Nyakecho Ochwo v Electoral Commission and Another (HCT-04-CU-EP 11 of 2006) [2006] UGHC 88 (5 September 2006)

Full Case Text

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA

## HOLDEN AT MBALE

### **HCT-04-CU-EP-0011-2006**

# **NYAKECHO KEZIA OCHWO PETITIONER**

### **VERSUS**

#### **RESPONDENTS 1. THE ELECTORAL COMMISSION 2. GRACE QBURU** :::::::

## **BEFORE: THE HONOURABLE MR, JUSTICE YOROKAMU** BAMWINE J U D G ME N T;

On the 23rd day of February, 2006 the voters of Tororo District went to the polls to elect their woman representative to Parliament. There were four candidates for the seat.' respondent 31,562 votes, one Athieno Parliament. Tomplains in this petition that the election and declaration of the second respondent as the wlnoef was invalid in the sense that the counting of results wasn't conducted in accordance with the principles laid down in the provisions of the Parliamentary Elections . The petitioner garnered 26,745 votes, the 2nd Meanwhile, the petitioner felt aggrieved by the declared results. She Hellen 24,959. votes and Achieng Sarah Opendi 18,820 -votes. Accordingly, the first respondent declared the 2nd respondent the winner. She has since taken her seat in

winner. Act. She contends that if a recount of the votes is ordered, she will be declared the

respondent 25. She has filed a total of 72 affidavits. The first respondent has filed 43 and. the 2nd

issues were framed for determination: . It is an agreed fact that of the 116,126 total votes cast, 14.043 votes were declared invalid. This was 12.1% of the total votes cast. At the scheduling conference, three

- **1.** Whether the Tororo District Woman Parliamentary elections were conducted in compliance with the provisions of the electoral- laws with regard to counting and declaration of results. - 2. compliance affected the results id substantial manner. In the event of'the 1st issue being answered in the negative, whether the non- - 3. Whether the petitioner is entitled to the remedies sought.

#### Counsel:

Mr. Richard Okallany forthe petitioner.

- Mr. Arthur Sempebvya for the first respondent. - Mr, Musa Sekaana and Mr. Abaine Jonathan for the 2nd respondent.

Her objection was premised on the lost and/or a voter or voters has/have a right to move Court for a commensurate -------- » remedy. The candidate who won has\_.np\_cp.rxesp. Qndjnq..r\_iqht to brjnq ^cross-petition against his/her opponent who lost. The right stems from that very fact of participation in the impugned election.^! will not waste, any more ink on. this point in this petition. respondent had raised an objection as to the petitioner's right to challenge her election. petitioner's alleged violation of the Leadership Code'Act which would disentitle her to any appointive or elective- post for 5 years from the date of dismissal or removal. In a with the Court of Appeal decision in Ngoma Ngime <^Vs-Electoral Commission Another Election Petition Appeal No. 11 of 2002, a candidate or candidates vyho In her reply to the petition, the 2"d ruling delivered on 10/08/2006, I over ruled the objection and stated reasons for doing so. I still stand by those reasons. It is. not necessary to go over the arguments of counsel again. Suffice it to say, however, that the law as It stands and in accordance

{ turn now to the substantive issue for determination, that is, whether or not in the Tprorp Woman representative to Parliament elections there wa.s .compliance with the law as regards the counting and declaration of results,

As I stated in the ruling of 10/8/2006, the Parliamentary Elections ,process ,is \_a I progressive one. The A.ct contains clearly marked ancL self-contained segments of the electoral process, to use the words of my brother Musoke - Kibuuka, J. in Byanytma — • - • . — .. \_ — *~~* Winnie -Vs- Nqoma Ngime Civil Revision No. 0009 of 2001, unreported. In

piactical terms, once one segment is completed, the process moves on to the next segment. Those segments are the sets of election activities such as the nomination of candidates, campaigning, voting, counting of votes and announcing of the results and election petitions. They are all well demarcated by the law. Section 47 of the Act is the segment relating to the counting of votes and announcing of results. The power of this Court to order a recount of the votes cast must be understood in that context.

Under this law, votes cast at a polling station must be counted at that polling station immediately ---------------------------------*—*---------------------------------------------------------------------- -- after the presiding officer declares\_the po|ling\_clos.ed, *&gt;* —The votes *'* cast In~ favour of each candidate are recorded separately, The law allows a candidate to be present at the counting in person or through his/her agent. This is done to safeguard the interests of the ^candidate with regard to all stages of ■the\_cpuntin.g/\_\_talLying\_or.\_.. recounting processes, -This is a matter of common sense. After the election, a voter or A. , - --------*— ' ~'r~'* candidate may allege, as herein, that something was wrong with.ballot papers, thereby making them disputed ballot papefs, and then require a scrutiny, as the petitioner has done herein. It then becomes necessary for the Court to scrutinize the ballot papers rejected by the presiding officer.

So how is the counting of ballot papers done?

*)*

' At the commencement of the counting, according tq(S. 47 (4)J)f the Act, the presiding Officer opens a ballot box in the presence and full view of all present and empties Its contents on to the polling table. With the assistance of the polling assistants, he/she proceeds to count the votes, one by one, separating votes polled by each candidate.

From the pleadings, none of the petitioner's witnesses states that this was not done In the instant case.

Further to the above procedure, the presiding officer or their agents, if any, then sign, and retain a copy of a declaration Stating the polling station and the number of votes cast in favour of each candidate. The presiding officer there and then announces the results of the voting at that polling station before communicatingAhem to\_the Returning , -------------------- ----— Officer. The vqtes cast for each candidate are recordedjn figures and words and are counter signed by the poHing\_agents before the declaration of the results. Again, there is no evidence from the petitioner's witnesses that this procedure was not followed to .the letter In the instant case. What then Is her problem?

counties. It is that she;rec£ived information from her polling agents, supervisors and monitors, *9* J that a large number of her woyld be valid votes were declared invalid and that the sum total of the said invalidated votes is about 7000. They are said to cover stated sub-The long and short of her supporters affidavits is that because of the erroneous decision of most presiding officers, the petitioner lost her genuine votes. Each deponent gives an estimate of what the petitioner allegedly lost.

It is submitted by learned counsel for the first respondent that in order for the petitioner to sustain this petition, evidence adduced must revolve around the acts or omissions of the petitioner or her polling agents and representatives at the polling stations in relation to the procedure specifically set out to handle and deal with complaints during the counting and declaration of.results. I agree with that submission.

What is being asked for in this petition?

It is' that the ballot papers be inspected, scrutinized and counted to ascertain whether there are irregularities as complained by the petitioner and her agents in their affidavits. a problem in the constituency. Some witnesses have made attempts to speculate as to why the voters could have decided to spoil the votes deliberately. One such witness, many invalid votes in Tororo County because none of the candidates was from that county. That all the four candidates were from WestBudama. She states further that Tororo County had been promised a new District by the President during the elections and since it had not been granted, the voters revenged by Invalidating women's votes and voting for other candidates for M. P. and President. Her'evidence is that the voters of Tororo County were hostile to the candidates during the campaigns in the whole county. She has not been challenged on this but as it were that's her guess. There could have been other reasons e.g. poor civic education with regard to ticking of ballot Judging by the high number of invalid votes, 14.043, it could as well be that there was Athipno Hellen, participated in the race as a candidate. She states that there were

papers. Another deponent in support of the petition, one Anne Baluka, a poll watcher with Democracy Monitoring Group is of the view that there is need to educate the presiding officers on what is considered to be an invalid vote. Again, that could as we|l be true. Be that'as it may, all the authorities I have come across show that where a scrutiny was allowed, It was in respect of votes which had been objected to by thereturning officer and that objection was challenged by the candidate. Thus In Williams -Vs- Giraudy (1978) 25 WIR 529, St. Bernard, J. A at p. 534B put it this way:

*"In the present case, what purpose would it serve to scrutinize the 136 votes when both sides agree they were valid. There were no objections to any ofthose votes. Counsel for the appellant submitted that the agent was not compelled to make any objection. This may be true but I fail to see how Che Court would be informed or particulars could be given of the u votes intended for scrutiny. Statutory provision is made for the returning* • *officer to allow the candidates and their representatives to see any votes rejected by the presiding officer before determining whether any such votes had been validly cast. Provision is also made for the Presiding* I *Officer to keep a record of every objection made by any candidate, or his agent or any elector present to any ballot paper found in the ballot box. In my view these provisions are to ensure that-when a petitioner asks for scrutiny he has the facts and particulars of those votes to which he has reasonable grounds for showing that he is entitled to or those which would be struck offon a scrutiny."*

scrutiny could not be asked for by way of a summons and that the summons itself was .in the nature of a fishing expedition to obtain evidence In support of the petition. The petitioner contended that it was necessary to file a petition before a.summons could be yotes (emphasis mine). The law under which the summons- had been made was similar to the relevant law In the instant case. At the hearing, the respondents contended, inter alia, that the sunnmons should be struck off, as bad in law. and vexatious since the petitioner had first to provide details relating to particular votes he claimed were invalid and he was now alleging for the first time that In this case, following the general election, the &gt; successful candidate had petitioned to have the result declared void on the ground that several of the ballot papers had been tampered with prior to the election. Of the total of 1425 ballots cast, 55 had been rejected by the returning officer. A summons was filed by the petitioner at the same time seeking a scrutiny of the ballot papers and that they should be inspected and counted by the Court. brought and that the summons was not vexatious since it sought not only a scrutiny but also an inspection and counting of all the ballot papers. The Court held that a petitioner was only entitled to claim a scrutiny of the ballot papers to determine which candidate received the majority of lawful votes from his personal knowledge, or that of his representative, of what he had observed at the counting of the votes^and he, or the returning officer, had objected at the actual count to. particular an unknown quantity of votes were defective. The respondents contended that a That case was cited with approval by their Lordships in Arthurton -Vs- Fergus and Others [1988] LRC (Const) 115,

electoral officials in Tororo. From the law, each objection recorded is required to be numbered and a corresponding number placed at the back of the ballot paper in question. The ballot paper is then initialed by the presiding officer and witnessed by the polling assistants, the candidates or their agents. The dec'sion of the presiding officer on any question arising in respect of a ballot paper is final, but is subject .to review on'an election petition such as this. Accordingly, in a petition such as this, focus must be on die Report Book and the initialed ballot papers. With regard to the 14,043 invalid votes, therefore, there had to be evidence that objections were raised; on each of them by the petitioner and/or her agents and the presiding officers overruled the'm. In other words, for the vote papers to be disputed within the meaning of S?48orme Act, somegnejjad^to object, challenge or question the same. For the\_petitioner to succeed herein, she must show that there was a specific number^rgjected^allots yvhich in fact affected the result. I consider this to the rationale behind the requirement for a list of votes intended to be objected to by the petitioner under Rule 11 of the Parliamentary Elections (Election Petitions) Rules, Statutory Instrument No. 141-2. In my view, everything said in the Giraudy case and the Arthurton case is relevant to the instant case., . Our law provides for the candidates or their representatives to see the votes at a final count or those rejected by the presiding officer himself before he determines whether they should be rejected or had been validly cast. The law also .provides .for the recording of complaints or objections in a Report Book to any ballot paper found in the ballot box. This Report Book is provided by the Electoral Commission. It has not been alleged that such a book was never provided to the

## 05/09/06:

Mr. Richard Okallany for petitioner Petitioner present Mr. Arthur Sempebwa for ,1st Respondent

Mr. Okalany : We don't see the 2nd Respondent. Mr. Sempebwa has Informed me that he Is holding brief for counsel for 2nd respondent as well.

Court: So be it. Judgment read in open court.

Yorokafnu Bamwine /Judge