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

b. Serious Flaws in the Electoral Process

You have expressed concern over the delay in producing the final Voters Register. Please be assured that, the final Voters Register will be, ready in time for Polling.

Your worry about the number of Voters on the Voters Register has been noted. It is important to note that the last Population Census for Uganda was conducted in 1991. What the National Bureau of Statistics has provided you with are population projections, which might not rhyme with the list of eligible electors. The figure of 11.6 million Voters on the Register is derived from returns received from the field after the National Voters Register Update Exercise. It is during this exercise that new Voters are registered, those who wish to transfer to other voting centres are transferred, the dead and other non bona fide Voters are deleted from the Register. You will recall that at the request of the Presidential Candidates the period for this exercise was extended to allow the Voters more time to scrutinise and clean the Register. There is no way the Commission can cause the number of Voters on the Register to rhyme with the mandate methodology and legal requirements of the two Government bodies are different.

A few blank Cards were mistakenly issued to some Polling Stations. These should have been returned to the Commission and appropriate ones issued.

It should be pointed out that these Cards are to be used for the Presidential Elections only.

The Electoral Commission could not invest a lot of money in them by way of quality.
However, they have sufficient security features to allow for detection of any imitations.
Holders of suspected fake Cards should be reported to the authorities.

Various factors are considered when creating Polling Stations. Should these factors change, new Polling Stations may be created or existing one could be closed. The Commission relies very much on the input from the field. It would have been helpful if you had indicated specific names of Polling Stations affected so that remedial action is taken or reasons are given for their being degazetted if at all.

The mater of the intruders into our Data Processing Centre is being handled by the Police. We wish nevertheless to assure you that our data was not damaged, tampered with or corrupted.
With regard to Army Officers, RDCs, DISOs, and GISOs campaigning for certain Candidates, the Commission issued instructions to all those concerned to stop the practice. The Commission will be grateful to receive specific names and places of persons still engaging in this practice so that appropriate action can be taken.

I am sure the issues you have raised have been satisfactorily answered and in view of the Candidates’ and Commission’s last minute activities currently going on, the meeting of all Presidential Candidates demanded for will not be practicable.

A. K. Kasujja,
CHAIRMAN,
ELECTORAL COMMISSIQN.

c.c. The Commander in Chief of the Uganda Armed Forces.

The Inspector General of Police.

Mr. Y. K. Museveni,

Presidential Candidate, 2001”.

Mr. A. Awori,

Presidential Candidate, 2001.

Mr. F. W. Bwengye,

Presidential Candidate, 2001.”

These letters are clearly part of the evidence showing that the Commission was not in command of the electoral process. The chairman avoided convening a meeting of all candidates at that critical moment to discuss problems raised by the Petitioner and some of the other candidates. This refusal was unwise whatever the reasons for the refusal. I think that by this refusal to hold candidates meeting, the Commission dealt a blow to transparency.

As late as 10/312001, Chairman Hajji Kasujja briefed International observers (see Annex 6 to Dr. Mukasa’s affidavit sworn on 1/4/2001). Chairman Hajji Kassujja referred to many things during his briefing. He admitted violence during the campaign. He avoided mentioning the culprits. He admitted appealing to the first Respondent as Head of State to restrain security forces from perpetuating violence and intimidation. He had difficulty in updating registers.

I have studied the affidavits of many witnesses for the petitioner and for the Respondents including Haji Kasujja and the other witnesses of the Respondents, e.g., Major General Jeje Odongo, Lt. Col. Mayombo, Moses Byaruhanga (Secretary to NIF), Captain Rwakitatare, Major Kakooza-Mutale, RDC Naava-Nabagesera, Munyani Naabya, Moses Muhairwa, Mudabi Emmanuel, Kakuba Nachan, Muhamad Masaba, Capt. Ndahura, Mrs. Jackline Mbabazi, and RDC James Mwesigye. Some of these witnesses are RDC, (Nabagesera and Mwesigye); CAOs, (Kakuba) or members of UPDF (Major Gen. Odongo) or PPU (Captain Ndahura). As the contents of the chairman’s letter (supra) show, UPDF officers, RDCs were seen as partisan during the campaign and their partiality towards the Petitioner was known. Accordingly I prefer the story told by the side of the Petitioner to that of the respondents.

The lamentations of Chairman Haji Kasujja contained in his letter EC/25 dated 24th February 2001 addressed to the First Respondent speak volumes. It shows that certainly either his agents or the first Respondent did not respect the rules of the election. This is strange because participants in a democratic election prescribed by the constitution have to obey those rules. I find that there was systematic, if not orchestrated, intimidation, harassment of petitioner and his agents and interference with electioneering or campaigns of the Petitioner personally and his agents and supporters. I believe that this was not accidental. This was contrary to the provisions of S.25, 28, 32, 47(4) & (5) 70, 71, 74 of the Presidential Elections Act, 2000. This was non-compliance with the provisions of the Act. These discussions and conclusions dispose of the first issue, really.

I have heard submissions that this could not or did not affect results. I disagree completely and I shall give more reasons later. Suffice is to say here that persistent harassment and taunting and beating of campaign agents of the Petitioner demoralised and degraded both the Petitioner, his agents and or supporters. The arrest of such high-ranking person as Rabwoni, the youth and students leader must have had devastating effect on the youths he led. It must have had profound psychological impact. The torture of Masiko B, Kanyabitabo, Byaruhanga speaks of this consequence.

REGISTRATION, REGISTERS, VOTERS CARDS, DISPLAY, POLLING STATIONS AND AGENTS

Let me now briefly consider the submissions and evidence on Registration, Registers, Voters’ Cards, Display of Registers, Polling Stations and Polling Agents.

I have summarised the contentions of all the sides as put forth by their respective counsel. In the petition, the complaints are set out in paragraphs 3(1)(a), (b), (c), (d), (g), (h), (i), (j), (I), (n), (p), (q), (r), (5), (u), x and y. The two respondents denied these complaints in their affidavits accompanying their respective answers and in the affidavits of their witnesses especially the CAOS cum-Returning officers and their various assistants who are collectively called in the Electoral Commission Act as election officers.

In his affidavit, the Petitioner deponed that he appointed agents to all Polling Stations throughout Uganda before the creation of new stations. He complained of the sudden creation and the existence of new and at the eleventh-hour, of ungazetted Polling Stations. Chairman Kasujja does not deny the creation. He instead nicely described it as splitting the stations. The complaint by the Petitioner is of the failure by the second respondent to avail him (the Petitioner) copies of Final National Voters Register for which he was prepared to pay. He and his agents needed the copies of the voters Registers for use during the polling day. The Petitioner complained of failure by the second respondent to display the voters Register for 21 days. This omission certainly contravenes S.25 (1) of ECA; the respondents have conceded this much but argued, in the alternative, that this failure is not fatal under S.58 (6) (c) of PEA, an argument which I find relevant to issues No3.

Again the candidates (except the first respondent) in their joint letter of 7/3/ 2001 (supra) wrote to Chairman Kasujja and complained about insecurity and the serious flaws in the electoral process. These flaws included the delayed display of cleaned final voters register, excessive voters, excessive voters’ cards, blank voters’ cards, the poor quality of voters’ cards, the concerns about the number of Polling Stations, the campaign on behalf of the first respondent by partisan Army officers, RDCs, DISO and GISOs. Many of these army officers, RDC, DISO and GISO officials carried out not ordinary campaigning but terror and harassment. Examples are Captain Ndahura, Captain Hon. Byaruhanga and others. Chairman Kasujja replied the letter and (at page 2 of the reply) admitted the genuiness of some of the complaints. In fact he accepted that by 8/3/2001 the Final Voters Register was not ready. He admitted the intrusion by strangers into the Data Processing Centre by strangers but played down the possible harm involved and claimed that the electoral system had not been affected. In effect he admitted that the Army Officers, RDCs, DISOs and GISO had been campaigning for the first respondent but he sought to dampen the effect of this by saying that the involvement by these officers had decreased. There is evidence in the affidavits of both sides, i.e. in support of the petitioner and against Petitioner pointing out the acts of non-compliance with provisions of PEA. The affidavits in support of the respondents are to the effect that there was compliance with the PEA, 2000. Whilst it must be accepted that each side will naturally offer evidence in the affidavit to support it side, I think that in the circumstances of this petition, the respondents’ deponents, many of whom happen to be public officers, and who may seek to protect their jobs must have given their evidence to protect their positions and or even cover up their misdeeds and failures in the case of those working on electoral work. I have taken pains to find a sound reason why many of the ordinary witnesses should give evidence, which implicated public officials. I am not persuaded that an ordinary citizen supporter of a presidential candidate has anything to gain by telling lies other than speaking the truth about what happened during the Presidential election campaign.

MAJOR KAKOOZA-MUTALE

Again there is a complaint against the Kalangala Action Group lead by Major Kakooza-Mutale. That they interfered with the petitioner’s electioneering by beating up supporters of the petitioner. This group is a creature of the major.

The group held at Kalangala a convention from 25th to 28/11/2000. The major attached to his affidavit literature about what transpired in Kalangala from 25th to 28th September, 2000. The literature consists of records of proceedings of those four days. It shows that the group, which was composed of political mobilizers from all over Uganda, was determined to campaign for the success of the first Respondent in the forthcoming elections and even beyond into 2006. They (group) resolved to call themselves Fundamentalist who must go out and do everything possible to succeed. Since there were two main elections namely the Presidential election and Parliamentary elections which were due in the near future, the reasonable inference to be drawn from the resolutions is that the major and his group discussed the recent Presidential elections as inevitable. This is a logical inference. It is not farfetched. The movement bus phenomenon as used by Major Kakooza-Mutale in some of his activities had become so common as to be a subject of judicial notice.

In his affidavit, the major admits he is a special Presidential Advisor on Political Affairs. He does not specifically deny participating in campaigning for the first Respondent in Mbale or elsewhere. There is Louis Atika’s letter showing that on 26/2/2001 the major was in Tororo and Busia when the first Respondent was campaigning there. Major Mutale is reported to have beaten people there. Major Mutale did not say anything about this in his affidavit sworn on 4t April 2001. He does not deny that at the recent Presidential election, his group mobilised for 1st Respondent. In his affidavit, the first respondent denied organizing directly or indirectly Major Mutale-Kakoza and his group and that whatever the group did was without his knowledge, consent or approval. Yet from the letter of appointment, Major Kakooza-Mutale’s role is very clear. His portfolios include liaising with the Movement Secretariat, mass-mobilisation, Political Organizations, and RDCs, etc. Annex A is his letter by which the President appointed him special Presidential Assistant to the President. The major admits that at Kalangala, he convened the movement mobilizers who were eventually addressed by the first Respondent as the President of this country. As earlier mentioned the question of forthcoming election was discussed during the convention.

The major does not deny being in Mbale; nor does he really deny the beating that took place. Rather, he vaguely denies beating up people in Mbale. The activities of Major Kakooza-Mutale and the yellow movement bus were such a common feature of the 1st Respondent’s campaign trail that I must take judicial notice of it. It is a common knowledge that during his campaign, the 1S respondent arrived at rallies in the movement yellow bus. So did Major Kakooza-Mutale. The question that needs to be answered is whether Major Kakooza-Mutale and or his assistants operated as agents of anybody or of the first Respondent.

I think that Major Kakooza-Mutale was an agent of the 1st Respondent during the Presidential election campaign.

NEW POLLING STATIONS

The evidence established quite clearly that new polling stations were set up on 11th March, 2001. The PEA, by S.28 (1), thereof1 directs that the list of polling stations be published in the Gazette at least fourteen days before the nomination of presidential candidates. The list should be provided to returning officers for circulation in Constituencies. There is evidence that gazetting was done after nominations. No sound reason was given for this haphazard way of doing such an important job. This we have already said was non-compliance certainly. Furthermore, fl many instances, polling stations were created over night on 11/3/2001, in flagrant violation of the PEA. It certainly negates the principle inherent is S.28 -, which directs publicising polling stations in good time. Chairman Kasujja admits the creation of the stations very late. He calls it splitting of the stations.

MULTIPLE VOTING, POLLING AGENTS ETC.

Again there is evidence about people who voted more than once. This was a breach of S.31 of PEA, 2000. I have considered the evidence given for and against the petitioner. For the same reasoning, which I have just given above, I am unable to accept the evidence in the affidavit of an RDC J. Mwesige of Kabale, CAOs as Returning officers and of the presiding officers whose evidence I have read that the petitioner’s agents and supporters were not harassed or chased away from Polling Stations. There is ample credible evidence, which I believe, that polling agents of the Petitioner were systematically harassed and indeed on the polling day those who were able to go to the stations were chased away from Polling Stations to which they were appointed.

There is evidence that in some cases the agents of the second respondent appear to have just looked on and in some other cases participated. This is clear in Ntungamwo (See Gariyo), Rukungiri (See J. Musinguzi), Kamwenge (See Kiiza D. and M. Tibayendera), Kanungu (See H. Muhwezi), Kabarole (Turyahebwa), Kasese, Pallisa, (Mulindwa and K. Seganyi), Mayuge, Tororo (Imons and Okware S.), Kabale (See Matsiko A. and Arinaitwe W). There is evidence that during voting there was campaigning at or near Polling Stations, in many districts including Mayuge, Kanungu, Kamwenge, in Palisa, in Rukungiri and in Kabale, in Tororo, in favour of the first Respondent. The witnesses I have quoted testify to this fact. Such campaigns at the polling stations on the polling day contravened section 43 and 44 of the PEA, 2000.

There is evidence of ballot stuffing, e.g., in Iganga, see A. Mwanja’s affidavit; Bushenyi (Tukahebwa), in Mbarara, (Mrs. Semambo) and see Kazikazi from Ntugamo. Stuffing was done in some instances by polling officials but in other cases by people claimed to be agents of the first Respondent and in some other cases with the collusion of the election officers who are agents of the second Respondent, e.g., Rwenamira, in Ntungamo District, Sibomana stuffed acquiescence of the presiding officer.

TORORO EXAMPLE OF BALLOT STUFFING, ETC.

At Amoni RS, in Tororo District, Okware witnessed a dramatic situation. A. Obore, an agent of the first Respondent and an LC Ill Chairman, went to the Polling Station at 2.30 p.m. and ordered everybody to disappear. His orders were defied. He pulled out a gun from his car and twice shot in the air. This was on a polling day at a polling station. Many people fled, but election officials stayed. Okware took cover. Obore collected ballot papers from his car and stuffed them into the ballot box. Because of intervention by Okware, an agent of the petitioner1 the police and LC.5 Chairman (Mr. Nabala-Mudanye) came to the scene. Counting and tallying of votes showed there were 40 excess ballot papers which were given to first respondent at the insistence of Obore and Mudanye. Obore was sub-county agent for first Respondent. He has not denied Okware’s claims although he swore rebuttal affidavits. Further Mr. Mudanye the L.C.5 Chairman and the District agent for the first Respondent in his affidavit accepts that there was a disagreement between Obore on one hand and Okware and other youths on the other. L.C.5 Chairman accepts that Okware’s group did not like Obore to be at that polling station. As L.C.5 had brought their policemen he advised Obore to go away. Obore left. The L.C. 5 Chairman, Mr. Mudanye, corroborates Okware in respect to the presence of Obore and police at the polling station and the disagreement between Obore and the Okware group. Further, L.C. 5 Chairman and the police were called to the polling station. Of course the L.C.5 Chairman does not talk about the shooting partly because he arrived after the shooting event. But the L.C.5 Chairman’s story, cautious, though it was, certainly lends considerable credence to what Okware deponed. I have no sound reason not to accept the evidence of Okware that Obore, a Sub- country agent of the first Respondent committed at least two illegal practices on polling day (12/3/2001) at a polling station. First by stuffing the ballot box with ballot papers, Obore voted more than once in contravention of S.31 (I) of PEA. Secondly, Obore bore fire arms while he was at a polling station on the polling day, C/s 42(l) of the same Act. Then the presiding officers contravened S.48 (I) by failing to take the complaints of Okware, the agent of the petitioner. The presiding officer acquiesced in the stuffing offence! Of course the respondent can quip that there were only 40 excess votes. My answer is that this is one station and moreover arising from violent conduct breaching the law.

MORE EXAMPLES OF BALLOT STUFFING AND OTHER MALPRACTICES

On the same issue of ballot stuffing, there is the evidence of James Birungi Ozo who was the petitioner’s district monitor in Kamwenge. At Bushyenyi polling station, he saw the presiding officer called Mwesigye pre-ticking ballot papers for voters before they cast the ballots. Mwesigye was also L.C.II chairman. There was evidence of ballot stuffing at the station. Birungi reported the malpractices to the Returning officer who in turn sent his Assistant to attend to the complaints. The police wanted to arrest the presiding officer. They were advised against arresting the presiding officer. They were advised against the arrest because there was no replacement. In that way the Assistant Returning Officer condoned or acquiesced in the contravention of the provisions of the PEA. I failed to get any affidavit in rebuttal of these claims. I must accept them as true. They are on the record other affidavits about ballot stuffing. Mr. Muhamed Mbabazi, Junior counsel for the petitioner in his address to us described some stations as sham polling stations. He cited the various stations created belatedly at Mbuya in Kampala. He contended, and I agreed and the Court has so found, that there was breach of S.28 (1) of the PEA by creating new polling stations over night without gazetting them. It was argued by the learned Solicitor General, on behalf of the second respondent, that in one new polling station, Katwe Nursery School, Makindye Division in Kampala, where the Petitioner got more votes and therefore that there was no breach of the law. I cannot accede to this. A new polling station created in Kampala is not the best example to prove that a candidate or his agents had access or ample opportunity of access to new Polling Stations generally. A new Polling Station in Kampala can be accessed in a matter of minutes. Not so up country. In any case, the complaint is that of failure to gazette the stations and not distance.

Mr. Moses Byaruhanga, secretary to the National Task Force of the 1st respondent swore affidavit on 12/4/200 1 denying that any new polling stations were created. He echoed Chairman Kasujja’s view that old stations were split and that in some of the stations, which were split, the petitioner got more votes than the 1st Respondent. He cited 8 stations most of them from Kampala. I am not impressed by these examples. He then cites unsplit stations where the petitioner got less than the 1st Respondent. He cited 20 stations from outside Kampala. We do not know the criterion used in the selection. Moreover it must not be forgotten that in some of the Districts cited, there is evidence of intimidation, e.g. Mbarara and Kamwenge. So the value of winning or loosing is distorted in the face of brutal violence and harassment of the supporters and agents of the petitioner.

The essence of publishing polling stations many weeks in advance is intended to enable voters to ascertain the location of the stations where voters will cast their votes. Likewise publicity of polling stations in advance enables presidential candidates to appoint their agents in time for the agents to ascertain the location of the stations at which they will officiate and take care of the electoral interests of their candidates. Early creation of stations is evidence of transparency and it enables candidates to determine the possibility of raising objections so that those objections can be dealt with before voting. How could objections be raised about these new stations which were created on the evening before polling? To gloss over this action would constitute a total disservice to the electoral law and the democratic principles of transparency and fairness.

It was argued that as old stations were merely split into more stations only, even the agents appointed earlier to the old stations by the candidates could cover all the new stations in the same centre. First of all this assumes that there will be a very simple arrangement in such a way that the polling stations and the respective officials manning the stations are cooperative and very close together. This may not be practical. And in any event too close an arrangement would in operation violate the Constitutional principle of secret ballot voting: see Article 68 of the Constitution and sections 7 and 30 (1) of PEA.

There have been attempts by witnesses and officials of the second Respondent to deny that there was voting by people below the age of voting. There is the argument that the Petitioners’ witnesses might not have known the ages of the voters. They may or may not be correct. Remember that there was evidence of children voting for their sick parents or indeed relatives: See Zeyi Patrick Manja of Iganga Luwemba of Busunju Barugahare (Kabarole) Okwele (Kumi), Byaruhanga (Busia). The evidence is not from one or two places but it is reasonably widespread, persistent and consistent as not to be a creation of one or two people. I believe that S.64 of the PEA, 2000 was breached because of voting by the under aged or those not entitled to vote. Consequently I hold that there was noncompliance with the provisions of the Presidential Elections Act. Adult people use will power to make choice at an election. Children can easily be manipulated. In any case I do not think that it is proper or lawful for a person barred by law from himself voting for him to vote on behalf of another person.

There is evidence of the presence of armed soldiers at Polling Stations in Rukungiri, Kanungu, Kamwenge, Palisa, Tororo, and Mbarara, among other Districts. Soldiers intimidated agents of the Petitioner in Pallisa, in Rukungiri, in Kanungu and in Soroti. This contravened S.42 of PEA. The presence of soldiers on voting day is not seriously contested. Evidence for the Respondents is that soldiers did not interfere with voting. On the evidence available I disagree.

There were submissions by Counsel for the respondents that because this is a presidential election petition the standard of proof of the allegations by the Petitioner placed on Petitioner is very high. I know that a presidential election is a very serious national exercise, which requires that every participant in the exercise must be aware of the consequences that would follow a mismanaged presidential election. Whilst, therefore, we must examine each complaint with due care before making a definite finding on it, it must be recognized that we are engaged in performing the function of the due process which is part of the concept of the rule of law. If after observing the essentials of the due process of the law as an ingredient of the rule of law, it is found that the law has been breached, the normal and natural consequences of breach of the law must follow. Once I am satisfied that the evidence establishes the allegations in the manner prescribed by law, I must grant appropriate relief.

A number of decided cases were cited in respect of noncompliance. These include Attorney General vs. Kabourou (1995) 2LRC757, Odetta John vs. Omeda Omax Soroti H ct. Election Petition 001 of 1996, Eng. V. Katwiremu Bategana vs. E. D. Mushemeza and 2 others, Mbarara H.C. Petition No. 1 of 1996 and P K. Ssemogerere & Another vs. Attorney General Const. Petition Non. 3 of 1999 (unreported). I think that there is a distinction between this petition and the authorities cited which arise from election petitions. There were claims of threats and violence in the Odetta case. The trial judge did not believe the evidence on violence. I have not come across credible evidence in the other authorities cited of obvious violent military involvement on a large scale in campaigns as in this petition. This in my opinion is a very significant factor in this petition and it must be appreciated.

I do not think that on this issue, Ssemogerere’s case is helpful. The facts of Attorney General vs. Kabourou and Katwiremu Bategana make these cases relevant in respect of the 3rd issue.

Meantime I am satisfied that the Petitioner proved noncompliance with provisions of PEA (ACT 3/2000). It is remarkable that by 8/3/2001, hardly three days to go before elections were held, the whole chairman of the electoral Commission could not in his letter say that the violence, the intimidation and the harassment of the Petitioner’s supporters had been eliminated. How then can I say that there is compliance with the provisions of the PEA? The answer to the first issue surely must be in the affirmative.