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

DR. BYAMUGISHA AND DR. KHAMINWA FOR 1ST RESPONDENT

Dr. Byamugisha, Lead Counsel for the first Respondent submitted that by virtue of S.12 (1) (e) and (f) of the ECA (3/97) it was necessary to take measures to ensure that the entire election is conducted under conditions of freedom and fairness. He referred to the affidavits of the Commander of the Army, Major General Jeje Odongo, that of the Inspector General of Police, John Kisembo, of Lt. Col. Mayombo, the Ag. Head of the Chief tenancy of Military Intelligence and of Major-General Tinyenfuza that of Chairman of the Commission, Hajji Aziz Kasujja, especially his letter (obviously wrongly dated 8th March, 2000) and marked as annex 7 to the affidavit of Dr. Mukasa D. Bulonge. The letter (Annexture 7) was addressed to the petitioner and two other Presidential Candidates but it was also copied to the rest of the Presidential Candidates including the first Respondent and the Commander-in-Chief of the Uganda Armed Forces as well as to the Inspector General of Police. The Chairman started in his letter by saying:-

“……………You raised issues of violence, intimidation and serious flaws in the electoral process………….”

He revealed that he had written to the Head of State as the Commander-in Chief of the Armed Forces beseeching him to contain the army, and to the Inspector General of Police asking him to ensure that the Police carry out their mandate under Art.212 of the Constitution. Learned lead counsel supported the deployment of the army contending that it was necessary because of the inadequacies of the police and that in any case army deployment had been done in the past in 1987 during currency reform exercise, in 1989 during the expansion of the NRC; in 1992, RCs elections and during the last Presidential Elections of 1996 as well as the last Parliamentary elections which followed.

Dr. Khaminwa, Deputy lead counsel, also briefly made submissions relevant to the first and second issues. He referred to certain Articles of the Constitution and supported the role of the army in the electoral process stating that the army was doing its constitutional duty. He agreed with Mr. Mbabazi that the principles, which are necessary for a good electoral process, are:-

a) Free and fair election;

b) Secret ballot;

c) Procedure must be according to laws enacted by Parliament.

d) Considerable proportion of voters should not be prevented from voting

He then submitted that the petitioner had to prove, but did not prove that the election was not free and fair, that voting was not by secret ballot and that the voters who were denied to vote were substantial. He contended that because the voter turnout was 70.3%, out of over 1 0 million registered voters, it would be improper for this Court to interfere with the will of the people of Uganda, which is enshrined in Article 126(1). That Article reads:-

“126(1) Judicial power is derived from the people and shall be exercised by the Courts established under this Constitution in the name of the people and in conformity with Law and with the values, norms and aspirations of the people.”

Pausing here for a moment I do not, with respect, agree that these provisions were intended to hinder the judiciary from determining election disputes according to law.

Dr. Khaminwa cited a number of authorities in support of his arguments. These included Mbowe vs. Eliufoo (1967) EA. 240, Halsbury’s Laws of England, 4th Ed., Vol. 15, pages 581, et seq. And the Uganda High Court decision of Y Katwiremu vs. Mushemereza and two others Hct Petition No.1 of 1 996. Counsel argued that the standard of proof required to be reached in order to justify annulling the presidential election is very high. He contended that the petitioner had not proved non-compliance, which can result in the annulment of the election.