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

(b) to preserve law and order

(c) to prevent and detect crime; and

(d) to co-operate with the civilian authority and other security organs established under this Constitution and with the population generally.”

It was under article 21 2 (d) that the Police requested the Army to assist them in maintaining security throughout the country. In my judgment it was not unconstitutional or illegal to deploy the UPDF to assist in maintaining security to ensure that the elections were conducted under conditions of freedom and fairness. Whether the Army exceeded its mandate or engaged in activities incompatible with its role during elections is another matter.

In Liversege v Anderson (1942) AC 206 Lord Macmillan stated at page 253,

“As Lord Park said in the Zamora (1916) 2 A.C. 77,107 those who are responsible for the national security must be the sole judges of what the national security requires. It would be obviously undesirable that such matter should be made the subject of evidence in a court of law or otherwise discussed in public.”

The evidence as a whole does not indicate that intimidation was caused by the general deployment of the Army. Intimidation was restricted to some areas where the soldiers would probably have been even if there was no general deployment. Places near barracks were a case in point. Another case is the PPU, which was deployed in Rukungiri for a specific purpose.
As regards the question of agency, I am of the view that the general principles of agency do not apply. Therefore English decisions and the case of Muwonge v Attorney General (1967) EA 17 are not applicable.

In view of the strict provisions of Section 65 (c) it must be proved that the illegal practices were committed by the agent with his knowledge and consent or approval. There was no express evidence that the 1st Respondent knew and consented or approved the acts of violence or intimidation, which were perpetuated by members of the UPDF. Reliance was placed on the letter written to the 1st Respondent requesting him to take action to save the electoral process from being derailed. There was no evidence that the 1st Respondent received the letter or consented or approved those actions. He expressly denied knowledge of them or their approval. The burden was on the Petitioner to prove this essential element in the illegal practice alleged. It would be dangerous to imply authorisation by the 1st Respondent merely because the soldiers belonged to the UPDF of which he is the Commander-in-chief. The purpose of the law would not be achieved by such an interpretation. A reasonable degree of guilty knowledge is required under the section.

In my judgement, the Petitioner failed to prove to my satisfaction that the 1st Respondent knew and consented or approved the illegal practices committed by members of the UPDF.