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

Finally he appealed and requested the President as Commander —in- Chief to instruct armed personnel not to do anything that would be interpreted as interference in the electoral process.

For instance, in his affidavit he stated that on 3/3/200 1 when the petitioner held rallies in Rukungiri and Kanungu Districts, he found his supporters striken by fear, because of intimidation and harassment. Finally he held a rally in Rukungiri Township. After the rally, when he was preparing to leave for Mbarara/Kampala he heard gunshots in the town and then saw people running. He left for Mbarara. He soon learnt that Beronda one of his supporters was killed and 1 4 people were injured.

The evidence of interference with his electioneering activities is brought out clearly in the affidavit of Hon. Major (Rtd) Okwir when he came for consultative meeting in Rukungiri and Kanungu. He stated that every where he went to, PPU under the Commander of Capt. Ndahura dispersed his meeting. At Rugyenjo, they threatened to shoot if he did not leave and go. His arrest at Entebbe International Airport when he was supposed to travel to Adjumani with the petitioner to hold rallies was evidence of interferance. The affidavits of Mpwabwooba Callist, Kakuru Sam, Harsey Kasamunyu, Byomuhangi Kaguta, Richard Bashaija Henry Muhwezi support and confirm interference with petitioner’s electioneering activities by PPU soldiers especially in Rukungiri and Kanungu and Kamwenge.

The affidavits of Captain Ndahura Mr. Mugisha Muhwezi and Hon. Capt. Charles Byaruhanga though denying interference with petitioner’s electioneering activities, I would not be surprised by their denial because Capt. Ndahura would obviously not admit that he had failed to control his junior officers under him. Muhwezi, Mugisha, Deputy RDC of Rukungiri would not admit that he interfered with the electoral law. Hon. Capt Charles Byaruhanga conceded that he met Henry Muhwezi and persuaded him to join 1st respondent’s camp, but stated that he never used force. And although the affidavit of the Army Commander shows that the motive of creating a Joint Security Task Force was to oversee, handle and ensure peace during the electoral process and although previously such a Joint Security Task Force had been resorted to whenever need arose, I must state that in the instant case there was serious controversy which raised question of interference with freedom and fairness in the Elections of the President. It is to be noted that in the 2001 Presidential Elections, the 1^st respondent had resisted that the petitioner could not stand against him on the movement ticket. Later, the petitioner was allowed to stand as a Presidential Candidate against the 1St respondent. Therefore the situations in the quoted previous cases were different from the instant case.

However, the affidavits of Mubangizi Dennis, Bashaija Richard, Frank Byaruhanga, Bernard Masiko, Hon. Maj (Rtd) Okwir shows that PPU soldiers arrested, tortured and beat up petitioner’s supporters. Some of the people arrested were detained until after close of the election. In fact, in the course of the affidavit, Capt Ndahura conceded he released his vehicle to be used by police when they went to Rugyeyo to disperse Maj (Rtd) Okwir’s illegal rally. He denied his soldiers being responsible for Beronda’s death and injuring 14 others in Rukungiri.

reject his denial of what the soldiers were stated to have done. He did so to save his face and his soldiers.

Clearly, from the affidavits of both sides, I am satisfied that the petitioner has proved to the satisfaction of the court that PPU soldiers, Deputy RDC of Rukungiri and GISO from Rukungiri and Kanungu interfered with petitioner’s electioneering activities. Although there is no evidence that these PPU, GISO and Deputy RDC were agents of 1^st respondent, the fact is petitioner’s electioneering activities were interfered with by PPU soldiers and GISO in Rukungiri and Kanungu.

However, I must state that there was not much evidence led to implicate Kakooza Mutale’s Kalangala Action Plan in the interference with petitioner’s electioneering activities.

Otherwise, generally speaking the petitioner’s electioneering activities were not free and fair especially in Rukungiri, Kanungu and Kamwenge.

10. I come to the complaint concerning the abduction of Maj (Rtd) Okwir at Entebbe International Airport and intimidation of petitioner’s supporters. The arrest of Maj. (Rtd) Okwir Rwaboni at Entebbe International Airport when he was travelling with the petitioner to Adjumani for election rally was the type of evidence which went towards proving harassment and intimidation of petitioner” supporters. The arrest was openly done and was covered by television camera men. After his arrest what happened to him depends on which affidavit can be believed. Lt. Col. Noble Mayombo CMI stated in his affidavit that they had received intelligence reports that some supporters of the petitioner had planned to kill him in Adjumani.

The petitioner and Maj (Rtd) Okwir rubbished the story. However, what is clear is that Maj. (Rtd) Okwir affidavit herein is that he never travelled to Adjumani.

The evidence of intimidation of petitioner’s supporters and harassment came out clearly in the affidavits herein of Stanley Bugando, Arinaitwe Wilkens, Bernard Matsiko, Henry Muhwezi and Mpwabwooba Callist and Harsey Kasamunyu, which are part of this judgment.

There is clear evidence that a part from arresting these witnesses, in Rukungiri, Kanungu and Kamwenge, PPU soldiers and GISO went around telling people if they turned out to attend Okwir’s rally in Kihihi, they would be dealt with.

Throughout the remaining two weeks to the election day some people went around directing people to turn up and vote for Museveni and that if they did not, their homes would be burnt. These arrests and intimidations culminated in what happened on 3/3/2001 in Rukungiri when Beronda was killed and 14 others injured at the end of petitioner’s rally.

Although there was no evidence by the petitioner to prove that those who carried out harassment and intimidation of petitioner’s supporters were 1st respondent’s duly appointed agent and that they did so with his knowledge and consent or approval, the fact still remains that petitioner and his supporters were harassed and intimidated. Henry Muhwezi was told by Hon. Capt Charles Byaruhanga since he had refused to support candidate Museveni, he was going to treat him (Henry Muhwezi) like a rebel. He was summoned and then handed to his body guard and driver to take him to Bihanga barracks. As they took him, they beat him thoroughly and abandoned him on the way at night.

Although Capt. Ndahura, Hon. Capt. Byaruhanga and Mugisha Muhwezi, Deputy RDC of Rukungiri denied harassment and intimidation of petitioner and his supporters, the evidence in support of the complaint is so overwhelming that I have accepted it as truthful. The type of harassment and intimidation exerted on the petitioner and his supporters was infringement of the principle that presidential election had to be conducted under condition of freedom and fairness. However, since there was no evidence that the 1st respondent had knowledge and consent or approval of what PPU soldiers, were doing I doubt if 1st respondent would be guilty.

Therefore all in all, I am satisfied that the petitioner’s electioneering activities were interfered with, which offended Sections 74(b) and 75 of the Act.

11. Another complaint was that there was voting on sham and special polling stations created on 11th March 2001 without voters’ cards.

Mr. Mukasa David Bulonge’s affidavit paragraphs 2, 3, 28 and 29 herein fully explains what the 2’ respondent did on 11^th March 2001. The new polling stations had no corresponding voter’s rolls. This means that if there were no voter’s rolls, then voters did not have voters’ cards. It would appear that anyone who knew of the existence of those new polling stations would go and vote. These could be the polling stations Rwanga Pastori Kwaya of Nebbi is referring to in his affidavit, James Oluka of Soroti, Central ward is talking about in his affidavit, Ongee Marino of Kitgum Town Central ward is referring to in his affidavit and Tumusime Enock of Ntungamo is referring to in his affidavit, when he stated voting was going on at 11:00 pm at Catholic Social Centre polling station which was ungazetted.

The affidavit of Nshemereza Topher, the Assistant RDC of Ntungamo does not

deny the existence of that polling station. He merely stated he never left his
office on that day. Akena Kennedy, presiding officer of MaIm Obondro Home 11
polling station, Kitgum, averred that he knew that MaIm Obondro Home was a
polling station before 12th March 2001.

I must state that I cannot excuse the 2^nd respondent for the creation of 1176 polling stations on March 2001 when there were no corresponding voter’s rolls. How did 2^nd respondent expect people to vote from these new polling stations when there were no corresponding voters rolls in those polling stations. This meant that the electoral commission expected people to go and vote without voters’ cards with no voters Rolls at polling stations. Clearly this meant the voting in those polling stations offended Section 29(4).

12. The other complaint was that contrary to section 25 of the Electoral Commission Act, the 2 respondent failed to display copies of the voters Roll to each parish or ward in a public place within each parish or ward for a period of not less than 21 days and as a result, the petitioner and his agents and supporters were denied sufficient time to scrutinize and clean the voters’ Roll and exercise their rights under the law.

The petitioner’s affidavit in support was

“That the 2nd respondent failed to display the voters Register and Rolls for each Parish or Ward in a public place within each parish or ward for period of not less that 21 days stipulated by law and as a result my agents, supporters and myself were denied sufficient time to scrutinize and clean the voters Rolls and exercise our rights under the law.”

The 2^nd respondent’s reply to the complaint was:-