THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA

AT MBALE

PARLIAMENTARY ELECTION PETITION NO 0023/2011

NABUYOBO MUHAMADI ……………………………PETITIONER

VRS

ELECTORAL COMMISSSION…………….1ST RESPONDENT

MUBOGI TWAHA        …………………….   2ND RESPONDENT

BEFORE: THE HONOURABLE MR. JUSTICE PAUL MUGAMBA

JUDGMENT

Nabuyobo Muhamadi, otherwise referred to in this judgment as the Petitioner, filed this petition against the Electoral Commission, in this judgment referred to as the first respondent, and Mubogi Twaha,  referred to as the second respondent.  The petition was filed in the wake of elections for the L.C Chairperson for Budwale Sub County, held on 7th March 2011.  The petitioner and the second respondent contested in the polls which saw the latter gazetted as the winner with 1125 votes while the former was runner up with 1062 votes.  The petitioner contests the validity of the results which he states were conducted in contravention and contrary to the provisions of the Constitution, the Election Commission Act and the Local Governments Act.

Material to this petition are its paragraphs, 6,7,8 and 9  which I shall   lay out for reference.   They read as follows:

“IN THE ALTERNATIVE and without prejudice to the foregoing, the petitioner shall contend that the election of the 2nd respondent was invalid on the ground that the election was not conducted in accordance with the principles laid down in the Constitution, the Electoral Commission Act and the Local Governments Act and that such non- compliance affected the result in a substantial manner in that:-

1. Contrary to S. 12  (i) (e) of the Election Commission Act (sic), the 1st respondent failed to ensure that the said entire electoral process in Budwale Sub-county was conducted under conditions of impartiality, freedom and  fairness when the presiding officers in several polling stations allowed  multiple voting in favour of the 2nd respondent .
2. In Wadada polling station, the presiding officer, Mugoya Simon deliberately falsified, altered the declaration of results forms urged by the 2nd respondent and/or his polling agents.
3. In Wadada polling station the presiding officer, Mugoya Simon recorded on the declaration forms, results different from those that he counted and announced at the polling station.
4. In a  number of polling stations, the presiding officers allowed the agents of the  2nd respondent to  vote for people who had died and even the presiding officers ticked the same in the register to prove that such deceased had voted
5. In Wadada polling station the 2nd respondent’s voting/polling station, only100 (one hundred) ballot papers were issued to the polling station but the presiding officer recorded that 164 (one hundred and sixty four) ballot papers were issued.
6. In some  polling stations the results  on some declaration of results forms were changed to reflect different figures exceeding votes counted at the polling station
7. The 1st respondent relied on falsified/altered/fake declaration of result forms to declare the 2nd respondent the winner.
8. The presiding officer of Wadada polling station unfairly misled the agents to sign the declaration  forms before voting commenced

1. Your  petitioner  avers that the 2nd respondent directly and  greatly  benefited from the above non-compliance with the law in that the numerous  malpractices and  violations  of the law were of a substantial  nature and affected the final outcome of results in a substantial manner in view of the margin of  63  (sixty three) votes with which the  2nd respondent purportedly  won the election.
2. Your petitioner further avers that illegal practices and/or offences were committed by the 2nd respondent personally  with his knowledge and consent or approval namely:-
   1. Contrary to S. 152  (b) and 153  of the Local Governments Act the 2nd  respondent ferried his supporters and openly encouraged them to vote more than once at certain polling stations and to vote for the dead persons
   2. That the 2nd respondent connived with the 1st respondent’s agents/ employee/ presiding officers to cheat and indeed cheated votes in  2nd respondent’s favour at Wadada Polling station where the  2nd respondent got 33 votes but the presiding officer declared that the 2nd respondent polled 133 votes.

9.         Your petitioner states that the vote  difference of  106 votes at Wadada Polling station between the 2nd respondent and the petitioner was obtained by the  2nd  respondent through  cheating and/or the irregularities caused by the 1st respondent in flagrantly changing the results actually polled by the 2nd respondent and affected the results in a substantial manner.”

Arising from the above  the following issues were agreed at the scheduling conference:

1. Whether there was non –compliance with the electoral laws in the conduct of the election of Chairperson, Budwale Sub-County.
2. Whether the non-compliance if any affected the results of the election in a substantial manner.
3. Whether any illegal practice or any electoral offences were committed in connection with the said election by the 2nd respondent personally or with his knowledge, consent or approval.
4. What remedies are available to the parties.

Evidence at the hearing of this petition was derived   from affidavits filed in support of the petition and from affidavits responding to the petition.  Twelve affidavits were  proffered in support of the petition and they were treated as exhibits as shown below:

1          Nabuyobo Muhamadi             - Exhibit P.I

2          Wamboya Amani                                - Exhibit P.2

3          Sulaiman Mugundwa              - Exhibit P.3

4          Sheikh Buruhani Masaba                    - Exhibit P.4

5          Wanambwa Abu                                 - Exhibit P.5

6          Nakyoto Moses                                   - Exhibit P.6

7          Mubogi Sezi                                        - Exhibit P.7

8          Kamiyati Masaba                                - Exhibit P.8

9          Wamboya Kalifani                              - Exhibit P.9

10        Wamboya Siraji                                   - Exhibit P.10

11        Walumu Akim                         -Exhibit P.11

12        Rashid Namanda                                - Exhibit P.12

In addition, the petitioner was cross examined on the evidence comprised in Exhibit P. I.  On  behalf of the 1st respondent the evidence was contained in exhibit R.I, the affidavit of Kiyimba  Umar.  The 2nd Respondent tendered twelve affidavits in rebuttal.  They were exhibited as follows:

1.         Mubogi Twaha                                    -Exhibit  RR1

2          Mugoya Simon                                    -Exhibit RR2

3          Mugoya Simon (Supplementary)- Exhibit RR3

4          Namagali Yusuf                                  - Exhibit RR4

5          Wamboya  Kalifani                 - Exhibit RR5

6          Webisa Abubakali Gidima      -Exhibit RR6

7          Gidudu Twahira                                  -Exhibit RR 7

8          Wamugadu Saibu                                -Exhibit RR8

9          Gizunga Zumala                                  -Exhibit RR9

10        Wayiya Muzamiru                               -Exhibit RR10

11        Nagwere Nathan                                 -Exhibit RR11

12        Gidudu Eriabu                                    -Exhibit RR12

Besides their averments, Wamboya Kalifani and Mugoya Simon were subjected to cross examination by the petitioner.  By consent of all parties joint written notes of the scheduling conference, inclusive of the agreed upon matters as well as issues were admitted in evidence.  Counsels’ joint findings on the voters’ rolls/registers for Budwale Sub-county were too admitted in evidence as Exhibit JPRI.

Allegations of non- compliance with the electoral laws and procedure in the conduct of the elections in issue   feature in the petition.  They relate to multiple voting, individuals voting using names of deceased persons, falsification of the number of  ballot papers received by the presiding officer, falsification of the results by the presiding officer, signing of the Declaration of Results  forms (Form EC 9 ) before  voting, as well as connivance between the presiding officer and the  2nd respondent  resulting in favourable electoral  results for the  2nd respondent.

Regarding multiple voting, allegations were made that the presiding officer for Wadada Polling Station himself voted twice.  The allegation is borne in Exhibit P.I and Exhibit P.10.  The evidence to this effect in Exhibit P.I is said to be based on information received from the deponent of
Exhibit P. 12.  yet in Exhibit P.12  there is no allegation that the presiding officer in issue,  namely Simon  Mugoya, voted twice.  What is stated in Exhibit P. 12  is that Simon  Mugoya  was presiding officer at Wadada Trading Centre  polling station and that the presiding  officer aforesaid  cast his vote at Buwanangadi Polling Station .  Nothing there alleges the officer voted more than once; yet this affidavit is   pivotal to the allegation of multiple voting on the part of the presiding officer borne in Exh . P.I. Evidence in Exhibit P.10 states that Mugoya Simon voted more than once but the allegation is denied by Simon Mugoya both in his averments and during cross-examination, where he stated that he first cast his vote at Bunawangadi Polling Station where he is registered to vote  before he proceeded to Wadada Polling Station  where he acted as  presiding officer in the elections of the day.  There is no proof the presiding officer of Wadada Polling Station, Simon Mugoya, voted more than once during the elections in issue.  It was alleged also  by the petitioner in exhibit  P.I that  one Gidudu Twahira, the deponent of Exhibit RR7, voted more than once.  But Exhibit  RR7 is  emphatic Gidudu Twahira  voted once only and the  venue  was Wadada  polling station.  No evidence was led by the petitioner to rebut this.

Nevertheless claims by the petitioner that there were incidents of multiple voting are not wholly baseless.  This is evident in Exhibit JPRI.  Allegations of individuals voting twice had originally been made citing  73  cases but upon scrutiny less than 15  instances in which individuals had been registered twice and could have    possibly voted twice were ascertained.  Assuming  they did vote, there are several matters to  ponder.  Did they all vote so that they added to the number of votes cast?  Next, did all those persons, less than 15 in all,  who by default presumably  voted more than  once,  vote only  for the  2nd respondent ?  Is it not possible  some of these cases  could have   voted for   someone else, perhaps  the petitioner also?

Nevertheless,  in as  much as it is evident in Exhibit JPRI that some  people voted more than once, that is  manifest non-compliance with electoral laws.  Further  evidence of non-compliance   with the laws is where persons allegedly deceased at the time of the polls “voted” post humanly.    Apparent in Exhibit JPRI  are  14 alleged cases.  One  dead individual , Wamboya  Mubaraka, was registered twice and appears to have voted twice.  Besides the averments in the affidavit of Sheikh Buruhani Masaba, in particular,  there is no further proof that   any of the deceased persons did actually vote on the occasion.  Suffice it to say that evidence of the   deaths was never rebutted and as such survives scrutiny.  I  must add  that there is no indication as to who of the  candidates the  votes of persons allegedly dead were cast in favour  of.  Like I did earlier  concerning votes cast by persons who voted more than once, I must  recognize in the case of posthumous  voting, that votes cast in such manner were so cast  in non-compliance   with electoral laws.  Section 25 of the Electoral Commission Act relating to display of  copies of the voter’s rolls   with attendant  objections to the same was clearly  offended against.  Also relevant  in this respect is S. 51 of the same Act pursuant to  which  Operation Guidelines for the Display of the National Voters’  Register  Exercise, 2010 were made. At stake is  the onus on the  1st respondent to rid the register  of names such as those of  dead persons  upon receipt of information regarding the same.  No evidence was led to show such information was brought to the attention of the 1st respondent.

The petitioner alleges that Simon Mugoya, presiding officer , Wadada Polling station, falsified the   number of received  ballot papers.  The petitioner stated that at Wadada  polling station a total  100 ballot papers were received  but that in order that  favourable results  for the  2nd respondent  were delivered the presiding officer had manipulated the Declaration of  Results forms to  show that 164  ballot papers were received in total.  Exhibit P.I  and Exhibit P.2  relate to this claim.  Besides rebuttal of these allegations in paragraphs 8, 16 and 17  in Exhibit RR2  and in  the supplementary affidavit Exhibit RR3,  the presiding officer, Simon Mugoya, was cross examined.  Needless to say he denied claims of any falsification.   Central to the contention were the Declaration of Results   forms.  Also  referred to was  form ABP, the  Accountability of Ballot Papers At the Polling Station.  This was annexture “A”  to Exhibit RR3  and showed a total 200 ballot papers had been received on the occasion of the elections in issue at Wadada Polling Station.  The details in the said annexture “A”  also gave the serial  numbers of the  200 ballot papers as 00003401-00003600.  A notable signatory to the document, annexture “A”,  amongst others, was the petitioner’s agent    at Wadada Polling Station  indicated as  Wamboya Amani.  Evidence of  the 200 as  the correct number of ballot papers delivered at Wadada Polling station is contained   also in the exhibit affidavits RRI, RR4, RR5 and RR8.  That evidence is at a tangent with the contents of the Declaration Forms particularly in the column reading “Total Number of Ballot Papers Issued  to Polling Station.”  The figure reads  164 but the words read ‘ ONE HUNDRED FOUR’. This  is even more  confusing when the column ‘Total  Number  of Valid Votes Cast for Candidates’  shows 164 ‘ONE  HUNDRED SIXTY FOUR,’  no spoilt votes and in the column ‘Total Number  of  Unused Ballot Papers’  the figure  36  and  words  ‘THIRTY SIX’  is given.   Surely when  164 is added to 36 it   does not remain 164  but  rather it aggregates to 200.   Upon cross examination  RW2, Simon  Mugoya, admitted to having been presiding  officer at Wadada Polling Station at the material time and that he was the one who had filled in the data in both Form ABP and in the Declaration of Results Forms .  His explanation for the  mismatch  in the Declaration  of Result form  concerning the total number of ballot papers issued to the polling  station was that the difference between the figures  and  words appearing  in the Declaration of  Result Form is a result of a  mistake and that the words should  instead have read “one hundred sixty four’.  He was emphatic   a total 200 ballot  papers were issued to the polling station.  During re-examination RW2  stated that he had indicated on the Declaration of  Result Forms that 164   ballot papers had been issued because he mistakenly  thought he was indicating the total number of ballot papers  he had issued to voters.  He said the proper entry for votes issued to the polling station   should have read a total 200.  He reiterated that he had given  out 164 ballot  papers to voters and that 36  ballot papers had not been utilized.  It was contended by the  petitioner that the total number of votes issued to Wadada Polling Station was 100.  Suffice it to say that on  both the ABP  form and the Declaration of  Result forms the  signatures of the petitioner’s agents are evident, amongst  those of  other  candidates’ agents.  This suggests endorsement of the information contained in the two forms.  No evidence was adduced to support the proposition that only 100 ballot papers, or any   other sum besides  the 200 appearing in the ABP  form,  as credible.

The petition  alleges also that the presiding officer, Wadada polling Station falsified the election results in order to ensure the 2nd respondent won the elections.  This allegation is contained in  affidavit Exhibit P.I where the petitioner states that his information was from Wamboya Amani.  Indeed there is  in evidence Exhibit P.2,  an affidavit  deponed to by Wamboya Amani. Exhibit P.2  shows that a total 100 votes were issued to Wadada Polling Station and that 64  of the votes were  used  up by the voters;  to the end that the  2nd respondent  got 33 votes, the petitioner got 27 votes,  one Gidima got 04   votes while 36  ballot papers were not utilized.  Exhibit P2  ballot   papers were not utilized.  Exhibit P2  further alleges that Mugoya  Simon had falsely added 100 votes to the number of votes actually got by the  2nd respondent.  Needless  to say the  signature of Wamboya Amani,  against others, features on the Declaration of  Results form showing it was appended at   5.45 p.m  on the day of the elections.  That was after  elections had been  concluded.  The evidence of Wamboya Amani is at the centre of the petitioner’s allegations relating  to  falsification of the results.  Yet the allegation is bereft of proof. 

It is alleged in the petition that the presiding officer made agents  sign Declaration of  Results forms  prior to voting.  Here again the petitioner in his affidavit Exhibit P.I relies on information he received from Wamboya Amani, who  in paragraph  5 of his affidavit (Exhibit  P.2 )  reiterates the accusation.  Wamboya Amani was one of the two agents for the petitioner at Wadada Polling station.  That he signed the Declaration of  Results forms is not contested .  What  is in issue is the time agents,  himself in particular , signed the Declaration of  Results forms.  The Declaration  of Results forms  in issue  is annexture “B”  to Simon Mugoya’s  affidavit which is  also annexed  as “C”  to the affidavit of the petitioner.  Both show  the agents to have signed the Declaration of Results forms at 5.45 p.m on  7th March 2011.  What is more,  affidavits  RRI,  RR2,   RR4, RR5 and RR8  also show that  the Declaration of  Results forms were signed by the agents  after the elections were over and counting of the votes had been  accomplished.  Respectfully, I find the allegation lacking proof.

In general terms the petition alluded  to  connivance   between the presiding officer of Wadada polling station, namely Simon Mugoya, and agents of the  2nd  respondent.  With due respect  I find no evidence of such.

Next I must consider whether the non – compliance, if any, affected the results of the election in a substantial manner.  The  Oxford Advanced Learner’s Dictionary, 7th Edition, describes compliance as the practice of obeying rules or requests made by  people  in authority.  As regards this electoral process the Constitution, the Electoral Commission Act, the Parliamentary Elections Act, the Local Governments Act as well as subsidiary  legislation made pursuant to those statutes  must be heeded.  It is  manifest  that in the elections  for the L.C III Chairperson of Budwale sub county the process of voting  had some flaws.  It did not go as desired.  Some people voted more than  once and some people said to be dead at the time were recorded to have voted.  The other  cause for disquiet was data  entries by the presiding officer, Wadada Polling station relating to the number of ballot papers  issued to the polling station, the  number of ballot papers  actually utilized  by the voters and the number of votes cast in favour of the  2nd respondent

Section 139 of the Local  Governments Act ,Cap 243,  contains grounds for setting aside an election of a Chairman L.C III. One such   ground is that it  must be proved to the  satisfaction of the court that  there  was failure to conduct the election in accordance with the law contained in the Act and that the non-compliance and failure affected the result of the election in a substantial manner.  Section 139 (a) of the Act is material to this.  There is no gainsaying the proposition that results of  an election are   cardinal to the democratic  aspirations of the society  involved in the exercise and that they cannot be  lightly set aside except  where it is clear that the anomalies being raised  undermined the conduct of  a free and fair election.  See Ngoma Ngime vs The Electoral Commission and  Hon Winnie Byanyima , Election Petition Appeal No 11 of 2002.  Elsewhere in this judgment I have shown  why I find that 200  was the total  number of ballot papers issued to Wadada Polling Station, that 164  was the total number of votes cast on the occasion and that the number of votes cast in favour of the 2nd respondent was the recorded 133.  Those are findings of fact on the evidence available which has been related to earlier.

But then there are those voters who voted  twice as well as votes cast as if  persons  already deceased had cast them, an impossible feat  fraudulently acted.  While  such votes were cast in non-compliance as  envisaged in S. 139  (a) of the Local Governments Act it is   hard to pontificate that they affected the results of the elections in a substantial manner given that there is no known beneficiary  of the votes cast in  non-compliance .   Plainly put  there is no evidence  who the beneficiary was, the petitioner the 2nd respondent or the other contestant.  Secondly, in the elections the  2nd respondent  got 1125 votes against the petitioner’s  1062  votes.  There was a margin of  63 votes.  One is constrained to refer to Exhibit JPRI for   arithmetic certainty.  In Exhibit JPRI the number of  persons confirmed to have voted twice is less than 15,  never  mind that the petition initially gave the  number as 73  individuals.  As for the deceased appearing to have voted the number does not exceed 20 cases.  Even  assuming those who voted twice  and those cases of persons who voted  as if the deceased persons had  voted had voted as a block the  number of votes involved  would by no means have been in excess of  35.  Then if  the 35 votes  in contention were to be subtracted from the total number of  votes gained by the  2nd respondent still the 2nd respondent would be  ahead of the runner up,  who the petitioner is, by 28  votes.  But  I  work  on all this in the absence of proof that those who voted by  default all voted for the 2nd respondent.  Be that as it may, even if default voting could have occurred and  had been  proved  against the 2nd respondent, which was not the case here, it would  not have affected the results of the elections substantially.

As for allegations  that the presiding officer at Wadada polling station made agents sign Declaration of  Results forms before voting, the allegations were rebutted by evidence  both  on the Declaration of  Results forms, by affidavit evidence and the testimony of Mugoya Simon in cross examination.  Clearly I find no evidence of non-compliance because the agents signed after voting and ascertainment of the votes.

The results would by no means  be affected  given that all there was   compliance in this respect. Similarly there was no evidence adduced to support allegations in the petition that any connivance existed between the presiding officer and agents of the 2nd respondent.

There was no substantial effect on the results of the elections even where sadly,  votes were cited to have been cast irregularly .

The third  issue is  whether any illegal practice or any electoral  offences were committed in connection with the said  election by the  2nd respondent personally or with his knowledge,  consent of approval.  There was no evidence adduced to that effect .  My answer to this issue is in the negative.

In the result I find the evidence adduced in support of the petition  insufficient to cause  the  overturn of the election results.  The petition is dismissed with costs.

Paul Mugamba

Judge

27th July 2011.