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

“201. Parliament shall make laws regulating the Uganda Peoples Defence Force, and in particular providing for — …………………….

1. 
   the deployment of troops outside Uganda.”
   

In the circumstances, my considered opinion is that the UPDF was not properly deployed to assist the Police for purposes of maintenance of peace, law, and order during the 2001 Presidential Election in the absence of emergency situations or cases of natural disasters.
The question whether the UPDF was properly or not properly deployed, involves interpretation of the Constitution under article 137(5) of the Constitution. None of the parties to the Petition asked for such a question to be referred to the Constitutional Court under article 137(5) (b); and I do not think that the Court should have exercised its discretion under article 1 37(5) (a) to refer the question to the Constitutional Court, because of the impracticability it would involve. Under article 104(3), the Court is enjoined to inquire and determine this Petition expeditiously and declare its finding not later than thirty days from the date the Petition was filed. The Court did so and rendered its judgment on 21-03-2001, one day before the last day it had to comply with the provisio1S of article 104(3). If the Court had to refer the question I have mentioned to the Constitutional Court, it would never have declared its finding within thirty days. It would have thereby violated article 104(3) of the Constitution. If the Court could not render its decision within the prescribed time, there would have been, in my considered view, a Constitutional crisis. This Court would not, I think, be prepared to be responsible for such a Constitutional crisis.

Activities of the UPDF relating to violence, intimidation, threats, harassment, etc:

Credible evidence shows that in many places, UPDF soldier’s intimidated, threatened, harassed or arrested, detained or applied violence against the Petitioner’s supporters.

I shall give some examples.

In Kyenjojo, there was heavy gun shooting by UPDF the night before the Petitioner’s rally in Kamwenge to scare of people known to be supporting the Petitioner and to turn them to support the 1st Respondent

Armed soldiers also guarded polling stations in Kasese, where a UPDF sergeant claiming to have been sent from State House threatened to arrest all those campaigning for the Petitioner and said that he had a list of them. The same soldier who was, in fact, from Nakasongola D.M.I., arrested a campaign agent of the Petitioner. In Kasese lorry loads of soldiers ferried from the D.R.C. went round shouting “No Change”, and voted several times.

At polling stations in Nyabushozi and Isingiro, armed UPDF soldiers harassed the Petitioner’s supporters. In Mbarara Municipality, there was heavy deployment of UPDF soldiers, making it impossible for the Petitioner’s agents to meet, and at many polling stations UPDF soldiers chased away the Petitioner’s polling agents.

In Ibanda a “Monitor” News Paper reporter was arrested by UPDF soldiers and detained in barracks for being inquisitive. In Tororo a supporter of the Petitioner who refused to pull down the Petitioner’s poster was arrested and tortured by soldiers in a yellow “Movement” bus. Thereafter he felt too threatened to continue to campaign for the Petitioner.

In Lira, the UPDF Commandant of Aromo Detach arrested and detained a supporter of the Petitioner.

At Wobulenzi, Luwero District, a UPDF Major chased away an agent of the Petitioner from a polling station. In Bugiri, one of the Petitioner’s agents was harassed by eleven UPDF soldiers. Soldiers from the RDC’s office also went to a polling station threatening others and forcing under-aged children to vote. They also chased away the Petitioner’s polling agents from a polling station. At Musasa in Kasese, an agent of the Petitioner was threatened to be killed by the i/c of Nyabirengo Battalion Headquarters, and a UPDF Major.

In Ibanda, UPDF soldiers surrounded the Petitioner’s supporters and ordered them to leave a meeting. A UPDF Captain tore down the Petitioner’s poster and shot at an agent of the Petitioner. At Nsambya Polling Station, Mubende, two UPDF soldiers, with a walkie - talkie, threatened to arrest anybody who was complaining about the irregular manner in which ballot papers were being counted.

In Mbale, two UPDF soldiers released a person from Mbale Police Station who had been arrested for caning a female supporter of the Petitioner. In Palisa, UPDF soldiers I n a mini bus moved around a trading center, where a Sub- County Chief and L.C. officials were telling people that if they did not vote for the 1st Respondent, soldiers would kill them. In Kamwenge, a UPDF Captain shot at an agent of the Petitioner and armed UPDF soldiers stopped the same agent from campaigning at a trading center; and another agent was attacked by UPDF soldiers at his home and the house burnt down. Escorts of Hon. Byaruhanga, MP, beat up local publicity secretary for the Petitioner and other Petitioner’s supporters and told them to denounce the Petitioner. The Honourable MP is an army captain.

In Kamwenge, a UPDF Lieutenant told the Petitioner’s polling agents to remove their identity cards and one of the Petitioner’s agents was arrested and detained in a ditch in the local UPDF Barracks, guarded by two UPDF soldiers. The Lt. also ordered the Presiding Officer to tick ballot papers in favour of the 1st Respondent. At Paico, in Gulu District, two UPDF soldiers were stationed at each polling station. The soldiers also forced voters to vote for the soldiers’ choice. When voters chased away the soldiers, they returned in an armoured personnel carrier, (called ‘Mamba”) and assaulted two of the Petitioner’s supporters.

In Busaana Sub-County of Kayunga District armed soldiers moved all over the Sub-County on a school truck harassing the Petitioner’s supporters. In Galilaya Sub-County, armed uniformed men also intimidated the Petitioner’s supporters.

At polling stations within the UPDF Barracks in Gulu, civilian polling assistants were replaced by military polling assistants.

In Kampala, two supporters of the Petitioner were arrested, tortured and detained in Mbuya Military Barracks.

On an inference of fact based on credible evidence it is clear that soldiers of the UPDF were in favour of the 1 Respondent being elected. Army Officers campaigned for him. This is clear from the complaint to that effect made by four of the Presidential candidates and the instruction issued out by the Chairman of the 2nd Respondent that Army Officers, RDCs and GISOs should not campaign for the 1st Respondent. On the whole, UPDF was against election of the Petitioner. This, in my considered opinion, is the reason they harassed, intimidated, arrested and in a few cases, shot at the Petitioner’s agents. In some incidences, they also interfered with voting process at polling stations. The reply from the 2^nd Respondent’s Chairman to four candidates indicates that Army Officers, RDCs and GISOs, were campaigning for the 1 Respondent. The Chairman said that he had sent out instructions for them to stop doing so.

Evidence shows that soldiers of the UPDF do not appear to have positively helped in the maintenance of peace, security and order during the Presidential Election process. On the contrary, with respect, my considered opinion is that they were a source of insecurity for the Petitioner’s supporters or persons not openly in support of the 1st Respondent. This was mainly in Rukungiri and Kanungu Districts, but it also happened elsewhere.

Activities of RDC’s and Deputy RDC’s related to violence, intimidation, violation, threats, harassment, etc:

In a few Districts, these clearly intimidated, harassed, dispersed meetings of, and arrested, the Petitioner’s supporters. They too, were obviously in favour of election of the 1st Respondent, and against election of the Petitioner. The reason, I think, is not far to see. It is that only by having the 1st Respondent, the incumbent re-elected, would they also hope to remain incumbent in their respective offices. An L.C. Monitor introduced an agent of the Petitioner to an RDC and an M.R as a rebel who wanted overthrows the incumbents in order to become an RDC in the Petitioner’s government.

A few examples may be given. The RDC of Mbale, according to an affidavit based an information was involved in organizing youths to tear down the Petitioner’s posters in Mbale Municipality.

In Rukungiri, the Deputy RDC, accompanied by GISO and PPU soldiers, ordered the removal of the Petitioner’s poster from the front of his campaign office. The same Deputy RDC also moved around Kambuga, Kihihi and Kayonza with PPU soldiers pointing out whom to harass. The Deputy RDC also pointed a gun at a Petitioner’s agent. In Kabale, the RDC with LDU’s, Parish Chiefs and GISO kept the Petitioner’s Task Force under constant harassment, and threatened the Petitioner’s supporters with arrest if they did not abandon his camp.

Activities of GISOs related to violence, intimidation, threats, harassment, etc:

These are Gombolola (Sub-County) Intelligence Officers. A number of them were involved in electoral malpractices or offences. Evidence shows that they, too, were in favour of the 1st Respondent’s election and against the Petitioner’s election. Some of them were involved in intimidation, harassment and arrest of the Petitioner’s supporters. I shall give a few examples.

In Rukungiri, GISO with a Deputy RDC and PPU soldiers pulled down the Petitioner’s posters. In Kambuga, GISO took away a motor cycle belonging to an agent of the Petitioner; and GISO arrested others at a road — block and beat them up, and buried one of them in a pit.
In Kanungu, a GISO with L.C. Councilors and the 1st Respondent’s supporters went round with guns threatening the Petitioner’s supporters.

In Tororo a GISO arrested a Petitioner’s supporter at Kwapa a polling station. In Mayuge a GISO was seen issuing Voters’ Cards.

At a polling station in Sembabule, a GISO arrived with four armed men and ordered people who had voted to go home, and those who refused to be arrested. Two men who disobeyed the order were arrested.

At Matsyono Trading Centre, in Kamwenge a GISO arrested five members of the Petitioner’s campaign team, one of who was detained at Ntara Police Station and later released. A Petitioner’s monitor going to Rwampoboka Polling Station in Kinkizi Sub District, and met GISO on a pickup with about 15 to 20 armed men, was arrested and warned by the GISO that he was undesirable in polling centers in the area and that unless he went back; he was putting his life in danger.

In Kanungu Town, a gang of the 1 Respondent’s supporters, led by a GISO, removed the Petitioner’s posters at a newly opened campaign office and ordered his supporters to close down the office. The following day the office was smeared with human feaces by unknown people. On polling day the same GISO ordered a Presiding Officer at a polling station to tick ballots openly at the first desk, saying that it was an order from the RDC.

Activities of L. C. Officials related to violence, intimidation, threats, harassment, etc:

As credible evidence shows, LCI Chairmen, LC.ll Chairmen and LC.III Chairmen and other L.C. officials intimidated, harassed or arrested supporters of the Petitioner, or voters generally not to vote for the Petitioner but vote for the 1st Respondent. I shall give some examples.

In Rukungiri an LCIII Chairman, threatened to shoot one of the Petitioner’s agents, if he did not close the Petitioner’s District campaign office. When the agent returned the following day, he found that another pad lock had been fixed on the office door. The Petitioner’s Task Force had to give up the office. Early in March 2001, L.C. officials were mobilized by Kabale RDC to violently stop the Petitioner’s supporters to meet at Ryakarimira. In Bufundi, the L.C. Vice Chairman moved from one polling station to another directing polling official not to allow any officials of the Petitioner at polling stations. In Rukungiri, a Chairman and the Treasurer of LCIII of Nyamishanje, with a group of armed men threatened a Petitioner’s agent with arrest. Consequently, the agents found the campaign process difficult to carry on. The L.C.III Treasurer with the PPU denied two of the Petitioner’s campaign agents from Kampala the right to hold a rally. The Petitioner’s supporters went into hiding from 11-03-2001, to 12-03-2001.

At a polling station, the L.C. V Chairman of Kumi asked a polling agent of the Petitioner to leave the polling station. At Amoni Polling Station, the L.C.III Chairman for Kwapa, went to the polling station and ordered everybody there to disappear. When some people resisted, the L.C.Ill Chairman went to his car, picked a gun and fired it in the air. He then got a bundle of ballot papers from his car and stuffed them in the ballot box. After information reached them, the Chairman, L.C. V1 Tororo, and Kwapa LCV Councilor arrived at the polling station. The L.C. officials in question successfully resisted removal of 40 extra ballot papers which were found ticked for the 1st Respondent.

At Nsambya, a Polling Station in Mubende District, an L.C.III Chairman, with security operatives and two UPDF soldiers threatened to arrest anybody who challenged the manner in which ballot papers were being irregularly counted. At Kibuku Trading Centre, Paillisa District, an L.C.II Chairman, a Sub-County Councilor and Sub-County Chief, told the people that if they did not vote for the 1ST Respondent, soldiers, who were also present at the place, would kill them. When the Petitioner’s agents complained they were roughed up by heavily armed LDUs who told them that they were in power with the 1st Respondent, and there was nothing the Petitioner’s supporters could do about it. They should keep quiet.

At Kyevu in Nyamirango Parish, Kabale District, an L.C.I Chairman and other L.C.l officials chased away the Petitioner’s agents from holding a rally. When one of the Petitioner’s agents was returning from his duty trip, he found a road — block, manned by an L.C.l Chairman who arrested and severely beat up the agent and stripped him naked. He was taken to the L.C.II Chairman’s home, where he was tortured to reveal the names of the Petitioner’s agents in the area. The list, other documents and money were removed from him. Later on the way home, they met an L.C. Defence Secretary, who suggested that the agent should be killed and thrown into Lake Bunyonyi. Thereafter, the group was taken to the GISO’s home, and further to the Sub-County Headquarters, where a statement was recorded from him.

Also in Kabale District, L.C. officials constantly harassed the Petitioner’s agents and organized people to throw stones at them, dispersed their rallies, virtually making it impossible for them to campaign in places such as Rubaya and others. The home of the Chairman of the Petitioner’s Task Force of Kambugye was burnt down by UPDF soldiers and L.C. officials, and the Chairman went into hiding.

The Voter’s Cards for the wife of a polling agent for the Petitioner at Kanyegaramire Polling Station, Kamwenge District was confiscated by L.C. officials because they knew that she would vote for the Petitioner. The Chairman, L.C.III for Kahuge, sent for the head of the mobilization team for the Petitioner for Kahuge. When the agent was taken to the L.C.lll Chairman, the latter told them that he was arresting them, because they had abused the Chairman L.C.lll and Hon. Capt. Byaruhanga, M.P

On polling day at Kaburaisoke, the L.C.lll Chairman demanded that agents for the Petitioner should cross to the 1st Respondent’s camp.

In Kampala, an L.C.I Chairman stopped a Petitioner’s agent from preventing Voters’ Cards being issued to known Somali aliens.

Acts of intimidation, harassment, etc. by supporters and agents of the 1st Respondent:

Credible evidence indicates that supporters and agents of the 1st Respondent were involved in intimidation and harassment of the Petitioner’s supporters and agents. I shall give some examples When the Petitioner went to address a rally at Kamwenge Town on 16-02-2001, he found that agents and supporters of the 1st Respondent had organized themselves along the streets of Kamwenge, carrying posters of the 1st Respondent and throwing stones at the Petitioner’s convoy. This interfered with his campaign and his supporters were intimidated and assaulted. On 17-02-2001, at Ishugu, in Kamwenge, the 1st Respondent’s supporters molested student supporters of the Petitioner. On 9-3-2001, when the Petitioner’s agents were holding a meeting in Kihanda Parish, 15 vigilantes of the 1 Respondent attacked them with sticks and ran away when an alarm was raised. The next day PPU and the Police started hunting the Petitioner’s supporters.

On 12-03-2001 at Kasika Nyakimasa Polling Station when an agent of the Petitioner complained to the Presiding Officer about under-aged children being allowed to vote, the Presiding Officer ignored him and the Respondent’s agents threatened to stone him if he continued with his complaints. In Nyabushozi and Isingiro Polling agents for the Petitioner were harassed, arrested and beaten, tied up, detained or threatened with violence and chased away from polling stations by heavily armed UPDF, LDUs and supporters of the 1 Respondents. At Bakabahyenda Polling Station in Jewa Parish, Bungokho, Mbale District, a disturbance was started by the area Sub-County Chief, the Chairman of the 1st Respondent’s Task Force, the Sub-County Councilor who went with four armed soldiers, who shot in the air. Early in March, the 1st Respondent’s supporters were mobilized by the RDC of Kabale to violently stop the Petitioner’s agents from a rally in Nyakamunira Trading Centre, in Rubaya. During the entire period of campaign, many agents and civilian supporters of the 1st Respondent regularly went around with guns threatening the Petitioner’s supporters to compel them to support the 1st Respondent.

On 16-02-2001, after the Petitioner had addressed a rally in Kamwenge Town, the Petitioner’s supporters met a mob of the 1st Respondent’s supporters armed with bricks, stones, and sticks, who beat up the Petitioner’s supporters. They shouted ‘Besigye’s supporters.” The victims were pursued up to Kamwenge Police Station where they took refuge and reported about the incident. One of the Petitioner’s supporters was very badly beaten and had to obtain medical treatment. In Kibuku, Pallisa, a Petitioner’s agent who had complained about electoral malpractices was accused by the 1st Respondent’s supporters that he was a rebel. As a result, he felt that his life was in danger and he confined himself at his residence.

On polling day at Rurembo in Kabale District, one of the Petitioner’s polling agents, was told by a group of men led by one Kugaja that the agent should go away because they were self-sufficient. They did not need him as a visitor at the polling station. They kicked, beat and trampled on him. He managed to escape when they called a crowd to arrest him for being a Petitioner’s agent. The crowd shouted that if the Petitioner’s agents went to the polling station, they should be killed. On 28-02-2001, Hon. Captain Byaruhanga M.P., and his escorts, threatened one of the Petitioner’s agents with death unless he denounced the Petitioner. Later the same day, the M.P’s driver and escort beat up the Petitioner’s agent and a colleague.

In Kamwenge, one of the Petitioner’s agents was frequently threatened and harassed and her door shattered and shop vandalized by a group of hooligans led by an L.C.I Movement Chairman. The Petitioner’s task force offices were constantly closed down and reopened and his posters torn down by people from the 1st Respondent’s task force.

In Kayunga, a report of electoral malpractices compiled by the Petitioner’s agents, an annexture to the agent’s affidavit indicates that in Galilaya Sub-County, the Petitioner’s monitors were intimidated by the 1st Respondent’s supporters, agents and armed men in uniform. In Kamwenge Town, a campaign agent for the Petitioner was threatened with a gun by Hon Captain Byaruhanga, M.P. and branded a rebel because he had refused to denounce the Petitioner and change sides to the 1st Respondent. When the agent was being driven to Bihanga Army Barracks he was severely assaulted and thrown into a ditch and his arm injured.

At Nyamwegabira Polling Centre, Nyakatungwe, Rukungiri District, a Sub-County election monitor for the Petitioner, was booed by a mob of twenty youths, led by Samson of Busengo, Busesi of Bwenerere and Odongo of Nyaimwegabira, who told the monitor in a chorus that if he needed his life, he should disappear from the scene. Odongo, one of them, said that the Petitioner should not appear at that polling center. As a result, the Petitioner’s monitor feared for his life.

Activities of Major Kakooza Mutale and his Kalangala Action Plan Group:

Complaints against what the Petitioner called Major Kakooza Mutale and the Kalangala Action Plan armed para — military group were made in paragraphs 3(1) (v) and 3(2) (d) of the Petition, which I have already set out in this judgment. In his Answer to the Petition, the 1 Respondent, in essence, denied that he deployed such a group or that it harassed or intimidated the Petitioner’s supporters. Evidence about this group came from the affidavits of the Petitioner, from the 1st Respondent, Hon. Winnie Byanyima, M.R, and from Major Mutale himself. What the Petitioner said in his affidavit in this connection must be from reports he had received. He did not disclose the sources of such information. Hon. Winnie Byanyima, on the other hand said in her affidavit that she was informed by the Petitioner’s Mbale District Task Force Chairman, one Wagyega that two days before the Petitioner’s rally in Mbale, Major Kakooza Mutale and his band of armed men beat up the Petitioner’s supporters in Mbale. In his affidavit dated 4-4-2001, Major Kakooza Mutale said, inter alia, that he is a special Presidential Advisor on political affairs. A copy of his schedule of duties as such was annexture “A” to his affidavit, which enjoins him to carry out duties of political mobiliser and tender advice to the President, etc. Mutale then narrated how a convention was held in Kalangala from 25’ to 28th September, 2000. The convention formed “Kalangala Action Plan” with a long list of objects and organizational structure. The convention was attended by 481 participants all of whom were mobilisers, mass mobilisers, political mobilisers and supporters of the Movement, security officers. GISOs, LC. Officials, businessmen, cadres, youth leaders, etc. from all the Districts of Uganda. The Kalangala Action Plan prepared a document called:

“A Memorandum to his Excellency. The President from the convention of Movement Mobilisers held in Kalangala from 25-09-2000 to 28-09-2000, said in the preamble:

We the Movement Mobilisers, who have been here at Kalangala since 25th September 2000, wish to thank Your Excellency The President for having made the arrangement of bringing all mobilisers from the entire Country together to discuss issues of concern to our Country.

For a long time your Excellency, we cadres at the grass roots have felt neglected, we hope that this initiative will not stop here but will continue from time to time.

We wish to congratulate your Excellency and ourselves for having won the Referendum. We appreciate the numerous achievements of the Movement Government and ft is our humble request that these fundamental achievements are fine tuned and consolidated.”

Towards the end of his affidavit, Major Mutale said that after the convention, the various mobilisers returned to their respective districts and countries to continue with their work of mobilization. He then ended:

“