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

(f) to carry out any other functions as Parliament may assign the council”

Under section 5 of the NSC Act the composition of NSC includes the President, who shall be Chairman, and the Minister responsible for defence. The Inspector General of Police and the Army Commander are ex-official members.

Considering the provisions of the Constitution and of the NSC Act, and the fact that the 1st Respondent, during the election process, was also the President, Commander — in — Chief of the Armed Forces, and Minister of Defence, and the 1st Respondent’s evidence and that of Major General Jeje Odong in this connection, inference is inevitable that it was the 1 Respondent as the incumbent President who deployed the UPDF and PPU during the 2001 Presidential Election Process. Moreover, the PPU was a facility attached to him as the incumbent President by virtue of the provisions of section 21 of the Act.

By a correspondence dated 20-12-2000, addressed to the Speaker of Parliament by the Minister of Public Service, the Minister laid before Parliament the Government facilities which were attached to and utilized by the President. Security was one of such facilities. PPU, no doubt, was one of the security facilities attached to and utilized by the President.

On the available credible evidence which I have already evaluated, I am satisfied and find that the UPDF and the PPU committed the illegal practices or offences prescribed by sections 25 and 74 of the Act. The 1st Respondent did not commit such illegal practices or offences personally. They were committed by soldiers of the UPDF and PPU, which the 1st Respondent had deployed, as his agents. They acted with his knowledge and approval, thus fulfilling the ingredients of section 58(6) (c) of the Act. These are my reasons:

Firstly, the 1st Respondent, as the incumbent President was informed of what was happening by Mr. Kasujja, the 2nd Respondent’s Chairman by his letter of 24-02-2001. The letter was headed “Violence and Intimidation of candidates.” It appealed to the 1st Respondent as the President of Uganda and Commander — in — Chief of the Armed Forces to instruct members of the Armed Forces not to do anything that would be interpreted as interference in the electoral process contrary to the law and thus jeopardize the democratization process that our Country had embarked on since the NRM Government came to power. The letter appealed for the 1st Respondent’s early intervention in the matter to enable the 2nd Respondent fulfill its duties as laid down under the Constitution and other laws. The appeal was made to the 1st Respondent to intervene and save the democratic process from disintegration by ensuring peace and harmony in the electoral process.

The letter also said that the 2nd Respondent expected deployment of the PPU to be made where the President was expected to be as the PPU was a facility that His Excellency was entitled to.
It was a desperate letter meant by the Chairperson to save a desperate situation to save the election, as a democratization process, from disintegration. It was a passionate letter written politely, but firmly.

It was not argued by the counsel for both Respondents that Mr. Kasujja’s letter of 24-02-2001 was not received by the 1st Respondent. I do not think such an argument would be tenable even if it was put forward. The 2nd Respondent is an independent Commission under the Constitution and appointed by the President. It has heavy and important responsibility. It is not some small insignificant body in a far away corner of Uganda. The 2nd Respondent is based in Kampala, not far from the President’s Offices or State House. Above all neither the 1st Respondent nor the 2nd Respondent denied that Mr. Kasujja’s letter of 24-02-2001, in question was received by the 1st Respondent. In the circumstances, a valid assumption is inevitable that the 1st Respondent received the letter.

Secondly, as I have already said in this judgment there is no evidence that the 1st Respondent responded to the letter, or otherwise indicated to the 2nd Respondent whether he would take any action to contain the desperate situation conveyed to him by Mr. Kasujja.

Thirdly, it is my considered view that by not responding in a demonstrable manner or at all to Mr. Kasujja desperate plea to intervene to save the situation of violence and intimidation conveyed in that letter, interference is inevitable that the 1st Respondent approved of what some soldiers of the UPDF and PPU were doing. As I have said before in this judgment, violence, intimidation, harassment, and threats by the PPU in Rukungiri and Kanungu and by some soldiers of the UPDF elsewhere continued up to polling day. There is no doubt that an order by the 1st Respondent as the Commander — in — Chief of the Armed Forces, Chairman of the UPDF High Command and Minister for Defence, would have brought to a rapid halt all the illegal malpractices and offences which were being committed by the UPDF and the PPU in connection with the election if the 1st Respondent had made such an order. If he did not approve what the UPDF and the PPU were doing, he would have made an order to stop it, or would have prevented it from starting in the first place. In the circumstances, inference is inevitable that the 1 Respondent approved of what some soldiers of the UPDF and PPU did in this regard. His approval was not express. It was tacit.

I am satisfied, therefore, and I find, that soldiers of the UPDF and PPU committed offences under sections 25 and 74 of the Act as agents, with knowledge and approval of the 1st Respondent. The ingredients of section 58(6) (c) of the Act have been proved by the Petitioner to my satisfaction.

I am also satisfied and find that the Commission of such illegal offences rendered the 2001 Presidential Election not free and fair.

I would hold therefore, that grounds 3(1) (h), 3(1) (w), 3(2) (c) and 3(2) (f) must succeed. On the basis of that alone, I would nullify the result of the Presidential Election of 2001 and declare the election of the 1st Respondent as President of Uganda invalid.

That disposes of the fourth issue in this Petition.

I shall next consider the fifth and last issue of the Petition.

It is what reliefs are available to the parties under this issue. Mr. Balikuddembe submitted that the Petitioner had adduced efficient evidence to prove all the grounds canvassed in the Petition. On the basis of the grounds put forward, the evidence adduced by the Petitioner and the submission of his Counsel Mr. Balikuddembe urged the court to grant the prayer made in the Petition, which is that the court should declare that the 1st Respondent was not validly elected and that the election be annulled and costs be awarded to the Petitioner.

In his submission, Dr. Khaminwa prayed for judgment in the 1st Respondent’s favour. On his part Mr. Kabatsi prayed that the judgment should be for the Respondent, and that the Petition be dismissed with costs to the 2nd Respondent.

In view of what I have already said and the findings I have made in this judgment, my considered opinion is that the Petition should succeed, and that the Petitioner’s prayers be granted. Accordingly, I would declare that Museveni Yoweri Kaguta was not validly elected President, and that the election be annulled.

On the issue of costs the Court heard counsel for all the parties and unanimously decided in its judgment of 21-04-2001 that each party to the Petition should bear its costs. It so ordered but reserved its reasons for doing so. I now give my reasons.

Section 27(1) of The Civil Procedure Act (cap. 65) provides:-

“27(1).Subject to such conditions as may be prescribed, and to the provisions of any law for the time being in force, the costs of an incident to all suits shall be in the discretion of the court or judge and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid. The fact that the judge or court has no jurisdiction to try the suit shall be no bar to exercise such powers: