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

(a)………………..

(b) to co-operate with the civilian authority in emergency situations and in cases of natural disasters.”

A presidential election is neither an emergency nor a natural disaster. At least that was not the case during the Presidential election of March, 2001.

It may be noted that in its wisdom when Parliament enacted the PEA, 2000, it foresaw the possibility of shortage of policeman power. That is why it included section 41, in the Act. The section empowers a presiding officer to appoint an election constable in certain circumstances.

Subsection (1) of S.41 reads as follows: -

“Where there is no police officer to maintain order in a rural polling station and the necessity to maintain such order arises, the presiding officer shall appoint a person present to be an Election Constable to maintain order in the Polling Station throughout the day”

By sub-section (2) the appointment of any person other than a policeman as an election constable can only be made where there is actual or threatened disorder or a large number of voters who need to be controlled.

This provision was enacted just last year. Members of Parliament must have been aware that the Army has over the years been involved in the electoral process. Yet Parliament did not see it fit to enact that members of the UPDF can be called upon to assist in the management of presidential election or any other election. In these circumstances, I am not persuaded by arguments put forward by the two respondents to justify the deployment of the army and the PPU for purposes of the recent Presidential election.

In his letter (dated 25/1/2001) to the Minister of Internal Affairs, John Kisembo, former IGP, showed that there were about 2700 Polling Stations more than the strength of police which was at 14700 men and women. He wanted other security agencies to help in the surveillance. This did not mean that each Poling Station had to have a policeman or a member of the other security forces. If that were so one would ask, why not leave the matter to the Electoral Commission to ask polling officers to appoint election constables as provided by S.41. This brings in the question of what power the Electoral Commission has over security forces especially the police during an election. The impotence of the Commission IS clearly shown by Kasujja’s letter to the President. In order to strengthen the commission, I share the view that the commission must be given power so that during election time it is able to summon and instruct police or any other appropriate law enforcement agency. It must be given legal authority to instruct the police or whoever is put under the direction of the Commission to carry out commission wishes. This will ensure some degree of independent management of the electoral process by the Commission.

If the IGP, the Army Commander or anybody else says that for many years, the Uganda Government had failed to recruit, train and equip enough police to oversee such an ordinary democratic election such as that of the recent Presidential election, then this must mean that, either the Commission was deliberate or the omission was evidence that those in charge of the election exercise never cared about preparing the police for civil elections.

I have gone through the affidavit evidence in support of the petition and in support of the two answers to the petition. I have considered counsels’ submissions. The principles enshrined in S.28 (1) (a) is that Polling Stations should be published early to enable a candidate and his agents to ascertain whether any Polling Station is in a place convenient for voters and accessible easily by the candidate and or his agents and his supporters. The overnight establishment of Polling Stations violated the principle of transparency; the same principle was violated when polling agents of the petitioner were chased away from many polling stations or tallying centres.

Again the principle of secrecy enshrined in Sections 7 and 30 of PEA was violated in many Polling Stations in Kabale, Ntungamo, Rukungiri, Kanungu, Kamwenge, Mbarara, Mayuge, Sembabule, Mbale, and Bushenyi, because of pre-ticking, supervision of ticking and by polling officers ticking ballot papers for voters. This is graphically explained in the affidavit of Boniface Ruhindi Ngaruye of Ishongororo Sub-county, Mbarara. LDU chased him away and shot at him. This bit is irrelevant. But according to him on the evening of 11/3/2001, the massive presence of UPDF in Mbarara that evening aborted his plan to campaign for the petitioner that night. He shows that in Mbarara Town, he was unable to get the petitioner’s polling agents to new stations. There was voting by school children.

Again the principle of transparency was violated because of voting before 7.00

a.m. and after 5.00 p.m. Also the principle of oneperson0ne vote enshrined in S.31 was violated by officials of the 2 respondent. They consciously allowed this to go on in the aforementioned places. I have studied the affidavits of the petitioner’s witnesses and the responses thereto by witnesses for the respondents. It is clear from the affidavits of the agents of the Petitioner which affidavits I find more reliable that there was deliberate and brutal interference by members of the UPDF, LDUs and PPU with the campaigns of the petitioner See in Kabale (Matsiko D. and Twahirwa), in Ntungamo, in Runkungiri (Orikiriza and H. Muhwezi) Kanungu, Mbarara (see J. Kasujja and Peter Byomanyire) in Rukungiri see J. Tumusiime, Bushenyi, Kamwenge (see Kiiza D. and Tibanyendera), in Kasese, in Sembabule (see Kiryowa). Affidavits show that RDCs such as J. Mwesige (Kabale), GISOs like R Bagorogoza in Kanungu and Kamwenge Army personnel like Lt. Richard mentioned by D. Kiiza were involved in this.