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

“(2)(a) That Mulindwa Abassi is known to me. He is mentally unstable.


(C) That it is not true that I, Mrs. Mujwi and Malik Katente the sub-county councillor and Nyaigolo Peter went around Kibuku Trading Centre telling people, if they
do not vote for Museveni the soldiers will kill us.

(d) That it is not true that our group went around three polling stations giving voters’ cards to those who had already voted.


I perused the affidavits in support of the petitioner’s complaint on one hand and those sworn in rebuttal on the other hand and gave my anxious attention to each of them and must state that I accepted the affidavits sworn/affirmed in support of the petitioner.

For instance, I found the affidavit of Matsiko Wa Macoori, Kiiza Davis. Dan Okello, Alex Otim, Kakuru Sam, Arinaitwe Wilkens, Byomuhangi Kaguta, Stanley

Bugando and many others in support of the intimidation of the polling stations on one hand and the affidavit in rebuttal by Mrs. Naava Nabagesera, Mrs. Mujwi and Sqts Sempijja I must reject the affidavits sworn in rebuttal. For instance, I would not attach any importance to the affidavits like that of Mrs. Nava Nabagesera where she stated that soldiers never intimidated petitioner’s polling agents at the polling stations, because Niiro Suliman had not claimed that Nabagesera was present when her soldiers were forcing children under 18 years of age to vote against petitioner’s refusal that the children were not eligible to vote. Niiro never stated that the RDC was present when the soldiers chased away the petitioner’s agents. Moreover, Mrs. Nabagesera never stated she was at the polling station.

Further, Mr. Mulindwa’s affidavit never stated that Mrs. Mujwi, the sub-county chief in Pallisa was the issuing officer of the voter’s cards. He had stated in the affidavit that he saw Mrs. Mujwi, giving out voters’ cards to even those people who had already voted. In my view, I think that, how she got those voters’ cards never came in issue. Mulindwa’s affidavit stated that there were LDU who intimidated polling agents for petitioner who protested against any malpractice. He stated that he saw Mrs. Mujwi and Haji Nangeje Abubakali, Maliki Kitente and Nyalgolo Peter telling people that if they did not vote for Museveni, the soldiers would kill them.

Finally, the affidavit of Dan Okello stated that he was arrested and detained and kept guarded in a motor vehicle by Sgt Sempijja merely because he was known to be supporting the petitioner and was released after the close of voting. However, Sgt. Sempijja stated in his affidavit that he had received intelligence report on 11/3/2001 that Dan Okello was mobilising voters to create insecurity during the elections. That Okello Dan came with a note from the DPC of Lira requesting to allow Dan Okello to vote. That he did not at all refuse the said Dan Okello to vote.

I must state that the affidavit of Sempijja is telling a lie about itself. Clearly if he had not been detained, there could be no reason why DPC of Lira should write to request him to allow Dan Okello to go and vote. This was clear evidence of intimidation of Dan Okello by UPDF and infringing upon his constitutional rights.

In view of the above, I am satisfied that the petitioner proved that petitioner’s supporters were intimidated by PPU, UPDF GISO and LDU on polling day of 1 2/ 3/200 1 on various polling stations.

I would therefore state that there was a non-compliance with the Provisions of the Presidential Elections Act, 2000, nearly in every complaint that was raised by petitioner. I would in the result answer the 1^st issue in the affirmative.

The next issue is whether the said election was conducted in accordance with the principles laid down in the provisions of the said Act.

These principles can be gathered from Article 61(a) of the Constitution and Section 5(1) of the Presidential Elections Act, 2000. They are that the election of the President shall be by universal adult suffrage through secret ballot using one ballot box for all candidates at each polling station. In effect, the principles laid down in the Act are that the entire electoral process must be conducted under conditions of freedom and fairness.

Mr. Kabatsi, the solicitor General for the 2d respondent submitted that whether or not the elections were free and fair would depend on what the petitioner is able to demonstrate that it was not. He submitted that if at all there were instances or incidents that could have affected the electoral exercise, these were trivial. He went on to show that the 2d1 respondent had adduced evidence showing that the Presidential elections 2001 were conducted in an atmosphere of freedom and fairness. He submitted that the 2nd respondent organised the elections according to the Electoral Commission Act, 1 997 and at the end of it, the respondent was validly and duly elected President of Uganda in a free and fair elections.

He submitted that the report by the International observers was clear manifestation of the elections having been free and fair. The report from OAU observers stated:

“During the campaign period, the team was very much concerned about certain reported acts of violence and intimidation which led to the loss of lives. Given the above-mentioned observations and other few technical short-comings it is the view of the OAU observer Team that the exercise was conducted transparently and in a satisfactory manner”

Report from the Nigerian team had this to say:

“As we return to Nigeria, we hold the view that democracy has come to stay in Uganda and we pray for its sustainability.”

A report from Tanzanian observers had this to say about the presidential Elections
2001:-


“In general the processes were transparent and correctly conducted. There were no shortages of election materials; the voting atmosphere was calm and peaceful. After the announcement of results everybody moved away peacefully”


Mr. Kabatsi submitted that there were many affidavits of Returning Officers and presiding officers from Kisoro, Kitgum, Mayunge, Kasese, Rukungiri, Ntugamo and also affidavit of Francis Bwengye who participated in the presidential election race who stated that the election was free and fair. He in particular referred to affidavit of Bob Mutebi who interviewed the petitioner who was then casting his vote at Rukungiri. Mutebi, a journalist was in Rukungiri monitoring elections. The petitioner was recorded as saying:

“I don’t know about far off areas, but in areas down town, I think voting so far is going on well The army presence is every where throughout this district I have not heard of any incident where the army is interfering in the polling process, but I do not know what is happening elsewhere.