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

The Petitioner, Col (Rtd) Dr. Besigye Kiiza, was one of the 6 candidates who on 12th March 2001 contested election to the office of President of the Republic of Uganda. On 141h March 2001 the Electoral Commission, hereinafter referred to as the 2 Respondent, declared Museveni Yoweri Kaguta, hereinafter referred to as the 1 Respondent, as President, having polled more than 50% of the total votes. The Petitioner petitioned the Supreme Court of Uganda pursuant to Provisions of Article 104 of the Constitution and Section 58 of the Presidential Elections Act 2000, seeking an order that Museveni Yoweri Kaguta, declared elected as President was not validly elected and that the said election be annulled.

The Petition was lodged in the Supreme Court Registry on 23/3/2001. Hearing of the Petition commenced on 27th March 2001. By virtue of Article 104 of the Constitution and section 58 of the Presidential Elections Act, the Supreme Court had to inquire into and determine the petition expeditiously and declare its findings not later than 30 days from the date the petition was filed.

We perused the complaints raised in the petition, the affidavits sworn in support of the petition on one hand and the answers to the petition by respondents and affidavits sworn in support of respondents’ answers on the other hand. We thereafter heard submissions of Counsel from each side. On 2ls April 2001, we gave our judgment, dismissing the petition with order that each party bears its own costs. We reserved the reasons for our judgment to be given on notice.

I now proceed to give reasons why I considered and held that the petition should be dismissed.

In the Petition, the Petitioner made several complaints especially against the 2’ respondent and its agents/and or servants for the acts and or omissions which he contended amounted to non-compliance with the provisions of the Presidential Elections Act, 2000, and the Electoral Commission Act, 1 997 as well as to illegal practice and offences under the Acts.

Among the major complaints he made against the 2^nd respondent are:

(1) That contrary to Section 28 of the Presidential Elections Act, 2000 the 2’ respondent failed to publish a full list of all polling stations in each constituency 14 days before nomination.

(a) Creating new polling stations on the eve of polling day as a result of which the petitioner could not appoint polling agents for those new polling stations.

(2) That contrary to Section 32(5) of the Act the 2nd respondent failed to supply to the petitioner, official copy of voters register for use by his agents on polling stations after he had requested for copies on payment.

(3) Polling commencing before 7:00 am C/s 29(2)(5) of the Act. That the 2 respondent allowed commencement of voting before the official polling time of 7:00 am and allowed people to vote beyond the polling time by people who were neither present at polling station nor in the line of voters at the official hour of closing.

(4) Stuffing of ballot boxes with ballot papers C/s 30(7) of the Act. It was alleged that the 2nd respondent’s agents/servants allowed voting with ballot boxes already stuffed with ballot papers and without first opening the said boxes in full view of all present to ensure that they were devoid of any contents.

(5) Multiple voting that contrary to Section 31 of the Act the 2 respondent’s servant/agents with full knowledge that some people had already voted allowed the same people to vote more than once.

(6) That contrary to Section 32 of the Act the 2 respondent’s servants or/ and agents failed to prevent petitioner’s agents from being chased tram the polling stations.

(7) That contrary to Section 29(4)(34) of the Act the 2’ respondent and its servants/agents allowed people with no valid voter’s cards to vote.

(8) That contrary to Section 42 of the Act, the 2^nd respondent and its agents or/servants allowed people with deadly weapons to wit: soldiers and para military personnels at polling stations - presence of which intimidated many voters to vote for the soldiers’ boss and candidate Museveni while many of those who disliked to be forced to vote that candidate stayed away and refrained from voting.

(9) That contrary to Section 25 of the Act, the 2nd respondent failed to insure that the entire electoral process was conducted under conditions of freedom and fairness — petitioner and his agents/supporters were interfered with by military personnels.

(10) That contrary to Section 74(b) of the Act, the petitioner’s agents or/and supporters were abducted/arrested by army who prevailed upon them to vote for the 1st respondent or to refrain from voting.

(11) That there was voting on sham and special polling stations created on 11th March 2001 without voters cards.

(12) That contrary to Section 25 of the Electoral Commissions Act 1 997, the 2nd respondent failed to display voters Registers/Rolls to each parish or ward in a public place for a period of not less than 21 days.

(13) That contrary to Section 47 of the Act, after chasing away petitioners’ polling agents, the 2^nd respondent’s agents or/and servants allowed the voting, counting and tallying of votes in the forced absence of the petitioner’s agents whose duty was to safeguard the petitioner’s interests.

(14) That contrary to Section 74(b) of the Act, petitioner’s supporters and agents were arrested and detained and released after elections had ended, thus denying them to exercise their constitutional rights.

(15) That the 2nd respondent’s agents or/and servants pre-ticked ballot papers in favour of 1^st respondent and then handed them to the voters to cast them without allowing voters themselves to make their own choice.

(16) That there was cheating of votes in a significant number of polling station.

(17) That there was intimidation and harassment of petitioner’s agents and supporters on the polling day by 1 s respondent’s supporters, agents, GISO, LDU, UPDF soldiers.

That in the result, the above non-compliance with the law by the 2^nd respondent affected the result of the presidential election in a substantial manner, because:

(i) The number of actual voters on the voters roll/registers remained unknown and some people were disenfranchised and the number of votes cast at certain polling stations exceeded the number of registered voters.

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

(iii) The electoral process regarding the voters’ registers 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, his agents and supporters to scrutinise the voter’s roll/register and take corrective measures regarding the same.

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

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

The complaint against the 1t respondent was that he personally or by his agents, with his knowledge and consent or approval, committed illegal practices and offence. These included that he publicly and maliciously made a false statement that the Petitioner was a victim of AIDS without any reasonable ground to believe that it was true; giving gifts to voters with intention of inducing them to vote for him, appointing partisan senior military officers and partisan section of the Army to take charge of security during the elections, organising groups under the Presidential Protection Unit (PPU) and Major Kakooza Mutale with his Kalangala Action Plan, to use violence against those not supporting the l respondent and threatening to cause death to the Petitioner.

Therefore the Petitioner prayed that:

1. 
   This court declares that Museveni Yoweri Kaguta was not validly elected as President.
   
   
2. 
   That the election be annulled, and prayed for costs of this petition.
   

The petition was accompanied by affidavit sworn by the Petitioner. There was objection as to its admissibility on the ground that it offended Order 1 7 r3. The affidavit was admitted and reason is given in course of this judgment. During the respondent’s submission, there were objections raised as to admissibility of several affidavits sworn before different commissioners as will be brought out in the course of this judgment.

The respondents through their Counsel have objected to the admissibility of many affidavits. I think it is proper that I dispose of this matter of admissibility of many affidavits sworn by various witnesses in support of the petition. The objection was raised by Dr. Byamugisha lead Counsel for the first respondent.

The Solicitor-General, Mr. Peter Kabatsi for the 2nd respondent supported the objection argued by Mr. Nkurunziza. Mr. Nkurunziza Didas, one of the Junior Counsel for the 1 s respondent led the attack on the admissibility of the affidavits filed in support of the petition. For purpose of the objection, he classified the affidavits in three categories.

First category is what he called inadmissible affidavits. He stated that these should have been objected to earlier but because of the need to expedite the hearing of the petition, objection was postponed to this stage of the main submissions by his side.

Second, those affidavits specifically referred to by Counsel for the Petitioner in
his address to the court.

Third, those affidavits, which were filed but were not referred to specifically by

Counsel for the petitioner in his address to court.

Inadmissible affidavits — Mr. Nkurunziza submitted that since the Petitioner was represented by Counsel, the Petitioner ought to ensure that affidavits filed in support of the petition are not in breach of the law. He contended that there are affidavits which breach the law and that they should be struck out. He cited Section 7(2)(3) of the Statutory Declarations Act, 2000. He submitted that the affidavit of Major (RTD) Rwaboni Okwiri, which was sworn outside Uganda, to wit in the United Kingdom, before a Solicitor, is inadmissible for non-registration as required by s.7(3) of Statutory Declarations Act, 2000 and therefore it should be struck out.

For the petitioner Mr. Balikudembe submitted that Major Rwaboni Okwiri’s affidavit was sworn by virtue of S.3 of the Statutory Declarations Act, 2000 and that the affidavit does not require restriction before it can be used in a court in Uganda.

The instrument in question and which appears significant in these proceedings is headed AFFIDAVIT immediately after the description of the parties. It prefaces the body of its contents in the following words:

“ I am a Ugandan citizen of the above mentioned particulars and do hereby solemnly and sincerely declare the following:”