The republic of uganda in the supreme court of uganda at kampala
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RE: VIOLENCE AND INTIMIDATION OF CANDIDATES The Commission wishes to appeal to you, Your Excellency, as the Head of State and fountain of honour in Uganda, to intervene and save the democratic process from disintegration by ensuring peace and harmony in the electoral process. The Commission has received disturbing reports and complaints of intimidation of candidates, their agents and supporters which in some cases has resulted in loss of life and property In a meeting that the Commission held with candidate Dr. Kiiza Besigye on 22nd February 2001, a number of issues of public concern were raised regarding the way security matters have been handled particularly during the campaign period.” (Emphasis is added) After drawing attention to the law on the powers and functions of the Commission and to its operational limitations, and intimation that the Commission had entrusted the keeping of security to the police, Chairman Kasujja went on to write- “We also expect that the deployment of PPU is made where the President is expected to be as this is a facility that Your Excellency is entitled to as the incumbent. We have also issued press statements instructing public institutions including RDCs and DISO to treat all candidates equally as is provided for in the Presidential Act 2000 and we expect them to abide by those instructions.
The next, in time, was the letter I have just referred to, which Loius Otika wrote to the Commission on 26 February, complaining, inter alia that one of the people allegedly tortured by Maj. Kakooza Mutale’s group that day, Isaac Katerega, was rushed to hospital in Busia where he died. The Court did not receive direct evidence in proof of the alleged torture and/or death as a fact and the surrounding circumstances. On 7th March 2001, four candidates, including the Petitioner, wrote a letter to the Chairman of the Commission. Under the sub-title “Security, Violence and Intimidation”, they referred to the deployment of the Army Commander with other Senior Army Officers to take charge of security and added:
After commenting on the letter the Chairman had written to the President, the candidates concluded: “Violence and intimidation by the PPU and para-military personnel has escalated of late and has resulted in loss of lives and injury to citizens of this country.” However, the only evidence the Court received on deployment of PPU, was in respect of the deployment in Rukungiri only. And the Court received evidence in proof of only one loss of life, namely that of Baronda, the letter of Louis Otika not being such proof. In a reply dated 8th, March, 2001, Chairman Kasujja summarised, under the same sub-title the steps the Commission had taken through correspondence. He concluded: “Following these communications, reports from the Police indicate that the security situation during the campaigns has improved and acts of violence and Intimidation have reduced considerably country wide.” The candidates replied 9th March demanding that the deployed army be withdrawn within 24 hours or else they take drastic action, and warning that “the Commission will bear the consequences of the confusion that may arise out of deploying different security organs.” That correspondence left a very serious unanswered question in my mind; namely was there more widespread violence and intimidation (including more deaths), related to the election, than was disclosed in evidence, or were the contents of the correspondence, an exaggerated expression of the extent of the violence and intimidation? Needless to say, however, that whatever the answer to this question may be, this Court could only act on the evidence before it. Intimidation on polling day: As already noted the Petitioner pleaded that the military and para-military personnel armed with deadly weapons were allowed in polling stations and their presence intimidated voters, that during the polling exercise, the Petitioner’s “polling agents were chased away from many polling stations in many Districts of Uganda” and the 2nd Respondent “failed to prevent” it; and that the agents were denied “information concerning counting and tallying process” so that those exercises were carried out in the agents’ “forced absence”( para 3 (1) (g), (p), (r), (s) and (t). Armed people in polling stations: In support of the pleading in subparagraph 3(1) (r), the Petitioner deponed in the supplementary affidavit as follows: “9. That I know of incidents in Rukungiri district where I voted from, where the 2nd Respondent’s agents/servants on polling day allowed people with deadly weapons including soldiers of the PPU to be present at polling stations and this presence intimidated many voters to vote in favour of candidate Museveni Yoweri Kaguta or not to turn up for voting by avoiding the militarized polling stations.” The Petitioner did not clarify if his knowledge was from having personally seen armed people in the station. Nor did he in his own affidavit or through affidavits of witnesses, particularise the incidents adequately to enable this Court assess the credibility of the assertion. Witnesses as to polling day in Rukungiri did not have much to say on this point and did not elaborate on the little they said. Bernard Masiko, Petitioner’s monitor in Kayonza Sub-county deponed that when he went to Kyeshero polling station one Rwamahe who was armed with an AK 47 chased him away with the help of LDUs and some army men who were threatening voters. Koko Medard, also Petitioner’s monitor, deponed that when he went to vote at Kamajune polling station at about 6 a.m. he found an army veteran called Kakombe, armed with a gun guarding one ballot box which he did not allow anyone to get near to. Mpwabwooba Callist, Coordinator for Rugyeyo, Kanungu, deponed that on eve of polling day some PPU soldiers were deployed at the homes of known supporters of the Petitioner and on polling day they were distributed in parishes where the Petitioner’s support was known to be strong. From outside Rukungiri there were scattered averments on the point. John Kijumba, Petitioner’s monitor in Bukonzo deponed that at Katojo polling station he saw about 10 army men armed with guns guarding the polling station. This evidence however was refuted by Milton Wakabalya, the Presiding Officer at Katojo polling station who deponed that he had had one polling Constable who was unarmed and denied that 10 armed soldiers had guarded the station. Another was the disputed evidence of Masasiro Stephen, a polling agent at Nkusi Primary School polling station, Bufumbo Sub-county, Mbale District. He deponed that after 12 voters who had turned up cast their votes peacefully, four armed soldiers escorting the Sub-county Chief and other officials arrived at the station and shot in the air, after which the chief and his companions stuffed ballot papers into the ballot box. The Chief gave a different version denying the presence of armed soldiers. A peculiar incident was described by Alex Otim of Gulu who went to vote and monitor the election process in Paico Division. He deponed that at Paico Primary School polling stations he found that “soldiers were deployed two of them at each polling station” and that they were forcing people, especially old ones “to vote for their own choice.” He further deponed: “………………we later chase the soldiers away from the polling station and they went to a nearby barracks and came armed and were also using army vehicle (mamba). …………the soldiers assaulted me and Okello Saul and arrested us only to release us at 8.p.m. after voting had ended. Other evidence at polling stations was about soldiers coming to a few polling stations to vote or cause children to vote, irregularly, but not about their being armed with deadly weapons, let alone about causing intimidation to voters in polling stations.
There was admissible evidence from, and inadmissible evidence about, the Petitioner’s agents who were compelled to abandon their polling stations. The former was direct affidavit evidence of polling agents who upon observing irregularities, tried to protest but were overpowered and chased away, or out of frustration or disgust left of their own accord. The latter was hearsay evidence which featured mainly in affidavits of monitors and overseers, who narrated what they were told about the agents being chased. I will illustrate the latter, with two affidavits. Sam Ndagije, the Petitioner’s Monitor for Kihiihi Rukungiri listed 20 polling agents who on polling day came to him at the office complaining of being chased away. I should also mention the affidavit of the Petitioner’s Kabale District Task Force Chairman, Anteli Twahirwa, who deponed to no fact he witnessed personally. He annexed two purported reports to his affidavit, which were also not evidence. The second report, made on polling day, comprised only summaries of inadmissible information he received from agents. There were however a few affidavits of direct and admissible evidence. In Rukungiri, even monitors for the Petitioner were affected Koko Medard, Petitioner’s polling monitor deponed that at Kamujune polling station, he found that the polling agents for the Petitioner had been made to stand 50 metres away where they could not observe what was going on when he visited Nyarugando polling station he himself was forced to flee on his motor-cycle as a crowd of the Respondent’s supporters chased him with stones. At Ruhandagaza polling station he found tension. He found that the Petitioner’s polling agents had taken refugee 150 metres away from the polling station following an assault on one of them. He himself could not venture beyond, although that was where he was supposed to vote. As a result he did not vote. Others who deponed to similar harassment were Kakuru Sam and Bernard Masiko. Karenzyo Eliphaz deponed: “following massive harassment and after we were threatened with death we decided to withdraw our agents to save their lives.” There was also evidence from outside Rukungiri John Kipala, the Petitioner’s monitor at Magabi parish Kakuuto, Rakai, deponed that while he was at Gayaza polling station he observed pre-ticked ballot papers being handed to voters, who, after casting them would return for more. When it became intolerable, he protested to the Presiding Officer “to assert his authority” and stop it. Instead a group of people armed with clubs charged at him threatening to kill him. He was rescued by a colleague who whisked him away in a vehicle. There were similar incidents narrated in affidavits from Ntungamo, Bushenyi, Mbarara and Mayuge. In support of the pleading in sub-paragraph 3(1) (s) and (t), all that the Petitioner averred in the supplementary affidavit was: “10. That I was informed by my National Coordinator Louis Otika that my polling agents in numerous places in the country for instance in Northern and Western Uganda and agents at the Electoral Commission were denied access to information concerning the counting and tallying process.” I did not come across credible evidence by any agent that was denied access to, let alone information about, the counting and tallying process. There was some inconclusive evidence concerning access to the national tallying centre at the Commission Headquarters. Two persons were appointed on 13th March, 2001 to represent the Petitioner there. They were given an introductory letter. One of them Charles Owor, deponed that on presenting themselves, at about 1 .30 p.m., several Commission officials sought to allow them access, but a person unknown to him, who was riot an official of the Commission, but seemed to wield a lot of power, refused them entry. Out of frustration they gave up and left between 4.30 and 5.30 p.m. A second deponent, Robert Kironde, deponed that at the request of the Petitioner’s Task Force, he went with Mr. Kawalya to the same tallying centre at 9.00 p.m. The Deputy Chairperson, Mrs. Florence Nkurukenda, received them and instructed Mr. Wamala, to take them around. They observed the results coming in, and left at 10.30 p.m. Mrs. Nkurukenda deponed in reply that during the day, the letter introducing Charles Owor and another was left at the headquarters for endorsement by the Chairman. Later in the day, however, Mr. Balikuddembe, counsel for the Petitioner, with one Yona Kanyomozi, brought Robert Kironde and Bwogi Kawalya as substitutes. Counsel personally endorsed their names on the earlier letter. A copy of the endorsed letter was annexed to her affidavit. She insisted that the two substitutes were at the tallying exercise long enough to even be served food. In Court, Mr. Balikuddembe did not dispute or otherwise comment on this evidence. Violation of secret ballot: There was another form of intimidation which, however, was not pleaded as such but came out in evidence. Its best illustration is in the evidence of Patrick Kikomberwa of Kamwenge, who deponed that when he went to vote he was urged by the Presiding officer and the NEM monitor to vote for the 1st Respondent. Because they followed him to see what he did, he ticked in favour of the 1st Respondent to appease them, but against his will. Another example is in the evidence of Matsiko wa Mucoori who observed voting at a special polling station for soldiers at Kanyarugiri. He deponed that the only polling agent present was the 1st Respondent’s agent, who was positioned near the basin where voters were ticking the chosen candidate. He was able to see the ticking. There were a few other witnesses who deponed that they saw voters being required to tick ballots in the open.
I would summarise my conclusion on the question of intimidation as follows: First I found that during the Presidential election campaign, (a) the Petitioner’s electioneering; particularly the campaign conducted by his campaign agents in Rukungiri District was grossly and unlawfully interfered with by PPU soldiers and some Government officials (b) the Petitioner’s agents and supporters in Rukungiri and Kamwenge Districts, were harassed and intimidated Secondly I found that on polling day there was intimidation limited to harassment of the Petitioner’s polling agents who protested against irregularities. The pleading that polling agents were chased away from many polling stations in many districts was not borne out by admissible evidence. Thirdly, I found that violation of secret ballot was proved to have occurred in relatively few polling stations. Accordingly, in view of all that I concluded that in those areas the principle of free and fair election was compromised. With that in mind I make the following observation concerning implementation or enforcement of the principle of free and fair election. Much as the Constitution and the statutory law enacted there under, stress that election must be free and fair, the mechanism for implementing this appears to be rather wanting. The Constitution sets out diverse functions of the Commission in Art.61, and then provides in paragraph (h) thereof that the Commission shall “perform such other functions as may be prescribed by Parliament by Law” Under the Commission Act, Parliament prescribed in S.12 that for purposes of carrying out its Constitutional functions, the Commission shall have, the powers, inter alia “(e) to take measure for ensuring that the entire electoral process is conducted under conditions of freedom and fairness; and (f) to take steps to ensure that there are secure conditions necessary for the conduct of any election in accordance with this Act or other law.” It is apparent however that these powers are on paper only, as the Commission is not equipped to exercise them. This, in my view, creates a lacuna. Because of that, when the Petitioner and other candidates raised issues of security, violence and intimidation, with the Commission, the Commission had in turn to appeal to the Inspector General of Police, Army Commander, and apparently as a last resort, to the Commander—in Chief, who also happened to be a contesting candidate. If the Commission is to be the impartial arbiter, with the duty to ensure secure conditions for elections; and also to ensure that the entire electoral process is conducted in conditions of freedom and fairness, then it ought to be equipped to exercise these powers. It seems to me that there is urgent need for those concerned to give serious consideration to the lacuna, with a view to rectifying it. Mismanagement of voters’ register: I have already indicated that the Petitioner made several complaints against failure to comply with the Commission Act. Some relate to voter registration. Apart from what I have already considered under the first issue, the other complaints were in sub-paragraphs 3(1) (e) and U) of the petition, which in a nutshell are (1) that the 2nd Respondent “failed efficiently to compile maintain and update” the voters’ register and (2) that it “failed to display copies of voters’ roll for each parish or ward for a period of not less than 21 days.” It was argued that as a result, the voters’ register contained many flaws in that, names of non-voters remained on the register while those of entitled persons were omitted. In a rolled up defence in its answer to the Petition, the 2nd Respondent denied the first allegation generally and pleaded that in any event, such failure, if any, did not affect the result, and in addition that it was not a ground for annulment of the election. In answer to the second complaint, the 2nd Respondent pleaded that it displayed the voters register for a total of five days, and that in any case, failure to comply was not a ground for annulment of the election. It seems to me, without intending to oversimplify the matter, that the Petitioner’s contention in this regard is substantially helped, if not made out, by the evidence provided by the 2 Respondent. I will illustrate shortly. First let me consider the relevant law on the matter. The Commission Act prescribes two important exercises to be done prior to holding an election. The first exercise is to update the register up-to an appointed date. The object of the exercise is twofold: (a) to enable newly qualified voters to apply for their names to be entered on the register, and (b) to remove from the register names of persons who have ceased to be eligible voters. During that exercise, a registered voter may also apply for transfer of his or her registration to another parish or ward. The second exercise is the display of a copy of the voters’ roll for each parish or ward, at a public place within the parish or ward, for a period of not less than 21 days. I should reproduce here three sub-sections of S.25 of the Commission Act, to highlight and underline the object of the second exercise. Sub—sections (3) (4) and (5) read as follows: “(3) During the period of the display of the voters’ roll under this section, any person may raise an objection against the inclusion in the voters’ roll of any name of a person on grounds that the person is not qualified to vote or to be registered as a voter, in the constituency, parish or ward or that the name of a person qualified to vote or to be registered has been omitted. (4) Any objection under subsection (3) shall be addressed to the returning officer through the chairperson of the parish council of the person raising the objection. (5) The returning officer shall appoint a tribunal comprising five members to determine objections received by him or her under subsection (4).” From the affidavits of Chairman Kasujja it is apparent that these exercises were undertaken if they were of little importance. In the affidavit accompanying the 2nd Respondent’s answer to the petition, he deponed that the voters’ register was displayed country wide for five days and could not be displayed for 21 days or more because of time constraint. In a supplementary affidavit in reply, he deponed that the national voters’ register which had existed since 1993, was updated at village level for the 2001 Presidential election, from 11th to 22nd January 2001, and that during the update, “Tribunals were established to handle complaints.” He also deponed that in February 2001, the register was displayed at polling stations in form of voters’ rolls, and that for ease of scrutinising, it was displayed in four components, i.e. previously registered voters, newly registered voters, transferred voters, and voters recommended for deletion. In the said affidavit he explained: “26. That the display was initially done for three days, and after consultations and in agreement with all candidates’ agents, the period was extended for another two days and both periods were gazetted.
The background to the delay referred to in paragraph 27 was elaborated on, in two statements Chairman Kasujja made on 4th January, and 10th March, 2001. The first was a general public notice while the second was specifically addressed to International groups who had come to observe the election. Both statements were annextures to Mukasa David Bulonge’s affidavit. In a nutshell, Chairman Kasujja revealed that originally the Commission had planned for the exercise of general update of the voters’ register to be carried out between 13th and 26th October 2000. That plan was put off when, in a speech on 9th October, 2000, the President of Uganda “announced the government’s commitment to provide funds for computerising the voters’ register and issuing of photographic voter’s cards.” Some efforts were made towards to achieving that objective. However “due to delays experienced in the procurement process and release of funds from the Ministry of Finance to enable the Commission open letters of credit with various suppliers” none of the necessary equipment and materials had arrived by 3l December 2000. Hence the decision to revert to the “old system.” I am constrained to make the following observations (1) It was not explained why, and so I was not persuaded that, the so-called “old system” of updating the existing register could not have proceeded while the equipment and materials required for the desired new system were pursued. In my opinion, if the Commission had acted more diligently knowing, as it did, that the time for holding the Presidential election was fixed by the Constitution, and that the duration of the period for at least the display exercise, was fixed by the Act, it would not have put off the exercises until so late. (2) By a Notice dated 23d February 2001, Chairman Kasujja announced that in exercise of the special powers conferred on the Commission under S.38 of the Commission Act, “the display period of the Voters’ Rolls for the National Presidential Election, 2001 (had) been reduced from 21 days to 3 days “. Under that section the Commission is empowered to “extend the time for doing any act.” However it is not similarly empowered to reduce time. I considered whether the special power to extend time included, by implication or inference, power to reduce time fixed by the Act, but I failed to put that interpretation. As I understand it, the special power is conditional. For clarity I would paraphrase the provision thus: “ Yüklə 3,55 Mb. Dostları ilə paylaş:
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