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

AN. KAROKORA
JUSTICE OF THE SUPREME COURT.


REASONS FOR JUDGMENT OF MULENGA JSC

The Petitioner above named, petitioned this Court seeking a declaration that Museveni Yoweri Kaguta, the 1st Respondent, was not validly elected as President in the election held on 12th March 2001, and praying that the election be annulled. The petition was heard and concluded in April, 2001. On 21st April 2001, the Court delivered judgment dismissing the petition, and intimated that the detailed findings and reasons there for would be given on a later date.

A summary of the facts and background of the case, as well as the issues framed out of the pleadings, were set out in the judgment of the Court. I will refer to them, where necessary, as and when I discuss my findings on the issues.

The trial was on affidavit evidence, and had to be expedited so as to be concluded within a short period fixed by the Constitution. In order to avoid taking up much time on preliminaries, legal issues that would ordinarily have featured in form of preliminary objections, were argued along with the framed issues, and the rulings thereon were deferred to be given with the answers to the framed issues. The rulings on those legal points were, however, not given in the judgment of the Court. I will first address them, along with some broad propositions arising from counsel’s arguments, before tackling the framed issues.

Counsel on both sides addressed the Court eloquently on the significance and enormity of this petition, stressing its historical perspective, and differing only on emphasis. On the one hand Mr. Balikuddembe, lead counsel for the Petitioner, emphasised that an election petition is the mechanism put in place by the Constitution, through which the right of the people to freely elect their government can be redeemed, where that right has been defrauded through rigging of elections. Counsel recalled, and invited the Court to do the same, that when they adopted the new Constitution in 1995; the people of Uganda terminated a long history of political and constitutional instability, and in order to rid the country of tyranny and oppression, put in place a new order based on democracy and respect for human rights. For that purpose, there was entrenched in the new Constitution, institutions and principles meant to ensure active participation of the citizens in their governance, and in particular to ensure that the citizens elect those to govern them in free and fair elections. Counsel stressed the fact that this was the first petition of its kind in this country, where the election of a President was being challenged in a court of law rather than by force of arms. He opined that the Court decision on it would have tremendous effect on the future of the new order, and therefore, on democratic governance in this country. He invited the Court to uphold the values underlying the new order, and by allowing the petition, set the proper precedent based on those values.

On the other hand, Dr. Khaminwa, second lead counsel for the 1st Respondent, and Mr. Kabatsi the learned Solicitor General who appeared for the 2nd Respondent stressed that the petition was of particular importance because it was about the election of the President of the Republic of Uganda, who is vested with the executive power of the nation. Accordingly, “the importance of his election and the vital character of its relationship to, and effect upon the welfare and safety of the whole people cannot be too strongly stated.” Counsel argued that the provisions of the Constitution setting up special procedure for challenging the result of a Presidential election, namely vesting exclusive jurisdiction in the Supreme Court, and fixing time limit within which to decide on such challenge, underscored the importance to be attached to the Presidential election. It was also stressed that the election of the President involved the entire electorate of the country and that it should not be overturned lightly at the risk of negating or frustrating the will of the majority which, is reflected in the results of the election.

To my mind the two propositions are complimentary and not opposed to each other.

The importance of the petition lies both in its historical perspective, and in the fact that it involves dispute over the election to the highest office in the country. In that election the people of Uganda set out to exercise their power and inherent right to choose their President in accordance with the electoral law entrenched in the Constitution and the statutes enacted there under. At the end of the exercise a dispute arose as to the validity of the result. That dispute came to this Court essentially to determine two cardinal questions. First the Court had to determine whether the result was not a true reflection of the free choice of the majority of the electorate as contended by the Petitioner. If the Court found that because of the diverse irregularities alleged and proved by the Petitioner, the free will of the majority of the electorate was obscured, defrauded or otherwise frustrated, this Court was under a solemn duty to annul the election. But if the Court found that despite the irregularities alleged and proved, the result was a true reflection of the free will of the majority of the electorate the Court was bound to respect and uphold it. That dichotomy is rooted in the provisions of S.58 (6) (a) of the Act and was subject for determination under framed issues numbers 1, 2 and 3. Secondly the Court had to determine whether the illegal practices and offences alleged in the petition were committed by the Petitioner or by others with his knowledge and consent or approval, in relation to the election, thereby invalidating the election. That question was subject for determination under the fourth framed issue. The Court had to exercise great care in determining those questions because of the gravity of the consequences, not only for the immediate, but also for the future democratic governance of the country.

Subject to the evidence brought before it, the Court had to avoid upholding an illegitimate election result as much as it had to avoid invalidating a legitimate result. Needless to say, that the Court, as enjoined by the Constitution, had to exercise that role “in conformity with law and with the values norms and aspirations of the people” which are embodied in the Constitution. That brings me to the next broad subject on which counsel addressed the Court, namely the burden and standard of proof.