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

Illegal Practices and Offences:

I now turn to the matters which were pleaded in paragraphs 3(2) (a) to (e) of the petition, as constituting the illegal practices and offences, committed by the 1st Respondent or by others with his knowledge and consent or approval. In summary they were that the 1st Respondent:

(a) made a false statement that the Petitioner was a victim of AIDS, contrary to S.65 of the Act;

(b) gave and offered gifts to induce voters, contrary to S.63 of the Act;

(c) appointed partisan military officers to take charge of security and deployed a partisan section of the army all over the country, contrary to S. 12 (1) (e) and (f) of the Commission Act;

(d) organised groups under PPU and a Senior Presidential Advisor to use force and violence, contrary to S.25 (b) of the Act

(e) threatened the Petitioner with death contrary to S.25(e) of the Act.

I found that the pleadings, under paragraph (c) (d) and (e), were misconceived and/or were not seriously canvassed during the trial. I will comment on them first, starting with the appointment and deployment of partisan officers and a partisan section of the army. There was no evidence adduced to prove that the military officers appointed to take charge of security, were “partisan”, and/or “that a partisan section of the army” was deployed all over the country. It was not even explained what was meant by partisan officers and partisan section of the army. Secondly, neither the said appointment nor the said deployment contravened provisions of S.12(1) (e) and (f) of the Commission Act, which provisions set out powers of the Commission to ensure that there are conditions of freedom, fairness and security for the conduct of elections. Apart from making the assertion in the petition and the accompanying affidavit, the Petitioner did not adduce evidence about the said appointment and deployment except annexing to his affidavit the Army Commander’s press release on the subject.

The direct evidence which the Court received on the subject, was from the 1st Respondent, the Army Commander, and the Inspector — General of Police. In a nutshell it was to the following effect. In January 2001, because of apprehension that there would be a rise in election related crime, Government decided to supplement the inadequate police capability, as had been done on previous important national events. A National Security Task Force comprising the Police, Army, LDUs and Intelligence agencies, to oversee and manage security in the country during the electoral process, was set up with a joint command. At the national level it was under the chairmanship of the Army Commander. At the district level, the District Police Commander was the overall in charge of security. The Army Commander’s press release dated 9th March which was annexed to the Petitioner’s affidavit reiterated the foregoing and endeavoured to justify it. It was apparently reacting to what he called “the contention by some presidential candidates.” In it, he assured that the army would not be involved in election activities but would be a stand-by force.

On basis of that evidence, Mr. Walubiri argued that a case was made out that the 1st Respondent was liable for an illegal practice or offence. Learned counsel premised the argument on two contentions. First he contended that as a matter of evidence it had been proved that the deployment of the army, far from ensuring security, had become the source of insecurity. Secondly he contended that, as a matter of law, the deployment of the army had been illegal. He argued that the 1st Respondent was responsible for the illegal deployment, as well as for the insecurity caused by the army personnel so deployed.

In support of his first contention, (which I understood to relate to the army excluding PPU), learned counsel relied on affidavits of nine deponents. Two of those he mentioned, however, were irrelevant. Anteli Twahirwa and Sande Wilson, both of the Petitioner’s Kabale Task Force, did not say anything on insecurity caused by the army. Affidavits of John Kijumba of Bukonzo West, and Kimumwe Ibrahim of Bukoli South were so trivial; I need not review them here. As for Mary Semambo, Chairperson of the Petitioner’s Mbarara Task Force, despite claiming to have sworn from her knowledge, what she deponed in paragraph 6 of her affidavit, on the occurrences in “many polling stations in Nyabushozi and Isingiro” were clearly inadmissible hearsay gathered from agents. Suliman Niiro of Bukoli North, in Bugiri, and Baguma John Henry of Bukonzo West, in Kasese, witnessed soldiers from RDC’s office or with RDC, involved in irregular voting not causing insecurity. The witnesses he referred to, whose evidence has some bearing on insecurity caused by soldiers were Alex Busingye, the Petitioner’s overseer in Kazo County Mbarara, and Masasiro Stephen, Petitioner’s polling agent at Nkusi Primary School polling station in Bungokho, Mbale. The former deponed that at Nkungu polling station he saw a monitor who had been tied up and bundled on a pick-up Reg. No.114 UBS in which UPDF soldiers were travelling. That evidence, however, was refuted by Mbabazi Kalinda, the Presiding Officer at that polling station who deponed that he did not witness anyone tied, and that Alex Busingye was polling agent at the station and did not report the incident. The incident at Nkusi Primary School is more serious as it involves allegation of shooting at a polling station. According to Masasaro, after 12 voters who had turned up, had peacefully cast their votes, the area Sub-county Chief, a Councilor, and the 1st Respondent’s area task force Chairman arrived, escorted by four armed soldiers. The soldiers shot in the air and the said officials started stuffing ballot papers in the ballot box. Upon protesting, the deponent and his colleague were severely assaulted. That evidence was also disputed by the Sub-county Chief who deponed that he had gone to that station in response to a report that the said Masasiro was obstructing women from voting. Although I believed the evidence of Alex Busingye and of Masasiro, I did not share learned counsel’s view that, that evidence supported his contention. To my mind, the incidents described, did not arise from the deployment of the army, and could hardly be described as acts of insecurity committed with the knowledge and consent or approval of the 1st Respondent.

On the contention that the deployment of the army was not authorised by law, learned counsel went to great length to show that previous deployments, mentioned by the Army Commander and the Inspector — General of Police were bad precedents, since they too had not been authorised by the law governing the events in question. He stressed that deploying the military in civilian police work, other than during emergency declared in accordance with the Constitution, is illegal. I don’t find it necessary to discuss that contention here because, in my view, it was a red herring. Whether the deployment was unconstitutional was not subject of inquiry in this trial. What was relevant under this issue was whether deployment of the army in the manner that it was deployed, constituted an illegal practice or other offence under the Act. Counsel did not point to any illegal practice or offence under the Act that was committed by the act of the deployment; and I was not able to find any. My conclusion therefore, is that both as a matter of evidence, and as a matter of law, it was not shown that the 1st Respondent committed any illegal practice or offence under the Act by the said deployment of the army.

The pleading under paragraph 3(2) (d) related to Major Kakooza Mutale’s group and PPU. I have already noted that apart from one incident in Tororo, with oblique link, no evidence was adduced before Court on the activities by Maj. Kakooza Mutale and his group, during the electoral process. Furthermore, there was no evidence that the 1st Respondent organised that group or any group in the PPU for training in the activities, and for the purposes and/or objectives stated in S. 25(b) of the Act. I have also indicated, when dealing with issues Nos. 2 and 3, my findings on the unlawful activities of the PPU soldiers in Rukungiri. Under issue No.4, the Petitioner’s case was that those activities which undoubtedly constituted illegal practices and offences under the Act were committed with the knowledge and consent or approval of the 1st Respondent. No direct evidence of that knowledge, consent or approval was adduced. For proof of the 1st Respondent’s knowledge and consent or approval, learned counsel for the Petitioner relied on two facts. First he relied on the fact that the soldiers, being charged with the President’s personal security, were under his intimate direction, so that he would know their activities, which in turn they did with his consent or approval. Secondly counsel placed much reliance on the letter Chairman Kasujja wrote to the Respondent, on February, 2001, parts of which I reproduced earlier. In effect learned counsel sought to persuade the Court to infer from the President’s assumed relationship with PPU and the said letter, not only his knowledge of activities of the PPU soldiers, but also his consent to or approval of those activities. For his part the Respondent deponed in paragraph of his affidavit accompanying his answer to the petition, that he did not directly or indirectly organ/se groups of persons under PPU or Maj. Kakooza Mutale with his Kalangala Act/on Plan and that whatever such persons were stated to have done was without his knowledge and consent or approval. He also generally denied committing any illegal practice or offence personally or through anyone with his knowledge and consent or approval. He made no reference to the letter written to him by Chairman Kasujja.

It is trite law that proof may be by direct evidence or by circumstantial evidence. In the latter case however, it is always important to avoid elevating “suspicion” or “speculation” to the status of proof. There was no evidence on the operational relationship between the Respondent and the PPU, from which inference could be derived that all activities of the PPU are known and consented to or approved by the 1st Respondent. As for the letter, even if it was presumed that he received it, I think it would be in the realm of speculation to infer from absence of response, as counsel invited the Court to do, that he consented to or approved the activities which were even not specified in that letter. For the aforesaid reasons I found that there was no proof that the 1st Respondent was liable for any illegal practice or offence committed by PPU or Maj. Kakooza Mutale’s group.

The third complaint for brief comment is the pleading in paragraph 3(2) (e) of the petition, to the effect that the 1st Respondent threatened to cause the death of the Petitioner by saying he would put him six feet deep. The offence under S.25 (e) is constituted when such a threat is made to or in respect of “a candidate” or to “a voter” and for the purpose of effecting or preventing the election of “a candidate.” In S.2 of the Act, “candidate” is defined as a person duly nominated as a candidate for a Presidential election; and “voter” is defined as a person who is qualified to be and is registered as a voter. The Petitioner did not disclose the date when the threat was made. The 1st Respondent, who denied threatening the Petitioner specifically, deponed that he uttered the words complained of, on 27th November, 2000. By that date the Petitioner was not a candidate, as he was not nominated as such, until on 8th January, 2001. It was also not shown that by that date the Petitioner was a registered voter or that the threat was made to him as a voter. The 1st Respondent’s pleading which was not rebutted was that he had “warned that any person who interfered with the army would be put six feet deep.” While that might be described as threatening violence under the Penal Code, it did not amount to threatening a candidate or voter within the meaning of S.25 (e) of the Act. My view therefore is that by the utterance, the 1st Respondent did not commit the offence alleged. That leaves the more contentious matters which I paraphrased as publication of a false statement of the Petitioner’s illness, and offering gifts to induce voters.