Several months after High Courts across the country began hearing petitions related to the disputed general elections held earlier this year, Opposition politicians have faced a series of setbacks.
Although many petitions are still pending, the Opposition has predominantly been on the losing side so far. Judges have either dismissed applications asking the courts to compel the Electoral Commission (EC) to produce Declaration of Results (DR) Forms for comparison, rejected the petitions entirely, or disqualified Opposition members from Parliament, citing malpractices that undermined their victories, while sparing those from the ruling National Resistance Movement (NRM).
So far, the only recognisable victory the Opposition has claimed came when Justice Joyce Kavuma, sitting in the High Court in Masaka City, threw out NRM’s Vincent Bamulangaki Ssempijja petition challenging National Unity Platform’s (NUP) Yusuf Kiruluuta Junior Nkerettanyi victory in Kalungu East.
Ssempijja contested Nkerettanyi’s victory, alleging the EC wrongly tabulated the results. Justice Kavuma dismissed the petition after Nkerettanyi’s lawyers, led by Sam Muyizzi, proved that the former minister had filed it outside the statutory time limit.
Opposition losses galore
Nkerettanyi’s victory is an exception to the rule. It has been a forgettable showing by the Opposition, with the latest loss suffered being NUP’s Godfrey Ssaazi, whose grip on the Gomba East slot was loosened by Justice Jameson Karemani.
This came after a petition filed by Harris Kirumira, citing irregularities that he said undermined the credibility of the electoral process, got the green light. Kirumira contested Ssaazi’s victory on grounds that results from four polling stations had not been included in the total tally. The four polling stations whose results were excluded were: Buyana Trading Centre, Tiginya SDA Primary School, Kiziba Trading Centre (NAKE-Z) and Buyinja Butoole Primary School B in Kigongo-Lugingi. They had a combined 959 registered voters.
Kirumira argued that voting had taken place at the stations and declaration of results forms had been completed and signed by candidates’ agents, but the results were not included in the final tally. Justice Karemani explained that the parties agreed the results had been omitted and that the available figures should be included in the final tally. The DR forms showed that Kirumira had received 453 votes from the four polling stations, while Ssaazi obtained 366. Including the votes would have increased Kirumira’s total to 9,609 against Ssaazi’s to 11,273, leaving Ssaazi with a winning margin of 1,664 votes.
The judge ruled that the omission, although contrary to electoral requirements, did not substantially affect the outcome because Ssaazi would still have won. The tide changed over the nine polling stations where voting was disrupted and electoral materials destroyed. These were: Ttaba Trading Centre, Buyebeyi CoU, Kimbo Catholic Church (A-NAKA), Kimbo Catholic Church (NAKE-Z), Serumbe UMEA Primary School A in Golola A, Jumbi CoU, Serumbe UMEA Primary School B in Kibaka, Kindimunda Playground and St Peter Primary School in Ngeribalya. Justice Karemani found that the votes from these stations could not be established, leaving the electoral choices of 4,387 registered voters unknown.
Ssaazi has insisted that he will take the issue to the Court of Appeal, which has a final say on parliamentary petitions.
Against the grain
The Opposition also suffered a setback when Justice Bernard Namanya upheld NRM’s Justine Nameere victory for the Masaka City Woman Representative, yet he found that the recount that led to her passage to Parliament was illegal. Nameere’s victory is contested by NUP’s Rose Nalubowa on grounds that the recount that was done by Masaka Chief Magistrate Albert Asiimwe was null and void. This, Nalubowa adds, was because the voting materials, such as ballot boxes, had been tampered with.
In the same period, Asiimwe stopped the recount sought by Independent candidate Ismail Ssemakula in his contest against Kalungu West incumbent Joseph Ssewungu, who belongs to NUP. This came after it emerged that the ballot boxes had been tampered with. But when it came to Nameere’s recount, Asiimwe just proceeded with the recount.
Justice Namanya’s decision to uphold Nameere’s victory raised eyebrows because it came in the aftermath of another High Court sitting in the central town of Mubende stopping the recount of votes of Kassanda South constituency after it emerged that ballot boxes had been tampered with.
Justice Mary Babirye suspended the recount on the grounds that NRM’s Abdul Bisaso, who was declared the victor in January, had challenged the process on the grounds that he had not received the documentation needed to verify the seals. Justice Namanya’s decision in Nameere’s case also raised eyebrows because it went against several previous decisions of the High Court.
For instance, in 2011 the Rubaga North constituency hogged the limelight after the EC announced Opposition-leaning candidate Moses Kasibante as the winner, only to turn around later and declare NRM’s Singh Marwaha Katongole the winner following a controversial vote recount. Singh went on to serve as the MP for a number of months.
Kasibante petitioned the High Court, and the job of resolving the impasse again fell on Justice Musoke-Kibuuka. Singh had secured an order for a recount at Chief Magistrate’s Court in Mengo, and the exercise had proceeded under heavy military guard, with Kasibante and his lawyers thrown off the scene at some point. Having heard and analysed what transpired, Justice Musoke-Kibuuka finally had his say.
‘That application (for recount) was filed in the Chief Magistrate’s Court on behalf of the first respondent (Singh), by Messrs Kahumaa and Khaheeru Advocates. They could well have been handling this kind of application for the first time, or it might have been deliberate … Whereas Section 55(1) of the PEA [Presidential Elections Act] vests a Chief Magistrate’s Court with jurisdiction to conduct a vote recount, the order that was sought, in Miscellaneous Application No.29 of 2011 [Singh’s application], was an order requiring the second respondent [EC] to conduct a recount of all the votes cast during the Parliamentary Elections in Rubaga North Constituency,’ the judge observed.
He added: ‘It is a fact that the petitioner [Kasibante] was not a party to this application. It is on record that the learned counsel who represented the second respondent (EC), Mr Sabiiti, told the Chief Magistrate’s Court at the hearing of the application that the application was acceptable to the second respondent. The learned chief magistrate, thus, misdirected himself, fatally, by granting that order in the form in which the prayer had been made. He ordered the second respondent to recount all the votes cast during the Parliamentary Elections in Lubaga North Constituency.’
Both Singh and the EC denied that the interim order issued by the High Court was ever effectively served upon any of them, but the chief magistrate of Mengo at the time, Phillip Odoki, who granted the recount order and is now a High Court judge, did not file an affidavit denying service.
Justice Musoke-Kibuuka ruled that he was satisfied that the order was effectively served upon everyone who had to be served and, in his conclusion, the service was ignored, and the recount went ahead in disobedience of that order. Justice Musoke-Kibuuka, having annulled the recount, declared Kasibante the winner without going back for a by-election.
The judge wrote: ‘The illegal recount conducted by the returning officer, Kampala, at Mengo Court on February 28, 2011, did not affect the declaration of the winner of the parliamentary election in Rubaga North, which was made by the returning officer on February 20, 2011. It did not do so because the recount was illegal ab-initio. It had no force of law.’
No rub of the green
In the ongoing process, the Opposition has not had similar reprieve, with many of their applications seeking the electoral records quickly dismissed. For instance, Justice Faridah Shamilah Bukirwa, sitting at the High Court in Kampala, rejected the efforts of NUP’s Fred Nyanzi Ssentamu to compel the EC to avail original records of about 73 polling stations in Kawempe South.
Nyanzi was challenging the victory of NRM’s Madina Nsereko, saying she worked with EC to doctor results that catapulted her to the 12th Parliament in January. Among other things, Nyanzi wanted the EC to avail original official report books, DR forms, Accountability of Ballot Paper Forms, Scanner Printout Reports and Deployment Books.
Nyanzi, who is NUP president Robert Kyagulanyi’s elder brother, insisted that the DR forms his agents got differed with those of the EC. Thus, he argued that the EC altered the results in favour of Nsereko. Justice Bukirwa, however, had none of it and summarily ruled that Nyanzi had not given her sufficient reasons to compel the EC to bring the electoral documents.
NUP secretary general David Lewis Rubongoya also saw his efforts to bring more evidence to show that NRM’s Minsa Kabanda rigged elections to represent Kampala Central were thwarted after Justice Flavia Nabakooza Kalungi expunged about 97 affidavits he filed after lodging the petition. Justice Nabakooza claimed that the 97 additional affidavits and their attachments were introduced irregularly and without mandatory leave of court.
Rubongoya’s case was further weakened when Justice Nabakooza limited his witness testimony and struck out his complaints regarding polling stations in Nakasero II and Kololo II being placed in restricted security zones. The jurist noted that those pain points should have been raised with the EC prior to the election.