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

1. That it is not true as alleged in the affidavit of Betty Kyimpaire and Kiiza Davis both sworn at Fort Portal on the 22nd March, 2001 that four agents of the Petitioner were arbitrarily arrested on the night of the 17th March, 2001.

2. In reply there to I aver that Kamwenge District is an insurgency area, which is susceptible to and has in the recent past suffered attacks from the Allied Democratic Front Rebels.

3. That in consequence of the above, candidate’s agents and mobilizers were urged not to hold late night meetings or activities so as not to get entangled in UPDF operations in the area.

4. That well after mid-night on the eve of the polling day four persons including the said Davis Kiiza, a known Army deserter, were found by UPDF patrol unit to be holding a secret meeting in concealment and were promptly taken to Kamwenge Army detach for questioning.

5. That at the said detach the four persons were interrogated and screened as is the normal procedure with persons suspected of rebel activity and they were promptly released the following morning.

6. That it is not true as alleged that the arrests (sic) were politically motivated or that the said persons were forced to vote for 1st Respondent and in reply thereto I aver that the political inclination of the said persons was never an issue during interrogation and the detention was purely for security reasons.

7. That it is not true as alleged in the affidavit of Birungi James Ozo that I shot at him in the presence of the LC III movement chairman and two other persons therein mentioned in order to prevent him from campaigning for the petitioner.

8. In reply thereto I aver that on the night of 10th March, 2001 at about 9.00 p.m. while in Ibanda Town I saw the said Birungi Ozo who on setting eyes on me run and quickly mobolized a group of eight unruly youths who surrounded me and were positioning themselves to attack me.

9. That in self-defence, I took out my concealed weapon and shot in the air to scare them away”

The major does not say why the deponents should swear falsely against him. He does not tell where the secret meeting was taking place. Curiously enough the major does not explain why these youths led by Birungi should be so courageous as to wish to attack him. Can ordinary youths attack a UPDF major for no reason? I do not believe the major. If Davis Kiiza was a well-known army deserter, why arrest the others?

Betty Kyirnpaire, Birungi James Ozo and seven other agents of the petitioner have sworn their affidavits in support of the petitioner. They give detailed accounts of what took place on the days proceeding the voting and on the voting day and show that Major Kankiriho is hiding the truth. If, as he claims, he was operating in a dangerous zone, I can’t see a whole major moving without escorts and AIDEs at night. The story of being surrounded by youths is false created simply to cover up the terror and intimidation unleashed by the major to innocent supporters of a political dissenter, the petitioner.

Betty Kyimpaire was district monitor in Kamwenge for the petitioner’s campaign activities. She gives her impressions of what happened before and on 12/3/2001, the polling day. In paragraph 20 of her affidavit, she sums up the position in the following words:

during campaign I was constantly harassed, threatened and my shop in Kamwenge Town was vandalized, doors shuttered, property looted by a group of hooligans headed by Eric Rugyeranyangi, Kerela, Hon. Captain Charles Byaruhanga, the MP Kibale county”

This MP in his affidavit admits campaigning in Kamwenge for the first Respondent. Of course the Hon. Captain Byaruhanga has denied what Kyimpaire states. But, as I said earlier, I have found no sound reason or any plausible reason on the basis of which this woman and other deponents could accuse the MP and swear falsely against him. I believe that what she has stated in her affidavit represents what happened, namely-violence against, intimidation and harassment of the representatives and supporters of the petitioner.

INTIMIDATION, VIOLENCE, HARASSMENT

There are many other affidavits such as those of Mpabwooba C. of Kanungu and M. Tabanyendera of Kamwenge which support the complaints of the petitioner that his agents and supporters were subjected to exceeding mistreatment, great harassment, violence, intimidation and humiliation. The objective was to deny him supporters and votes. The following is the affidavit of James Musinguzi, himself a regional co-ordinator, which reveals the devastating effect which the degrading treatment, intimidation, violence, harassment and humiliation had on his mind as a regional organizer and voter and on the results of the presidential election, 2001.

“2. That lam a registered voter - ………………………………………………………………I was also in charge of Presidential candidate Dr. Besigye’s campaigns in the South-Western region of Uganda.

3. That in the course of discharging my said responsibility, the team, which I lead, was exposed to enormous intimidation, harassment and violence throughout the region.

4. That shortly after Dr. Besigye had announced that he intended to stand as Presidential candidate, soldiers belonging to the Presidential Protection Unit (PPU) were heavily deployed in the districts of Rukungiri and Kanungu.

5. That the said soldiers unleashed terror and suffering on the local people believed to be our supporters, and the said people, including Richard Bashaija, Sam Kaguliro, Henry Kanyabitabo and many others complained to me about the harassment, and I forwarded the complaints to the Electoral Commission and Police but no action was taken.

6. That the said soldiers were deployed and continued to harass suspected Besigye supporters up to the elections.

7. That during the entire period of campaigns, Gad Buturo the Gomborora Internal
Security Officer (GISO) for Kihiihi Sub-county, Peter Mugisha, a Councilor for Kambuga, Stephen Rujaga, Godfrey Karebenda and many other civilians on
candidate Museveni’s task force regularly went around with guns threatening Besigye supporters to compel them to support candidate Museveni. We reported their activities to the Electoral Commission and Police and the Region Police Commander, Mr. Stephen Okwaling, who promised to handle the issue, sent a Mobile Police Unit to Kanungu which attempted to arrest the said Rujaga without success. The following day, the said Regional Police Commander was ordered out of the region on the very day that candidate Besigye was to address a rally in Rukungiri town. The district Police commander for Rukungiri had also earlier been withdrawn.

8. That in the absence of any Senior Police Officer in the said town, the PPU soldiers unleashed even more terror and in the process, they shot to death one of our supporters and injured 14 others without any provocation whatsoever. As a result of this terror our agents feared to canvass for support for our candidate.

9. That following our complaint about inflated voter’s registers in Rukungiri and Kanungu districts, the Electoral Commission agreed to directly handle the issuing of voters’ cards in Rukungiri town to sample the veracity of our complaint and they found that only less than 50% of the cards were actually picked. We demanded that in the circumstances they should handle distribution in the whole sub-region, but this was not done. Instead, on the eve of the election, the Electoral Commission announced that whoever was on the register was
free to vote. As a result in Rukungiri town votes were cast under names which, the, Commission had found to belong to fictious/non-existent persons.

10. That by reason of the foregoing, we demanded that fresh elections be held in Rukungiri under direct supervision of the Electoral Commission, but our demand was rejected.

11. That on the day of elections, I visited Kashojwa, Nyarurambi Kijumbwe and Ntungamwo Polling Centres in Kanungu district and at all these, I found that the polling agents for Dr. Besigye were chased away from the polling area and there was no actual voting since ballot papers were being pre-ticked in favour of candidate Museveni by polling officials who would then direct the “voters” to just put them in ballot boxes. I complained about this to the returning officers but I was disregarded. In fact the GISO of Kirima, in the presence of the Kirima L. C. III Chairman bluntly told me that my complaints were a waste of time as it had already been decided that Dr. Besigye should be allowed not more that 4 votes in Kujubwe parish. Indeed, Besigye ended up with 3 votes from that polling centre comprising of three polling stations, although our agents and scouts alone numbered 15.

12. At the said Kajubwe polling centre, our agents had been chased away but after the so-called “vote count”, the said agents including one Sam Kakuru were dragged from their homes and forced to sign the declaration forms in respect of voting which they had not witnessed.

13. That when I arrived at my polling station at Ntungamo, all voters were being given pre-ticked ballot papers to cast in favour of candidate Museveni. I asked for our agents and was told they had been sent off. I traced them to their homes and the confirmed this, and also informed me that voting had in fact started at 4.00 a.m. I went to Butogota Police Station and confirmed that this illegal commencement of voting had been well before the time of voting was supposed to commence.

14. The said malpractices were being done at Ntungamo in the presence of police personnel

15. That in the circumstances. I did not vote since it was meaningless to do, by casting a ballot pre-ticked for me.

16. That I swear this affidavit in support of a petition by Dr. Kizza Besigye for the nullification of the presidential elections held on the 12th of March, 2001.

17. That what is stated herein is true and correct to the best of my knowledge and belief”. (Emphasis is added).

Musinguzi’s affidavit is one of those affidavits, which were listed down by counsel for the Respondents as objectionable on the general ground that it contains hearsay evidence. The parts containing hearsay were not pointed out. I think that the drafting of this affidavit is rather sloppy. The use of words like “we” and “our” in paragraph 7 and 8 tend to cloud the passages. But there can be no doubt that as one of the Petitioner’s Sub-regional campaigners, James Musinguzi experienced, saw and learnt a lot about the violence, humiliation, harassment and the intimidation, all aimed at denying the Petitioner any support in Rukungiri and Kanungu Districts. Results show what he got in his home Districts and the effect of humiliating harassment, violence and intimidation, on the voter can hardly be so clear in these two districts. I have not come across evidence that the petitioner was terribly unpopular in these home districts. So how come he got such a low vote? Terror.

One of the key witnesses for the first respondent about what happened in Rukungiri and Kanungu is Captain Ndahura. Captain Ndahura in paragraph 25 of his affidavit sworn on 4/4/2001 in support of the first Respondent only denies Musingunzi’s averments in para 8 of affidavit. However, Ndahura accepts that there were clashes at the relevant time between security people and representatives and supporters of the petitioner. Captain Ndahura carefully distances PPU from the scene of the shooting of Beronda by placing there the police and UPDF. In his affidavit, he refers to affidavits of ten other deponents and who are the Petitioner’s supporters, claiming that they speak falsehood. He does not give a single reason why any of or some or all these witnesses should “tell lies” against him or any other person. Indeed, all the ten deponents do not originate from the same home or the same village, but rather, they are people from different places and homes in the Districts. It is a pity that none of the key witnesses for either the petitioner or the Respondents except D. Arinaiitwe was called and cross-examined on their affidavits. This might have enabled us to form impressions of the witnesses. As none of the important witnesses has appeared physically before us, I have been unable to benefit from physical presence of witnesses to form opinions. I now rely on comparisons of stories given by various witnesses and reason and logic. Therefore unless a sound reason is given to show that a witness is lying or unless what he/or she says is inherently or incredibly improbable, I have to accept the story.

Moses Tibanyendera in his affidavit describes how, since February, 2001, he and other agents and supporters of the petitioner had been threatened with death and how they were persecuted and harassed by the Hon. Captain Byaruhanga, his escorts and other agents of the first Respondent who demanded that he (Moses) should denounce the petitioner and join the camp of the first Respondent. Hon. Captain Byaruhanga, another key witness for the Respondents, has sworn his affidavit to deny this. However, like Captain Ndahura, in his affidavit, Byaruhanga does not offer any reason to explain why these witnesses should swear falsely about him, a Member of Parliament, and his escorts. He himself indicates that he knows these witnesses. There is no obvious and rational basis upon which I can disbelieve their evidence.

Again in his affidavit, Kiiza Davis, another agent of the petitioner in Kamwenge District, describes his arrest by LDUs and his detention on 11/3/2001 on the orders of a Lt. Richard of a UPDF detachment in Kamwenge Town. He and another agent called Faida Charles were put in a trench. He was put in a trench along with his brother. He was guarded by two soldiers. On 12/3/2001 Lt. Richard ordered presiding officers to tick a ballot paper which was then given to Kiiza to vote at Kamwenge PS Block one. Kiiza’s voting was under the supervision of two soldiers. This is demoralizing and dehumanising treatment during an exercise of a democratic right guaranteed by our Constitution and our electoral laws.

From the same Kamwenge District, there is James Birungi Ozo who was himself the District monitor and campaign co-ordinator in Kamwenge District for the petitioner. In his affidavit, he narrates his experience and the ordeal he and his colleagues went through because of supporting the petitioner. The affidavit highlights what went on before and during the polling day. It states, in part that:

“2. I was appointed a District Monitor by Col (RTD) Dr. Besigye Kiiza - the petitioner

3. That as a District Monitor I was supposed to monitor and observe the election in Kamwenge District on behalf of the Petitioner.

4. That I was informed by Kahesi Slaya a supporter of the Petitioner that the LC III Vice Chairperson a one Bwengye stuffed 300 ballot papers ticked in favour of Museveni Yoweri Kaguta in the ballot box during the election at Busing ye Primary School polling station.
5. That Slaya was supposed to be a polling agent but his appointment letter was confiscated with (sic.) Davis Kizza by the Army.

6……………………………..

7. At the same station I found the Presiding Officer a one Mwesigye ticking ballot papers for voters and would thereafter give them to the voters to cast in the ballot box.

8. That the said Presiding Officer - Mwesigye is also an LC II Chairman.

9. That I complained to the Police and the Returning officer a one Mr. Nkata whom I found at the District offices. The Returning officer sent his Assistant and the O. C Station of Kamwenge Police Station to investigate the matter.

10. The 0. C. Station ordered for the arrest of the Presiding officer but was stopped by the Assistant to Mr. Nkata because there was no immediate replacement.

11. That I also saw counterfoils of the ballot books destroyed in front of the Presiding officer.

12. At Kakinga polling station at around 3.30 p.m. I found the Parish Chief removing the votes cast for the Petitioner from the ballot box, using sticks inserted into the box.

13. That the said Parish Chief being assisted by Abdalla were standing at the ballot box and would check all ballot papers ticked and those ticked for the Petitioner would be torn.

14. That one of the voters whose ballot paper was torn complained to the Presiding officer who called in the Police which instead wanted to arrest the complainant that he was disrupting the election.

15. That at this polling station there was no polling agent as his letter of appointment had been confiscated while in the possession the Parish Coordinator who was beaten and went into hiding the night before the election.

16. That during the campaigns on 8th March 2001 I was shot at by Captain Kankiriho the C/O Bihanga Barracks in order to prevent me from campaigning for the Petitioner. That the shooting was in the presence of Peter Byomanyire and Engineer Dan Byamukama and LC Ill Movement Chairman for Ibanda.

17. That the LC ill Movement Chairperson is the one who identified me to Captain Kankiriho who had prior knowledge of my campaigning for the Petitioner.

18. That fortunately the bullet shot did not hit him but passed by my legs as I entered my car and drove off.

19. That I reported the incident to Ibanda Police Station where I made a statement and a file was opened and was told that they will investigate the matter.

20. The earlier in the day of 8 March 2001 I was stopped from campaigning for the Petitioner by armed UPDF Solider at Matsyoro Trading Centre. The team I had comprising of about 7 persons were surrounded and ordered to leave at gun point

21. The supporters were sent away and the rally stopped.

22. That on the same day 5 other agents (Ntara Sub-county Task Force officials for the Petitioner) were arrested by the GISO a one Lauben and detained at Ntara Police Post and later were released without any charges preferred against them.

23. The Chairman of Kahungye Sub-county Task Force a one Gervazio was attacked at his home by armed UPDF Soldiers and LCs and his house was burnt and there after went into hiding.”

In the rest of the affidavit this witness talks of the effect of the harassment: Gerrazio could not help in cleaning up of the registers nor could he monitor elections on 12/3/2001. The witnesses also talks about what happened to Muhwezi Henry who was beaten up by bodyguards of Hon. Captain C. Byaruhanga. I have seen the affidavit of Mubimbura Milton who says he was the O.C. Kamwenge Police Station by 12/3/2001. He denies complaints made by Betty Kyimpaire and James Birungi. He however accepts receiving reports of electoral malpractices and he visited the area concerned. There can be no doubt therefore that these two witnesses experienced problems.

Even if it can be said that some paragraphs contain some hearsay evidence, in this affidavit, the deponent sets out what appears to have been a tensed up and terrifying situation in Kamwenge District notwithstanding what Major Kankiriho says in his affidavit. I note that the major accepts the arrest of the agents of the Petitioner. The major’s affidavit doesn’t say where and in which place and the manner in which Kiiza’s group were concealing themselves. If Kiiza was a well-known deserter, as claimed by Major Kankiriho therefore, apparently left free, why was it necessary to arrest the others? Is it not reasonable to infer that Kiiza was arrested because of supporting the Petitioner? It is hard for me to believe Major Kankiriho that in his position and rank in the UPDF, a few youths would be so daring as to surround him and threaten his very life or security knowing that he was a senior army officer in an area where supporters of the petitioner were being hunted down.

The chart provided by the respondents listed Silver Mugenyi as their witness whose affidavit was to answer the averments of Kiiza, Nzige, Tibanyendera, Abigaba, Kyimpaire and Musanga but I have not been able to trace Mugenyi’s affidavit on the records I got.

Be that as it may, as a result of the harassment, and the election result clearly shows, the Petitioner lost. In this respect Louis Otika, R. Tumusiime, Bwabwooba Calisti and others give corroborative evidence that the loss was due to intimidation, harassment, detentions, beatings and the threatening of the petitioner’s agents and supporters as well as to violence and cheating on the voting day. I believe that this is a correct inference.

Wilfred Nalusiba tells an interesting story. He was the petitioner’s representative in Makerere 1ll. On 26/2/2001 he found Dirisa a polling official and LC.1 had “62” certificates of voters and 2 voters cards hidden in a box- He eventually reported him to Kalerwe Police Station. Dirisa was arrested. When the witness was following up the matter, three people from “the President’s office” wanted to take him away. For his safety he was detained at Police Station. Dirisa admits the possession of the documents and his arrest by Police. DPC S. Ekollot in effect confirms detention of Winfred. The DPC thinks that the incident was due to procedural error and not malpractice. The DPC also confirms that later N. Nalusiba and an Army officer called James were arrested because of threats presumably arising from Nalusiba’s report.

LOYALTY OF MAJOR RABWONI OKWIR

The second complaint is about the harassment, intimidation, brutal and degrading mistreatment of retired Major Rabwoni Okwir, the petitioner’s National Task Force leader for youths and students. On 1 9/1/2001, according to his affidavit, he went to Rukungiri District to consult petitioner’s agents and supporters. He was arrested twice at different meetings. At the last venue, Rugyeyo Sub-county, no less than 1 2 guns were pointed at him and the other group in the rally. The soldiers under Captain Ndahura threatened to shoot Rabwoni because of campaigning for the petitioner. The meeting was dispersed. On 1 9/2/200 1 he was forced to sign a false statement to the effect that he had deserted the petitioner.

On 20/2/2001 at Entebbe following a confrontation between him and the Petitioner on the one hand and on the other hand, the military police, led by Capt. Rwakitarate and the UPDF, ending in that degrading treatment. I call the arrest degrading because before Rabwoni was arrested on 20/2/2001 he was seized and carried by several soldiers who threw him onto a pickup. They beat him and sat upon him. I believe Rabwoni’s story that he was forced to sign the false statement on 19/2/2001 withdrawing his support for the Petitioner; I am not convinced by the contents of the affidavit of Lt. Col. Mayombo and Major General Tinyefuza that Rabwoni Okwir was in the petitioner’s camp to spy on the camp. If that were so, he could not have continued to denounce the 1st Respondent and Lt. Col. Mayombo even when he is in the United Kingdom as his affidavit suggests. The contents in Rabwoni’s affidavit and the story of Henry Muhwezi’s experience support the inference that the Petitioner’s agents, particularly in Western Uganda, were being brutally forced to denounce the Petitioner.

The claim that Rabwoni Okwir was arrested and detained because of his (Okwiri’s) own safety is very far-fetched and as unsound as it is incredible and ridiculous. The evidence of Major Okwir, Hon. Winnie Byanyima and that of the Petitioner about the arrest and humiliation of Okwir at Entebbe Airport is for all- purposes and intents corroborated by the first Respondent in his affidavit and in many respects, if only indirectly by, Major Gen. Tinyefuza, Lt. Col. Mayombo who swore affidavits to support the first Respondent. Rabwoni in his affidavit narrates the suffering he went through from the time of his arrest at Entebbe on 20th February until he left the country on 27/2/2001. He had meetings on 20tI and 21st while restricted, with Mayombo Tinyefuza, Odongo Jeje and Elly Tumwine who made him make the false statement purporting that he had withdrawn support for the petitioner. He asserts that on 21/2/2001, the first respondent spoke to him on telephone from Gulu and tried to convince Rabwoni to leave “that wrong group” and promised to take care of Rabwoni’s interest if he went abroad. The first respondent admits he had a telephone conversation with Rabwoni but denied that he tried to convince Rabwoni as stated. First Respondent then advised Rabwoni to get leave of the speaker to go abroad so that Rabwoni continues to draw his parliamentary allowance. The first respondent said that in talking to Rabwoni, he wanted to find out who between Tinyefuza and Rabwoni told the truth, concerning the statement of the withdrawal. Here there are some points to note. We are not told who initiated the telephone talk. Second I do not see a sound reason why the first respondent was interested in knowing who between Rabwoni and Tinyefuza was telling the truth about whether Rabwoni had said that he was or he was not withdrawing from the petitioner’s task force. In the circumstances prevailing at the time and considering what Rabwoni had been subjected to in Rukungiri on 19/1/2001 and 19/2/2001 when he went there to address supporters of the petitioner, I think that the first respondent would have been happier to hear that Rabwoni, who was one of the top leaders of the petitioner’s National Task Force, being in charge of youths and students, had deserted the petitioner. I doubt very much if there is any leader who would not want to have youth and students on his side. I also think that it fits in well if arrangements were made at that time for Rabwoni who was, apparently becoming more and more controversial and perhaps unwilling to leave the petitioner to go out of Uganda. I would therefore, with the greatest respect to the first respondent, prefer the version given by Rabwoni to that given by the first Respondent. From the look of things it is apparent that Lt. Col. Mayombo, Major General Tinyefuza and Major Generals Elly Tumwine and Odongo Jeje would prefer that the first Respondent should win the presidential election. It would be natural for them to do what is possible to make Rabwoni desert the petitioner. I am not persuaded that whatever the four senior army officers did, they did it for nothing outside the creation of smooth passage for the success of the first Respondent in the presidential election.

The affidavit of many witnesses’ leaves no doubt in my mind that the campaign of humiliation, intimidation, violence and terror was deliberate and was aimed at disabling the Petitioner personally or through his agents and representatives from affective electioneering and campaigning. This humiliation, intimidation, violence and terror were so much that the Petitioner had to personally ask chairman Kasujja to intervene.

I have perused the affidavits of John Kisembo, former Inspector General of Police, of Lt. Col. Mayombo and of Major General Jeje Odongo including his (Jeje Odongo’s) press release dated 9U March, 2001. With the greatest respect due to such high-ranking officers, I am not satisfied, nor am I persuaded, that there was real security need to involve the army and the Presidential Protection Unit in the election in the manner shown. Nor do I find the so-called inadequacy of the police a satisfactory reason. I take it that because the army had been used since 1987 in the Currency Reform exercise, in 1989 during NRC expansion, in 1992, during the RCs elections, in 1996 during Presidential and the Parliamentary elections, and during the referendum of 2000 election, it was taken as routine to deploy the army.

Further because some senior Army officers are said to have campaigned for the first Respondent, who as President and is the Commander-in-Chief of the UPDF, I am not surprised by the contents of the affidavits of the senior UPDF and PPU officers. The army is a disciplined force in which disciple and loyalty is expected among the rank and file.

The commander of the army could hardly be expected to say, nay deny, that there was need to deploy the army. In his press release, the Army Commander correctly admits that the electoral laws do not authorise the army to be involved in the electoral process. He invoked Art.209 of the Constitution as the route through which the army enters the exercise of election. This was also the reasoning of the Solicitor- General. I disagree completely. Art.209 has nothing to do with civil elections.

The Army commander says that in 1998 a joint anti-terrorism National Security Task Force was formed to fight urban terrorism. That there was intelligence information suggesting that some negative forces against peace were planning assassinations, riots, demonstrations and acts of violence, looting and other criminal acts. There is a possibility that such information was received. There is yet another possibility that the information may not have justified the actions and decisions taken. The conduct of PPU and UPDF in many parts of the country raises doubts about why deployment was ordered and effected. The expression “intelligence information” is amorphous. It can be misused, if it is remembered that the agencies who gather the information are said to be involved in supporting a particular candidate. These agencies are the Chieftaincy of Military Intelligence, ISO and ESO who are said to be involved. Moreover, if there had been threats since 1998, I would expect that there should be more recruitment of more personnel in and training of the police and special branch to equip these institutions for such tasks.

There is ample evidence in affidavits to show that the PPU and UPDF were not confined in barracks or in one place or few places where the first Respondent, as President, was electioneering. Captain Ndahura who is part of the PPU in his affidavit admits that PPU was deployed throughout the country. The complaints about army involvement and involvement by other security personnel spread across many parts of Uganda. For the foregoing reasons, I find it irresistible to infer that the deployment of UPDF and PPU was for purposes of frustrating the campaign of the petitioner and for promoting the candidature of the 1st Respondent and the objective was achieved. If there is any single factor that I can say had influence on the election, it was the deployment of the UPDF and PPU. They had substantial effect on the election result.