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

ROAD CONTRACTS, SALARY INCREMENTS, ETC.

The idea of starting to implement work on the Mubende/Kiboga, Fort Portal Road during campaign period; the announcement of abolition of health cost sharing during campaign period which cost sharing has been in operation for some years in Government health units throughout the country; the promise to increase salaries of teachers, medical personnel and of the police, again during the campaign period, were not done in the course of ordinary and usual government business. I think that it was all part of the campaign, to lure voters to vote for the incumbent who is the first Respondent. These acts surely affected the principle of a free and fair election. The Petitioner stood every disadvantage in relation to the first Respondent in so far as these matters are concerned. The Constitution prescribes that candidates for political offices should be chosen on individual merit [(Art.70 (l) (d)] and the same Constitution and the PEA require elections to be held under conditions of fairness. Where is fairness if an incumbent can avail oneself of opportunities in the Government and exploit those opportunities maximally during campaign time whereas the non-incumbent has no such opportunities? How can there be merit and fairness? A non-incumbent enters the race without previous Presidential record of performance. The implementation of several programmes during the period of a Presidential campaign can only benefit the incumbent president.

The respondent could only promise in his manifesto and his address to the voters whereas the first respondent could announce immediate implementation of decisions which he wishes to announce and have it implemented as head of Government.

I do not accept the explanations offered by the Hon. Dr. Kiyonga, the Hon. B. Mukiibi, and the Hon. Eng. John Nasasira that these are matters for which money had been budgeted. How come all these had to be announced during the critical campaign period for the election of the President of this Republic? The Tanzanian case of Attorney General vs. Kabourou (1 995) 2LRC 757 is in point, if authority for this view was necessary.

On 24/2/2001, Chairman Kasujja, wrote his letter reference EC/25 to the President asking the President

“To intervene and save the democratic process from disintegrating by ensuring peace and harmony in the electoral Process”.

The Chairman stated further that: -

“THE COMMISSION HAS RECEIVED DISTURBING REPORTS AND COMPLAINTS OF

INTIMIDATION OF CANDIDATES, THEIRAGENTS AND SUPPORTERS WHICHIN SOME CASES HAS RESULTED/N LOSS OFLIFEAND PROPERTY”:

I have not seen evidence that the chairman received a reply. Yet the complaint was serious. This augments the need for making the Commission independent by giving it powers to direct the Police Personnel under its charge during campaign. The chairman’s letter is an expression of great concern bearing in mind the fact that the election was barely two weeks away. In the ordinary course of things the letter reached the first Respondent as President. There is no evidence of the reaction of the first Respondent to show that he took steps to improve the situation. That letter was written barely two weeks before the Presidential election and after nearly one and a half months of campaigning, during which the petitioner, who was specially mentioned in the letter and his supporters had been harassed and some of his agents and supporters had been subjected to beating and harassment. Apparently even after Chairman Kasujja’s letter had been written, nothing was done by the first Respondent as Head of State and the Commander-in--Chief of the Army to reduce the tension. Instead there is evidence of insecurity, violence and intimidation continuing. That is why on 7/3/ 001, just four days before the election and on 9/3/2001, another two days before the polling day, the rest of the presidential candidates including the Petitioner wrote letters to and implored Chairman Kasujja to save the situation. I note that in his letter to the Minister of Internal Affairs (dated 25/1/2001) which letter is annexed to his affidavit, John Kisembo did not indicate that security was beyond the control of the police. The contents of the letter suggests that the National Security Committee decided on the matter and asked IGP to request for other security agencies to be involved in the election exercise.

The affidavit of Charles Owor shows that he was denied access to the National tallying centre. The affidavit of Robert Kironde shows that Hon. Bakabulindi, MP, a Chief Campaign Manager of the first Respondent and who was not an official of the Commission was at the forefront of receiving important information on results from upcountry in the Commissions Communication and Data Centre. Therefore, although Bakabulindi enjoyed that freedom as an agent of the first Respondent, Mr. Kironde, an agent of the Petitioner who is entitled to be at a tallying centre, was denied authority to note the verification of the result where Bakabulindi was positioned. Chairman Kasujja and Wamala of the omission in their affidavits poured Scorn on this but I think refusal of access to Kironde violates the principle of transparency and fairness.

Another interesting and most disturbing case is voting in Mbarara Municipality. There were many irregularities. Mr. Boniface Ruhindi Ngaruye, a member of the petitioner’s Mbarara District Task Force, explains in his affidavit how he was harassed and intimidated during the campaign period. On polling day he coordinated the petitioner’s polling agents in Mbarara Town. Boniface Ruhindi Ngaruye’s affidavit shows that Military Police supervised the voting by an unspecified number of voters including students at Kakyeka stadium and three Mankeke polling stations. Military Police poured there lorry loads of students who voted. The latter station was created on 11/3/2001. There were no agents for the petitioner because the Commission created these stations late. There was no verification of voters. The witness saw what he describes as massive rigging.

Another story of interest is that of A. Otim which shows how soldiers in Gulu forced voters to vote contrary to voters’ wishes. He monitored voting at Paico P. School. Armed soldiers were at the polling station. Soldiers brought an APC military vehicle with which they intimidated voters and the petitioner’s monitors at the polling station. Because Otim was protesting he and one Okello Saul were arrested and detained till 8.00 p.m., when they were released, after the polling time.

The complaints about harassment, intimidation, violence, threats and assaults were raised before the Election Day. That is why candidates in writing expressed their concern to Chairman Kasujja. In these circumstances, it would be wholly unreasonable to suggest, as do witnesses and counsel for the Respondents suggest, that the Petitioner’s witnesses, who, after the election, swore affidavits about harassment, intimidation and violence, threats and assaults were making up stories. In my opinion the correspondence between Chairman Kasujja and his Deputy on the one hand, and the Petitioner with his fellow candidates on the other hand, fully corroborates the evidence of the supporters of the Petitioner. I find that the petitioner was subjected to harassment and interference during his electioneering. I also find that representative’s agents and supporters of the petitioner were subjected to violence, intimidation, harassment and assault.