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

Clearly, when the above extract is examined in light of the evidence in the affidavits of several witnesses especially those from Rukungiri, Kanungu, Kamwenge and Kabale e.g. Major (RTD) Okwiri Rwaboni, James Musinguzi, Richard Bashaija, Mpwabwooba Callist, Bernad Masiko, Byaruhanga Frank and Bugando Frank all from Rukungiri and Kanungu Moses Muhwezi and Frank Birungi Ozo from Kamwenge despite the rebutting evidence of those who were being accused of having committed those offences, it is clear that the election in those areas was not quite free.

For instance, the evidence of Frank Bugando from Kabuga of Kihihi, stated that he arrived at the polling station of Kabugo between 5:00 and 6:00 am. He witnessed Moses Mwesigye get 3 ballot books from the presiding officer. He saw him plucking out ballot papers and ticking the name of the respondent. He saw him hand those ballot papers to Nathan Turyagyenda , James Birakwate and Kamugisha. He saw these people insert those ballot papers into the ballot box. He stated that when he raised the issue of cheating, they threatened to kill or to expel him from the District. He stated that this was done before the petitioner’s agents arrived at the polling station at 7:00 a.m. He stated that the ballot box was not opened before voting commenced. However, he stated he reported to the polling agents of the petitioner when they arrived. He could not stay after he had witnessed that type of cheating. He went away and reported to Mr. Kazooba, the co-ordinator for Kihihi sub-county. The affidavit of Basajabalaba from Kenzaza polling station in Bunyaruguru, Bushenyi District shows the recovered 1 3 ballot papers pre-ticked, in favour of 1 St respondent from Allen Kyomuhangi after she had failed to insert them in the ballot box corroborates the type of cheating that is being talked about. Photocopies of the ballot papers pre-ticked in favour of the l respondent were annexed to the affidavit. These copies of the ballot papers were handed to Fr. Vincent Birungi, the District co-ordinator, who took them to Bushenyi police station. The affidavit from Bushenyi police station does not talk much about them. However, Allen Kyomuhangi denied in her affidavit that she was found with those 1 3 pre-ticked ballot papers.

In my view, the evidence on record shows, that there was harassment, intimidation and cheating of ballot papers during the election in Rukungiri, Kanungu, Kamwenge, Kabale and to certain extent in Mbale and Mayunge. There was chasing of polling agents of petitioner from polling stations in Rukungiri, Kanungu and other areas as a result of which voting, counting and tallying of votes were done in their absence. So there was no free and transparent election in such areas. In some areas, petitioner’s polling agents were arrested on the eve of polling day and detained until after the close of voting. The affidavit of Arinaitwe Wilkens where he averred that when he was taken to Kabale police station, he found a number of Besigye’s agents detained in the police station which was evidence of denial of their constitutional right. Sande Wilson of Kitohwa Kaharo, Kabale averred that l respondent’s mobiliser were at the same time polling officials. As a monitor for the petitioner in Muko and Bufundi at almost every polling station he visisted, he found ballot papers being preticked in favour of the 1^st respondent.

In conclusion on the element of election being free, I think that it was not free in the areas I have examined.

On the issue of the election having been fairly conducted, I think that with the affidavit of Major (Rtd) Okwir Rwaboni, James Musinguzi, Sam Kakuru, Koko Medrard, Benard Masiko, Mpwabwoona Muhanguzi Dennis and Byomuhangi Kaguta who together with Buterere and Tukahirwa were detained and kept in a trench in the barracks for the whole day when voting was going on, proves there was no fairness in the manner election was conducted in Rukungiri, Kanungu and to a certain extent in Kabafe, Mbale and Kamwenge. In Kamwenge, Kizza Davis, averred that he was arrested on 11/3/2001 taken to Kamwenge army detach and put in a trench for the whole night. On 1 2/3/200 1 at 10:00 a.m. he was taken to polling station and was given a ballot paper pre-ticked in favour of the 1^st respondent and escorted by two soldiers to ballot box and cast the vote. After that he was taken back to the barracks. He was released in the evening.

I have no exact words to describe that type of behaviour of those who did it and the treatment they subjected him to. It cannot be described as rigging. It was torture, crude and denial of his constitutional right to choose a candidate of his own choice. It is, however, hoped that when those in charge of the well-being of the State learnt about this type of crude treatment of Kiiza Davis and others in Rukungiri, who also suffered they will ensure that never again should our citizens be mistreated during electioneering period and on election eve/day.

Further, in my view, involvement of PPU soldiers in harassing petitioner’s supporters and campaign agents offended the principle of fairness. Mr. Aziz Kasujja’s (Electoral Commission’s chairman) letter to the President clearly shows that the Army ought not to have been deployed in the electoral process. He stated inter alia:

“We also expect that the deployment of PPU is made where the President is expected to be as this is a facility that your Excellence is entitled to as the incumbentThe Commission therefore would therefore like to request you as commander-in-Chief of the Armed Forces to instruct armed personnel not to do anything that would be interpreted as interference in the electoral process contrary to law and thus jeopardise the democratisation principles that our country has embarked on….

Clearly, the evidence in the affidavits received from Rukungiri (already referred to) shows that PPU soldiers under Capt. Ndahura interfered with petitioner’s election campaigns and those of his campaign agents and supporters. On petitioner’s last rally in Rukungiri, he found his supporters stricken by tear exerted on them by PPU. At the end of his rally, one supporter was shot dead and 1 4 were injured. Yet, the respondent was not having a rally in Rukungiri and therefore, they ought not to have been in that animosity where they would have clashed with petitioner’s supporters. It was submitted that whereas section 21(1) of the Presidential Elections Act permits the incumbent (President) to continue to use his facility as the President, the powers given to him to use those facilities did not extend to an area where he would use the facility to take unfair advantage over his opponent. The petitioner cited Tanzanian case of AG v Kabourou 1995 2 LCR at page 776-777. Where the Tanzanian Court of Appeal held that it would have been unconstitutional to impose on the President who was also the Commander-in Chief restrictions which adversely affected his ability to discharge his official responsibilities. Nevertheless the principle of fairness in an election required that a President should not use Government property or employees during the election campaign in a manner which was not necessary for his personal security or the discharge of the responsibilities of the office of President or Commander-in —Chief is prohibited in accordance with the principles of fairness.

How is it in the instant case? I must point out that the Tanzanian case is not binding on us. However, it is of great persuasive authority to us and unless there is good reason to depart from it, I would apply it. In our case, the PPU soldiers are government employees in the Ministry of Defence. They are assigned to the President as his Presidential Protection Unit to provide security even when he is campaigning for re-election.
Section 21(2) provides:

“Notwithstanding sub-section (1), a candidate who holds the office of President, may continue to use during the campaign, but shall use only, those Government facilities which are attached to and utilised by the holder of that office.”

In this case, the PPU were stationed in Rukungiri waiting for candidate Museveni Yoweri Kaguta to return for another rally. In his absence, it appears from the evidence that they involved themselves in the local politics of the area and assisted supporters of candidate Museveni Yoweri Kaguta in harassing and intimidating petitioner’s supporters. If however, because they were left alone, they started misbehaving by harassing and intimidating supporters of the opponent of their boss, he (1st respondent) would not in my view, be vicariously liable for their acts unless there is evidence that he had knowledge and consented or approved of what they did. However, in my view, the consequences of their acts upon the petitioner’s electioneering activities would seriously undermine the principle of fairness in the presidential elections.

It must be noted that although Capt. Ndahura denied having permitted PPU soldiers to harass, intimidate and terrorise petitioner’s supporters and interfere in his electioneering activities in Rukungiri and Kanungu, the evidence of Hon. (Major. Rtd) Okwir Rabwoni, Mpwabwooba Callist, James Musinguzi, Byamuhangi Kaguta was so convincing that I had no alternative but to accept it as truthful. Even Capt. Ndahura admitted having sent his vehicle to Rugyeyo to assist police disperse an illegal rally by Hon. Major (Rtd) Okwir. In my opinion, it is not surprising that Capt. Ndahura denied involvement, because he would not accept to have been involved in what PPU soldiers were accused to have done in Rukungiri and Kanungu. Otherwise, the evidence was clear that the PPU soldiers were used by supporters of the 1^st respondent to intimidate and harass petitioner’s supporters whom they described as rebels.

It is my opinion therefore, that their involvement in harassment and intimidation of petitioner’s supporters was a breach of principle of fair play in the Presidential Electoral process.

On the issue of secret ballot using one ballot box for all candidates, this was intended to ensure that each elector gets a clean ballot paper and goes to an open space where he ticks or marks the candidate of his own choice secretly and thereafter, he or she slides the ballot paper into the ballot box when people are looking on. This can fairly be done when polling officials are neutral. However, when campaign agents of certain candidates are used as polling officials, then problems of impartiality comes in question; problem of pre-ticking of ballot papers in favour of individual candidates will crop up which was an abuse of the Presidential Elections Act. It was therefore wrong for 2 respondent to permit campaign agents for 1^st respondent to act as presiding officers or elections officials.

When Section 28(1) of the Presidential Elections Act states that the Commission shall by notice in the Gazette publish a list of the polling stations in each constituency at least fourteen days before nomination that is done for purpose of ensuring fairness and transparency. The 2^nd respondent was in error when it created 1176 polling stations on the eve of polling day. It ought to have known that unless the candidates were fully aware of these new stations before the nomination day, it would not practically be possible for them to appoint polling agents to safeguard their interest on 1 2/3/2001.

In my opinion, the general conclusion on whether the presidential elections was conducted in accordance with the principles laid down in the provisions of the

Act, I think that taking Uganda as a constituency for the election of the President, although principles of free and fair election were compromised in Districts like Rukungiri, Kanungu, Kamwenge, Kabale and to a certain extent Ntungamo, Kamwenge, Mbale and Mbarara, the election was partially conducted in accordance with the principles laid down in the Act, but:

1. 
   In some areas like Rukungiri, Kanungu and Kamwenge, the principles of free and fair election was compromised.
   
2. 
   In the special polling stations for soldiers and those announced on 1 1th March 2001, the principle of transparency was not applied, and
   
3. 
   There was evidence that in a significant number of polling stations, there was cheating.
   

I now turn to 3 issue of whether, if the 1^st and 2^nd issues are answered in the affirmative, such non-compliance with the provisions and principles of the said Act affected the result of the election in a substantial manner.

I shall now determine whether the non-compliance with the provisions of the Act affect the result of the election in a substantial manner?

The onus was on the petitioner to prove to the satisfaction of the court that the non-compliance with the provisions of the Act affected the result of the election and that it did so in a substantial manner. It was not enough to prove only that there was non-compliance but also to prove that the non-compliance affected the result of the election and that it did so in a substantial manner.

I think that it was necessary to know the number of votes the 1^st respondent polled, which he would not have obtained had it not been for non-compliance with the provisions of the Act in a substantial manner. The petitioner never adduced evidence to prove to the satisfaction of the court that the 1 respondent unfairly got votes, which should have been petitioner’s votes. The petitioner had the onus to prove to the satisfaction of the court that the non-compliance with each of the provisions of the Act affected the result of the election in a substantial manner. It was not enough to allege and even prove the non- compliance with the provision of the Act without going further to prove or show that as a result of that non-compliance, the petitioner lost so many votes or that the 1 respondent got those votes which he ought not to have got had it not been for the non-compliance with the provisions of the Act; and that these votes from each of the complaint of non-compliance with the law affected the result of the election in a substantial manner.

For instance, there was an attempt by Mr. Mukasa David Bulonge in his affidavit sworn on April 2001 to prove that on the eve of the polling day 1176 new polling stations were created by the 2^nd respondent.

So here Mr. Mukasa David Bulonge attempted in his affidavit to prove that the 2 respondent created new polling stations on 11^th March 2001 which affected the number of polling stations and that these new polling stations announced had no corresponding voters’ Rolls. What I must observe, however, is that what was required of Mr. Mukasa David Bulonge was to go further than that. There was need to prove that from these 11 76 new polling stations several thousand votes were expected or were cast, and that these were cast in favour of the respondent, (if that is what Mr. Mukasa David Bulonge intended to prove). As I have already stated, the onus was on the petitioner to prove that the noncompliance with the provisions of the Act affected the result of the election in a substantial manner.

What seems not to be clear for the petitioner is the extent to which noncompliance with the provisions of the Act had on the result of the election. Mr. Frank Mukunzi the analyst expert for petitioner appeared to have conceded that it was not possible to determine to what extent the errors affected each candidate. In his affidavit sworn on 1^st April 2001, Mr. Frank Mukunzi stated in the executive summary of his work as follows:

“The analysis has revealed that whereas the electoral commission presents figures with precisions, they are grossly inaccurate. The analysis has further revealed an error margin of over 50% in the electoral commission’s figures of the voter’s registers. This error is so significant that the possibility of the actual poll result showing a different picture from the one given by the electoral commission cannot be ruled out. However, from the data that was availed it was not possible to determine to what extent the above errors affected each candidate. A recount and audit of the voters register would be the most accurate and precise way of establishing the practical out of the 2001 Presidential Elections.”

It is, however, surprising that despite the above finding by petitioner’s expert, Mr. Walubiri, one of the Counsel for petitioner, submitted that we should not base our judgment on the decision of Mbowe v Eliu-foo 1967 EA 242 where the determining factor was the winning majority votes which was so large that a substantial reduction still left the successful candidate with a wide margin.

Sir George CJ., held in the above case as follows:

“But when the winning majority is so large that a substantial reduction still leaves the successful candidate a wide margin then it cannot be said that the result of the election would be affected by any particular noncompliance.”