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

DEMOCRACY AND THE ROLE OF UPDF, PPU, ESO, ISO

I have already found that there was no justification for involving the army in the election exercises. I have said and I repeat that the fact that the army was involved in previous national exercises, namely the Currency Reform in 1 987, in the election to expand the National Resistance Council in 1 989, the elections of Local Councils in 1 992, the Presidential election and Parliamentary elections in 1 996 and the Referendum in 2000 is not good enough reason for persisting in deploying the army during a purely civilian presidential election. Article 209 of the Constitution does not authorise deployment of the army for civil elections. It does not matter to me that the decision was taken at the highest level by the National Security Council. This council which is a constitutional institution (article 219) is chaired by the President of Uganda. In pursuance of that Article, Parliament enacted the National Security Council Act 2000, which sets out membership and functions of the council. The Council is chaired by the first Respondent by virtue of his being Commander-in-Chief of the army and the Head of State. Several Ministries are members. Composition of the Council may be a matter of policy. But I note that Major General Jeje Odongo, as commander of UPDF, the Inspector General of Police, the Directors General of ISO and of ESO and the head of Chieftaincy of Military Intelligence, are among the officials who constitute the Council. The Petitioner complained that persons from the military, the military intelligence and ISO were prominently involved in intimidating and harassing himself, his agents and his supporters. Rabwoni’s story fully supports him. So I think, does the affidavit of Captain Rwakitarate. Incidentally because of the method of the hearing of the petition, it was not possible to find out what military intelligence was received by the Army Commander, the Head of the Chieftaincy of Military Intelligence or the Inspector General of Police on the basis of which the Council decided to deploy the army. It may be noted here that the country was not under an emergency nor under a threat of sudden invasion.

I have already said that there was more than enough time to enhance the capacity of the police to man the recent presidential elections. I have great respect for heads of institutions, in this country, but I find it difficult to accept that the Council chaired by a candidate in a presidential race would be so objective in its considerations and arriving at its decision about not to deploy the army during electioneering. In the same manner, where members of ISO, intelligence and other military intelligence personnel are accused of involvement in partisan campaign, it is practically difficult for senior officers of the Army, of ISO, or Chieftaincy of Military Intelligence to be objective and deny honestly the deployment of their members of the respective institutions. The presidential election exercise was a test of the observance of democratic behaviour. This behaviour demands that voters must be afforded maximum freedom to make a choice from the six candidates. No democratic choice can be made freely when members of UPDF force the voters how and for whom to vote. That means it is the Army Personnel who voted for would be voters.

The facts so far disclosed do not convince me that it was necessary, as stated by Major General Odongo and Captain Ndahura to permanently deploy the PPU in any part of the country throughout the presidential election campaign. Nor am I persuaded that the Petitioner’s witnesses are telling lies. No sound reason has been advanced or offered as to why the supporters or agents of the Petitioner should falsely tell lies about the people and officials who have been implicated. There is no question of mistaken identity. It cannot be said that these witnesses are motivated by sheer support for the petitioner. This is because complaints were raised before the Election Day. Henry Muhwezi reported his horrifying abduction and torture to Kamwenge Police Station. Many others did the same. Muhwezi could not have reported a lie to the police knowing it will be investigated and the truth would come out. Nor could the other witnesses. The Police would investigate and take action against anybody telling lies. Moreover police were cowed. The O.C Kamwenge Police Station (already referred to) arrived at the scene after the evil had been done.

I expect the PPU to be disciplined, considering the fact that they protect the Head of State. It should be mobile and moving from place to place likely soon to be visited by the President. It is most unconvincing for Captain Ndahura, as an officer-in-charge of part of the PPU, stationed in Rukungiri/Kanungu, to claim that his unit was always in camp, when in the same breath he states that he and his unit helped in dispersing an alleged illegal rally of the supporters of the Petitioner in Rukungiri. He dispersed a rally to be addressed by Rwaboni Okwir. Is Captain Ndahura not now saying, and in effect proving, that actually he was deployed to harass agents and supporters of the Petitioner? That is what Hon.

Captain Byaruhanga and Sgt. Natukunda, the GISO man in Nkikinzi Sub-county did. That is a witness for the first Respondent. I have no sound reason to believe neither Captain Byaruhanga nor Sgt. Natukunda. I find it ironical that in an exercise of democracy, that exercise is more or less supervised by the military.

The Presidential Elections Act, 2000 permitted the Petitioner personally or through his agents, representatives and supporters to canvass for his election during the campaign period. Yet Captain Ndahura’s statement is part of the clearest testimony to the effect that the PPU and, indeed the army, were deployed in the country side for purposes of decampaigning the Petitioner and for the purpose of promoting the cause of the first respondent. This is clearly the height of unfairness and illegality. The police should be given the training and opportunity to do these things. Nobody has explained why this was not done or attempted. There exist a local police (askaris) in Local Governments. These should be called upon, given refresher or proper training and not the army, to assist in matters such as elections. I am not convinced that it was necessary to call in the army. If there were any serious threats then the army should have been alerted and left in barracks but not to be unleashed upon voters.

There is one remarkable matter, which has not been explained and which I find pertinent to mention. It is evident that in areas of Northern Uganda, and some parts of Eastern Uganda and Central Uganda, where brutality against the representatives or agents and supporters of the Petitioner was minimal or least, the Petitioner got most votes. Yet the opposite is true in areas of Western and most populated areas where there was much brutality, intimidation and harassment. The sound explanation appears to be that brutality affected the election and this indeed in a substantial manner, in my opinion.

The evidence on acts of the Government officials and the 1st Respondent during Presidential campaign is strong on some aspects but weak on others. On signing contracts to construct roads, I think that that was politicking by the 1st Respondent and his ministers. I have looked at the 1 0 years road development programme. I noticed that almost all roads in Uganda are included; three of the four roads questioned by the petition are scheduled for Financial Year 2001/ 2002. While implementation during this current financial year was envisaged, the work on the roads was incorporated in the campaign manifesto of the first respondent for implementation after his election.

What is remarkable, though, is the ostensious style of signing of the contracts for tarmarcking and or upgrading the roads. It is the fashion it was done, which is correctly interpreted to mean that it was intended to win votes for the first respondent. On the authority of the Tanzanian case of Kabourou, the decision to announce work on the roads during the height of campaigning is not in keeping with normal Government operations. It is out of the ordinary Government business. It was done in favour of the first Respondent. It was done unfairly. It violated the principles of fair play in an election, which is supposed to be conducted under a democracy. I gave considerable thought to this matter especially on the possibility that to accept the opinion, I have just expressed, may amount to undue restrictions on government ability to conduct its programmes. My view however is that the Government had more than the election time in which to implement its policies. To implement as it was done here amounts to dangling a carrot before the voters. Therein lies the evil.

I know it is proper to award salaries and other benefits to employees of the Government. But it does not require much imagination to conclude that:

(a) the award of salary increments for teachers during the conduct of their (teachers’) conference, in any case why the candidate himself? Why not a civil servant.

(b) for medical personnel during campaign period just before the election was all aimed at getting votes.

I think also these actions were intended for nothing other than catching votes. The same reasoning applies to the reduction of graduated tax and the abolition of health cost sharing. Ugandans have been paying graduated tax for a long time. Health cost sharing has been in operation for some years. The timing of implementing or abolishing some of these things couldn’t have come at a time so convenient to the first respondent as the incumbent president.

Of course counsel for the first respondent has argued that these decisions and the actions as taken were part of government programmes and they were done or decided upon in the course of government work. I cannot agree. I share the views expressed in the Kabourou case (supra) that the actions and decisions taken during the prime of presidential election campaign were out of regular and ordinary Government work. They deliberately targeted voters; It was intended to show to voters that the 1st Respondent was a performer. These decisions weighed heavily in favour of the first respondent and quite unfavourably against the Petitioner. Bearing in mind the virtues of our constitution to the effect that all people of Uganda shall have access to leadership positions at all levels, subject to the constitution (see National objective [I (ii)], it is wrong and improper for any incumbent in a political office to use incumbency unfairly and to the disadvantage of competitors. It is in the interest of the public good that an incumbent holder of any office should not be allowed the temptation to misuse his power for his own interest.
It has been argued that the number of votes gained through these actions cannot be counted nor can their effect on the campaign be ascertained. I say clearly they must be substantial. The whole thing was wholly unfair and I think that this affected the election in a substantial manner.
In our decision delivered on 21/4/2001, we answered the first issue and the second issues in the affirmative. I have given my reason why I concurred in answering the first and second issues in the affirmative. In my reasoning on the first issue I have showed that more sections and not only S.25 and 28 of PEA were breached.