Kizza Besigye’s vote tallying plan is legal

By Mubatsi Asinja Habati

Any candidate can tally and announce his results but he cannot declare him/herself winner.

Presidential candidate Kizza Besigye of the Inter-Party Cooperation has vowed to tally and announce results of the Feb. 18 elections. But the Electoral Commission, the Police, government functionaries and the NRM’s presidential candidate Yoweri Museveni have said that is illegal. So who is right? Prof. Fredrick Ssempebwa is a constitutional lawyer.The Independent’s Mubatsi Asinja Habati spoke to him.

What is the legal basis for FDC’s Kizza Besigye saying he will declare his election results?

It is the Electoral Commission which has to announce authentic results. Results announced by anyone else are not authentic. However candidates can make a tally of election results from various polling stations. After tallying you can say according to us: ‘these are the results’. That is not prohibited. Under the law that is not announcing because no one will act on it. If, for example, I am a candidate and you announce as an individual that you are the winner, I cannot use those results you declared to petition court. I can only use the results of the Electoral Commission –that is the legal implication –but it does not mean that I cannot make a tally because as a candidate I am supposed to have polling agents at every polling station who sign declaration forms. If a candidate collects all these results and tallies, the result is his or her own tally. The candidate can tell it to the world buto that does not amount to official declaration of results.

What do you mean by official declaration of results?

The process of issuing a declaration which is gazetted that so and so is the winner. That is a constitutional function of the Electoral Commission and no one else can usurp that function. What the candidates can do, however, is declare a tally or a total that has been submitted by their polling agents. A candidate cannot be sworn in on the basis of the results of their tally centre.

So does Besigye have a legal basis when he says he will make his own tally centre and announce his results?

That does not require a legal basis. If he says he is going to tally, that’s okay and that is one of purposes of having polling agents –to make sure that you know the results at each polling station and then you can be able to add them all.  It is his tally. If he is talking about a tally, he is right he can make it by adding the results from all the polling stations across the country. If he says mine is the true result of the elections; that is wrong. But he can use his tally results in court as evidence to challenge the results declared by the Electoral Commission because he will have his evidence backed by polling agents. These fill in the declaration forms and a total of that is what is used by the Electoral Commission to declare the final results. Besigye can do exactly that without formally announcing the results because that is the role of the Electoral Commission. He cannot go on air; he cannot issue a gazette because this is a formality. It is only the Electoral Commission that can declare the results in the gazette.

Do you mean it is only the Electoral Commission which has the power to announce the election results?

Formally, it is the only institution that can announce results; not the President, not the candidates. It is the institution that declares results. In law, Besigye cannot authorise the publication of his tally centre results in the national gazette.  But as I said, he can tally. Even me, if I was a candidate at parliamentary level and I have polling agents at each polling station in my constituency I will be entitled to tally and then afterwards challenge the Electoral Commission saying that the results that you declared are improper and here is my evidence. I can do that without declaring. I can’t go and declare that I am the winner in this constituency because that is not permitted by law. But I can declare that according to the tally I have, the results declared by the EC are not right. In the same way, Besigye can declare a total tallied by him but he cannot declare himself the winner.

So why are some politicians opposed to Besigye’s decision to announce his election results?

If Besigye said he would declare himself winner, then that is illegal. But if he is going to declare the total of his own tally basing on his polling agents then he is right. Here he will be in order provided he does not declare himself winner. He can use his tally to challenge the EC declared results in court as evidence.

What would be the implication if he declared himself winner of the election?

Well, in law his declaration would not be valid. He has to wait for the outcome of the court petition if he does because the court is another organ apart from the Electoral Commission that can declare the election results. The alternative is to petition the court and then looking at the evidence provided, the court can declare that the other candidate did not win.