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

CONCLUSIONS ON 3RD ISSUE

Let me conclude on the third issue. Although the idea of affecting the results of an election has revolved around the number of votes gained or lost by one candidate or the other, a study of the decisions of Mbowe, Kabourou and Morgan cases shows that other factors can and do affect election result. I think that it is possible in an election which is conducted in accordance with the election law and under conditions of freedom and fairness for the number of votes gained or lost by one or other of the candidates to be the main or one of the main considerations by a Court in deciding whether the number of votes gained or lost affected the election result. If so to what extent? But in a society, such as ours, in Uganda, where the majority of voters are simple and less enlightened about the value of their electoral rights and voting and where the registration exercise is deficient. In such a society where not only the threat to use force against dissenters is apparent and real, but also where actual force is used to suppress dissenters, both high and low; and where that force is used to intimidate or coerce the people and voters who support a particular candidate; where wide spread intimidation, assault, harassment, arrest and detention of dissenters are carried out, definitely, in my view all these circumstances and factors cumulatively go to the very foundation of a free and fair election. The factors constitute circumstances which must surely affect the result of an election not only in an ordinary manner but also, like in this petition where these factors have been proved to be present during campaign and during election of the President, in a substantial manner.

In this petition there is evidence that some high ranking officers of state are among the prominent perpetrators of intimidation, assault, violence, harassment and arrest of both the lowly and the high, who are perceived to be treacherous or dissenters. Reviewing the evidence of brutality particularly in the Districts of Ntungamo, Rukungiri, Kanungu, Kamwenge and Mbarara, the picture that emerges is that of winning the Presidential election after violation of the Constitution and the PEA provisions and principles by threat to use or by actual use of violence instead of winning by persuading and gaining the free will of the people.

We have seen that in Mbowe case there were allegations in the petition of violence and of threat to deport voters who could not vote for the Petitioner or who were not canvassing for the Petitioner. The evidence for the Petitioner did not establish the threats and the canvassing. But Georges CJ in his judgment at page 243 G said:

‘We now come to allegations (a) and (d) — — each of them would constitute an illegal practice contrary to the National Assembly (Elections) (Amendment) Act, 1965, S.99. In particular as far as (a) is concerned, had it been proved to our satisfaction it would have gone so deeply into the root of the whole election that it would be difficult, however large the majority might have been, to say that it did not affect the result of the election ‘

This statement answers the contentions of counsel for the two respondents that because candidate Kiiza Besigye failed to prove the number of votes he lost as a result of the various complaints made in the petition; therefore he must lose the petition.

There is one remarkable feature in this petition. That is that in areas where there was extreme brutality against the Petitioner’s supporters, or representatives and agents, the Petitioner lost massively whereas in areas where there was no or less brutality, the Petitioner won. That to me is one of the obvious substantial measures of the effect on the election results, I think.

In conclusion on issue No.3, I find and hold that non-compliance with the provisions and principles of the Presidential Elections Act, 2000 affected the result of the election in a substantial manner.