The republic of uganda in the supreme court of uganda at kampala

CONCLUSIONS ON ISSUE NO.2

On 21/4/2001 in our decision we said that the election was conducted partially in accordance with the principles laid down in the PEA, 2000. We pointed out that:

(a) In some areas of the country, the principle of free and fair election was compromised. In the foregoing discussions on issue two I have indicated areas where this happened. What effect did it have on results? Wait for the third issue.

(b) In special polling stations for soldiers, the principle of transparency was not applied. There is overwhelming evidence of this in barracks or soldiers’ polling stations near barracks of, for instances, Mbarara, Gulu, Kitgum, Mbuya and Soroti. A. Otim’s affidavit, which I have just referred to, illustrates what happened in Gulu. Soldiers had the audacity to get an

APC military vehicle and drive around the polling station obviously to intimidate the agents or monitor of the petitioner because he was protesting. In Mbarara at Kakyeka stadium and Mankeke polling stations the military bulldozed everybody and got both soldiers and school children to vote without any verification whatever. Mr. Ruhinda Ngaruye’s affidavit
shows this. In his affidavit, James Oluka, swore that at AKISIM NRA polling stations, in Soroti, two new more stations were created over night and the petitioner was unable to post agents there. Wives of soldiers of Olilim barracks were taken to polling station where they voted. There was no control or verification of those voters by the agents of the petitioner. Cpl. Oyo James, political commissar in the AKISIM Barracks, in his reply attempted to explain how soldiers from Chum detach were transferred to Soroti and how ballot boxes for these soldiers was sent to Soroti at that time of polling. He stated that there were candidates’ agents and no voters were smuggled in. It is clear from both Olika and Cpl. Oyo that at least one polling station was created over night. I cannot see how the petitioner could have appointed an agent on the same day when the station came into existence. I think Oluka is telling the truth that there was no agent for the petitioner.

There is the affidavit of Hon. J. L. Okello-Okello, M.P, who co-ordinated the petitioner’s election in Kitgum/Pader Districts. To his affidavit is attached a letter signed by 4 polling agents of the petitioner and of candidate Bwengye. The agents listed six ungazetted army polling stations created at Pajimo A, Pajimo B. Ngom Orom FN and Ngom Orom F-N, Ngom Orom (outside barracks and Abondio’s Home II (outside quarter- guard). The agents saw delivery of a one ballot box for Pandwong (outside quarter guard) and for Patika (outside quarter guard). That a further three ballot boxes were also delivered at night intended for Ngom Oromo. The agents wanted the six ballots boxes to be opened to verify their contents. This was not done. The electoral commission’s explanation is not satisfactory. Clearly the principle of transparency was compromised absolutely.

I have already discussed areas outside the barracks where the principle of transparency was breached. Such areas include many polling stations; counting and tallying centres from where the polling agents and representatives for the petitioner were chased. What is the cumulative effect on the election results? We deal with this under the third issue.

(c) We also held that there was evidence that in a significant number of polling stations there was cheating. Glaring examples are in places where soldiers voted. Soldiers just bulldozed their way and that of their dependants in voting. Multiple voting, under age voting, pre-ticking and supervising ticking, so that a voter has no choice on which name to tick. These are examples of cheating. I have referred already to districts like Mbarara, Bushyenyi, Mbale, Tororo, Iganga and Busia. What effect did this have on the election result? I shall answer this in the next issue No.3.

I have no doubt in my mind that on the evidence before me, the principles of free and fair election and of transparency were persistently violated and trampled upon across the country and therefore I must reemphasize our answer to the second issue as being in the affirmative. In very many parts of the country the presidential election was not conducted in accordance with the principles laid down in the provisions of the Presidential Elections Act, 2000.

THIRD ISSUE

The third issue is whether if the first and the second issues are answered in the affirmative such noncompliance with the provisions and principles of the said Act, affected the result of the election in a substantial manner.

I have answered both issues one and two in the affirmative. What do these answers lead to? They lead to two questions the answers to which will clear the matter. Did the noncompliance affect or did not affect the result of the election? Second if the answer is yes, I must answer the next important question whether the effect was or was not substantial. I am aware that Parliament did not in its wisdom define what it meant by either “affecting the result” or “in a substantial manner”. I shall indicate what I understand these two expressions to mean in the context of this petition. There are decided cases here in Uganda, and outside, which discuss what is meant by “affecting the result” and or “in a substantial manner”. See for instance, Ojera vs. Returning Officer & Banya (1961) EA 482 [also (1962) EA 532], Hackney’s case vs. Gill vs. Holms (1874) 31 L.T.R.N.S.69 at P.721. I shall return to these later.

Evidence by way of affidavits and documents were filed in support and against the petition by both sides. On the basis of that evidence and the law, submissions on this issue were made by counsel.

Issue number three covers a wide field. I think that to answer the issue satisfactorily calls for an evaluation of the situation before the election, that is to say, during the campaign period first. Secondly I think that it is equally essential to evaluate the evidence relating to the voting day activities on 12/3/2001.

I have already stated that perusal of many affidavits and the letters between Chairman Kasujja and the candidates (especially the Petitioner) show that the complaints about the campaign problems1 such as harassment, violence, intimidation, beating, insecurity, impropriety characterised the campaign period up to and including the voting day.

BEFORE 12/3/2001

Let us review the evidence prior to 12/3/2001. The petitioner complained that his electioneering or campaigning was interfered with by the army, the PPU and agents of the first Respondent. That campaigning was not under conditions of freedom and fairness. That there was general intimidation and harassment of his supporters and agents during the general campaign; the harassment and arrest of Rwaboni Okiwr, who was the National Leader of the Youth Desk of the Petitioner, has to be evaluated as well as the special circumstances obtaintng in many districts of Western Uganda: especially Mbarara, Kabale, Ntugamwo, Kisoro, Rukungiri, Kanungu and Kamwenge Districts. We have also to discuss the Question of envelopes and gifts, (which is understood to mean bribes), the announcement about and implementation of road construction, the salary increases for medical, teachers, and police personnel during campaign period as well as the promises to reduce Graduate tax and the Arua Video. We have got to consider the allegation of harassment and intimidation by Major Kakooza Mutale and his Kalangala group. Were the provisions of S. 19,23,25,27,28,29,30 and 32 respected? I have in a way of answered this question about these sections.

The events which took place on 12/3/2001 include the alleged chasing away from polling stations of the representatives or agents for the petitioner by either the agents of the first or of the second Respondent or some other persons like UPDF and LDUs. We have to consider the evidence of the alleged pre-ticking of ballot papers by other persons before voting by a voter, the supervision by polling officials of ticking ballot papers and the ballot stuffing, the creation of new polling stations, on 10/3/2001 or 11/3/2001; video interview of the Petitioner on 1 2/3/2001, excess ballot papers, irregular issuing of voters cards, the arrest of Commissioner Miiro and the general atmosphere on the polling day. Were the provisions of and principles of section 7 of the PEA, 2000 respected? If not what are the consequences? And what of the OAU observers’ report and other reports by election observers both local and foreign? The positions taken by the two sides on this issue are clear. Counsel for the petitioner submitted that the noncompliance with the provisions and principles of the PEA, 2000 affected the election result in a substantial manner. Counsel for the two respondents submitted to the contrary adding that if any non-compliance affected the election result, this was not in a substantial manner.

Mr. Walubiri for the Petitioner referred to the principles “inherent in” the preamble to the Constitution and the National Directives and State Policy and contended that these are meant to encourage Ugandans to participate in their own governance. (I have reproduced those provisions already in this judgment). Learned counsel argued that it is wrong to rely on the approach adopted in the decisions of Ibrahim vs. Shehu Shagari (supra) and Mbowe (supra) because that approach which was based on the number of votes gained by the winner in each petition is at variance with the values underpinning the current Constitution and the current electoral laws in Uganda. Counsel urged us to rely on Attorney General vs. Kabourou (supra). He submitted that we should base the decision in this case not on the numbers of votes won by the first Respondent, but on qualitative principles, because not all voting by numbers would satisfy our Constitutional requirements and the PEA. That if elections are not free and fair, we must annul the election. Learned counsel argued that in order to arrive at a fair judgement, we must consider the whole electoral process, namely from registration right through to and including events of the polling day. That use of Government property by the second respondent and the declaration of the results must all be evaluated. Counsel urged us to consider certain irregularities and illegal practices; these include the account in the affidavit given by Ronald Tumusiime of Mparo, Kabale District, who was a polls monitor for the Petitioner.

According to Ronald Tumusiime, presiding officers, who are officials of the second respondent, declared at the beginning of the polling that voting would be done in the open. Voting was indeed done openly under direct supervision of presiding officers in that Voters were given ballot papers already ticked in favour of the first Respondent in contravention of S.7 and S.30 of PEA and Arts. 68(1) and 103(1) of the Constitution. There was multiple voting in his (witnesses’) presence. There was intimidation of supporters of the Petitioner. On harassment of the Petitioner’s agents, Tumusiime is corroborated by Matsiko M. of Rutare, Kabale District, a different area. Again Sande W. of Kitohwa, Kabale District who was the Petitioner’s moblizer in two sub-counties of Kabale deponed about harassment of the Petitioner’s agents and supporters by no less a state official than Mr. James Mwesigye, the very Resident District Commissioner of Kabale, who, among other things, encouraged ticking of candidates names under direct supervision of Polling officers thereby violating the cardinal principle of the secrecy of the ballot. In his affidavit Mr. Change Gideon, an election monitor, was told on voting day, by Mr. Dan Kaguta, Deputy RDC for Kabale asked Change to over look the rigging. The witness saw the Deputy RDC give out tacks of cards and money. Of course, Mr. Mwesigye has in his affidavit denied this. Also Benson Bayunyanga, LC2 Chairman, in his affidavit claims that Change was telling lies. He gave no reasons why Change should tell lies. I do not believe these denials. In sum Mr. Walubiri submitted that this type of behaviour by many RDCs, GISOs, by some presiding officers and by agents of the two respondents affected the election in a substantial manner.

Barimenshi Abel of Gitebe village in Kisoro District, who was the petitioner’s sub-county agent in Kanaba sub-county was chased away by Habyarimana (and a policeman), the sub-county agent for the first respondent when Barimenshi protested about voting by many non-Ugandans who had crossed the border from Rwanda. Harassment and chasing away from polling stations of representatives or agents or the petitioner in Kisoro is testified to by Ngandura John of Bufumbira county, Ntaho Joseph of Kisoro Town and Twesige Alex of Bufumbira.

There is the harrowing story in Kamwenge District by Henry Muhwezi and other
deponents. They describe events, which happened before and on 1 2/3/2001. He talks of torture by Hon. Cpt. Charles Byaruhanga. Similar story by Sam Ndagije who was harassed by Sgt Natukunda, the GISO (Gomborora Internal Security Officer) of Nkinkizi sub-County on polling day. There are the disturbing activities perpetuated in Kamwenge District as deponed to by James Birungi Ozo and Everlyne Nzige. Hon. Captain Byaruhanga has sworn his affidavit accepting that he campaigned for the first Respondent. He accepts speaking to Muhwezi and other deponents. He does not give any reason why supporters of the petitioner should give false evidence against him, incriminating him in the torture and harassment, intimidation of agents and supporters of the petitioner. I believe these deponents namely Henry Muhwezi, James Birungi Ozo, Everlyne Nzige that the Hon. Captain C. Byaruhanga violated the electioneering activities of the petitioner by intimidating, harassing and causing the assault of the petitioner’s agents and supporters.

Mr. Walubiri submitted that the deployment and the activities of the army and especially the Presidential Protection Unit (PPU) made the election unfree and unfair. He contended that the arrest of Rwaboni, the killing of Beronda in Rukungiri during the campaign period had far reaching effect on the election. Counsel submitted that even on the question of numbers, there is evidence, in, for example, the affidavits of Twinomasiko’s and of Ndyomugyenyi and the analysis by Engineer Mukunzi, to show that the election was effected by numbers.

Mr. Kabatsi, the learned Solicitor-General, submitted, On behalf of the second Respondent, that even if this court were to hold that in some instances there was non-compliance, the petitioner failed to prove, that whatever the complaints, the causes of these complaints affected the result of the presidential election at all or in a substantial manner. He contended that it would be absurd to annul the election on proof of minor irregularities or because of the prevention of a small number of people from voting. According to the learned Solicitor-General, the polling would be affected only if a substantial number of voters, such as one quarter or three quarters of the voters, were prevented from voting. He stated that the shooting of one man in one of the districts would be an isolated incident, which could not affect the result. He contended that the Petitioner had failed to satisfy the requirements of S.58 (6) and as such the answer to the 3rd issue should be in the negative.

Dr. Khaminwa, for the first respondent, had earlier alluded to the undoubted importance of this petition which arises, as it does, from the election to the high office of the President of Uganda, who is the Head of State of this Country. Because the petition is the first petition of its kind in the history of this country, he opined that the court must be satisfied that the petitioner has proved his case. Learned counsel contended that all the witnesses for the Petitioner are on his payroll and are therefore accomplices. (Here Learned Counsel appears to forget that the same reasoning would, with greater force, apply to witnesses of his client many of whom are public employees and therefore under the supervision of the first Respondent. Counsel should also know that complaints about the various alleged election malpractices were experienced and foreseen by the rest of the candidates before 12/3/2001. That is why candidates held meetings with, and wrote letters to, Chairman Kasujja). I have already reproduced the candidates’ letters dated 7/3/2001 and 9/3/2001. Counsel dismissed the expert evidence of Engineer Mukuunzu who had opined that the result were inconclusive. Counsel contended that the petitioner had to show that the errors, the mistakes and the irregularities affected the election result in a substantial manner. He argued that because the petitioner got 27.4. % of the votes cast, ipso facto, there must have been free and fair election, and that, in any case, the other four candidates were satisfied with the election results since none of them has petitioned. On this last point I need only say that there is no evidence to show why the other former candidates have not petitioned. I have already held that former candidate Bwengye’s affidavit is of no probative value whatsoever except to prove that he too did participate in the presidential election, 2001 and got a very low number of votes. On 13/3/2001 Mr. Bwengye’s agents in Kitgum (Oryem William and Opio Faustino) in a letter to the Returning officer, Kitgum District complained about irregularities and malpractices.

Dr. Khaminwa contended that complaints have been raised from only 20 districts out of 56 districts. I don’t remember him mentioning every name of the 20 districts. Whatever the case, one of the considerations which must be borne in mind in matters like this about the number of votes gained by any candidate from a particular district is the location of the districts and the population of the voters in such districts. Moreover, 20 districts out of 56 is a large percentage of the population and the land area (about 36%). Some districts are more populous than others. Some have higher numbers of registered voters than others. This should normally be reflected in the votes registered1 barring rigging. Thus the population of Mbarara, Bushenyi or Kabale Districts cannot be compared with the populations of Gulu, Kitgum and Lira Districts. The first respondent got huge majorities in the first three Districts while the petitioner got majorities in the last three yet the number of voters in each case is different for some reasons.

Dr. Khaminwa agreed that there are at least three principles which had to be complied with namely, free and fair election; secret ballot and voting according to the applicable laws and the right of voters to vote. Learned counsel argued that the Petitioner was unable to give figures of the votes he lost because of the subject of complaints. He contended that in terms of article 126(1) of the Constitution, it would be improper for this court to interfere with the will of the people where the turnout of voters was 70.3%. That the allegations in the petition have not been established by evidence as required by law particularly in a Presidential election where the standard of proof is very high: He cited Bater vs. Bater (1950) 2 ALL ER. I, Gunn vs. Sharp (1974) 10 B. 809. Mbowe vs. Elufoo (1967) EA 240, Katwiremu’s case among other authorities. He submitted that the petition must collapse.

Now, Katwiremu’s decision is a High Court decision of this country concerned with a parliamentary election in one constituency. Mbowe case arises from a parliamentary election in one constituency in the sister Republic of Tanzania. The Gunn case relates to Local Government Council election in England. Bater case is a divorce matter. All these authorities arise out of different backgrounds. The common ground in all these cases is the reference to the standard of proof to the satisfaction of the Court. What does proof to the satisfaction of the court mean?
I do not think that in this petition, the events, which occurred in January, February and during March up to and including 12/3/2001, can be ignored. They have a bearing on the results. I have indicated that such events as occurred before the voting day as well as on the voting day matter. The result of an election can be affected as much by events which happened before, as with events which occurred during the Election Day. It is important to review the evidence on the record, which shows that events that happened before included the militarization of the election campaign, by deploying the army, including the Presidential Protection Unit (PPU), throughout the country but with special concentration of the army and PPU in some districts. There is the harassment, arrest and assault of Rwaboni Okwir, the youth member of Parliament for W. Uganda; the special operations in the Districts of Kabale, Ntungamwo, Rukungiri, Kanungu, Bushenyi, Mbarara and Kamwenge, the general country wide harassment and intimidation of supporters and of the agents of the petitioner.

What is the picture, which emerges before 12th March, 2001?

First there is the story narrated by the Petitioner in his own affidavit sworn on 23/3/2001, which accompanied the petition. This was followed by three other affidavits. One of the three was sworn on 5th April, 2001 which is a reply to the first respondent’s answer to the petition. The second is supplementary to it and was sworn 6th April 2001. The third affidavit also sworn on 6th April, 2001 is a rejoinder to a reply to that of the second respondent. The Petitioner’s complaints are against both Respondents.

The summary of these complaints is as follows:

The first respondent militarized the Presidential election campaign. The first respondent in para 4 of his affidavit accompanying his answer to the petition, deponed that because the police were inadequate, the government decided to and did deploy security forces throughout the country. The first respondent does not say he personally ordered deployment. He refers to the Government. But he was the Head of State, Head of Government and Minister of Defence though he was a candidate. I take it he gave the orders. He in effect deployed the Presidential Protection Unit in Rukungiri, which spilled over to Kanungu District. The petitioner says that the deployment was done for purposes of interfering with, and in fact did interfere with, the Petitioners’ personal electioneering and campaign and security as well as that of his representatives and agents and supporters. The affidavits show that the Petitioner and his supporters and campaign agents were harassed and intimidated; many of his agents and supporters were humiliated, assaulted and some agents or supporters were abducted (e.g. Rwaboni) or arrested by the military men and Major Kakooza Mutale paramilitary group. These facts also appear in the affidavit of Mpwabwoba C., in Rwaboni’s affidavit, as well as in Henry Muhwezi’s (Kamwenge District). See also that of Arinaitwe Hope alias Tunankye of Ruyayo Kihihi Town Parish (who was an NGO election monitor).

When chairman Kasujja briefed Ambassadors, observers and monitors as late as l0th March, 2001, he mentioned problems he had encountered during the campaign period. These included violence, insecurity, intimidation and harassment. He had asked the President (the first Respondent) to restrain the security forces from perpetuating violence and intimidation. In this regard I should observe that I have not seen in the chairman’s evidence a suggestion that the Petitioner or his supporters were blame worthy. It is the evidence of Major General Odongo and Captain Ndahura which raise a possibility and only in regard to the events of 3/3/2001 in Rukungiri Town.

Literature on Major Mutate Kakooza’s Kalangala Action Group is revealing. It shows the group was determined to succeed during elections at any cost. The harassment by UPDF and PPU resulted into the shooting to death of Beronda on 3/3/2001 and the wounding at the same time of about 14 other supporters of the Petitioner. Captain Ndahura swore an affidavit in support of the respondents. He attempts to deny the claims of the petitioner and his witnesses. Captain Ndahura suggests that UPDF and not PPU were involved. Yet he was there himself. He in any case contradicts Major Gen. Odongo Jeje, who admitted shooting by the army but says that the shooting was by a stray bullet. Further Ndahura blames supporters of the Petitioner. He claims that the UPDF and police only shot in the air. The Captain does not say that supporters of the petitioner had guns yet the evidence shows that Beronda was shot dead. Who shot? I do not believe this captain.

We have been urged to treat the killing of Beronda and the shooting and injuring of many people as isolated incidents in one district. The killing and the shooting occurred during the height of the campaign. These incidents happened when the Petitioner was campaigning in his home districts of Rukungiri and Kanungu. He was a lawfully nominated candidate. He had both the constitutional and other lawful rights to campaign there. From his account, he actually escaped and had to flee the area. He could not address people who had turned up to hear him. For their own safety he advised them to go home instead of giving them his campaign message. There are witnesses who corroborate his story: Musinguzi for one. Moreover, the incident was reported so widely as to call for taking of Judicial notice. What was the effect? Frightening? Did the effect stop only in Rukungiri and Kanungu? I say no. It spread to other corners of Uganda such as Kamwenge. Many voters and supporters and agents of the Petitioner must have heard of these matters through various media i.e., radio or they must have read about these in newspapers and must have wondered or even got scared. In any case, terror and intimidation is reported in other districts. The terror was persistent and appeared to be orchestrated. I cannot understand how such a defiant and a brutal suppression of electioneering can fail to have substantial effect on voters. The petitioner’s affidavit tells how his agents and supporters were frightened. The stories told by Musinguzi James, by D. Kiiza and other witnesses all speak about campaign of terror and the fear of the people. The effect of Beronda’s killing and injuring of many other people must have been great. That is why it was reported to General Odongo. People had to flee Rukungiri and sleep at the home of the petitioner or Musinguzi. The petitioner had to flee and go to Mbarara and Kampala.

The principal witnesses for the two respondents who challenge the complaints of the petitioner and his witnesses about harassment, threats, intimidation and beating are Captain Ndahura, Captain Rwakitarate (in respect of Rwaboni arrest), Major-General Odongo Jeje, Major-General Tinyefuza and Lt. Col. Mayombo. The last two concentrate on the Rwaboni story. These two senior Army officers want us to believe that in fact Rwaboni Okwir was their spy in the petitioner’s camp and that all they did was for his safety. With all due respect to such senior officers I do not accept their version of that story. Indeed the story that Rwaboni was arrested for his own safety makes the whole story as ridiculous as it is incredible to believe.
Major Kankiriho Patrick of Bihanga Barracks, Ibanda, made an affidavit in support of the 1st Respondent and in rebuttal to those of Betty Kyimpaire1 Kiiza Davis and Birungi Ozo who had sworn affidavits in support of the petitioner to prove harassment, violence, intimidation, terror, which were spread from Rukungiri and Kanungu Districts right into Kamwenge District, Indeed, the major’s affidavit contains some information which on closer scrutiny confirms the petitioner’s complaints that his supporters were harassed, beaten, arrested, detained, intimidated and told not to vote for him and that these actions affected the election result.

The relevant parts of the major’s affidavit deponed on the 7’ April, 2001 state as follows:-