The republic of uganda in the supreme court of uganda at kampala
Sam Kakuru averred in the following paragraphs of his affidavit
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Sam Kakuru averred in the following paragraphs of his affidavit: (16) “I then identified myself to them by showing my agents appointment letter. The presiding officer called Tindyebwa who ordered me to sit far from the agents’ table saying the table was for government people not us ‘rebels’ (17) Tindyebwa and other officials started ticking ballot papers for people on the table. I objected and was manhandled and beaten up. Policemen looked on hopelessly as they had been earlIer on warned that they were known to be anti Museveni. (18) I was chased away from the polling station I stayed at home till around 4:00 p.m. eventually all our other agents were chased away. (20) At around 5:00 p.m. stone wielding thugs led by Stephen Rugaju. Rubondo and other Museveni task force members came on two pick-ups, surrounded my home and demanded that I go and meet the RDC. I refused to go with them and entered my house. They threatened to demolish my house which forced me to go with them. They took me to the polling station where I was ordered to sign the declaration forms. I refused. I was taken to RDC, his Deputy RDC and GISO and others and I told them I couldn’t sign when I had not witnessed the polling. They insisted, threatening me and I had to sign…” The Affidavit of Bernard Matsiko of Ntungamo village averred as follows :- (8) That on polling day I reached the polling station at 6:00 a.m. with our agents. We found out that voting had already started. (9) That all voting was done by Museveni’s agents where one Rehema Biryomu Masiko had about 200 ballot papers. She ticked all of them and put them in the ballot box. (10) That when I attempted together with other Besigye’s agents to stop the habit we were forcefully chased away from the polling station with the help of armed personnel and our letters of appointment confiscated.” Affidavit of Alex Busingye’s affidavit averred “(1) That I am an adult male Ugandan resident at Kakira Mbarara.
“(2) That I was the Presiding Officer at Karuhinda polling station in Kinkizi East Kanungu.
(10) In reply to paragraph 21 the voting process at my polling station was calm free and fair.” After carefully going through the affidavits sworn in support and those sworn in rebuttal especially of Tindyebwa, I find that the presiding officer would not admit that petitioner’s agents were chased from his polling station and that voting continued and that Kakuru who was chased away, was forced at the end of the voting to come back and sign the declaration forms. I do accept that the petitioner’s polling agents in a limited number of polling stations were chased from polling station after which voting, counting and tallying of votes were done in their absence. Therefore the very purpose of fairness and transparency was defeated. In the result, I accept that in a limited number of polling stations voting , counting and tallying of votes were done in the absence of petitioner’s polling agents. 14. That contrary to Section 74(b) petitioner’s supporters were arrested and detained and released after elections had ended- thus denying them rights to vote. John Hassy Kasamunyu’s affidavit avers: 72
“(2) He stated that I am registered voter to vote in the 2001 presidential elections at Rashaaya and also a polling agent for candidate Besigye. (3) That on 17th Match 2007 on the eve of the elections I was arrested by three armed soldiers’ of the PPU who had been deployed all over the district. I was thrown in a pit (Ndaki) in the barracks, where I spent the whole of the night and suffered a lot. (4) That the following day Buterere and Tukahirwa, two of Dr. Besigye’s agents were also brought to join me. (5) That we spent the whole of voting day in the said pit and accordingly, we did not vote” Affidavit of Arinaitwe Wilkens from Kabaale shows he was arrested detained and prevented from voting: ‘(2) He stated that I am a registered voter in the presidential election. That I am registered to vote at Kabaale Central East polling station. I was also appointed as Dr. Besigye’s co-ordinator for Bufundi sub-county. (3) That I was involved in the said Dr. Besigye’s campaign and I merely state that during the week before polling day we tried to hold a rally at Kyevu in Nyamiryango parish but we were chased by LC 1 chairman. (6) That on 17th March 2001 as I returned from distributing appointment letters to our polling agents, I was arrested and severely beaten, stripped naked and taken to the home of LC 11 chairman. (13) That on 12/3/200 1 at 9:00 a.m. I was taken to Kabale police station where I was detained until 14/3/200 1 when I was released. (14) That in the police cell I found a number of Besigye’s agents. (15) That in the circumstances, I never voted’ Clearly the affidavits of Harsey Kasamunyu, Bernard Masiko, Bashaija Richard, Arinaitwe Wilkens and Majo(Rtd) Okwir Rwaboni shows to the satisfaction of the court that because the deponents were arrested before 12th March 2001 and were detained and released after 12th March 2001, just deliberately to hinder them from voting. Clearly, from the affidavit of Kasamunyu, other persons who were arrested and detained with him were Tukahirwa, Mugisha, Kwesiga, Kwiringira, Hashakimaana, Ntare, Bikamya, Tusingwire and Kahima. From Kasamunyu’s affidavit, these men were released from Kanungu police station on 16th March 2001. Also from the affidavit of Byomuhangi Kaguta paragraph 3, on the 11th March 2001, PPU soldiers deployed in his village arrested him and took him to army barracks and threw him in a trench for the whole night. On 12th March two of Besigye’s polling agents, namely Buterere and Tukahirwa were brought to join him. So they never voted. Each of the deponents has some- what similar story to tell. Mere denial by Capt. Ndahura and Mugisha Muhwezi cannot be accepted, and leaves a lot wanting. I know that they would not admit to have gotten involved in what they are accused of, because they were not employed for that purpose. I must state that after carefully considering the affidavits on the matter, I am convinced that the deponents were arrested just for purpose of impeding them from voting, given that they were detained until after the election. 15. There was a complaint that the 2nd respondent’s agents and or servants pre-ticked ballot papers in favour of the 1 respondent and then handed them to voters to cast them without letting voters themselves make their own choice.
Although some presiding officers denied this, from the affidavits of James Musinguzi, Stanley Bugando, Kakuru Sam, Mpwabwooba Callist, ldd Kiryowa of Sembabule and Patrick Matsiko wa Mucoori who was a senior reporter with the Monitor Newspaper, and Change Gideon, I am satisfied that there was a malpractice of pre-ticking ballot papers in favour of 1st respondent irrespective of the voter’s choice after which ballot papers were handed to voters to cast them. This was especially so in Rukungiri, Kanungu and Kamwenge and a few other limited polling stations. The affidavit of Basajabalaba Jafari in Bushenyi where 1 3 pre-ticked ballot papers were recovered before they were cast, goes to show what the complaint is all about. Clearly this was evidence of non-compliance and negation of the due process of the law. But the affidavit of Tindyebwa, herein Kyomuhangi Allen, Moses Mwesigye and others denied such malpractices. However, I would reject the denial of the accusation as I would not expect the presiding officers to admit that they permitted ballot papers to be pre-ticked in their presence and infront of the table for voters to cast them. Therefore wherever this was done it was a non-compliance with the law. 16. There was stealing, cheating of votes in a significant number of polling stations. The following affidavits go to prove this type of stealing i.e. cheating: Affidavit of Stanely Bugando states: “(1) That I was a campaign agent for candidate Dr. Besigye for the Presidential Elections 2001. (2) That Dr. Besigye had overwhelming support in Kihihi especially among the youths during the campaigns. (5) That cheating and stealing of votes had commenced before my arrival and continued even during my presence at the station. (6) That I arrived at the polling station at 5:00 am. on 12/3/2001. (8) That the work included also shifting from the classrooms polling desks and tables for all the polling assistants agents, co-ordinator. (9) That during the exercise I kept on seeing movements of people in the other classrooms where there were many torches flashing from place to place in midst of darkness. (10) That when I moved closer to the presiding officer, I noticed one Moses Mwesigye, a nephew of Amama Mbabazi getting from the presiding officer 3 vote card books and taking them into opposite corner of the same classroom. I became suspicious and followed him only to find that he was with three people and one Kamugisha all busy plucking ballot papers, ticking candidate Yoweri Museveni’s name and casting them into a ballot box. (11) That all the three booklets were used up and all the ballot papers ticked and cast into the ballot box. (12) That on my querying why they were stealing votes, James Birakwate and Moses Mwesigye warned me seriously that should I reveal the malpractice I should expect death or expulsion from the district of Rukungiri. (13) That the two men aforesaid sought to give me Shs. 20,000/= in order to win me over to their side and rejected the offer and remained firm on candidate Besigye. (18) That during the voting after 7:00 a.m. after the candidate agents arrived I informed candidate K112a Besigye’s agents that there had been massive stealing or cheating of votes. (19) That I also left the polling station in disgust and went to report to candidate Besigye’s office at Kihihi” Affidavit of Basajjabalaba shows attempted cheating. He stated in his affidavit: “(2) that I am a registered voter in the presidential elections of 2001 and secretary to the elect Besigye Task Force for Bushenyi District. (3) On the polling day of l2 March 2001 I was in charge of Bunyaruguru (4) At Kyenzaza Trading Centre polling station I got information that one Kyomuhangi Allen had 13 ballot papers ticked in favour of candidate Museveni and that she had tried to cast them but had been intercepted and that the same had been removed from her and handed over to the monitor of the station. (5) That I approached the monitor and the same were removed from her and handed over to Fr. Vincent Birungi District co-orcilnator of the NEMO GROUP who took them to Bushenyi police station and I went to the police and made a statement to that effect” Affidavit of Kizza Davis of Bukondere Busingye in Kamwenge averred: “(1) That I am registered voter entitled to vote at Kamwenge Primary School Block 1. (2) That I was appointed a polling agent for the petitioner. (3) That on Sunday 1 1th March 2001 9:00 am, I was in Kamwenge Town with Mr. Wasswa Peter, my brother and Robert when I was arrested by LDF by names of Kenneth and Friday. (6) That at 1:00 a.m. I was transported to Kamwenge Army detach barracks. (8) That on the election day at around 10:00am, I was taken to the polling Centre of Kamwenge Primary School Block 1 where the 2nd Lt. Richard ordered the presiding officer to tick a ballot paper in favour of Museveni Yoweri Kaguta. (9)That I was given the ballot paper already ticked in favour of Museveni and was escorted by two armed soldiers to the ballot box where I put the same. (11) That I was then taken back to the barracks for detention and released after 6:00 pm’” Affidavit of Ojok David Livingstone avers :“( 1) That lam a resident of Doko cell, Namatala ward Industrial Division Mbale Municipality. (2) That I was the chafrman of the Namatala ward Task Force for Dr. Besigye. (3) That while at Namatala police post, we were called by our polling agent at Doko Nsambya polling station by name of Mayambala that there was a lady distributing voters’ cards. (5) That from Namatala police post we were accompanied by a police officer. (4) We found the lady at her home. I knew her by name of Nakintu. The police asked Nakintu about the allegations that she was distributing voters cards. She admitted she had received 50 voters’ cards from one councilor Wafula Charles to distribute them to candidate Museveni’s supporters. That she had already distributed 11 voters cards and was still having a balance of 39 cards. (5) She produced and handed them over plus Jik with soap she was arrested and taken to police. (6) On 13/3/2001 I was surprised to see Nakintu back in our area boasting that nothing was going to happen to her” Affidavit of Wafidi Amiri of Nauyo village Bumutoto parish Bugokho in Bungokho sub-county and Bungokho county stated in his affidavit: “(1) That I was a person entitled to vote in the Presidential Elections held on 12th March 2001 I was also a member for the Task Force of Col. (Rtd) Dr. Kiiza Besigye responsible for monitoring elections in Mutoto. (4) That on 12th March 2001 at about 11:00 am I was at Munkaga stage. The motor vehicle of Hassan Galiwango the Resident District Commissioner- Mbale came and parked at the stage facing Tororo side. The sub-county chief Nambale — Mutoto was the stage and he ran to Mr. Hassan Gallwango, RDC. The two held private discussion. Later the sub-county chief drove towards Mbale whilst RDC continued towards Tororo. (3) After some time area movement chairman Geofrey by name came from Tororo side being driver on Motorcycle by one Sonya David and went towards Musoto which was my next destination. (4) Being given a lift on motor cycle by Mr. Musongole who is vice chairman of my village, I went to Mosoto. At Musoto I found the movement chairman holding discussions with the sub-county chief Nambale — Musoto who had driven towards the town. On reaching where they were, Sonya drove his vehicle in the opposite direction carrying a black - handbag which he did not possess when he was driven to Musoto. (5) As there were rumours that there were plans to rig the election in our area I became suspicious. I told my driver to turn back and we give a chase. At the local Railway crossing his motor cycle developed a problem. On reaching him I asked what was in the black hand bag. Mr. Sonya tried to grab the hand bag and ran away but I held the bag and we struggled for it which got torn and some voters cards more than 50,000 and some official stamps plus Return Forms for the sub-county of Bugokho were poured down. I raised alarm which was answered by a crowd who assisted me to hold Mr. Sonya and retain the bag. (6) The movement chairman and sub-county Chief came to the scene and tried in vain to rescue Sonya with the voters card and the records I had arrested but in vain. (71) With the assistance of the crowd I detained Sonya together with the voters cards until some police officers from Mbale police station arrived at the scene. Mr. Sonya was then taken to Mbale police station together with the voters card, the polling station Return Forms. I accompanied him to the police station. My complaint was registered as SD 18112103/2007. (7) Two days later I saw Mr. Sonya at large in our area.” Undoubtedly, the evidence adduced in the affidavits in support of this complaint show that there were floating ballot papers which must have been released by office of the 2nd respondent, since they were the ones in charge of printing and distributing them. As a result of these floating ballot papers in a significant number of polling stations, some people were able to use them in stuffing ballot boxes and others were intercepted before casting them in the ballot boxes. This is clearly shown in the affidavits of Ojok David Livingstone, Basajabalaba Jafari, Stanely Bugando and Wafidi Amiri. However, it must be noted that the evidence in the above affidavits were controverted by some affidavits of the persons alleged to have been involved in the mal-practices - Such as that of Moses Mwesigye from Kanungu, Allen Kyomuhangi of Bushenyi and Nakintu of Namatala of Mbale. I would therefore place no reliance on such affidavits. I must state that I am satisfied that there was cheating coupled with attempted cheating of votes in a limited number of polling stations. 17. The last complaint was intimidation of petitioner’s polling agents and supporters on polling stations by the 1st respondent’s supporters GISO, LDU and UPDF soldiers contrary to Sections 25(1) and 74 (a)(1) of the Presidential Elections Act, 2000. In support of the above complaint there are several affidavits which were sworn. Some of these affidavits are — Masasiro Stephen of Bukabelyenda of Bufumbo Mbale, Mubaje Sulaiti from Bubyange of Mbale. When these deponents complained and protested of rigging, they were chased from the polling stations. The affidavit of Niiro Suliman from Nkusi in Bugiri averred in paragraphs 3,4,5 and 6:- (3) That soldiers from RDC’s office came threatening and were forcing young children below 78 years of age to vote. We tried to refuse them but we were over powered since they were armed. (4) That I was arrested by soldiers at Grant Street for 30 minutes. (5) That our agents were chased away from polling station by armed soldiers. (6) That then the soldiers started to bring children to vote and many voted. Musasiro Stephen of Bukabalyenda village Jewa parish Bufumbo sub-county Mbale stated in his affidavit as follows: (5) I was a polling agent for Presidential Candidate Col. DR. Kizza Besigye. (6) On 12/3/2001 I arrived at Nkusi Primary School polling station where at I was to officiate at 6:30 am. (7) I found the polling station already arranged for voting exercise. My fellow polling agent, Mr. Wafuba was already at the polling station. (8) The ballot box was opened for our inspection and It was empty. After inspection the same was closed and locked. Voting started peacefully. There were 12 voters present who peacefully cast their votes. (9) Then there was a disturbance started by the area country chief Abdu Mudoma the chairman President Museveni’s Task Force All Mukholi, the sub-county councillor Mr. Micheal Namundi who came to the station with 4 armed soldiers. The soldiers shot in the air. We the two polling agents for Kiiza Besigye me and Mr. Wa tuba were severally assaulted. After assaulting us the sub-county chief, sub- county councilor and the chafrman of Museveni’s Task Force put ballot papers on which only Yoweri Museveni’s name had been ticked into the ballot box. We tried to intervene but we were assaulted further and we were removed from the ballot box as the 3 men continued putting in more ballot papers. I struggled with All Mukholi the Task Force chairman for MusevenI from whom I snatched 5 ballot papers on which Museveni’s name had been ticked. (10) From the polling station I ran to Mbale police station where I handed in the 5 ballot papers. I made a Police statement, which was recorded. From Mbale Police Station was given a form to take to Mbale Hospital where I was examined and treated for a bruised back. The Police reference is SD/15/12/3/2000. The Police have not called me back for further action. Sworn on 21st March 2001” Mubaje Sulaiti of Bunewoze village, Butumbo in Bugokho Mbale stated in his affidavit as follows: “(1) on 12/3/2001 1 was one of the persons entitled to vote at Bukwanga polling Police Station. I arrived at the polling station at 12 noon. I was having my voter’s card. (2) On reaching the polling station, I saw the person who was in charge of the marking ink holding 10 voters cards with which she moved towards the ballot box. She was a lady. I asked her where she was taking the ballot papers. I held her. I complained to the presiding officer, seeking for assistance as a I removed the ballot papers from her. (9) Before I could be assisted 2 armed LDU, who were present intervened and assaulted me severely removing the ballot papers from me. One of the LD(J then put all the ballot papers into the ballot box. I was not allowed to vote and my voter’s card was forcefully removed from me. (10) I was chased from the polling station by one of the LDU who threatened to shoot me if I didn’t leave. (11) From the polling station reported Mbale police station. I made a statement. I was given a form to take to Mbale Hospital where I was examined and treated. The police reference is SD 20/3/2001. Mulindwa Abasi from Pallisa averred in his affidavit as follows: “(1) On the l2th March 2001 I was one of the persons supposed to vote in the Presidential Elections. (2) I cast my vote at Kobolwa polling station at 7:00 am 226 (3) I was also a monitor for candidate Col. Dr. Kiiza Besigye in Kibuku Parish. After casting my vote, I started my monitoring work within Kibuku Parish I observed the following: (a When I was at Kibuku Trading Centre, I detected that Mrs. Mujwe the sub-county chief Kibuku was issuing around some voters cards to the crowd which was around her at the Trading Centre. I was with Gideon Kalaja who was the sub-county monitor for Col. Dr. Kiiza Besigye. We went and challenged Mrs. Mujwe but we were roughened up by the LDU personnel who were heavily armed. They told us that they together with Museveni were in power and we cannot do anything. They told us to keep quiet. (b) There were motor vehicles which were bringing voters from villages and they were told to vote for candidate Yoweri Museveni. Some soldiers were travelling in a mini-bus all around the Trading centre to whom the sub-county chief Mrs. Mujwi, one Hap Nangeje Abubakali, sub-county councillor Maliki Kitete and Nyalgolo Peter LC 11 chairman were telling the people that if they don’t vote for Museveni the soldiers would kill them. There were 3 polling stations within the Trading Centre namely Kabolwa polling station, Kibuku secondary school polling station and ginnery polling station. Mrs Mujwi and her group were going around these polling stations giving voters cards, giving those who had already voted. I complained to the presiding officer in the 3 polling stations but in vain. Instead I was being laughed at. (4) At all the polling stations I went to there were voters who could not vote because on reporting. they were told their names had been ticked and they were told they were not supposed to vote. When they complained they were chased away. (5) Because of the complaints I raised during elections, my life is under threat I am being told by Museveni’s supporters that I am a rebel. I am under great fear for my life. There are, however, affidavits sworn in rebuttal, denying any intimidation upon petitioner’s supporters. These are the affidavits: Teopista Mujwi sub-county chief of Kibuku stated in her affidavit as follows:‘(3) That I have carefully read the affidavit of Mulindwa Abasi dated 2 1/3/20001 and I depone herein below as follows:
Wamae Kenneth’s Affidavit in reply to contents of Amir stated that Amir’s affidavit was:- (3) (a) That on the polling day I received a report from the presiding officer of Musoto a polling station that some people had been refused to vote because they did not have voters cards. Others had voter’s cards but their names were not on the voters’ registers. (b) That I got a lift from Mr. Musonya David to go and find out the position. I carried with envelopes containing returns for voters cards, Registers Rules ink pads and pens. (c) That any way I was ambushed In Marare village by Mr. Wafidi Amiri who started raising alarm to the effect that the tax collector meaning me was stealing votes. (d) That for fear of being lynched for no reason at all I ran away. (e) That I was not in possession of 50,000 voters cards at the time and the number of voters in the subcounty is 20,000. (f) That the balance of voters cards which I was returning to the sub-county Headquarters were less than 3000. (5) That Wafidi Amiri and Masongole Julius grabbed from me the balance of voters cards from 4 polling stations namely Nauyo A, Nauyo B, Nauyo C and Bunamwani Church of Uganda. (6) That I did not engage in any election malpractice as alleged. Nava Nabagesera averred in her affidavit as follows:“(1) That I am Resident District Commissioner Bugiri. (2) That as RDC I am the Chairperson of the security committee in the District and I am under a duty to ensure that law and order is maintained. (3) That I have carefully read and understood the affidavit of Kiwume Ibrahim dated 2Ot March 2001 in support of the petitioner and I depone herein below in response. (4) That it is not true that on the day following election day I ordered the chairman in Charge of Bukooli South West of DR. Besigye to be released from police. (8) That It is not true that soldiers from my office threatened people and forced young children below 18 years to vote at Bus park A polling station in Bugiri as stated by Niiro Sulaiman. (9) That the three soldiers I have at my office were at all times during the election exercise with me. They did not go to Bus Park A Polling Station. (10) That I am not aware and I received no reports of soldiers threatening and harassment and intimidation from anybody throughout Bugiri district” Kasakya Hakim’s affidavit in reply to Mubaje Sulaiti stated inter alia: “(1) That I am an adult male Ugandan of Bunawazi of Bufumbo sub-county and was the presiding officer for Bukwaya polling station.
Magezi Abu stated in his affidavit in reply to Niiro’s affidavit that whatever was stated by Niiro about his polling station was false. That soldiers never came to his polling station during the voting. That security on his polling station was in the hand of police and no unauthorized person voted there. Affidavit of Dan Kaguta states as follows:
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