EC legally deleted voters â€" Matsiko
Mar 27, 2006
The Supreme Court hearing Col. Kizza Besigye’s presidential elections petition seeking to nullify President Yoweri Museveni’s re-election starts Day 5 hearing at 9:48am. Besigye is accompanied by Sarah Eperu, Salaamu Musumba and other FDC officials. For the NRM are John Nagenda, Hope Mwesgye, F
The Supreme Court hearing Col. Kizza Besigye’s presidential elections petition seeking to nullify President Yoweri Museveni’s re-election starts Day 5 hearing at 9:48am. Besigye is accompanied by Sarah Eperu, Salaamu Musumba and other FDC officials. For the NRM are John Nagenda, Hope Mwesgye, Fred Bamwine and others. Anne Mugisa, Hillary Kiirya and Alfred Wasike recorded the proceedings.
The Supreme Court hearing Col. Kizza Besigye’s presidential elections petition seeking to nullify President Yoweri Museveni’s re-election starts Day 5 hearing at 9:48am. Besigye is accompanied by Sarah Eperu, Salaamu Musumba and other FDC officials. For the NRM are John Nagenda, Hope Mwesgye, Fred Bamwine and others. Anne Mugisa, Hillary Kiirya and Alfred Wasike recorded the proceedings.
9:48am: The seven judges enter.
Tibaruha: My lords the list of the counsel is still the same. The first respondent will submit on issues 1, 2 and 3. Matsiko will submit on issues 1 and 2. I will submit on issue number 3. But my lords, we are not ready to submit on the petitioner’s analysis of the tally sheets. Counsel has graciously allowed us to submit on his time
Matsiko: I am the acting Director of Civil Litigation. I would like to start with issue number 1. It was framed by this honourable court as follows; whether there was non-compliance with the provisions of the Constitution, Presidential elections Act 2005 and the Electoral Commission Act in the conduct of the 2006 election. The issue should be answered in the negative. I would like to adopt and associate myself with the able submissions of my colleague Didas Nkurunziza. It was demonstrated to this court that the evidence on record does not prove the petitioner’s case to this court’s satisfaction. Issue number 1 arises from paragraph 5 & 8. The paragraph contains general statement that the election was conducted in contravention of the constitution, the PEA and the EC Acts. Paragraph 8 gives the particular allegations of non-compliance. These are all together 8 allegations of non-compliance. My lords, with your permission, I will go through all because I intend to submit on them all. The first one; section 19 of the Electoral Constitution, the first respondent disenfranchised voters by deleting their names from the voters register. The second issue is on the contravention of section 32 of the PEA. That the first respondent allowed multiple voting and voter stuffing in many districts. The third issue is on the contravention of the PEA. That, the first respondent failed to council results of polling stations were irregularities took place particularly in Kiruhura, Manafwa and Pallisa. The fourth issue is that the first respondent failed to take declare results of the election in accordance with section 56 & 57 of the PEA. The fifth issue is that the first respondent failed to take measures to ensure a free and fair election thus contravening section 12 (e & f) of the EC Act. The sixth issue is that the first respondent allowed the nomination of the second respondent without him being sponsored by a registered political party or as an independent contrary to section 9 of the PEA. The seventh issue is that of misleading of voters by printing and using ballot papers which indicated that the second
respondent’s party was the NRM which is not a registered party to participate in the elections. That the first respondent misled voters by allowing the use of a symbol of the yellow bus which was used by the Movement political system during the referendum.
Wandera: (raises and says something…)
Matsiko: My lords, may take it that he has abandoned them? Then I will leave them out. The allegation of disenfranchisement were not proved to the satisfaction of this court?
Mulenga: Why don’t you wait for the court to say so? (laughter)
Kanyeihamba: That is very intelligent reading of our minds. (more laughter)
Oder: You cannot decide for us.
Tsekooko: You just present your case but not guide us.
Matsiko: The petitioner alleges in paragraphs 5 & 6 that on polling day, many voters who had duly registered and were holders of voters cards did not vote because their names did not appear on the voters roll. He says that this was in most districts. He does not say how many?
Kanyeihamba: If someone says in most districts, isn’t that more than half?
Matsiko: He doesn’t name the districts, the polling stations, does not state his source of knowledge. In paragraph 7, he says many voters were transferred without their knowledge, he doesn’t say how many or from which stations to which? In paragraph, 8 he says many voters who were registered after his
return from exile were removed from the register and denied the right to vote. He doesn’t say how many?
Kanyeihamba: In our system you need 50% plus one vote to win
Matsiko: Then my lords, I will substitute the word many wherever I have used it, with the word any. He relied on Maj. Ruranga affidavit in Volume 2C in a bid to prove the alleged disenfranchisement. That affidavit is incurably defective.
Odoki: Is that where there is the Commonwealth Observers’ report?
Matsiko: Yes. Look at page 5, paragraph 27, he doesn’t say what he depones to be his source of information or knowledge. The affidavit was done in a
sloven fashion.
Mulenga: What does that mean?
Matsiko: Careless, reckless and words of that nature.
Mulenga: What is the significance?
Matsiko: I will point out that later. For example in paragraph 9, he talks about a video tape that was never annexed. That was a falsehood. Paragraph 21, the second line says copies of such complaints are hereby annexed in inverted commas. They were not annexed. I looked for the inverted comas and did not see. The next is paragraph 10, some of the copies are hereby annexed. Look at paragraph 27, he says look at a picture showing
a polling station covered by a black polythene, it was not annexed. All this points to the recklessness nature. It is not a matter to be taken lightly.
Ruranga describes himself as the Chief Electoral commissioner of the FDC, this is a very high ranking position.. very low because of the carelessness.
Kanyeihamba: Suppose he submitted to an incompetent lawyer, don’t impute bad motive on the deponer.
Matsiko: The affidavit was drawn by three prominent law firms.
Tsekooko: Did you point it out then?
Matsiko: (looks at Wandera) he spent 3 minutes in the Solicitor General’s chambers where I was. In any case, it is his client’s case.
Kanyeihamba: My question arose because you attacked the character of the deponer.
Matsiko: In paragraph 3, Ruranga says that as Chief Electoral Commissioner, I was privy to information from all agents. What he depones is based on information, it becomes false.
Tsekooko: False or inaccurate?
Matsiko: Both because facts must be based on knowledge not information. In the 2001 petition, this court held that an affidavit must be based on deponents’ knowledge. I will refer to three excerpts. In Volume 1 of the respondents authorities, at pages 25&26, the Chief Justice said an election petition is not an inter but a final case.
Kanyeihamba: Suppose he says that to the best of his knowledge? You can’t attack all of them, some of them are correct
Matsiko: at paragraph 3, he says he was privy to information.
Odoki: You were referring to the 2001 petition, what did the other judges.
Matsiko: Justice Karokora at page 172 said, I think that any affidavit that has hearsay evidence should be discarded. Justice Mulenga at page 303 that an affidavit is not clear and would be defective. Ruranga’s affidavit falls in the category of those based on hearsay information and should not be relied on..
Mulenga: Suppose the affidavit is standing together with the affidavits of the agents?
Matsiko: That would have completed the story. But Ruranga’s affidavit contains no credible evidence on the alleged disenfranchisement. I support my submission with paragraph 12 of that affidavit where he stated that many people whose names appeared on the register were deregistered. He says that was throughout the country but mentions only two polling stations and this was the Chief Electoral Commissioner of the FDC. He mentions Munno A & B and UTC in Kampala. Even when he says 400, he only touches. I found that unbelievable. That cannot be evidence to show that voters were disenfranchised.
Mulenga: That certain people were unable to vote yet had voters cards.
Matsiko: His evidence does not prove disenfranchisement as a nationwide concept.
Kanyeihamba: Even the Commonwealth Observers’ report is hearsay?
Matsiko: Yes..the point is to have your name on the voters register.
Karokora: When do you have your name removed?
Matsiko: When you move. when you change polling stations.
Mulenga: What do you understand by disenfranchisement?
Matsiko: It means. you are disenfranchised when you are on the voters register.
Mulenga: Aren’t you disenfranchised when your name is removed from the register?
Matsiko: If your name was removed in accordance with the law
Kanyeihamba: One of your colleagues said you are registered if you are on the voters register. Don’t you think you are putting emphasis on the wrong things. I was talking to you as a citizen, isn’t it more authentic to go with an authentic voters card?
Matsiko: The EC advertised widely
Karokora: Is voting compulsory?
Matsiko: No, people were not really disenfranchised as they claim.
Odoki: We break to 11:30am
Matsiko: We were dealing with issues of registration. It started with section 19 of the electoral Commission Act (ECA) section 19 (1).
There may be valid grounds for one to be removed from the voters roll in a particular place. If someone has shifted from the village or died, he must be removed from the register… the affidavit of the chairperson of the first respondent…the update of the register was between 29 October and… The display was between December 26 and January 17,2006. The register was subsequently cleaned up in accordance with the law and every individual had an opportunity to correct any anomaly that is during the display.
The next affidavit is that of Nsimbi Charles… it confirms the period of display. The period was even extended from January 11 to January 17, 2006.. it testifies about the clean up exercise. Where people were given chance to inspect and correct any anomalies.
Paragraph 13 to 60, show that 12 people who alleged that they were not on the register were actually there. Another 10 people were removed on recommendation of the parish tribunals.
Kanyeihamba: What is the procedure for removal?
Matsiko: The composition of the tribunal, that is people in the village….
Kanyeihamba: What course of action is left for those removed unfairly?
Matsiko: Those have a right of appeal to the EC. The voter must be vigilant
Kanyeihamba: Do people who are affected get to be told about their removal?
Matsiko: The law doesn’t provide for that…. Still in Nsimbi’s affidavit, 62 people who alleged that they were not on the register, they were there.
Mulenga: Does that not answer their complaint that they didn’t vote?
Matsiko: It appears that they went to different polling stations….We have another 9 people who were removed on recommendations of the tribunals. Another 16 were not in the database of the register because they did not register as voters.
Karokora: Yet they had cards?
Wabombesa Jennipher claims to be a registered voter with a number and she alleges she wasn’t there on the register
Matsiko: Wabombesa Jennipher is not on the role. Presumably the name doesn’t exist… we have some people here in paragraph claiming to belong to the same number, yet these people are not on the register.
Kanyeihamba: Do you have numbers of people who were removed from the register countrywide?
Matsiko: The number is 153,000 countrywide but we will come to that later. In Nsimbis’s affidavit…, a total 17 people who claimed not to be on the register were actually found on the register… In paragraph 7,55 people were removed from the register because they neither reside nor originate from respective areas. That is specifically children’s library polling station…
Attached are parish tribunals forms removing these people.… Also Munno area, same reason….. Second is that the first respondent failed to stop multiple voting and ballot stuffing. This has not been proved… That is a mere general statement which is not proved. The petitioner’s counsel relied on Ruranga’s affidavit… where he says that outside Qaurater guard, people unemployed by the UPDF or ordinary residents were allowed to vote. He attaches 33 copies of voters cards as annextures. He states that those 33 were distributed to soldiers at Makenke polling station and surrendered to him by Pte. Allan Barigye. In his affidavit, Barigye doesn’t say that he gave the 33 to Ruranga. He says he picked five voters cards from a heap. He swore another affidavit contradicting the first one and Ruranga’s. The one on 15th, Barigye says he was given 10 voters cards.
The Supreme Court hearing Col. Kizza Besigye’s presidential elections petition seeking to nullify President Yoweri Museveni’s re-election starts Day 5 hearing at 9:48am. Besigye is accompanied by Sarah Eperu, Salaamu Musumba and other FDC officials. For the NRM are John Nagenda, Hope Mwesgye, Fred Bamwine and others. Anne Mugisa, Hillary Kiirya and Alfred Wasike recorded the proceedings.
9:48am: The seven judges enter.
Tibaruha: My lords the list of the counsel is still the same. The first respondent will submit on issues 1, 2 and 3. Matsiko will submit on issues 1 and 2. I will submit on issue number 3. But my lords, we are not ready to submit on the petitioner’s analysis of the tally sheets. Counsel has graciously allowed us to submit on his time
Matsiko: I am the acting Director of Civil Litigation. I would like to start with issue number 1. It was framed by this honourable court as follows; whether there was non-compliance with the provisions of the Constitution, Presidential elections Act 2005 and the Electoral Commission Act in the conduct of the 2006 election. The issue should be answered in the negative. I would like to adopt and associate myself with the able submissions of my colleague Didas Nkurunziza. It was demonstrated to this court that the evidence on record does not prove the petitioner’s case to this court’s satisfaction. Issue number 1 arises from paragraph 5 & 8. The paragraph contains general statement that the election was conducted in contravention of the constitution, the PEA and the EC Acts. Paragraph 8 gives the particular allegations of non-compliance. These are all together 8 allegations of non-compliance. My lords, with your permission, I will go through all because I intend to submit on them all. The first one; section 19 of the Electoral Constitution, the first respondent disenfranchised voters by deleting their names from the voters register. The second issue is on the contravention of section 32 of the PEA. That the first respondent allowed multiple voting and voter stuffing in many districts. The third issue is on the contravention of the PEA. That, the first respondent failed to council results of polling stations were irregularities took place particularly in Kiruhura, Manafwa and Pallisa. The fourth issue is that the first respondent failed to take declare results of the election in accordance with section 56 & 57 of the PEA. The fifth issue is that the first respondent failed to take measures to ensure a free and fair election thus contravening section 12 (e & f) of the EC Act. The sixth issue is that the first respondent allowed the nomination of the second respondent without him being sponsored by a registered political party or as an independent contrary to section 9 of the PEA. The seventh issue is that of misleading of voters by printing and using ballot papers which indicated that the second
respondent’s party was the NRM which is not a registered party to participate in the elections. That the first respondent misled voters by allowing the use of a symbol of the yellow bus which was used by the Movement political system during the referendum.
Wandera: (raises and says something…)
Matsiko: My lords, may take it that he has abandoned them? Then I will leave them out. The allegation of disenfranchisement were not proved to the satisfaction of this court?
Mulenga: Why don’t you wait for the court to say so? (laughter)
Kanyeihamba: That is very intelligent reading of our minds. (more laughter)
Oder: You cannot decide for us.
Tsekooko: You just present your case but not guide us.
Matsiko: The petitioner alleges in paragraphs 5 & 6 that on polling day, many voters who had duly registered and were holders of voters cards did not vote because their names did not appear on the voters roll. He says that this was in most districts. He does not say how many?
Kanyeihamba: If someone says in most districts, isn’t that more than half?
Matsiko: He doesn’t name the districts, the polling stations, does not state his source of knowledge. In paragraph 7, he says many voters were transferred without their knowledge, he doesn’t say how many or from which stations to which? In paragraph, 8 he says many voters who were registered after his
return from exile were removed from the register and denied the right to vote. He doesn’t say how many?
Kanyeihamba: In our system you need 50% plus one vote to win
Matsiko: Then my lords, I will substitute the word many wherever I have used it, with the word any. He relied on Maj. Ruranga affidavit in Volume 2C in a bid to prove the alleged disenfranchisement. That affidavit is incurably defective.
Odoki: Is that where there is the Commonwealth Observers’ report?
Matsiko: Yes. Look at page 5, paragraph 27, he doesn’t say what he depones to be his source of information or knowledge. The affidavit was done in a
sloven fashion.
Mulenga: What does that mean?
Matsiko: Careless, reckless and words of that nature.
Mulenga: What is the significance?
Matsiko: I will point out that later. For example in paragraph 9, he talks about a video tape that was never annexed. That was a falsehood. Paragraph 21, the second line says copies of such complaints are hereby annexed in inverted commas. They were not annexed. I looked for the inverted comas and did not see. The next is paragraph 10, some of the copies are hereby annexed. Look at paragraph 27, he says look at a picture showing
a polling station covered by a black polythene, it was not annexed. All this points to the recklessness nature. It is not a matter to be taken lightly.
Ruranga describes himself as the Chief Electoral commissioner of the FDC, this is a very high ranking position.. very low because of the carelessness.
Kanyeihamba: Suppose he submitted to an incompetent lawyer, don’t impute bad motive on the deponer.
Matsiko: The affidavit was drawn by three prominent law firms.
Tsekooko: Did you point it out then?
Matsiko: (looks at Wandera) he spent 3 minutes in the Solicitor General’s chambers where I was. In any case, it is his client’s case.
Kanyeihamba: My question arose because you attacked the character of the deponer.
Matsiko: In paragraph 3, Ruranga says that as Chief Electoral Commissioner, I was privy to information from all agents. What he depones is based on information, it becomes false.
Tsekooko: False or inaccurate?
Matsiko: Both because facts must be based on knowledge not information. In the 2001 petition, this court held that an affidavit must be based on deponents’ knowledge. I will refer to three excerpts. In Volume 1 of the respondents authorities, at pages 25&26, the Chief Justice said an election petition is not an inter but a final case.
Kanyeihamba: Suppose he says that to the best of his knowledge? You can’t attack all of them, some of them are correct
Matsiko: at paragraph 3, he says he was privy to information.
Odoki: You were referring to the 2001 petition, what did the other judges.
Matsiko: Justice Karokora at page 172 said, I think that any affidavit that has hearsay evidence should be discarded. Justice Mulenga at page 303 that an affidavit is not clear and would be defective. Ruranga’s affidavit falls in the category of those based on hearsay information and should not be relied on..
Mulenga: Suppose the affidavit is standing together with the affidavits of the agents?
Matsiko: That would have completed the story. But Ruranga’s affidavit contains no credible evidence on the alleged disenfranchisement. I support my submission with paragraph 12 of that affidavit where he stated that many people whose names appeared on the register were deregistered. He says that was throughout the country but mentions only two polling stations and this was the Chief Electoral Commissioner of the FDC. He mentions Munno A & B and UTC in Kampala. Even when he says 400, he only touches. I found that unbelievable. That cannot be evidence to show that voters were disenfranchised.
Mulenga: That certain people were unable to vote yet had voters cards.
Matsiko: His evidence does not prove disenfranchisement as a nationwide concept.
Kanyeihamba: Even the Commonwealth Observers’ report is hearsay?
Matsiko: Yes..the point is to have your name on the voters register.
Karokora: When do you have your name removed?
Matsiko: When you move. when you change polling stations.
Mulenga: What do you understand by disenfranchisement?
Matsiko: It means. you are disenfranchised when you are on the voters register.
Mulenga: Aren’t you disenfranchised when your name is removed from the register?
Matsiko: If your name was removed in accordance with the law
Kanyeihamba: One of your colleagues said you are registered if you are on the voters register. Don’t you think you are putting emphasis on the wrong things. I was talking to you as a citizen, isn’t it more authentic to go with an authentic voters card?
Matsiko: The EC advertised widely
Karokora: Is voting compulsory?
Matsiko: No, people were not really disenfranchised as they claim.
Odoki: We break to 11:30am
Matsiko: We were dealing with issues of registration. It started with section 19 of the electoral Commission Act (ECA) section 19 (1).
There may be valid grounds for one to be removed from the voters roll in a particular place. If someone has shifted from the village or died, he must be removed from the register… the affidavit of the chairperson of the first respondent…the update of the register was between 29 October and… The display was between December 26 and January 17,2006. The register was subsequently cleaned up in accordance with the law and every individual had an opportunity to correct any anomaly that is during the display.
The next affidavit is that of Nsimbi Charles… it confirms the period of display. The period was even extended from January 11 to January 17, 2006.. it testifies about the clean up exercise. Where people were given chance to inspect and correct any anomalies.
Paragraph 13 to 60, show that 12 people who alleged that they were not on the register were actually there. Another 10 people were removed on recommendation of the parish tribunals.
Kanyeihamba: What is the procedure for removal?
Matsiko: The composition of the tribunal, that is people in the village….
Kanyeihamba: What course of action is left for those removed unfairly?
Matsiko: Those have a right of appeal to the EC. The voter must be vigilant
Kanyeihamba: Do people who are affected get to be told about their removal?
Matsiko: The law doesn’t provide for that…. Still in Nsimbi’s affidavit, 62 people who alleged that they were not on the register, they were there.
Mulenga: Does that not answer their complaint that they didn’t vote?
Matsiko: It appears that they went to different polling stations….We have another 9 people who were removed on recommendations of the tribunals. Another 16 were not in the database of the register because they did not register as voters.
Karokora: Yet they had cards?
Wabombesa Jennipher claims to be a registered voter with a number and she alleges she wasn’t there on the register
Matsiko: Wabombesa Jennipher is not on the role. Presumably the name doesn’t exist… we have some people here in paragraph claiming to belong to the same number, yet these people are not on the register.
Kanyeihamba: Do you have numbers of people who were removed from the register countrywide?
Matsiko: The number is 153,000 countrywide but we will come to that later. In Nsimbis’s affidavit…, a total 17 people who claimed not to be on the register were actually found on the register… In paragraph 7,55 people were removed from the register because they neither reside nor originate from respective areas. That is specifically children’s library polling station…
Attached are parish tribunals forms removing these people.… Also Munno area, same reason….. Second is that the first respondent failed to stop multiple voting and ballot stuffing. This has not been proved… That is a mere general statement which is not proved. The petitioner’s counsel relied on Ruranga’s affidavit… where he says that outside Qaurater guard, people unemployed by the UPDF or ordinary residents were allowed to vote. He attaches 33 copies of voters cards as annextures. He states that those 33 were distributed to soldiers at Makenke polling station and surrendered to him by Pte. Allan Barigye. In his affidavit, Barigye doesn’t say that he gave the 33 to Ruranga. He says he picked five voters cards from a heap. He swore another affidavit contradicting the first one and Ruranga’s. The one on 15th, Barigye says he was given 10 voters cards.