In a face-off of legal minds at Uganda’s Supreme Court, lawyers representing the parties in the 2016 presidential election petition filed by former prime minister Amama Mbabazi against President Yoweri Museveni’s re-election have wrapped up their cases, but the spotlight is once again on the Electoral Commission.

During his cross examination, EC chairman Badru Kiggundu admitted that there were delays in delivery of voting materials to Kampala and Wakiso districts and offered a public apology.

But this was the easy part. Dr Kiggundu was then tasked to show legal and documentary proof of how the electoral body compiled the voters’ register and its eventual arrival at the winner in the February 18 polls.

The burden of proof that the polls were free and fair shifted to the EC after the petitioner demanded that the electoral body produce in court scanned copies of Declaration of Results (DR) forms, tally sheets and returns.

The EC wrote to the court arguing that all items in its possession that the petitioner had asked for had been delivered as requested on March 7.

However, the petitioner brought to the attention of the court the fact that the documents were not in the court’s record. On March 18, the EC delivered the materials in question, 11 days after the petitioner’s legal team had asked for them.

Affidavits scrutinised in court and the evidence produced by Dr Kiggundu during oral cross examination had shown that these documents were not available at the national tally centre at the time of announcing results on February 20 as required under the Presidential Elections Act and the Constitution.

“We have discharged the burden that there was non-compliance with Section 56 and Section 48 (iii) of the Presidential Election Act because there was a fundamental departure from the principles underlying these sections,” said Mohammed Mbabazi, the former prime minister’s lead counsel.

“If there are no DR forms, then there are no results. The Presidential Election Act has provisions, some of which are fundamental, a breach of which is a renders the results null and void…. Non-compliance was deliberate,” argued Mr Mbabazi.

“It is incumbent upon the EC to produce what they used to declare the winner,” he added.

READ: Mbabazi lawyers say EC had no results to announce Museveni winner

Electronic transmission of results

The petitioner’s team contends that the DR forms must be dully signed by agents of each candidate and the District Returning Officer, as proof they are actual records of what transpired at polling stations and in the districts.

The EC, however, argued that it is not mandatory for results to be declared with declaration of results forms, tally sheets and returns.

“I had electronic transmission of results. At that time I did not have them [DR forms]. Presiding officers insert them in tamper proof envelopes and send to tallying centres where technical officers scan the forms while clerks enter results,” said Dr Kiggundu.

However, Dr Kiggundu admitted that the agents of candidates did not have access to the computers but said what was scanned was read out to the public.

The EC chairman was pressed to explain what law he relied on to deploy the electronic system.

Dr Kiggundu’s response was that the EC applied lessons learnt from Ghana, but the petitioner’s lawyers argued that the West African country’s law allows electronic transmission of results while Uganda does not have such a law.

To demonstrate the number of voters who voted on polling day and the time taken using the Biometric Voter Verification System (BVVS), the petitioner said the machines were expected to produce a record of voters on command.

“There are cases where it failed to work and there are cases where it failed to read thumb prints,” said EC lawyer Enos Tumusiime.

The EC procured BVVS to enable verification of voters at polling stations using their fingerprints to match their details — photo, name, date and place of birth — in the voters register. The system was also intended to prevent multiple voting.

The EC was tasked to show the law that permitted it to archive the old voter register and adopt the new electronic one compiled under the Registration of Persons Act for purposes of issuing national identification cards.

In addition, the electoral body was quizzed on the legality of the use of national identification cards as opposed to voters’ cards, as the law demands.

“We contend that the duty to obtain data for purposes of establishing a national voter register is an exclusive preserve of the EC under the Constitution. That duty cannot be ceded to any authority in light of article 62 of the Constitution. That grants the EC independence,” argued Asuman Basalirwa, one of Mbabazi’s lawyers.

Mbabazi lawyers give evidence on electoral malpractices

Lawyers representing Amama Mbabazi, the petitioner in the ongoing presidential election petition, went to some length to provide evidence related to electoral malpractices of voter bribery and disenfranchisement when they appeared before the court last week.

According to the petitioner, the Electoral Commission retired and achieved the voters register used in 2011 and replaced it with data obtained during the registration of person for purposes of obtaining national identification cards, which was contrary to the Constitution and the Electoral Commission Act.

Asuman Basalirwa, one of the lawyers representing the former prime minister argued that the failure by the EC to compile its own data and instead rely on data from other government agencies affected the credibility of the voters’ register. 

“[This] meant that there was disenfranchisement of people who did not register for the national identity card and, therefore, did not participate in the 2016 elections,” argued Mr Basalirwa.

Kiryowa Kiwanuka, representing President Yoweri Museveni, challenged Mr Basalirwa to produce the number of  people disenfranchised.

Mr Basalirwa made attempts to refer to three different affidavits but failed to find a paragraph to argue his claims.

“You haven’t given to us any evidence to that effect…You would have been on a firmer ground if you had your own evidence,” said Chief Justice Bart Katureebe.

President Museveni is the first respondent in the ongoing election petition. The EC and the Attorney General are second and third respondents respectively. 

The petitioner through lawyer Severino Twinobusingye also claimed President Museveni was not properly nominated, but was forced to rest his argument after the EC lawyer Enos Tumusiime interjected.