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

(b) election is by secret ballot;

(c) Use of one box portrays the principle of transparency;

(d) There is one vote one ballot;

(e) Under S.4 of PEA an aspiring candidate is entitled to carry out nationwide consultations- This is freedom of Association, of Imparting ideas and of electioneering.

According to Mr. Mbabazi the principles which were breached are:

1 The principles of transparency and fairness. (See Art. 68 and S.32).

2. Representation of the candidates at the polling stations.

3. The secrecy of the ballot was not observed.

4. A citizen of voting age has a right to be registered and a right to vote.

5. Freedom to choose.

6. General values of a democratic society.

When they made submissions in respect of the first issue, all counsel for the parties entered the territory of the second issue.

Mr. Mbabazi contended that these principles were breached in respect of registers and on registration1 voting and ballot stuffing. That evidence shows that persons eligible to vote were denied the freedom to vote secretly and that non-Citizens were allowed to vote; that is this noncompliance and goes to the root of the Constitution. Counsel submitted that because of deploying the army, the freedom of and fairness in voting were missing and this affected the election in a substantial manner. He asked us to answer issue 2 in the affirmative.

Dr. Khaminwa agreed with Mr. Mbabazi on the question of the principles but learned counsel submitted that these principles were complied with and that the petitioner failed to prove by the number of votes how noncompliance with principles affected the results. He asked us not to interfere with the will of the people by setting aside the election. Learned Counsel relied on Bater vs. Bater (1950) 2ALL E.R. 458 and Mbowe vs. Eliufoo (supra) for the view that the standard required to prove non-compliance is very high and that the evidence of Frank Mukunzu, the expert in figures, did not assist the petitioner to establish the extent of noncompliance.

Mr. Kabatsi, the learned Solicitor-General, whose other submissions I have already summarised, agreed with the aforementioned statements of the applicable principles being: free and fair election, universal suffrage and the right to vote. He shared Dr. Khaminwa’s view that the standard of proof required to prove non-compliance with the principles is very high. He defended the deployment of UPDF in the electoral process arguing that UPDF should be involved in the protection of Human Rights because of Article 221 of the Constitution. He contended that the expert evidence of Mukunzu supports the view that there was substantial compliance with the principles of the PEA, 2000.

The learned Solicitor-General referred to Chairman Kasujja’s affidavits and the affidavits of other witnesses for the 21 Respondent. These included the affidavits of the Chief Administrative officers (CAOs) cum Returning officers. He then submitted that there was compliance with respect to the maintenance of the voters register; he defended the display of registers and of rolls for less than 21 days, and suggested that it is not mandatory to issue voters cards; that Art59 (1) guarantees citizens the right to vote; that S. 19 of PEA prohibits unregistered people from voting, that splitting the polling stations facilitated voting; that the Petitioner failed to adduce evidence in support of ballot stuffing, that the affidavits of Tukahebwa, Kyimpaire and Naggayi Lucia, about ballot stuffing and other malpractices did not establish the allegations, contending that their stories were imaginary or had been rebutted by the affidavits of the witnesses for the respondents such as that of Mugyenyi Sylvia (which I was unable to find among bundles of affidavits provided). The learned Solicitor-General argued that the proper procedure at voting and during tallying had been observed and that if there were any multiple voting, underage voting, mistakes or errors in tallying, they did not affect the results in a substantial manner.

About the arrest of Commissioner Miiro, Mr. Kabatsi submitted that the process of the law took its course and that the arrest further shows that there is compliance with the law irrespective of the status of the culprit. He also argued that the absence of Miiro’s signature from the results declaration form does not affect the declaration.

On the question of free and fair election, the learned Solicitor-General relied on Kabourou’s case (supra). He said there exists a law to regulate election. In this case, there is PEA, 2000. He relied on Chairman Kasujja’s affidavit and submitted that the complaints by the Petitioner in this matter were trivial. He asked us to accept the opinions of foreign observers from OAU and some countries to the effect that the election was free and fair. He also relied on affidavits of the returning officers in addition to that of Presidential candidate Francis Bwengye and Bob Mutebi. The later claims to have witnessed the Petitioner cast his vote in Rukungiri where the witness recorded statements attributed to the Petitioner on 12/3/2001 in which the petitioner appears not to have complained about the presence of soldiers or the malpractices now raised in the petition.

I must say I have found it difficult to place any probative value on the affidavit of former candidate Francis Bwengye. On 9th March, 2001, just three days to the election, candidate Bwengye, along with the Petitioner and three of the other candidates wrote their joint letter (P19) to Chairman Kasujja referring to the contents of R17 and P.15 which complained about insecurity and other malpracticeS. Surely he could not be the same Francis Bwengye who turns up after elections to claim that during campaigns there were no problems. I have already reproduced these letters elsewhere in this judgment. Besides I think that candidate Bwengye’s affidavit is full of valueless hearsay matters.

Back to the submissions of the learned Solicitor-General. His view is that the Petitioner did not complain about free and fair elections on 12/3/2001. I would like to observe here that there are affidavits from various parts of Uganda talking about beating, intimidating, violence and harassment of agents and supporters of the petitioner. Two interesting examples are Mrs. Marry Frances Ssemambo and Mr. Peter Byomanyire both of Mbarara. In her affidavit of 21/3/ 2001, Mrs. Ssemambo, who was chairperson, Mbarara District Task Force for the petitioner, talks of massive rigging and she also talks of harassment, intimidation, arrests, beating and chasing away from polling stations of the supporters and agents of the petitioner especially in the counties of Nyabushozi and Isingiro. The witness says that it was the armed UPDF and LDU and agents of the first Respondent who committed these wrongs. Peter Byomanyire, a coordinator for the petitioner supports Mrs. Ssemambo with regards to intimidation, rigging and chasing away of agents of the petitioner in Mbarara and Kamwenge Districts. Byomanyire talks of excruciating treatment on 1 6/2/2001 following an address by the petitioner. He and others were harassed on 8/3/2001 by armed UPDF for supporting the petitioner.

In an effort to challenge the evidence of Mrs. Ssemambo and other witnesses of the petitioner, Samuel Epodoi, the Districts Police Commander (DPC) for Mbarara District, swore an affidavit. He swore that Ssemambo’s claims about harassment, arrest, beating, detention and chasing away of supporters and agents of the petitioner are false. He claims that nothing of the sort happened in Nyabushozi and Isingiro countries, which were patrolled by police and UPDF. The remarkable point about the affidavit of the DPC is that he does not appear to have been in the counties of Nyabushozi and Isingiro at the material time. His information is wholly hearsay. He does not disclose the source of his information. Therefore DPC Epodoi’s claim that what Mrs. Ssemambo and other agents of the petitioner complain about is false is itself without any foundation whatsoever and I reject it. Mrs. Ssemambo is again supported on rigging, multiple voting and chasing away of the petitioners agents by Muhairwoha Godfrey who is from Isingiro County. He was an agent for the petitioner at Kajaho 4 polling station where a supporter of the first Respondent called C. Rwabambari and a parish chief took over the duties of the presiding officer. When he protested, Muhairwoha was forced by an UPDF reserve to flee. Messrs Tugumisirize and Rukara Caesar both from Mbarara and both agents of the petitioner at different stations were arrested, beaten, detained or chased away!

There are complaints by Mubbajje, Amir and Naddunga in Mbale District. There are complaints by Mulindwa in Pallisa, by Imon and Oketcho in Tororo, Ndifuna Wilber in Busia, Kirunda and S. Niiro in Bugiri, in Masindi, in Mayuuge, by Matovu A. in Kayunga, by Omuge in Soroti, by Lukwiya Pido in Gulu, by Drobo Joseph of Arua and every district in the whole of Western Uganda. Take the affidavits of Kakuru, Baguma H., Musinguzi and of Barnard Matsiko, for instance. These affidavits are sworn to support the allegations pleaded in the petition.

Alex Busingye, a resident of Kakiika, in Mbarara District, was the petitioner’s overseer in Kazo County of Mbarara District. He looked after the welfare of the petitioner’s agents in Kazo. In paragraphs 3 and 4 of his affidavit he states:-

“3. That in the majority of polling stations I visited I found the polling agents for the petitioner off the polling (sic) they had been assigned having been chased away by armed UPDF soldiers.

5. That at one polling station called Nkungu I found a monitor for that station had been tied by the UPDF soldiers and was bundled on motor vehicle Reg. 114 UBS, pick-up in which they were travelling

One may say that para 3 contains some hearsay material. But the deponent does support Mrs. Ssemambo to the effect that the petitioner’s agents and representatives were harassed, beaten and subjected to inhuman treatment. More affidavits from many other districts testify to the terror and intimidation that was meted out to the agents and supporters of the petitioner.

I have gone through the affidavit of the petitioner and the documents attached thereto relevant to the second issue, particularly PB, date 11/3/2001, about splitting polling stations, P12 and P13 Chairman Kasujja’s letter to His Excellency the President in which Kasujja lamented about violence and intimidation and beseeched the President to save the bad situation from getting worse and to save democracy from disintegrating See P14 dated 20/2/2001 in which the Vice-Chairperson, Mrs. Flora Nukurukenda, implored the Army Commander and the Inspector General of Police to ensure that there was no “unnecessary” interference with Candidates’ electioneering. From this letter I do not know whether there is “necessary” interference and what is its limit. Yet the letters show that candidates continued to complain; P15, is a press release, dated 9/3/2001 by which the Army commander attempting to justify the continued deployment of UPDF, ISO, and PPU during the electoral process. That letter from the Army Commander is a tacit acknowledgement of excessive deployment of the army. Then there is the letter P17, dated 7/3/200 1 written to the Chairman of the Commission by the petitioner and some of the other candidates, complaining about flaws in the Presidential election process. The flaws included insecurity, violence and intimidation. In the letter, the candidates further complained about deployment by the first respondent of UPDF and the PPU and other paramilitary personnel which had resulted in loss of lives and injury to people and to property; it complained of the partisan campaign in favour of the first Respondent, by Senior Army officers, RDCs, DISOs and GISOs. To that was a reply, now P8, wherein the Chairman in effect acknowledged the grounds for the complaints and this was reemphasised by P19 dated 9/3/2001 still complaining about the 2001 flawed Presidential election process. True, the evidence on loss of life shows at least two deaths. Beronda in Rukungiri and another in Busia. It can be said that there are only two deaths. But what about the injured, the violence and intimidation. Indeed even the killing of one person by shooting can reach far and can have far reaching ramifications. Beronda’s shooting is a perfect example.

P20 shows that the Commission printed excess voters’ cards for purposes of rigging. This matter was not explained properly. Exh.P21 dated 13/3/2001 is a letter by the Petitioner rejecting the election results and demanding for a fresh election on various grounds some of which had, before the election, been highlighted in P17, P18 and P19, mentioned above.

I have studied the affidavits, together with the supplementary affidavits in reply by the first and second respondents. I have studied the other affidavits sworn by witnesses for the respondents. I have considered the fact, which is not in dispute that, Rwaboni Okwir, the MP youth in charge of the youth and students’ desk of the petitioner1 was violently hounded out of supporting the petitioner and this was epitomised by his brutal and violent manhandling and arrest in the glare of video cameras at Entebbe International Airport. This must have by all standards driven chills in the spines of many of the youths, supporting the petitioner. Of course it may be argued that the effect of Rabwoni incident cannot be measured easily in terms of loss of votes. But, I say, the incident is the outward and explicit measure of determination to suppress opposition. It shows the determination to win at any cost. It gives support to commission of other malpractices. Musinguzi, who lead the Rukungiri! Kanungu co-ordination of the petitioner’s campaign got so frustrated by various malpractices that he personally refused to vote out of revulsion against the excessive malpractices.

Mr. Mbabazi argued that the evidence available showed that by 22/1/2001, the Commission had not produced the updated National Voters’ Register. That by 12/3/200 1 there was no updated National Voters roll. Paragraph 28 of Kasujja’s latest affidavit of 9/4/200 I showed that on voting day there appeared to be an increase of voters by 103447, voters who were not subject to scrutiny. Counsel put forward a theory by which twelve polling stations each catering for 500 voters would in all produce 6000 votes, which could be used for stuffing in new stations. Counsel again pointed out the unexplained increase of more Polling Stations in Mbarara, Mbuya and some other places. He submitted that the totality of absence of free arid fair election, the interference with the right to vote and of the exercise of secret ballot and absence of transparency such as the abrupt creation of very many polling stations, all this affected the validity of the vote and rendered the election exercise invalid.

Article 212 of the Constitution sets out the functions of the Uganda Police Force to include the following: -

“(a) to protect life and property;