The republic of uganda in the supreme court of uganda at kampala
Paragraph 3(1) (k) of the Petition: Intruders into 2
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Paragraph 3(1) (k) of the Petition: Intruders into 2nd Respondent’s offices. ========================================================= “(k). That Contrary to the provisions of section 12(1)(f) and section 18 of the Electoral Commission Act, the 2nd Respondent failed in its Statutory duty of properly compiling and securely maintaining the integrity of the National Voters’ Register and Rolls when it (the 2nd Respondent) failed to take steps to ensure that intruders were prevented from tampering with the Voters’ Register and Rolls and voting materials in its possession as it happened a few days before the 2nd Respondent completed compiling the Final Voters’ Register on 10th March, 2001.” In its answer to the Petition, the 2nd Respondent’s reply to this ground of Petition is that: “10. In reply to paragraph 3(1)(k) of the Petition, the 2nd Respondent avers that no intruders ever tempered with the Voters’ Register and Rolls or with voting materials in its procession for compiling of the Final Voters’ Register as alleged or at all” Section 12(1) (f): “12(1) The Commission shall, subject to, and for the purposes of carrying out its functions under Chapter Five of the Constitution and this Act have the following powers (f) to take steps to ensure that there are secure conditions necessary for the conduct of any election in accordance with this Act or any other law.” Section 18 of Act 3/97 has already been reproduced earlier in this judgment. The Petitioner’s learned Counsel did not make any submission on this ground of the Petition. Nor did the 2nd Respondent submit in reply. The ground was not proved by any affidavit evidence. Nor did the 2nd Respondent adduce any evidence in opposition. In the circumstances, I find that this ground of the Petition was not proved at all. It must therefore, fail. Paragraph 3(1) (I) of the Petition — Arrest of Hajati Miiro: ========================================================= “(1) That Hajati Miiro a Member of the Respondent failed to live up to the Oath of Office as a result of which she was arrested in connection with electoral offences. Hajati Miiro, a Member of the 2nd Respondent was arrested and detained by the Police and charged in Court with two other Seminar Officers in charge of the Data Centre of the 2nd Respondent for being found to have indulged In practices amounting to electoral offences contrary to section 70 of the Act. Thus seriously undermining the whole electoral process.” The 2nd Respondent’s answer to this ground of the Petition is that: “11. In reply to paragraph 3(1) (l) of the Petition, the Respondent avers that Hajati Miiro and two other employees of the 2nd Respondent were arrested and charged in Court and their cases have not been finalized. Furthermore, there is no evidence that the Commission of the alleged offences if any, affected the results of the election substantially as alleged or at all and in any event this matter is subjudice. Section 70 of the Act creates a long list of offences under the Act. It is not necessary to reproduce the long list of offences in this judgment. Only some examples may be given. These include forging, counterfeiting or destruction of ballot paper; without authority, supplying ballot paper to anybody etc. In his submission, Mr. Balikuddembe mentioned Hajati Miiro’s case as an example of the 2nd Respondent’s failure to organize a free and fair election. Mr. Kabatsi said in his reply that the case is still in Court. Until proved guilty she is still innocent of the offence with which she has been charged. In his affidavit filed with the Petition, the Petitioner said: “49. That I know that Hajati Miiro a Member of the Electoral Commission was arrested together with two other Senior Officers in the Data Centre of the Electoral Commission the Polling day and were charged in Buganda Road Chief Magistrate’s Court with electoral offences and I herewith attach a copy of the Charge Sheet and is marked “P20.” The affidavit of Mr. Kasujja, supporting the 2nd Respondent’s Answer to the Petition said: “17. That in response to paragraph 49 of the Petitioner’s affidavit while It is true that Commissioner Miiro and two other officers were arrested and charged in Buganda Road Court they are not yet tried or convicted and one therefore, presumed innocent and their cases are subjudice.” The charge in question is dated 14-03-2001 and was prepared at the CID Headquarters, as reference E/71/2001. It cites Mrs. Miiro Nassanga Hadija, a Member of the Electoral Commission; Timothy Wakabi, a Statistician, working with the Electoral Commission; Ibrahim Lutalo Acting Head of Voter Registration Department, Electoral Commission as co-accused. They are charged jointly on two counts. The offence in Count I is abuse of Office, contrary to Section 83 of the Penal Code Act, the particulars of which are that between February and March, 2001, at Plot No. 53/56 Jinja Road in Kampala District being persons employed by the Electoral Commission as Members of the Commission, Acting Head, Data Processing Department and Acting Head — Voter Registration Department respectively, did for purposes of rigging the Presidential Election 2001, and in abuse of authority of that office, arbitrary acts prejudicial to the rights of the Electoral Commission in that they printed excess Voters’ Cards in various names and for various electoral areas. The offence charged in Count 2 is Neglect of duty, contrary to section 108 of the Penal Code Act. The particulars are that all the three accused persons on the same date and place, being persons employed by the 2nd Respondent, neglected to print the correct number of Voters’ Cards thereby resulting in printing of excess Voters’ Cards. The Director of Public Prosecution gave written consent to the charge. Under section 83 of the Penal Code Act, on conviction, the maximum sentence is seven years imprisonment and under section 108, the maximum sentence is five years imprisonment. These may be contrasted with the punishments for offences under section 70 of the Act, which is a fine not exceeding Shs. 100,000= or imprisonment not exceeding five years or both under the Penal Sections there is no alternative of a fine. By charging the accused persons in question under the Penal Code Act the prosecuting authority, in my view, appears to have considered that the offences the accused persons are accused of are more serious than the offences under the Act. Be that as it may, the accused persons are no more than that. They are innocent until they are proved guilty. However, their being suspected and charged in Court with electoral offences does not speak very well of the image of the 2nd Respondent as a respectable Electoral Commission which should organize and conduct a clean election, a free and fair election. This is because the accused persons are very high officials of the 2nd Respondent, not minor officials whose misdemeanours could not have serious consequences. They are charged with offences of dishonesty in the process of election, allegedly committed in the course of their duties. Although they are still innocent, an adverse interference to a limited extent about the 2nd Respondent is in, my opinion, inevitable. As the officials in question of the 2d Respondent are not convicted of the electoral offences they are charged with there is no evidence that this ground has been proved by the Petitioner. Ground 3(1) (l) of the Petition must, therefore, fail. Paragraph 3(1) (m) of the Petition: “(m) That contrary to section 12(b) and (c) of the Electoral Commission Act, 1997, the 2nd Respondent failed to control the distribution and use of ballot boxes and papers resulting in the Commission of numerous election offences under part X of the Act as hereunder:
In the result, a Commissioner and other officials of the Electoral Commission were arrested on the Election Day and charged on 14-03-2001.” In its Answer, the 2nd Respondent replied to this ground of the Petition as follows: “12. In reply to paragraph 3(1) (m) of the Petition the 2nd Respondent avers that:
The complaints made in this ground of the Petition are similar to those I have already dealt with in this judgment under paragraphs 3(1)(j), 3(1)(i) and 3(1)(l), which also disposes of paragraph 3(1)(m), except for the issue of the effects of the incidences of non-compliance on the result of the election. So I shall not consider 3(1) (m) separately. It would be unnecessary repetition. Paragraph 3(1)(s) of the Petition: “(s) That contrary to section 47 of the Act, the 2nd Respondent’s agent/servants in the course of their duties, denied the Petitioner’s Polling agents information concerning counting and tallying process.” The 2nd Respondent answered this ground of the Petition as follows: “17. In reply to paragraphs 3(1)(s) and (t) of the Petition, the 2nd Respondent avers that it freely allowed Polling agents of all candidates access to information concerning the counting and tallying process and there was no forced absence of the Petitioner’s agents as alleged.” The complaints raised in this ground of the Petition are similar to those in paragraphs 3(1 )(g) and (p) of the Petition, which I have already dealt with in this judgment, save for the issue of the effect of those paragraphs on the result of the election, which I shall consider later in this judgment. It would therefore, be unnecessary repetition to consider paragraph 3(l)(s) separately.
“(t) Contrary to section 47 of the Act the 2nd Respondent’s agents/servants allowed the voting and carried out the counting and tallying of votes in the forced absence of the Petitioner’s agents whose duty was to safeguard the Petitioner’s interests by observing the voting, counting and tallying process and ascertain the results.” The 2nd Respondent made one reply to this and ground 3(1) (s) of the Petition. The reply has been reproduced underground 3(1) (s) above. This ground of the Petition makes complaints similar to those in ground 3(1) (g) and (p), which I have already considered in this judgment, except the effect of the non — compliance on the results of the election, which I shall deal with later in the judgment. Paragraph 3(1) (u) of the Petition: “(u) That contrary to section 56(2) of the Act, the 2nd Respondent declared the results of the Presidential Election when all Electoral Commissioners had not signed the Declaration Form B.” The 2nd Respondent’s Answer to the Petition replied to this ground of the Petition as follows: “18. In reply to paragraph 3(u) of the Petition, the 2nd Respondent avers that the results of the Presidential election were declared in compliance with the law and in particular s. 56(2) of the Presidential Elections Act.” Ascertainment, publication and declaration of the Presidential Election results are governed by section 56 of the Act. “56(1). The Commission shall ascertain, publish and declare each in writing under its seal, the results of the Presidential Election within forty-eight hours from the close of polling. (2). The declaration under subsection (1) shall be in Form B or C as specified in the Seventh Schedule to this Act as the case may be.” Form B is used when there is a winning Candidate as there was in the instant case. However, not all the seven Member of the 2nd Respondent (including the Chairman and the Deputy Chairperson) signed the declaration of results form, annexture R. 1. to Mr. Aziz Kasujja’s affidavit, filed with and in support of the 2nd Respondent’s Answer to the Petition. All, except one member, signed it. Mrs. Miiro Nassanga Hadija is the 2nd Respondent’s Member who did not sign the results declaration Form. This may be because she was already involved with the Criminal Charge referred to earlier in this judgment. The 2nd Respondent declared the results under its power provided by article 103(7) of the Constitution, which is repeated in section 56(1) of the Act, which I have reproduced above. The Constitution and Act 3/97 are silent on how the seal of the 2nd Respondent may be applied. Section 10 of Act 3/97 simply says: “10. The Commission shall have a seal which shall be in such a form as the Commission may determine and shall, subject to the provisions of any law be applied in such circumstances as the Commission may determine.” Under section 8 of Act 3/97, the quorum of the 2nd Respondent is five and its decision should, as far as possible, be by consensus. If a consensus cannot be obtained decision is by majority. By article 60(1) of the Constitution, its composition is seven Members, including the Chairperson and the Deputy Chairperson. Consequently a majority may consist of four Members. The declaration of results under consideration was signed, and presumably sealed, by six Members, more than the required majority. This was not contrary to the law. Consequently there was not any non-compliance with the Act by the 2nd Respondent in this connection. Ground 3(1) (u) of the Petition must therefore, fail. The grounds of the Petition Which I have so far dealt with in this judgment do not include those which allege that the 2nd Respondent did not comply with provisions of the Act with regard to alleged violence intimidation, harassment and threats against the supporters and/or agents of the Petitioner by the military in general and the PPU in particular. Evidence adduced indicates that violence; harassment, intimidation and threats were also perpetrated by others, such as RDC’s, Deputy RDC’s, LDUs, vigilantes, GISO, L.C. officials and the 1st Respondent’s agents or supporters. Certain grounds of the Petition also allege that the 1st Respondent used the army, the PPU and others to perpetrate such threats, harassment and intimidation to interfere with the Petitioner’s electioneering activities. Such allegations against the 2nd and 1st Respondents are supported by the same pieces of evidence and have been argued together by the respective learned counsel of the three parties. I shall, therefore, set out the grounds in question together. They are: “3(1) (n). That contrary to section 25 of the Act, the 1st Respondent’s agents/ supporters interfered with the electioneering activities of the Petitioner.” “3(1) (r). That contrary to section 42 of the Act the 2nd Respondent and its agents/ servants in the course of their duties allowed people with deadly weapons to wit soldiers and para military personnel at polling stations, a presence which intimidated many voters to vote for the soldier’s boss and candidate Museveni while many of those who disliked to be forced to vote for that candidate stayed away and refrained from voting at all” “3(1) (v). Contrary to section 12(1) (e) and (f) of the Electoral Commission Act, the 2nd Respondent failed to ensure that the entire Presidential electoral process was conducted under conditions of freedom and fairness and as a result your Petitioner’s and his agent’s campaign were interfered with by the unit and the para Military personnel such as that led by Major Kakooza Mutale. (w). That the Petitioner’s agents and supporters were abducted and some were arrested by the Army to prevail upon them to vote for the First Respondent or to refrain from voting, contrary to section 74(b) of the Act.” “3(1) (y). In the results such non-compliance with the provisions of the Presidential Elections Act, 2000, and the Electoral Commission Act aforesaid affected results in a substantial manner as hereunder: (vi). The Petitioner was unduly hindered from freely canvassing the support by the presence of Military and paramilitary personnel who intimidated the voters.” “3(2) (c). Contrary to section 12(1) (e) and (f) of the Electoral Commission Act the 1st Respondent appointed Major General Jeje Odong and other partisan senior military officers to take charge of security of the Presidential Election process and thereafter a partisan section of the army was deployed all over the country with the result that very many voters either voted for the 1st respondent under coercion and fear or abstained from voting altogether. (d) That contrary to section 25 (b) of the Act the Respondent organized groups under the Presidential Protection Unit and his senior Presidential Advisor one Major Kakooza Mutale with his Kalangala Action Plan paramilitary Personnel to use force and violence against persons suspected of not supporting candidate Museveni thereby causing a breach of peace, disharmony and disturbance of public tranquility and induce others to vote against their conscience in order to gain unfair advantage for candidate Museveni in the Presidential Election.” (e) …………………………. (2)(f). The aforesaid illegal practices and offences were committed by the 1st Respondent personally or and his agents and supporters with his knowledge and consent or approval through the military, Presidential Protection Unit and other organs of the state attached to his office and under his command as the President, commander in Chief of the Armed Forces, Minister of Defence, Chairman of the Military Council, and High Command and chairman of Movement Organization.” In his answer to the Petition, the 1st Respondent replied to some of grounds targeted at him, which I have just reproduced, as follows: “2. it came to the 1st Respondent’s knowledge that Hajati Miiro was arrested and charged in Court with two others but it is specifically denied that the 1st Respondent’s agents/supporters did interfere “with the electioneering activities of the Petitioner and his agents” as alleged and the 1st Respondent contends that the entire Presidential Election process was conducted under conditions of freedom and fairness and that the 1st Respondent obtained a lot more than 50% of valid votes of those entitled to vote.” The 1st Respondent therefore, states that he has no personal knowledge of and does not admit the contents of paragraph 3(i) of the Petition.” The numbering “3(1)” appearing in the immediately foregoing paragraph of the 1st Respondent’s Answer must be an error, because paragraph 3(I) does not exist in the Petition.
“5. The contents of paragraph 3(2)(c) and (dl of the Petition are denied and the 1st Respondent will say that the entire electoral process was conducted under conditions of freedom and fairness and secure conditions necessary for the conduct of the election in accordance with the Act and other laws.” In its Answer to the Petition the 2nd Respondent replied to the grounds of the Petition which concern it and which I have reproduced above. Some of its replies tend to repeat what the 1st Respondent pleaded in his Answer. “19. In reply to paragraph 3(1) (v), of the Petition, the 2nd Respondent avers that the Presidential Election process was conducted under conditions of freedom and fairness and the 2nd Respondent denies any knowledge of any interference with the Petitioner’s or his agents’ campaigns, and that if there was any interference, which is not admitted, there is no proof that it affected the campaigns the electoral process or the result of the election in a substantial manner or at all. 20. In reply to paragraph 3(1) (w) of the Petition, the 2nd Respondent denies any knowledge of abduction or arrests of the Petitioner’s agents and supporters to prevail upon them to vote for the 1st Respondent or for any other candidate. 21 ……………… 22. In reply to paragraph 3(1) (y) of the Petition, the second Respondent avers as follows: (g) The Second Respondent did not hinder the Petitioner from freely canvassing for support but on the contrary the Petitioner traversed the whole Country during the campaign period. 23. In reply to paragraph 2 of the Petition, the Second Respondent denies any knowledge of the allegations imputed against the first Respondent and it is not aware of an illegal practices or offences committed by the First Respondents his agents and/or supporters with his knowledge and consent or approval as alleged or at all 24. That the Second Respondent avers that there is no evidence that there was non — compliance with the Presidential Act 2000 which affected the results of the Presidential Elections in a substantial manner or at all and that there is no evidence of any illegal practices or offences committed by the First Respondent, his agents and/or supporters with his knowledge and consent or approval as alleged. 25. The 2nd Respondent avers that the elections were free and fair as it reflected the wishes of the majority of Ugandans and international observers who monitored the elections throughout the Country confirmed this position.” Section 12(1) of Act 3/97 provides: “12(1). The Commission shall, subject to and for the purposes of carrying its functions under Chapter Five of the Constitution and this Act, have the following powers:
Section 25(c) of the Act provides: “25. a person who, before or during an election for the purpose of preventing the election of a candidate either directly or indirectly –
Section 42 of the Act provides: “42(1). No person shall arm himself or herself during any part of polling day, with any deadly weapon or approach within one kilometer of a polling station, with deadly weapon unless called upon to do so by lawful authority or where he or she is ordinarily entitled by virtue of his or her office to carry arms.
Section 74 of the Act states: “74. A person commits the offence of influence –
Mr. Walubiri the petitioner’s learned Counsel who made submissions on the Petition’s complaints against activities of the military and the PPU, directed his arguments at allegations that the 1st Respondent, by deployment of the Army, committed illegal practices or other offences under the Act personally or with his knowledge and consent or approval. Commission of illegal practices or other offences in relation to the Presidential Elections is relevant to issue number four of the Petition. In his reply, Dr. Byamugisha the 1st Respondent’s learned Counsel, also concentrated his counter arguments on the 1st Respondent’s alleged commission of illegal practices or offences through the Army. In my view, the same arguments as have been made by the respective learned Counsel of the petitioner, the 1st and 2nd Respofldeflts1 and evidence adduced by all the three parties concerning the activities of the military and PPU whether in respect of allegations against the 1st Respondent or the 2nd Respondent also applies to the grounds in question of the Petition. I shall deal with the grounds of the petition concerned on that basis. In his submission under the foregoing grounds Mr. Walubiri contended that evidence adduced by the Petitioner proves that contrary to section 25 of the Act, the 1st Respondent personally or by his agents interfered with the Petitioner’s electioneering activities and committed an offence. The first limb of this Criminal interference, Counsel contended, was constituted by the 1st Respondent’s deployment of the Presidential Protection Unit (PPU) in Rukungiri and other Districts throughout the campaign period. This is pleaded in paragraphs 3(1) (v) and 3(2) (C) and (f) of the Petition. Learned Counsel referred to paragraphs 16, 18, 25, 26, 28 and 29 of the Petitioner’s affidavit in support of the Petition, giving details of PPU’s activities and how it was interfering with the Petitioner’s electioneering activities; it was shooting around and threatening voters. It killed one of the Petitioner’s supporters. In paragraphs 18, 19 and 20 of the Petitioner’s Reply to the 1st Respondent’s affidavit the Petitioner showed how the PPU, a facility attached to the 1st Respondent’s office as an incumbent, assaulted, intimidated and threatened voters to vote for the 1st Respondent and caused disharmony and breach of the peace throughout the campaign period in the entire Rukungiri and other Districts. So intense was the intimidation that one Baronda Johnson was shot and killed. Baronda’s Uganda Government Death Certificate, attached to the Petitioner’s affidavit, showed that he died of bleeding following gunshot wounds on 3-3-2001. The havoc wreaked by PPU a facility attached to and enjoyed by the 1st Respondent at the time, was reported by the Petitioner to the 2nd Respondent. The Chairman of the 2nd Respondent was also gravely concerned about the activities of the PPU and the Military that was threatening to wreck the election process. Consequently, the Chairman wrote passionately to the 1st Respondent, requesting him to intervene and save the democratic process. The letter of the 2nd Respondent’s Chairman dated 24-02-2001 is annexed as “P.9” to the Petitioner’s affidavit in reply. There is no evidence that the 1st Respondent replied to that letter. On the contrary, there is evidence that the PPU remained in Rukungiri to continue to terrorise the population in that District up to 12-03-
Learned Counsel said that there are a number of affidavits about the continued intimidation by the PPU. He referred to some of them as examples, such as those from Bernard Matsiko, Kakuru Sam, Koko Medard. Learned Counsel submitted further that the PPU also operated in Kanungu District, as indicated by the affidavit of John Hassy Kasamyamunyu, Mawa Bwooba Callist, Bashaija Richard, Owembabazi — who was so traumatised that he could not vote. All this was long after Mr. Kasujja’s letter to the 1 Respondent. Another witness about the PPU is Byomuhangi Kaguta. These are only examples of what was happening in Rukungiri which, learned Counsel contended, became a fortified area. What happened there clearly interfered with the Petitioner’s electioneering; he said Mr. Walubiri submitted that another limb of interference was the arrest, abduction and torture of Rwaboni by the Military Intelligence at Entebbe International Airport. In his affidavit in reply, the Petitioner gives in details the back ground to how Rwaboni came to be arrested and abducted at Entebbe Airport from where he was due to fly with Rwaboni to Adjumani to address a campaign rally. The affidavit of Hon. Winnie Byanyima, MP also gives an eye - witness account how Rwaboni was abducted. She recognized Captain Moses Rwakirate of the PPU as the person who was in charge of the operation. This was on 20-03-2001. The abduction made it impossible for the Petitioner to travel to Adjumani, because he had to find out why the Chairman of Youths of his campaign, Rwaboni, had been abducted. After his abduction, Rwaboni was never charged with any offence or produced in Court. So he was the victim of the illegal activities of the Military unleashed by the 1st Respondent to intimidate the Petitioner’s supporters and to interfere with the Petitioners electioneering activities. Learned Counsel submitted that paragraph 15 of the 1st Respondent’s affidavit in support of his Answer shows that he had knowledge of Rwaboni’s abduction and detention. Counsel submitted that as a result of what happened to him, Rwaboni had to flee to exile and he abandoned his campaign for the Petitioner. An account of how Rwaboni was arrested, tortured and detained is also narrated in his own affidavit. Because of Rwaboni’s torture at the hands of Military, the Petitioner lost a useful campaign agent. The third limb of interference, Mr. Walubiri submitted, was the general deployment of the Military throughout the Country. This forms the basis of grounds 3(1) (n), (r), (v), (w), and (y), (v) and (vi) and 3(2) (c), (d) and (f) of the Petition. Mr. Walubiri contends that the 1st Respondent does not deny deployment of the army. In his affidavit in support of his Answer to the Petition, the 1st Respondent said that the army was deployed because the Police was inadequate, but he claims in his Answer and the affidavit in support thereof that the elections were conducted under conditions of freedom and fairness and under secure conditions as a result of sufficient deployment of security Forces throughout the Country by the Government. The Army Commander, Major General Jeje Odong also deponed an affidavit in support of the 1st Respondent. The essence of that affidavit is that the army was deployed because the Police was not adequate to deal with the election process. The learned Counsel said that the Petitioner had two arguments on army deployment. First, on the evidence available, the Army did not provide security. Evidence on record shows that the Army arrested, tortured people and made it impossible for the Petitioner to campaign. For instance, in Rwaboni’s case, it could not have been the Army providing security, but insecurity. Learned Counsel then referred to the affidavits of Kimumwe A. Ibrahim, and Sulaiman Miiro of Bugiri, proving arrest and harassment by soldiers; the affidavit of Baguma John Henry, who was threatened with death by a soldier, when he protested against Kasese RDC’s allowing soldiers to vote more than once. John Kijumba of Kasese deponed that a soldier by the name of Kilindiro William told them that he had been sent by State House to arrest those campaigning for the Petitioner and that he had a list of the Petitioner’s campaign agents and supporters including him (John Kijumba). Examples from Mbarara District are found in the affidavits of Mary Francis Ssemambo, Boniface Ruhindi Ngaruye, and Alex Busingye. In Mbale District, an example is Masiro Stephen. In Kabale District, examples are Anteli Twahirwa, to whose affidavits are annexed copies of correspondences he wrote to the 2nd Respondent, complaining about intimidation and electoral malpractices. Sande Wilson, James Musinguzi who filed a complaint with the 2nd Respondent and the Police but there was no action in return. Patrick Matsiko Wa Mucoori from Ibanda a Sub — District. Orikiriza Livingston from Rukungiri District. Mr. Walubiri contended that these individual experiences showed that the Army was not deployed to provide security, but to harass the Petitioner’s agents and supporters. Learned Counsel submitted that there was a claim for legal basis for this Army deployment. The 1st Respondent, the Army Commander, and the Inspector General of Police, in their respective affidavits, claimed that the Army was deployed as part of the security team just as it had been done during the 1987 Currency Reform; 1989 expansion of the Constitution Assembly; 1992 Local Council elections and the 1999 Referendum. Counsel contended that Army deployment during those occasions was illegal. There were no legal provisions allowing it in the Currency Reform Statute No. 2 of 1987; in Legal Notice No. 1 of 1986 and Legal notice No. 1 of 1989, all were silent on army deployment. So was the R.C. Statute of 1987 as amended by Statute No. 5/92. The Presidential Election Statute, 1996 provided in section 7(1) thereof that the Electoral Commission shall provide security for protection of candidates. Under article 209 of the Constitution, the function of the Army does not include internal policing. That is the role of the Police under article 212 of the Constitution. Counsel further submitted that the makers of the Act were alive to those Constitutional provisions because in section 41(1) of the Act it is provided that where there is no Police Officer to maintain order in a rural Polling Station and the necessity to maintain such order arises, the Presiding Officer shall appoint a person present to be an Election constable to maintain order in the Polling Station throughout the day. This function of maintenance of order at Polling Stations is normally the duty of the Police. Counsel contended that if the Army had to be deployed to do internal policing, it must have been presumed that there was a state of emergency under Article 209 of the Constitution. There was no state of emergency declared by the President, which would have legalized deployment of the Army. Deployment of the Army and the PPU by the 1st Respondent personally involving harassment and intimidation, as the evidence shows, constituted the offence of undue influence under section 74 of the Act. The learned Counsel further submitted that deployment of Major Kakooza Mutale and his Paramilitary Kalangala Action Plan resulted in harassment, intimidation of the Petitioner’s supporters. It also interfered with his electioneering activities. Major Kakooza Mutale doubled as a Presidential Advisor. Learned Counsel said that this is the subject of ground 3(2) (d) of the Petition and is supported by paragraph 15 of the Petitioner’s affidavit in support of the Petition. Dr. Byamugisha, the 1st Respondent’s lead Counsel replied to Mr. Walubiri’s submission regarding ground 3(2), starting with ground 3(2) (c), which alleged contravention of section 1 2(e) and (f) of the Electoral Commission Act. Section 12(1) (e) and (f) has already been reproduced in this judgment. Dr. Byamugisha referred to the affidavit in reply of Major General Jeje Odong, the Army Commander (referred to hereafter as “Jeje” for the sake of brevity), which replied to the Petitioner’s affidavit The learned Counsel contended that according to the affidavit in reply, the purpose of deployment of the army was not to coerce voters but to improve security. A letter dated 8-3-2001, written by Mr. Kasujja to the Petitioner and two other candidates in reply to their letter of 7-3-2001, raising issues of violence, intimidation, and other electoral flaws, said that the 2nd Respondent had written to the Head of State as the Commander in Chief of the Armed Forces to contain the army and to the Inspector General of Police, to ensure that the Police carried out their mandate under article 212 of the Constitution. The learned counsel submitted that following those communications, Mr. Kasujja’s letter said, that reports from the Police indicated that the security situation during the campaign had improved and acts of violence and intimidation had reduced considerably countrywide. The learned Counsel contended that this is supported by the affidavit of the Inspector General of Police (I.G.R) Mr. Kisembo. Learned Counsel also referred to the affidavit of Mayombo and of Major General Tinyefuza concerning the arrest of Rwabwoni. The affidavits in question, learned Counsel contended indicated that Rwaboni was arrested for his own safety because he was going to be killed in Adjumani. Not to force him to leave the Petitioner’s camp. Regarding the military and PPU in Rukungiri, the learned Counsel referred to the affidavit of Captain Atwoki B. Ndahura, the Commander of the PPU in Rukungiri at the material time. Learned Counsel contended that the witnesses to whose affidavits he has referred exonerate the 1 Respondent to the effect that he was not personally involved in intimidation. Counsel said that he would provide authorities relevant to the separation of the President and presidency. He referred to article 98(4) of the Constitution which provides that while holding office, the President shall not be liable to proceedings in any court, but article 104(8) provides that article 98(4) shall not apply to article 104, which is about challenging Presidential election. Regarding ground 3(2) (c) of the Petition, Dr. Byamugisha contended that there is no evidence of how many voters were coerced, how many feared or abstained. The same argument applies to ground 3(2) (d) of the Petition. Learned Counsel also submitted that the ingredients of section 25(c) of the Act must be proved. The Petitioner advanced no evidence on this. Regarding allegations about Major Kakooza Mutale’s activities, Dr. Byamugisha referred to Mutale’s affidavit, which shows who he is and what he does. The convention forming the Kalangala Action Plan group was held before the Presidential Elections candidates had been nominated. The group is not paramilitary as the affidavit shows and did not do things it is alleged to have done. In the circumstances, Counsel contended, the allegations in ground 3(2) (d) have been proved false. Regarding ground 3(2)(e) of the Petition Dr. Byamugisha referred to paragraph 12 of the 1st Respondent’s affidavit supporting his Answer to the Petition, which says that he never threatened to put the Petitioner six feet deep, nor stated as alleged in paragraph 3(2)(e) that prior to the election process, he made a statement on 27-11-2000, in his capacity as President and Commander In Chief, warning that any person who interfered with the army would be put six feet deep. The Statement was not made for the purposes stated in ground 3(2) (f) of the Petition.
Certain paragraphs of the Petitioner’s affidavit filed in support of the Petition state: “15. That during the whole period of the Presidential Election Campaigns the 1st Respondent deployed the Army and Major Kakooza Mutale’s Pare Military Personnel of Kalangala Action Plan all over the Country and directed the Army Commander, Major General Jeje Odong and other Senior Military Officers to be in charge of Security during the whole Presidential Election process and subsequent to this, my supporters campaign agents and myself were harassed and intimidated and a number of my supporters and campaign agents were assaulted and arrested. 16. That the Respondent deployed the Presidential Protection Unit soldiers in Rukungiri District as soon as the Presidential Election Campaigns started to protect his supporters and these PPU Soldiers intimidated and harassed my supporters and campaign agents all the time. 17. That on 16th February, when I went to address a Campaign Rally at Kamwenge Town in Kamwenge District, we found that agents and supporters of the 1st Respondent had organized themselves along the streets of Kamwenge Town carrying posters of the l’ Respondent, singing their campaign slogans and throwing stones at our vehicles and this interfered; with my campaign and my supporters were intimidated and assaulted. As the programme of Presidential Campaign shows the 1st Respondent was supposed to be doing his campaigns in Gulu on that day. A copy of this programme is attached and marked “P 10.” I also attach a copy of the Resolution of 6th February, 2001, by the Candidates’ agents regarding the Presidential Campaigns and it is marked “P11. “ 18. That on 2nd March 2001, at about 20.30 hours, I arrived in Rukungiri Town in a convoy of motor vehicles of my supporters who had met me at the Kahengye Bridge about 20 Km. From Rukungiri Town. As the convoy came into town, many Town residents who were my supporters came to the road side, clapping as a sign of welcome. I then saw many soldiers of the Presidential Protection Unit come from all directions wielding truncheons and sub-machine guns and started beating the people on the road side furiously causing them to run, screaming in all directions. The soldiers then attacked the people in the vehicles of our convoy and some came to the vehicle in which I was seated. The Policemen, who were detailed to me as my body guards, had to threaten to open fire in order to stave off this attack. 19. That our convoy continued slowly under the protection of the Police guards to my Village home, Rwakabengo. Many of the supporters who had been attacked by the presidential Protection Unit in the Town ran to my compound and spent the night there for fear of being attacked if they dared go back home that night. 20. That at about 23.30 hours, I went back to Rukungiri to Rondavels Hotel, where I found the Regional Police Commander Okwalinga and reported what happened that evening. I reported to him that I had information from them that the PPU soldiers planned to stop people from attending my rallies the following day. The Regional Police Commander assured me that he would effect deployments to ensure that our planned campaign rally would not be disrupted and that he was going to stay in the District personally to supervise the security for the period the presidential Election. 21. That on the 3rd March, I addressed rallies in Nyarushanje, Nyakishenvi, Kanungu, Kihihi, and at all places I observed that all my supporters were in terrible fear for their personal security because of the heavy deployment of the Presidential Protection Unit and Local Defence Unit in their respective areas by reason of intimidation and harassment. Yüklə 3,55 Mb. Dostları ilə paylaş:
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