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

“I know the place.” When Haji Okodel arrived and the Presiding Officer introduced Emokol to him, Okodel asked him to leave the Polling Station. He resisted. Okodel then warned him that if the Petitioner lost in the elections, Emokol would have to leave the area. Okodel ordered one Iporut, the Petitioner’s agent, to remove his shoes and sent him away from the Polling Station which Iporut obliged. Up to the date of the affidavit, Iporut’s whereabouts were not known.

Haji Umari Okodel is the L.C.5 Chairman, Kumi District. In his rebuttal affidavit of 2-4-2001, he said that he did not know any person by the name of Ediba Justine Emokol. He had never met or interacted with him. What Emokol had said in his affidavit was false. It was not true that he ordered Iporut to remove his shoes, nor sent him away from a Polling Station. Nor did he monitor ticking of votes in the basin. On 12-03-2001, he did not visit any Polling Station in which Emokol was a Polling agent. Okodel did not say why Emokol should have invented the allegations he had made out of the blue if they were all false. On the other hand, Okodel would have every reason for denying having done what was alleged against him.

I think that his denials are not true. I would accept Emokol’s evidence as true, and I do.

Dan Okello from Lira District was an aspiring candidate in the Parliamentary elections due in a few months’ time. During the 2001 Presidential elections, he was campaigning for the Petitioner.

On the evening of 11-03-2001, while he was in Lira Town, he was informed by one Okello, son of Ojok that Lt. Col. Tony Otoa, M.P, had instructed the Commandant of Aromo UPDF detach to arrest him and other people who did not support the 1st Respondent. That night he slept in Lira. On the morning of 12-03-2001, as Dan Okello and one Saul Okor were approaching Aromo Sub County Headquarters where his Polling Station was located, they met the Commandant Aromo UPDF detach, Sgt. Sempijja who was a passenger on the motor cycle of Aromo Sub-County Chief. The UPDF Commandant waved Okello Dan to stop. He begged the Commandant to first let him drop Okor at his home. He agreed and Okello rode ahead of him and the Sub-County Chief. As Okello slowed down in Aromo Trading Centre, many people warned him that he was being hunted to be arrested. He turned round and rode straight back to Lira, where he reported his intended arrest to the District Police Commander.

He made and recorded a statement. He also informed the Lira RDC about the incident. When Dan Okello and Okor were returning to Aromo, they met the UPDF Commandant at 3.30 p.m. They were taken to Walela Polling Station, where Okello was locked inside the double Cabin Pick-up, guarded by one soldier and Okor on the back of the vehicle guarded by 4 UPDF soldiers. They were kept at Walela Polling Station up to 6.00 p.m. after which they were driven to Ayile P.7 School Polling Station, three kilometers from Walela. They were next taken to Aromo UPDF detach. Okello was released at 10.00 p.m. leaving his friend Okor detained with Okello’s motor cycle. On 1 3-03-2001, Okello again reported about his arrest and detention to the Lira District Police Commander.

Emoding Anthony SP is the DPC of Lira. He rebutted Dan Okello’s affidavit. In his rebuttal affidavit dated 1 4-2001, he said that Okello went to Lira Police Station and reported to him about an alleged impending arrest by one Sempijja, Commandant of Aromo UPDF Detach. He wrote to the Commandant to allow Okello to vote. It was not true that Okello recorded a statement with Emoding or that Okello returned to the Police Station on 13-03-2001.

Sgt. Sempijja Gerald also rebutted Dan Okello’s affidavit. In his rebuttal affidavit of 15-04-2001, he deponed that he was the Commandant of Aromo UPDF detatch. On 11-03-2001, he received intelligence report that Okello was mobilizing voters to create insecurity during the elections. He reported the matter to the Commanding Officer Major Byuma of Aromo UPDF detach. On 11-03-2001, at about 5.00 p.m. Okello Dan went with a note from the DPC Lira requesting him to allow Okello to vote. He did not refuse Okello to vote. He did not arrest Okello at any time and did not visit Walela Polling Station. He voted at Otala Polling Station, about ten miles from Walela Polling Station, and returned to Aromo detach. Sempijja’s blanket denial of what Okello said in his affidavit means that Okello invented the detailed story he narrated in his affidavit, including making reports to the Police twice.

Further, Sempijja did not say what happened to the report he made (if he did) to Major Byuma that Okello had been mobilizing voters to create insecurity, which was a serious criminal conduct on Okello’s part, if that was true. I do not believe that a person engaged in criminal activities, which Sempijja alleged Okello was doing, would seek assistance from the Police in order to go and cast his vote, which Okello did twice. On the other hand, if what Okello alleged against Sempijja was true, the latter would be keen to deny it, because it amounted to a criminal conduct from which a UPDF Sergeant would want to disassociate himself.

Emodong Anthony’s affidavit evidence corroborates Dan Okello in material particulars, except the one to the effect that Okello again reported at Lira Police Station on 13-03-2001. Emodong did not refer to the allegation of mobilizing voters to cause insecurity by Okello, made against him by Sempijja. If there was any truth in that allegation, Sempijja or his boss, would have reported it to Police in Lira, and Emodong would have known. In the circumstances I believe Okello’s evidence and reject that of Sempijja as false.

Oshale Edmond of Kebu Zone, Kulait, Kwapa Sub-County, Tororo District, was the Petitioner’s election monitor for Kwapa Sub-County. On 12-03-2001, he went to Kwapa Sub-County Headquarters Polling Station. He found there the GISO of Kwapa Sub-County, amongst others, who were later joined by the Chairman of LC.3 of Kwapa. The LC3 briefly talked to the GISO and went away. Shortly thereafter the O.C. Police, Malaba arrived in a Patrol vehicle, called the GISO aside and talked to him. The GISO called Oshale to the vehicle and he was ordered to enter it. When Oshale asked why, he was bundled on the vehicle and driven to Tororo Police Station, where he was released on Police bond on alleged charges of preventing people from voting vide Police reference No. SD2O/1213/2001. Subsequently when he went back to the Police, as he was required to do, he was told that he had been cleared and that he had no case at the Police. Oshale said that he swore his affidavit because he was unduly arrested by security operatives and the L.C.3 Kwapa, prevented him from carrying out his task of monitoring elections on Polling day, detained in Police cell and released without being charged.

Gidoi Andrew A.S.P. is the 0.C. — Malaba Police Station. He rebutted Oshale’s affidavit. In his rebuttal affidavit of 3-4-2001, he said that on 12-03-2001, he was on his routine checkup of Polling Stations in Tororo County, Tororo District. At 11 .30 a.m. he went to Kwapa Sub-County Headquarters Polling Station, where the GISO in charge of security informed him that Oshale was preventing some people from voting, especially the elderly by saying that polling on 12-03-2001, was for the Petitioner only. The polling for 1st Respondent was on 13-03-2001, so, they should go back. Thereafter, Gidoi arrested him and put him on the vehicle and took him to Tororo Central Police Station. He left him at the reception desk to make a statement for investigation. I find Gidoi’s a very unlikely story. Normally in Criminal investigation, it is not the suspect who makes the First Statement to the police, it is usually a witness or the complainant who makes the first statement to the Police stating what crime the suspect is alleged to have committed.

In the case under consideration, it is the GISO or somebody who witnessed what Oshale was allegedly to have done who should have accompanied Oshale to Tororo Police Station and laid a complaint against Oshale. As it is nothing of the sort happened. Gidoi dumped Oshale at the counter without apparently writing a statement. He was not a witness to the alleged incident. In the circumstances, I do not believe Gidoi’s affidavit evidence. I prefer that of Oshale which I accept to be the true version of events on the occasion in question.

Oketcho Yusuf of Central Parish Tororo Municipality in Tororo District was a supporter of the Petitioner. On 2602-2001, when the 1st Respondent went to Tororo on his campaign trail, Oketcho was around Bata Shoe Shop in Tororo Town. He was standing under one of the small trees there. A procession led by a Band came from Mbale Road marching towards the main round-about. A man in civilian clothes stopped where Oketcho was and ordered him to pull down the Petitioner’s poster pasted on a box hanging up nearby. Oketcho refused, telling the person that he did not know who put the poster up, so he could not pull it down. The same man grabbed Oketcho by his trousers on the waist and pulled him up to Gloria Hotel where there was a yellow Movement Bus. The man pushed Oketcho into the bus where he found men in army uniform, one of who right away hit him on the head and he began bleeding. The driver drove the bus around town with Oketcho inside and finally went to Rock View Primary School. At that school Oketcho with many persons who had also been arrested were tortured and some were released. Oketcho and another person who had sustained serious cuts on the head with blood stains were taken to Tororo police station. While at the police station strange people went in the company of DPC Tororo, called Oketcho and the other man and took their statements. They were released after 8 hours in police cell without being charged with any offence. Due to the incident Oketcho and other supporters of the Petitioner felt threatened and intimidated and could not continue canvassing for support for their candidate any more. Oketcho then said that he swore his affidavit due to the fact that he was arrested, tortured and detained by armed men moving with the 1st Respondent during his campaign trial. The affidavit is based on knowledge and belief. Since the witness deponed to only what happened to him and what he witnessed, belief is irrelevant. The Chart does not show that Oketcho’s affidavit is rebutted. His evidence therefore, stands uncontroverted and I accept it as true.

The affidavit of Imoni Steven has already been considered in another context. It is also relevant to the issue of threats and intimidation of the Petitioner’s supporters and agents. He said, inter alia, that the LC 3 chairman Alfred Obore returned to Mella Polling Station and cocked his gun and ordered everybody to disappear. All ran away except the Polling officials. I also considered Obore’s rebuttal affidavit. I accepted Imoni’s affidavit evidence and rejected Obore’s, giving my reason for doing so.

Okware Steven of Amagoro “A” village, Amoni parish, Kwapa, Tororo said in his affidavit of 22-03-2001 that he was the Petitioner’s polling agent at Amoni Primary School polling station. On 12-03-2001 at 2.30 p.m. Alfred Obore, the LC3 chairman for Kwapa went to the polling station and ordered everybody at the Polling Station to disappear. When some people tried to resist his orders he went to his car parked nearby, picked a gun and shot twice in the air. By that time most voters had ran away in fear except the polling officials. The agents of the various candidates including Okware took cover within the polling station. The LC3 chairman then got a bundle of ballot papers from his car and stuffed them in the ballot box. After Okware and his colleague informed their task force in Tororo, the chairman LC5 Eric Nabala arrived with Kwapa LC5 Councilor Jane Emokol and some Police Officers at the Polling Station and Okware and his colleague explained what had happened. The ballot papers were counted and tallied and 40 extra ballot papers were found to be for the 1st Respondent. Okware and other candidates’ agents asked the Presiding Officer to disregard the extra ballot papers but Nabala and the LC3 chairman, Obore, refused and the ballot papers in question were counted with the rest. At the end of the day 140 ballot papers remained unused. The Polling agents asked the Presiding Officer to record their serial numbers but Nabala and Obore said categorically that it was not their business. The affidavit was based on knowledge and belief but since the deponent said wholly what he had witnessed, belief was irrelevant.

Nabala Mudanye Eric rebutted Okware’s affidavit. In his rebuttal affidavit dated 3-4-2001 Nabala said that he was the LC5 chairperson of Tororo District and the Chairman of the 1st Respondent’s task force for Tororo District. The sub- county task force Chairman informed him on the telephone that some unruly youths were trying to vote more than once at Amoni Primary School polling station. He went to the Polling Station with the some Policemen. He found that the youths detested the continued presence of Obore the 1st Respondent’s sub- County Task Force Chairman, who was monitoring agent for the 1st Respondent. He asked Obore to leave the Polling Station. He did not see any of the youths vote. From the time he arrived at the polling station the voting and counting of votes went on transparently, and all the polling agents of the candidates signed the declaration forms without any mention of the anomalies laid out in Okware’s affidavit.

Nabala said nothing about Okware’s allegation that Obore ordered everybody at the polling station to disappear and that Obore tired his gun in the air and stuffed the ballot box. This is not surprising because Nabala arrived after the incident had already happened. His affidavit states what happened after his arrival. It does not therefore rebut Okware’s evidence of threat and intimidation by Obore. Nabala did not mention whether he found Okware at the Polling

Station which he should have done in view of what Okware said happened after Nabala’s arrival. Nabala denied Okware’s allegations about a dispute over 40 extra ballot papers. It would be unthinkable for Nabala to admit that he and the LC3 Chairman were involved in such an electoral malpractice. I do not therefore, accept his denials. I would prefer Okware’s version of events to Nabala’s and I do so.

Harman Rashid of Wobulenzi Trading Centre, Luwero District was the Petitioner’s Polling agents at Kilangazi, a Polling Station in Ngoma, Nakaseke County. He said in his affidavit that on 12-03-2001, Major Bwende a member of the UPDF arrived at Kilangazi Polling Station, threatened Rashid and ordered him to go away. He did so for his personal safety. Consequently, Rashid was unable to witness the counting of votes,

Major Jero Bwende rebutted Rashid’s affidavit. He denied that he threatened and ordered Rashid out of Kilanguzi “A” Polling Station, because he did not go to that Polling Station that day. Bwende said that he cast his vote at Ngoma ‘A — M” Polling Station, after which he went to the Trading Centre. He left Ngoma Town at 20.00 hours and returned home. He did not know Harman Rashid.

I have already discussed Rashid’s affidavit and Bwende’s rebuttal affidavit in another context in this judgment. What I said there equally applies here. Briefly I do not see why Rashid invented such a serious accusation against Bwende Out of the blue.

Secondly, Bwende would not be expected to admit Rashid’s allegation against him if it was true. In the circumstances, I prefer Rashid’s version of the event to Bwende’s denial.

In this judgment, I have already referred to the affidavit of Kimumwe Ibrahim, in which he alleged that he was harassed by eleven soldiers when he was going to Namayengo Polling Station in Bukoli South Constituency, Bugiri District.

Another witness whose affidavit I have already dealt with is Suliman Niiro, of Bukooli North Constituency. He said that soldiers from the office of the Bugiri RDC’s office went threatening and forced under-aged children to vote at Bus Park “A” Polling Station. Members of the armed forces also chased away the Petitioner’s Polling agents for about four hours. The affidavits of these two witnesses were rebutted by Ms. Nava Nabaagesera. I considered the rebuttal affidavit and found it not credible, giving my reasons for doing so.

The affidavit of Baguma John Henry has also been dealt with. He was the Petitioner’s monitor for Bukonjo County in Kasese District. He went to Musasa Polling Station on 12-03-2001. When he protested against electoral malpractices, he was overpowered after he had been threatened with death by a soldier in charge of operations at Nyabirengo Army Battalion Headquarters. Major Muhindo Mawa also threatened to kill him if he continued with his “nuisance” about soldiers voting at more than one polling station.

Aggrey Mwami, Kasese Deputy RDC based in Bwera, rebutted Baguma’s affidavit, but his rebuttal affidavit did not refer to Baguma’s statement that he was threatened with death by a soldier and Major Muhindo. The Chart also shows that the affidavit of Baguma is rebutted by Munywami Johnson and Maj. Mawa Muhindo on pages 270 and 53 respectively of the 1st Respondent’s volume of affidavit. Those pages, in fact, contain affidavits sworn by other witnesses and are irrelevant to Baguma’s affidavit. Page 270 contains the affidavit of Achaga Safi, and page 53, the affidavit of Livingston Tenywa. So, I have been unable to trace the rebuttal affidavits of Munywani Johnson and Maj. Mawa Muhindo.

Peter Byomanyire of Bugarama Bisheeshe, Ibanda, was the Petitioner’s campaign agent coordinating Mbarara and Kamwenge Districts. In his affidavit dated 21- 03-2001, he deponed that on 16-02-2001, at about 5.00 p.m., after the Petitioner had finished addressing a campaign rally at Kamwenge, the Petitioner’s supporters met a mob of the 1st Respondent’s supporters armed with stones, bricks and sticks who started beating the Petitioner’s supporters. They were shouting “Kill Besigye’s supporters” The victims were pursued until they reached Kamwenge Police Station, where they took refuge and reported the incident. The Police went to the town to rescue others. On that day Byomanyire was very badly beaten and had to go for medical treatment. A copy of his medical treatment note is attached to his affidavit. The injuries described therein are consistent with assault. Byomanyire went on to say that on 8-3-2001, he and James Birungiozo went to Mahyoroto to consult with the Petitioner’s agents. While they were there, they were surrounded by five armed and uniformed UPDF soldiers, who ordered them to leave the area. They were forced to leave without consulting their agents. On the same day Byomanyire and Ozo found Captain Kenkiriho, the Commanding Officer of Bihanga, with two escort soldiers. Ozo was dressed in a T-Shirt for the Petitioner’s campaign. When the Captain sighted them, he asked whether he was the James Birungi Ozo, the campaign agent for the Petitioner. When Ozo answered in the affirmative, Kankiriho ordered him to leave the place. As Ozo was leaving, the Captain pulled his pistol and fired at Ozo, but, fortunately, the bullet missed him. Byomanyire and Ozo ran to the Police Station to report the incident. They met a Policeman on the way, to whom they reported what had happened. Thereafter the Captain moved around in Town, tearing down the Petitioner’s posters where-ever he saw them. That very night, Byomanyire said, he heard six gun shots. The following day, he went to Mbarara to inform the Petitioner’s Task Force of what had happened. On 12-03-2001, Byamanyire was over-seeing operations of the Petitioner’s Polling agents in Bukanga. In Busheka, I and Busheka II Polling Stations in Rugaaga, he found that the Petitioner’s Polling agents had been chased away from the enclosed place for the polling stations and were allowed to see from a distance of 30 meters. Byomanyire was confronted by one Barnabas Tinkamanyire, who was armed, and told Byomanyire that he was a security officer. When Byomanyire asked him why the Petitioner’s agents were seated where they could not observe what was going on at the tables, Tinkamanyire ordered Byomanyire to leave the place. When he reached Kamwema in Endizi Sub-County, they saw that the LCII Chairman of the area was the one ticking for voters on the first table, and the voters were only told to take the ticked ballot papers to the ballot box. Byomanyire proceeded to various Polling Stations in Ngaroma Sub-County, where he found people complaining that they had found their names already ticked as having voted, when, in fact, they had not.

The affidavit was based on knowledge and belief. As the deponent spoke of what he witnessed, belief is irrelevant. The Chart does not show that Byomanyire’s affidavit was rebutted. His evidence, therefore, stands uncontroverted. I accept it.

The affidavit of Fazil Masinde has already been referred to in another context in this judgment. He was the Petitioner’s monitor for seven polling stations in Mayuge District. He said that at Busakira “B” Polling Stations one Ahmed Gesa, a GISO was issuing Voters’ Cards and directing people to vote for the 1st Respondent and threatening that if they did not do so, they would see.

At Kaluba Polling Station, fifteen (15) voters who were not on the Voters’ Register were allowed to vote. The affidavit was based on knowledge and belief. Since Masinde deponed to what he witnessed, belief was irrelevant.

Gesa Ahmed and Mudaaki Emmanuel rebutted the affidavit of Fazil Masinde. I have already considered their rebuttal affidavits in this judgment and rejected their affidavit evidence, giving my reason for doing so. I accept Masinde’s evidence that Ahmed Gesa, GISO, threatened voters that if they did not vote for the 1st Respondent, they would see an expression which means that if the person to whom it is directed does not do as he/she is told the consequences would not be good for the person.

Tukahirwa David is another witness to whose affidavit I have already referred in this judgment. He further said in his affidavit, dated 19-03-2001, that when he complained about the irregular manner in which the Presiding Officer was counting votes at Nsambya Polling Station, Busujju Parish, Kakindo Mubende District, the Presiding Officer said that the laws which he had on his desk did not allow him to show the ballot papers to the crowd assembled as he counted them. When Tukahirwa talked to other people who were visibly dissatisfied. One Makumbi said that people should keep quiet or else they would be arrested. Two uniformed soldiers with a walkie-talkie, one Magambo Anthony, an LCIII Chairman, and another security operative called Kasirye James, threatened to arrest anybody who challenged how the ballot papers were being counted. There was a pick-up parked nearby on which people arrested would be dumped. Thereafter, the Presiding Officer alone, counted the votes and the 1st Respondent’s agents got 303 votes, the Petitioner got 101 votes, Mayanja, 2 and the other candidates, nil.

Kirumira Edward rebutted Tukahirwa’s affidavit. Kirumira was the Polling agent for the 1st Respondent at the same polling station where Tukahirwa was. In his rebuttal affidavit, Kirumira denied that he saw any one called Makumbi, nor did he hear Makumbi threaten people with arrest. He said that it was not true that there were soldiers with a walkie talkie at the polling station. Nor did Kasirye threaten anyone; because Kasirye went to the polling station after 6.00 p.m. Kirumira further said that Anthony Magambo the Sub-County representative at the District Council did not threaten anybody with arrest. He cast his vote and went away. Kirumira said that his evidence could be confirmed by Bernabas Mutwe, the Presiding Officer and Nsubuga Joseph, the Polling Constable. The Chart does not show that Mutwe and Nsubuga swore any rebuttal affidavit. I have considered the affidavit evidence of Tukahirwa and Kirumira. As I have said before about the said affidavits, I prefer the version of events as deponed to by Tukahirwa to that said by Kirumira. The same reasons I gave then are equally valid on this occasion.

Byekwaso Francis, of Ntete Village Nakasenyi, Lwebitakuli, Mawogola, Sembabule District was a polling agent for the Petitioner at Ntete Polling Station. In his affidavit of 19-03-2001, he said that the Presiding Officer, Betty Twine, who was also the Vice Chairperson for the 1st Respondent’s Task Force in Lwebitakuli Sub-County, ordered Byekwaso and Nakiganda Pellagia, who was also the Petitioner’s Polling agent, to sit at about 10 meters away from her desk, which prevented them from scrutinizing Voters’ Cards and names in the Voters’ Register. When Byekwaso complained, the Presiding Officer said that she had powers to order them to sit at any distance. The Presiding Officer would expressly ask each voter in the queue the candidate he or she wanted to vote for and would call the 1st Respondent’s agents to guide the voters on how to vote. Byekwaso was called once to guide a voter who wanted to vote for the Petitioner. Byekwaso said that in several instances agents for the 1st Respondent would tick ballot papers on behalf of the voters. When Byekwaso again complained, the Presiding Officer said that since no civic education had been conducted in the area prior to polling day, agents were supposed to guide their supporters, how to vote.

When one Bettina Kugumikiriza, Byekwaso’s colleague, arrived at the polling station and complained about being seated at a distance, the Nakasenyi Parish Chief, Byabarema Patrick, intervened and told Byekwaso and his colleague to move closer towards the Presiding Officer’s desk. Hon. Sam Kutesa, M.R, for Mawogola and a member of the 1st Respondent’s National Task Force arrived. He said that it was not allowed for polling agents to sit near the Presiding Officer. Byekwaso and Nakiganda went back. Immediately thereafter the DISC for Sembabule District, one Aliganyira Joseph, arrived with four other armed men, and ordered people who had already cast their votes to return to their homes. Some wondered why they were being chased away, but the DISC ordered for the arrest of those who were defying his orders. As a result, two people Kato of Katongo, Lwebitakuli, and Danson of Ntete were arrested. The rest disappeared. The GISO wanted to arrest Bettina Kugumikiriza because of the complaint the latter had made earlier, but he had already left. Byekwaso said that the conduct of the said DISC left him in a state of panic and he felt greatly insecure. Thereafter, the Presiding Officer started giving two or more ballot papers to some people from a heap she had already ticked and placed on her desk. The Chart does not show that Byekwaso’s affidavit was rebutted. His evidence therefore, stands uncontroverted. I accept it.

Robina Nadunga was registered to vote at Bugema