Uganda’s Supreme Court this past week guided at least 60 lawyers representing respondents President Yoweri Museveni, the Electoral Commission, the Attorney-General and petitioner Amama Mbabazi in framing issues that will form the presidential election petition, whose hearing starts on March 14.

The issues are hinged on whether there was nonconformity with the country’s Electoral Commission Act and the Presidential Elections Act, and whether the alleged noncompliance affected the outcome of the February 18 vote in a substantial manner. Also to be determined is whether President Museveni personally or through his agents perpetrated the same.

READ: Eyes on Uganda Supreme Court as Mbabazi extends war with Museveni

On these, the president’s and Mr Mbabazi’s teams agreed, but the devil is in the detail of the issues that they left the court to rule on, a development likely to shape the election petition.

Mr Mbabazi’s lawyers contended with the issue of whether a recount is a relief that should be tackled in the course of the trial, but the Supreme Court threw it out, with Chief Justice Bart Katureebe arguing that a recount comes at the tail end of the trial, as a decision of the court.

Under the Presidential Elections Act, if the court is satisfied with evidence adduced, it can order for a recount, dismiss the petition, annul the election or declare the candidate who was validly elected. The Court’s argument was that, “you cannot frame an issue on a relief the court shall pronounce itself on at the end of the petition.”

Essentially, the Court subjected the request for a recount to the infamous substantiality test, without saying whether it will grant the same if and when it is convinced noncompliance with the law warrants a recount.

Mr Mbabazi sought to impress upon the Court that if votes cast in 45 districts across the country were recounted, President Museveni would not have scored the 5,617,503 votes he did (representing 60.75 per cent of the valid votes cast) or the petitioner would have scored more than 132,574 votes (or 1.43 per cent of the vote). That is the essence of the substantiality test.

The rejection was a setback for Mr Mbabazi, considering the effort his team invested on March 7 in persuading the Court to include an order for a recount as a prayer in their petition. With that knocked off, the petition takes the interested parties back to 2001 and 2006, where the issues Dr Kizza Besigye raised in his petitions were similar to those agreed on last Monday.

Failed fishing expedition

Lawyers who represented Dr Besigye at the time felt Mr Mbabazi’s demand for a recount from the outset and in the course of the trial was a step in the right direction of tackling the controversial “substantiality test.”

Peter Walubiri, a lawyer who represented Dr Besigye in 2006, told The EastAfrican that at the time they felt asking for a recount was akin to a fishing expedition where you throw a hook into the waters unaware of the fish, if any, let alone the size, it will catch.

“We were weary at the time that if you recount and they already have pre-ticked ballots, you will find exactly what was pre-ticked and in essence validate those sham results,” Mr Walubiri said.

The districts where Mr Mbabazi seeks a recount are Jinja, Kampala, Wakiso, Kiruhura (where every registered voter voted for President Museveni), Sembabule, Sheema, Arua, Gulu, Lamwo, Kanungu, Buhweju, Kween, Serere, Mubende and Soroti, among others.

The possibility of a recount is now at the discretion of the nine judges of the country’s highest court.

Another setback

The Mr Mbabazi team suffered another setback. It also wanted, as a unique issue, the court to look into whether EC chairman Dr Badru Kiggundu “compiled and maintained a national voter register for the 2016 election and whether the EC announced results from the tally centres or not.” The implication here is that the results came from a source other than the tally centres in Uganda’s 112 districts and 28,010 polling stations.

“Where else would they have come from?” asked Deputy Attorney-General Mwesigwa Rukutana, arguing that this could be captured under the first issue, on whether there was noncompliance with the law, and if that substantially tilted the outcome.

Mr Mbabazi had on Monday demanded for the disclosure and discovery of the data on the biometric voter verification kits for all polling stations. Questions abound about polling stations in select districts where President Museveni polled 100 per cent of the vote, with some stations registering 500 voters, a scenario Mbabazi thinks this is practically not feasible.

READ: What Amama Mbabazi’s new election petition demands mean

“The biometric machines working for nine hours and allocating two minutes per voter could verify approximately 270 voters per polling station yielding approximately 7,562,700 voters nationally. In effect the 10,329,131 voters the Electoral Commission declared as having voted could not have voted on polling day,” he argues in his amended petition, adding, “The number of voters declared by the Electoral Commission included numbers of the pre-ticked ballot papers stuffed at various polling stations and post-ticked and stuffed in favour of President Museveni.”

Again this was compressed into the first issue, a development a member of Mr Mbabazi’s legal team said is a big blow to their case, considering a thorough audit they sought of the BVVS.

The team, however, made some gains with the court commanding the EC to present tally sheets of results from all districts as opposed to the soft copy on the EC website which breaks down results per polling station.

EC lawyer Enos Tumusiime had argued because of ongoing elections at local government level, the electoral body could not make available the declaration of results sheets in time, but he was overruled, with Justice Katureebe reminding him of the legal requirement under the Presidential Elections Act to have the results forms submitted to the EC by district returning officers seven days after the voting date.

Deadline looms

This puts the EC on the spot, at best it had only shared a summary of national results signed by the EC boss but the petitioner’s lawyer Mohammed Mbabazi, insisted, “We don’t want results signed by Engineer Kiggundu, we want results signed by the returning officers and we want hard copies not the ones on the website.”

With the recount request thrown out, the case received a lease of life in the ability for Mr Mbabazi’s team to scrutinise the tally sheets, add up figures to ascertain they account for the percentages each candidate got, meaning the team will bring on board statistics experts.

“But can the experts be believed? In 2006, we brought statisticians but the court did not believe their evidence,” Mr Walubiri said.

Under Uganda’s 1909 Evidence Act, when the court has to form an opinion on a point of foreign law, or of science or art, or as to identity of handwriting or finger impressions, “the opinions upon that point of person’s specially skilled in that foreign law, science or art, or in questions as to the identity of handwriting or finger impressions, are relevant facts. Such persons are called experts.”

The court has spent almost half of the 30-day timeline the Constitution gives it to have the matter disposed of and will start a marathon search for justice, dissecting issue by issue, examining every ounce of evidence and the law till March 31 when a ruling will be delivered.