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

EVIDENCE ON VIOLENCE AND INTIMIDATION

I shall refer to evidence contained in the affidavits of the witnesses for both sides. Mr. James Musinguzi was the petitioner’s agent in charge of Rukungiri and Kanungu. I will latter in this judgment reproduce his affidavit. But the gist of it is as follows: -

He was a co-ordinator for the petitioner in south-western Uganda especially Rukungiri and Kanungu Districts. He and the team under him were “exposed to enormous intimidation, harassment and violence throughout the region where PPU soldiers had been heavily deployed “after the Petitioner had declared his candidature of the Presidency. Among the petitioner’s supporters who were intimidated or harassed are Richard Bashaija, Sam Kaguliro and Henry Kanyabitabo. These and others have sworn affidavits.

Musinguzi complained about harassment and intimidation by state agents like Gadi Butoro who was the Gomborora Internal Security officer (GISO) of Kihihi and a direct supporter of the first Respondent. This Butoro appears to have harassed and intimidated the Petitioner’s supporters and agents throughout the campaign period. Musinguzi made reports of intimidation to S. Okwaling the Regional Police Officer, (RPC) and the District Police Commander, (DPC). When these officers especially the RDC intervened, they were transferred immediately from the area the following day. This transfer, according to the Petitioner’s affidavit, was preceded the previous day, (3/3/2001), by the intervention by the UPDF and PPU in the campaign rallies of the petitioner. The invisible hand interested in the campaign must have been operating. Paragraphs 9 to 26 of the Petitioner’s affidavit explains the PPU’s brazen interference in the electioneering activities of the Petitioner which resulted into the shooting to death of Beronda, an innocent man, and the injuring of at least fifteen other innocent people. In his affidavit, the former IGP John Kisembo does not refer to this nasty incident nor does he explain why RPC Okwaling and the DPC were hurriedly transferred from such a volatile area where, apparently, the civilians had faith in the civil police. Petitioner’s evidence shows that the presence of PPU and the shooting and harassment had left the people gripped with fear and distress and this is reflected in the voting pattern.

On his part, Major General Odongo Jeje, in para 1 7 of his affidavit in support of the respondents described the matter in these words:-

“That in further response to paragraphs 18-19 of the Petitioner’s affidavit, I wish to state that on the 3rd March 2001, I received a report that there was a clash between groups of people in Rukungiri after the Petitioner had addressed a public Rally and in the process some members of the groups pelted stones, bottles and sticks at the soldiers and in the process of self-defence, one person was fatally wounded by a stray bullet”.

One can categorise this information as hearsay based on official reports. However taking that information on its face value, it is obvious that the Major-General is cautious about what he is prepared to tell us. He is not willing to tell us which group was pelting the soldiers and which soldiers were pelted and why the soldiers were there and why they were pelted. This leads to the inevitable inference that the senior army officers were partisan. Surely if there had been such a serious incident resulting in the death of a Uganda citizen, the Army Commander should have carried out or caused to be carried out investigations leading to remedial measures.

I find it convenient to refer to other matters about which Musinguzi deponed. Mr. Musinguzi in his affidavit shows that there were over- bloated (inflated) voters on registers in the region. This inflation of voters’ countrywide is now common knowledge and even the first respondent and, in veiled manner, Chairman Kasujja agreed.

Musinguzi indicates that following his group’s complaints about the inflation of voters’ registers, the commission half-heartedly attempted to correct the problem but never went far. The attempt appears to have been frustrated, presumably by some invincible hand. This speaks against the commission indicating the contravention of the PEA (provisions and principles of transparency). This is because according to the provisions of S.34 a voter must produce a voters’ card and his name must be on the voters roll before he is allowed to vote. This process enables elimination of impersonation. Ghost names are recipe for ballot stuffing.

On the voting day, Musinguzi witnessed malpractices. This included violent intimidation of voters, agents and supporters of the Petitioner; chasing away agents of the Petitioner from various Polling Stations where those agents were to look after the interests of the Petitioner. He witnessed and learnt of deliberate pre-ticking of ballot papers in favour of the first Respondent. The respondents described the affidavit of Musinguzi as hearsay with no ground for his belief in what he states. Unfortunately the respondents did not specify the paragraphs of his affidavit to which objection is made. Perhaps this was because of the stand taken by the respondents that once an affidavit contained hearsay, it was vitiated in its entirety. I have already said that in general this is a misconception. Multiple voting contravenes S.31; chasing away of polling agents is contrary to S.32 and because of S.32 (5) the agents must have official copies of voters registers.

I think that some paragraphs of Musinguzi’s affidavit contain some hearsay matters. But others are factual expressions of the personal experience of the witness (Musinguzi). There is, moreover, support of his evidence from many other witnesses, not only from Rukungiri and Kanungu region, but also from Ntungamwo, Kamwenge, Mbarara and other Districts. Witnesses who describe similar incidents from various districts are Orikiriza Livingstone, Levi Tugume, Sebarole, Major Rwabwoni Okwir, Arinaitwe Hope, S. Rukingo, Byaruhanga Frank,
S. Ndagigye who described the arrest, intimidation torture and terror in Rukungiri and Kanungu districts, Henry Muhwezi and Kiiza Davis who testify about terror and intimidation and harassment in Kamwenge District. Jomo Kashaija, B. Turyamusiime, R Matsiko wa Muchoori, Bagyenyi Grace, Mwebaze Robert Gariyo, Byaruhanga Frank are among witnesses who testify about intimidation, violence, torture, bribery irregularities, and voting malpractices in Nutungamwo and Mbarara Districts. Even in a District like Kampala, irregularities and intimidation was not lacking. This is spoken of by Ebulu Vicent (Mbuya), Mugerere Ahmada (arrested from Kalerwe, tortured and detained) and Bukenya Samuel (arrested, tortured and detained) at Mbuya. Mugalula Joseph talks about intimidation and bribing in Kayunga District. Magalula talks of intimidation by a Senior Army officer. I have not been persuaded that this witness told lies. The provisions of S.25 were contravened and we said so on 21/4/2001.

In his affidavit, Kakuru Sam supports Musinguzi about the reign of terror against and intimidation of the Petitioner’s agents and supporters in the area throughout the campaign period and on the voting day on which day PPU and GISO were so arrogant as to force policemen to tick ballot papers under the supervision of GISO men before the policemen cast their votes! What a humiliating exercise! Kakuru testified about the role played Deputy RDC, Lt. Mugisha Muhwezi in the whole exercise. Mugisha-Muhwezi denies this in his affidavit but I have not seen any sound reason to believe him. Kakuru again supports Musinguzi about the agents of the first Respondent who terrorised the area. These include Stephen Rujaga. There is the account given by Byaruhanga Frank. He together with Mr. Robert Sebunya from Mengo, Kampala were assigned by the Petitioner to address a rally at Bikurukuru in Bwambara Sub-county on 3/3/2001.

In his own words, Byaruhanga tells us this in part of his affidavit:-

“3. That on arrival, my driver Batuma was called aside by four (4) soldiers of the Presidential Protection Unit (PPU).