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

(c) if by abduction, duress, Of any other fraudulent device or contrivance, impedes or prevails upon a voter either to vote or to refrain from voting.”

Mr. Walubiri the petitioner’s learned Counsel who made submissions on the Petition’s complaints against activities of the military and the PPU, directed his arguments at allegations that the 1st Respondent, by deployment of the Army, committed illegal practices or other offences under the Act personally or with his knowledge and consent or approval. Commission of illegal practices or other offences in relation to the Presidential Elections is relevant to issue number four of the Petition.

In his reply, Dr. Byamugisha the 1st Respondent’s learned Counsel, also concentrated his counter arguments on the 1st Respondent’s alleged commission of illegal practices or offences through the Army.

In my view, the same arguments as have been made by the respective learned Counsel of the petitioner, the 1st and 2nd Respofldeflts1 and evidence adduced by all the three parties concerning the activities of the military and PPU whether in respect of allegations against the 1st Respondent or the 2nd Respondent also applies to the grounds in question of the Petition. I shall deal with the grounds of the petition concerned on that basis.

In his submission under the foregoing grounds Mr. Walubiri contended that evidence adduced by the Petitioner proves that contrary to section 25 of the Act, the 1st Respondent personally or by his agents interfered with the Petitioner’s electioneering activities and committed an offence. The first limb of this Criminal interference, Counsel contended, was constituted by the 1st Respondent’s deployment of the Presidential Protection Unit (PPU) in Rukungiri and other Districts throughout the campaign period. This is pleaded in paragraphs 3(1) (v) and 3(2) (C) and (f) of the Petition.

Learned Counsel referred to paragraphs 16, 18, 25, 26, 28 and 29 of the Petitioner’s affidavit in support of the Petition, giving details of PPU’s activities and how it was interfering with the Petitioner’s electioneering activities; it was shooting around and threatening voters. It killed one of the Petitioner’s supporters.

In paragraphs 18, 19 and 20 of the Petitioner’s Reply to the 1st Respondent’s affidavit the Petitioner showed how the PPU, a facility attached to the 1st Respondent’s office as an incumbent, assaulted, intimidated and threatened voters to vote for the 1st Respondent and caused disharmony and breach of the peace throughout the campaign period in the entire Rukungiri and other Districts. So intense was the intimidation that one Baronda Johnson was shot and killed. Baronda’s Uganda Government Death Certificate, attached to the Petitioner’s affidavit, showed that he died of bleeding following gunshot wounds on 3-3-2001. The havoc wreaked by PPU a facility attached to and enjoyed by the 1st Respondent at the time, was reported by the Petitioner to the 2nd Respondent. The Chairman of the 2nd Respondent was also gravely concerned about the activities of the PPU and the Military that was threatening to wreck the election process. Consequently, the Chairman wrote passionately to the 1st Respondent, requesting him to intervene and save the democratic process. The letter of the 2nd Respondent’s Chairman dated 24-02-2001 is annexed as “P.9” to the Petitioner’s affidavit in reply. There is no evidence that the 1st Respondent replied to that letter. On the contrary, there is evidence that the PPU remained in Rukungiri to continue to terrorise the population in that District up to 12-03-
2001.

Learned Counsel said that there are a number of affidavits about the continued intimidation by the PPU. He referred to some of them as examples, such as those from Bernard Matsiko, Kakuru Sam, Koko Medard. Learned Counsel submitted further that the PPU also operated in Kanungu District, as indicated by the affidavit of John Hassy Kasamyamunyu, Mawa Bwooba Callist, Bashaija Richard, Owembabazi — who was so traumatised that he could not vote. All this was long after Mr. Kasujja’s letter to the 1 Respondent. Another witness about the PPU is Byomuhangi Kaguta. These are only examples of what was happening in Rukungiri which, learned Counsel contended, became a fortified area. What happened there clearly interfered with the Petitioner’s electioneering; he said

Mr. Walubiri submitted that another limb of interference was the arrest, abduction and torture of Rwaboni by the Military Intelligence at Entebbe International Airport. In his affidavit in reply, the Petitioner gives in details the back ground to how Rwaboni came to be arrested and abducted at Entebbe Airport from where he was due to fly with Rwaboni to Adjumani to address a campaign rally. The affidavit of Hon. Winnie Byanyima, MP also gives an eye - witness account how Rwaboni was abducted. She recognized Captain Moses Rwakirate of the PPU as the person who was in charge of the operation. This was on 20-03-2001. The abduction made it impossible for the Petitioner to travel to Adjumani, because he had to find out why the Chairman of Youths of his campaign, Rwaboni, had been abducted. After his abduction, Rwaboni was never charged with any offence or produced in Court. So he was the victim of the illegal activities of the Military unleashed by the 1st Respondent to intimidate the Petitioner’s supporters and to interfere with the Petitioners electioneering activities.

Learned Counsel submitted that paragraph 15 of the 1st Respondent’s affidavit in support of his Answer shows that he had knowledge of Rwaboni’s abduction and detention. Counsel submitted that as a result of what happened to him, Rwaboni had to flee to exile and he abandoned his campaign for the Petitioner. An account of how Rwaboni was arrested, tortured and detained is also narrated in his own affidavit. Because of Rwaboni’s torture at the hands of Military, the Petitioner lost a useful campaign agent.

The third limb of interference, Mr. Walubiri submitted, was the general deployment of the Military throughout the Country. This forms the basis of grounds 3(1) (n), (r), (v), (w), and (y), (v) and (vi) and 3(2) (c), (d) and (f) of the Petition.

Mr. Walubiri contends that the 1st Respondent does not deny deployment of the army. In his affidavit in support of his Answer to the Petition, the 1st Respondent said that the army was deployed because the Police was inadequate, but he claims in his Answer and the affidavit in support thereof that the elections were conducted under conditions of freedom and fairness and under secure conditions as a result of sufficient deployment of security Forces throughout the Country by the Government. The Army Commander, Major General Jeje Odong also deponed an affidavit in support of the 1st Respondent. The essence of that affidavit is that the army was deployed because the Police was not adequate to deal with the election process.

The learned Counsel said that the Petitioner had two arguments on army deployment. First, on the evidence available, the Army did not provide security. Evidence on record shows that the Army arrested, tortured people and made it impossible for the Petitioner to campaign. For instance, in Rwaboni’s case, it could not have been the Army providing security, but insecurity. Learned Counsel then referred to the affidavits of Kimumwe A. Ibrahim, and Sulaiman Miiro of Bugiri, proving arrest and harassment by soldiers; the affidavit of Baguma John Henry, who was threatened with death by a soldier, when he protested against Kasese RDC’s allowing soldiers to vote more than once. John Kijumba of Kasese deponed that a soldier by the name of Kilindiro William told them that he had been sent by State House to arrest those campaigning for the Petitioner and that he had a list of the Petitioner’s campaign agents and supporters including him (John Kijumba). Examples from Mbarara District are found in the affidavits of Mary Francis Ssemambo, Boniface Ruhindi Ngaruye, and Alex Busingye. In Mbale District, an example is Masiro Stephen. In Kabale District, examples are Anteli Twahirwa, to whose affidavits are annexed copies of correspondences he wrote to the 2nd Respondent, complaining about intimidation and electoral malpractices. Sande Wilson, James Musinguzi who filed a complaint with the 2nd Respondent and the Police but there was no action in return. Patrick Matsiko Wa Mucoori from Ibanda a Sub — District. Orikiriza Livingston from Rukungiri District. Mr. Walubiri contended that these individual experiences showed that the Army was not deployed to provide security, but to harass the Petitioner’s agents and supporters.

Learned Counsel submitted that there was a claim for legal basis for this Army deployment. The 1st Respondent, the Army Commander, and the Inspector General of Police, in their respective affidavits, claimed that the Army was deployed as part of the security team just as it had been done during the 1987 Currency Reform; 1989 expansion of the Constitution Assembly; 1992 Local Council elections and the 1999 Referendum. Counsel contended that Army deployment during those occasions was illegal. There were no legal provisions allowing it in the Currency Reform Statute No. 2 of 1987; in Legal Notice No. 1 of 1986 and Legal notice No. 1 of 1989, all were silent on army deployment. So was the R.C. Statute of 1987 as amended by Statute No. 5/92.

The Presidential Election Statute, 1996 provided in section 7(1) thereof that the Electoral Commission shall provide security for protection of candidates. Under article 209 of the Constitution, the function of the Army does not include internal policing. That is the role of the Police under article 212 of the Constitution. Counsel further submitted that the makers of the Act were alive to those Constitutional provisions because in section 41(1) of the Act it is provided that where there is no Police Officer to maintain order in a rural Polling Station and the necessity to maintain such order arises, the Presiding Officer shall appoint a person present to be an Election constable to maintain order in the Polling Station throughout the day. This function of maintenance of order at Polling Stations is normally the duty of the Police. Counsel contended that if the Army had to be deployed to do internal policing, it must have been presumed that there was a state of emergency under Article 209 of the Constitution. There was no state of emergency declared by the President, which would have legalized deployment of the Army. Deployment of the Army and the PPU by the 1st Respondent personally involving harassment and intimidation, as the evidence shows, constituted the offence of undue influence under section 74 of the Act.

The learned Counsel further submitted that deployment of Major Kakooza Mutale and his Paramilitary Kalangala Action Plan resulted in harassment, intimidation of the Petitioner’s supporters. It also interfered with his electioneering activities. Major Kakooza Mutale doubled as a Presidential Advisor. Learned Counsel said that this is the subject of ground 3(2) (d) of the Petition and is supported by paragraph 15 of the Petitioner’s affidavit in support of the Petition.

Dr. Byamugisha, the 1st Respondent’s lead Counsel replied to Mr. Walubiri’s submission regarding ground 3(2), starting with ground 3(2) (c), which alleged contravention of section 1 2(e) and (f) of the Electoral Commission Act.

Section 12(1) (e) and (f) has already been reproduced in this judgment.

Dr. Byamugisha referred to the affidavit in reply of Major General Jeje Odong, the Army Commander (referred to hereafter as “Jeje” for the sake of brevity), which replied to the Petitioner’s affidavit The learned Counsel contended that according to the affidavit in reply, the purpose of deployment of the army was not to coerce voters but to improve security. A letter dated 8-3-2001, written by Mr. Kasujja to the Petitioner and two other candidates in reply to their letter of 7-3-2001, raising issues of violence, intimidation, and other electoral flaws, said that the 2nd Respondent had written to the Head of State as the Commander in Chief of the Armed Forces to contain the army and to the Inspector General of Police, to ensure that the Police carried out their mandate under article 212 of the Constitution. The learned counsel submitted that following those communications, Mr. Kasujja’s letter said, that reports from the Police indicated that the security situation during the campaign had improved and acts of violence and intimidation had reduced considerably countrywide.

The learned Counsel contended that this is supported by the affidavit of the Inspector General of Police (I.G.R) Mr. Kisembo. Learned Counsel also referred to the affidavit of Mayombo and of Major General Tinyefuza concerning the arrest of Rwabwoni. The affidavits in question, learned Counsel contended indicated that Rwaboni was arrested for his own safety because he was going to be killed in Adjumani. Not to force him to leave the Petitioner’s camp.

Regarding the military and PPU in Rukungiri, the learned Counsel referred to the affidavit of Captain Atwoki B. Ndahura, the Commander of the PPU in Rukungiri at the material time. Learned Counsel contended that the witnesses to whose affidavits he has referred exonerate the 1 Respondent to the effect that he was not personally involved in intimidation. Counsel said that he would provide authorities relevant to the separation of the President and presidency. He referred to article 98(4) of the Constitution which provides that while holding office, the President shall not be liable to proceedings in any court, but article 104(8) provides that article 98(4) shall not apply to article 104, which is about challenging Presidential election. Regarding ground 3(2) (c) of the Petition, Dr. Byamugisha contended that there is no evidence of how many voters were coerced, how many feared or abstained. The same argument applies to ground 3(2) (d) of the Petition.

Learned Counsel also submitted that the ingredients of section 25(c) of the Act must be proved. The Petitioner advanced no evidence on this. Regarding allegations about Major Kakooza Mutale’s activities, Dr. Byamugisha referred to Mutale’s affidavit, which shows who he is and what he does. The convention forming the Kalangala Action Plan group was held before the Presidential Elections candidates had been nominated. The group is not paramilitary as the affidavit shows and did not do things it is alleged to have done. In the circumstances, Counsel contended, the allegations in ground 3(2) (d) have been proved false.

Regarding ground 3(2)(e) of the Petition Dr. Byamugisha referred to paragraph 12 of the 1st Respondent’s affidavit supporting his Answer to the Petition, which says that he never threatened to put the Petitioner six feet deep, nor stated as alleged in paragraph 3(2)(e) that prior to the election process, he made a statement on 27-11-2000, in his capacity as President and Commander In Chief, warning that any person who interfered with the army would be put six feet deep. The Statement was not made for the purposes stated in ground 3(2) (f) of the Petition.
Regarding ground 3(2) (1) of the Petition, Dr. Byamugisha submitted that the military or PPU were not the 1st Respondent’s agents under the Act, and that no illegal practices or offences were committed by the 1st Respondent personally or through his agents with his knowledge and consent or approval. He concluded that the 1st Respondent has shown that the Petitioner lacks evidence and that the former has gone to demolish the little evidence that there shall now turn to consider the evidence relevant to these grounds of the Petition.

Certain paragraphs of the Petitioner’s affidavit filed in support of the Petition state:

“15. That during the whole period of the Presidential Election Campaigns the 1st Respondent deployed the Army and Major Kakooza Mutale’s Pare Military Personnel of Kalangala Action Plan all over the Country and directed the Army Commander, Major General Jeje Odong and other Senior Military Officers to be in charge of Security during the whole Presidential Election process and subsequent to this, my supporters campaign agents and myself were harassed and intimidated and a number of my supporters and campaign agents were assaulted and arrested.

16. That the Respondent deployed the Presidential Protection Unit soldiers in Rukungiri District as soon as the Presidential Election Campaigns started to protect his supporters and these PPU Soldiers intimidated and harassed my supporters and campaign agents all the time.