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

ISSUE TWO

The second issue is whether the said election was not conducted in accordance with the principles laid down in the provisions of the said Act. I think that this issue is related to the first issue. In our decision, which we gave on 21/4/2001, we answered this issue in the affirmative. It now remains my duty to say how and why I concurred.

I have summarised the submissions of Mr. Balikuddembe, lead counsel, and his junior, Mr. Mbabazi, for the Petitioner, on the main principles. For instance S.5 (1) of PEA states that the election of the President shall be by universal adult suffrage through a secret ballot using one box for all candidates. This provision is a reenactment of Article 103(1) of the Constitution which states that:-

“103(1) The election of the President shall be by universal adult suffrage though a secret ballot.”

The principles to be gathered from this statement are that:-

(a) election is by all eligible adult persons aged 18 and above. Children do not qualify to vote;

(b) election is by secret ballot;

(c) Use of one box portrays the principle of transparency;

(d) There is one vote one ballot;

(e) Under S.4 of PEA an aspiring candidate is entitled to carry out nationwide consultations- This is freedom of Association, of Imparting ideas and of electioneering.

According to Mr. Mbabazi the principles which were breached are:

1 The principles of transparency and fairness. (See Art. 68 and S.32).

2. Representation of the candidates at the polling stations.

3. The secrecy of the ballot was not observed.

4. A citizen of voting age has a right to be registered and a right to vote.

5. Freedom to choose.

6. General values of a democratic society.

When they made submissions in respect of the first issue, all counsel for the parties entered the territory of the second issue.

Mr. Mbabazi contended that these principles were breached in respect of registers and on registration1 voting and ballot stuffing. That evidence shows that persons eligible to vote were denied the freedom to vote secretly and that non-Citizens were allowed to vote; that is this noncompliance and goes to the root of the Constitution. Counsel submitted that because of deploying the army, the freedom of and fairness in voting were missing and this affected the election in a substantial manner. He asked us to answer issue 2 in the affirmative.

Dr. Khaminwa agreed with Mr. Mbabazi on the question of the principles but learned counsel submitted that these principles were complied with and that the petitioner failed to prove by the number of votes how noncompliance with principles affected the results. He asked us not to interfere with the will of the people by setting aside the election. Learned Counsel relied on Bater vs. Bater (1950) 2ALL E.R. 458 and Mbowe vs. Eliufoo (supra) for the view that the standard required to prove non-compliance is very high and that the evidence of Frank Mukunzu, the expert in figures, did not assist the petitioner to establish the extent of noncompliance.

Mr. Kabatsi, the learned Solicitor-General, whose other submissions I have already summarised, agreed with the aforementioned statements of the applicable principles being: free and fair election, universal suffrage and the right to vote. He shared Dr. Khaminwa’s view that the standard of proof required to prove non-compliance with the principles is very high. He defended the deployment of UPDF in the electoral process arguing that UPDF should be involved in the protection of Human Rights because of Article 221 of the Constitution. He contended that the expert evidence of Mukunzu supports the view that there was substantial compliance with the principles of the PEA, 2000.

The learned Solicitor-General referred to Chairman Kasujja’s affidavits and the affidavits of other witnesses for the 21 Respondent. These included the affidavits of the Chief Administrative officers (CAOs) cum Returning officers. He then submitted that there was compliance with respect to the maintenance of the voters register; he defended the display of registers and of rolls for less than 21 days, and suggested that it is not mandatory to issue voters cards; that Art59 (1) guarantees citizens the right to vote; that S. 19 of PEA prohibits unregistered people from voting, that splitting the polling stations facilitated voting; that the Petitioner failed to adduce evidence in support of ballot stuffing, that the affidavits of Tukahebwa, Kyimpaire and Naggayi Lucia, about ballot stuffing and other malpractices did not establish the allegations, contending that their stories were imaginary or had been rebutted by the affidavits of the witnesses for the respondents such as that of Mugyenyi Sylvia (which I was unable to find among bundles of affidavits provided). The learned Solicitor-General argued that the proper procedure at voting and during tallying had been observed and that if there were any multiple voting, underage voting, mistakes or errors in tallying, they did not affect the results in a substantial manner.

About the arrest of Commissioner Miiro, Mr. Kabatsi submitted that the process of the law took its course and that the arrest further shows that there is compliance with the law irrespective of the status of the culprit. He also argued that the absence of Miiro’s signature from the results declaration form does not affect the declaration.

On the question of free and fair election, the learned Solicitor-General relied on Kabourou’s case (supra). He said there exists a law to regulate election. In this case, there is PEA, 2000. He relied on Chairman Kasujja’s affidavit and submitted that the complaints by the Petitioner in this matter were trivial. He asked us to accept the opinions of foreign observers from OAU and some countries to the effect that the election was free and fair. He also relied on affidavits of the returning officers in addition to that of Presidential candidate Francis Bwengye and Bob Mutebi. The later claims to have witnessed the Petitioner cast his vote in Rukungiri where the witness recorded statements attributed to the Petitioner on 12/3/2001 in which the petitioner appears not to have complained about the presence of soldiers or the malpractices now raised in the petition.

I must say I have found it difficult to place any probative value on the affidavit of former candidate Francis Bwengye. On 9th March, 2001, just three days to the election, candidate Bwengye, along with the Petitioner and three of the other candidates wrote their joint letter (P19) to Chairman Kasujja referring to the contents of R17 and P.15 which complained about insecurity and other malpracticeS. Surely he could not be the same Francis Bwengye who turns up after elections to claim that during campaigns there were no problems. I have already reproduced these letters elsewhere in this judgment. Besides I think that candidate Bwengye’s affidavit is full of valueless hearsay matters.

Back to the submissions of the learned Solicitor-General. His view is that the Petitioner did not complain about free and fair elections on 12/3/2001. I would like to observe here that there are affidavits from various parts of Uganda talking about beating, intimidating, violence and harassment of agents and supporters of the petitioner. Two interesting examples are Mrs. Marry Frances Ssemambo and Mr. Peter Byomanyire both of Mbarara. In her affidavit of 21/3/ 2001, Mrs. Ssemambo, who was chairperson, Mbarara District Task Force for the petitioner, talks of massive rigging and she also talks of harassment, intimidation, arrests, beating and chasing away from polling stations of the supporters and agents of the petitioner especially in the counties of Nyabushozi and Isingiro. The witness says that it was the armed UPDF and LDU and agents of the first Respondent who committed these wrongs. Peter Byomanyire, a coordinator for the petitioner supports Mrs. Ssemambo with regards to intimidation, rigging and chasing away of agents of the petitioner in Mbarara and Kamwenge Districts. Byomanyire talks of excruciating treatment on 1 6/2/2001 following an address by the petitioner. He and others were harassed on 8/3/2001 by armed UPDF for supporting the petitioner.

In an effort to challenge the evidence of Mrs. Ssemambo and other witnesses of the petitioner, Samuel Epodoi, the Districts Police Commander (DPC) for Mbarara District, swore an affidavit. He swore that Ssemambo’s claims about harassment, arrest, beating, detention and chasing away of supporters and agents of the petitioner are false. He claims that nothing of the sort happened in Nyabushozi and Isingiro countries, which were patrolled by police and UPDF. The remarkable point about the affidavit of the DPC is that he does not appear to have been in the counties of Nyabushozi and Isingiro at the material time. His information is wholly hearsay. He does not disclose the source of his information. Therefore DPC Epodoi’s claim that what Mrs. Ssemambo and other agents of the petitioner complain about is false is itself without any foundation whatsoever and I reject it. Mrs. Ssemambo is again supported on rigging, multiple voting and chasing away of the petitioners agents by Muhairwoha Godfrey who is from Isingiro County. He was an agent for the petitioner at Kajaho 4 polling station where a supporter of the first Respondent called C. Rwabambari and a parish chief took over the duties of the presiding officer. When he protested, Muhairwoha was forced by an UPDF reserve to flee. Messrs Tugumisirize and Rukara Caesar both from Mbarara and both agents of the petitioner at different stations were arrested, beaten, detained or chased away!

There are complaints by Mubbajje, Amir and Naddunga in Mbale District. There are complaints by Mulindwa in Pallisa, by Imon and Oketcho in Tororo, Ndifuna Wilber in Busia, Kirunda and S. Niiro in Bugiri, in Masindi, in Mayuuge, by Matovu A. in Kayunga, by Omuge in Soroti, by Lukwiya Pido in Gulu, by Drobo Joseph of Arua and every district in the whole of Western Uganda. Take the affidavits of Kakuru, Baguma H., Musinguzi and of Barnard Matsiko, for instance. These affidavits are sworn to support the allegations pleaded in the petition.

Alex Busingye, a resident of Kakiika, in Mbarara District, was the petitioner’s overseer in Kazo County of Mbarara District. He looked after the welfare of the petitioner’s agents in Kazo. In paragraphs 3 and 4 of his affidavit he states:-

“3. That in the majority of polling stations I visited I found the polling agents for the petitioner off the polling (sic) they had been assigned having been chased away by armed UPDF soldiers.

5. That at one polling station called Nkungu I found a monitor for that station had been tied by the UPDF soldiers and was bundled on motor vehicle Reg. 114 UBS, pick-up in which they were travelling

One may say that para 3 contains some hearsay material. But the deponent does support Mrs. Ssemambo to the effect that the petitioner’s agents and representatives were harassed, beaten and subjected to inhuman treatment. More affidavits from many other districts testify to the terror and intimidation that was meted out to the agents and supporters of the petitioner.

I have gone through the affidavit of the petitioner and the documents attached thereto relevant to the second issue, particularly PB, date 11/3/2001, about splitting polling stations, P12 and P13 Chairman Kasujja’s letter to His Excellency the President in which Kasujja lamented about violence and intimidation and beseeched the President to save the bad situation from getting worse and to save democracy from disintegrating See P14 dated 20/2/2001 in which the Vice-Chairperson, Mrs. Flora Nukurukenda, implored the Army Commander and the Inspector General of Police to ensure that there was no “unnecessary” interference with Candidates’ electioneering. From this letter I do not know whether there is “necessary” interference and what is its limit. Yet the letters show that candidates continued to complain; P15, is a press release, dated 9/3/2001 by which the Army commander attempting to justify the continued deployment of UPDF, ISO, and PPU during the electoral process. That letter from the Army Commander is a tacit acknowledgement of excessive deployment of the army. Then there is the letter P17, dated 7/3/200 1 written to the Chairman of the Commission by the petitioner and some of the other candidates, complaining about flaws in the Presidential election process. The flaws included insecurity, violence and intimidation. In the letter, the candidates further complained about deployment by the first respondent of UPDF and the PPU and other paramilitary personnel which had resulted in loss of lives and injury to people and to property; it complained of the partisan campaign in favour of the first Respondent, by Senior Army officers, RDCs, DISOs and GISOs. To that was a reply, now P8, wherein the Chairman in effect acknowledged the grounds for the complaints and this was reemphasised by P19 dated 9/3/2001 still complaining about the 2001 flawed Presidential election process. True, the evidence on loss of life shows at least two deaths. Beronda in Rukungiri and another in Busia. It can be said that there are only two deaths. But what about the injured, the violence and intimidation. Indeed even the killing of one person by shooting can reach far and can have far reaching ramifications. Beronda’s shooting is a perfect example.

P20 shows that the Commission printed excess voters’ cards for purposes of rigging. This matter was not explained properly. Exh.P21 dated 13/3/2001 is a letter by the Petitioner rejecting the election results and demanding for a fresh election on various grounds some of which had, before the election, been highlighted in P17, P18 and P19, mentioned above.

I have studied the affidavits, together with the supplementary affidavits in reply by the first and second respondents. I have studied the other affidavits sworn by witnesses for the respondents. I have considered the fact, which is not in dispute that, Rwaboni Okwir, the MP youth in charge of the youth and students’ desk of the petitioner1 was violently hounded out of supporting the petitioner and this was epitomised by his brutal and violent manhandling and arrest in the glare of video cameras at Entebbe International Airport. This must have by all standards driven chills in the spines of many of the youths, supporting the petitioner. Of course it may be argued that the effect of Rabwoni incident cannot be measured easily in terms of loss of votes. But, I say, the incident is the outward and explicit measure of determination to suppress opposition. It shows the determination to win at any cost. It gives support to commission of other malpractices. Musinguzi, who lead the Rukungiri! Kanungu co-ordination of the petitioner’s campaign got so frustrated by various malpractices that he personally refused to vote out of revulsion against the excessive malpractices.

Mr. Mbabazi argued that the evidence available showed that by 22/1/2001, the Commission had not produced the updated National Voters’ Register. That by 12/3/200 1 there was no updated National Voters roll. Paragraph 28 of Kasujja’s latest affidavit of 9/4/200 I showed that on voting day there appeared to be an increase of voters by 103447, voters who were not subject to scrutiny. Counsel put forward a theory by which twelve polling stations each catering for 500 voters would in all produce 6000 votes, which could be used for stuffing in new stations. Counsel again pointed out the unexplained increase of more Polling Stations in Mbarara, Mbuya and some other places. He submitted that the totality of absence of free arid fair election, the interference with the right to vote and of the exercise of secret ballot and absence of transparency such as the abrupt creation of very many polling stations, all this affected the validity of the vote and rendered the election exercise invalid.

Article 212 of the Constitution sets out the functions of the Uganda Police Force to include the following: -

“(a) to protect life and property;

(b) to preserve law and order

(c) to prevent and detect crime, and

(d) to co-operate with the civilian authority and other security organs established under this Constitution and with the population generally?

These functions when compared with the functions of the UPDF set out in Article 209 show obvious differences. One of the main differences is that the police is charged with the responsibility of ensuring orderly management of the affairs of civil society. In this respect I think that it is the responsibility of the police to ensure that elections, such as the questioned Presidential election, are conducted under conditions of freedom and fairness. The only constitutional provision, which envisages the involvement of the UPDF in civil matters in Article 209(b), which reads as follows: -

“209 the functions of the Uganda Peoples Defence Forces are:

(a)………………..

(b) to co-operate with the civilian authority in emergency situations and in cases of natural disasters.”

A presidential election is neither an emergency nor a natural disaster. At least that was not the case during the Presidential election of March, 2001.

It may be noted that in its wisdom when Parliament enacted the PEA, 2000, it foresaw the possibility of shortage of policeman power. That is why it included section 41, in the Act. The section empowers a presiding officer to appoint an election constable in certain circumstances.

Subsection (1) of S.41 reads as follows: -

“Where there is no police officer to maintain order in a rural polling station and the necessity to maintain such order arises, the presiding officer shall appoint a person present to be an Election Constable to maintain order in the Polling Station throughout the day”

By sub-section (2) the appointment of any person other than a policeman as an election constable can only be made where there is actual or threatened disorder or a large number of voters who need to be controlled.

This provision was enacted just last year. Members of Parliament must have been aware that the Army has over the years been involved in the electoral process. Yet Parliament did not see it fit to enact that members of the UPDF can be called upon to assist in the management of presidential election or any other election. In these circumstances, I am not persuaded by arguments put forward by the two respondents to justify the deployment of the army and the PPU for purposes of the recent Presidential election.

In his letter (dated 25/1/2001) to the Minister of Internal Affairs, John Kisembo, former IGP, showed that there were about 2700 Polling Stations more than the strength of police which was at 14700 men and women. He wanted other security agencies to help in the surveillance. This did not mean that each Poling Station had to have a policeman or a member of the other security forces. If that were so one would ask, why not leave the matter to the Electoral Commission to ask polling officers to appoint election constables as provided by S.41. This brings in the question of what power the Electoral Commission has over security forces especially the police during an election. The impotence of the Commission IS clearly shown by Kasujja’s letter to the President. In order to strengthen the commission, I share the view that the commission must be given power so that during election time it is able to summon and instruct police or any other appropriate law enforcement agency. It must be given legal authority to instruct the police or whoever is put under the direction of the Commission to carry out commission wishes. This will ensure some degree of independent management of the electoral process by the Commission.

If the IGP, the Army Commander or anybody else says that for many years, the Uganda Government had failed to recruit, train and equip enough police to oversee such an ordinary democratic election such as that of the recent Presidential election, then this must mean that, either the Commission was deliberate or the omission was evidence that those in charge of the election exercise never cared about preparing the police for civil elections.

I have gone through the affidavit evidence in support of the petition and in support of the two answers to the petition. I have considered counsels’ submissions. The principles enshrined in S.28 (1) (a) is that Polling Stations should be published early to enable a candidate and his agents to ascertain whether any Polling Station is in a place convenient for voters and accessible easily by the candidate and or his agents and his supporters. The overnight establishment of Polling Stations violated the principle of transparency; the same principle was violated when polling agents of the petitioner were chased away from many polling stations or tallying centres.

Again the principle of secrecy enshrined in Sections 7 and 30 of PEA was violated in many Polling Stations in Kabale, Ntungamo, Rukungiri, Kanungu, Kamwenge, Mbarara, Mayuge, Sembabule, Mbale, and Bushenyi, because of pre-ticking, supervision of ticking and by polling officers ticking ballot papers for voters. This is graphically explained in the affidavit of Boniface Ruhindi Ngaruye of Ishongororo Sub-county, Mbarara. LDU chased him away and shot at him. This bit is irrelevant. But according to him on the evening of 11/3/2001, the massive presence of UPDF in Mbarara that evening aborted his plan to campaign for the petitioner that night. He shows that in Mbarara Town, he was unable to get the petitioner’s polling agents to new stations. There was voting by school children.

Again the principle of transparency was violated because of voting before 7.00

a.m. and after 5.00 p.m. Also the principle of oneperson0ne vote enshrined in S.31 was violated by officials of the 2 respondent. They consciously allowed this to go on in the aforementioned places. I have studied the affidavits of the petitioner’s witnesses and the responses thereto by witnesses for the respondents. It is clear from the affidavits of the agents of the Petitioner which affidavits I find more reliable that there was deliberate and brutal interference by members of the UPDF, LDUs and PPU with the campaigns of the petitioner See in Kabale (Matsiko D. and Twahirwa), in Ntungamo, in Runkungiri (Orikiriza and H. Muhwezi) Kanungu, Mbarara (see J. Kasujja and Peter Byomanyire) in Rukungiri see J. Tumusiime, Bushenyi, Kamwenge (see Kiiza D. and Tibanyendera), in Kasese, in Sembabule (see Kiryowa). Affidavits show that RDCs such as J. Mwesige (Kabale), GISOs like R Bagorogoza in Kanungu and Kamwenge Army personnel like Lt. Richard mentioned by D. Kiiza were involved in this.

ROAD CONTRACTS, SALARY INCREMENTS, ETC.

The idea of starting to implement work on the Mubende/Kiboga, Fort Portal Road during campaign period; the announcement of abolition of health cost sharing during campaign period which cost sharing has been in operation for some years in Government health units throughout the country; the promise to increase salaries of teachers, medical personnel and of the police, again during the campaign period, were not done in the course of ordinary and usual government business. I think that it was all part of the campaign, to lure voters to vote for the incumbent who is the first Respondent. These acts surely affected the principle of a free and fair election. The Petitioner stood every disadvantage in relation to the first Respondent in so far as these matters are concerned. The Constitution prescribes that candidates for political offices should be chosen on individual merit [(Art.70 (l) (d)] and the same Constitution and the PEA require elections to be held under conditions of fairness. Where is fairness if an incumbent can avail oneself of opportunities in the Government and exploit those opportunities maximally during campaign time whereas the non-incumbent has no such opportunities? How can there be merit and fairness? A non-incumbent enters the race without previous Presidential record of performance. The implementation of several programmes during the period of a Presidential campaign can only benefit the incumbent president.

The respondent could only promise in his manifesto and his address to the voters whereas the first respondent could announce immediate implementation of decisions which he wishes to announce and have it implemented as head of Government.

I do not accept the explanations offered by the Hon. Dr. Kiyonga, the Hon. B. Mukiibi, and the Hon. Eng. John Nasasira that these are matters for which money had been budgeted. How come all these had to be announced during the critical campaign period for the election of the President of this Republic? The Tanzanian case of Attorney General vs. Kabourou (1 995) 2LRC 757 is in point, if authority for this view was necessary.

On 24/2/2001, Chairman Kasujja, wrote his letter reference EC/25 to the President asking the President

“To intervene and save the democratic process from disintegrating by ensuring peace and harmony in the electoral Process”.

The Chairman stated further that: -

“THE COMMISSION HAS RECEIVED DISTURBING REPORTS AND COMPLAINTS OF

INTIMIDATION OF CANDIDATES, THEIRAGENTS AND SUPPORTERS WHICHIN SOME CASES HAS RESULTED/N LOSS OFLIFEAND PROPERTY”:

I have not seen evidence that the chairman received a reply. Yet the complaint was serious. This augments the need for making the Commission independent by giving it powers to direct the Police Personnel under its charge during campaign. The chairman’s letter is an expression of great concern bearing in mind the fact that the election was barely two weeks away. In the ordinary course of things the letter reached the first Respondent as President. There is no evidence of the reaction of the first Respondent to show that he took steps to improve the situation. That letter was written barely two weeks before the Presidential election and after nearly one and a half months of campaigning, during which the petitioner, who was specially mentioned in the letter and his supporters had been harassed and some of his agents and supporters had been subjected to beating and harassment. Apparently even after Chairman Kasujja’s letter had been written, nothing was done by the first Respondent as Head of State and the Commander-in--Chief of the Army to reduce the tension. Instead there is evidence of insecurity, violence and intimidation continuing. That is why on 7/3/ 001, just four days before the election and on 9/3/2001, another two days before the polling day, the rest of the presidential candidates including the Petitioner wrote letters to and implored Chairman Kasujja to save the situation. I note that in his letter to the Minister of Internal Affairs (dated 25/1/2001) which letter is annexed to his affidavit, John Kisembo did not indicate that security was beyond the control of the police. The contents of the letter suggests that the National Security Committee decided on the matter and asked IGP to request for other security agencies to be involved in the election exercise.

The affidavit of Charles Owor shows that he was denied access to the National tallying centre. The affidavit of Robert Kironde shows that Hon. Bakabulindi, MP, a Chief Campaign Manager of the first Respondent and who was not an official of the Commission was at the forefront of receiving important information on results from upcountry in the Commissions Communication and Data Centre. Therefore, although Bakabulindi enjoyed that freedom as an agent of the first Respondent, Mr. Kironde, an agent of the Petitioner who is entitled to be at a tallying centre, was denied authority to note the verification of the result where Bakabulindi was positioned. Chairman Kasujja and Wamala of the omission in their affidavits poured Scorn on this but I think refusal of access to Kironde violates the principle of transparency and fairness.

Another interesting and most disturbing case is voting in Mbarara Municipality. There were many irregularities. Mr. Boniface Ruhindi Ngaruye, a member of the petitioner’s Mbarara District Task Force, explains in his affidavit how he was harassed and intimidated during the campaign period. On polling day he coordinated the petitioner’s polling agents in Mbarara Town. Boniface Ruhindi Ngaruye’s affidavit shows that Military Police supervised the voting by an unspecified number of voters including students at Kakyeka stadium and three Mankeke polling stations. Military Police poured there lorry loads of students who voted. The latter station was created on 11/3/2001. There were no agents for the petitioner because the Commission created these stations late. There was no verification of voters. The witness saw what he describes as massive rigging.

Another story of interest is that of A. Otim which shows how soldiers in Gulu forced voters to vote contrary to voters’ wishes. He monitored voting at Paico P. School. Armed soldiers were at the polling station. Soldiers brought an APC military vehicle with which they intimidated voters and the petitioner’s monitors at the polling station. Because Otim was protesting he and one Okello Saul were arrested and detained till 8.00 p.m., when they were released, after the polling time.

The complaints about harassment, intimidation, violence, threats and assaults were raised before the Election Day. That is why candidates in writing expressed their concern to Chairman Kasujja. In these circumstances, it would be wholly unreasonable to suggest, as do witnesses and counsel for the Respondents suggest, that the Petitioner’s witnesses, who, after the election, swore affidavits about harassment, intimidation and violence, threats and assaults were making up stories. In my opinion the correspondence between Chairman Kasujja and his Deputy on the one hand, and the Petitioner with his fellow candidates on the other hand, fully corroborates the evidence of the supporters of the Petitioner. I find that the petitioner was subjected to harassment and interference during his electioneering. I also find that representative’s agents and supporters of the petitioner were subjected to violence, intimidation, harassment and assault.