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

FINDINGS ON ISSUE 3

The evidence adduced by the Petitioner has satisfied me that most of the allegations in paragraph 3(1) of the petition have been proved to my satisfaction:

(i) 3(1)(a) that new Polling Stations added or created by the 2nd Respondent were out of time contrary to the provisions of S.28 (1)(a) of PEA.

(ii) 3(1)(b) that contrary to S.28 (I) a of the Act, the second Respondent failed to publish the full list of all Polling Stations in each Constituency 14 days before nomination days of 8th and 9th January, 2001.

(iii) Because of proved facts in (a) & (b), above the Petitioner was disabled from appointing his Polling agents as provided for under S.32 of the Act. This violated the two provisions and the principle of transparency. Therefore ground 3(1) (c) of the petition succeeds.

(iv) The 2nd Respondent failed to supply copies of the Final Voters Register C/S 32(5) of the Act. Therefore ground 3(1) (d) is proved.

(v) The second Respondent contravened Ss. 12 (e) and 18 of the ECA by failing to efficiently compile maintain and update National Voters Register, the Voters Roll for each Constituency. Ground 3(1) (e) succeeds but this appears Pyrrhic victory because S.58 (6) does not appear to make breach of ECA, 1 997 a ground for annulment.

(vi) The 2nd Respondent contravened S.25 of the ECA by failing to display copies of the voters register for 21 days as required. Ground 3(1) (f) must succeed. But because of S.58 (b) of PEA, this is not ground for annulment.

(vii) Contrary to Ss.32 and 47(4) & (5) of PEA, 2000, in many districts such as Kabale, Bushenyi, Ntungamo, Rukungiri, Kanungu, Kamwenge, Mbarara, Sembabule and Kisoro, on the Polling day, during Polling time, agents of the Petitioner were chased from Polling Stations during polling and counting of the votes in the above mentioned districts. As pointed out earlier agents and or servants of the two Respondents in some instances participated in the chasing. Therefore the interests of the Petitioner were not taken care of in such districts as Mbale, Rukungiri, Kanungu, Ntungamo districts. Ground3 (1) (g) succeeds.

(viii) Agents and servants of the 2nd Respondent allowed voting by the army in stations outside barracks, outside statutory time. This contravened the provisions of S.29 (2) and 29(5) of PEA, 2000, and the principle of transparency and therefore ground 3(1) (h) succeeds.

(ix) C/S.30 (7) of PEA, agents/servants of the second Respondent in the course of their duty allowed commencement of the poll without first opening ballot box. This also breached the principle of transparency. Ground 3(1)(l) succeeds.

(x) The agents and servants or presiding officers of the second Respondent allowed multiple voting in the District of Pallisa, Mbale, (Bungokho), Mayuuge, Busia, Iganga, Soroti, Kumi, Kisoro, Kabale, Ntungamwo, Bushenyi, Mbarara, Rukungiri, Kanungu, Kamwenge and Kabarole districts. This contravened S.31 and 71 of PEA. This also violated the principle of one-person one vote. Therefore ground 3(1) (J) succeeds.

(xi) The second Respondent failed to take steps to protect the integrity of the Data Processing Centre in contravention of S.70 of the PEA. This also affects the principle of transparency and fairness. Ground 3(l) (1) has been proved.

(xii) The Petitioner has proved Ground 3(l)(m) in the petition in that c/s.12 (b) & (c) of the ECA, 1997 the second Respondent failed to control the distribution and use of ballot papers in some districts (e.g. the District of Kampala, Kabale, Mbale, Tororo, Busia, Ntungamo, Bushenyi, Mbarara, Sembabule, Rukungiri, Kanungu, Kamwenge and Kabarole). Lack of control enabled the ballot papers to be stolen. This also affects the principles of transparency. Ground XII is proved.

(xiii) The Petitioner brought evidence to prove allegations in para 3(1) (o) of the petition that persons aged below 18 years were allowed to vote in such districts as Kamwenge, Kabarore, Kabale, Ntungamwo, Bushenyi, Mbarara, Kanungu, Rukungiri. This contravened S.19 (1) (b) of the ECA, 1997 as well as S.71 of the PEA, 2000. However the evidence is not of the quality that has satisfied me about the underage voting. So the ground fails.

(xiv) The Petitioner alleged and adduced evidence to prove that contrary to section 32 of the PE Act, the 2 Respondent’s agents/servants, the Presiding officers, failed to prevent the Petitioner’s polling agents from being chased away from Polling Stations and as a result, the Petitioner’s agents were unable to observe and to monitor the voting process. Witnesses include C. Owor, R. Kironde, Kimumwe, Acko H, James Birungi, Sentongo, B. Matsiko, J. Musinguzi and Kirunda. Therefore the principles of transparency, and fairness were contravened. Paragraph 3(1) (p) succeeds.

(xv) The Petitioner adduced evidence to prove that contrary to sections 29(4) and 34 of the PEA Act, the 2nd Respondent through its agents/servants namely the chairman and Presiding officers in the course of their duties allowed people with no valid Voters’ Cards to vote. Witnesses includes S. Kule, Masinde, I. Kiryowa, Ojok D. of Mbale, Kakuru Sam of Kanungu and
B. Bwambale of Kasese. This affects the principle that election is for citizens. Allegations in paragraph 3(l) (q) are proven.

(vxi) The Petitioner adduced evidence to prove that contrary to section 42 of the PEA Act, the 2 Respondent through its agents/servants in the course of their duties allowed people with deadly weapons to wit, UPDF soldiers, LDU soldiers and para-military personnel and other armed people at Polling stations in the districts of Mbale, Palisa, Rukungiri, Kabale, Kanungu, Kamwenge, Soroti, Kabarole, Mbarara, Busia, Tororo, Arua, Iganga and Sembabule Those armed people had no right to be at stations. Their presence intimidated many voters. See evidence of Kyimpaire, Matsiko, Tibanyendera, Kiiza and Musinguzi’s evidence. This affected the Petitioner. The principle of voting under conditions of freedom was violated. Ground

3(I) (r) succeeds.

(xvi) The Petitioner has proved that in the Districts of Rukungiri, Mbale, Kanungu, Kamwenge, Mbarara, Sembabule, Kampala, Ntungamwo, Kabale and contrary to section 47 of the PEA Act, the 2 Respondent’s agents/servants in the course of their duties denied the Petitioner’s Polling agents information concerning the counting and tallying process. This also contravened the principle of transparency. Ground 3(I) (s) is proven.

(xvii) The Petitioner has produced evidence by way of affidavits to prove that in the districts of Rukungiri (J. Musinguzi and Kakuru Sam) of Ntungamwo, Kabale, Kanungu, Mbarara, Pallisa, Mayuge, Soroti, Sembabule, Tororo, and contrary to section 47 of the PEA Act, the 2nd Respondent’s agents! servants, the presiding officers, allowed the voting and carried out the counting and tallying of votes in the forced absence of the Petitioner’s agents whose duty was to safeguard the Petitioner’s interests by observing and verifying the voting, counting and tallying process and ascertain the results. The principle of transparency was violated. Therefore, the allegations in paragraph 3(l) (t) of the petition have been proven to my satisfaction.

(xviii) The Petitioner adduced the evidence of Dr. Mukasa, to show that in the District of Kampala and contrary to section 56 (2) of the PEA Act, the 2nd Respondent declared the results of the Presidential Election when all the Electoral Commissioners had not signed the Declaration of Results Form B. But as there is no requirement in the Act to that effect, allegations in paragraph 3(l) (u) though proven have no effect on the result.

(xix) The Petitioner produced the evidence of himself, of Kakuru Sam, of Major Rabwoni Okwir, of Winnie Byanyima, J. Musinguzi, of J. Kijumba, Henry Tumusime of Mpabwoowa C. and D. Okello to prove that contrary to section 12(1)(e) and (f) of the ECA, the 2nd Respondent failed to ensure that the entire Presidential Electoral process was conducted under conditions of freedom and fairness and as a result the Petitioner’s and his agents’ campaigns were frequently interfered with by personnel of the UPDF, including the PPU, and the Para-military personnel such as the group led by Major Kakooza Mutale. The evidence by the first Respondent, by Chairman Kasujja, by Lt. Col. Mayombo, by Major General Odongo Jeje has not disproved this. In the result the allegations in paragraph 3(l) (v) of the petition are upheld as proved.

(xx) The Petitioner proved by evidence of Major Rabwoni, of Henry Tumusime,

J. Musinguzi and Winfred Nalusiba among others, that some of the Petitioner’s agents and supporters were abducted and some were arrested assaulted and intimidated by the army to prevail upon them to vote for the first Respondent or to refrain from voting contrary to section 74 of the PE Act. The evidence by Captain Rwakitature, Captain Ndahura, Capt. Byaruhanga, Lt. Col. Mayombo does not disprove petitioner’s claim. I find that the allegations in ground 3(I) (w) of the petition have been proved to my satisfaction. The principles of freedom and fairness were violated.

(xxi) The petitioner has proved through witnesses such as Mulindwa of Pallisa, Muhairwoha, J. Birungi and J. Musinguzi of Kanungu, J. Tumusime and Kyimpaire of Kamwenge, that contrary to sections 70 (f) and (j) and S.71 (b) of the Act, some of the 2nd Respondent’s agents/servants namely the Presiding Officers/Polling Assistants in the course of their duties ticked ballot papers in the 1st Respondent’s favour and later gave them to voters to put in the ballot boxes; and polling officers interfered with ballot boxes and stuffed them with already ticked ballot papers. This breached the principle of fairness, freedom of choice and the scarcity of secret ballot. Ground 3(1) (x) succeeds.

In summary, evidence has established or proved that various provisions of the Presidential Election Act 2000 (and of the Electoral Commission Act which is now irrelevant for our decisions) were contravened and the non-compliance affected the result of the Presidential Election in a substantial manner in so far as the PEA is concerned.

ELECTION OBSERVERS’ REPORTS

In paragraph 19 of the affidavit accompanying the 2nd Respondent’s answer to the petition, Chairman Kasujja deponed that foreign observers confirmed that the election was held in conditions of freedom and fairness. I have seen five reports of those observers and which were annexed to Chairman Kasujja’s affidavit.

The first report is a statement by OAU observer’s team. This team does not indicate how long they stayed in Uganda before the election took place. They do not mention places and districts they visited and any credible persons they interacted with to get objective assessment of the freedom and fairness of the election. I therefore attach no importance to their statement.
The second group of foreign observers is from the Nigerian National Electoral Commission. This team arrived here on 8/3/2001 and was received by our Electoral Commission officials for briefing. They appear to have thereafter attended some few rallies in Kampala and Jinja. They don’t seem to have visited critical areas in the rest of Uganda, such as Rukungiri, Kanungu, Kamwenge, Mayuge, Mbale, etc. An assessment by foreigners based on a visit to the city of Kampala and the Municipality of Jinja, on the facts of this petition, does not in my assessment give the report by the Nigerian delegation the kind of importance that satisfies me that the team’s report is of any value in this petition.

The third report is by the Libyan Ambassador. H. E. the Ambassador is based in Kampala. Apparently he was able to visit only the City of Kampala areas and Jinja, just like the Nigerians. His report is not signed. He heard about reports of acts of violence and intimidation and loss of lives. He doesn’t appear to have investigated these matters. If I were to attach any value to this report, I would say the ambassador supports the allegations of the petitioner regarding acts of violence, intimidation and killing. Otherwise I attach no importance to the report.

The fourth report, which is also not signed, is by the delegation from Tanzania. The delegation did not have time. They observed election process in seven Polling Stations in Kampala central. They also observed counting process in two of those seven Polling Stations. That is all. With respect, I don’t know which value can be derived from or attached to their report. None, I think.

The fifth report, which is also unsigned, is by a Gambian delegation, although the team toured the Municipality of Jinja, the delegation remained in Kampala for electoral purposes. Possibly they observed election (voting) process at one Polling Station, Araya Primary School in Kampala. The delegation should have simply said, “we have no valuable report to make.” Yet they made a report to which I attach no importance at all.

With respect to Chairman Kasujja, I do not share his confidence that these five reports can in all fairness be regarded as sufficient to support his views that the election was conducted under conditions of freedom and fairness.

I do not attach any significance whatsoever to these five reports of foreign observers, It is not quite clear to me why the foreign observers were unable to reach areas, which mattered in this election. I think that for any foreign and objective observer to get a fair and reasonable assessment of the election, he should have been here in Uganda from about the middle of the campaign period. While here they should travel to various part of the court. In that way they could have observed what was on the ground and might have given credible and objective reports.

CONCLUSIONS ON 3RD ISSUE

Let me conclude on the third issue. Although the idea of affecting the results of an election has revolved around the number of votes gained or lost by one candidate or the other, a study of the decisions of Mbowe, Kabourou and Morgan cases shows that other factors can and do affect election result. I think that it is possible in an election which is conducted in accordance with the election law and under conditions of freedom and fairness for the number of votes gained or lost by one or other of the candidates to be the main or one of the main considerations by a Court in deciding whether the number of votes gained or lost affected the election result. If so to what extent? But in a society, such as ours, in Uganda, where the majority of voters are simple and less enlightened about the value of their electoral rights and voting and where the registration exercise is deficient. In such a society where not only the threat to use force against dissenters is apparent and real, but also where actual force is used to suppress dissenters, both high and low; and where that force is used to intimidate or coerce the people and voters who support a particular candidate; where wide spread intimidation, assault, harassment, arrest and detention of dissenters are carried out, definitely, in my view all these circumstances and factors cumulatively go to the very foundation of a free and fair election. The factors constitute circumstances which must surely affect the result of an election not only in an ordinary manner but also, like in this petition where these factors have been proved to be present during campaign and during election of the President, in a substantial manner.

In this petition there is evidence that some high ranking officers of state are among the prominent perpetrators of intimidation, assault, violence, harassment and arrest of both the lowly and the high, who are perceived to be treacherous or dissenters. Reviewing the evidence of brutality particularly in the Districts of Ntungamo, Rukungiri, Kanungu, Kamwenge and Mbarara, the picture that emerges is that of winning the Presidential election after violation of the Constitution and the PEA provisions and principles by threat to use or by actual use of violence instead of winning by persuading and gaining the free will of the people.

We have seen that in Mbowe case there were allegations in the petition of violence and of threat to deport voters who could not vote for the Petitioner or who were not canvassing for the Petitioner. The evidence for the Petitioner did not establish the threats and the canvassing. But Georges CJ in his judgment at page 243 G said:

‘We now come to allegations (a) and (d) — — each of them would constitute an illegal practice contrary to the National Assembly (Elections) (Amendment) Act, 1965, S.99. In particular as far as (a) is concerned, had it been proved to our satisfaction it would have gone so deeply into the root of the whole election that it would be difficult, however large the majority might have been, to say that it did not affect the result of the election ‘

This statement answers the contentions of counsel for the two respondents that because candidate Kiiza Besigye failed to prove the number of votes he lost as a result of the various complaints made in the petition; therefore he must lose the petition.

There is one remarkable feature in this petition. That is that in areas where there was extreme brutality against the Petitioner’s supporters, or representatives and agents, the Petitioner lost massively whereas in areas where there was no or less brutality, the Petitioner won. That to me is one of the obvious substantial measures of the effect on the election results, I think.

In conclusion on issue No.3, I find and hold that non-compliance with the provisions and principles of the Presidential Elections Act, 2000 affected the result of the election in a substantial manner.

ISSUE 4

I will now turn to the fourth issue which is whether an illegal practice or any other offence under the said (PEA) Act was committed in connection with the said election by the first Respondent personally or with his knowledge and consent pr approval.

This issue relates to complaints averred in paragraph 3(I)(n), 3(l)(w), 3(2)(a) to 3(2)(f) of the petition. Some of the complaints, namely, the promise to raise salaries for Medical Personnel and for the teachers, the abolition of health cost sharing, the reduction of graduated tax and the signing of contracts to tarmac or upgrade roads or the Sam Kabuga’s motorcycle ceremony are admitted. Explanation in each instance is given by or on behalf of the first respondent to justify what was done.

THE PETITIONER’S CASE

In his petition, para 3 (I) (n) alleges that contrary to section 25 of the PE Act, the 1st Respondent’s agents/supporters interfered with the electioneering activities of the Petitioner and his agents.

In paragraph 3(I)(w) the Petitioner averred that the Petitioner’s agents and supporters were abducted and some were arrested by the army in order to make them vote for the first Respondent or to refrain from voting, contrary to section 74(b) of the Act.

In para (2) (a) the Petitioner averred that contrary to section 65 of the Act candidate Museveni Yoweri Kaguta publicly and maliciously made false statement that the Petitioner was a victim of Aids without any reasonable ground to believe that it was true and this false statement had the effect of promoting the election of Candidate Museveni Yoweri Kaguta unfairly in preference to the Petitioner.

In his affidavits, the Petitioner swore that he is a medical doctor, that he is healthy and that he is not suffering from AIDS. Dr. Ssekasanvu in his affidavit to which was annexed scientific information on AIDS supports the Petitioner.

In para 3(2)(b) the Petitioner avers that contrary to section 63 of the PE Act, the 1 Respondent and his agents with the 1 St Respondent’s knowledge and consent offered gifts to voters with the intention of inducing them to vote for him.

In support of the petition on gifts, there are affidavits from Oren V. and Omalla Ram, both of Tororo District, Tumwebaze A., Turiyo and Mugizi Frank all of Ntungamwo District, John Tumusiime of Bushenyi, Etetu S. of Soroti, Change Gideon of Kabale, Lucia Nagayi of Kampala and Odong Margret, to support this ground. In rebuttal, the respondent produced the affidavits of R. M. Obo, David Keya, the Hon. Capt. Mukula of Soroti, Omuge G, Major Bwende, D.
Wadria, Kamya Wilson, B.Kibonero and Musinguzi S. of Ntungamo.

In paragraphs 3(2)(c) of the petition, the Petitioner averred that contrary to section 12(1) (e) and (f) of the Electoral Commission Act, the Respondent appointed Major General Jeje Odongo and other partisan Senior Military Officers to take charge of security of the Presidential Election process and thereafter a partisan section of the army was deployed all over the country with the result that very many voters either voted for the 1st Respondent under coercion and fear or abstained from voting altogether. In an effort to prove this ground the Petitioner swore his own affidavits. In so far as deployment is concerned support is contained in the affidavits sworn by the first Respondent, by Gen. Jeje Odongo, John Kisembo, (IGP) and Lt. Col. Mayombo. Support for the general conduct of members of the UPDF is in the affidavits of Baguma John and Kijumba both of Kasese, Byomanyire of Mbarara, John Tumusime of Bushenyi, Iddi Kiryowa of Sembabule, Tukahirwa D. of Mubende, James Musingunzi of Rukungiri and F. Byaruhanga. For the respondents, Captain Ndahura, Hon. Capt. Byaruhanga, MP, Capt. Rwakitatire and some senior UPDF officers swore affidavits in which they denied intimidation, coercion or harassment of the petitioner or agents and supporters of the Petitioner.

In paragraph 3(2)(c), the Petitioner averred that contrary to section 25 (b) of the PEA Act, the lst Respondent organised groups under the PPU and his Senior Presidential Adviser, a one Major Kakooza-Mutale with his Kalangala Action Plan para-military personnel to use force and violence against persons suspected of not supporting the 1st Respondent, thereby causing a breach of peace, disharmony and disturbance of public tranquility and induce voters to vote against their conscience in order to gain unfair advantage for the 1st Respondent in the Presidential election. Many witnesses have deponed to support the Petitioner. See the affidavits of the Petitioner, of D. Okello-Okello, Hon. Winnie Byanyima, Bigumuhangi Kaguta, Bashaija Richard, Byaruhanga, S. Kakuru, R Matsiko, J. Kiyimba, among others. These affidavits must be compared with those of Major Gen. Jeje Odongo, of the first Respondent, of Chairman Kasujja, of Cpt, Ndahura, of Mugisha, of Muhwezi and Major Kakooza-Mutale who have sworn affidavit to rebut the Petitioner’s claims.

In paragraph 3(2)(e) the Petitioner averred that contrary to section 25(e) of the Act the 1st Respondent threatened that he would put the Petitioner six feet deep. The Petitioner construed this to mean that the first Respondent threatened to kill him because of pointing out grievances from and mismanagement in the UPDF and that this had the effect of scaring voters into voting for the Respondent to guarantee their own safety. In this respect when the affidavits of the Petitioner and the first Respondent are compared, it is clear that the 1^st Respondent admits that he made the statement. He however denies that it was aimed at the Petitioner. The threat may well have been made in gusto.

In para 3(2) (f), the Petitioner avers that the aforesaid illegal practices or offences were committed by the 1st Respondent personally or and his agents and supporters with his knowledge and consent or approval through the Military, PPU and other organs of the State attached to his office and under his command as the President, Commander-in-Chief of the Armed Forces, Minister of Defence, Chairman of the Military Council and High Command and Chairman of the Movement Organisation.

Some of the affidavits in support of these averments have already been alluded to when I discussed the first, second and third issues. There are others on the record. Further, there are counter-affidavits by the first Respondent, by Gen. Jeje Odongo, by Chairman Kasujja and John Kisembo (IGP) on the one hand and that of Petitioner, Major (RTD) Rwaboni, E. Bumeze and Alex Olum on the other hand.