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

15. That in the circumstances. I did not vote since it was meaningless to do, by casting a ballot pre-ticked for me.

16. That I swear this affidavit in support of a petition by Dr. Kizza Besigye for the nullification of the presidential elections held on the 12th of March, 2001.

17. That what is stated herein is true and correct to the best of my knowledge and belief”. (Emphasis is added).

Musinguzi’s affidavit is one of those affidavits, which were listed down by counsel for the Respondents as objectionable on the general ground that it contains hearsay evidence. The parts containing hearsay were not pointed out. I think that the drafting of this affidavit is rather sloppy. The use of words like “we” and “our” in paragraph 7 and 8 tend to cloud the passages. But there can be no doubt that as one of the Petitioner’s Sub-regional campaigners, James Musinguzi experienced, saw and learnt a lot about the violence, humiliation, harassment and the intimidation, all aimed at denying the Petitioner any support in Rukungiri and Kanungu Districts. Results show what he got in his home Districts and the effect of humiliating harassment, violence and intimidation, on the voter can hardly be so clear in these two districts. I have not come across evidence that the petitioner was terribly unpopular in these home districts. So how come he got such a low vote? Terror.

One of the key witnesses for the first respondent about what happened in Rukungiri and Kanungu is Captain Ndahura. Captain Ndahura in paragraph 25 of his affidavit sworn on 4/4/2001 in support of the first Respondent only denies Musingunzi’s averments in para 8 of affidavit. However, Ndahura accepts that there were clashes at the relevant time between security people and representatives and supporters of the petitioner. Captain Ndahura carefully distances PPU from the scene of the shooting of Beronda by placing there the police and UPDF. In his affidavit, he refers to affidavits of ten other deponents and who are the Petitioner’s supporters, claiming that they speak falsehood. He does not give a single reason why any of or some or all these witnesses should “tell lies” against him or any other person. Indeed, all the ten deponents do not originate from the same home or the same village, but rather, they are people from different places and homes in the Districts. It is a pity that none of the key witnesses for either the petitioner or the Respondents except D. Arinaiitwe was called and cross-examined on their affidavits. This might have enabled us to form impressions of the witnesses. As none of the important witnesses has appeared physically before us, I have been unable to benefit from physical presence of witnesses to form opinions. I now rely on comparisons of stories given by various witnesses and reason and logic. Therefore unless a sound reason is given to show that a witness is lying or unless what he/or she says is inherently or incredibly improbable, I have to accept the story.

Moses Tibanyendera in his affidavit describes how, since February, 2001, he and other agents and supporters of the petitioner had been threatened with death and how they were persecuted and harassed by the Hon. Captain Byaruhanga, his escorts and other agents of the first Respondent who demanded that he (Moses) should denounce the petitioner and join the camp of the first Respondent. Hon. Captain Byaruhanga, another key witness for the Respondents, has sworn his affidavit to deny this. However, like Captain Ndahura, in his affidavit, Byaruhanga does not offer any reason to explain why these witnesses should swear falsely about him, a Member of Parliament, and his escorts. He himself indicates that he knows these witnesses. There is no obvious and rational basis upon which I can disbelieve their evidence.

Again in his affidavit, Kiiza Davis, another agent of the petitioner in Kamwenge District, describes his arrest by LDUs and his detention on 11/3/2001 on the orders of a Lt. Richard of a UPDF detachment in Kamwenge Town. He and another agent called Faida Charles were put in a trench. He was put in a trench along with his brother. He was guarded by two soldiers. On 12/3/2001 Lt. Richard ordered presiding officers to tick a ballot paper which was then given to Kiiza to vote at Kamwenge PS Block one. Kiiza’s voting was under the supervision of two soldiers. This is demoralizing and dehumanising treatment during an exercise of a democratic right guaranteed by our Constitution and our electoral laws.

From the same Kamwenge District, there is James Birungi Ozo who was himself the District monitor and campaign co-ordinator in Kamwenge District for the petitioner. In his affidavit, he narrates his experience and the ordeal he and his colleagues went through because of supporting the petitioner. The affidavit highlights what went on before and during the polling day. It states, in part that:

“2. I was appointed a District Monitor by Col (RTD) Dr. Besigye Kiiza - the petitioner