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

EVIDENCE ON VIOLENCE AND INTIMIDATION

I shall refer to evidence contained in the affidavits of the witnesses for both sides. Mr. James Musinguzi was the petitioner’s agent in charge of Rukungiri and Kanungu. I will latter in this judgment reproduce his affidavit. But the gist of it is as follows: -

He was a co-ordinator for the petitioner in south-western Uganda especially Rukungiri and Kanungu Districts. He and the team under him were “exposed to enormous intimidation, harassment and violence throughout the region where PPU soldiers had been heavily deployed “after the Petitioner had declared his candidature of the Presidency. Among the petitioner’s supporters who were intimidated or harassed are Richard Bashaija, Sam Kaguliro and Henry Kanyabitabo. These and others have sworn affidavits.

Musinguzi complained about harassment and intimidation by state agents like Gadi Butoro who was the Gomborora Internal Security officer (GISO) of Kihihi and a direct supporter of the first Respondent. This Butoro appears to have harassed and intimidated the Petitioner’s supporters and agents throughout the campaign period. Musinguzi made reports of intimidation to S. Okwaling the Regional Police Officer, (RPC) and the District Police Commander, (DPC). When these officers especially the RDC intervened, they were transferred immediately from the area the following day. This transfer, according to the Petitioner’s affidavit, was preceded the previous day, (3/3/2001), by the intervention by the UPDF and PPU in the campaign rallies of the petitioner. The invisible hand interested in the campaign must have been operating. Paragraphs 9 to 26 of the Petitioner’s affidavit explains the PPU’s brazen interference in the electioneering activities of the Petitioner which resulted into the shooting to death of Beronda, an innocent man, and the injuring of at least fifteen other innocent people. In his affidavit, the former IGP John Kisembo does not refer to this nasty incident nor does he explain why RPC Okwaling and the DPC were hurriedly transferred from such a volatile area where, apparently, the civilians had faith in the civil police. Petitioner’s evidence shows that the presence of PPU and the shooting and harassment had left the people gripped with fear and distress and this is reflected in the voting pattern.

On his part, Major General Odongo Jeje, in para 1 7 of his affidavit in support of the respondents described the matter in these words:-

“That in further response to paragraphs 18-19 of the Petitioner’s affidavit, I wish to state that on the 3rd March 2001, I received a report that there was a clash between groups of people in Rukungiri after the Petitioner had addressed a public Rally and in the process some members of the groups pelted stones, bottles and sticks at the soldiers and in the process of self-defence, one person was fatally wounded by a stray bullet”.

One can categorise this information as hearsay based on official reports. However taking that information on its face value, it is obvious that the Major-General is cautious about what he is prepared to tell us. He is not willing to tell us which group was pelting the soldiers and which soldiers were pelted and why the soldiers were there and why they were pelted. This leads to the inevitable inference that the senior army officers were partisan. Surely if there had been such a serious incident resulting in the death of a Uganda citizen, the Army Commander should have carried out or caused to be carried out investigations leading to remedial measures.

I find it convenient to refer to other matters about which Musinguzi deponed. Mr. Musinguzi in his affidavit shows that there were over- bloated (inflated) voters on registers in the region. This inflation of voters’ countrywide is now common knowledge and even the first respondent and, in veiled manner, Chairman Kasujja agreed.

Musinguzi indicates that following his group’s complaints about the inflation of voters’ registers, the commission half-heartedly attempted to correct the problem but never went far. The attempt appears to have been frustrated, presumably by some invincible hand. This speaks against the commission indicating the contravention of the PEA (provisions and principles of transparency). This is because according to the provisions of S.34 a voter must produce a voters’ card and his name must be on the voters roll before he is allowed to vote. This process enables elimination of impersonation. Ghost names are recipe for ballot stuffing.

On the voting day, Musinguzi witnessed malpractices. This included violent intimidation of voters, agents and supporters of the Petitioner; chasing away agents of the Petitioner from various Polling Stations where those agents were to look after the interests of the Petitioner. He witnessed and learnt of deliberate pre-ticking of ballot papers in favour of the first Respondent. The respondents described the affidavit of Musinguzi as hearsay with no ground for his belief in what he states. Unfortunately the respondents did not specify the paragraphs of his affidavit to which objection is made. Perhaps this was because of the stand taken by the respondents that once an affidavit contained hearsay, it was vitiated in its entirety. I have already said that in general this is a misconception. Multiple voting contravenes S.31; chasing away of polling agents is contrary to S.32 and because of S.32 (5) the agents must have official copies of voters registers.

I think that some paragraphs of Musinguzi’s affidavit contain some hearsay matters. But others are factual expressions of the personal experience of the witness (Musinguzi). There is, moreover, support of his evidence from many other witnesses, not only from Rukungiri and Kanungu region, but also from Ntungamwo, Kamwenge, Mbarara and other Districts. Witnesses who describe similar incidents from various districts are Orikiriza Livingstone, Levi Tugume, Sebarole, Major Rwabwoni Okwir, Arinaitwe Hope, S. Rukingo, Byaruhanga Frank,
S. Ndagigye who described the arrest, intimidation torture and terror in Rukungiri and Kanungu districts, Henry Muhwezi and Kiiza Davis who testify about terror and intimidation and harassment in Kamwenge District. Jomo Kashaija, B. Turyamusiime, R Matsiko wa Muchoori, Bagyenyi Grace, Mwebaze Robert Gariyo, Byaruhanga Frank are among witnesses who testify about intimidation, violence, torture, bribery irregularities, and voting malpractices in Nutungamwo and Mbarara Districts. Even in a District like Kampala, irregularities and intimidation was not lacking. This is spoken of by Ebulu Vicent (Mbuya), Mugerere Ahmada (arrested from Kalerwe, tortured and detained) and Bukenya Samuel (arrested, tortured and detained) at Mbuya. Mugalula Joseph talks about intimidation and bribing in Kayunga District. Magalula talks of intimidation by a Senior Army officer. I have not been persuaded that this witness told lies. The provisions of S.25 were contravened and we said so on 21/4/2001.

In his affidavit, Kakuru Sam supports Musinguzi about the reign of terror against and intimidation of the Petitioner’s agents and supporters in the area throughout the campaign period and on the voting day on which day PPU and GISO were so arrogant as to force policemen to tick ballot papers under the supervision of GISO men before the policemen cast their votes! What a humiliating exercise! Kakuru testified about the role played Deputy RDC, Lt. Mugisha Muhwezi in the whole exercise. Mugisha-Muhwezi denies this in his affidavit but I have not seen any sound reason to believe him. Kakuru again supports Musinguzi about the agents of the first Respondent who terrorised the area. These include Stephen Rujaga. There is the account given by Byaruhanga Frank. He together with Mr. Robert Sebunya from Mengo, Kampala were assigned by the Petitioner to address a rally at Bikurukuru in Bwambara Sub-county on 3/3/2001.

In his own words, Byaruhanga tells us this in part of his affidavit:-

“3. That on arrival, my driver Batuma was called aside by four (4) soldiers of the Presidential Protection Unit (PPU).

4. That the said PPU started beating the said driver on the pretext that no one else was supposed to campaign that day, other than Besigye.

5. That immediately thereafter the Task Force Area Chairman of Col (RTD) Dr. Besigye Kiiza, one Doma was caned and his shirt stripped off, by PPUs saying that it was a punishment for MOBLIZING and WELOCOMING us for the day’s campaign.

6. That the sub-county cashier was similarly called aside, by the PPUs and beaten for getting involved with Besigye support group, yet he was working with the Government.

7. That in the above circumstances, the PPUs started beating/harassing people and ordering them to disperse. The rally was in the result abandoned by people, me and the said Sebunya

Byaruhanga goes on to give more harrowing account of events in Rukungiri on the voting day.

For the Respondents, D/SP/Wamanya, swore an affidavit, claiming that Mugeere was arrested on suspicion of being a terrorist, taken on 20/2/2001 and released on the same day. The affidavit of Mugeere shows he was a supporter of the Petitioner and that he was arrested at night on 6/2/2001, taken and detained at Mbuya Military barracks where he was interrogated about which candidate he supported. He was detained and tortured before he was transferred to police who released him on police bond. It would be interesting to know what types of terrorism charges were contemplated against Mugeere. It is remarkable that D/SP Wamanya would release Mugeere soon after he is handed in by the militarily on terrorism charges. I prefer the story of Mugeere. He was detained because of supporting the Petitioner, and I so find. The police officer appears too cautious about the arrest of Mugeere, which suggests that he is not being honest about the cause of the arrest.

As I have stated elsewhere, I do not believe the evidence of Captain Ndahura. In paragraph 4 of his affidavit, he refers to the contents of the affidavits of B. Masiko, Kakuru Sam and Frank Byaruhanga as falsehoods. The good captain does not say or attempt to explain why these three witnesses, and, indeed the other 6 witnesses, of the Petitioner should tell lies against him and or his PPU soldiers. If his soldiers were always in camp, waiting for the first Respondent as President, how come that when Hon. Okwir Rwaboni was addressing a rally in Kanungu, Captain Ndahura deemed that rally to be illegal and he had the audacity to disperse it? What power did Captain Ndahura have to interfere with a political rally? I do not believe in what he denies. His deeds and terror were witnessed by too many witnesses, namely Bernard Masiko, Kakuru Sam, Frank Byaruhanga, Koko Medard, Hon. Rwaboni Okwir, J. Hassy Kasamunyu, Mpwabwooba Kalisiti, Bashaija Richard, Byomuhangi Kaguta, Mubangizi Dennis and James Musinguzi. Capt. Ndahura has not given the least reason why all these people should gang up to tell lies against him, the PPU or any other soldier under his guard. I believe that Captain Ndahura and the PPU were in Rukungiri and Kanungu osintensibly to wait for the President but their real purpose was interfering with the electioneering programmes of the Petitioner. They were there for purposes of frustrating the support, which the Petitioner enjoyed in the area. The group was there to harass assault and intimidate agents and supporters or potential supporters of the Petitioner. The group achieved this and they effectively and brutally denied the Petitioner support from the region. The activities of the group violated with impunity various provisions and various principles of the PEA and the Constitution which says that all Ugandans shall have access to positions of leadership [Art.70 (1) (c)] and that elections should be held under conditions of freedom and fairness.

As I said, harassment or intimidation was not confined to Rukungiri and Kanungu. There is the evidence of harassment of supporters of the Petitioner in the districts of Kabale (see Anteri Twahirwa and Arinaitwe W.) Sande Wilson of Kabale complained about harassment to the CAO of Kabale who as Returning officer is the agent of the Commission. There is evidence that the Resident District Commissioner of Kabale, Mr. James Tumwesigye himself campaigned openly, on polling day, for the first Respondent. Mr. Tumwesigye threatened the agents and supporters of the Petitioner right up to the polling day itself when he urged all polling officials to violate the electoral law. It must be realised that Resident District Commissioners are direct appointees and are field representatives of the President. [Art.203 of the Constitution]. At the material time, the first Respondent was the President.

The evidence of Betty Kyimpaire, Patrick Kikomberwa and Moses Tibayendera all testify to the extreme harassment, violence, beating or assault of the agents and supporters of the Petitioner in Kamwenge District There is the evidence in affidavits of witnesses from among other Districts, Mbale District, from Pallisa District, from Mayuge District where agents and supporters of the Petitioner were severely harassed and beaten and denied voting on the voting day.

THE ROLE OF UGANDA PEOPLES DEFENCE FORCES (UPDF) AND THE PRESIDENTIAL PROTECTION UNIT (PPU)

The Respondents have spoken in support of the participation in the electoral process by the army and indeed the Presidential Protection Unit. This is based on the argument that the UPDF is supposed to co-operation with civilians especially in emergencies. Two reasons were advanced. First that the UPDF has, at various points in time in the past, been deployed during various national activities: such as the currency conversion exercise in 1987, the expansion of the National Resistance Council in 1989, the Resistance Councils elections in 1992, the Constituency Assembly elections in 1994 and the Presidential and Parliamentary elections of 1996. I consider this argument totally lacking in merit, in reason and in logic. It is not the role of the army to supervise civilian elections of any sort. My view is that those who advance such a reason do not want to entrust the management of civil or civilian affairs into the hands of apt civil institutions like the civil police who are trained specially for civilian work and are expected to deal with civilians appropriately. It is because of this that I find incredible the claim by the Commander of the Army and the Inspector General of Police that because the Polling Stations were more than the number of policemen and policewomen, therefore, the UPDF had to be deployed to assist the police, It is well known that the police force has existed in Uganda since before Independence. Various successive Governments have had the duty to improve and recruit so as to expand the police force. Ever since 1987 there have been elections of one sort or another. Since that time, the strength and inadequacies of the police force must have been known, or ought to have been known, by those in Government and in charge of electoral process. It was the duty of the Commission and the various organs of Government to plan for holding civil election with the help of civil police. Indeed why not train and involve prisons personnel for just one or two days. Why not involve Local Government askaris?

Since the promulgation of the 1995 Constitution in which the democratic principles are set out and elections for the President are known, periods when elections for the President would be held were predictable as were the possible number of Polling Stations as well as the strength of the police force. Therefore I can only say that perhaps by policy, the police was incapacitated. Nobody has explained why the police force has fewer policemen or why no emergency measures were taken to train, say Local Government askaris, to complement the civil police. I cannot therefore accept the argument that the UPDF and PPU were deployed because of deficiencies in the strength of the police force. That is an argument without any merit. I think that deployment of UPDF was deliberate, intended to interfere with electioneering activities of the Petitioner and his supporters as the evidence abundantly shows.

THE PRESIDENTIAL PROTECTION UNIT (PPU)

The other aspect of violence arises from the deployment during the presidential election campaign period of the Presidential Protection Unit (PPU) particularly in the districts of Rukungiri and Kanungu If the unit is supposed to protect the President, I find no sound basis for the deployment during the critical campaign period in areas beyond where the first Respondent was, or is, of the unit in the absence of the President in these districts. From evidence available I think that the Presidential Protection Unit was in these areas for the purposes of advancing the first Respondent’s campaign and to frustrate that of the Petitioner. Moreover if the members of the unit were for the purposes of protecting the President, why not confine them in barracks. Cpt. Ndahura claimed that the members of the unit were confined in one place on PPU duties. Yet in the same affidavit he, perhaps unwittingly, suggested that he and his detach helped to disperse an illegal rally. What powers did the PPU have to disperse a rally in which the 1st Respondent did not participate or was not expected to participate?

The violence and intimidation intensified so much that the petitioner and most of the other candidates were on 7/3/2001 forced to write a joint protest to chairman Hajji Aziz Kasujja. That letter forced the chairman to reply in his letter reference EC/1.6 dated 8th March 2000 (should be 2001).
I reproduce here below the two letters;

WRITTEN COMPLAINTS BY CANDIDATES

PRESIDENTIAL CANDIDATES CONSULTATIVE FORUM, 2001

C/o Crest House, Kampala Road, P. 0. Box 194, Kampala

Tel., 077-776600, 077-651131, 077-519302, 077-500461

March 7, 2001

The Chairman

Electoral Commission

KAMPALA.
Dear Hajji Aziz Kasujja,

RE. FLAWS IN THE PRESIDENTIAL ELECTORAL PROCESS, 2001

We the undersigned presidential candidates are writing to express our concern about the serious flaws in the on-going Presidential Electoral Process.

1. Security, Violence and Intimidation

As you are aware, President Museveni has deployed Major Gen. Jeje Odong, the Army Commander together with other senior army officers to take charge of security during the Presidential Electoral process. The President Protection Unit (PPU) has also been deployed in different parts of the country even where the security situation does not warrant it.

As you rightly pointed out in your communication to President Museveni as Commander in Chief of the armed forces, on 24th February, 2001, it is the duty of the Electoral Commission to ensure the security of the Presidential Electoral process and in pursuance of this responsibility the Electoral Commission entrusted the keeping of security during elections to the police. President Museveni’s act of deploying the military in this exercise has usurped the powers of the Electoral Commission and the police, who are by law responsible for security during any electoral process.

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.

2. Serious Flaws in the Electoral process

We have noted with great concern the delay in the issuance of the cleaned, final voter’s register and yet we have only 4 days to polling day. Furthermore voters are being issued with cards using a national voter’s register which is not final.

Following to the National Bureau of Statistics, Uganda cannot have more than 8.9 citizens of voting age and yet you have quoted a figure of 11.06 million voters on the basis of which voter’s cards have been printed and are being issued out.

We have evidence that the Electoral Commission and/or its contracted suppliers have printed blank voters’ cards which can be easily abused. We also draw your attention to the very poor quality of voters’ cards that can be easily reproduced.

In certain parts of Uganda such as Kampala City, there are less polling stations currently gazetted than those in the June 2000 Referendum.

To date we have not received any explanation about the reported intrusion, activities and identity of the culprits who entered the data processing centre of the Electoral Commission.

Public officers as Army Officers, RDCs, DISOs, GISOs, who are supposed to be nonpartisan under the law continue to campaign for candidate Museveni.

In view of the above stated flaws, we demand that you convene a meeting of Presidential candidates (and not their representatives), not later than Friday March 9th, 2001 to resolve

these serious and very urgent issues.

Signed:
……………………………….. ………………………
Dr. Col. (Rtd) Kiiza Besigye Aggrey S. Awori

……………….. ……………………

Chapa Karuhanga Kibirige Mayanja”

(Underlining supplied)

Clearly this letter raised very serious concerns about widespread violence, harassment, and intimidation in many parts of the country. The measure and effect of harm to the electoral process of each of the factors complained of is limitless. The chairman was prompted to reply as follows:

REPLY BY CHAIRMAN HAJI KASUJJA

THE REPUBLIC OF UGANDA

THE ELECTORAL COMMISSION

Fax: [phone]/241655 Plot 53/56 Jinja Road

Telephone: [phone]/255671 P. 0. Box 22678 KAMPALA

Our Ref EC/16 Date 8th March, 2000

Dr. Col. (Rtd.) Kiiza Besigye,

Presidential Candidate, 2001.

Mr. M. K. Mayanja,

Presidential Candidate, 2001.

Mr. Chapa Karubanga,

Presidential Candidate, 2001.

FLAWS IN THE PRESIDENTIAL ELECTIONS PROCESS. 2001

This is to acknowledge receipt of your letter dated March 7th, 2001 which was signed by

Presidential Candidates Dr. Col. (Rtd.) Kizza Besigye, Mr. Chapaa Karuhanga and Mr. M.
Kibirige Mayanja. You raised issues of violence, intimidation and serious flaws in the electoral
process. We wish to respond to these issues as follows: -

a. Security, Violence and Intimidation

The Electoral Commission in line with Section 20(1) (a) and (b) of the Presidential

Elections Act. 2001 has contacted the Police and other State Security Organs to provide during the entire campaign period, protection of each Candidate and adequate security at all meetings of Candidates. To this effect the Commission has availed Police protection to each Candidate at home and while travelling and addressing Campaign Rallies.

With regard to violence and intimidation, Electoral Commission has written to the Head of State as the Commander In Chief of the Armed Forces, to contain the Army and to the Inspector General of Police to ensure that the Police carry out their mandate as provided under Article 212 of the Constitution of Uganda.

It is incumbent upon the Police when necessary to seek reinforcement from other State Security Organs to contain any deteriorating security situation, maintain law and order and protect the lives and property of Ugandans.

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 countrywide.