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

(2) The Supreme Court shall inquire into and determine the petition expeditiously and shall declare its findings not later than thirty days from the date the petition is filed”

It is trite that in court disputes, whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist. He bears the burden of proof: See S. 100 to 1 02 of the Evidence Act. These sections are clear.

The Petitioner had to adduce evidence before us to prove that there was non-compliance with the Presidential Elections Act 2000. His complaints are set out in his petition and the accompanying affidavit, which were lodged in this Court on 23td March 2001. They are set out in paragraph 3(1) of the petition. I have summarised them at the beginning of this judgment.
The Petitioner prayed in paragraph 3(1)(y) that non-compliance with the provisions of the Presidential Election Act 2000 and of the Electoral Commission Act affected the result of the Presidential Election in a substantial manner in that:

(i) The number of actual voters on the Voters Roll/Register remained unknown and some people were disfranchised; and the number of votes cast during the election at certain Polling Stations exceeded the registered number of registered voters or the ballot papers delivered at the station.

(ii) The identity of the Voters could not be verified.

(iii) The electoral process regarding the voters’ register was full of serious flaws and voters were denied the chance and sufficient time to correct those flaws.

(iv) No sufficient time was allowed for the petitioner and his agents and supporters to scrutinise the voters roll/register and take corrective measures regarding the same.

(v) The Petitioner’s polling agents were denied the opportunity to safeguard their candidate’s interests at the time of polling, counting and tallying of votes and in their absence illegal voters voted while legitimate voters voted more than once.

(vi) The Petitioner was unduly hindered from freely canvassing for support by the presence of the military and para-military personnel who intimidated the voters.

(vii) It cannot positively be ascertained that the 1st Respondent obtained more than 50% of valid votes of those entitled to vote.

On 23rd March, 2001 the Petitioner swore an affidavit to support the above complaints. I have said that very many other affidavits were sworn by other deponents in support of the petition. I have already reproduced five of these affidavits in relation with objections raised by the respondents about the admissibility in evidence of the majority of these affidavits. Those same affidavits are part of the effort by the petitioner to prove his complaints raised in paragraph 3(I)(y) (v) and (vi) On this issue the pertinent paragraphs of the Petitioner’s affidavit are:- 9, 11, 12, 13, 14, 15, 17, 18, 21, 22, 23, 29, 35, 36, 39, 40, 41, 42, 43, 45, 46,47, 48 and 49. In brief he complained of the gross mismanagement of the electoral process, unjustified military involvement in the electoral process or rather, the over militarization of the electoral process, the rampant intimidation, the violence, the harassment, assault and beating up of his supporters and his agents which constituted non-compliance with the provisions and principles of the Presidential Elections Act, 2000.

The first Respondent answered these complaints in his answer and his main affidavit. I have already summarised his answer. Many other persons including UPDF officers, such as Major General Odongo Jeje, Major Gen. Tinyefuza, J., Lt. Col. Mayombo, PPU officers, like Captains Ndahura and Rwakitarate and also his agents swore affidavits to support his reply. Hajji Aziz Kasujja, the Chairman of the Commission, swore three affidavits in the rebuttal of the petitioner’s complaints. The gist has been given earlier. CAOs and other officials supported him by swearing other affidavits relating to specific complaints in their spheres of work.

The Petitioner complains about the non-compliance with the provisions of the PEA, before the election and during the election exercise on 12/3/2001. Complaints before the election are about violence, the harassment, assault, abduction, and intimidation of the petitioner and or of his agents and supporters.

About violence, harassment, intimidation and beating of himself and his agents and supporters, the Petitioner testifies to this in his own affidavit. In particular, there is the evidence about the mistreating and assault of Rabwoni Okwir in the petitioner’s presence and other supporters in Entebbe. There are affidavits giving evidence on violence, harassment, mistreatment, assaults in Rukungiri, Kanungu, Mbarara and Kamwenge Districts during February, 2001 and subsequently: See the affidavits of B. Masiko, about violence and intimidation in Kanungu, James Musinguzi of Rukungiri, (about violence intimidation and harassment) in Rukungiri and Kanungu, Kakuru Sam, intimidation and violence in Kanungu, J. H Kasamunyu, Mpwabwooba C., Bashaija. R. Mubangizu. All these witnesses give various harrowing and horrendous accounts of what happened. A study of the affidavits of these witnesses reveals that the epicentre of terror, harassment, intimidation, assault and all manner of violence was Rukungiri, Kanungu, Mbarara and Kamwenge. This spilled over into surrounding districts of Ntungamwo, Bushenyi, Mbarara, Kamwenge and Kabale. The witnesses for the Respondents deny that these complaints are genuine. Let me evaluate the evidence of the two sides on the matter of intimidation, violence, humiliation and harassment

In his complaints, the petitioner refers to acts of the agents of the respondents. In my mind the agents of the second respondents are easy to identify since these are its officials. These including CAOs, Assistant CAOs and lower election or polling officials. But because there is unwillingness by the 1st Respondent to reveal all his agents, there is some difficulty in identifying agents or representatives of the first Respondent except those who have accepted. PEA and ECA are not quite helpful on this. Neither of them defines precisely who is or what is the characteristic of an agent of a Presidential candidate.

As I pointed out at the beginning, that we found on 21/4/2001 that there was non-compliance with the provisions of section 28 and S.32 (5) of the PEA, 2000. This relates to non-gazzetting of polling stations and failure to supply to petitioner with the official copy of registers.

The questions to answer are was there violence, intimidation, assault, abduction, and harassment? If yes, where was it and for what purpose? Does the proven violence, intimidation, harassment and assault amount to non-compliance with the provisions of PEA?