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

it as true.

Alex Otim, of Gulu, said in his affidavit of 22-03-2001, that on 1 2-03-2001, he went to vote and to monitor the elections in Paico Division (Sub-County). He did not say whether he was a monitor for any of the Presidential Candidates, but the context shows that he was the Petitioner’s agent. He said that while he was at Paico R7 Primary School Polling Station, he and other fellow agents found that two soldiers were deployed at each polling station. The soldiers started forcing voters, especially old ones, to vote for a candidate of the soldiers’ choice. The soldiers involved in such malpractices were Opoka Denis, Maj. Rasheet, Dumba Julius, and Ocen Francis. The Petitioner’s agents chased away the soldiers, but the soldiers returned armed and using an armoured army vehicle (Mamba). They assaulted Otim and Okello, arrested them, and released them at 8.00 p.m. after the polling had closed. The affidavit was based on knowledge and belief since the deponent said only what he witnessed, belief was irrelevant. Otim’s affidavit was rebutted by Nyeko Charles, who was the Presiding Officer at Paico R7 School Polling Station. In his rebuttal affidavit dated 1-4-2001, he deponed that it was not true, as alleged in Otim’s affidavit, that soldiers were deployed at the polling station, nor did any soldier force any one to vote at all. On polling day, no military vehicle went to the polling station, and no soldier assaulted or arrested anybody at that polling station. The election was conducted in conditions of peace, freedom and security. I do not believe Nyeko’s denial of what Otim deponed in his affidavit for the reasons, first, that it is difficult to imagine that Otim invented what he said, including names of four soldiers, whom he said forced old people to vote for candidates favoured by the soldiers and that the soldiers ran to the barracks and returned armed and had an armoured army vehicle. Second, Nyeko would not be expected to admit that malpractices alleged by Otim occurred under his very nose. It was also against the law that armed soldiers should be at a polling station, which Nyeko is presumed to known. For these reasons, I believe Otim’s evidence as true and Nyeko’s denials as false.

Mugalula Joseph of Bukaka, Kayunga, Kangulumira, Kayunga District, was the Secretary General of the Petitioner’s Kayunga District Task Force. In his affidavit of 23-03-2001, he deponed that he was also an election monitor in charge of Ntengyeru North and Ntengyeru South Constituencies in Kayunga District. He made a report of what he saw on polling day. The Report, dated 20-03-2001 is annexed as ‘REP” to Mugalula’s affidavit. The report is also signed by other officials of the said Task Force, namely the Chairman, Vincent Kawooya, and the Vice Chairman Hajji Edirisa Muwonge. It is a four — page report, showing details of malpractices throughout Kayunga District. I shall refer here only to allegations pertinent to intimidation, and harassment of the Petitioner’s supporters. Under Nazigo Sub-County, it says that all Presiding Officers and Polling assistants belonged to the incumbent camp and they never welcomed the complaints from the Petitioner’s agents. This was mostly registered in Kisoga and Bukemba Parishes; and that Brigadier Wamala Katumba intimidated, using vocal words against Non — Buganda. Under Busaana Sub-County, armed soldiers moved all over the Sub-County not on foot but on Ndeeba Secondary School Truck. The election Constable especially the Local Defence (LDU) had big sticks and used intimidating language, thus subduing voters. At 2.15 p.m. at Namwama, the Parish L.C.ll sat at about 300 meters in a Muvule tree in an electoral tribunal, briefing voters before they went to vote and referred to other Presidential Candidates as “Obote agent Dictators”, etc. Under Kayunga Sub- County, most voters never voted due to intimidation by the presence of armed men who were patrolling the whole sub-county and telling them to vote wisely. The Deputy CAO Kayunga confiscated books being used by the Petitioner’s agents at Sukka Polling Station and used abusive language. Under Wabuwoko/Kitimbwa Sub-County, armed men patrolled all roads to polling stations in their double cabin vehicles, giving instructions and intimidating voters. Most voters never voted because their names were not in the Voters’ Register. Declaration forms were not given to the Petitioner’s agents because the results were rigged. Under Kayonza Sub-County, armed men in uniform were deployed in most polling stations and they were guarding roads at every point. Armed men were transporting voters to polling stations.

Under Bbaale Sub-County, there was intimidation and use of abusive language by Presiding Officers and Polling assistants. They also assisted voters to vote not according to the voter’s wishes. Armed men moved around and intimidated voters to vote for the 1st Respondent.

Under Galilaya, Sub-County, there was intimidation of the Petitioner’s election monitors by supporters and or agents of the incumbent and by armed uniformed men. The Petitioner’s agents were directly subordinated by armed men in double cabin vehicles and by the 1st Respondent’s agents, with the result that they either left polling stations or never appeared there in the first place. The Chart indicates that Mugalula’s affidavit is rebutted by Wamala Katumba on page 352 of the 1st Respondent’s volume of affidavits, but that page contains an affidavit of another person altogether, not relevant to Mugalula’s affidavit.

Lukwiya Pido, of Gulu deponed in his affidavit of 22-03-2001 that on 12-03-2001, he went to the barracks to monitor five polling stations in the barracks. The soldiers chased away all the polling assistants and replaced them with fellow soldiers. There was massive voting by under-aged children. The Presiding Officers could do nothing since soldiers were rude to them. There were discrepancies between the names on the register and the names on the Voters’ Cards. There were also discrepancies about the age of the voters in the register and on the Voter’s Cards. Even the serial numbers were not the same, but soldiers just forced people to vote, and no one was allowed to question them. The soldiers removed the basin and they were voting in the open so that their superiors saw how they voted. Polling went on up to mid-night. When they complained about the malpractices, Lukwiya and his colleagues were arrested and tortured by a gang of soldiers and taken to the quarter guard inside the barracks. Their clothes were removed and they were flogged, and later transferred to the police station where they were later released on police bond.

The affidavit is based on knowledge and belief. Since the deponent spoke only about what he witnessed, belief is irrelevant.

Odoki Charles Torach rebutted Lukwiya’s affidavit. In his rebuttal affidavit dated 1-4-2001, he said that he was the Presiding Officer of Kasubi M-N Palling Station in Gulu Barracks. He was there from 7.00 a.m. to 7.30 p.m. as time for polling had been extended to midnight because it was an Army polling station. What Lukwiya had said in his affidavit was not true. The election was free and fair. There was no multiple voting, harassment or intimidation as alleged by Lukwiya. Torach did not say who extended the polling time at army polling stations. Further, he did not respond to certain allegations in Lukwiya’s affidavit; for instance that civilian polling assistants were replaced by soldiers and that names and ages shown in the Voter’s Cards did not match with what Voters’ Register showed. It is not credible that Lukwiya made up all he said in his affidavit. In any case, Torach would not be expected to admit that electoral malpractices alleged by Lukwiya, occurred at the polling station, of which he was the presiding officer, if the allegations were true. Consequently, I do not accept Torach’s denials. I believe that Lukwiya spoke the truth.

Henry Muhwezi, of Kakinga II Village in Kamwenge Lower deponed in his affidavit of 31-03-2001 that he was a campaign agent for the Petitioner in Kamwenge District. He was his Publicity Secretary for the District. He knew Captain Charles Byaruhanga M.R, who was his personal friend and a campaign agent for the 1st Respondent. Muwhezi further said that while he was at Kamwenge Medical Care, opposite the 1st Respondent’s campaign Task Force offices, he was called by Byaruhanga, M.R, who was then standing in front of the 1st Respondent’s Task Force Offices. Muwhezi went to Byaruhanga, and the M.R told him to change from supporting the Petitioner to the 1st Respondent, Byaruhanga’s candidate. Muwhezi replied that as on previous occasions when Byaruhanga asked him to change, he would not change this time. Thereafter, Byaruhanga told him that what suited Muwhezi was the gun, because he was now a rebel and Byaruhanga would deal with him as such. All this happened in the presence of James Birungi Ozo, the Petitioner’s District Task Force coordinator. Later in the day at about 6.00 p.m., while Muwhezi was at Jack Tumusiime’s place, he was abducted by Nuha Kassim, the escort of Byaruhanga, Abdul Kaneera, and Kenneth Ruzindana, LOU. Muwhezi was bundled into a car owned by Abdul Kaneera, being driven by one Musinguzi. He was taken to Umoja’ Hotel, where he found Byaruhanga who instructed his abductors to take him to Bihanga Army Barracks. On the way to the barracks, and at Kiburasoke Village, the car was stopped and Kassim put Muwhezi on gun point. Muwhezi was pulled out of the car and thrown into a trench, where he was beaten and tortured. As Muwhezi lay in the trench, bleeding and his arm injured, his tormentors told him to go away, while Kassim pointed a gun at him. Subsequently he crawled away and hid in a nearby bush. As they drove away Muwhezi heard his tormentors say that they would go to his home at Kakinga. He remained in the bush for three hours and thereafter went to Evelyn Nzige, the Treasurer of the Petitioner’s District Task Force.

Evelyn took Muwhezi to Kamwenge Nursing Home for medical treatment. A copy of the treatment notes was annexed to the affidavit as “1.” He reported the matter at Kamwenge Police Station under reference SD 18/26/2/2001 and case file CRB 38/2001. On the following day 27-02-2001, when Muwhezi went to his home, he found that it had been vandalized and the church where he was the coordinator burnt down. Thereafter, he left Kamwenge and went to Mulago Hospital in Kampala for further treatment. He also reported the matter to the Uganda Human Rights Commission, where a case tile Ul-IRC.131/2001 was opened. Muwhezi was thereafter interviewed by one Katende G. Mohammed, a reporter with the “Monitor” News paper and the interview was carried on the news paper issue of 20-02-2001, a copy of which was attached to Muwhezi’s affidavit as annexture “2.”

Muwbezi further said that on 11-03-2001, Faida and Kizza Davis, the Petitioner’s polling agents were arrested and detained at Kamwenge Army Detach. Muwhezi ended that due to intimidation on himself and other supporters of the Petitioner, coupled with other malpractices, the Petitioner’s Task Force in Kamwenge rejected the results of the elections in a Press Release, a copy of which is attached to the affidavit as annexture “3.” The medical treatments notes attached to the affidavit describe Muwhezi’s injuries. They are consistent with assault and torture. The news paper article bears a photograph of Muwhezi showing his left arm in a bandage.

The caption appearing below the photograph reads:

“Henry Muwhezi displays his injured arm at the Besigye Task Force offices yesterday.”

Muwhezi’s affidavit also corroborates the evidence of Faida and Kiiza Davis about their own arrest and detention.

A copy of the Press Release, dated 13-03-2001 attached to Muwhezi’s affidavit starts thus:

“The Elect Besigye Task Force — Kamwenge District has decided to withdraw from the election exercise due to much intimidation, detention of our Polling agents in Military Barracks and massive rigging in most of the polling stations. This decision has already been communicated and we would like to officially confirm and reiterate our own earlier decision in this Press Release by maintaining some of the incidences that led to this decision.

This is then followed by a long list of electoral malpractices in many polling stations and incidences of arrest and/or detention of the Petitioner’s Polling agents or supporters. The Press Release, three pages long, was signed by James Birungi Ozo, District coordinator, Balinde Wilson, Chairman, Task Force, Julia Bamwine, District Monitor, and Betty Kyimpaire, Women leader.

I think that when the Press Release said that the Task Force had decided to withdraw from the election exercise, it actually meant that it would reject the results of the election. Polling having been completed on 12-03-2001, and only the declaration of the results remained to be made by the 2nd Respondent within 48 hours, the Task Force could no longer withdraw from the election process which was already completed. It could only reject the results due to be announced within the prescribed time.

The Chart shows that Muwhezi’s affidavit is rebutted by Byaruhanga, but it does not indicate where the rebuttal affidavit may be found.

The affidavit of Sam Ndagijje, of Bihomborwa Parish, Kihihi, Rukungiri, is relevant to three electoral malpractices. He said that he was a Sub-County monitor for the Petitioner in Kihihi Sub-County. On 1 2-03-2001, when he went to vote at Kinyagwe Polling Station, he found that his name had been ticked as having voted, yet he had not. The L.C.II Chairman of Bihomberwa, one Turach Chairman of the area, insisted that Ndagijje had voted but Ndagijje insisted to the contrary, saying so loudly that many other people heard him. Moreover his thumb was not ink stained. Turach changed his mind and Ndagijje was given a ballot paper and he voted. At the Petitioner’s Task Force office in Kihihi, he got a report from Ngabirano Frank, an election agent for the Petitioner, that at Rwangoboka Polling Station of Karubezi, Ngabirano and the second Petitioner’s agent had been chased away by Mrs. Jacqueline Mbabazi, wife of a Minister in Government, Amama Mbabazi, using armed escorts, and threatened to shoot the two polling agents if they did not go away.

Ndagijje and the other polling agents for the Petitioner went to Kihihi Police Station to report the incident, but the officer in charge told them that it was a matter for the 2nd Respondent, not for the police. Ndagijje was mobile with a motorcycle, so he decided to visit all other polling stations. On his way to Rwampoboka Polling Station, he met Sergeant Natukunda, the Intelligence Officer in charge of Kinkizi Sub-District of Rukungiri who was on a pick-up with a strong force of 15 to 20 armed escorts. The sergeant stopped Ndagijje and told him that he was undesirable in polling centers and warned him that unless he went back, he was putting his life in danger. On seeing trouble ahead, Ndagijje turned back and went to the election office of the Petitioner’s Task Force. There, he continued to receive more and more of the Petitioner’s agents with similar reports. Ndagijje listed 20 such polling agents with their respective polling stations. But due to time and space constraint, I shall not reproduce the list here.

At about 12.00 noon, Ndagijje went to Nyamwegabira Polling Centre in Nyakatungume Parish. As he stepped on the compound, he was greeted by a mob of about 20 youths booing and ready to pounce on him. The youths were led by Samson of Busengo, Busesi of Pwenyerere, and Odongo of Nyamwegabira, all from Nyakatugunu Parish. Those three told Ndagijje almost in a chorus that if he still needed his life, he must disappear from the scene. Odongo said that the Petitioner’s agents should not appear at that Centre. Samson picked Ndagijje’s monitoring identity card and threw it away, but one youth picked it up and gave it to Ndagijje, when he was almost encircled by the mob. As a result, Ndagijje sensed danger, and feared for his life. Consequently, Ndagijje said, there was no free and fair election in Kihihi Sub-County. The affidavit was based on knowledge and on information, the sources of which were disclosed and belief the grounds for which were also given. The Chart does not show that Ndagijje’s affidavit was rebutted. It therefore, remains uncontroverted and I believe it as true.

Nantongo Sarah was the Petitioner’s campaign /polling agent for Kasonko, L.C. Kisenyi II, Kampala Central. In her affidavit of 23-03-2001, she said that during the issuance of Voters’ Cards non-Nationals, especially Somalis, were given Voters’ Cards. She personally tried to stop one Tumusiime James from receiving a card for one Sadiq Muhammed, a Somali, and let the owner pick it himself. L.C.I Chairman Hamza stopped her doing so. Voter’s Card for Nakaye Aisha was also issued to a wrong person. Nantongo objected but the L.C.l Chairman stopped her. As a result, Nakaye did not vote. On 12-03-2001, Nantongo saw armed military Police soldiers at Kassato Polling Station, rounding up people including one Sematta Taddeo, as a result of which many voters left the queue for fear of their lives. She also noticed ballot paper booklets with missing ballot papers. The affidavit is based on knowledge and belief, since the deponent spoke of what she witness, belief is irrelevant. The Chart does not show that Nantongo’s affidavit was rebutted. Her evidence therefore, stands uncontroverted. I accept it as true.

Levi Tugume of Majya Village, Kiruna Sub-County, Kanungu District was a coordinator for the Petitioner’s campaign Task Force in Kanungu District. In his affidavit of 20-03-2001, he said that a week after the nomination of the Presidential Elections Candidates they opened their Task Force Office in Kanungu and put up posters. Immediately thereafter a gang led by Karabenda, the GISO, removed the posters and gave orders that Tugume and others should close the office and should stop operating there. That gang was composed of the 1st Respondent’s supporters, headed by Karabenda. The following night, the office was smeared with human faeces all over by that gang. Tugume reported the matter to the Police but the suspects were never arrested. They closed the officer for about a week and reopened it. That same night, the office was again smeared with human faeces, a tomb was moulded with a cross at the office and the owner of the building was greatly threatened and ordered not to let the office to the Petitioner’s Task Force again. On a day in mid February, 2001, Tugume was holding a consultative meeting in his home which he had now turned into an office when a Police vehicle with about ten Police men and LDUs raided Tugume’s home and dispersed the meeting. People fled, and many were injured. Tugume was taken to the Police Station and cautioned about, and warned against, illegal meetings — a thing Tugume considered was intimidation and an incursion into his human rights. On polling day, Tugume was one of the first persons to reach the polling station. The Petitioner’s agents were stationed about 20 meters away from where they could not properly monitor the polling. About half an hour later, GISO Karabenda went there on a motor cycle and ordered the Polling officials to tick the ballots on the first table and said that it was an order from the RDC. Tugume protested that it was a wrong procedure, but his protests fell on deaf ears. Polling continued in the abnormal way, officials ticking every ballot paper and handing it to voters. All ballot papers were being ticked in favour of the 1st Respondent only. Tugume went to check at other polling stations and found that the method was uniform everywhere. Tugume said that later in the day, they decided to withdraw the Petitioner’s agents from the polling stations because they felt that they were being greatly cheated. They considered that the whole exercise was a fiasco and they declined to sign the declaration of results forms. The affidavit was based on knowledge and belief. Since the deponent spoke only of what they witnessed, belief is irrelevant. The Chart does not show that Tugume’s affidavit is rebutted. His evidence, therefore, remains uncontroverted and I accept it as true.

Darlington Sebarole of Kitariro, Rutugunda, Kirima, Kanungu District was the Vice Chairman of the Petitioner’s Task Force for Kirima Sub-County. On 27-01- 2001, he had a consultative meeting at his house at Kyeijonga. After the meeting at 4.00 p.m. and as he was seeing off some of the members of the meeting who had come from Rukungiri to their car, a vehicle carrying armed Police men arrived at the place. Sebarole and three others, namely Richard Bashaija, Vairo Rwangara, and one lady were ordered to board the police vehicle. They were taken to and detained at Rukungiri Police Station. Attempts to have them released was fruitless until 30-01 -2001, through the efforts of Bubihuga MP, and others, and after Press Release from the 2 Respondent, they were released. They were ordered to report to the Police at Rukungiri, and Sebarole did so on 5-2-2001, 19-02-2001, 28-02-2001 and 14,03-2001, when he was finally discharged with the words that he was a free man, and that no one should molest him anymore.

No criminal charge was made against him. On 28-02-2001, after he had answered the Police Bond, at Rukungiri Police Station he boarded a vehicle in the possession of the Petitioner’s Task Force to go to Kihiihi via Bugangari and Bwambara. At Bwambara, they found a road —, block; manned by Army Officers. All the nine members of Sebarole’s group were arrested and taken to Bwambara Police Station, from where they were driven on Police vehicle to Rukungiri and detained at 7.00 p.m. One George Owaku Kirarwa and Sebarole made efforts for their release which succeeded the same night after three hours’ detention.

Again, no criminal charge was preferred against them. The two incidents of unlawful arrest, false imprisonment and torture, Sebarole said, were intended to threaten and deter them from supporting the Petitioner as a Presidential elections candidate. The affidavit was based on knowledge and belief. Knowledge come from what Sebarole witnessed and grounds of belief were what had happened to him and his colleagues. The Chart does not show that Sebarole’s affidavit is rebutted, leaving it uncontroverted. I accept his evidence as true

Turyomusi Christopher, of Butaremwa Ndere, Pulinda Rukungiri, was a member of the Petitioner’s Task Force. He said in his affidavit of 20-03-2001 that on 20-02-2001, he went to Kanungu in a group of seven people to consult with their Kinkizi Task Force numbers. Before alighting off a vehicle to take tea at 4.00 p.m. in Kanungu, Stephen Rujaga struck Turyomusi on the head, almost fatally. A group of men started beating up the whole Turyomusi’s group. They took cover in a hotel. The hotel was stoned and the group fled to the police station, where they saw Rujaga driving the Task Force’s vehicle, whose window glass and head-lights had been smashed. The group asked the police to arrest Rujaga, but the police said that they could not arrest him because Rujaga was under the 1st Respondent’s authority. Rujaga told members of Turyomusi’s group that he would kill them that night. The RDC of Kanungu arrived at the police station and told them to spend the night at the police station. Mrs. Amama Mbabazi also arrived there with armed Army men and ordered for their imprisonment. The police replied that they could not imprison them because they had been assaulted and wounded. When Mrs. Amama Mbabazi left, the police said that they could not accommodate the group, because to do so would result into trouble for them. They used torches to drive to Rukungiri Police Station. The affidavit was based on knowledge and belief, but since the deponent spoke of what he witnessed, belief is irrelevant. The Chart does not show that Turyomunsi’s affidavit is rebutted. His evidence stands uncontroverted, and, I accept it as true.

Mugeere Ahmada of Kalerwe Zone, in Kampala, was registered as a voter in the 2001 Presidential elections. He was a campaign and polling agent for the Petitioner. On 6-2-2001, at 3.00 a.m. he was arrested at Kalerwe Kibbo Zone and taken to Mbuva Military Barracks, where he was detained until 19-02- 2001. At the Barracks, he was asked which Presidential Candidate he supported and would vote for. He told the soldiers that he would vote for the Petitioner. He was then asked whether he would go to the bush it the 1st Respondent lost the elections. During the detention, he was tortured by being caned and pouring cold water on him. He was injured on the foot. He was also told that he would be caned two strokes a day. On 19-02-2001, he was transferred to Kira Road Police Station. On 20-02-2001, at 9.00 a.m., he was taken to the C.I.D. Headquarters where a statement was recorded from him and he was released on Police Bond. Mugeere said that his arrest was meant to intimidate him and to stop him from campaigning for the Petitioner.

The affidavit is based on knowledge and belief. Nearly all that Mugeere said in his affidavit was what he had witnessed and the grounds of belief were the experiences he went through. The Chart does not show that Mugeere’s affidavit is rebutted. His evidence stands uncontroverted and I accept it as true.

Bukenya Samuel was a member of the Petitioner’s National Task Force. He came from Kinawataka Village, Mbuva, Kampala. In his affidavit of 23-03- 2001, he deponed that on 11-03-2001, at 6.30 p.m., he was forcefully arrested by armed soldiers in a car covered with the 1st Respondent’s election posters. He was arrested at the Trading Centre of Kinawataka Zone. Thereafter, he was detained in Mbuya Military Barracks. While in detention, he told the soldiers that he supported and would vote for the Petitioner. Thereafter, he was taken to a cell and detained until 21-03-2001, when he was released at 11 .00 a.m. During his arrest, he was beaten, tortured and bundled into the car at the barracks, where torturing and beating continued during his detention.

The affidavit is based on knowledge only. The Chart does not show that it was rebutted. Bukenya’s evidence, therefore, stands uncontroverted. I accept it as true.