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

Six Feet In The Ground

The Petitioner further complains that the first Respondent threatened to put the Petitioner six feet in the ground. This probably means killing the petitioner who stated that this threat scared voters. The first Respondent admits making the threat but he says that the threat was not aimed at the Petitioner. Apart from him (the petitioner), there is no evidence from any voters who say that they were scared. The statement is generally vague. It is possible to conclude that the statement was aimed at the Petitioner who must have been apprehensive because of this threat that must have affected his freedom of movement, the effect of the threat is minimal, I think. Moreover its vagueness leaves many interpretations to be put on it. Consequently I think that it does not amount to anything.

INCUMBENCY AND USE OF STATE PRIVILEGES BY 1ST RESPONDENT

Another bundle of complaints concerns INCUMBENCY and the use of state privileges by the first Respondent, which privileges are considered to be disadvantages to the Petitioner. In his main affidavit, the Petitioner referred to the incumbent’s privilege of use of PPU and the Army. In the subsequent affidavit of 5/4/2001, the petitioner amplified this and referred to the various privileges, which arise from being an incumbent President. Apart from naming the date of the meeting between the first Respondent and teachers on 5/3/2001, the petitioner did not give dates on which contracts for roads were signed, salaries revised. But dates are not material, as they are not disputed.

The use of incumbency includes abolition of health cost sharing in Government health units and units run by Local Governments. It is true that Hon. Kiyonga Minister of Health in his affidavit of 7/4/2001, states that government has been engaged in debating the question of the abolition of health cost sharing for the poor. However the petitioner’s complaint is specific. The abolition was announced, strategically, during the prime campaign time. Increase of salaries for medical workers, as well as the offer to increase pay to teachers was also made during the same prime period of the campaign period. Moreover, for the teachers, it was announced at a special gathering of the teachers’ conference in Kampala (on 5/3/2001). Hon. Mukiibi attached to her affidavit a copy of the budget speech of the Minister of Finance for 2000/2001 financial year. Paragraphs 78, 79, 80, and 81 of the speech discussed proposals about the increment of salaries and salary arrears and pensions and categories of teachers and middle rank professionals. These paragraphs are vague in terms of when the implementation of salary increases or revisions would take place. The complaint though is not against the increase of salaries or pensions. It is the mode of announcing, which is questioned. Now the reasoning for the complaint appears to me to be that if the Ministries of Public Service and of Finance have budgeted for these salary increments, the minister should have implemented the budgetary provisions instead of causing it to be announced during the peak of the Presidential election campaign. At such campaigns, the announcements take on a new face, to wit, that it is the 1st Respondent who has caused the payments to be made and therefore voters should be grateful.

The other complaint is that the first Respondent, as incumbent President, caused his campaign agent, the Hon. Engineer John Nasasira, Minister of Works, Transport & Communications, to hurriedly and publicly, in the presence of voters, sign contracts for the tarmacking or upgrading of several roads, namely Busunju-Kiboga, Kiboga-Hoima, Arua/Pakwach and Ntungamwo-Rukungiri Roads. The Hon. John Nasasira in his affidavit denied signing the contracts but admitted that he attended the signing by Permanent Secretary. He admits that contracts were signed publicly, as it is always done. The Roads in issue are included in the 10 years country programme which begun in 1996. It is the public signing of the contracts in the public and during the peak campaign period, which is questioned. There are no explanations given why the signing was done during the campaigning.

Dr. K. Kiyonga who is Minister for Health, Hon. Mukiibi Minister of State for Public Service and Major Gen. Jeje Odongo and the former/IGP and others have sworn affidavits defending the decisions and actions taken by the Government or by the first Respondent during the campaign period. I think that management of public affairs in a democracy needs to be done fairly and in a transparent manner. Excessive exploitation of incumbency certainly amounts to unfairness. In my view here was an example of unfairness.

DEMOCRACY AND THE ROLE OF UPDF, PPU, ESO, ISO

I have already found that there was no justification for involving the army in the election exercises. I have said and I repeat that the fact that the army was involved in previous national exercises, namely the Currency Reform in 1 987, in the election to expand the National Resistance Council in 1 989, the elections of Local Councils in 1 992, the Presidential election and Parliamentary elections in 1 996 and the Referendum in 2000 is not good enough reason for persisting in deploying the army during a purely civilian presidential election. Article 209 of the Constitution does not authorise deployment of the army for civil elections. It does not matter to me that the decision was taken at the highest level by the National Security Council. This council which is a constitutional institution (article 219) is chaired by the President of Uganda. In pursuance of that Article, Parliament enacted the National Security Council Act 2000, which sets out membership and functions of the council. The Council is chaired by the first Respondent by virtue of his being Commander-in-Chief of the army and the Head of State. Several Ministries are members. Composition of the Council may be a matter of policy. But I note that Major General Jeje Odongo, as commander of UPDF, the Inspector General of Police, the Directors General of ISO and of ESO and the head of Chieftaincy of Military Intelligence, are among the officials who constitute the Council. The Petitioner complained that persons from the military, the military intelligence and ISO were prominently involved in intimidating and harassing himself, his agents and his supporters. Rabwoni’s story fully supports him. So I think, does the affidavit of Captain Rwakitarate. Incidentally because of the method of the hearing of the petition, it was not possible to find out what military intelligence was received by the Army Commander, the Head of the Chieftaincy of Military Intelligence or the Inspector General of Police on the basis of which the Council decided to deploy the army. It may be noted here that the country was not under an emergency nor under a threat of sudden invasion.

I have already said that there was more than enough time to enhance the capacity of the police to man the recent presidential elections. I have great respect for heads of institutions, in this country, but I find it difficult to accept that the Council chaired by a candidate in a presidential race would be so objective in its considerations and arriving at its decision about not to deploy the army during electioneering. In the same manner, where members of ISO, intelligence and other military intelligence personnel are accused of involvement in partisan campaign, it is practically difficult for senior officers of the Army, of ISO, or Chieftaincy of Military Intelligence to be objective and deny honestly the deployment of their members of the respective institutions. The presidential election exercise was a test of the observance of democratic behaviour. This behaviour demands that voters must be afforded maximum freedom to make a choice from the six candidates. No democratic choice can be made freely when members of UPDF force the voters how and for whom to vote. That means it is the Army Personnel who voted for would be voters.

The facts so far disclosed do not convince me that it was necessary, as stated by Major General Odongo and Captain Ndahura to permanently deploy the PPU in any part of the country throughout the presidential election campaign. Nor am I persuaded that the Petitioner’s witnesses are telling lies. No sound reason has been advanced or offered as to why the supporters or agents of the Petitioner should falsely tell lies about the people and officials who have been implicated. There is no question of mistaken identity. It cannot be said that these witnesses are motivated by sheer support for the petitioner. This is because complaints were raised before the Election Day. Henry Muhwezi reported his horrifying abduction and torture to Kamwenge Police Station. Many others did the same. Muhwezi could not have reported a lie to the police knowing it will be investigated and the truth would come out. Nor could the other witnesses. The Police would investigate and take action against anybody telling lies. Moreover police were cowed. The O.C Kamwenge Police Station (already referred to) arrived at the scene after the evil had been done.

I expect the PPU to be disciplined, considering the fact that they protect the Head of State. It should be mobile and moving from place to place likely soon to be visited by the President. It is most unconvincing for Captain Ndahura, as an officer-in-charge of part of the PPU, stationed in Rukungiri/Kanungu, to claim that his unit was always in camp, when in the same breath he states that he and his unit helped in dispersing an alleged illegal rally of the supporters of the Petitioner in Rukungiri. He dispersed a rally to be addressed by Rwaboni Okwir. Is Captain Ndahura not now saying, and in effect proving, that actually he was deployed to harass agents and supporters of the Petitioner? That is what Hon.

Captain Byaruhanga and Sgt. Natukunda, the GISO man in Nkikinzi Sub-county did. That is a witness for the first Respondent. I have no sound reason to believe neither Captain Byaruhanga nor Sgt. Natukunda. I find it ironical that in an exercise of democracy, that exercise is more or less supervised by the military.

The Presidential Elections Act, 2000 permitted the Petitioner personally or through his agents, representatives and supporters to canvass for his election during the campaign period. Yet Captain Ndahura’s statement is part of the clearest testimony to the effect that the PPU and, indeed the army, were deployed in the country side for purposes of decampaigning the Petitioner and for the purpose of promoting the cause of the first respondent. This is clearly the height of unfairness and illegality. The police should be given the training and opportunity to do these things. Nobody has explained why this was not done or attempted. There exist a local police (askaris) in Local Governments. These should be called upon, given refresher or proper training and not the army, to assist in matters such as elections. I am not convinced that it was necessary to call in the army. If there were any serious threats then the army should have been alerted and left in barracks but not to be unleashed upon voters.

There is one remarkable matter, which has not been explained and which I find pertinent to mention. It is evident that in areas of Northern Uganda, and some parts of Eastern Uganda and Central Uganda, where brutality against the representatives or agents and supporters of the Petitioner was minimal or least, the Petitioner got most votes. Yet the opposite is true in areas of Western and most populated areas where there was much brutality, intimidation and harassment. The sound explanation appears to be that brutality affected the election and this indeed in a substantial manner, in my opinion.

The evidence on acts of the Government officials and the 1st Respondent during Presidential campaign is strong on some aspects but weak on others. On signing contracts to construct roads, I think that that was politicking by the 1st Respondent and his ministers. I have looked at the 1 0 years road development programme. I noticed that almost all roads in Uganda are included; three of the four roads questioned by the petition are scheduled for Financial Year 2001/ 2002. While implementation during this current financial year was envisaged, the work on the roads was incorporated in the campaign manifesto of the first respondent for implementation after his election.

What is remarkable, though, is the ostensious style of signing of the contracts for tarmarcking and or upgrading the roads. It is the fashion it was done, which is correctly interpreted to mean that it was intended to win votes for the first respondent. On the authority of the Tanzanian case of Kabourou, the decision to announce work on the roads during the height of campaigning is not in keeping with normal Government operations. It is out of the ordinary Government business. It was done in favour of the first Respondent. It was done unfairly. It violated the principles of fair play in an election, which is supposed to be conducted under a democracy. I gave considerable thought to this matter especially on the possibility that to accept the opinion, I have just expressed, may amount to undue restrictions on government ability to conduct its programmes. My view however is that the Government had more than the election time in which to implement its policies. To implement as it was done here amounts to dangling a carrot before the voters. Therein lies the evil.

I know it is proper to award salaries and other benefits to employees of the Government. But it does not require much imagination to conclude that:

(a) the award of salary increments for teachers during the conduct of their (teachers’) conference, in any case why the candidate himself? Why not a civil servant.

(b) for medical personnel during campaign period just before the election was all aimed at getting votes.

I think also these actions were intended for nothing other than catching votes. The same reasoning applies to the reduction of graduated tax and the abolition of health cost sharing. Ugandans have been paying graduated tax for a long time. Health cost sharing has been in operation for some years. The timing of implementing or abolishing some of these things couldn’t have come at a time so convenient to the first respondent as the incumbent president.

Of course counsel for the first respondent has argued that these decisions and the actions as taken were part of government programmes and they were done or decided upon in the course of government work. I cannot agree. I share the views expressed in the Kabourou case (supra) that the actions and decisions taken during the prime of presidential election campaign were out of regular and ordinary Government work. They deliberately targeted voters; It was intended to show to voters that the 1st Respondent was a performer. These decisions weighed heavily in favour of the first respondent and quite unfavourably against the Petitioner. Bearing in mind the virtues of our constitution to the effect that all people of Uganda shall have access to leadership positions at all levels, subject to the constitution (see National objective [I (ii)], it is wrong and improper for any incumbent in a political office to use incumbency unfairly and to the disadvantage of competitors. It is in the interest of the public good that an incumbent holder of any office should not be allowed the temptation to misuse his power for his own interest.
It has been argued that the number of votes gained through these actions cannot be counted nor can their effect on the campaign be ascertained. I say clearly they must be substantial. The whole thing was wholly unfair and I think that this affected the election in a substantial manner.
In our decision delivered on 21/4/2001, we answered the first issue and the second issues in the affirmative. I have given my reason why I concurred in answering the first and second issues in the affirmative. In my reasoning on the first issue I have showed that more sections and not only S.25 and 28 of PEA were breached.

DEFICIENCIES OF ELECTORAL COMMISSION

The letters to and fro Chairman Kasujja shows that his Commission was not up the mark organizing the presidential election 2001. One obvious examples is that the Chairman and his Commission decided arbitrarily to reduce the period of display of the voters registers from 21 days to 3 days which, because of the intervention by candidates, was eventually extended for a further two days. I do not believe in the least that the Commission has got any powers whatsoever under either S.38 of ECA or under any other law to abridge the period of display.

The power that the Commission has is to extend time. And this is for good reasons, namely to enable candidates, their agents, supporters and voters to scrutinize the registers for purposes of the clean up exercise, among other things. The expression “or otherwise adapt any of those provisions” appearing in section 38 must be construed ejosdum generis so as to refer to things which are similar to “extended” or “increasing,” but not the other way round. By abridging the display period, the Commission defeated the very spirit and purpose of the section, which is to help voters and candidates to inspect the registers in good time. The abridgement was too arbitrary and contrary to the provisions and principles of the Act.

SHAM/NEW POLLING STATIONS

It was argued by counsel for the respondents that violation of the provisions of the ECA is no ground for annulling Presidential election. This is not in accord with Article 104 (9). Moreover because of section 2(2) of the PEA, the Electoral Commissions Act, 1997 must be construed as one with PEA.

Let me briefly discuss sham or new stations. The problems arising because of sham or new stations are vividly illustrated in the affidavits of E. Bumezi, Bagenda Bwambale, Ongee Marino, J. Oluka, Dr. Mukasa D. B., D. Odwok, Piwang, R Kwaya Tumusiime Enoch, and Turyamusiima Barnabas of Ntungamwo Town. Before concluding issue No.2, I alluded to the new polling stations in or near army barracks in Kitgum, Gulu, Soroti, Mbarara and Soroti.

It is obvious from the affidavit evidence that cheating was not confined to one or two places or one or two Districts. It was spread throughout much of the country. It reached its height in Western Uganda especially the districts of Ntungamwo, Mbarara, Bushyenyi, Kabale, Rukungiri, Kanungu and Kamwenge. I would not ascribe most of the malpractices to the deliberate creation of many (1176) Polling Stations at the eleven-hour in various parts of the country. The candidates were informed of the creation on 11/3/2001. In the event, the Petitioner has complained, and I find his complaints justified, that he was unable to exercise effectively his right of appointing agents to look after his interests in new polling stations. The second respondent should or must have known the problems.

Some high-ranking officers such as Mr. J. Mwesigye, the DRC of Kabale, deliberately flouted the electoral law by campaigning even on the voting day at Polling Stations in favour of the first respondent. For this and the involvement of the Army, there are many affidavits, which include those of John Kijumba, Kakuru Sam, Frank Byaruhanga, Patrick Matsiko, Mpabwoowa Calisti, Bashaija R, Mubangizi D, and D. Okello.

There are many witnesses from many areas who witnessed and who speak about intimidation and harassment of the Petitioner’s representatives, his agents and supporters. See, for example, Bwambale Kasinini, J. Tumusiime, R Byomanyire, Ngaruye Ruhindi; A. Busingye, Mugamba Abdu, F. Masinde, Tukahirwa David from Mubende, Idd Kiryowa from Mawogola County, Guma Majid from Yumbe, Mubajje S. from Mbale, J. Musinguzi from Rukungiri, B. Matsiko from Rukungiri, Kakuru S; Oketcho Y. from Tororo District, Imon Stephen of Tororo, Okware Stephen of Tororo, Aeko Hellen from Kumi, Kiiza D. and M. Tibayendera and Betty Kyimpaire all of Kamwenge District. I have found the evidence of RDCs unconvincing just as the evidence of policemen like the O.C., Kamwenge Police Station.

Major Kankiriho Patrick, in his affidavit of 7/4/2001, which has already been reproduced, sought to discredit Kiiza B., Birungi and others in regard to the violence, intimidation and the harassment meted out to these witnesses, claiming that these witnesses were holding a concealed meeting. In view of the contents of the affidavit of Birungi supported by other witnesses such as Kiiza and Tibanyendera, the major appears to have been on the lookout for supporters of the Petitioner so as to silence them in order that they stop campaigning for the Petitioner during the final days of electioneering. Another aim was to prevent them from looking after the Petitioner’s interests on the polling day.

Ballot Stuffing

There are witnesses who have sworn affidavits about ballot stuffing, interference by LCs, and Presiding officers, under age voters, early voting, multiple voting, aliens voting and lack of Secrecy in voting. Some of these are Ngandura J. and Ntaho J., both of Kisoro, Baarugahare J. of Kabarole District, Birungi James of Kamwenge, Sande and Tumusiime both of Kabale, Matsiko A. of Rubanda county, Change Gideon and Mutungi B. of Kabale Municipality, Etetu S. and Otim H. of Soroti Municipality, Nyangan A. Kol, Ima Stephen, Byaruhanga Yahaya of Busia

Town, Ndifuna Wilber of Busia, Kerenzio E. of Kanungu, Kassim Seganyi of Kibuku County, Mulindwa Abas of Pallisa, Guma Majid of Yumbe, Horwad Kana of Arua, Moses Babikinamu of Mawogola, Kasigazi Noel and Hangiro John of Ntungamo, F. Masinde and Kirunda M. of Mayuuge, Tugumisirize Manansi of Mbarara District, Muhairwoha G. of Isingiro, Mbarara and A. Mwanja of Bulowoza, Kigulu, Iganga. These are from many districts appearing too consistent
to be anything but evidence of what took place.

Voting and Voters Cards

There are a number of witnesses who swore affidavits to highlight problems or malpractices relating to voting and voters’ cards. These include Sulaiti Kule of Kasese Town, F. Masinde of Mayuuge, Guma of Yumbe, Maliki Bukoli and Ojok D. of Mbale Municipality, Wafidi Amir of Bungokho County, Koko Medard and J. H. Kasamunyu of Kanungu, Kirima Karenzyo E. of Kanungu and Bwambale S. of Kasese Town Council. Again these witnesses are from different districts across the country and each independently speaks about unregistered voters voting and multiple voting and so on.

Chairman Kasujja in his supplementary affidavit of 9/4/2001 and the other affidavit in reply to those of Dr. Mukasa B, of Ndyomugenyi and of Twinomasiko has challenged these witnesses. So has Byaruhanga Moses and others. I cannot tell from Chairman Kasujja’s replies that he himself used to go up country. He was in Kampala. Moreover he does not appear to recollect that in the critical month of March he had admitted in his letters of 8/3/2001 and of 9/3/2001 that wide spread intimidation and harassment existed and he had no powers to control the army and PPU who perpetuated these acts, contrary to his earlier advice. Many of the witnesses mentioned above refer to various acts of malpractices by agents of the two respondents that were committed on 12/3/2001. There is evidence of absence of polling materials even in as near a place as Kampala. (See Kassam), Louis Otika and Dr. Mukasa’s affidavits, for example, there was the verbal extension of voting beyond 5.00 p.m. on 12/3/2001, itself evidence perhaps of lack of foresight or absence of competence. This was followed by voting without verifying voters especially by members of the UPDF who never respected the principles of transparency and therefore they interfered with the free will of the voters.

It baffles me how a very serious exercise like a presidential election can be reduced into a sort of farce by announcement that people without voters cards can vote. The consequences are clear namely the disregard of rules which would ensure that unregistered or wrong people do not vote.