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

Deployment of Partisan Army During Elections:

The Petitioner complains in para 3 (2) (c) of the Petition that contrary to Section 12 (1) (e) and (f) of the Electoral Commission Act, the 1st Respondent appointed Major General Jeje Odongo and other partisan Senior Military Officers to take charge of the Presidential Election process and thereafter a partisan section of the army was deployed all over the country with the result that very many voters either voted for the 1st Respondent under coercion and fear or abstained from voting altogether.

The 1st Respondent states in his affidavit in reply that the deployment of security forces was done by the Government for the purpose of securing law and order throughout the country. He did not appoint any military officers to take charge of the security of the Presidential Election process as alleged in the Petition. He knows that Government deployed security forces throughout the country for security preservation of law and order.

In his affidavit in answer to the Petition, the 1st Respondent denied knowledge of the allegations contained in para 3 (1) of the Petition except the arrest and charging in court of Hajati Miiro. He stated that he was not present at the times and places where they were alleged to have occurred and did not witness them.

He stated that he instructed his campaign agents to mobilise for his election on the basis of his election manifesto entitled “Consolidating the Achievements of the Movement” only and he had no knowledge of their having acted contrary to law, conduct which he did not consent to or approve of on the part of any person.

He further states that because the Police were inadequate and the security situation so required the government decided to and did deploy, security forces throughout the country to keep peace and order but he had no personal knowledge of nor did he in his capacity as President of the Republic of Uganda, receive any reports of intimidation of voters by soldiers and para-military personnel at Polling Stations. He asserted that the elections were conducted under conditions of freedom and fairness and under secure conditions as a result of sufficient deployment of security forces throughout the country by the Government.

On the allegation of general deployment of the Army during the campaign period, Mr. Walubiri learned counsel for the Petitioner submitted that the 1st Respondent did not deny deployment of the Army but claimed that the electoral process was conducted under conditions of freedom and fairness and explains the need for deployment. Mr. Walubiri refers to the affidavits of Major General Jeje Odongo and Mr. John Kisembo, who supported the 1st Respondent’s reason for deployment namely that it was necessary in order to supplement the Police to curb electoral violence, which was on the increase.

Learned counsel for the Petitioner argued that the Army did not provide security, but it was a cause of insecurity as the evidence on record showed that it was torturing people or making it impossible for the Petitioner to campaign. Counsel then referred to the various affidavits, which gave evidence of harassment by the military, including the affidavits of Kimunyu in Kamuli, Baguma in Kasese, Kijumba in Kasese, Ssemambo in Mbarara, Busingye, Masasiro in Mbale and Twihirwa in Kabale.

Dealing with what he called the legal angle, Mr. Walubiri submitted that the deployment of the army in previous instances like the currency reform, the Local Government elections and the Presidential and Parliamentary election was all illegal. He concluded that there was no provision allowing deployment of the Army in the Currency Reform Statutes or in later Statutes dealing with the elections. He submitted that the role of the UPDF is set out in article 209 and has nothing to do with internal policing which is the mandate of the Police under article 112.

Learned counsel for the Petitioner further argued that under section 41 of the Act, the Police are required to provide security, but if there was no police then the presiding officer would appoint anybody present to act as an election constable, only in restricted circumstances, where there was actual or threat to public order. Since there was no state of emergency, Mr. Walubiri submitted the deployment was unconstitutional and illegal, and constituted an offence under s.15 (b) and (c) of the Act. He further contended that the deployment of the Army and PPU was with the consent of the Respondent, which occasioned intimidation of many people including Major Okwir.

Mr. Walubiri further contended that a candidate is liable for the actions of the agent done within the scope of his employment even where the agent was strictly prohibited from undertaking the particular action. He referred us to The News Digest of English Case Law 2^nd ed. 1924, and Digest: Annotated British Commonwealth and European cases 1982 (Butterworth’s para. 646 P. 72) where the concept of implied consent is discussed.

Dr. Byamugisha learned lead counsel for the 1st Respondent submitted that Section 12 (1) of the Commission Act requires the 2nd Respondent to take measures for ensuring that the entire electoral process in conducted under conditions of freedom and fairness. Learned counsel referred to the affidavits of Major General Jeje Odongo explaining why the UPDF got involved in maintaining security after Police had requested for augmentation. The reason was to take charge of security as it had been done on previous occasions. The evidence of Major General Jeje Odongo was corroborated by the Mr. John Kisembo, Inspector General of Police.

Dr. Byamugisha also referred to the evidence that the Commission had written to the candidates informing them how he had contacted the Police and other security agencies to provide security during the entire campaign period. The Chairman of the Commission stated that the security situation had improved after the Joint Security Force had been constituted. Learned counsel concluded that the deployment of the UPDF was therefore not illegal. Secondly, the deployment was not used for an illegal purpose to persuade voters to vote for the 1st Respondent.

As regards the abduction or arrest of Major Okwir, Dr. Byamugisha submitted that the circumstances of his arrest are explained by Lt. Col. Mayombo and his evidence is supported by that of Maj. Gen. David Tinyefuza. Dr. Byamugisha submitted that it is not true that Major Okwir was arrested to remove him from the Petitioner’s group but to save his life from the Petitioner’s group who wanted to deal with him for spying on them.

Dr. Byamugisha further contended that there was no evidence adduced to prove that a partisan army was deployed over the whole country, which harassed and coerced voters. He also submitted that there was no evidence of how many voters abstained from voting due to coercion and fear. He argued that the provision of Section 3 (2) (c) and 12 (1) (a) and (f) of the Commission Act do not constitute an offence but are obligations of the Commission.

On the question of agency, Dr. Byamugisha submitted that the Petitioner went beyond the requirements of the Act by adding officers attached to his office as President since these officers cease to be his agents under the Act. He submitted that the President is not a candidate in his capacity as Chairman of the Movement or Commander-in-Chief of Uganda Armed Forces.

The first point to consider is whether the general deployment of the army was unconstitutional and illegal as submitted by learned counsel for the Petitioner. The Uganda Peoples Defence forces (UPDF) as a state agency is established by article 208 of the Constitution. Clause 3 (2) and (3) of article 208 provide,

“(2) The Uganda Peoples Defence Forces shall be non-partisan, national in character, patriotic, professional, disciplined, productive and subordinate to the civilian authority as established by the Constitution.