EC defends phone tallying
Mar 28, 2006
The Supreme Court hearing Col. Kizza Besigye’s presidential elections petition seeking to nullify President Yoweri Museveni’s re-election entered Day Five on Monday at Mengo. Chief Justice Benjamin Odoki heads the seven-judge coram. Others are Arthur Oder, John Tsekooko, Alfred Karokora, Joseph
The Supreme Court hearing Col. Kizza Besigye’s presidential elections petition seeking to nullify President Yoweri Museveni’s re-election entered Day Five on Monday at Mengo. Chief Justice Benjamin Odoki heads the seven-judge coram. Others are Arthur Oder, John Tsekooko, Alfred Karokora, Joseph Mulenga, George kanyaihamba and Bert Katurebe. Joseph Matsiko, the director of civil litigation and Solicitor General Lucien Tibaruha represented the Electoral Commission, the 1st respondent. Alfred Wasike, Anne Mugisa and Hillary Kiirya recorded the proceedings
Matsiko: The failure to declare results thus contravening the PEA. That ground is pleaded in paragraph 8 of the petition. The affidavit of the petitioner alleges that the first respondent declared results from districts without a return form, without reports of the elections, tally sheets and declaration of results forms.
Mulenga: Paragraph what?
Matsiko: Paragraph 9. In paragraph 26, the petitioner alleges that the first respondent did not rely on the figures submitted by the returning officers in those districts in declaring results. It is our submission that the petitioner has not proved that the declaration of the presidential elections results contravene the PEA. Declaration of results is governed by section 57 of the PEA. Subsection 1 states: The EC shall ascertain, publish and declare in writing the results of the presidential election in 48 hours of voting.
I would like to rely on the word ascertain as it is used in that section and submit that it is a very key word .
Kanyeihamba: Where does he ascertain from?
Matsiko: No particular method. It is not restrictive.
Kanyeihamba: I thought it was your contention that you relied on 57.
Odoki: I am sure he will go back to 56.
Matsiko: The EC is therefore given wide latitude to employ any transparent methonds to ascertain the results of the election. The rationale in that wide latitude is found in article 103 clause 7 of the Constitution. It is at page 88. It reads: “The EC shall ascertain... and announce the results within 48 hours from the close of polling.†The word ascertain is used both in the Constitution and in the PEA to enable the EC....
Kanyeihamba: So you say it is not limited?
Matsiko: Example phoning, faxes.
Tsekooko: Are those transparent?
Odoki: May be you should address us on… You seem to be saying that the other provisions are not relevant.
Matsiko: Specifically the affidavit of Wamala Joshua. Page 131 volume 4. In para 2 he shows that he tallied all the results from all the district in close supervision with the first respondent. It is tradition the world over that the ECs receive results from the districts by fax, phone or radio calls. He said the results transmitted by phone were done through a common listening device for all the parties. The results transmitted by phone were recorded. The first respondent had received results from 56 by Saturday.
In the absence of the law prohibiting these methods, they were transparent.
Kanyeihamba: Why do you think that Parliament did not mention, not even once, phones or faxes?
Matsiko: They did not want to limit the EC.
Kanyeihamba: Why?
Matsiko: For the purpose of not limiting the EC latitude. The method depended on the availability of the means of transmission.
Tallying of the results used a computer programme that automatically produces tally sheets. Section 56, the marginal notes read: “the returning officer shall.†my understanding is that section 56 requires a returning officer to immediately.......
Katureebe: Would immediately be two days or?
Matsiko: It means soon after counting.
Kanyeihamba: This morning you conceded that some areas had some cancellations due to some disturbances.
Matsiko: In Pallisa
Kanyeihamba: Was it indicated on the fax?
Matsiko: The returning officer is part of the EC. He has a right to cancel. Through his agents, the returning officer is able to know that there were some disturbances. To demonstrate EC transparency, I refer to Sam Rwakoojo’s affidavit.
Mulenga: It is a supplementary affidavit.
Matsiko: Yes, it confirmed Wamala’s statement that the first respondent and previous ECs and other countries receive results via phone, radio or fax where available. The EC kept close contact with all the stakeholders including the candidates throughout the whole process. Page 263d.
Odoki: What is at page 263d?
Mulenga, Karokora: I don’t have that one.
Odoki: Pagementation is a serious problem.
Matsiko: That annexture shows that a meeting was held between the EC and the presidential candidates. That it was imperative to have in the results as soon as possible. The Constitution required the EC to announce the results within 48 hours of voting. The petitioner’s representatives were party to that decision.
Mulenga: Which decision?
Matsiko: That the candidates would send representatives and the EC would provide the facilities like phones, fax etc to receive the results.
Kanyeihamba: Some parties were uncomfortable, then you say they agreed.
Matsiko: If you look at the minutes, it was decided like that. They were part and parcel of this decision.
Kanyeihamba: Paragraph 8 of Rwakoojo’s affidavit, the cancellation from some polling stations, had he found that the results would affect the results, would he have cancelled?
Matsiko: It is just poor construction of English (laughter). My lords the last one is the ground of alleged failure to take measures to ensure that the entire electoral process is conducted under freedom and fairness. This is where the petitioner argues that the Constitution and the PEA were violated because the first respondent failed to ensure a free and fair electoral process. That ground is not proved. The petitioner did not show that in the entire constituency, the whole of Uganda, the first respondent did not take measures to ensure free and fair elections. The petitioner relied on the affidavit of Kamateneti Igrid Turinawe.
Matsiko: The first affidavit there. This was an attempt to show that the elections were not free and fair. (Reads Turinawe’s affidavit): “I sat in our FDC offices to receive reports.†I submit that it is all hearsay.
Mulenga: But she is receiving reports from field officers.
Matsiko: This court will only rely on facts. The point is that the evidence is not believable and should not be used.
Kanyeihamba: Just a few minutes ago you said that the first respondent received results through the telephone. I am saying receiving a message is hearsay.
Matsiko: But....
Mulenga: That the EC declared the results before verifying them. Now you turn around to say that in the case of Kamateneti, you should not believe her.
Matsiko: The law empowers the EC to use all.
Kanyaihamba: Which law?
Odoki: Let us allow him otherwise he will not finish his case.
Matsiko: There is also the affidavit of Augustine Ruzindana, at page 11. It was extensively submitted on by my learned friend Nkurunziza. I associate myself. He also relied on Salamu Musumba’s affidavits. I adopt his submissions. The petitioner has not adduced believable evidence that the electoral process was not free and fair. Look at the affidavit of Steven Ongaria, Volume 4, page 130.
Kanyeihamba: Is it handwritten?
Matsiko: No. Ongaria is a member of the first respondent and chairman of the National Electoral Consutltative Liason Forum. He says it was formed by the EC. It comprises of him as chairman, acting head of the legal department, the PRO, one senior electoral officer and two permanent members from each of the participating parties.
That in its meetings, the Forum discussed and resolved electoral problems in a transparent, free and fair manner, including the decision to count and tally. This is how the second respondent emerged and was declared winner.
This evidence is not challenged. In concluding the first issue, it is my submission that the petitioner has not proved his case and the issue should be answered in the negative.
Now I go to issue number 2 and I would like to be brief. It is whether the election was not conducted in accordance with the principles laid down in the Constitution, PEA and EC Act. I pray that this issue be answered in the negative. The petitioner has not proved that the principles laid down in the Constitution and the act were breached.
On a free and fair election, I would refer to this court’s judgement in volume I at page 39, my lord the Chief Justice sets out the principles of a free and fair election. The overriding principle is the principle of free and fair elections. Indeed sections 12(e & f) of the EC requires that the EC should conduct a free and fair election. On the basis of my submissions, there is no evidence to show that taking a whole country as a constituency, the election was not conducted under freedom and fairness.
I took trouble to count the number of polling stations in which the petitioner alleges malpractices, they total to 189 out of 19,786 polling stations nationwide. That represents 0.8%.
Kanyeihamba: That is if we ignore that general statement then that is a sample.
Matsiko: I am inviting you to ignore it.
Kanyeihamba: Then that’s okay
Matsiko: The whole process was conducted under freedom and fairness. I would like to refer to an affidavit of particular importance.
Oder: Whose?
Matsiko: Dr. Abed Bwanika
Oder: Who is he? (judges and courtroom laugh)
Matsiko: It is at page 19, paragraph 2, he stood as an independent candidate. By virtue of my countrywide participation, I know about the matter in this affidavit. On February 25, 2006, the first respondent declared the second respondent the winner. I polled about 65,000 votes. I had agents all over the country (laughter).
Kanyeihamba: Shouldn’t we ignore that?
Matsiko: During the campaigns I travelled throughout Uganda. I also know from past experience as a voter, these (elections) were held in a fair and free atmosphere and the results reflect the will of Uganda. I invite you to be persuaded (laughter).
Tsekooko: Which past elections?
Matsiko: He says that he participated.
Tsekooko: He does not even have a date (laughter)
Matsiko: Issue number two should be answered in the negative, I so pray.
Tibaruha: I would like to submit on issue number 3, whether issues are answered in the affirmative. The determination of either issue one in the affirmative depends on the evidence adduced by the petitioner to prove the ground in the petition.
The petitioner gives 8 grounds in paragraph 8 for the irregularities allegedly committed. My lord, Ogalo abandoned four grounds, 8c, 8f, 8g and 8h. I will similarly abandon these grounds. I will confine myself to ground 8a.
Ogalo: 8c was not abandoned. I indicated that this morning.
Tibaruha: Then I will refer to it. Para 8a concerns the deletion of the voters names from the register, 8b is on multiple voting and vote stuffing, 8c is on failure to declare results, the last one is about the failure to ensure a free, fair and transparent atmosphere. The petitioner must adduce evidence to prove those grounds to the satisfaction of the court. To the satisfaction of the courts means leaving the court in no doubt that there were irregularities.
In my view, the submissions of my learned friends D. Nkurunziza and Joseph Matsiko establish that issue one or two or both cannot be answered in the affirmative. Assuming that this court answers those issues in the affirmative, this court cannot annul the election of the second respodent because the result was not affected in a substantial manner.
Section 59 of the PEA (reads- the election of a presidential candidate on the following grounds...)
This issue can only be determined by ascertaining the meaning of section 59 of the PEA. I will confine my submission on the decision of this court on the 2001 petition. The catchphrase is “Non-compliance must have affected the results of the elections in a substantial manner.â€
This court determined what is meant by substantial manner. At page 159 volume the CJ stated: This has not defined in the statute.. In this process it cannot be said that numbers are not useful.
The crucial point is that there must be crucial points to satisfy the court. There is no doubt that these irregularities had some effect on the results.
How much effect of intimidation. He performed well to obtain the 2two million plus.
He performed well in the north, east. The difference between the petitioner and the second respondent was more than three million votes. The international observers said the election results “reflect the will of the people of Uganda..â€
Other justices gave opinions too. Justice Karokora and Mulenga. I now come to winding up?
Kanyeihamba: Were those the only judgments of the court?
Tibaruha: It was the majority but I was going to it.
Kanyeihamba: But you were concluding.
Tibaruha: 2,570,608 for Besigye and 4,078,911 for the second respondent.
On the basis of the aforementioned we submit as follows, first of all numbers must be used in making adjustments for any proved irregularities.
The petitioner failed to do that. The numbers of votes of the candidates must be considered. The petitioner did not show that the said 1.5 million votes could have got those votes but for the irregularities. The court must take into account that the results of the election was the whole national constituency, not the results in the areas allegedly affected by irregularities. The petitioner raises complaints from a scattered and isolated 8 districts out of 69. The court should take into account the number of the polling stations where the irregularities allegedly took place. They covered only 189 out of 19,786 which is 0.8%. The petitioner has failed to prove that there were any irregularities that affected the results in a substantial manner. We invite you to answer it in the negaive.
Mulenga: Ogao said that if the non-compliance is so substantial it can affect the results substantially.
Tibaruha: Our view is that 0.8% is a very small if not negligible of non-compliance. It is not substantial non-compliance.
Kanyeihamba: jurisprudence is the experience of the law.
Tibaruha: That would not affect the results substantially.
Matsiko: The failure to declare results thus contravening the PEA. That ground is pleaded in paragraph 8 of the petition. The affidavit of the petitioner alleges that the first respondent declared results from districts without a return form, without reports of the elections, tally sheets and declaration of results forms.
Mulenga: Paragraph what?
Matsiko: Paragraph 9. In paragraph 26, the petitioner alleges that the first respondent did not rely on the figures submitted by the returning officers in those districts in declaring results. It is our submission that the petitioner has not proved that the declaration of the presidential elections results contravene the PEA. Declaration of results is governed by section 57 of the PEA. Subsection 1 states: The EC shall ascertain, publish and declare in writing the results of the presidential election in 48 hours of voting.
I would like to rely on the word ascertain as it is used in that section and submit that it is a very key word .
Kanyeihamba: Where does he ascertain from?
Matsiko: No particular method. It is not restrictive.
Kanyeihamba: I thought it was your contention that you relied on 57.
Odoki: I am sure he will go back to 56.
Matsiko: The EC is therefore given wide latitude to employ any transparent methonds to ascertain the results of the election. The rationale in that wide latitude is found in article 103 clause 7 of the Constitution. It is at page 88. It reads: “The EC shall ascertain... and announce the results within 48 hours from the close of polling.†The word ascertain is used both in the Constitution and in the PEA to enable the EC....
Kanyeihamba: So you say it is not limited?
Matsiko: Example phoning, faxes.
Tsekooko: Are those transparent?
Odoki: May be you should address us on… You seem to be saying that the other provisions are not relevant.
Matsiko: Specifically the affidavit of Wamala Joshua. Page 131 volume 4. In para 2 he shows that he tallied all the results from all the district in close supervision with the first respondent. It is tradition the world over that the ECs receive results from the districts by fax, phone or radio calls. He said the results transmitted by phone were done through a common listening device for all the parties. The results transmitted by phone were recorded. The first respondent had received results from 56 by Saturday.
In the absence of the law prohibiting these methods, they were transparent.
Kanyeihamba: Why do you think that Parliament did not mention, not even once, phones or faxes?
Matsiko: They did not want to limit the EC.
Kanyeihamba: Why?
Matsiko: For the purpose of not limiting the EC latitude. The method depended on the availability of the means of transmission.
Tallying of the results used a computer programme that automatically produces tally sheets. Section 56, the marginal notes read: “the returning officer shall.†my understanding is that section 56 requires a returning officer to immediately.......
Katureebe: Would immediately be two days or?
Matsiko: It means soon after counting.
Kanyeihamba: This morning you conceded that some areas had some cancellations due to some disturbances.
Matsiko: In Pallisa
Kanyeihamba: Was it indicated on the fax?
Matsiko: The returning officer is part of the EC. He has a right to cancel. Through his agents, the returning officer is able to know that there were some disturbances. To demonstrate EC transparency, I refer to Sam Rwakoojo’s affidavit.
Mulenga: It is a supplementary affidavit.
Matsiko: Yes, it confirmed Wamala’s statement that the first respondent and previous ECs and other countries receive results via phone, radio or fax where available. The EC kept close contact with all the stakeholders including the candidates throughout the whole process. Page 263d.
Odoki: What is at page 263d?
Mulenga, Karokora: I don’t have that one.
Odoki: Pagementation is a serious problem.
Matsiko: That annexture shows that a meeting was held between the EC and the presidential candidates. That it was imperative to have in the results as soon as possible. The Constitution required the EC to announce the results within 48 hours of voting. The petitioner’s representatives were party to that decision.
Mulenga: Which decision?
Matsiko: That the candidates would send representatives and the EC would provide the facilities like phones, fax etc to receive the results.
Kanyeihamba: Some parties were uncomfortable, then you say they agreed.
Matsiko: If you look at the minutes, it was decided like that. They were part and parcel of this decision.
Kanyeihamba: Paragraph 8 of Rwakoojo’s affidavit, the cancellation from some polling stations, had he found that the results would affect the results, would he have cancelled?
Matsiko: It is just poor construction of English (laughter). My lords the last one is the ground of alleged failure to take measures to ensure that the entire electoral process is conducted under freedom and fairness. This is where the petitioner argues that the Constitution and the PEA were violated because the first respondent failed to ensure a free and fair electoral process. That ground is not proved. The petitioner did not show that in the entire constituency, the whole of Uganda, the first respondent did not take measures to ensure free and fair elections. The petitioner relied on the affidavit of Kamateneti Igrid Turinawe.
Matsiko: The first affidavit there. This was an attempt to show that the elections were not free and fair. (Reads Turinawe’s affidavit): “I sat in our FDC offices to receive reports.†I submit that it is all hearsay.
Mulenga: But she is receiving reports from field officers.
Matsiko: This court will only rely on facts. The point is that the evidence is not believable and should not be used.
Kanyeihamba: Just a few minutes ago you said that the first respondent received results through the telephone. I am saying receiving a message is hearsay.
Matsiko: But....
Mulenga: That the EC declared the results before verifying them. Now you turn around to say that in the case of Kamateneti, you should not believe her.
Matsiko: The law empowers the EC to use all.
Kanyaihamba: Which law?
Odoki: Let us allow him otherwise he will not finish his case.
Matsiko: There is also the affidavit of Augustine Ruzindana, at page 11. It was extensively submitted on by my learned friend Nkurunziza. I associate myself. He also relied on Salamu Musumba’s affidavits. I adopt his submissions. The petitioner has not adduced believable evidence that the electoral process was not free and fair. Look at the affidavit of Steven Ongaria, Volume 4, page 130.
Kanyeihamba: Is it handwritten?
Matsiko: No. Ongaria is a member of the first respondent and chairman of the National Electoral Consutltative Liason Forum. He says it was formed by the EC. It comprises of him as chairman, acting head of the legal department, the PRO, one senior electoral officer and two permanent members from each of the participating parties.
That in its meetings, the Forum discussed and resolved electoral problems in a transparent, free and fair manner, including the decision to count and tally. This is how the second respondent emerged and was declared winner.
This evidence is not challenged. In concluding the first issue, it is my submission that the petitioner has not proved his case and the issue should be answered in the negative.
Now I go to issue number 2 and I would like to be brief. It is whether the election was not conducted in accordance with the principles laid down in the Constitution, PEA and EC Act. I pray that this issue be answered in the negative. The petitioner has not proved that the principles laid down in the Constitution and the act were breached.
On a free and fair election, I would refer to this court’s judgement in volume I at page 39, my lord the Chief Justice sets out the principles of a free and fair election. The overriding principle is the principle of free and fair elections. Indeed sections 12(e & f) of the EC requires that the EC should conduct a free and fair election. On the basis of my submissions, there is no evidence to show that taking a whole country as a constituency, the election was not conducted under freedom and fairness.
I took trouble to count the number of polling stations in which the petitioner alleges malpractices, they total to 189 out of 19,786 polling stations nationwide. That represents 0.8%.
Kanyeihamba: That is if we ignore that general statement then that is a sample.
Matsiko: I am inviting you to ignore it.
Kanyeihamba: Then that’s okay
Matsiko: The whole process was conducted under freedom and fairness. I would like to refer to an affidavit of particular importance.
Oder: Whose?
Matsiko: Dr. Abed Bwanika
Oder: Who is he? (judges and courtroom laugh)
Matsiko: It is at page 19, paragraph 2, he stood as an independent candidate. By virtue of my countrywide participation, I know about the matter in this affidavit. On February 25, 2006, the first respondent declared the second respondent the winner. I polled about 65,000 votes. I had agents all over the country (laughter).
Kanyeihamba: Shouldn’t we ignore that?
Matsiko: During the campaigns I travelled throughout Uganda. I also know from past experience as a voter, these (elections) were held in a fair and free atmosphere and the results reflect the will of Uganda. I invite you to be persuaded (laughter).
Tsekooko: Which past elections?
Matsiko: He says that he participated.
Tsekooko: He does not even have a date (laughter)
Matsiko: Issue number two should be answered in the negative, I so pray.
Tibaruha: I would like to submit on issue number 3, whether issues are answered in the affirmative. The determination of either issue one in the affirmative depends on the evidence adduced by the petitioner to prove the ground in the petition.
The petitioner gives 8 grounds in paragraph 8 for the irregularities allegedly committed. My lord, Ogalo abandoned four grounds, 8c, 8f, 8g and 8h. I will similarly abandon these grounds. I will confine myself to ground 8a.
Ogalo: 8c was not abandoned. I indicated that this morning.
Tibaruha: Then I will refer to it. Para 8a concerns the deletion of the voters names from the register, 8b is on multiple voting and vote stuffing, 8c is on failure to declare results, the last one is about the failure to ensure a free, fair and transparent atmosphere. The petitioner must adduce evidence to prove those grounds to the satisfaction of the court. To the satisfaction of the courts means leaving the court in no doubt that there were irregularities.
In my view, the submissions of my learned friends D. Nkurunziza and Joseph Matsiko establish that issue one or two or both cannot be answered in the affirmative. Assuming that this court answers those issues in the affirmative, this court cannot annul the election of the second respodent because the result was not affected in a substantial manner.
Section 59 of the PEA (reads- the election of a presidential candidate on the following grounds...)
This issue can only be determined by ascertaining the meaning of section 59 of the PEA. I will confine my submission on the decision of this court on the 2001 petition. The catchphrase is “Non-compliance must have affected the results of the elections in a substantial manner.â€
This court determined what is meant by substantial manner. At page 159 volume the CJ stated: This has not defined in the statute.. In this process it cannot be said that numbers are not useful.
The crucial point is that there must be crucial points to satisfy the court. There is no doubt that these irregularities had some effect on the results.
How much effect of intimidation. He performed well to obtain the 2two million plus.
He performed well in the north, east. The difference between the petitioner and the second respondent was more than three million votes. The international observers said the election results “reflect the will of the people of Uganda..â€
Other justices gave opinions too. Justice Karokora and Mulenga. I now come to winding up?
Kanyeihamba: Were those the only judgments of the court?
Tibaruha: It was the majority but I was going to it.
Kanyeihamba: But you were concluding.
Tibaruha: 2,570,608 for Besigye and 4,078,911 for the second respondent.
On the basis of the aforementioned we submit as follows, first of all numbers must be used in making adjustments for any proved irregularities.
The petitioner failed to do that. The numbers of votes of the candidates must be considered. The petitioner did not show that the said 1.5 million votes could have got those votes but for the irregularities. The court must take into account that the results of the election was the whole national constituency, not the results in the areas allegedly affected by irregularities. The petitioner raises complaints from a scattered and isolated 8 districts out of 69. The court should take into account the number of the polling stations where the irregularities allegedly took place. They covered only 189 out of 19,786 which is 0.8%. The petitioner has failed to prove that there were any irregularities that affected the results in a substantial manner. We invite you to answer it in the negaive.
Mulenga: Ogao said that if the non-compliance is so substantial it can affect the results substantially.
Tibaruha: Our view is that 0.8% is a very small if not negligible of non-compliance. It is not substantial non-compliance.
Kanyeihamba: jurisprudence is the experience of the law.
Tibaruha: That would not affect the results substantially.