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

I wish to state that under sub-section(6)(c) of section 58 of the Presidential Elections Act, 2000, the election of a candidate as President shall only be annulled on any of the following grounds if proved to the satisfaction of the court.


“(c) That an illegal practice or any other offence under this Act was committed in connection with the election by the candidate personally or with his or her knowledge and consent or approval.”
Clearly, from the above provision, if an election offence or illegal practice, as defined by Section 63 of the Act, is proved to the satisfaction of the court, there is no additional requirement of proof to the satisfaction of the court that the election offence or illegal practice affected the result of the election in a substantial manner like in the case of non-compliance with the provisions and principles of the Act under Section 58(6)(a) of the Act.

If the petitioner proves that the 1^st respondent personally or with his knowledge and consent or approval committed election offence or illegal practice to the satisfaction of the court, the election of the candidate shall be annulled.

In conclusion therefore, although there was evidence of non-compliance with the law almost on each of the complaints raised by the petitioner, I must state that there was no evidence led to prove to the satisfaction of the court that that non-compliance with the law affected the result of the election in a substantial manner.

In the result the issue of whether non-compliance with the provision of the Act, affected the result of the election in a substantial manner must be answered in the negative.

The next issue is whether non-compliance with the principles laid down in the Act affected the elections result in a substantial manner. We have held herein that taking the whole country as a constituency, the Presidential Election was conducted partially in accordance with the principles laid down in the said Act, but in some areas such as Rukungiri, Kanungu and Kamwenge the principle of free and fair election was compromised and secondly in the special polling stations for soldiers and those announced on 11/3/2001, the principle of transparency was not applied and thirdly there was evidence of cheating in a significant number of polling stations.

The question we have to determine is whether the non-compliance with the principles laid down in the Act affected the result of the election in a substantial manner.

We have held that the said election was conducted partially in accordance with the principle laid down in the said Act, this is mainly because on every polling station, there were UPDF soldiers. Whenever petitioner’s polling agents complained of any malpractice on the polling station, soldiers threatened to chase them away and in some cases, the polling agents were chased from the polling stations; which led to the voting, counting and tallying of votes continuing in the absence of the petitioner’s polling agents.

Mr. Walubiri, Counsel for the petitioner submitted and invited us to look at the entire electoral process, starting from nomination, campaigns registration of voters, voting, counting and tallying of votes and announcement of election results. After all this has been done, he then invited us to assess the entire electoral process and look at various areas where there was non-compliance with the principles laid down in the Act and find out whether this went to the root of the principle of free and fair election.

On the question of whether non-compliance with the principles laid in the Act affected the result of the election in a substantial manner, he invited us to give a value judgment i.e. a qualitative judgment rather than giving a quantitative judgment, based on how many numbers of votes were affected by a specific non-compliance with the principle. He contended that in some cases, it was not possible to quantify the effect of terrorizing voters and people in Rukungiri and Kanungu had on the rest of the population in the country. He argued that the terror on the voters transcended into the minds of the people so that it was not possible to quantify the effect of this terror had on others. Likewise, he submitted that the abduction of Hon. Okwir at Entebbe International Airport and the effect it had on the rest of those who viewed that TV picture of his arrest could not be quantified.

Mr. Kabatsi, the Solicitor-General, who appeared for the 2^nd respondent on the other hand submitted that the election was conducted under conditions of freedom and fairness. If there were instances or incidents of breaches, these were trivial and never affected election result in a substantial manner. He submitted that the OAU observers’ report said the elections was conducted under conditions of freedom and fairness. The Nigerian observers stated that election went on well. The Tanzanian observers stated that electoral process was transparent. Affidavits from Returning Officers from various Districts indicated that election went on normally. Petitioner’s interview with Bob Mutebi shows that he never complained of any breaches of freedom and fairness on the polling day at the polling station where he voted in Rukungiri.

Mr. Francis Bwengye, one of the Presidential Candidates, stated in his affidavit that election was free and fair. The affidavits of Major General Jeje Odongo and Mr John Kisembo, Inspector General of Police stated The election was free and fair.

Counsel for l respondent adopted Mr. Kabatsi’s submission.

I wish to state that we heard the submission from each side and perused affidavits in support of each side. However, with due respect to Mr. Walubiri’s submission, he addressed us as if he was a witness, because we did not have evidence from outside Rukungiri, Kanungu and Kamwenge stating that the terror unleashed on petitioner’s supporters in those areas affected them. We did not get evidence to show that the abduction of Hon. Okwir at Entebbe International Airport and killing of Beronda and injuring of 1 4 others in Rukungiri transcended into the minds of the entire population resulting into those who supported him before to withdraw their support. I must state that there was no such evidence. In fact, there was no evidence before us to show that the entire population was aware of the harassment of petitioner’s supporters in Rukungiri, Kanungu and Kamwenge and the killing of Beronda and injuring of 14 others in Rukungiri township on 3/32001.

It was mere speculation that because those events happened in Rukungiri, Kanungu and at Entebbe International Airport and therefore every person in the country must have known about them.

However, what has been established is that considering Uganda as a constituency, the Presidential Elections was conducted partially in accordance with the principles laid down in the Act. We have further found that in some areas such as Rukungiri, Kanungu the principle of free and fair election was compromised whilst in some special polling stations for soldiers and especially those announced on 11th March, 2001 the principle of transparency was not applied and lastly, there were a significant number of polling stations where there was cheating.

On the issue of the Presidential Elections 2001 having been conducted partially in accordance with the principles laid down in the Act, I wish to point out that from the complaints which were raised and the evidence brought in support and in rebuttal, it is my considered view that taking Uganda as a single constituency for the election of the President what comes out prominently is that in a significant number of districts there is complaint of non-compliance with the principles laid down in the Act. It is noteworthy that major complaints of noncompliance with freedom and fairness of election, absence of transparency and cheating came out prominently in Rukungiri, Kanungu, Kamwenge, Kabale, Mbale and Ntungamo. They were not raised in Kapchorwa, Kotido, Moroto, Apac, Yumbe, Moyo, Mpigi, Adjumani, Masaka, Bundibugyo, Kalangala, Masindi and Hoima. They were raised to a limited extent in Bushenyi, Mbarar, Kabarole, Jinja, Gulu, Kitgum, Soroti, Busia, Katakwi, Bugiri, Iganga and Pallisa.

That is why in conclusion I can state the Presidential Election was conducted partially in accordance with the principle laid down in the Act.

Furthermore, we have already gone through the affidavits of Hon. Okwir, John
Hassy Kasamunyu, Masiko, Kakuru Sam, James Musinguzi, Mubangizi Denis,
Henry Muhwezi, Mpwabwooba Callist and Arinaitwe Wilkens and Byomuhangi
Kaguta where PPU soldiers and UPDF soldiers interfered with electioneering
activities of the petitioners.

Obviously where soldiers got involved forcefully, they prevented petitioner’s rallies from taking place. Petitioner stated that when he went for his rally at Kamwenge, he found it impossible to go on with the rally when soldiers and l respondent’s supporters organised theirs on same venue. On 3rd of March 2001 when a joint force of police and UPDF got involved in Rukungiri township Beronda was killed and 1 4 other people were injured.

Yes, there was evidence of violence upon supporters of the petitioner on the eve of election and on the polling day in Rukungiri, Kanungu and Kabale, but problem is that you cannot tell from the evidence the quantum and overall effect this violence and intimidation had on the election result. The petitioner never called evidence to show that all these affected election result in a substantial manner.

On the submission that PPU soldiers’ involvement in electioneering campaign against the petitioner was infringement of principle of fairness in an election which required that a President should not use Government employees during an election campaign in a manner which was not necessary for his personal security and that the use of these soldiers was an abuse of principles of fairness in the presidential election on the authority of AG & Others v Kabourou (1995) (supra) but with respect, I think in this case the PPU soldiers in Rukungiri were there alone.

Clearly, there was no evidence that PPU, GISO and UPDF soldiers were appointed by respondent as his agents. There was no evidence that he used them or approved their actions from which agency could be inferred. It appears that PPU soldiers got involved in local politics when they were left alone in Rukungiri and Kanungu waiting for the return of the l respondent for his rally. In my view, since election campaign for 1 respondent was not part of their work, if they went out of their way and harassed and intimidated petitioner’s supporters, the 1^st respondent would not be liable on the principle of principal agency relationship.

However, this does not mean that their conduct in these areas did not offend the principle which required elections to be free and fair. They interfered with petitioner’s free and fair campaigns. There was, however, no evidence led to prove that non-compliance with free and fair election in Rukungiri, Kanungu and Kamwenge affected the result of the election in the entire country in a substantial manner.

Further, there was evidence of arresting petitioner’s agents and supporters on the eve of election and on the election day itself. These were kept in custody till after voting. The affidavits of Stanley Bugando is clear. The affidavit of Arinaitwe Wilkens Byomuhangi Kaguta and Dan Okello corroborate these arrests and detention during the time of voting. The affidavit of Byomuhangi shows that whilst he was there on 12/3/2001 Bukererende and Tukahirwa two of Dr. Besigye’s agents were brought in to join him. These never voted. John Hassy Kasamunyu’s affidavit shows that 9 of Besigye’s agents were detained at Kanungu police station till 1 6/3/2001. For him, he was being hunted and therefore, he never voted.

On the issue of transparency, there was evidence that in a number of polling stations in Rukungiri, Kanungu, Kabale, Mbarara, Sembabule where polling agents for petitioner protested against cheating and multiple voting, the UPDF soldiers on the polling stations chased away petitioner’s polling agents. After being chased voting, counting and tallying of votes continued in the absence of petitioner’s agents. Clearly this was evidence of unfairness and lack of transparency and this was supported by the evidence of Mukasa David Bulonge, where he averred that on March 2001 the 2^nd respondent announced 11 76 polling stations which had no corresponding voters rolls. Undoubtedly, this meant that in these 11 76 polling stations and especially those in military barracks, there were no petitioner’s polling agents. No one knew names of those on the voters registers, if such registers existed and whether these were Uganda citizens, eligible to vote.

The evidence in the affidavits of Dennis Odwik of Ongee Marino, James Oluka from Soroti, Edson Bumeze from Kasese, Alex Otim and Boniface Ruhindi Ngaruye from Mbarara are instances of such polling stations which were created on 1 1th March 2001, just the eve of the polling day. Clearly this offended the principles of fairness and transparency which the Presidential Elections Act 2001 had come up to safeguard against.

However, the petitioner never called evidence to prove or show by how many votes the 1 respondent got over the petitioner through lack of transparency in the electoral process. It was incumbent on the petitioner to prove to the satisfaction of the court that lack of transparency in the election affected the result of the election in a substantial manner. I must state that he tailed to do so.

On cheating during the election, I have already held that there was evidence of cheating in the presidential elections 2001 in a significant number of polling stations. For instance, at Rwenanura polling station in Ruhama Ntungamo district, Kasigazi Noel averred that from the voters register he discovered that people like John Rugaruka, Bazubagira, Kaitita and Tinkasimire who had migrated to Rwanda after the fall of Habyarimana’s government were on voters register and their names were ticked as having voted. Further when he and Kikwekwe asked why Sibomana Amos was allowed to cast a bundle of ballot papers, LC 1 Chairman Kananura George threatened to beat him. During the argument that ensued, Turyakira, a staunch supporter of Museveni was given all the remaining ballot papers by the presiding officer which he ticked and put in the ballot box.
Idd Kiryowa of Lwebitakuli in Mawogola Sembabule averred that he saw Kakuba who had already cast his vote, return with a heap of ballot papers and stuff them in the ballot box. At Kyalajoni 11 polling station A-M, in Kiboga District, Lucia Naggayi found ballot papers stuffed in the ballot box and upon complaint she was chased away from the polling station.

As we have already seen the affidavit of Basajabalaba Jafari from Bushenyi more or less corroborates the kind of stuffing of ballot papers into the ballot boxes.

The affidavit of Bangirana James ASP/CID Bushenyi admitted that Fr. V. Birungi reported a case of possessing election materials as averred by Jafari Basajabalaba.

The affidavit of Frank Bugando from Kihihi corroborates this type of cheating.
The affidavit of Ojok David Livingstone from Mbale also corroborates the type of cheating I referred to.

So clearly the petitioner has proved that there was cheating to which the 2^nd respondent’s election officials willingly acquiesced in and facilitated in significant number of polling stations. In my view, cheating in this case offended the principle of fairness especially when it was done with the collusion of election officials who should have been out to combat it.

However, as I have already pointed out while discussing other complaints, the petitioner never went further to prove that this cheating affected the result of the election in a substantial manner.

Therefore, in my opinion, having made the above finding, I think there is no way we can reverse the apparent will of the people who gave the winning majority of 3,067,565 votes to the 1^st respondent without getting evidence to justify reversal of the winning majority votes. There must be evidence adduced by the petitioner to prove that because of non-compliance with the principle of free and fair election, the 1^st respondent unfairly obtained so many votes, which the petitioner would have got; and that because of lack of transparency, the 1^st respondent unfairly got so many votes, which he ought not to have got. If at the end of all this, it becomes clear that the winning majority of the respondent is reduced to less than what the petitioner got then we can justifiably make a finding in favour of the petitioner. Otherwise, I think, we cannot reverse the apparent will of the people.

In conclusion therefore the petitioner failed to prove to the satisfaction of the court that any non-compliance with the principles of the Act affected the result of the election in a substantial manner.

In the result issue No. 3 is answered in the negative.

I now turn to issue 4 of whether an illegal practice or any other offence under the said Act, was committed, in connection with the said election by the 1st respondent personally or with his knowledge and consent or approval. The petitioner’s 1^st complaint is that the respondent 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 and that this false statement had the effect of promoting the election of candidate Museveni Yoweri Kaguta unfairly in preference to the petitioner alleged to be a victim of AIDS as voters were scared of voting for the petitioner who by necessary implication was destined to fail to carry out the function of the demanding office of the President and to serve out the statutory term.

The petitioner averred in Paragraph 51 of the affidavit in support of the petition as follows:

“That I know that I am not suffering from AIDS, but the first respondent

maliciously made false allegation that I was a victim of AIDS without any reasonable grounds for believing that that was true and this false and malicious promoting the election of the 1st respondent unfairly in preference to me alleged to be a victim of AIDS as voters were scared of voting for me who by necessary implication was destined to fail to carry out the function of the demanding office of President and serve out the statutory term.”

In answer to the complaint in the petition, the 1St respondent had this to say:

“The statement that the ‘petitioner was a victim of AIDS’ was not made by the 1 respondent publicly or maliciously for the purpose of promoting or procuring an election for himself contrary to Section 65 of the Act. However, it is true that a companion of the petitioner, Judith Bitwire, and her child with the petitioner died of AIDS. The 1 respondent has known the petitioner for a long time and has seen his appearance change over time to bear obvious resemblance to other AIDS victims that the respondent had previously observed.”