{UAH} MUSEVENI'S ELECTION RESULTS TRANSMITTED BY MILITARY COMMUNICATION GADGETS

MUSEVENI'S ELECTION RESULTS TRANSMITTED BY MILITARY COMMUNICATION GADGETS

 

By CHANGE OF GUARDS

     "The results will come in spite of the fact that the internet has been shut down. The Electoral Commission is not using this local internet to transmit the results.  We are using our own system."

     E.C Chairman - Jan 14, 2020

Obviously, Museveni is as usual using the communication gadgets of his security apparatus to transmit the election results from the districts to the National Tally Centre supposedly run by his Electoral Commission (EC).   Some of these modern gadgets are even fixed with scanner that makes it easier for transmission of Results Tally Sheets from districts and their corresponding Declaration of Results forms from Polling Stations.  That way, it is easier to change results during transmission before being given to the EC.  

The Presidential Elections Petition NO. 1 of 2016 - Amama Mbabazi & Others Vs Museveni, E.C and Attorney General brought to surface the intricacies of transmission of election results. The petitioners alleged that the Museveni regime had set up a parallel Tally Centre at Naguru Hill that was being run by the security agencies. It was further alleged that it is these doctored results from the said Naguru Hill tally Centre that were being given to the EC for public declaration. Here-below, find the relevant excerpts from the March 2016 judgement in the said petition.

3.  Unlawful Electronic Transmission of Results from Districts to the National Tally Centre using the ERTDS

The petitioner alleged that, the 2nd respondent, without receiving the requisite documents under section 56(2) of the PEA, announced the results of the election and declared the 1st respondent as the winning candidate, contrary to section 56 of the PEA. The petitioner relied on his affidavit to support his allegation that the use of ERTDS was unlawful.

The 2nd respondent averred that it was in possession of the Declaration of Results Forms from polling stations before announcing the results and declaring the winner.

The 2nd respondent also submitted that it used the ERTDS to transmit results, the primary source of which were declarations of result forms from polling stations. That the system could also produce Tally Sheets based on information from the Declaration of Results forms.

The 2nd respondent further averred that in any event, receipt of the said documents by the 2nd respondent is not a prerequisite for announcing the results of the presidential elections.

We have carefully considered the evidence and submissions of the parties.

The allegations of the petitioner with regard to the electronic transmission of results, bring into focus the operation of section 56 of the PEA. Section 56(1) provides for the returning officer, after adding the votes as per section 54(1) to declare to all those present, including agents of candidates, the results obtained by each candidate. Thereafter he has to complete a return indicating the number of votes obtained by each candidate.

Section 56 (2) of the PEA is the crux of the matter, which states as follows:

"Upon completing the return under subsection (1), the returning officer shall transmit to the Commission the following documents –

a) the return form  

b) (repealed)

c) the tally sheets; and

d) the declaration of results form from which the official addition of the votes was made." (emphasis added).

The Petitioner contends that the above documents were not submitted to the 2nd respondent. His agents did not see them and therefore there were no results to use to declare the first respondent as the winner of the presidential election.

For the 2nd respondent, it was submitted that the above documents were scanned at the District and the results were electronically transmitted to the 2nd respondent. The hard copies followed later. It was the electronically transmitted results that were used to declare the winning candidate.

This brings to focus the use of technology in the conduct and organization of elections. The law requires that the returning officer transmits the documents, but does not specify the mode of transmission. We received evidence that in the past, results could even be transmitted by phone or fax.

We have addressed ourselves to the legal meaning of the word "transmit." According to Black's Law Dictionary, 9th Edition, it has two meanings. It can mean "to send or transfer a thing from one person or place to another. It also means "to communicate."

We have also considered the provisions of the Electronic Transactions Act, 2011 and have concluded that in the absence of specific provisions as to the mode of transmission, the 2nd respondent while exercising its authority to organize and conduct elections, could use electronic transmission of the documents under section 56 (2) of the PEA. This is not non compliance with that provision.

However, care had to be taken to ensure that the information received by the 2nd respondent could be verified as being consistent with that on the original documents that were scanned. This is the basis for the Petitioner's demand for discovery and inspection of the Declaration of Results Forms, the Return Form and the Tally Sheets.

In his Petition, the Petitioner stated his case thus in paragraph 36(vi) and 37.

36(vi): "From the above process, there was room for switching DR forms, switching results when purportedly tallying and doing all malpractices of rigging to alter the final result."

37 - "In this regard the Declaration forms used by the 2nd  Respondent to declare results are essential and critical to determine whether the results announced correspond to the Declaration Forms in possession of the 2nd respondent vis – a –vis those in possession of the Petitioner and other candidates. The Petitioner shall seek for their disclosure and discovery from the 2nd Respondent."

The Petitioner's team of Lawyers and Data specialists did inspect the said documents at the offices of the 2nd respondents. They were subsequently given certified copies by the 2nd respondent and by agreement of both parties, certified copies of the same were exhibited in court.  

The petitioner failed to produce those Declaration of Results forms he said were in his possession so that he could make comparisons with the documents in court and establish any discrepancies.

No material discrepancies were discovered or brought to the attention of the Court.

4. Illegal and Unlawful declaration of 1st Respondent as winner of the Presidential election without District Returns and District Tally Sheets

Under this allegation, the petitioner contended that without Declaration of Results Forms from each of the 28,010 polling stations together with the Tally Sheets from the 112 districts and Return Forms, there were no results that the 2nd respondent could use to declare a winner under section 57 of the PEA. Based on this allegation, the petitioner claimed that the 2nd respondent had no basis to declare the 1st respondent winner and contended that section 56 of the PEA had not been complied with. The petitioner relied on the Affidavit evidence of two deponents.

This evidence was rebutted by affidavit evidence of the 2nd respondent's Chairman and other officials. Mr. Kiggundu was also cross-examined on it and his evidence was not shaken.

We have carefully considered the evidence and submissions of the parties. We find that based on the documents which were exhibited in court by mutual consent of the petitioner and the 2nd respondent and which we have perused, we are satisfied that the results that were declared by the 2nd respondent on 20thFebruary 2016 were based on Tally Sheets and Returns submitted by returning officers from the 112 Districts as at 20th February 2016.

We have found no noncompliance with section 56 of the PEA because at the time of declaring the 1st respondent the winner, the 2nd respondent had already received results for 26, 223 out of 28,010 polling stations.

The 2nd respondent however confirmed that by the time it announced the winner of the Presidential elections, it had not yet received results from 1787 polling stations representing 1,057,720 registered voters. The 2nd respondent contended that it announced the results because the 1st respondent had already emerged as a clear winner with more than 50% in his favour and because it had to comply with the constitutional and statutory requirement to declare a winner within 48 hours from the close of polling.

We note that the petitioner took particular issue with the 2nd respondent's announcement of a winner before all results were turned in by the respective returning officers. We recognize the very short timeline of 48 hours imposed on the 2nd respondent to ascertain and declare the results and the winner where one has attained more than 50% of the votes cast. We have noted however that the 2nd respondent did not in its answers provide any credible explanation why the results for 1787 polling stations had not been received.

With the exception of a few stations where the entire polling exercise was cancelled, we find it inexcusable for the remaining results not to have been sent by the returning officers. A review of the District Summary Report issued by the 2nd respondent as at 20th February 2016 shows that while distant Districts had either fully submitted their results, some Districts such as Jinja had only transmitted results for 11 Polling Stations representing only 3,607 valid votes out of a total of 399 polling stations of the District.

These delays explain the zero votes reflected for several polling stations in some District Tally Sheets that the petitioner brought to the Court's attention for the Districts of Jinja, Rukungiri, Kyenjojo, Kabale, Kampala and Wakiso. Following the completion of the hearing, the Court reviewed the District

Summary Report –Final Results as of 22nd February 2016 and confirmed that the missing results were eventually included in the final tally. We also did not observe major discrepancies in the results that were transmitted by the respective district returning officers through the district tally sheet and district return forms and the results for each District which the 2nd respondent declared on 20th February 2015.

5. Lack of Transparency in the declaration of results

The petitioner alleged that contrary to Article 1(4) of the Constitution, the election and the whole process of counting and consolidating the election results through tallying and transmission of results from each polling station to the district tally centre/Returning Officer and finally to the purported National Tally Center lacked fairness and transparency. He further contended that the process was instead shrouded in mystery and concealment in announcing the results and declaring the winner.

The Petitioner further alleged that the 2nd respondent did not have a National Tally Center established by law and instead received results from an illegal tally center run and operated by security agencies at Naguru.

Besides his affidavit in support of the petition, the petitioner did not adduce any other evidence to support the allegation that the 2nd respondent received results from an illegal tally centre based at Naguru. He however relied on the Affidavit evidence of 13 deponents to support his allegation that the declaration of results lacked transparency.

The 2nd respondent denied the petitioner's allegations that there was no National Tally Centre and that it received results from illegal tally centres. The 2nd respondent averred that it had a well established national tally centre at the Mandela National Stadium at Namboole from which results from district tally Centers were relayed. Further, the 2nd respondent averred that there were no illegal Tally Centers from which the 2nd respondent received results. The 2nd respondent relied on the affidavit evidence of its Chairman and other officials.

We note that section 57(1) of the PEA requires the Commission to ascertain, publish and declare the results of the presidential election within 48 hours. However, PEA does not prescribe for the EC how a Tally Center should be set up for ascertaining results, nationwide, what it should look and where it should be located.

We note that the Petitioner made an allegation that the 2nd respondent received results from an illegal tally centre which was being operated by security agencies. The Petitioner did not adduce any affidavit evidence to support this allegation.

With regard to the allegation of non-compliance arising from the 2nd respondent's setting up of a national tally centre at Namboole, we have found no provision in the law which the 2nd respondent breached when it set up the National Tally centre to enable it collect and ascertain the results it had received from the Districts before it could declare the winner in 48 hours as it was required to do so by the Constitution and the PEA.

Based on our review of the law and evidence before us, we find that the Petitioner has not proved that the 2nd respondent failed to comply with the cited provisions of the PEA.

We however wish to note that the 2nd respondent should have done more to ensure that all candidates and their agents are properly briefed about the mode of transmission of results at both the district level and at the National Tally Centre

History doesn't repeat itself but it is human beings who repeat their actions.  Nonetheless, the history of Museveni's election results transmission is repeating itself.

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Rehema
Patriot in Kampala,East Africa:Assalamu Alaikum

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