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

“201. Parliament shall make laws regulating the Uganda Peoples Defence Force, and in particular providing for — …………………….

1. 
   the deployment of troops outside Uganda.”
   

In the circumstances, my considered opinion is that the UPDF was not properly deployed to assist the Police for purposes of maintenance of peace, law, and order during the 2001 Presidential Election in the absence of emergency situations or cases of natural disasters.
The question whether the UPDF was properly or not properly deployed, involves interpretation of the Constitution under article 137(5) of the Constitution. None of the parties to the Petition asked for such a question to be referred to the Constitutional Court under article 137(5) (b); and I do not think that the Court should have exercised its discretion under article 1 37(5) (a) to refer the question to the Constitutional Court, because of the impracticability it would involve. Under article 104(3), the Court is enjoined to inquire and determine this Petition expeditiously and declare its finding not later than thirty days from the date the Petition was filed. The Court did so and rendered its judgment on 21-03-2001, one day before the last day it had to comply with the provisio1S of article 104(3). If the Court had to refer the question I have mentioned to the Constitutional Court, it would never have declared its finding within thirty days. It would have thereby violated article 104(3) of the Constitution. If the Court could not render its decision within the prescribed time, there would have been, in my considered view, a Constitutional crisis. This Court would not, I think, be prepared to be responsible for such a Constitutional crisis.

Activities of the UPDF relating to violence, intimidation, threats, harassment, etc:

Credible evidence shows that in many places, UPDF soldier’s intimidated, threatened, harassed or arrested, detained or applied violence against the Petitioner’s supporters.

I shall give some examples.

In Kyenjojo, there was heavy gun shooting by UPDF the night before the Petitioner’s rally in Kamwenge to scare of people known to be supporting the Petitioner and to turn them to support the 1st Respondent

Armed soldiers also guarded polling stations in Kasese, where a UPDF sergeant claiming to have been sent from State House threatened to arrest all those campaigning for the Petitioner and said that he had a list of them. The same soldier who was, in fact, from Nakasongola D.M.I., arrested a campaign agent of the Petitioner. In Kasese lorry loads of soldiers ferried from the D.R.C. went round shouting “No Change”, and voted several times.

At polling stations in Nyabushozi and Isingiro, armed UPDF soldiers harassed the Petitioner’s supporters. In Mbarara Municipality, there was heavy deployment of UPDF soldiers, making it impossible for the Petitioner’s agents to meet, and at many polling stations UPDF soldiers chased away the Petitioner’s polling agents.

In Ibanda a “Monitor” News Paper reporter was arrested by UPDF soldiers and detained in barracks for being inquisitive. In Tororo a supporter of the Petitioner who refused to pull down the Petitioner’s poster was arrested and tortured by soldiers in a yellow “Movement” bus. Thereafter he felt too threatened to continue to campaign for the Petitioner.

In Lira, the UPDF Commandant of Aromo Detach arrested and detained a supporter of the Petitioner.

At Wobulenzi, Luwero District, a UPDF Major chased away an agent of the Petitioner from a polling station. In Bugiri, one of the Petitioner’s agents was harassed by eleven UPDF soldiers. Soldiers from the RDC’s office also went to a polling station threatening others and forcing under-aged children to vote. They also chased away the Petitioner’s polling agents from a polling station. At Musasa in Kasese, an agent of the Petitioner was threatened to be killed by the i/c of Nyabirengo Battalion Headquarters, and a UPDF Major.

In Ibanda, UPDF soldiers surrounded the Petitioner’s supporters and ordered them to leave a meeting. A UPDF Captain tore down the Petitioner’s poster and shot at an agent of the Petitioner. At Nsambya Polling Station, Mubende, two UPDF soldiers, with a walkie - talkie, threatened to arrest anybody who was complaining about the irregular manner in which ballot papers were being counted.

In Mbale, two UPDF soldiers released a person from Mbale Police Station who had been arrested for caning a female supporter of the Petitioner. In Palisa, UPDF soldiers I n a mini bus moved around a trading center, where a Sub- County Chief and L.C. officials were telling people that if they did not vote for the 1st Respondent, soldiers would kill them. In Kamwenge, a UPDF Captain shot at an agent of the Petitioner and armed UPDF soldiers stopped the same agent from campaigning at a trading center; and another agent was attacked by UPDF soldiers at his home and the house burnt down. Escorts of Hon. Byaruhanga, MP, beat up local publicity secretary for the Petitioner and other Petitioner’s supporters and told them to denounce the Petitioner. The Honourable MP is an army captain.

In Kamwenge, a UPDF Lieutenant told the Petitioner’s polling agents to remove their identity cards and one of the Petitioner’s agents was arrested and detained in a ditch in the local UPDF Barracks, guarded by two UPDF soldiers. The Lt. also ordered the Presiding Officer to tick ballot papers in favour of the 1st Respondent. At Paico, in Gulu District, two UPDF soldiers were stationed at each polling station. The soldiers also forced voters to vote for the soldiers’ choice. When voters chased away the soldiers, they returned in an armoured personnel carrier, (called ‘Mamba”) and assaulted two of the Petitioner’s supporters.

In Busaana Sub-County of Kayunga District armed soldiers moved all over the Sub-County on a school truck harassing the Petitioner’s supporters. In Galilaya Sub-County, armed uniformed men also intimidated the Petitioner’s supporters.

At polling stations within the UPDF Barracks in Gulu, civilian polling assistants were replaced by military polling assistants.

In Kampala, two supporters of the Petitioner were arrested, tortured and detained in Mbuya Military Barracks.

On an inference of fact based on credible evidence it is clear that soldiers of the UPDF were in favour of the 1 Respondent being elected. Army Officers campaigned for him. This is clear from the complaint to that effect made by four of the Presidential candidates and the instruction issued out by the Chairman of the 2nd Respondent that Army Officers, RDCs and GISOs should not campaign for the 1st Respondent. On the whole, UPDF was against election of the Petitioner. This, in my considered opinion, is the reason they harassed, intimidated, arrested and in a few cases, shot at the Petitioner’s agents. In some incidences, they also interfered with voting process at polling stations. The reply from the 2^nd Respondent’s Chairman to four candidates indicates that Army Officers, RDCs and GISOs, were campaigning for the 1 Respondent. The Chairman said that he had sent out instructions for them to stop doing so.

Evidence shows that soldiers of the UPDF do not appear to have positively helped in the maintenance of peace, security and order during the Presidential Election process. On the contrary, with respect, my considered opinion is that they were a source of insecurity for the Petitioner’s supporters or persons not openly in support of the 1st Respondent. This was mainly in Rukungiri and Kanungu Districts, but it also happened elsewhere.