Court dismisses NUP's Nyanzi bid for electoral documents
Justice Faridah Shamilah Bukirwa Ntambi dismissed the application, ruling that Nyanzi had not provided sufficient evidence to establish that the certified Declaration of Results (DR) forms differed from the original forms allegedly issued to his agents at the polling stations.
Fred Nyanzi Ssentamu had filed the application against the Electoral Commission (EC) and Madina Ntale Nsereko, who is the second respondent in the election petition. (File)
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The High Court in Kampala has dismissed an application by Kawempe Division South parliamentary election petitioner Fred Nyanzi Ssentamu seeking access to original electoral documents relating to 73 polling stations.
Justice Faridah Shamilah Bukirwa Ntambi dismissed the application, ruling that Nyanzi had not provided sufficient evidence to establish that the certified Declaration of Results (DR) forms differed from the original forms allegedly issued to his agents at the polling stations.
The judge ordered that costs of the application shall abide the outcome of the main election petition.
Nyanzi had filed the application against the Electoral Commission (EC) and Madina Ntale Nsereko, who is the second respondent in the election petition.
He sought orders compelling the EC to produce and allow inspection of several electoral records, including Official Report Books, original DR forms, Accountability of Ballot Paper Forms, Scanner Print Out Reports and Deployment Books relating to 73 contested polling stations.
He also sought an order compelling Madinare to produce her original DR forms for the same polling stations.
Nyanzi told court that DR forms obtained through his agents differed substantially from the forms certified by the EC.
He argued that the documents sought were necessary to enable court to compare the different records and establish the alleged discrepancies.
The EC and Madinare opposed the application, arguing that Nyanzi had not demonstrated the relevance and materiality of the documents he sought.
They also argued that Nyanzi already had DR forms obtained through his agents and that Nantale’s forms had been attached to her answer to the petition.
The respondents further argued that the application amounted to a fishing expedition aimed at searching for evidence to support allegations that had not been sufficiently established.
Before considering the merits, Justice Bukirwa Ntambi rejected the respondents’ preliminary objection that the application was premature.
The judge said the respondents had not identified any provision of the Parliamentary Elections (Interim Provisions) (Election Petitions) Rules prohibiting Nyanzi from seeking discovery and inspection before commencement of the hearing.
She noted that although election petitions are subject to an expedited procedure, that consideration did not by itself make the application premature.
On the merits, the judge said discovery may be ordered where documents are relevant and material to the matters in issue, are not privileged, are in the possession or control of the respondent and attempts have been made to obtain them voluntarily.
Justice Bukirwa Ntambi noted that Nyanzi had not attached the specific DR forms which he alleged had been given to his agents at the 73 polling stations.
As a result, she said court could not make a preliminary comparison between the forms allegedly obtained by his agents and the certified forms.
The judge also noted that a certified copy is, by its nature, a true copy of the original record it represents.
She said Nyanzi had not provided evidence showing that the certified copies did not faithfully reproduce the contents of the originals.
Regarding the other electoral documents, including Official Report Books, Accountability of Ballot Paper Forms, Scanner Print Out Reports and Deployment Books, the judge said Nyanzi had not identified any specific entry, incident or discrepancy in those records that would establish a different result from the certified DR forms.
Justice Bukirwa Ntambi therefore held that Nyanzi had not established the relevance and materiality of the documents sought.
She said ordering production of the documents in the circumstances would amount to a general search for evidence to support the allegations.
The application was consequently dismissed, with costs to abide the outcome of the main election petition.