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

DR. BYAMUGISHA AND DR. KHAMINWA FOR 1ST RESPONDENT

Dr. Byamugisha, Lead Counsel for the first Respondent submitted that by virtue of S.12 (1) (e) and (f) of the ECA (3/97) it was necessary to take measures to ensure that the entire election is conducted under conditions of freedom and fairness. He referred to the affidavits of the Commander of the Army, Major General Jeje Odongo, that of the Inspector General of Police, John Kisembo, of Lt. Col. Mayombo, the Ag. Head of the Chief tenancy of Military Intelligence and of Major-General Tinyenfuza that of Chairman of the Commission, Hajji Aziz Kasujja, especially his letter (obviously wrongly dated 8th March, 2000) and marked as annex 7 to the affidavit of Dr. Mukasa D. Bulonge. The letter (Annexture 7) was addressed to the petitioner and two other Presidential Candidates but it was also copied to the rest of the Presidential Candidates including the first Respondent and the Commander-in-Chief of the Uganda Armed Forces as well as to the Inspector General of Police. The Chairman started in his letter by saying:-

“……………You raised issues of violence, intimidation and serious flaws in the electoral process………….”

He revealed that he had written to the Head of State as the Commander-in Chief of the Armed Forces beseeching him to contain the army, and to the Inspector General of Police asking him to ensure that the Police carry out their mandate under Art.212 of the Constitution. Learned lead counsel supported the deployment of the army contending that it was necessary because of the inadequacies of the police and that in any case army deployment had been done in the past in 1987 during currency reform exercise, in 1989 during the expansion of the NRC; in 1992, RCs elections and during the last Presidential Elections of 1996 as well as the last Parliamentary elections which followed.

Dr. Khaminwa, Deputy lead counsel, also briefly made submissions relevant to the first and second issues. He referred to certain Articles of the Constitution and supported the role of the army in the electoral process stating that the army was doing its constitutional duty. He agreed with Mr. Mbabazi that the principles, which are necessary for a good electoral process, are:-

a) Free and fair election;

b) Secret ballot;

c) Procedure must be according to laws enacted by Parliament.

d) Considerable proportion of voters should not be prevented from voting

He then submitted that the petitioner had to prove, but did not prove that the election was not free and fair, that voting was not by secret ballot and that the voters who were denied to vote were substantial. He contended that because the voter turnout was 70.3%, out of over 1 0 million registered voters, it would be improper for this Court to interfere with the will of the people of Uganda, which is enshrined in Article 126(1). That Article reads:-

“126(1) Judicial power is derived from the people and shall be exercised by the Courts established under this Constitution in the name of the people and in conformity with Law and with the values, norms and aspirations of the people.”

Pausing here for a moment I do not, with respect, agree that these provisions were intended to hinder the judiciary from determining election disputes according to law.

Dr. Khaminwa cited a number of authorities in support of his arguments. These included Mbowe vs. Eliufoo (1967) EA. 240, Halsbury’s Laws of England, 4th Ed., Vol. 15, pages 581, et seq. And the Uganda High Court decision of Y Katwiremu vs. Mushemereza and two others Hct Petition No.1 of 1 996. Counsel argued that the standard of proof required to be reached in order to justify annulling the presidential election is very high. He contended that the petitioner had not proved non-compliance, which can result in the annulment of the election.

MR. R KABATASI - SOLICITOR GENERAL

Mr. Peter Kabatsi, the Solicitor-General, on behalf of the Commission agreed with submissions made on issue number one by the other Counsel for the first Respondent on the standard of proof in election petitions. He added that if there is non-compliance by the Commission, the burden of proof of non-compliance rests on the petitioner throughout. In his view the standard of proof for noncompliance in respect of a presidential election is even higher than normal parliamentary elections. He cited the case of Ibrahim vs. Shehu Shagari and others (1985) LRC (const.) in support.

On the involvement of the Uganda Peoples Defence Forces (UPDF) in the electoral process, the learned Solicitor General referred us to Article 209(a) to (c) of the Constitution, which provides that:

“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 the civilian authority in emergency situations and in cases of natural disasters; and

(c) to foster harmony and understanding between the Defence Forces and civilians.”

He submitted that UPDF as an active force cannot allow the country to disintegrate. The learned Solicitor General referred to the affidavits of Chairman Kasujja and contended that the National Voters Register has existed since 1993 and that it has been maintained and updated continuously. He referred to the affidavits of some of the Chief Administrative officers (CAOs): such as of Kisoro District, Balaba of Mayuge District, Barnabas of Mubende District and G. Bwanika of Kayunga District who deponed that registers existed.

On display, the learned Solicitor-General conceded that the display period was less than the 21 days stipulated by S.25 of ECA (3/97) but he argued that the Commission had powers under S.38 to display registers for less than 21 days; that even if the display was for a shorter period, the exercise was successful because the register was cleaned up by reducing the number of registered voters as explained in paragraph 28 of Chairman Kasujja affidavit. He argued that the Commission was hard pressed on time.

The Solicitor-General argued that it is the duty of the petitioner to prove that non-compliance affected the Presidential election in a substantial manner. That the Petitioner did not produce figures to show that the shorter period of display affected the results contending that because the display was done at village level, more voters had access to the registers for verification. On voters’ cards, learned Solicitor-General submitted that it is not mandatory under S.26 of ECA to issue voters cards. That Article 59(1) of the Constitution gives citizens the right to vote but that S. 19 of ECA prohibit persons who are not registered from voting. He referred to paragraphs 1 5 and 16 of chairman Kassujja’s affidavit and annexture R7 thereto and submitted that the Commission gave effect to the provisions of Article 59(1) of the Constitution and S.19 (1) of ECA (Act 3/97). He contended that in this petition there was no evidence of the number of persons affected by not voting because of lack of cards.

On Polling Stations and the splitting of Polling Stations, the learned Solicitor- General referred to para 7 of Chairman Kasujja’s supplementary affidavit where the Chairman mentions Nursery school N-Z Katwe II Polling Station, which was split, and where the petitioner got majority votes and submitted that the petitioner had agents at the new Polling Stations. He also relied on the affidavit of candidate Francis Bwengye in which candidate Bwengye averred that he was not aware of the chasing of candidates’ agents. The Solicitor General referred to “apparent falsification” of results in the constituencies of Makindye and Mawokota and submitted that if there were any falsifications, this was due to human error and not to deliberate acts by anybody. He submitted that the affidavits in rebuttal show that there were no ghost voters, no foreigners voting, no underage voting, no pre-ticking of ballot papers, no multiple voting, that there was no ballot stuffing of polling boxes as alleged by the petitioner and his supporters in their respective affidavits. He argued that if there were any ghost voters or any multiple voting or any ballot stuffing or falsification of results or any other errors, they did not affected the results in a substantial manner.

Like Dr. Byamugisha and Dr. Khaminwa, the Solicitor-General contended that the Petitioner and his Counsel have been unable to prove by number of the votes complained of which could affect the result in favour of the Petitioner. He referred to various affidavits sworn and filed in support of the reply by the Commission and in rebuttal of the affidavits sworn in support of the petition. These affidavits include several sworn by Chairman Kasujja, those sworn by some Chief Administrate Officers in their capacities as Returning officers or District Registrars, of their respective Districts, e.g., of Kisoro, Mubende, Ntungamwo, Kayunga, Yumbe, Bushenyi, Kasese and Kabale. He also relied on affidavits of the Commander of the Army, of John Kisembo, (Inspector-General of Police), former Presidential candidate (Francis Bwengye) and other persons such as Magumba Arajabu from Mbale, Tumuhairwe and Juma Majid. The learned Solicitor General asked us to answer issue No.1 in the negative.

COURT’S OPINION

In discussing objections raised by counsel for the respondents against affidavits in support of the petition, I have reproduced affidavits of some deponents. They support some of the petitioner’s complaints Those witnesses are Guma Majid from Yumbe, Wafidi Amiri from Mbale, B. Masiko of Ntungamwo and Mulindwa Abas from Palisa. I should add that the respondents have filed replies to those affidavits.

It is pertinent to begin the discussion of this issue by referring to some provisions of the Constitution wherein is enshrined the arrangement for the Government or management of Uganda. The arrangement for the election and the method of election of the President of the Republic of Uganda are all enshrined in the Constitution as well as in the Presidential Election Act 2000 (PEA).

CONSTITUTIONAL PRINCIPLES

The preamble to our Constitution is instructive, for it states:-

“Recalling our history which has been characterised by political and Constitutional instability;

Recognizing our struggles against the forces of tyranny, Oppression and exploitation;

COMMITTED to building a better future by establishing a social- economic and political order through a popular and durable national Constitution based on the principles of unity, peace, equality, democracy, freedom, social justice and progress;”

These lofty sentiments remind all Ugandans of our past and a better future in which democratic and sound political principles would be practiced.

In the National Objectives and Directive, some Principles of State Policy are set forth as follows:

I. “Implementation of Objectives”

(I) The following objectives and principles shall guide all organs and agencies of the State, all citizens, organisations and other bodies and persons in applying or interpreting the Constitution or any other law and in taking and implementing any policy decisions for the establishment and promotion of a lust, free and democratic society

Political Objectives

II. Democratic Principles

(i) The State shall be based on democratic principles which empower and encourage the active participation of all citizens at all level in their own governance

(ii) All the people of Uganda shall have access to leadership positions at all levels, subject to the Constitution”

The sovereignty of the people of Uganda is embodied in Article 1 of the Constitution in the following words:-

“1 (1) All power belongs to the people who shall exercise their sovereignty in accordance with this Constitution.

(2) Without limiting the effect of clause (7) of this article, all authority in the State emanates from the people of Uganda; and the people shall be governed through there will and consent.

(3) All power and authority of Government and its organs derive from this Constitution, which in turn derives its authority from the people who consent to be governed in accordance with this Constitution.

(4) The people shall express their will and consent on who shall govern them and how they should be governed, through regular, free and fair elections of their representatives or through referenda.”

Part of the democratic electoral process is reflected in Chapter five of the Constitution as follows:-

“59. (1) Every citizen of Uganda of eighteen years of age or above, has a right to vote.

(2) It is the duty of every citizen of Uganda of eighteen years of age or above, to register as a voter for public elections and referenda.

(3) The State shall take all necessary steps to ensure that all citizens qualified to vote, register and exercise their right to vote”

It is the Electoral Commission, which supervises elections. In that respect, Article 61 states:

“61. The Electoral Commission shall have the following functions:

(a) to ensure that regular, free and fair elections are held;

(b) to organise, conduct and supervise elections and referenda in accordance with this Constitution;

(c) ………………….

(d) …………………..

(e) to compile, maintain, revise and update the voters’ register;

(f) ……………..

Articles 70(l) states:

The movement political system is broad based, inclusive and non-partisan and shall conform to the following principles:

(a) Participatory democracy;

(b) democracy, accountability and transparency;

(c) accessibility to all positions of leadership by all citizens

(d) individual merit as a basis for election to political offices.

The President is the embodiment of the State of Uganda. He is the Chief Executive. The Constitution has the following provisions about the President:

“98 (1) There shall be a President of Uganda who shall be the Head of State, Head of Government and Commander-in-Chief of Uganda Peoples Defence Forces and the Fountain of Honour.

99. (3) It shall be the duty of the President to abide by, uphold and safeguard this Constitution and the laws of Uganda and to promote the welfare of the citizens and protect the territorial integrity of Uganda.

“103 (1) The election of the President shall be by universal adult suffrage through a secret ballot”

These provisions are clear. I can only emphasize that the presidential election by secret ballot is a Constitutional and democratic requirement. The President of Uganda enjoys enormous powers, which he/she must exercise in accordance with the constitution and other laws.

Article 104 which so far as relevant states: -

“104. (1) Subject to the provisions of this Article, any aggrieved candidate may petition the Supreme Court for an order that a candidate declared by the Electoral Commission elected as President was not validly elected.

(2) The Supreme Court shall inquire into and determine the petition expeditiously and shall declare its findings not later than thirty days from the date the petition is filed”

It is trite that in court disputes, whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist. He bears the burden of proof: See S. 100 to 1 02 of the Evidence Act. These sections are clear.

The Petitioner had to adduce evidence before us to prove that there was non-compliance with the Presidential Elections Act 2000. His complaints are set out in his petition and the accompanying affidavit, which were lodged in this Court on 23td March 2001. They are set out in paragraph 3(1) of the petition. I have summarised them at the beginning of this judgment.
The Petitioner prayed in paragraph 3(1)(y) that non-compliance with the provisions of the Presidential Election Act 2000 and of the Electoral Commission Act affected the result of the Presidential Election in a substantial manner in that:

(i) The number of actual voters on the Voters Roll/Register remained unknown and some people were disfranchised; and the number of votes cast during the election at certain Polling Stations exceeded the registered number of registered voters or the ballot papers delivered at the station.

(ii) The identity of the Voters could not be verified.

(iii) The electoral process regarding the voters’ register was full of serious flaws and voters were denied the chance and sufficient time to correct those flaws.

(iv) No sufficient time was allowed for the petitioner and his agents and supporters to scrutinise the voters roll/register and take corrective measures regarding the same.

(v) The Petitioner’s polling agents were denied the opportunity to safeguard their candidate’s interests at the time of polling, counting and tallying of votes and in their absence illegal voters voted while legitimate voters voted more than once.

(vi) The Petitioner was unduly hindered from freely canvassing for support by the presence of the military and para-military personnel who intimidated the voters.

(vii) It cannot positively be ascertained that the 1st Respondent obtained more than 50% of valid votes of those entitled to vote.

On 23rd March, 2001 the Petitioner swore an affidavit to support the above complaints. I have said that very many other affidavits were sworn by other deponents in support of the petition. I have already reproduced five of these affidavits in relation with objections raised by the respondents about the admissibility in evidence of the majority of these affidavits. Those same affidavits are part of the effort by the petitioner to prove his complaints raised in paragraph 3(I)(y) (v) and (vi) On this issue the pertinent paragraphs of the Petitioner’s affidavit are:- 9, 11, 12, 13, 14, 15, 17, 18, 21, 22, 23, 29, 35, 36, 39, 40, 41, 42, 43, 45, 46,47, 48 and 49. In brief he complained of the gross mismanagement of the electoral process, unjustified military involvement in the electoral process or rather, the over militarization of the electoral process, the rampant intimidation, the violence, the harassment, assault and beating up of his supporters and his agents which constituted non-compliance with the provisions and principles of the Presidential Elections Act, 2000.

The first Respondent answered these complaints in his answer and his main affidavit. I have already summarised his answer. Many other persons including UPDF officers, such as Major General Odongo Jeje, Major Gen. Tinyefuza, J., Lt. Col. Mayombo, PPU officers, like Captains Ndahura and Rwakitarate and also his agents swore affidavits to support his reply. Hajji Aziz Kasujja, the Chairman of the Commission, swore three affidavits in the rebuttal of the petitioner’s complaints. The gist has been given earlier. CAOs and other officials supported him by swearing other affidavits relating to specific complaints in their spheres of work.

The Petitioner complains about the non-compliance with the provisions of the PEA, before the election and during the election exercise on 12/3/2001. Complaints before the election are about violence, the harassment, assault, abduction, and intimidation of the petitioner and or of his agents and supporters.

About violence, harassment, intimidation and beating of himself and his agents and supporters, the Petitioner testifies to this in his own affidavit. In particular, there is the evidence about the mistreating and assault of Rabwoni Okwir in the petitioner’s presence and other supporters in Entebbe. There are affidavits giving evidence on violence, harassment, mistreatment, assaults in Rukungiri, Kanungu, Mbarara and Kamwenge Districts during February, 2001 and subsequently: See the affidavits of B. Masiko, about violence and intimidation in Kanungu, James Musinguzi of Rukungiri, (about violence intimidation and harassment) in Rukungiri and Kanungu, Kakuru Sam, intimidation and violence in Kanungu, J. H Kasamunyu, Mpwabwooba C., Bashaija. R. Mubangizu. All these witnesses give various harrowing and horrendous accounts of what happened. A study of the affidavits of these witnesses reveals that the epicentre of terror, harassment, intimidation, assault and all manner of violence was Rukungiri, Kanungu, Mbarara and Kamwenge. This spilled over into surrounding districts of Ntungamwo, Bushenyi, Mbarara, Kamwenge and Kabale. The witnesses for the Respondents deny that these complaints are genuine. Let me evaluate the evidence of the two sides on the matter of intimidation, violence, humiliation and harassment

In his complaints, the petitioner refers to acts of the agents of the respondents. In my mind the agents of the second respondents are easy to identify since these are its officials. These including CAOs, Assistant CAOs and lower election or polling officials. But because there is unwillingness by the 1st Respondent to reveal all his agents, there is some difficulty in identifying agents or representatives of the first Respondent except those who have accepted. PEA and ECA are not quite helpful on this. Neither of them defines precisely who is or what is the characteristic of an agent of a Presidential candidate.

As I pointed out at the beginning, that we found on 21/4/2001 that there was non-compliance with the provisions of section 28 and S.32 (5) of the PEA, 2000. This relates to non-gazzetting of polling stations and failure to supply to petitioner with the official copy of registers.

The questions to answer are was there violence, intimidation, assault, abduction, and harassment? If yes, where was it and for what purpose? Does the proven violence, intimidation, harassment and assault amount to non-compliance with the provisions of PEA?

UNDISPUTED FACTS

There are facts in the petition which are not in dispute. For instance it has been accepted that UPDF was deployed throughout the country during the Presidential election campaign period. It is also accepted that PPU had been deployed in many districts in Uganda during the campaign period. It is also, I think, clear that there was a considerable concentration of deployment of members of the PPU in the districts of Rukungiri and Kanungu in particular and neighbouring districts of Ntungamo, Bushenyi, Mbarara and Kamwenge. The petitioner, his agents and supporters claim that the deployment was for purposes of humiliation, intimidating and harassing the petitioner, his agents and supporters so as to deprive the petitioner of support in the area. The first respondent and his supporters claim that deployment of UPDF was intended to ensure freedom and fairness in electioneering exercise and that PPU was in Rukungiri pending his return visit there. It is also accepted that registers were displayed for a shorter time than that provided by ECA.