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

Concern by the Presidential Election candidates and the 2nd Respondent about violence, intimidation, harassment, threats. etc.

The problem of violence, intimidation and harassment by the military, PPU, LDUs, GISOs and supporters of the 1st Respondent against supporters of the Petitioner and other candidates was a matter of concern to the candidates and other people during the whole of the election campaign period. Complaints were made to the 2nd Respondent many times to have the problems contained, and the 2nd Respondent appealed to the 1st Respondent to contain the situation.

At a meeting on 6-2-2001 convened by the 2nd Respondent and attended by representatives of all the Presidential Candidates except Francis Bwengye, they showed their deep concern about acts of violence and intimidation that were marring the presidential election campaign. They also passed a resolution to the effect that candidates should form their own security groups amongst themselves to ensure orderliness and proper security measures at all meetings or rallies, working closely with the police. Supporters of candidates should also discourage acts of incitement, such as taking of posters of one candidate into another candidate’s camp, or tearing of posters of candidates they did not support, or making unwarranted, un-researched or malicious allegations against any candidate. They also resolved to ensure security and smooth running of campaign by agents, and to inform the police and Returning Officers of each district of any programme for any meetings or rally organized on behalf of each candidate or agent. A copy of the resolution is annexture “11” to the Petitioner’s affidavit in support of the Petition.

After the Rwaboni incident of 20-02-2001 at Entebbe Air Port, the Petitioner met, and discussed with the Chairman of the 2nd Respondent, the problem of electoral violence. It appears that the Chairman himself, too, felt so concerned that as a result he wrote to the 1 Respondent and the President of Uganda. The letter painted a grim picture of the state of affairs and appealed to the President to intervene to enable the 2nd Respondent fulfill its duties as laid down in the Constitution.

Below is a reproduction of the letter in full:

“EC/25 24th February. 2001.

Mr. Yoweri K. Museveni,

His Excellency The President of the Republic of Uganda,

KAMPALA.
Your Excellency,

RE: VIOLENCE AND INTIMIDATION OF CANDIDATES

The Commission wishes to appeal to you, Your Excellency, as the Head of State and fountain of honour in Uganda, to intervene and save the democratic process from disintegration by ensuring peace and harmony in the electoral process.

The Commission has received disturbing reports and complaints of intimidation of Candidates, their agents and supporters which in some cases has resulted in loss of life and property.
In a meeting that the Commission held with Candidate Dr. Kizza Besigye on 22nd February 2001, a number of issues of public concern were raised regarding the way security matters have been handled, particularly during the campaign period.

We wish Your Excellency to draw your attention to the Electoral Commission Act. Section 12(1) which confers powers to the Commission and we quote:

“(e) to take measures for ensuring that the entire electoral process is conducted under conditions of freedom and fairness;

(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.”

In addition, Section 20(1) of the Presidential Elections Act, No. 17 of 2000 provides that the Commission shall ensure that the relevant organs of the state provide during the entire period of campaign, protection of each candidate and adequate security at all meetings of candidates.

The Commission is aware of its operational limitation in enforcing the powers under the above mentioned pro visions of the law and had therefore, entrusted the keeping of security during these elections to the Police. The Commission has pointed out to the Police that in case there was need for reinforcing the security deployment, then it would be the Police to seek assistance from other security organs so as to ensure smooth running and conclusion of the entire electoral process.

We also expect that the deployment of PPU is made where the President is expected to be as this is a facility that Your Excellency is entitled to as the incumbent. We have also issued press statements instructing public institutions including RDCs and DISO to treat all candidates equally as is provided for in the Presidential Act 2000 and we expect them to abide by those instructions.

The Commission therefore, would like to request you as Commander- in-Chief of the Armed Forces to instruct armed personnel not to do anything that would be interpreted as interference in the electoral process contrary to law and thus jeopardize the democratization principles that our Country has embarked on since the Government of NRM came into power.
Your early intervention in this matter will go a long way to enable us fulfill our duties as laid out in the Constitution and other Laws of this Country.

Yours Faithfully,

Aziz K. Kasujja
CHAIRMAN ELECTORAL COMMISSION
c.c. The Minister of Internal Affairs
The Minister of State for Security
The Inspector General of Police
All Candidates’ Task Forces.”

There is no evidence that, the 1st Respondent as the incumbent President (also a Presidential Candidate) replied to that letter to say what action he had taken or would take about the problems articulated by the 2nd Respondents Chairman in his letter. In my considered opinion, it would be wrong to think that the 1st Respondent did not receive the letter.

In a letter to the Army Commander and the Inspector General of Police dated 20-02-2001, annexture “P4” the Deputy Chair person of the 2nd Respondent, Mrs. Flora Nkurukenda, informed them that after the Rwaboni incident at Entebbe Airport, the Petitioner had cancelled his campaign trip to Ajumani. It also drew their attention to section 12(1 )(e) and (f) of Act 3/97 and section 20 of the Act and requested them to ensure that candidate’s campaigns continued without unnecessary interference.

In a letter dated 7-3-2001, four Presidential candidates, including the Petitioner, wrote to the Chairman of the 2nd Respondent (Annexture “P 17”to the Petitioner’s affidavit) expressing their concern regarding, inter alia, security, violence and intimidation and other flaws in the electoral process. They said that violence and intimidation by the PPU and para-military personnel had escalated resulting in lasso lives and injury to citizens of Uganda. They also said that public officers such as Army Officers, RDCs, DISCs, GISOs, who were supposed to be non-partisan under the law, continued to campaign for the 1 Respondent. At the end the letter said that in view of the electoral flaws referred to by it, the four candidates demanded that the 2nd Respondent should convene a meeting of all Presidential candidates (not their representatives) not later than 9-3-2001 to resolve those serious and very urgent issues.

On 8-3-2001, the Chairman of the 2nd Respondent replied to the letter of 7-3- 2001, written by the four Presidential Candidates. The reply is annexture “P 18” to the Petitioner’s affidavit. Regarding violence and intimidation the reply 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 as provided for in article 212 of the Constitution of Uganda. It also said that it was incumbent upon the Police when necessary to seek reinforcement from other state security organs to contain any deteriorating security situation, maintain law and order and protect lives of Ugandans. Regarding campaigning by Army Officers, RDCs, DISOs, and GISO’s, for the 1st Respondent, the letter said that the 2nd Respondent had issued instructions to all concerned to stop the practice. The letter ended that in view of the candidates’ and 2nd Respondent’s last minute activities then taking place a meeting of all Presidential Candidates demanded by the four would not be practicable. The letter was copied to all Presidential Election Candidates.

The documentary evidence I have referred to indicates that the problem of violence and intimidation during the Presidential electoral process was a matter of serious concern to the 2nd Respondent and to at least four Presidential Candidates, including the Petitioner.

The 1st Respondent, as the incumbent President of Uganda was also informed of the problem, but did not respond to indicate what action he had taken or would take to contain violence, intimidation, harassment, etc. by PPU and the military, which he could do as the Commander-in-Chief of the Armed Forces. Evidence also shows that after the appeal of the 2nd Respondent’s Chairman to the President and the Deputy Chair person’s request to the Army Commander and the Inspector General of Police on 20-02-2001, violence and intimidation continued up to polling day and during polling.

I have considered affidavit evidence from 58 witnesses for the Petitioner, adduced to prove intimidation, harassment, threats, violence and torture against the Petitioner’s supporters and agents during the 2001, Presidential Election. I have also considered affidavit evidence in opposition from slightly fewer witnesses from the 1st and 2nd Respondents, intended to prove that the incidents alleged by the Petitioner’s witnesses did not happen. As I have said before in this judgment, there were far more witnesses who gave affidavit evidence than I could evaluate within the time available to me. Nevertheless, I think that the witnesses from all sides whose evidence I have evaluated are enough samples to give an adequate picture of the scenario. Having considered the evidence which I was able to do, I am satisfied and find that:

Before, and after the nomination of candidates, during the campaigns, and up to polling day of the 2001, Presidential Elections, there was a lot of intimidation, harassment, threats of and actual violence and torture against many supporters agents and mobilisers of the Petitioner.

As evidence shows, the perpetrators of such incidents were soldiers of the PPU in particular and of the UPDF in general LDU’S, RDC’S, and Deputy RDC’S. GISOs LC officials, Administrative Chiefs, supporters agents and mobilisers of the 1st Respondent, presiding Officers and other electoral officials.

This is a general finding.

On the basis of the evidence I have evaluated, I shall now make specific findings regarding the main perpetrators of violence, intimidation, harassment, threats, etc. during the 2001 Presidential Election. This is merely to recapulate evidence I have already accepted by slotting it into categories.

THE PPU:

According to the affidavit evidence of Captain Atwooki B. Ndahura, who was the Commander of the PPU in Rukungiri at the material time, the PPU was deployed in Rukungiri in advance of the President’s visit there in January 2001, as usual, he said, to prepare and secure the area for his visit on 16-01-2001.

Because the President would soon return to the District for another rally, the PPU soldiers under Captain Ndahura’s command camped at the State Lodge in Rukungiri Town. Army Commander, Maj. General Jeje Odong also said that the PPU stayed in Rukungiri to wait for the President’s return to that District. During the campaign period the 1 Respondent, who was the incumbent President and a candidate, visited many Districts throughout Uganda. This is indicated by the programme for Presidential campaign in the Districts, annexture “P.10” to the Petitioner’s affidavit filed with his petition. There is no evidence to show that in other Districts which the 1st Respondent also visited to campaign, the PPU also remained, camped, in those Districts to await his return there subsequently. A question to which I have no direct answer then arises, namely, why was the PPU stationed in Rukungiri throughout the electoral exercise and not only when the President was there? If the PPU was also stationed in other Districts to await the 1 Respondent’s subsequent visits after the initial visits, why were there no complaints in those Districts against the PPU’s activities as there were against their activities in Rukungiri and a couple of neighbouring Districts? Captain Ndahura’s affidavit evidence was also to the effect that the PPU camped at the local state lodge in Rukungiri Town and did not move out. I do not believe that evidence, because evidence from many witnesses, corroborating each other, as we have seen is to the effect that the PPU intimidated, harassed, threatened, and tortured many supporters of the Petitioner especially in many parts of Rukungiri and Kanungu Districts.

Harassment of members of the Petitioner’s campaign team continued throughout from the time the PPU and Senior District Administrators apparently began a deliberate process to prevent any form of support for the Petitioner in Rukungiri and Kanungu Districts. On 23-02-2001, the PPU confronted and fired at the Petitioner’s supporters, killing one of them, Baronda Johnson. As credible evidence shows this attack was against unarmed civilians and was completely unprovoked contrary to Maj. Gen. Jeje Odongo’s claim that it was the PPU soldiers who were provoked by the Petitioner’s supporters by pelting them with stones and sticks. Only a few other examples of similar conducts of the PPU need be referred to again. They broke up and dispersed meetings of the Petitioner’s agents and mobilisers, including rallies for and by Rwaboni, the Petitioner’s Chairman of the Youths and Students Committee. With or without the company of a Deputy RDC, they tore up the Petitioner’s election posters in Rukungiri, Kihihi, Kambuga and Kayonza. In Kanungu, together with GISO and Police, they arrested the Petitioner’s agents at meetings. At Kambuga, they beat up two of the Petitioner’s agents for mobilizing his supporters to attend Rwaboni’s rally. On polling day, PPU were deployed in some areas to “monitor” elections. The Commander of the PPU in Rukungiri called in a Petitioner’s agent in a Hotel and pointed a pistol at his head and told him that if anything happened to the PPU he would shoot the agent.

The night before polling day, PPU soldiers were distributed around homes of known supporters of the Petitioner. PPU soldiers buried one supporter of the Petitioner in a pit up to his neck; the commander threatened to shoot the same person. Another person was arrested by the PPU soldiers and thrown into a trench or pit (“Ndaki)” in an army barracks. The PPU also deployed, committed malpractices and offences at polling stations, contrary to the 1st Respondent’s contention that the PPU was deployed in Rukungiri and Kanungu to maintain law and order.

Evidence has proved that the PPU terrorized the Petitioner’s supporters in areas where they operated. As the witnesses themselves said in their affidavit evidence, the PPU struck terror in the minds of the Petitioner’s supporters by intimidation, harassment, arrest, detention, and torture, dispersing meetings etc. in order to discourage support for the Petitioner and to change support for the 1st Respondent. Again, as the witnesses themselves said, it was impossible to hold a free and fair election where the PPU operated.

Deployment of the UPDF for purposes of security, peace, law and order, etc

Before commenting on the activities of the UPDF during the 2001 Presidential Election process, I wish to first examine the propriety or otherwise of the deployment of the UPDF for purposes of the electoral process.

The functions of the UPDF are governed by article 209 of the Constitution, which provides:

“209. The functions of the Uganda Peoples Defence Forces are:

(a) to preserve and defend the sovereignty and territorial integrity of Uganda.

(b) to co-operate with Civilian authority in emergency situation and in cases of natural disasters;

(c) to foster harmony and understanding between the Defence Forces and Civilians; and

(d) to engage in productive activities for the development of Uganda.”

By virtue of the provisions of article 98(1) of the Constitution, the President of Uganda is the Commander — in — Chief of the Uganda Peoples Defence Forces. From the time he was nominated as a candidate for the 2001 Presidential Election up to the time he was sworn in as the winning candidate on 12-05- 2001, the 1st Respondent continued to be the President of the Republic of Uganda. He also continued to be the Commander — in — Chief of the UPDF. I think that this is the effect of the provisions of articles 103(3) and 105(1), of the Constitution read together.

The 1st Respondent does not deny that the UPDF was deployed for purposes of the 2001 Presidential Elections. The justification for doing so is found in paragraph 4 of his affidavit in support of his Answer to the Petition. It is that because police were inadequate and security situation so required, the government decided to and did deploy security Forces throughout the Country to keep peace and order. It further says that the deployment of security forces was done for the purposes of securing law and order throughout the country. It is also stat d that the 1st Respondent did not appoint any military officers to take charge of security of the Presidential Election as stated in paragraph 3(2)(c) of the Petition.

The Army Commander, Maj. Gen. Jeje Odong and the Inspector General of Police, John Kisembo gave similar justification in their respective affidavits, namely that the Police Force was inadequate to maintain security, law and order during the election process. It was therefore necessary to deploy the UPDF and the Police for that purpose. Maj. Gen. Jeje Odong said in his affidavit that sometime in January, 2001, the National Security Council noted that there were indications that election related crimes were on the increase. Intelligence reports from various parts of the Country pointed to the same trend. About the same time, the Minister of Internal Affairs pointed out to Maj. Gen. Odong inadequacies of the Police Force in relation to the task ahead and requested that the Police Force be augmented by the UPDF.

Consequently, the 1stt Respondent was advised and the National Security Council put in place a joint task force consisting of the Army, the Police, LDUs, Intelligence Agencies under the Chairmanship of the Army Commander deputized by the I.G. of Police and the Director General of ISO. There was a joint security task force in each District.

Maj. Gen. Odong and the I.G. of Police Kisembo also said in their respective affidavits that similar joint security arrangements were put in place during the 1987 currency exchange, during the Constitutional Assembly election and the 1996 Presidential Election.

The functions of the Police are also governed by the Constitution, Article 212, which provides:

“212. The functions of the Uganda Police Force shall include the following:

(a) to protect life and property;

(b) to preserve law and order;

(c) to prevent and detect crime; and to co-operate with Civilian authority and other security organs established under this Constitution and with the population generally.”

In view of the provisions of section 41 of the Act, Parliament appears to have envisaged that it is the Police which should maintain law and order at all polling stations during polling in a Presidential Election. It provides:

“41(1). 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.

(2) A Presiding Officer may only appoint a person other than a Police officer to be an election Constable under subsection (1) when there is actual or threatened disorder, or when it is likely that a large number of voters will seek to vote at the same time.

(3) There shall be appointed at every polling station established under subsection (2) of section 33 of the Commission Act one person in order to ensure the orderly and prompt entrance of the voters into their proper polling station within the center.

(4) When an election constable has been appointed by a Presiding Officer, the Constable shall take an oath in the Form O-.C. in the sixth schedule to this Act before commencing to discharge his or her responsibilities as election constable.

(5) Every Presiding Officer who has appointed an election constable at a polling station shall state publicly his or her reasons in the space provided for that purpose in the polling report book.

(6) A Presiding Officer of a polling station located in an urban area may, where required for the purposes of sub-section (2) appoint a Police Officer to maintain order in the polling station.

(7) In this section “urban area” means a town, municipality or the city of Kampala.”

The provisions of section 41 of the Act clearly impose on the Police the responsibility of maintenance of law order at polling stations. This, no doubt, is in addition to its normal duty of maintenance of internal security, peace, law and order throughout the Country continuously during a Presidential Election like at all other times.

This in my view is consistent with the functions of the Police as stated in article 212(b) of the Constitution. The Act was enacted five years after the Constitution came into force. If Parliament thought that in situations provided for in sub-sections (1) and (2) of section 41 of the Act, when necessity to maintain order arises, and there is no Police Officer, then the Presiding Officer should appoint a UPDF soldier not a civilian person, as an alternative Parliament would have said so if it so intended.

In sub-sections (1), (2) of the Act, Parliament would have provided that a UPDF soldier, not a civilian, should be appointed to maintain order if no Police Officer is available.

The answer to inadequacy of Police personnel is therefore, provided for in section 41 of the Act by authorizing Presiding Officers to appoint civilians to act as Election Constables, where Police Officers are not available. An elaborate procedure for doing so is specified under the section. In view of this law, the claim that it was necessary to deploy the UPDF to augment the police does not, in my considered opinion, with respect, hold water.

The Constitution clearly spells out the functions of the UPDF. Internal policing or maintenance of law and order is not one of them, except in emergency situations and in cases of natural disasters under article 209(b) of the Constitution. Article 209(a), (c) and (d) do not, in my view, permit internal maintenance of peace, security law and order by the UPDF. In the instant case, my considered opinion, with respect, is that the UPDF had no business in the electoral process and should only have been deployed if there were emergency situations or cases of natural disasters at the same time, which there were not. There is no evidence that such situations existed when the UPDF was deployed. Maj. General Odong said that there were reports of increase of election related crimes, but he did not say that there were emergency situations or cases of natural disasters. If such situations existed, I am certain that he would have said so. With regard to the argument that because on previous occasions, the UPDF was deployed, so it was in order to do so again this time, my considered opinion is that two or more wrongs do not make a right. I do not know why the UPDF was deployed on the previous occasions to which the Maj. Gen. Odong and I.G. of Police, Kisembo, referred, but I think that what is important is that the Constitution should be obeyed by every person and authority in this country. Such is the clear meaning of article 2 of the Constitution.

To summarise, my considered opinion is that deployment of the UPDF should only have been done according to law. This view is strengthened by the provisions of article 201(a) which states: