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

Allegation of bribery in Arua: Paragraph 22(e) of the Petitioner’s in reply.

Mr. Walubiri said that a video recording of the incident was submitted to the Court but due to lack of time the video cassette was not screened. The Petitioner has the burden to prove this allegation of bribery by the Respondent. He could prove it by any admissible evidence. As it appears that he wanted to use a video recording to prove the allegation necessary evidence for admission of the video recording should have been adduced. An application to the court to have the recording viewed on a screen should also have been made. As it is this was not done. My view is that the Petitioner’s learned counsel was rather casual about the video recording as evidence for purposes of proving this allegation. Further, there was no attempt to prove the allegation by any other in my view.

There is no evidence of what the 1st Respondent said if he said anything at all at the rally. None of the people who attended the rally or received the money was called as a witness. As the case of Kabourou (supra) shows, evidence is necessary to prove this kind of allegation of bribery at a rally.

In the circumstances, I am not satisfied that the Petitioner has proved to the required standard that at a campaign meeting at Arua on 12-02-2001, the 1stRespondent offered a gift of money to voters who attended the rally in order to induce them to vote for him.

The second category of corruption practices under section 63 of the Act, Mr. Walubiri submitted, were committed by the 1st Respondent’s electoral agents. He submitted that such gifts were given or offered by the 1st Respondent’s agents with his knowledge and consent or approval.

Mr. Walubiri submitted that Mwesigwa Rukutana. MP was such an agent of the 1^st Respondent. Evidence in that respect is provided by the affidavit of Gariyo Willington, dated 2-3-2001. In that affidavit the deponent said that he was the Petitioner’s agent responsible for overseeing operations of the Petitioner’s polling agents in Rubaare Sub-County. Ntungamo District. At about 11.00 a.m., he visited Kyanyanzira cell and he saw Mwesigwa Rukutana loading people on a motor vehicle Registration No. UAA 006A, a Nissan Pick-up. Rukutana was giving Shs. 5000/= to every person who was boarding the pick-up and instructing them to vote candidate Museveni Yoweri Kaguta. Mwesigwa Rukutana rebutted Gariyo’s affidavit. In his rebuttal affidavit dated 9-4-2001, he said that he had read, and understood, the affidavit of Gariyo and he found that it contained material falsehood. It was not true, as alleged in that affidavit, that he was at Kyanvanzira Village loading people on pick-up No. UAA 006A and giving Shs. 5000= to every person who boarded it. He said that on that day, he never stepped in that village, nor did he load anybody on the alleged or any vehicle at all, nor give any money to anybody. On polling day he cast his vote at Ruyonza Polling Station around 7.00 a.m. after which he proceeded to Omugyenyi, where he found one Bob Kabonero with whom he moved around Rukutana’s Constituency in his vehicle a Prado Registration No. UAA 915S, which was being driven by his driver, Richard Asingwire. During his movements with Kabonero they never went to Kanyanyunzira Village or Rwabaramira Polling Station. The allegations that Bob Kabonero was escorted by four UPDF armed soldiers and that Kabonero chased away the Petitioner’s agents from Rwabaramira Polling Station are false. Rukutana said that he was with Kabonero throughout the day and he did not see soldiers, neither did he see Kabonero chase away any agent of the Petitioner.

The implication of Rukutana’s affidavit is that Gariyo invented out of the blue all that he (Gariyo) said in his affidavit, making allegations against Rukutana. Rukutana did not suggest any reason for Gariyo to have fabricated his detailed story, including the number of the motor vehicle Rukutana allegedly used to load voters on. I find the suggestion that Gariyo invented his evidence incredible. On the contrary, Gariyo’s evidence has some corroboration from Rukutana’s affidavit that he was in company of Kabonero whom Gariyo alleged was also at the scene and chased away, the petitioner’s polling agent. Kabonero was allegedly the 1st Respondent’s campaign agent. It is more than a coincidence, in my view, that Kabonero was in Rukutana’s company and that Rukutana allegedly gave voters money and told them to vote for the 1st Respondent. The allegations that Rukutana bribed voters to vote for a particular candidate was a serious electoral offence, which Rukutana, as a lawyer and an MP, must have known very well. He could not, therefore, be expected to agree that he committed such an offence. It would be natural for him to deny the allegations.

In the circumstances, I reject Rukutana’s denial. I believe Gariyo’s affidavit as true, and find that Rukutana paid Shs. 5000/= to some voters whom he told to vote for the 1St Respondent. This was an illegal practice under section 63 of the Act. Section 58(6) (c) of the Act, however, requires that the election of a candidate as President can only be annulled if an illegal practice is committed by a candidate personally or with his or her knowledge and consent or approval. Regarding the incident of bribery of voters which I have found happened the question is, did Rukutana commit the illegal practice with the 1st Respondent’s knowledge and consent or approval? The requirements for proving that an illegal practice has been committed have to be proved by the Petitioner to the required standard. As it is, although I find that the Petitioner has proved that Rukutana committed an illegal practice under s. 63 of the Act, allegedly on behalf of the 1st Respondent, I am not satisfied that the illegal practice was committed by the 1st Respondent personally, or with his knowledge and consent or approval.

Another incident of corrupt practice was alleged against one Ali Mutebi. In his affidavit dated 21-03-2001, Mugizi Frank, of Rubaare, Ntungamo District, said that he was a polling agent for the Petitioner at Rubanga Polling Station where, he said, he witnessed massive rigging on polling day. People were being allowed to vote more than once. When he protested, the 1^st Respondent’s supporters, namely, Simon Twahirwasura, Kanyangira, Siriri, Kakyota Mayambi threatened to assault him and he was chased away from the polling station. After leaving the polling station, Mugizi said, one Au Mutebi, a campaign agent of the 1st Respondent, offered to Mugizi Shs. 15,000= to persuade him to go back and sign the Declaration of Results Form and not report about the malpractices. Mugizi said that he rejected the money and refused to go to sign the forms. Musinguzi Siriri rebutted the affidavit of Mugizi. In his rebuttal affidavit of 4-4-2001, Siriri said that there was no rigging at all at Rubanga Polling Station. The rebuttal affidavit does not refer to Mugizi’s allegation that Au Mutebi offered Shs. 15,000= to Mugizi in consideration for Mugizi signing the Declaration of Result Forms and for not reporting the malpractices he had witnessed at Rubanga Polling Station. As a result, Mugizi’s evidence about the illegal practice in question is uncontroverted and must be regarded to have been accepted by the 1st Respondent. Mugizi said that Au Mutebi was a campaign agent of the 1 Respondent. There is no reason to doubt that. In the circumstances, I am satisfied that the Petitioner has proved that on polling day at Rubanga Polling Station in Ntungamo District the 1 Respondent’s agent, Au Mutebi, offered Shs. 15,000 = to the Petitioner’s agent, Mugizi Frank in consideration for Mugizi to ignore electoral malpractices at that polling station and to sign the Declaration of Results Forms. That conduct on Au Mutebi’s part was an illegal practice under section 63 of the Act. I accept Mugizi’s evidence that Au Mutebi was an election agent for the 1st Respondent. The next question to consider is whether the commission of the illegal practice meets the conditions under section 58(6) (c) to make the 1st Respondent responsible for it. There is no evidence to that effect. Consequently, I make the same finding as I have done above in this judgment regarding the illegal practice committed by Mwesigwa Rukutana. The 1st Respondent is not bound by the illegal practice.

Another allegation of corrupt practice was made against Daudi Kahurutuka. In his affidavit of 21-03-2001, Ssali Mukago of Rubaare I cell, Rubaare Trading Centre, Rushenyi, Ntungamo District, said that he was a registered voter at Rubaare Muslim Primary School L — Z Polling Station. At 5.00 p.m. on 12-03-2001 when the Presiding Officer was counting ballots, Mukago witnessed ten ballot papers, folded together and ticked in favour of the 1st Respondent. When Mukago complained, the Presiding Officer said that it was allowed. On March 9-3-2001, one Daudi Kahurutuka a campaign agent for the 1st Respondent met Mukago at Ali Mutebi’s hotel at 8.00 p.m. and told him (Mukago) that he should mention any amount of money he (Mukago) wanted from the 1st Respondent’s Task Force so that he would “leave them to steal votes.”

Mukago did not say what followed the offer of money to him.

The Chart does not show that Mukago’s affidavit was rebutted. The evidence there remains uncontroverted. The 1 Respondent is therefore regarded to have admitted that evidence. In the circumstances, I am satisfied that on the basis of the evidence adduced by the Petitioner the 1st Respondent’s agent, Daudi Kahurutuka on 9-3-2001, offered Ssali Mukago an unspecified amount of money to bribe Mukago to overlook electoral malpractices committed by the 1st Respondent’s campaign Task Force. That was an illegal practice under section 63 of the Act. The question is whether the illegal practice was committed in the manner required by section 58(6) (c) of the Act.

The illegal malpractice was committed not by the 1st Respondent but by his election agent. In order for the 1st Respondent to be bound by his agent’s commission of the illegal practice, the conditions under section 58(6) (c) must be proved by the Petitioner. These are that the illegal practice must have been committed with the knowledge and consent or approval of the 1st Respondent. The Petitioner did not adduce evidence to prove it. Consequently I make the same finding as I did in respect of the illegal practice committed by Mwesigwa Rukutana. The 1st Respondent is not bound.

Another allegation of corrupt practice was made against Onyango Wilboard. In his affidavit of 23-03-2001, one Omaha Ram said that he was Eastern Region Veterans for the Petitioner. On 12-03-2001, as he monitored the polling process, one of the Petitioner’s agents, Opio Katamira, reported to him (Omalla) that at Payawo Polling Station, Councilor, Onyango Wilboard, had given his father, Odomi, money to give to people to vote for the 1 Respondent. On hearing the report he (Omaha) drove to Payawo Trading Centre near the polling station in question. He found there Onyango’s father with many people about the allegation. When Omalla contacted other people in the area about the allegation, they said that it was not true that Odomi had been given money by his son, Onyango, to canvass for vote for the 1st Respondent. In the circumstances, I am not satisfied that this allegation of an illegal practice was proved at all. It appears that Omalla received a wild allegation and he went on a wild goose-chase. I am not satisfied that an illegal practice under section 63 was committed by Onyango Wilboard.

In the result, I find and hold that ground 3(2) (b) of the Petition was not proved to my satisfaction.

A number of grounds of the Petition make allegations to the effect that certain electoral illegal practices or offences were committed by the Military in general and the PPU in particular by interfering with the electioneering activities of the Petitioner, contrary to section 25 of the Act; that the Petitioner’s agents and supporters were abducted or arrested by the Army to prevail upon them to vote for the 1st Respondent, contrary to section 74 of the Act; that contrary to section 12(1)(e) and (f) of Act 3/97, the 1st Respondent appointed Major General Jeje Odong and other partisan Senior Military Officers to take charge of security of the Presidential Election Process and thereafter a partisan section of the Army was deployed all over the Country with the result that very many voters voted for the 1st Respondent under coercion and fear or abstained from voting altogether.

These include grounds 3(1) (n), 3(1) (w) and 3(2) (c) which I have already set out in full in this judgment. The alleged illegal practices or offences are said to be contrary to sections 25 and 74 of the Act. The aforesaid sections of the Act have also been set out already in this judgment.

Ground 3(1)(y)(vi) is to the effect that the alleged malpractices and offences affected the result of the election in a substantial manner in that the Petitioner was unduly hindered from freely canvassing support by the presence of Military and Paramilitary personnel who intimidated voters.

Ground 3(2) (f) then alleges that the aforesaid illegal practices and offences were committed by the 1st Respondent personally or by his agents and supporters with his knowledge and consent or approval through the military, PPU, and other organs of the State attached to his office and under his command as the President, Commander — in — Chief of the Armed Forces, Minister of Defence, Chairman of the Military Council and High Command, and Chairman of the Movement organization.

I have already considered the submissions of Counsel for all sides in this Petition, on the grounds in question. I have also evaluated the relevant evidence at considerable length. I have also made findings of fact and of law. On the basis of finding of fact I have made, I have no doubt that some soldiers of the UPDF in general and the PPU in particular interfered with the Petitioner’s and his agents’ or supporters’ electioneering activities in many parts of the Country numbering about 23 to 27 Districts. This was illegal practices or offences under section 25(c) of the Act.

There is also no doubt that some agents and supporters of the Petitioner were threatened with injury or death or abducted and some were arrested by the Army and PPU to prevail upon them and others to vote for the 1 Respondent or to refrain from voting for the Petitioner. Some members of the Military or PPU used or threatened to use violence against the agents or supporters of the Petitioner. The most prominent examples are the arrest, torture and detention of Rwaboni and the shooting dead of Johnson Beronda. These were illegal practices at offences contrary to section 74(a) (i), (ii) and (b) of the Act.

Section 12(e) and (f) of Act 3/97 which is cited ground 3(2) (c) of the Petition does not create any offence or illegal practice. It imposes a duty on the 2nd Respondent to take measures for ensuring that the entire electoral process is conducted under conditions of freedom and fairness; and to take steps to ensure that there are secure conditions necessary for the conduct of any election in accordance with Act 3/97 or any other law. The import of ground 3(2) (c) of the Petition is that, instead of ensuring that the conditions for free and fair 2001 Presidential Election as stipulated in section 12(e) and (f) existed, the 1 Respondent deployed Senior Military Officers to take charge of security of the Presidential Election Process; as a result partisan section of the Army was deployed all over the Country made many voters to either vote for the 1st Respondent under coercion and fear or abstained from voting. This was noncompliance with section 12(e) and (f) of Act 3/97, without committing any illegal practice or offence.

Credible evidence available clearly shows that many soldiers of UPDF and PPU, whether senior officers or not, were not neutral or impartial during the electoral process. They campaigned for the 1st Respondent, intimidated, harassed or threatened or used violence against supporters and agents of the Petitioner. How many voters either voted for the 1st Respondent under coercion and fear or abstained from voting altogether due to fear, I doubt could be, or will ever, be known

I have expressed my views about the deployment of the UPDF and PPU. I said that the deployment was not consistent with the provisions of the Constitution. I gave my reasons for those views.

The 1st Respondent said in his affidavit that the security forces were deployed by Government, and he gave the reason why the security forces were deployed during the 2001 Presidential Election Process throughout the Country. Briefly it is that the Police were inadequate and the security situation so required. The purpose was to keep peace and order. I have already expressed my view and made my findings about that. The Army Commander, Maj. Gen. Odong and the Inspector General of Police, John Kisembo gave the same reason for deployment of UPDF. The Army Commander also said that UPDF was deployed on the advice of the National Security Council (NSC).

NSC is a creature of the Constitution. The Constitution provides:

“219. There shall be a National Security Council which shall consist of the President
as Chairperson and such other members as Parliament shall determine.