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

Effect of irregular voting:

It was proved to my satisfaction that an unascertained number of ballot papers were illegally cast as votes for 1St Respondent. Undoubtedly those ballots must have been counted among the total number of votes he obtained. To that extent they affected the result in the sense that the 1St Respondent obtained more votes than he would have obtained if those ballot papers had not been illegally cast in his favour. However, the Petitioner did not attempt to prove how many of such votes were included in the 1st Respondent’s total. He did not even adduce credible evidence from which the Court could infer that the illegal voting was so excessive and/or widespread that it must have affected the result in a substantial manner. I noted from the admissible and credible affidavit evidence concerning irregularities of stuffing of ballot boxes, multiple voting, pre-ticking and open voting, that the number of affected polling stations were 12 in Rukungiri, 6 in Ntungamo, 3 in Kabale, 2 in Sembabule, 2 in Soroti, and 1 each in Busia, Mayuge, Mbarara and Tororo Districts. The witnesses were not able to tell with any precision the numbers of ballot papers which they saw being cast illegally. Some of the witnesses attempted to estimate, but I did not think it was safe to place much reliance on those estimates, as only a few were shown to have been made with any deliberate effort to be accurate. The number of polling stations, i.e. about 30 (if I include the attempt at Bunyaruguru), in about 10 districts, is significant enough to warrant mention. It showed that the irregularities in voting which I have described were not accidental or isolated incidents. It showed that there were electoral officials and other operatives who had little regard, if any, for the democratic principles governing elections, and who were prepared to pervert the will of the electorate through those irregularities. Nevertheless 30 polling stations is a very small fraction of 17,308 polling stations nationwide. The number of illegal votes cast and counted in favour of the 1st Respondent in those polling stations was not indicated, but cannot have exceeded the maximum possible in a polling station.

Effect of non-compliance as a whole:

After evaluating that evidence and taking into account that the burden of proof was on the Petitioner, I was not satisfied that the election result was not a reflection of the majority of the voters. The first consideration I took into account was voter turn-up. In the normal course of things, intimidation of the electorate would be reflected by low voter turn-up. Indeed the Petitioner pleaded that many voters abstained from voting due to intimidation. In the two most affected districts, however, intimidation does not appear to have had that effect. The voter turn-up in Rukungiri was 82.5% and in Kamwenge it was 92.1% both being well over the average national voter turn-up which was 70.3% of the registered voters. I considered the possibility, but was not persuaded, that those high figures were a consequence of stuffing ballot boxes and other forms of irregular voting rather than physical voter turn-up. The numbers of polling stations, in respect of which there was evidence of irregular voting, were not so excessive as to lead to such an inference.

Secondly I took into account the fact that the result under consideration was the result of the whole national constituency, not the result in the areas affected by the irregularities. In the result of the national constituency, the Petitioner obtained 2,055,795 votes and the 1st Respondent obtained 5,123,360 votes. The other four candidates obtained a total of 210,536 votes among them. The 1st Respondent worn with an overall majority of 2,857,023 votes. Even if the Court discounted all the votes obtained by the 1st Respondent in the two districts of Rukungiri and Kamwenge, and in the polling stations where irregular voting was proved, (an extreme scenario contemplated only for illustration purposes) the 1st Respondent would still retain a huge overall majority. In Rukungiri and Kamwenge the 1st Respondent obtained a total of 317,195 votes. Although the Court was not availed actual votes he obtained in the 18 polling stations outside the two districts, where irregular voting was proved to my satisfaction, they could not have exceeded 1 8000 votes, since the total number of votes cast in any one polling station was under 1000. Clearly even in that imaginary scenario he would retain a majority of over 2.5 million votes. In the circumstances I could not hold that there was evidence on which the Court could be satisfied that non-compliance with provisions and principles laid down in the Act had affected the result in a substantial manner. Accordingly I answered issue No.3 in the negative.

Before leaving this issue, I am constrained to observe that the effort exhibited in proving the irregularities that constituted the non-compliance was not matched by that put in proving the effect of the irregularities on the result of the election. This may well have been a consequence of the preferred position of counsel for the Petitioner, that because the non-compliance “went to the root of the Constitution” it was not necessary to prove expressly that it affected the result. In my considered view, too much reliance was placed on the “say so” of eye witnesses, and inaccurate forms, when verification through cross-checking of scrutiny could or might have either strengthened such evidence of shown that it was not worth pursuing.

In his affidavit in reply to the 2nd Respondent, the Petitioner deponed in paragraph 40 thus:

“40. That I know if the ballot boxes in the said districts are opened the serial numbers of the ballot papers issued to the polling stations would not match the ballot papers in the ballot boxes as they contain stuffed ballot papers.”

He reiterated this in paragraph 44 in respect of one particular form. Thus he hinted at the need for examination of ballot papers but did not apply for it. When the Petitioner was facilitated to access ballot boxes, it does not appear that the opportunity was utilised to verify the eye witness accounts of ballot box stuffing. It appears no examination of serial numbers of ballot papers in the opened boxes was done. Twinamasiko Jackson who, on behalf of the Petitioner, went to Rukungiri on that errand deponed that ballot boxes for seven polling stations were opened for him. None of the polling stations he named, however, was mentioned by the eye witnesses who saw the ballot stuffing. Indeed he did not give the impression that he went on a search for stuffed ballot papers. The substance of his affidavit was:

“6. That the results of four polling stations were not tallying with the register of voters roll (sic) and this was especially seen in Katoojo I”

He did not elaborate. He only annexed copies of the voters’ rolls, declaration of results forms, and tally sheets in respect of four polling stations, except the first page of the voters’ roll and the declaration of results form for Katoojo I polling station. Without any elaboration, I was not able to detect in what way the results did not tally with the register of voters.

Ndomugenyi Robert went to Bushenyi and Mbarara Districts on a similar errand. At Bushenyi he had ballot boxes of three polling stations opened. He took photocopies of declaration of results forms and voters’ rolls from the ballot boxes. He annexed them to his affidavit. One of the three polling stations was Ishaka Adventist College, in respect of which the Petitioner had asserted that the result form showed ballot stuffing. He did not make any comment on what he found in that box or in the other two. At Mbarara he also had ballot boxes for four polling stations opened for him. He obtained photocopies of similar documents, and in addition, tally sheets reflecting particulars for those three polling stations. He also annexed those photocopies to his affidavit. He commented on only one of the four polling stations thus:

“That at Mirongo the number of voters on voters register who voted were 687 and yet the tally sheet certified by the electoral Commission indicates that Respondent alone got 781 votes more than the number of people who voted.”

I assume he determined the number of those who voted by counting from the roll, the registered names which were ticked. That however, is not full-proof. The difference of 94 votes could be a result of illegal ballot stuffing, just as it could result from omission to tick names of 94 persons who voted. The more reliable way to ascertain the cause of the discrepancy, would have been to examine whether or not the serial numbers of the ballot papers in that ballot box matched the serial numbers of the ballot papers officially issued to the polling station as had been suggested by the Petitioner in his affidavit. The opportunity was lost.

ISSUE NO. 4:

The fourth framed issue was:

“Whether an illegal practice or any other offence under the said Act was committed in connection with the said election, by the 1st Respondent personally or with his knowledge and consent or approval”

This arose from the pleading in the petition, that the 1st Respondent had committed several illegal practices and other offences under the Act, in connection with the election, which pleadings the 1st Respondent denied. I answered this issue also in the negative. Before I elaborate on my reasons, let me dispose of three general propositions made in submissions of learned counsel on both sides. The first made by Mr. Walubiri for the Petitioner, relates to liability of the 1st Respondent for illegal practices or offences committed by his agents for his benefit. Learned counsel contended that a candidate is liable for an illegal practice or offence committed by his agent in the course of promoting the candidate’s election. He relied on English precedents to submit that even where an agent is expressly prohibited to do an act, but does it anyway, in the course of his agency, and within the scope of his authority, the candidate is bound because knowledge is inferred from the appointment and consent is implied. He referred the Court, inter alia, to The Digest: Annotated British Commonwealth and European Cases (1982, London, Butterworth’s & Co.) Vol. 20 at p.72 para 646. With due respect I was not persuaded that the annoted decisions in that work were applying law similar to the statutory provision in s.58(6) (C) of the Act. For example, in the particular paragraph learned counsel cited Lush J., is quoted as saying in HARWICH CASE. TOMLINE vs. TYLER (1880) 44 LT 187:

“……….As regards the seat, the candidate is responsible for all the misdeeds of his agent committed within the scope of his authority, although they were done against his express directions, and even in defiance of them The authority may be actual or it may be implied from circumstances If a person were appointed or accepted as agent for canvassing generally the candidate would lose his seat.”

In the same work at p.71, paragraph 644 is a quotation from Willes J. in BLACKBURN CASE, POTTER & FIELDEN vs. HORNBY FIELDEN (1869) 20 L.T, 829, saying:

“……….no matter how clearly his (candidate’s) character may be from any imputation of corrupt practice in the matter (election), yet if an authorised agent of his, a person who has been set in motion by him to conduct the election, or canvass voters on his behalf, is in the course of this agency guilty of corrupt practices, an election obtained under such circumstances cannot be maintained.”

To hold that those propositions fit within the ambit of the provision in S.58 (6) (c) of the Act, would, in my view, be tantamount to re-writing the provision. Under that section, it is clear that an illegal practice or other offence which was not committed by the candidate can be sustained as a ground for annulment of his election, only if it is proved to the satisfaction of the Court that it was committed with the candidate’s “knowledge and consent,” or with his or her “knowledge and approval.” I do not see how the Court can be so satisfied where the candidate expressly directed the illegal practice not to be done, thereby refusing to consent thereto. To my understanding the legislature chose to use those words in order to limit the application of the sanction to only such an illegal practice or offence as the candidate assumed personal responsibility for, either through consent where he or she had prior knowledge, or through approval upon subsequent knowledge, of its being committed. It is noteworthy that the operation of the provision is not tagged to the relationship between the candidate and the perpetrator of the offence, but to the candidate’s knowledge of, and consent to, or approval of, the commission of the offence. My interpretation is that the provision is not a restatement of the common law doctrine of vicarious liability or the principle of agency.

The second proposition was by Dr. Byamugisha the first lead counsel for the 1st Respondent, and can be stated briefly. He contended that the 1st Respondent, as a candidate at the election, should not be held responsible for acts of the Government or of government agents, for purposes of S.58 (6) (C) of the Act. With due respect to learned counsel, I do not find that to be tenable. The Constitution permits an incumbent President to run for a second term through contesting an election while he is still holding office. It does not thereby split him into two distinct persons. A suggestion that an act done by Government or its agents with the 1st Respondent’s knowledge and consent or approval as Head of that Government, was done without his knowledge and consent or approval as a candidate, cannot be sustained as a matter of law or a matter of fact. The incumbent President is allowed by law to retain and use his facilities of office while contesting the elections as a candidate. He must also, as such candidate, take full responsibility, for what he does and what is done with his knowledge and consent or approval by virtue of that office, in connection with the election.

The third proposition was Dr. Byamugisha’s contention that proof that an elected candidate committed an illegal practice or other offence, under the Act, was not per se sufficient ground to annul a Presidential election, unless it is shown that the illegal practice or offence rendered the election unfree and/or unfair. His premise for that contention was that an election which is free and fair, in accordance with Art. 1 (4) of the Constitution, is a valid election. He argued that the only Constitutional requirement for validity of an election was that it be free and fair. According to him any other condition imposed for validity of an election, would be inconsistent with Art.1 (4), and to that extent would be void by virtue of Art.2.of the Constitution. I was not persuaded by that argument either. Art. 1 (4) of the Constitution cannot, by any stretch of interpretation, be construed as laying down “specifications” for a valid election. The provision is a statement on how the people shall express their will and consent. It reads:

“(4) The people shall express their will and consent on who shall govern them and how they should be governed through regular, free and fair elections of their representatives or through referenda.”

The framers of the Constitution did not expressly or by implication mean by that provision, that once the will and consent of the people is expressed in that manner, the result would become inviolable or unimpeachable. On the contrary in Art.104 (9) of the Constitution, Parliament was, without any restrictions or conditions, mandated to make laws, inter al/a, for grounds of annulment of a Presidential election. Parliament, acting within that mandate made the law in S.58(6) and clearly provided in paragraph (c) that a successful candidate who committed an illegal practice or an offence in connection with the election, would, without more, be barred from taking office. This is where Parliament, if I may use the expression, put value above all other considerations. The effect of the legislation in paragraphs (b) and (C) of S.58 (6) of the Act, is to prohibit a candidate who may have been chosen by the majority, from taking office on grounds of personal unfitness. Parliament in those paragraphs provided that a person who was not qualified or was disqualified, and a person who committed an illegal practice or other offence under the Act, ought not to take the office of President, notwithstanding that the election may otherwise have been conducted in compliance with provisions and principles laid down under the Act; and irrespective of whether or not the disqualification or the illegal practice affected the result of the election.

Illegal Practices and Offences:

I now turn to the matters which were pleaded in paragraphs 3(2) (a) to (e) of the petition, as constituting the illegal practices and offences, committed by the 1st Respondent or by others with his knowledge and consent or approval. In summary they were that the 1st Respondent:

(a) made a false statement that the Petitioner was a victim of AIDS, contrary to S.65 of the Act;

(b) gave and offered gifts to induce voters, contrary to S.63 of the Act;

(c) appointed partisan military officers to take charge of security and deployed a partisan section of the army all over the country, contrary to S. 12 (1) (e) and (f) of the Commission Act;

(d) organised groups under PPU and a Senior Presidential Advisor to use force and violence, contrary to S.25 (b) of the Act

(e) threatened the Petitioner with death contrary to S.25(e) of the Act.

I found that the pleadings, under paragraph (c) (d) and (e), were misconceived and/or were not seriously canvassed during the trial. I will comment on them first, starting with the appointment and deployment of partisan officers and a partisan section of the army. There was no evidence adduced to prove that the military officers appointed to take charge of security, were “partisan”, and/or “that a partisan section of the army” was deployed all over the country. It was not even explained what was meant by partisan officers and partisan section of the army. Secondly, neither the said appointment nor the said deployment contravened provisions of S.12(1) (e) and (f) of the Commission Act, which provisions set out powers of the Commission to ensure that there are conditions of freedom, fairness and security for the conduct of elections. Apart from making the assertion in the petition and the accompanying affidavit, the Petitioner did not adduce evidence about the said appointment and deployment except annexing to his affidavit the Army Commander’s press release on the subject.

The direct evidence which the Court received on the subject, was from the 1st Respondent, the Army Commander, and the Inspector — General of Police. In a nutshell it was to the following effect. In January 2001, because of apprehension that there would be a rise in election related crime, Government decided to supplement the inadequate police capability, as had been done on previous important national events. A National Security Task Force comprising the Police, Army, LDUs and Intelligence agencies, to oversee and manage security in the country during the electoral process, was set up with a joint command. At the national level it was under the chairmanship of the Army Commander. At the district level, the District Police Commander was the overall in charge of security. The Army Commander’s press release dated 9th March which was annexed to the Petitioner’s affidavit reiterated the foregoing and endeavoured to justify it. It was apparently reacting to what he called “the contention by some presidential candidates.” In it, he assured that the army would not be involved in election activities but would be a stand-by force.

On basis of that evidence, Mr. Walubiri argued that a case was made out that the 1st Respondent was liable for an illegal practice or offence. Learned counsel premised the argument on two contentions. First he contended that as a matter of evidence it had been proved that the deployment of the army, far from ensuring security, had become the source of insecurity. Secondly he contended that, as a matter of law, the deployment of the army had been illegal. He argued that the 1st Respondent was responsible for the illegal deployment, as well as for the insecurity caused by the army personnel so deployed.

In support of his first contention, (which I understood to relate to the army excluding PPU), learned counsel relied on affidavits of nine deponents. Two of those he mentioned, however, were irrelevant. Anteli Twahirwa and Sande Wilson, both of the Petitioner’s Kabale Task Force, did not say anything on insecurity caused by the army. Affidavits of John Kijumba of Bukonzo West, and Kimumwe Ibrahim of Bukoli South were so trivial; I need not review them here. As for Mary Semambo, Chairperson of the Petitioner’s Mbarara Task Force, despite claiming to have sworn from her knowledge, what she deponed in paragraph 6 of her affidavit, on the occurrences in “many polling stations in Nyabushozi and Isingiro” were clearly inadmissible hearsay gathered from agents. Suliman Niiro of Bukoli North, in Bugiri, and Baguma John Henry of Bukonzo West, in Kasese, witnessed soldiers from RDC’s office or with RDC, involved in irregular voting not causing insecurity. The witnesses he referred to, whose evidence has some bearing on insecurity caused by soldiers were Alex Busingye, the Petitioner’s overseer in Kazo County Mbarara, and Masasiro Stephen, Petitioner’s polling agent at Nkusi Primary School polling station in Bungokho, Mbale. The former deponed that at Nkungu polling station he saw a monitor who had been tied up and bundled on a pick-up Reg. No.114 UBS in which UPDF soldiers were travelling. That evidence, however, was refuted by Mbabazi Kalinda, the Presiding Officer at that polling station who deponed that he did not witness anyone tied, and that Alex Busingye was polling agent at the station and did not report the incident. The incident at Nkusi Primary School is more serious as it involves allegation of shooting at a polling station. According to Masasaro, after 12 voters who had turned up, had peacefully cast their votes, the area Sub-county Chief, a Councilor, and the 1st Respondent’s area task force Chairman arrived, escorted by four armed soldiers. The soldiers shot in the air and the said officials started stuffing ballot papers in the ballot box. Upon protesting, the deponent and his colleague were severely assaulted. That evidence was also disputed by the Sub-county Chief who deponed that he had gone to that station in response to a report that the said Masasiro was obstructing women from voting. Although I believed the evidence of Alex Busingye and of Masasiro, I did not share learned counsel’s view that, that evidence supported his contention. To my mind, the incidents described, did not arise from the deployment of the army, and could hardly be described as acts of insecurity committed with the knowledge and consent or approval of the 1st Respondent.

On the contention that the deployment of the army was not authorised by law, learned counsel went to great length to show that previous deployments, mentioned by the Army Commander and the Inspector — General of Police were bad precedents, since they too had not been authorised by the law governing the events in question. He stressed that deploying the military in civilian police work, other than during emergency declared in accordance with the Constitution, is illegal. I don’t find it necessary to discuss that contention here because, in my view, it was a red herring. Whether the deployment was unconstitutional was not subject of inquiry in this trial. What was relevant under this issue was whether deployment of the army in the manner that it was deployed, constituted an illegal practice or other offence under the Act. Counsel did not point to any illegal practice or offence under the Act that was committed by the act of the deployment; and I was not able to find any. My conclusion therefore, is that both as a matter of evidence, and as a matter of law, it was not shown that the