliamentary Elections Act the complaint should be ignored. It should be noted that most of the complaints are against failure by the first Respondent to conduct the Elections in compliance with the law.  Counsel submission reveals the kind of Officers the first Respondent has or deployed.  Either there was no training or if they were trained, they were half baked. 

They did not even know that they are supposed to make a report on any incident which occurred at the Polling Station. The incompetence or lack of independence is the main problem exposed by this Petition.

 

Court has seen the Officers of the first Respondent supporting either the second Respondent or the Petitioner.  In all this court has evaluated their evidence critically and observed that indeed the Election was not conducted fairly in the respective Polling Stations.  Court had the opportunity to look at all the DRFs from the Constituency as supplied by the first Respondent.  In many DRFs the forms were signed at 4:00 p.m. implying that voting ended before 4:00 p.m. because counting takes some good time.  It is not possible to sign the DRF at 4:00 p.m. sharp.  Just to illustrate this point, the following DRFs indicated 4:00 p.m.  1. At Namungalwe Health Centre III N- 2. At Namungalwe Rural 3.  Naluko Primary Station N-Z in Nabitende Sub County.  4. Bugongo Trading Centre A-M at Nabitende Sub County 5.  Kakira Borehole at Nambale Sub County 6.  Nasuuti south Kasango’s place in Nambale Sub County.  7.  Namukumya – Nawandala Sub County headquarters and 8.  Bugongo Primary School in Nawandala where over 450 votes for only MP were counted.  Now if we add their for President and the Woman MP; when did they complete the counting?  Is it possible that it was at 4:00 p.m.?  All the above show that they were filled in haste of fabricated.  I also observed that on some DRFs the Agent never signed and yet they were indicated as present and the Presiding Officer never indicated why they did not sign.  A case in point the DRF from Buzaya Primary School N-Z where the Presiding Officer was Muyirima Samuel.  Nabitende B. Wandyaka in Nambale Sub County. 

 

In Kiwanyi Primary School N-Z the total number of ballots cast was not even filled and nor the number of females and males who voted was not indicated.  The above omissions have no explanations.  If the Presiding Officers were competent and the first Respondent should be held by carious responsible for this incompetence. 

Court is actually wondering whether Mwesigwa Emmanuel was in charge of his Station.  This one was at Kiwanyi.  Total number of votes – nothing.  Women and men who voted – nothing.  It was just a disaster but that was the official document they used to declare the second Respondent as a winner of this Election.

 

I have left out some Polling stations where the purity of the results are questioned.  This is because the Judgement would be very long.  The few that I have used bring out the area of investigation very clearly.  From the above evaluation it is very clear that the first Respondent’s Officials engaged in acts of falsification of the DRFs contrary to the law.  Signing of the DRF where one is not a Presiding Officer, lying that an Agent signed well as the DRF indicates no signature and putting names of people who were not Agents of the candidates all affect the quality of the results. 

 

Court is satisfied that there was none compliance to the provisions of the law in the conduct of Elections for Kigulu North constituency.

 

It takes me to the second issue of whether such none compliance if any affected the results of the Election in a substantial manner.  Both the first and second Respondents contained that none compliance with the provisions and principles of the constitution if any and the law which is denied did not affect the results of the Election in a substantial manner. 

 

Counsel for the second relied on the case of Canol Rtd Dr. Kizza Besigye supra where he submitted that Court found that substantial is a question of numbers that the Petitioner must demonstrate by way of readjustment regarding the number of votes of each instance of none compliance. 

 

The crucial point is that there must be cogent evidence direct or circumstantial to establish not only the effect on non compliance or irregularities but to satisfy the court that the effect on the results was substantial.  It is an undisputed fact that most of the atrocious non compliance was committed in Nawandala Sub County. 

 

It was also established as a fact that the results for Nawandala Sub County which led to the victory of the second Respondent delayed to be transmitted until he complained but no action was taken by the first Respondent.  It was also observed from the certified DRFs from the first Respondent that the DRF from this Sub County were filled and signed before 4:00 p.m. with only 2 at 8:00 p.m. and 8:30 p.m.  That is Kiwanyi Primary School A-M, which was signed at 8:00 p.m. and Malobi Primary School which was signed at 8:30 p.m.  What then led to the inordinate delay up to around 7:00 p.m. on 19th February 2016?  They finished very early by 4:00 p.m. they were done.  The only logical conclusion was that they were engaging in falsification of results which changed the trend where the Petitioner was leading.

 

In election Petitions it is my humble opinion that it does not matter how many votes one gets in Parliamentary Elections but how one obtained these votes.  The bottom line should be the free will of the people who participate in the Electoral process. 

 

Once it is established that victory was obtained through fraud, falsification of results, bribery, intimidation or cohesion, fabrication of results then the effect on the final result is substantial.  To leave a person who sailed through using under hand and unconventional means and undisturbed would amount to perversion of justice and democratic governance.

 

With all the glaring evidence adduced by the Petitioner including witnesses from the first Respondent who were not addent supporters of the Petitioner.  The effect of non compliance was substantial. 

 

What remedies are available to the Parties?

 

It is the duty of this court to restore purity in the Electoral process.  Many crimes are committed in the Electoral process and once the Election fever is gone the Electorate wait for the end of term and then engage in similar activities breaching the Electoral laws.  Politics should not be looked as a dirty game where only the craft can thrive or people with a heavy wallet as some Politicians think.  It should be looked at as a service to the people and the Nation.  This calls for serious investigations and prosecution where Officers are found culpable the same should apply to the Politicians and Electorate who engage in Political thugery.  This Petition has revealed a lot of rotten apples in the Election Commission.  It is not conceivable that a DRF can be filled at 4:00 p.m. prompt when that is the time of closing voting.  That a Presiding Officer can sign a DRF of a Polling Station he was not designated and lie under oath that Agents of a candidate signed well as not.  It is inconceivable that an independent Electoral Commission can ignore a complaint about inordinate delay of transmission of results for a Tally Centre and come out to defend questioned results from that particular area like what happened in Nawandala Sub County without a pinch of salt.

 

Much as the Petitioner prayed for a recount of votes in Nawandala Sub County, Court finds the prayer redundant since the quality and purity of election is questioned a recount cannot solve any of the issues raised.  In the result the Petition is allowed it succeeds against both Respondents and court accordingly makes the following orders:

 

[a]        The Election of the second Respondent as Member of Parliament for Kigulu North Constituency Iganga District is set aside under section 61 1 (a) of the Parliamentary Elections Act.

[b]        The Parliamentary seat for Kigulu North constituency is declared vacant.

[c]        A by Election is to be conducted in that Constituency in accordance with the laws.

[d]       The Petitioner shall recover all his costs from the first Respondent only that is the Electoral Commission which messed up the whole thing.

[e]        As between the Petitioner and the second Respondent, each party will bear own costs.

[f]        Court is of the view that the;

 

  1. DRF for Malobi Primary School Polling Station should be referred to the DPP for investigation with a view of investigating the alleged forgery of the Polling Agent’s signature that is of Kakaire Hassan, Kunya Emmanuel the Presiding Officer, Ikoba Abdu, Kyaterekera Enos should all be investigated in comparison with the handwriting and signature of Kakaire Hassan and

 

  1. Kwagala Eseza the Presiding Officer of St. Andrew Memorial Polling Station should also be investigated in view of the fact that she lied under oath about the contents of the DRF. 

 

They all breached section 76 (a) of the Parliamentary Elections Act.  This is in line with section 63 sub section 8 of the Parliamentary Elections Act which enjoins this court to send a written report to the DPP for further management of Electoral offences.  The Registrar of Court should take the relevant state to inform the Clerk to Parliament and the Secretary of Electoral Commission and the DPP to take the relevant action.

 

Right of Appeal against this Judgment is explained to the Respondents under rule 29 & 30 of the Parliamentary Elections Act.  You are free to appeal against my decision if you are not satisfied.

 

This Petition revealed a lot of thurgery on the part of the Electoral Commission.  It is a pity that they are not here, but Elections are supposed to be clean.  You have the right to choose your people using lawful means but not doing things the way things were done in this Petition.  So for you as the Electorate in case you get involved in forgery this is the point I want to put across.  I have recommended here that some people should investigated so if you are an Electorate and you are used to forge somebody’s signature on the declaration result form and it is proved you stand the risk of going to jail.  Politics comes to an end but I am telling you with a new trend once they find you culpable of having forged a signature you will find yourself going to jail.  Even as your MP the one you have support goes to Parliament you might not escape going to jail.  So make sure that in future when you are engaged in Politics don’t engage in dirty Politics, don’t harass others, don’t intimidate, don’t behave like thugs be civilised because it is a very important process where we elect our representatives to Parliament.

 

 

.................................

Margaret Mutonyi

JUDGE

20TH June 2016