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

Effect of intimidation:

Intimidation in the electoral process may, as I have indicated manifest in diverse forms, from acts of violence and harassment, to invasion of secrecy of voting. It can affect the result in two ways. In one way, it may prevent fair competition between or among the contesting candidates. Secondly it may cause voters not to vote according to their free will, either by compelling them not to vote or to vote for a candidate they do not freely choose. The extent, to which fair competition is prevented by intimidation, can be proved by direct evidence. Similarly proof of the extent to which voters are prevented from voting because of intimidation, can be by direct evidence. However the Court cannot demand, and does not expect, proof of the effect of intimidation as would require a voter to disclose how, or for whom, he or she voted, as that would be a violation of the principle of secret ballot. Learned counsel for the Petitioner contended that in those circumstances, it is not possible to quantify the effect of intimidation in terms of figures and numbers of voters or votes. I agreed with that contention in as much as there is bound to be invisible effect of intimidation which is not seen or easily perceived. That, however, would not be reason for a court to readily conclude that any amount of intimidation affected the result. Nor, conversely, should it be ground for the court to lightly dismiss evidence of intimidation because its effect on the final result is not established in figures and numbers. Ultimately, what the court must determine judicially is whether in view of the proved intimidation, the election result is a consequence of intimidation, or whether despite the intimidation the result is a choice made freely by the majority of the voters. Needless to say therefore, that proof of the level and extent of the intimidation is very material for that determination. On the one hand the intimidation may be so grave and extended to such large proportion of the electorate that it becomes compelling or irresistible to infer that it affected the result. On the other hand, the intimidation may have been such as would not compel an average voter to act against his or her will, or may have been confined to a relatively small proportion of the electorate. In such eventuality the court would not infer that the intimidation affected the result, except where the contest was so close that the court is led to the conclusion that this balance in the context was swung or tilted by the intimidation.

This was very clearly pointed out by Bramwell B. in the North Durhan Case 2 O’M & H. 152 at p.156 where after reference to intimidation perpetrated by a candidate or his agent he went on to say:-

“…….there is another intimidation that has been called a common law intimidation, and it applies to a case where the intimidation is of such a character, so general and extensive in its operation that it cannot be said that the polling was a fair representation of the opinion of the Constituency. If the intimidation was local or partial, for instance, if in this case it had been limited to one district as Hetton is, I have no doubt that in that case it would have been wrong to have set aside this election, because one could have seen to demonstration that the result could not possibly have been brought about by intimidation, and that the result would not have been different if it had not existed. I do not mean the result of the polling in that particular district, but the general result of the majority for the Respondents. But where it is of such a general character that the result might have been affected in my judgment it is no part of the duty of Judge to enter into a kind of scrutiny to see whether possibly, or probably even, or as a matter of conclusion upon the evidence if that intimidation had not existed, the result would have been different.”

And later he observed:

“….I think if it were otherwise, and if one were told that partial intimidation would avoid an election, although it were certain that it had affected the result of the election, the consequence would be that a few mischievous persons might upset every election-”

I respectively agree but with one necessary qualification in view of the standard proof required under S.58 (6) of the Act. The Court must be satisfied as matter of conclusion upon the evidence that the intimidation did affect the result in a substantial manner.

In this petition, as I have already indicated, intimidation was proved to my satisfaction to have occurred in a few areas. There was however scanty direct evidence on the effect the intimidation had on the voting. Only a few deponents averred that they did not vote, either because they were intimidated or because they were physically prevented as they were unlawfully detained. The evidence of intimidation in Rukungiri, however, was of such gravity and so generalised that I concluded it must have had effect on the voting there. It was not directed at the Petitioner and his agents alone, but it also reached out to the supporters and other voters who turned up to meet the Petitioner or to attend his rally, and the rallies addressed by his campaign agents, and were violently dispersed by soldiers. The violence and harassment led to personal injuries and deprivation of liberty of the victims and must have caused apprehension and fear of the same by those who witnessed the occurrences as well as the close neighbours who heard of it. As late as just over a week prior to polling day, a person was shot dead in a violence that erupted after a rally addressed by the Petitioner in Rukungiri Town. On polling day the Petitioner’s polling agents were openly harassed out of some polling stations they were supposed to oversee.

In Kamwenge District intimidation was more individualised. Apart from the incident when the Petitioner went to hold a rally in Kamwenge Town, for the rest of the campaign period harassment was against the Petitioner’s agents and known supporters only. Some suffered physical assault, unlawful detention and damage to property while others were subjected to threats.

The evidence adduced showed that on polling day there were two forms of intimidation generally. One was the harassment of some of the Petitioner’s polling agents. Significantly apart from that this was no evidence of physical intimidation directed at voters on polling day. The other form of intimidation on polling day was the interference with the right of the voter to vote in secret. The latter form of intimidation was manifested not only in the two districts but also in few other places, particularly in the special polling stations for soldiers.