Masanche J
In 1995, our Country witnessed the first multiparty general election. It was an exiting phenomena. Thirteen parties were then in existence in the register of the Registrar of Political Parties. At the D beginning, one thought all parties were going to field candidates to contest for both the parliamentary seats, and the presidential post. Not all the parties fielded candidates.
This judgment is concerned with the parliamentary and presidential elections of Muleba South in Kagera Region. In that constituency five political parties fielded candidates for the parliamentary E seat. Two fielded candidates for the Presidential seat. The parties that fielded candidates were: Chama Cha Mapinduzi (CCM); their candidate was Wilson Mutaganywa Masilingi. (I will refer to him in the rest of the judgment as Mr Masilingi). Then there was the party called NCCR Mageuzi. They fielded a candidate called Prince Mahinja Mulokozi Bagenda (I will refer to him in the rest of the F judgment as Mr Bagenda). There was another Party called CUF (Civil United Front). This Party fielded a candidate called Mr Angelo Mutta. There was another Party called the UDP (United Democratic Party). This party fielded a candidate called Mr Gratian Alphonce Mkoba. The fourth G Party, UMD (Union for Multiparty Democracy) fielded a person called Simon Kashura. These were the candidates for the parliamentary seat.
For the Presidential seat, only two parties fielded candidates. These were the CCM who fielded a H candidate called Benjamin William Mkapa and NCCR Mageuzi who fielded a candidate called Augustine Lyatonga Mrema. The other three parties, as far as Muleba South is concerned, did not field any candidates for the Presidential post. This judgment, as I have to emphasize, concerns only the election for the parliamentary seat.
It is I think desirable, nay, necessary, to mention, at the outset, I
A (especially to a person coming from outside Kagera) that Muleba South was one constituency in the Muleba District. There was another constituency called Muleba North. Muleba North was a fully fledged constituency and had a candidate called Ndimara Tegambwage for the parliamentary post. B Ndimara contested under the umbrella NCCR Mageuzi and won the seat. I have decided to mention this because during the trial, counsels, and, indeed witnesses, mentioned the North quite often.
At the end of these parliamentary elections Mr Masilingi emerged the winner. He scored twenty one C thousand eight hundred and fifty one votes as against the second placed Mr Bagenda, who scored eighteen thousand one hundred and thirty one votes. Masilingi, by simple mathematics became a winner by a majority of three thousand seven hundred and twenty votes. This victory did not please Mr Bagenda and his party. And so, they sought to challenge that victory in a court of law.
D Indeed, Mr Bagenda filed a suit in court to challenge the victory. Mr Bagenda and his party, through Mr Ndyanab, learned counsel have fielded twenty nine witnesses, including Mr Bagenda himself. Mr Masilingi and the Attorney General have fielded fifteen witnesses, including Mr Masilingi himself. While Mr Masilingi presented his case himself, the Attorney General was represented by Mr E Mwambegele, the Senior State Attorney based in Mwanza.
I must state at the outset that the trial of the whole case was commendable. Counsels presented their case with commendable zeal. They left no stone unturned. It was gratifying seeing the learned F counsel Mr Ndyanabo spending a month outside Dar es Salaam. Nobody complained of boredom. Nobody fell sick.
Now, the following issues were framed at the beginning of the whole exercise. Two issues became added up in the course of the hearing. Certainly, nobody can complain about the added issues, G because the law allows doing such a thing (see Ord 16 Rule 5 of the Civil Procedure Code). Even my brother Mchome J had to adopt a similar approach in the case of Walid Kabourou v Attorney General (1).
So, the following nine issues were to be adjudicated upon, and it is upon these that the rest of the H judgment will dwell. The issues were as follows:
1. Whether the ballot boxes were brought before the Returning Officers broken into;
I 2. Whether ballot boxes were brought at the Returning Officer's office without escort by either police or petitioners agent;
3. Whether petitioner's agents were not provided with Returning Officers Form (RF forms A referred to);
4. Whether the District Security Officer (we came to know him by the name of Mr Aron Mpole, RWM) burnt 30 ballot papers for demonstration at Memory Bar Muleba after he had forcefully taken them from the petitioner's agent one Gerald Omubunda; B
5. Whether candidate's photographs and voting formats to educate the electorate on how to vote were delayed.
6. Whether the counting exercise was conducted by the Returning Officer without involving the petitioner or his agents;
7. Whether the forms for recording the results were designed in such a way that the result C would be easily tampered with;
8. Whether voting exercise proceed uninterrupted until 30 October 1995;
9. To what relief or reliefs are the parties entitled.
So, we had nine issues in all. D
Like the submissions I have received and read, from all the parties involved (Mr Ndyanabo, Mr Mwambegele and Mr Masilingi), I will proceed to discuss these issues in the same order, or seratio. But before I do that, let me give the position at law with regard to General Elections: It seems to me that the established is this that: E
1. `An election petition must be construed more strictly than a plaint in a civil suit. This principle arises because (1) the right to file an election petition is not a common law right but a statutory right; (2) one of the respondents is a person who has been declared by the F Returning Officer to have the confidence of the electorate and the Courts are slow to interfere with such verdicts except when a clear case is made out; and (3) where the petitioner establishes corrupt practices, the successful candidate may not only be unseated but even disqualified to stand as a candidate in future elections.' Nogha's Law of Pleadings 14th Edition. Samatta JK (as he then was) endorses this view in Philip Anania G Masasi v Returning Officer Njombe North Constituency and others (2).
2. It is still available to challenge the validity of an election on the ground of illegalities that are otherwise not expressly stated under 2. 108 [of the Election Act]. H
Secondly, there is the jurisprudential argument which derives from the spirit of the Constitution and the Election Act, and that is democratic elections have to be free and fair. This too, has not been effected and Parliament has no power to legislate against such principle. `An election riddled with chicanery and I
A criminality is not an election in the eyes of the law, because it does not express the true wishes of the electorate.' (Lugakingira J, in Joseph Sinde Warioba v Stephen Masatu Wassira and Anor (3)).
3. The franchise is the very cornerstone of democracy; it is the one right, perhaps more than B any other, upon which all other constitutional rights depend for their effective protection. When the right to vote is denied or abrogated, democracy and freedom fail.' (Lugakingira J in Joseph Sinde Warioba's case supra)
4. It is now the law that number of votes scored by candidates in an election may not per se be used to argue that `after all even if he was given those votes, numerically he will still lag C behind' -- So the cases of Dyamwale v Masomo (4) and Kasusura v Kabuye (5) are now, in advent of the incorporation of fundamental rights in our constitution, of no practical value.
5. The position then is this, as stated by Court of Appeal in Attorney General v Walid D Kabourou (6) that:
`taking into account the principle which underlies the Constitution and the Elections Act 1985, that elections shall be free and fair, ... an election which is generally unfree and unfair is not an election as E envisaged by the Constitution and the Election Act, and consequently anything which renders the election unfree and unfair is in law valid ground for nullification of such purported election.'
6. As has been said in a number of cases on elections, in the end:
F `the trial judge will have to take into account -- the cumulation effect on the election of the proved irregularity'. Masasis' case (supra): Samatta J K.
The Court of Appeal in the case of George M Shambwe v Attorney General (7) had observed that G the petition:
`[rested] entirely on the cumulative adverse effect of the series of alleged non-compliance or irregularities in the conduct of the electoral process.'
H Having said all that, let is now look at the issues framed:
Issue No 1
Whether the ballot boxes were brought before the Returning Officer broken into:
I We had several witnesses who testified on this issue. The story
behind this issue is that, after the election exercise, the ballot boxes locked and sealed, would be A transported to Muleba District Headquarters by escortees who would include representatives of the parties that would have taken part. Muleba District Headquarters was supposed to have been the place where different results from the boxes would be added up. The evidence received in Court, B and which has not been much contraverted, is that some boxes for parliamentary results arrived in Muleba in bad shape either no locks or with locks with tampered seals. Of particular attraction to this deficiency were boxes from Nshamba, the birth place of Mr Masilingi and also boxes that emanated from Kimwani. Nshamba and Kimwani were divisions (tarafas). The allegation was that C Kasharunga, which was chosen to be the centre for collection of the boxes en-route Muleba, was the most notorious in the exercise of breaking the boxes.
On this issue we had witnesses like Wencheslaus Joseph PW6 the NCCR polling agent at Itongo, D who testified that in the first place posters for demonstration came late. They were in fact put up or pasted on the wall or whatever place they were to be pasted to, at 11.30 am. Wencheslaus became lucky in that while proceeding home he passed through Nshamba and saw four ballot boxes opened. Sensing some foul play, Wenchslaus told the Court that their senior party official, E Byombalirwa, PW27, decided to escort these to the District Headquarters.
There are other witnesses who testified on this aspect of boxes arriving at both the Divisions and at the Headquarters tampered with. These were Philip Byombalirwa, PW27 -- the one I have just F mentioned: Zuberi Mbyana RW5, the District Education Officer of Muleba District, who called himself a `reserve' polling assistant; Mr Singomba, RW3, the Immigration Officer and one who was an assistant Returning Officer at Kimwani; Mr Aloyce Mpole RW1, the Security Officer, and the G Returning Officer himself, Mr Mtalo RW9. All these testified that some 14 boxes for the parliamentary election and 8 boxes for the presidential election got tampered with.
As for this tampering with the boxes, the respondents give the following explanation: H
1. That some of the boxes arrived at either tarafani or at the headquarters itself with tampered locks and seals because of bad roads which became worse because of the rains that were falling;
2. That the opening of the boxes (at the headquarters and not I
A tarafani -- per Aloyce Mtalo RW9), was done to retrieve RF2s which had been inadvertently locked inside the ballot boxes. The purpose was to get the RF2s and RF2As out as the instructions were that they had to be in special envelopes and ferried away separately.
B Now I agree that the boxes were sent before the Returning Officer at the District Headquarters in bad shape. I do not, however, agree with Mr Mtalo, and Mr Mbyama, that the seals went off and the locks became un-operational because of the bad roads. On the contrary, the boxes were opened to retrieve RF2 forms which had been locked in there. In doing that exercise there was every likelihood C of tampering with the actual votes. Again, from the totality of evidence, I am satisfied that the boxes were opened at the arafa level -- Nshamba and Kasharunga. Opening of boxes at any stage of the electorate process before the destination was contrary to directive that these very Assistant D Returning Officers had received from the Electoral Commission. For example para 5 of the `Maelezo kwa Wasimamizi wa Vituo vya kura' reads:
`Vifaa vifuatavyo ni muhimu sana na vinapaswa vitunzwe na wewe mwenyewe mpaka utakapomkabidhi E msimamizi wako wa Uchaguzi au msaidizi wake
(h) Funguo na kufuli'
Then, Part Four goes on to state (para 55 (ii)):
F `Makosa mengine mnayoonwa mjiepushe nayo ni haya:
(i) . . .
(ii) Kubandua lakiri, kufungua au kujaribu kufungua masanduku ya kura na bahasha zilizofungwa kama ilivyoolezwa katika Ibara ya 16 na 42 ya maelezo haya.'
G These instructions are quite clear and I am sure the Returning Officer Mr Mtalo and his assistants Mr Singombe RW3 and Mr Kakuleterwa RW6, to mention just a few, knew of these instructions. By the way, in the Kishapu Case Maynard Mwita Bujiku Ng'wanansese v Attorney General my brother Mchome J, went further and said:
`Also among the materials to be handed to the presiding officers before the poll are kufuli lisilofungwa, and `funguo za kufuli.'
Mchome J goes on to say, that:
`And the ballot boxes after being locked and sealed are to be handed to the Returning Officer and not to be opened A on the way.'
Mchome J then concludes:
`These provisions of the law are mandatory and go to the root of an election.' B
I could not have a better assistance than those observations of my brother Mchome J.
The Assistant Returning Officers, even if RF2 forms had been inadvertently locked inside the ballot boxes, ought to have used their good sense and judgment by not opening them en-route. C
I have read the submission by Mr Mwambegele where he says:
`No person testified to have seen fake votes being either put or even seen in the ballot boxes. The petitioner D capitalised on bringing evidence to show that the boxes arrived at Muleba broken into and as such this remains a mere allegation which did not affect the result of the election.'
I do not agree with Mr Mwambegele. Later in this judgment I will demonstrate how that lapse E affected another issue.
On the first issue I hold in the affirmative that boxes were brought to the Headquarters broken into.
Issue No 2 F
Whether Ballot Boxes brought to the Returning Officer were not escorted by police or petitioner's agent:
The witnesses who came to say something on this issue were the Returning Officer himself, Mr Aloyce Mtalo, Wencheslaus Joseph PW6; Kashaju Bazigiza PW7, Aristides Jeremiah PW10; G Benedict Mutongore RW10, Sam Kashura PW26, to mention just a few. Their evidence, in totality, was clear and simple. The boxes were not escorted by all these who were supposed to have escorted them. And, we are given the reasons for that: It is alleged that there was no space in the vehicles to accommodate the Party agents. Was that explanation plausible? I think it was. But then H one would ask why did the Returning Officer, right at the beginning, not make sure that there was enough transport to ferry the boxes, and most importantly the escortees? Mr Mwambegele, in his submission, admits that there was such a lapse (although he puts it as a `sake of argument') and adds: I
A `It is one thing to prove that the boxes were not escorted by neither the police nor Petitioners' agents to the Returning Officer and it is quite another to prove that in that course, some boxes were tampered with.'
B I do not agree with that proposition. In all these election processes, transparency should be always be the target. This aspect of drivers of the lorries leaving behind agents, and in most cases they were agents of the other parties other than CCM, has so notoriously been spoken of that it is unnecessary to labour on the point. I answer the second issue in the affirmative.
C Issue No 3
Whether petitioner's agents were not provided with RF2 Forms:
This issue has also so notoriously been spoken of. The best evidence, of course, came from the D Returning Officer, Mr Mtalo, himself. He admits that RF2 forms were few. He put it this way:
`After discovering that they [RF2] were few, we made a cyclostyling of the copies. But even cyclostyling did not E produce enough copies. I advised my assistants to tell the agents to write on any piece of paper.'
Witnesses, who testified on shortage of these vital forms -- forms that were to bear the entire results of the election, were just too many. There was Valentino Karoli, PW5; Wencheslaus, PW2; F Kashaju Bazigiza PW7; Stanslaus Sotery PW8; Aristides Jeremiah PW9. Frederick Baharuza PW4, for example who was a polling agent of NCCR at Kashenge, talks of inadequacy of these forms. Valentino Karoli of Kiholele Primary School polling station testified that they were refused the G forms, being told that they were not in existence. In other words not a single form was there.
As I say, the issue of RF2s being in short supply is true.
The Attorney General argues on the other hand, that RF2s were indeed in short supply. He goes on to state that, in any case, the law provides that they can be distributed to every polling agent `if H available in sufficient numbers' (s 79I(e) of Election Act).
Now, what I say is this, that in the first place Kagera Region, as a whole, and Muleba District, in particular, received sufficient supplies of RF2s, RF2As and ballot papers. In any case each polling station was supposed to have the two sets for just the five political parties that had contested for the I parliamentary set. This Court was informed of this through Mr Bagenda the petitioner, who was read-
ing Taarifa ya Tume ya Taifa ya Uchaguzi kuhusu Uchaguzi wa Rais na Wabunge 1995 -- a book A which was tendered as Exhibit P15. On p 42 of the book, it is categorically stated that Kagera was, in fact the first region which received its quarter of voting materials from England. The papers were received in Dar es Salaam on 11 October 1995. Truly, the papers (all) were late in reaching Kagera, but they eventually reached Kagera. (See 6.11 on p 44). B
The problem which beset these RF2 forms were necessitated by Mr Mtalo, the Returning Officer, himself who took a casual attitude of the type of work he was supposed to do. Part of his own evidence in fact says: C
`I did not make a follow up to find out whether what I told them was done. I got a report that all was fine.'
All was not fine with the RF2 forms. There was a serious allegation that many agents, including Mr D Bagenda himself saw piles and piles of RF2 forms in the office of Mr Mtalo. If I make take up the story on this aspect of the case by Mr Bagenda himself, from the proceedings: He said:
`In the office of Mr Mtalo we found RF2s. Of course the report talks of negligence in Dar es Salaam. But the pattern E was the same in Muleba. I saw them. They were RF2s and not RF5 or RF4. I went there and touched them and asked Mr Mtalo "what are these?"'
Mr Mtalo's reply was:
`It is not true that there were piles and piles of RF2 forms in my office.' F
He went on to say:
`I had other forms like RF2A, RF3A and RF5.' G
I have no slight hesitation in saying that Mr Bagenda saw RF2 forms in the office of Mr Mtalo. I have no reason to disbelieve Mr Bagenda who impressed me by being steady and composed in the H dock.
I therefore answer the third issue in the affirmative.
Issue No 4
Whether the District Security Officer (Mr Mpole) burnt thirty I
A ballot papers for demonstration at Memory Bar in Muleba:
The story goes that on 28 October 1995, a day before the actual voting, Gerald William Ndyamkama was given between ten to twenty posters (with pictures of candidates) so that they are sent to what ever polling station that was supposed to get them for pasting. He met Mr Mpole, RW1, B the Security Officer of Muleba District on the way. It was roughly between 10.00 am and 12.00 noon. Mr Mpole it is said, asked Gerald, after he (Mr Mpole) had found Gerald with these posters. He said:
C `Wewe ndugu yangu kwa nini unataka kujiingiza katika migogoro?'
Then, it is also said that Mr Mpole told Gerald that it was a criminal offence to be carrying those posters. Then, it is said, Mr Mpole took them away and proceeded to Memory Bar, in that broad daylight, and burnt them with kerosene. The kerosene was brought to him by a barmaid, who of D course was not called as a witness. Poor Gerald, he was later taken into the same bar and given a beer.
This story was controverted by Mr Mpole himself. He, indeed, agreed that such forms were burnt, E but said that they were burnt by Gerald himself because, according to Mr Mpole himself, Gerald had a grudge against Mr Bagenda. Mr Bagenda had refused to pay Gerald some money. What is surprising, however, is that even when Mr Mpole met Mr Bagenda a few minutes after the burning of F the posters, Mr Mpole never told Mr Bagenda that he (Bagenda) had refused a person payment of money. Let me reproduce what Mr Mpole said. Mr Mpole's evidence reads:
`He (Bagenda) said that the act of burning papers I had done was bad. I told him that I had not burnt any papers. I G told him that if any papers were burnt, he should report to the police. I did not tell him that the one who burnt the papers was Gerald (audience laughs).'
Now, after evaluating all the evidence regarding this allegation of burning these papers, I am H satisfied beyond reasonable doubt that Mr Mpole burnt these papers for reasons which are obvious -- to prevent Gerald from reaching and teaching his people on the posters.
Frankly speaking I was not impressed at all by the evidence of Mr Mpole. I am just wondering what type of Security Officer this is -- a person who did such a childish thing, and without foreseeing its Iconsequences. Mr Bagenda has said this, on these posters, (and I
agree with him), that actually they are `visual aids'. Mr Bagenda informed the Court that: A
`In any case, in adult education theory, visual aids are most effective. Illiterates become well informed on visual aids. Some old men do not hear well. Pictures are very important to show personality or composure. We would, for example, explain that `our man in the picture is the one with a hat or we would say, `our man is the last one in the B line' or things to that effect.'
Mr Mwambegele has complained, in his submission, that maybe, the barmaid ought to have been called to testify on who had burnt the papers. She should have come to say that it was Mr Mpole C who burnt them. I do not agree with that proposition. In the first place burning of those papers by who ever would have done it was bad enough. It was worse that it was done by a Security Officer. Even if Gerald had burnt them, the blame would have equally been thrown on Mr Mpole. He was a D Security Officer of a country. One of his duties, like any other organ of state, is to see that peace and tranquillity prevail in a country. He would have been castigated for failing to prevent who ever burnt them from burning them. I answer the fourth issue in the affirmative. E
Issue No 5
Whether candidate's photographs and voting formats to educate the electorate on how to vote were delayed: F
This issue need not involve us much. Almost all witnesses who were agents of the polling stations -- be it for CCM or the other parties have been at one that these posters were late in going up on Notice Boards or where ever that were to be placed. If I may mention a few of the witnesses who said so: They were Ruben Tibenda PW1; Valentine Karoli; Wencheslaus Joseph PW6; Thadeo G Mugusha. These, with others, testified that posters were pasted late.
As I said earlier on, it was not for fun that the Electoral Commission provided for the issuance of these posters. One would have therefore expected the Returning Officer to have been more vigilant in seeing that they were pasted early. But what did Mr Mtalo do? At p 125 of the proceedings he H says:
`We showed the officials the forms and how to use them. We gave party representatives some of the papers. Some were given to polling agents. They were to be posted on open space at the polling station. I did not get a I
A report from anyone or voter saying that he did not vote because of not having posters.'
With due respect, that is not an acceptable explanation. It is a lackadaisical explanation.
B I answer the fifth issue in the affirmative:
Issue No 6
Whether counting exercise was conducted by the Returning Officer without involving the petitioner on his agents:
C Mr Mtalo has refuted to have conducted the counting without involving the Petitioner. He says he made the totalling at the District Headquarters without Mr Bagenda, the petitioner, because the petitioner himself refused to cooperate.
The story unfurled in Court about this issue is as follows:
D After it was discovered that some ballot boxes from the polling stations had been opened at the tarafa level for purposes of correcting what had gone wrong with regard to where the RF2s were to be preserved, the petitioner and his agents, who included Philip Byombalirwa, asked for a recount. They were refused. This was, indeed contrary to sub section 3 of s 80 of the Election Act No 1 of E 1985 which provides
`The candidate or polling agent may request the Returning Officer to check on any part of the addition to ascertain its accuracy but shall not be entitled to request a recount of all the votes or all the ballot papers from any polling F station, unless the accuracy of the report of the results from that polling station, were disputed by the polling agent or candidate present.'
Subsection 4 reads:
G `Where a request is made pursuant to sub section (3) the Returning Officer shall not unreasonably refuse to check the addition or to recount the ballot papers of any particular polling station.'
I have indeed minuted somewhere in this judgment that with the advent of the Bill of Rights, a H candidate's request for a recount has no debate. Refusing a recount is against the spirit of fair play in the electoral process.
The evidence unfurled in Court is to the effect that the petitioner in no uncertain terms asked for a I recount. He said, in Court, for example:
`I insisted on a re-count. If there was a point of dispute which I had, I was entitled to a request of a recount. Some A of the matters in dispute took place at transit point. There were no forms at these transit points. We were entitled to be listened to, and have a recount.'
It was interesting to see how the respondent went about defending this issue. The respondent's B (both) explanation or defence to this vital aspect of the case was a total confusion. Whereas in examination in chief Mr Mtalo said:
`When we discovered that RF2 had no signature or any other problem, we decided to recount, that is, in respect of that particular box.' C
Later Mr Mtalo is recorded to have said:
`We agreed that where there were RF2 or RF2A which were defective or they were not there at all we would make a recount. Where there was no RF2 either inside the boxes or outside the boxes we were to make a recount.' D
Then on cross examination, Mr Mtalo is reported to have said:
`It is not true that I refused a recount for Muleba South.' E
But earlier on, a witness from the respondent's side, Mr Zuberi Mbyana, RW5, the District Education Officer, said something to the contrary. This witness, coming from the respondent's side was so steady and impressive that I intend to quote him extensively. F
Mr Mbyana is a District Education Officer of Muleba District. He is a graduate of the university of Dar es Salaam, having obtained his degree in 1991. Apart from saying something on this particular point of a recount, he said some other pertinent things as I will demonstrate. G
On election materials he said this:
`Some people had told me that they had placed the RF2 forms in boxes. I consulted Kasika who was the boss there, for guidance -- Kasika told me that since the agents were there they should be allowed to open the boxes so H that they hand over the RF2s properly. I told them to open and hand over the RF2 forms to me -- that was for those who had locked them inside.'
About the RF2 forms being pulled out from the boxes, Mr Mbyana agreed that there were such boxes which were broken into. I
A And when Mr Zuberi Mbyana, RW5 was cross examined by Mr Ndyanabo for the petitioner he said (now on the recount aspect):
`There was adding up. We were in group. NCCR had wanted a recount of the votes. They were refused. Other parties apart from NCCR agreed for the addition. In the North they did a recount.'
B I think now is opportune time to explain the Muleba North analogy in the counting and adding of votes.
There was evidence that Mr Mtalo was equally a Returning Officer for Muleba North. The petitioner C brought a witness James William Rwayongeza PW28, an Evangelist, who came to tell the Court that as far as Muleba North was concerned, Mr Mtalo had allowed a recount. Something happened when this witness was testifying which I think is not insignificant. To me it goes to real credibility. D There was a time when Mr Masilingi, the first respondent, suggested, in Court that he (James Rweyongeza PW28) was telling lies. We all remember what he retorted.
He said:
E `I have not been taught. I am a God's man. I have handled this Bible. I fear this Bible -- its God's work. Don't talk about my being taught.'
And indeed, as I observed this witness, he looked angry at being told that he had been taught to say F that in Muleba North there was a recount of the votes.
And concluding his evidence, on being led by Mr Ndyanabo, this particular witness said:
`In the North, the misunderstanding was between CCM and NCCR. Mr Mtalo solved it by saying we should do the G counting again. In the South it was the same, Mr Mtalo was called to solve the problem between CCM and NCCR. He allowed in one area and refused in the other. Where he allowed a recount, NCCR Mageuzi won. Where he refused, CCM won.'
H But, why was there a refusal of a recount in Muleba South while in Muleba North such a request was granted? The explanation is a `beat about the bush' Mr Mwambegele, says:
`There was no complaint envisaged by this provision (s 80(3) of the Election Act) and therefore the Returning I Officer was in no way, in a
position to accept to recount all the votes from any polling station. For these reasons we humbly submit that the A Petitioner has not proved this issue and pray for the dismissal of the same on account of its not being proved, let alone its not being proved to the standard.'
Without labouring much on the point, it is not true that there was no complaint. There was verbal B complaint from the mouths of Mr Bagenda himself and Phillip Byombalirwa. Again there was the letter from Bagenda (Exh P16).
I answer that sixth issue in the affirmative. C
Issue No 7
Whether RF2 forms were designed in such a way that the results would easily be tampered with:
On this issue we can only express opinion.
I am made to understand from the petitioner that these forms were designed by the National D Electoral Commission. I think they have a mandate to design such forms. There have been criticisms from both sides on the format of the forms. Mr Mtalo RW9, the Returning Officer himself said, that:
`The RF2 forms are not in good format. They are prone to tamper. One can pull out the first page and fill