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

“No change, Kaguta.” They chased him back to his home. He later managed to reach the polling station at 7.00 a.m., and he voted. Kakuru noticed that all the Policemen who voted at the stadium were ordered to tick their ballot papers at an open table, in the presence of the GISO “boys.” When Kakuru identified himself, the Presiding Officer, one Tindyebwa Eugino, ordered him to sit far from the polling agents’ table, saying that the table was for government people, not for “rebels” like Kakuru and his colleagues. Tindyebwa and other officials started ticking ballots for people on the table. Kakuru objected and was manhandled and beaten up. Policemen looked on helplessly for they had earlier on been warned that they were known to be “anti — Museveni’” Kakuru was chased away from the polling station. He stayed at home until about 4.00 p.m. eventually, he said, all the Petitioner’s other agents were also chased away. At about 5.00 p.m. stone wielding thugs led by Stephen Rujaga, Rubondo and other 1^st Respondent’s task force members went on two pickups and surrounded Kakuru’s home, demanding that he should go and meet the RDC. He refused and he entered his house. They threatened to demolish his house, and that forced Kakuru to go with them. They took him to the polling station, where he was ordered to sign the declaration of results forms. He refused, and he was taken to the ROC, the Deputy RDC, the GISO and others. Kakuru said that he told all of them that he would not sign because he had not witnessed the balloting. They insisted and threatened him until he signed.

The Petitioner was allocated only one ballot paper per ballot box, from that cluster of polling stations. All other ballot papers ticked for the Petitioner were destroyed and the Petitioner ended up with only three voters in his favour, only after Kakuru and his colleagues had signed the declaration results forms were they allowed to go home.

The Chart shows that the affidavit of Sam Kakuru is rebutted by Captain Ndahura, but a scrutiny of Captain Ndahura’s rebuttal affidavit, dated 4-4-2001, shows that paragraph 4 thereof refers to Sam Kakuru, as follows.

“4. That I have read the affidavits of Bernard Matsiko, Kakuru Sam, Frank Byaruhanga and found them to certain falsehood.”

That is all that Captain Ndahura’s rebuttal affidavit says about Sam Kakuru’s affidavit. It says nothing else about it.

This implies that, according to Captain Ndahura, all that detailed evidence Kakuru said in his affidavit is made up. It is all false. I do not believe that denial any more than I have believed the Captain’s denial in respect of the other witnesses he has referred to in his affidavit.

In my view, Kakuru’s affidavit evidence is credible as against Captain Ndahura’s rebuttal for the reasons I have given for believing, for instance, the affidavit of evidence of Bernard Matsiko, whose evidence I have just considered in this judgment.

Byaruhanga Frank was an Administrator of the Elect Besigye Task Force. In his affidavit dated 23-03-2001, he deponed that on 3-3-2001, the Petitioner was scheduled to address a rally at Bikurungu in Bwambora Sub-County, Muhingi, but he could not do so due lack of time. Consequently, Byaruhanga and Hon. Robert Sebunya were sent to address the rally. On their arrival, Byaruhanga’s driver called Batuma was called aside by four soldiers of the PPU. The soldiers started beating the driver Oil the pretext that no one else was supposed to campaign that day except the Petitioner. Thereafter, the Area Chairman of the Petitioner’s Task Force, one Doma, was caned and his shirt stripped off by the PPU soldiers, who said that it was punishment for mobilizing and welcoming Byaruhanga, and his colleagues for the day’s campaign. The task force’s Sub- County agent was similarly called aside by the PPU and beaten for getting involved with the Petitioner’s group, “yet he was working with the Government.”

In such circumstances, the PPU started beating and Harassing people and ordering them to disperse. In the result, the rally was abandoned by the people, Sebunya and Byaruhanga. On 17-03-2001, at Rwerere, Rusoroza I, in Rujumbura, Byaruhanga was informed by one Erika Mukuru, the Petitioner’s agent1 that the presiding Officer, one Twinomatsiko Robert, who also acted as the 1st Respondent’s agent during the registration of voters and display of register exercise, had issued out many Voters’ Cards to persons not being the registered voters shown on the cards. The agents in the area kept an eye on Twinomatsiko until his shamba boy called Zikanga was caught with 20 Voters’ Cards in his pockets and was arrested by the local people. Byaruhanga tried to put Kikanga in his car to take him to the police but the presiding Officer refused on the ground that Byaruhanga was not an arresting Officer. Byaruhanga then rushed to Rukungiri District headquarters informed the DPC who gave him a car a Sergeant and a Prisons Officer. They then proceeded to the scene of the incident. On reaching there, they found that the L.C. Ill Chairman, one Turahimbise had ordered that the said Zikanga be released and that he had received order from Captain Ndahura of the PPU to release the man.

Byaruhanga further said that he was informed by one Gifuti Turinawe, the Petitioner’s agent at Kigugu I that the presiding Officer, one Kamutoro, of the neighbouring polling station Kagugu I and the Headmaster of Rwerere Primary School had been seen with Voters’ Cards and giving them to children. Byaruhanga proceeded to Kagugu I with Counselor James Bwete and Kamutoro who accepted cards at home where the said James and Byaruhanga then went. At home they got seven Voters’ Cards that were in his (Kamutoro’s) custody and another 20 cards from his daughter’s school uniform. The uniform and cards were retained by the police. In the meantime an observer from the American Embassy appeared. Byaruhanga and his colleagues briefed her about everything. She also interviewed the presiding Officer, about the anomalies. The presiding Officer admitted that there were under-aged voters and that he was forced to accept them to vote.

Captain Ndahura rebutted Frank Byaruhanga’s affidavit. In his rebuttal affidavit of 4-4-2001, Captain Ndahura deponed that on 3-3-2001, the Petitioner addressed a rally at Rukungiri Town. On that day, no PPU soldiers moved to Bwambara sub-County. It is not true that the PPU moved to Bwambara on 3-3-2001, beat up people or dispersed Sebunya’s rally as alleged by Byaruhanga, but it remained in camp until late in the evening when he (Capt. Ndahura) moved to town with his escorts in response to the shooting which he heard coming from town, to find out what was happening. Capt. Ndahura said that he never participated in the shooting. He further said that he was not aware of the allegation that one Zikanga was found with Voters’ Cards Capt. Ndahura also said that he never instructed Seezi or anybody else to release anybody in connection with election malpractices as alleged by the Petitioner’s witnesses.

I do not believe Captain Ndahura’s denials of the allegations made against him by Frank Byaruhanga in his affidavit. My reasons for doing so are the same as those I gave for disbelieving Capt. Ndahura’s denial of the allegations made against him by Bernard Matsiko. Another reason for not accepting Capt. Ndahura’s denial with regard to Byaruhanga’s affidavit evidence is that on the one hand the Captain said in paragraph 9 of his affidavit that on 3-3-200L the day the Petitioner addressed a rally in Rukungiri, the PPU remained in camp until late in the evening when he (the Captain) moved to town with escorts in response to the shooting which he had heard in town to find out. As all available evidence shows, that shooting was by the PPU. This means that the PPU could not have been in camp throughout until late in the evening when the Captain moved to the town in response to the shooting. The PPU could not have been contained in camp and at the same time shoot in town before the Captain moved out in response to the shooting.

I have already referred to the affidavit of Koko Medard in another context. In the present context, he said that throughout the District of Rukungiri, generally, army men whom he learnt were from the PPU were deployed and were prominently present throughout Kambuga, Kihihi, Kayonza and other places. He was traveling a lot and saw them every day for about three months. They used to move with Mugisha Muwhezi (Deputy RDC) who used to point out to them whom to harass. During the period they tore up the petitioner’s posters1 dispersed any group of three or more people, saying that they were the Petitioner’s supporters. When Rwaboni went to address people, they chased him away. They beat U a lot of the Petitioner’s supporters including Henry Kanyabitabo, Kalisti and many others. They rounded up the Petitioner’s supporters and put them in jail at Kambuga, such as the said Kanyabitabo who was eventually released but whose motor cycle was retained.

Incidents similar to the ones Kakoko has described, he said, were wide-spread in their area and the surrounding Counties and he personally witnessed many of them. In the circumstances it became impossible to hold a free and fair election. Since what he deponed to was mostly what he witnessed, belief is irrelevant. Koko’s affidavit was based on knowledge and belief. Kakoko’s affidavit was also rebutted by Mugisha Muwhezi, who said that he never traveled with the PPU to point out the Petitioner’s supporters to be harassed. He did not know who supported the Petitioner or any other candidate. He never harassed anybody or used PPU to do so. What I have said about Muwhezi’s rebuttal of Masiko’s affidavit, applies equally to his rebuttal of Koko’s affidavit.

The affidavit of Koko Medard was also rebutted by Captain Ndahura in his rebuttal affidavit of 4-4-2001. He said that it is not true that PPU soldiers in Rukungiri District were deployed and were prominently present in Kambuga, Kihihi, Kanyonza and other places as alleged in Koko Medard’s affidavit. He further said that he and the soldiers were based in Rukungiri at the State House Lodge. The PPU also scouted the routes which the President was likely to use in his visit to the District for purposes of reconnaissance; this did not include surrounding and entering people’s houses. It is not true that he chased Rwaboni when the latter in Rukungiri or dispersed away his rallies. He only assisted the Kanungu Police with transport to disperse what the O/C deemed an illegal rally which “Rwaboni was addressing at Rugyeyo.” He also ordered his soldiers to arrest Rwaboni’s unauthorized escort who was a UPDF soldier in active service. The police also arrested two people over uttering abusive words against the President.

I do not believe Capt. Ndahura’s denial of what Koko Medard had said in his affidavit. The reasons are the same as those I gave for rejecting the Captain’s denial of Bernard Matsiko’s contents of his affidavit; believe that Koko Medard spoke the truth. It is incredible that so many witnesses whose evidence about the PPU is similar and tend to corroborate each other made up their evidence and that only Capt. Ndahura spoke the truth. I do not believe it. I believe that the PPU did what those witnesses said they did.

I have already referred to the affidavit of John Hassy Kasamunyu in another context in this judgment. He said that on 17-02-2001, he was accompanying Mbabazi David, a Maakerere University Student, who was going to meet his fellow students at Kanungu. When they reached Ishugu, they found that the students had been molested by the 1st Respondent’s supporters and the students had gone to report the incident to the Police, to where Kasamunyu and colleague followed them. About 300 meters from the Police Station a gang of people rushed on to the road with a Pole and stopped them. As soon, Kasamunyu halted, they seized and manhandled him, throwing him off his motor cycle. One member of the gang, Stephen Rujaga, drove off on the motor cycle as Kasamunyu and companions went back to the Police to report. After they had finished reporting a different man arrived on the motor cycle, carrying a Policeman. The Policeman said that he would not return the motor cycle to Kasamunyu until the man who had it returned to the police station.

Kasamunyu waited until 6.00 p.m., when the officer in charge told Kasamunyu that the GISO who had seized the motor cycle had said that it was a Government motor cycle. Kasamunyu left and went home and never recovered the motor cycle.

On 9-3-2001, Kasamunyu and others were holding a meeting of the Petitioner’s Task Force for Kihanda Parish when 15 vigilantes of the 1st Respondent went and attacked them. They were half naked and carried sticks, whistles and stones. They started beating up the Petitioner’s supporters. When the victims of the attack made an alarm, other people answered the alarm and the vigilantes ran away. They got hold of one of them, who said that they and other vigilantes were on a mission to terrorise the Petitioner’s supporters. Kasamunyu and colleagues took the arrested vigilante to Police Station and the victims of the beatings to Kihihi Health Centre. Next, day the Police and PPU started hunting them. Some of them were arrested and taken to Kanungu Police Station. Those arrested were: Tukahirwa Sam, Mugisha Geoffrey, Kwesiga, Kwiragira, Robert Hashaka Kimama, Ntare, Richard Bikamya, Tusingwire Kalima. They were remanded at Kanungu Police Station until 16-03-2001. They were the Petitioner’s supporters. They never voted. Kasamunyu ended that as he was being hunted, he never voted, nor worked as the Petitioner’s agent. Up to 20-03-2001, when he swore the affidavit he was still in hiding and could not go to his home.

The Chart shows that Kasamunyu’s affidavit was rebutted by Jamil Kakombe, but Kakombe’s rebuttal affidavit evidence is not relevant to Kasamunyu’s affidavit. It is relevant to Koko Medard’s affidavit in connection with stuffing ballot papers into ballot boxes and forcing voters to vote for the 1st Respondent. Accordingly Kasamunyu’s evidence regarding harassment by GISO, PPU and the 1st Respondent’s agents remains uncontroverted and I accept it.

The affidavit of John Hassy Kasamunyu was also rebutted by Captain Ndahura in his rebuttal affidavit of 4-4-2001. He said that the allegation in the affidavit of John Hassy Kasamunyu that the police and hunted the Petitioner’s agents for beating harassment by vigilantes in Kihinda Parish Kirima Sub-County is not true. Captain Ndahura said that he did not deploy PPU in Kihinda Parish for the purpose or at all. I do not believe Captain Ndahura’s denial of Kasamunyu’s evidence for the same reason I gave in respect of the other witnesses.

The affidavit of Mpwabwooba Callist has already been referred to in another context in this judgment. He was a registered voter at Murara Village, Kashoijwa Parish Rugyeyo Sub-County, Kanungu District. He was also a coordinator for the Petitioner’s Task Force for Rugyeyo. In his affidavit of 2003-2001, he said that in early January, 2001, they held a meeting at the place of James Musinguzi in Kiragiro. Suddenly they were surrounded by soldier’s numbering about

14. They went in the vehicle of Deputy RDC Mugisha Muwhezi.

They deployed all around, staring at them, until they had to abandon the meeting to let people go home early. Two weeks later he went to Kambuga to meet Rwaboni. There Mpwabwooba found PPU soldiers who had gone with Captain Ndahura’s vehicle beating UP Henry Kanyabitabo and Chappa Bakunzi because those had been mobilizing people to meet Rwaboni. As soon as the soldiers saw Mpwabwooba they attacked and hit him with a stick, but he was able to turn his motor cycle and drove off. They chased him with their double cabin pick-up but failed to catch up with him.

At Rugyeyo where Rwaboni was to address the people, the PPU soldiers went and ordered people to disperse, although Mpwabwooba had informed the Police and the Gombolola authorities of the rally. The GISO of Rukungiri, one Twagira was with them. People dispersed amid beatings. In particular they apprehended two of the Petitioner’s supporters namely Isaac Katente and Kyarikora, put them on a pick-UP1 roughed them up and took them away. They were released the following day. The O.C. sent a verbal message to Mpwabwooba that if he did not resign from the Petitioner’s Task Force, he would be taken next.

On 3-3-2001, when the Petitioner was going to Kanungu, the GISO, Baguma John and Edson Safari, LCIII Chairman, Kayonza Elias, went around telling people that if they went to the rally, they would be “dealt with-” Throughout the two weeks to the elections, some people used to go around directing people to turn UP and vote for the 1st Respondent, and that if they did not, their houses would be burned down.

On Election Day, the PPU soldiers were deployed throughout Mpwabwooba’s village and neighbouring villages and the Gombolola headquarters to “monitor elections.” The night before the elections, some soldiers were distributed at the homes of known supporters of the Petitioner, such as James Musinguzi and Byaruhanga Benon. That night Mpwabwooba’s found them there and what he called the whole area. In the evening as he and others were listening to the radio, one Mugisha Peter, Councilor went near them and shot two bullets in the air. On voting day the Petitioner’s agents were ordered to remain 50 meters from the Polling desk. The PPU soldiers were distributed in parishes where the Petitioner was known to have strong support and they kept chasing after them wherever they went.

At Kifunjo the Petitioner’s monitor was seriously beaten and thrown into a road side trench with his motor cycle. At that Polling Station, Mpwabwooba found the presiding Officer, Korutookye Gandioza personally ticking the ballot papers for the 1st Respondent before handing them over to voters to cast them in the ballot box. The Petitioner’s agents counted about 500 votes before they lost count and gave up. At Katojo, Mpwabwooba found the same thing being done by the presiding Officer, Kabarashera.

At Kashojwa, the presiding Officer Mwebesa Michael did the same. There one Kazahura Gervase insisted on ticking his own ballot paper only to find that it was already ticked for the 1st Respondent. He insisted, and he was given another one. At Nyarurambi; Ndyomujuni was the Petitioner’s monitor, but the GISO took away his Monitor’s badge, arrested and kept the monitor in his car until polling closed.

Apollo Arinaitwe, the presiding Officer, was also actively ticking ballot papers with his other polling officials. On Mpwabwooba’s way from one Polling Station to another, the said Mugisha Muwhezi met Mpwabwooba. The former was in a car. He pointed a gun at Mpwabwooba and continued with his journey. At Kifunjo, the 1st Respondent’s agents threw stones at MpwabwOOba’5 car, but an International observer arrived at the scene and the stone throwers feared to carry on. Then after the elections the GISO called Mpwabwooba showed him a bullet and told him: “This was meant for you but you survived.” The same day Mugisha, a Councilor, met Mpwabwooba in the presence of Kinyata, M.P., and the RDC and introduced him to them as the rebel who was trying to overthrow them so as to become RDC in the petitioner’s Government. In the circumstances, Mpwabwooba said, it became impossible to hold free and fair elections. The affidavit was based on knowledge and belief, but as the witness deponed to what he saw, belief is irrelevant.

Captain Atwooki Ndahura also rebutted the affidavit of Mpwabwooba Kallist. The Captain deponed in his affidavit of 4-4-2001 that it is not true that was distributed at the homes of the Petitioner’s supporters; nor was PPU present at any polling station. The PPU remained encamped at their station and never moved out on polling day. I do not accept the denials by Captain Ndahura’s of Mpwabwooba’s evidence about the PPU for the same reasons I gave in respect of the other witnesses. I believe that Mpwabwoobwa s evidence is credible.

Bashaija Richard was a Rukungiri District Coordinator on the Petitioner’s Task Force. In his affidavit of 2O032001, he said that on 27-01-200, at 3.00 p.m. when they were in their candidate’s meeting at Kyeijanga Kirima, four Policemen from Rukungiri, went to the venue and arrested them saying that their meeting was illegal. The people attending the meeting were rounded up and detained at Rukungiri Police Station for three days, and released on Police Bond. When the victims returned to honour the bond, the bond papers were torn up and they were told that the case was closed.

On 20-32-2001, at Kanungu Bashaija and one Owembabazi were arrested by the GISO of Kirima at a road — block, set UP by him. They were beaten UP, thrown on a pick-UP and taken to Karegye where Bashaija was thrown in a pit and buried under soil/mud, leaving only his head above ground. After the GISO and his group had left Owembabazi rescued Bashaija. As he was trying to go to Rukungiri Police Station to report the incident the same day, Police fired tear gas at him, preventing him from making the report. A day later, the GISO and Police demanded that he should take them to the scene. They found there the owner of the land in which Bashaija had been buried. The former corroborated the latter’s statement. Bashaija was told to report to the Police Station the next day. When he did so he was locked up for three days, taken to Court and charged with holding a demonstration. He was released on bail.

On 23-03-2001, as the Petitioner’s supporters were waiting for him in front of their District Campaign Office, PPU soldiers attacked them and beat them U dispersing and preventing them from waiting for their candidate. That evening PPU found Bashaija in Ijimo Hotel, arrested him and dragged him to the streets, removed his shoes, kicked him over thirty minutes and released him. On 3-3- 2001, when Bashaija and others were arranging to hold a rally with the Petitioner, Bashaija found Captain Ndahura of the PPU in Hotel Holiday. The latter called the former to his table, pulled out his pistol held it at Bashaija’s head and warned him that he would shoot him if anything happened to PPU personnel in Rukungiri. After the Petitioner’s rally the same day PPU soldiers went on the rampage in Town, shooting many bullets in the air and at the Petitioner’s supporters killing one Beronda in the process. The Petitioner’s supporters had not provoked the PPU in any way. They had not breached the peace nor were they demonstrating. They were just walking back from the venue of the rally. From then on PPU soldiers started actively looking for Bashaija. He went into hiding until the morning of the Polling day, when he sneaked out to the Polling Station and cast his vote. Bashaija said that what he said in his affidavit were mere examples of the kind of harassment he and his colleagues on the Petitioner’s campaign team in Rukungiri went through, especially from the time the PPU and Senior District administrators actively started a deliberate process to prevent any form of support for the Petitioner in Rukungiri and Kanungu Districts. The affidavit was based on information and belief. Knowledge was derived from what Bashaija witnessed and the grounds of belief were what he saw.

In his affidavit rebutting what Bashaija said in his affidavit, Captain Atwoki B. Ndahura, the Commander of the PPU in Rukungiri at the material time, denied that he met Bashaija in Hotel Holiday on 3-3-2001, or that he drew a pistol on him.

He said that he never met Bashaija on that day at Hotel Holiday or anywhere else. This was a blanket denial. Captain Ndahura did not say why Bashaija should invent such an allegation against him. Captain Ndahura would not be expected to admit having committed a criminal offence as alleged by Bashaija, if the allegations were true. He would be expected to deny it, given his official position. I would believe Bashaija’s evidence as true and reject Ndahura’s denial as false, and I do.

Owembabazi Placidia, of Kakabada, Northern Ward, Rukungiri Town Council said in his affidavit of 20-03-2001, that he was a member of the District Task Force f or the Petitioner. On 11-03-2001, with the apparent intent to intimidate and scare him not to vote for the Petitioner, two armed Policemen and one plain — clothes Policeman and some other unidentified persons, without a search warrant surrounded his premises and said that they were searching for Military equipment in his possession, to wit, guns uniforms and others. Nothing was found in his possession. The affidavit is based on knowledge and belief, but belief is irrelevant since the witness depend to what he saw.

The Chart does not show that the affidavit of Owembabazi is rebutted. His evidence therefore stands uncontroverted, and I accept it.

Byomuhangi Kaguta, of Bwambara Village, Bwambara Sub-County, Rukungiri District was a polling agent for the Petitioner. In his affidavit of 20-03-2001, he said that on 11-03-2001, he was arrested by three armed soldiers of the PPU who had been deployed all over the District. He was thrown into a pit (Ndaki) in the; barracks, and suffered a lot. The following night Buterere and Tukahiirwa, two of the Petitioner’s agents were also brought in to join Kaguta.
They spent the whole of Polling day in the pit. Accordingly, they did not vote. Kaguta said that these are mere examples of the kind of harassment he and other members of the Petitioner’s campaign team in Rukungiri went through, especially from the time the PPU and Senior District administrators actively started on a deliberate process to prevent any form of support for the Petitioner in Rukungiri and Kanungu Districts. The affidavit was based on knowledge and belief, but belief is irrelevant, since what the witness deponed to was what he saw. The chart does not show that Kaguta’s affidavit was rebutted. His evidence therefore, remains uncontroverted, and I accept it.

John Kisumba of Kasenge I Village, Bwera Sub-County, Kasese District was the Petitioner’s Monitor for Bukonjo West Constituency. In his affidavit of 20-03-2001, he said that prior to Polling day, a soldier by the name of Kihindiro William went to Kisumba’s area of control and said 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 agents, including Kisumba, whom he intended to arrest.

On 12-03-2001, Kisumba was monitoring the election when he found at Kasika Nyakimasa Polling Station that six under-aged. Children tried to vote. The Polling officials ignored Kijumba, and the 1st Respondent’s agents threatened to stone him if he continued to question voting by the under-aged children. He reported the incident at Bwera Police Station. At Rusese, Kyampala Polling Station, he saw two under-aged children lined up to vote. The Presiding Officer said that since the children had Voters’ Cards, they were free to vote and they voted. At Katojo Polling Station, Kisumba noticed that there were 10 armed army men guarding the Polling Station. The Chart indicates that Kijumba’s affidavit was rebutted by Boniface Mupaghasya but it does not show where the rebuttal evidence can be found.

Edison Gumenze was a Monitor for the Petitioner at 8 Army Polling Stations in Rukonjo West Constituency. In his affidavit of 20-03-2001, he deponed that three new Polling Stations were created to make 10. At Isango and Kisabu in Kitholhu Sub-County, he noticed that armed soldiers were guarding the Polling Stations. He was threatened by the GISO, Sibaligana and Zainabu a woman Councilor for Kitholhu — Ihandiro Sub-Counties, who told him that he, would die if he continued to monitor the area. Earlier on 25-02-2001, during his campaign exercise, he was arrested by Sgt. Kalindiro William attached to Nakasongola D.M.I. who said that he had been sent by State House to stop those campaigning for the Petitioner against the 1st Respondent, like Bumenze.

During the voting he noticed that lorry loads of armed soldiers from the Congo were ferried from there, shouting