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

On the question regarding campaign, Mr. Kabatsi submitted that the petitioner merely stated ‘the campaign was tough hectic, we had little time to move throughout the Country”


Mr. Kabatsi submitted that the petitioner never complained of harassment and about problem of freedom and fairness.

He submitted that the affidavits of Major General Jeje Odongo, Mr. John Kisembo Inspector General of Police showed everything had gone well. The affidavit of Francis Bwengye, one of the presidential candidates showed election was free and fair.

He concluded that the petitioner had failed to discharge the burden on him to the satisfaction of the court that the election was not free and fair. He contended that the standard of proof was higher on the petitioner in election petition than in ordinary civil suits. In the case of Presidential Election it must even be very high near that of proving beyond reasonable doubt. He therefore concluded that the answer to issue number 2 must be in the negative.

On the other hand, Mr. Mbabazi, one of the petitioner’s Counsel submitted that in order to determine the 2nd issue, we have to look at the Constitution, Presidential Elections Act and Electoral Commission Act and then determine whether the Presidential Elections were conducted within the principles. On the aspect of fairness, he submitted we cannot talk of fairness when one candidate goes to a polling station and finds another candidate already having 200 votes in the ballot box! On fairness still, he submitted that we must talk of voter’s registers, display of voter’s register, voters’ casting ballot papers into ballot boxes and on polling stations. He submitted that election cannot be said to have been free and fair when the 1^st respondent used PPU soldiers to harass petitioner’s supporters during the election campaign and on the polling day. He invited us to consider the totality of all these principles which are necessary for a valid election spelt out by section 58(1) and Article 104 of the Constitution.

He further submitted that there was no freedom during electioneering activities of the petitioner, considering the evidence in the affidavits sworn in support of the petition. There was evidence of intimidation and violence of petitioner’s supporters in Rukungiri and Kanungu by the ‘l respondent’s supporters and PPU. On one occasion one person was killed and 1 4 people were injured at the rally of the petitioner in the town of Rukungiri. He then referred to Mr. Azizi Kasujja, the Electoral Commission Chairman’s letter to the President stating that the PPU soldiers’ involvement in electoral process was causing concern. The letter was appealing to the 1 s respondent to withdraw the army from the electoral process. He submitted that you cannot talk of freedom when some of the Petitioner’s supporters were arrested and kept in prisons until after the close of voting.

On transparency he submitted that we cannot talk of transparency in the Presidential Elections when there were sham polling stations, where the petitioner had nobody to safeguard his interest. You cannot talk of transparency when petitioner’s polling agents were chased away from the polling stations after which polling, counting and tallying of votes continued all in the absence of the petitioner’s polling agents. You cannot talk of universal adult suffrage, whereby every one of and above 1 8 years of age has a right to vote under the Constitution for a candidate of his or her own choice when ballot papers on some polling stations were pre-ticked in favour of one candidate infront of the presiding officer for all the voters regardless of voters’ choice. Mr. James Musinguzi stated in his affidavit that he found on most of the polling stations in Kanungu which he visited on the polling day, ballot papers were being pre-ticked in favour of 1st respondent. When he came to cast his vote at his polling station, Ntungamo, all the ballot papers were already pre-ticked in favour of the 1st respondent. He stated he did not vote since it was meaningless to do so by casting a ballot paper pre-ticked for him not in favour of his own choice.

I wish to emphasize that the principles under which the Presidential Elections must be conducted are as laid down in the Electoral Commission Act, 1 997. These included:

“to take measures for ensuring that the entire electoral process is conducted under conditions of freedom and fairness as spelt out by Section 12(e) of the Electoral Commission Act.”