Col.Dr.Besigye Kiiza v Museveni Yoweri Kaguta, Electoral Commission (Election Petition No.1 Of 2001)

Case No: 
(Election Petition No.1 Of 2001)
Media Neutral Citation: 
[2001] UGSC 3
Judgment Date: 
20 April 2001
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THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA
AT KAMPALA

(CORAM: ODOKI, CJ; ODER, JSC; TSEKOOKO, JSC;
KAROKORA, JSC; AND MULENGA, JSC.)

ELECTION PETITION NO. I OF 2001

COL (RTD.) DR. BESIGYE KIZZA :::::::::::::::::::::::::::::::::::::::::::::::::: PETITIONER
VERSUS

I. MUSEVENI YOWERI KAGUTA)
2.
ELECTORAL COMMISSION)::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENTS

JUDGEMENT OF THE COURT

The Petitioner, Col. (RTD) Dr. Besigye Kizza petitioned the Supreme Court of Uganda under the Presidential Elections Act 2000, as an aggrieved candidate, challenging the result of the Presidential election held on 12th March 2001 and seeking an order that Museveni Yoweri Kaguta, declared elected as President, was not validly elected, and that the said election be annulled. He cited the said Museveni Yoweri Kaguta as 1st Respondent and the Electoral Commission as the 2nd Respondent.

The Petitioner and the 1st Respondent, who is the incumbent President of the Republic of Uganda, were among the six candidates who contested the said Presidential Election. On 14th March, 2001 within forty-eight hours from close of polling, the 2nd Respondent declared that the 1st Respondent, having obtained 69.3% of the valid votes cast in his favour was duly elected President. According to the declared results, the Petitioner was runner-up with 27.8% of the valid votes cast in his favour.

The petition was lodged in the Registry of this Court on 23rd March, 2001, that is within ten days after the declaration of results. The hearing commenced on 27th March, 2001, and ended on 13th April, 2001. Judgement was reserved to be given on notice. By virtue of article 104 of the Constitution and section 58 of the Presidential Elections Act, the petition must be inquired into and determined expeditiously and the Court must declare its findings not later than thirty days from the date the petition is filed. This Court must was therefore bound to deliver its judgement by 22nd April, 2001.

In the petition, the Petitioner makes very many complaints against the two respondents and their agents and/or servants, for acts and omissions which he contends amounted to non-compliance with provisions of the Presidential Elections act, 2000, and the Electoral Commission Act, 1997, as well as to illegal practice and offences under the Acts. Among the major complaints he makes against the 2nd Respondent are failing to efficiently compile, maintain and up-date the national voters’ register, and voters’ roll for each constituency and for each polling station; failing to display copies of the voters’ roll for each parish or ward for the prescribed period of not less than 21 days, failing to publish a list of all polling stations within the prescribed period of 14 days before nomination; increasing the numbers of polling stations on the eve of polling day without sufficient notice to candidates; allowing or failing to prevent stuffing of ballot boxes, multiple voting and under-age voting; chasing away the Petitioner’s polling agents or failing to ensure that they are not chased away from polling stations, and counting and tallying centres; allowing or failing to prevent agents of the 1st Respondent to interfere with electioneering activities of the Petitioner and his agents; allowing armed people to be present at polling stations, falsification of results, and failing to ensure that the election was conducted under conditions of freedom and fairness.

The Petitioner’s case against the 1st Respondent is that he personally or by his agents with his knowledge and consent or approval, committed illegal practices and offences. These include publication of a false statement that the Petitioner was a victim of AIDS; offering gifts to voters; appointing partisan senior military officers and partisan sections of the Army to take charge of security during the elections; organising groups under the Presidential Protection Unit and Major Kakooza Mutale with his Kalangala Action Plan, to use violence against those not supporting the 1st Respondent; and threatening to cause death to the Petitioner.

In their respective answers to the petition, the 1st Respondent and the 2nd Respondent denied the allegations made in the petition against them.
 
At the hearing, the learned Solicitor General Mr. Kabatsi led a team of learned counsel for the Petitioner. And Dr. Byamugisha and Dr. Khaminwa led the team of learned counsel for the 1st Respondent. At the commencement of the hearing, the Court, in consultation with learned Counsel who appeared for the parties, framed the following five issues for determination:
1. Whether during the 2001 election of the President, there was non-compliance with provisions of the Presidential Elections Act 2000.
2. Whether the said election was not conducted in accordance with the principles laid down in the provisions of the said Act.
3. Whether, if the first and second issues are answered in the affirmative, such non-compliance with the provisions and principles of the said Act, affected the result of the election in a substantial manner.
4. 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.
5. What reliefs are available to the parties?   

All evidence at the trial of the petition is required to be adduced by affidavits. Cross-examination of the deponents may be permitted only with leave of the Court. Accordingly parties filed many affidavits to support their respective cases. The Petitioner filed 174 affidavits both in support of the petition and in reply to the affidavits of the 1st and 2nd Respondents, who in turn filed respectively, 133 and 88 affidavits. The filling of affidavits continues throughout the hearing of the petition. In addition leave was granted to the Petitioner to call and cross-examine one deponent, Dr. Dian Atwine, who had sworn an affidavit in support of the 1 Respondent.

Counsel for all parties read the affidavits deponed in support of their cases while making their submissions to the Court. Numerous authorities, from within and without our jurisdiction, were cited and copies were provided to the Court. We have found the authorities very helpful and we are grateful to Counsel for that assistance.

We have, since completion of hearing, had the opportunity to peruse and evaluate the evidence adduced by the parties, and to study the various authorities cited to us. We have each made findings on the issues presented to the Court. We have also come to the conclusion on the outcome of the case.

We are however not in a position to give the detailed reasons for our decision within the limited time available. This is not an ordinary case but an important case involving the election of the President of the Republic of Uganda. It raises serious constitutional and legal issues, the answers to which and the reasons therefore, need to be elaborately articulated for future guidance. The effect of the decision on the governance and development of the country, and on the well being of the people of Uganda cannot be over emphasised. We shall for now announce the decision of the Court, and on a later date to be notified, we shall each read the detailed findings and reasons there for.
The decision of the Court is constituted in the findings on the framed issues. We find:
1. That during the Presidential Election 2007, the 2nd Respondent did not comply with provisions of the Presidential Elections Act-
        (a) in s.28, as it did not publish in the Gazette 14 days prior to nomination of candidates, a complete list of polling stations that were used in the election; and
       
(b) in s.32 (5), as is failed to supply to the Petitioner official copy of voters register for use by his agents on polling day.

2. That the said election was conducted partially in accordance with the principles laid down in the said Act, but that-
        (a) in some areas of the country, the principle of free and fair election was compromised;
       
(b) in the special polling stations for soldiers, the principle of transparency was not applied, and
        (c) there was evidence that in a significant number of polling stations there was cheating.

3. By majority of three to two, that it was not proved to the satisfaction of the Court that the failure to comply with the provisions of, and principles laid down in, the said Act, as found in the first and second issues, affected the result of the election in a substantial manner.

4. By majority of three to two, that no illegal practice, or other offence under the said Act, was proved to the satisfaction of the Court, to have been committed in connection with the said election, by the 1st Respondent personally, or with his knowledge and consent or approval.

5. In the result, by majority decision it is ordered that the petition be and it is hereby dismissed
We shall here further counsel on the question of costs.

DATED at Kampala this 21st day of April, 2001

B. J.ODOKI
CHIEF JUSTICE


A. H. O. ODER
JUSTICE OF THE SUPREME COURT

J. W. N. TSEKOOKO
JUSTICE OF THE SUPREME COURT

A. N. KAROKORA
JUSTICE OF THE SUPREME COURT

J. N. MULENGA
JUSTICE OF THE SUPREME COURT


I CERTIFY THAT THIS IS
A TRUE COPY OF THE ORIGINAL


W. MASALU MUSENE
REGISTRAR, THE SUPREME COURT


REASONS FOR JUDGMENT OF ODOKI, CJ.
This is an election petition filed by the petitioner Col. (Rtd.) Dr. Besigye Kizza against the 1st Respondent Mr. Museveni Yoweri Kaguta and the 2nd Respondent, the Electoral Commission, challenging the results of the Presidential Election held on 12th March 2001. The 2nd Respondent organised those elections and declared the 1st Respondent the winner. The petitioner seeks this court to declare: that Museveni Yoweri Kaguta was not validly elected as President, and that the election be annulled.
The petition was brought under the Presidential Elections Act 2000 (No.17 of 2000) and the Presidential Elections (Election Petitions) Rules 2001 (SI No.13 of 2000) Article 104 of the Constitution and Section 58 of the Presidential Elections Act 2000 provide that any aggrieved candidate may petition the Supreme Court for an order that a candidate declared by the Electoral Commission as President was not validly elected, within ten days after the declaration of results. The Supreme Court is required to inquire and determine the petition expeditiously and declare its findings not later than thirty days from the date the petition is filed. Where an election is annulled, a fresh election must be held within twenty days from the date of the annulment.
On 23 March 2001 the Petitioner lodged a petition in the Supreme Court. It was accompanied by an affidavit sworn by him. In his petition the Petitioner complains that the 2nd Respondent failed to comply with the Electoral Commission Act and the Presidential Election Act in various instances and that the non-compliance affected the results of the election in a substantial manner. The Petitioner also alleged in the petition that the 1st Respondent committed various illegal practices or election offences personally or by his agents with his knowledge and consent or approval. Five issues were framed by the Court. The hearing of the petition commenced on 3rd March and was concluded on 13th March 2001.
The petition symbolised the restoration of democracy, constitutionalism and the rule of law in Uganda. It demonstrated the fundamental democratic values contained in the 1995 Constitution, which includes the sovereignty of the people, the right of the people to choose their leaders through regular free and fair elections and the peaceful resolution of disputes. It was an important petition because it involves the election of a Head of State, Head of Government and Commander-in-Chief of the Uganda Peoples Defence Forces and the Fountain of Honour. The petition was bound to affect the entire nation because the election of a President is by universal adult suffrage through a secret ballot. The outcome of the petition would have far reaching consequences on the peace, stability, unity and development of Uganda.
We gave our judgment on 21st April 2001 dismissing the petition with an order that each party bears its own costs. The Court’s findings on each issue were as follows:
“1. That during the Presidential Election 2001, the 2nd Respondent did not comply with provisions of the Presidential Elections Act:
(a) in s,28, as it did not publish in the Gazette 14 days prior to nomination of candidates, a complete list of polling stations that were used in the election; and
(b) in s.32 (5), as it failed to supply to the Petitioner official copy of voters register for use by his agents on polling day
2. That the said election was conducted partially in accordance with the principles laid down in the said Act, but that:
(a) in some areas of the country, the principle of free and fair election was compromised;
(b) in the special Polling Stations for soldiers, the principle of transparency was not applied; and
(c) there was evidence that in a significant number of Polling Stations ther
e was cheating.
3. By majority of three to two, that it was not proved to the satisfaction of the Court that the failure to comply with the provisions of, and principles laid down in, the said Act, as found in the first and second issues, affected the result of the election in a substantial manner.
4. By majority of three to two, that no illegal practice, or other offence under the said Act, was proved to the satisfaction of the Court, to have been committed in connection
with the said election by the 1st Respondent personally, or with his knowledge and consent or approval
5. In the result, by majority decision it is ordered that the Petition be and it is hereby dismissed-”
We ordered that each party bears its own costs.
We reserved the reasons for our judgment. I now give the reasons for my judgment dismissing the Petition.
Background to the Petition:
On 12th March 2001, Ugandans went to the polls to elect a President. These were the second presidential Elections held under the 1 995 Constitution. The first elections were held in 1996. Those elections were won by the 1st Respondent who is the incumbent President. The term of the office of President is five years and the President cannot hold office for more than two terms.
At the March 2001 elections, there were six candidates namely: the petitioner Besigye Kizza, Awori Aggrey, Bwengye Francis, Karuhanga K. Chapaa, Kibirige Mayanja Muhammad and Museveni Yoweri Kaguta, the 1st Respondent. The Electoral Commission returned by its declaration dated 14 March 2001 the 1st Respondent as the validly elected President, having obtained 69.3% of the votes cast at the election. The Petitioner obtained 27.8% of the votes cast.
The particulars of the complaints against the 2nd Respondent are contained in para 3(1) of the petition. They are failure to publish additional Polling Stations in time, failure to publish a full list of all Polling Stations in each Constituency 14 days before nomination day, failure to supply copies of the final Voters Register, the Voters Roll for each Constituency and the Voters Roll for each Polling Station; and failure to display copies of the Voters roll for each Parish or Ward for a period of 21 days. Other complaints are chasing away of the Petitioner’s agents from many Polling Stations, allowing voting before or after official polling time, stuffing ballot boxes with ballot papers and failure to open the ballot boxes in full view of those present, and allowing people to vote more than once.
The petitioner also complained against the 2nd Respondent that one of its Commissioner and two officials were involved in electoral offences and were charged in court, that the 2nd Respondent failed to control distribution and use of ballot boxes and papers resulting in commission of election offences. The Petitioner further complained that the 2nd Respondent allowed people under 18 years of age to vote, it failed to prevent Petitioner’s agents being chased away from Polling Stations, it allowed people with no valid Voters Cards to vote, it allowed people with deadly weapon namely soldiers and para-military personnel to be present at Polling Stations, it denied the Petitioner’s Polling Agents information concerning the counting and tallying process, and it declared results of the election when all the Electoral Commissioners had not signed the Declaration Results Form.
Other Petitioner’s complaints are that the 2nd Respondent failed to ensure that the electoral process was conducted under conditions of freedom and fairness and as a result the campaigns of the Petitioner and his agents were interfered with, that some of the Petitioner’s agents and supporters were abducted and arrested, that some of the 2nd Respondent’s agents ticked ballot papers in favour of the 1st Respondent and others stuffed ballot boxes with ticked ballot papers and that as a result of such non-compliance with the provisions of the Act and the Election Act affected the result of the election in a substantial manner.
The Petitioner alleges in the petition that the 1st Respondent committed various illegal practices or election offences personally or by his agents with his knowledge and consent or approval. The first allegation against the 1st Respondent is that contrary to section 65 of the Act he publicly and maliciously made a false statement that the Petitioner was a victim of Aids without any reasonable ground to believe that it was true and that this false statement had the effect of promoting the election of the 1st Respondent unfairly in preference to the Petitioner alleged to be a victim of Aids as voters were scared of voting for your Petitioner who by necessary implication was destined to fail to carry out the functions of the demanding office of President and to serve out the statutory term.
The second complaint is that contrary to section 63 of the Act the 1st Respondent and his agents with the 1st Respondent’s knowledge and consent offered gifts to voters with the intention of inducing them to vote for him.
The third allegation is that contrary to section 12 (1) (e) and (f) of the Electoral Commission Act the 1st Respondent appointed Major General Jeje Odongo and other partisan Senior Military Officers to take charge of security of the Presidential Election process and thereafter a partisan section of the army was deployed all over the country with the result that very many Voters either voted for the 1st Respondent under coercion and fear or abstained from voting altogether.
The fourth allegation is that contrary to section 25 (b) of the Act the 1st Respondent organised groups under the Presidential Protection Unit and his Senior Presidential Adviser a one Major Kakooza Mutale with his Kalangala Action Plan para-military personnel to use force and violence against persons suspected of not supporting the 1st Respondent thereby causing a breach of peace and induced others to vote against their conscience in order to gain unfair advantage for the 1st Respondent in the election.
The fifth complaint is that contrary to section 25 (e) of the Act the 1st Respondent threatened that he would put the Petitioner six feet deep - which meant causing death to the Petitioner.
Finally, the Petitioner alleges that the said illegal practices and offences were committed by the 1st Respondent personally or and his agents and supporters with his knowledge and consent or approval through the Military, Presidential protection Unit and other organs of the State attached to his office and under his command as the President, Commander-in-Chief of the Armed Forces.
The 2nd Respondent filed an answer to the petition accompanied by an affidavit sworn by its Chairman, Hajji Aziz Kasujja. In its answer the 2nd Respondent admits some of the alleged facts but gives explanations and denies others.
The 2nd Respondent denied creating new Polling Stations but stated that existing Stations were split to ease the voting process and it affected all candidates equally.
The 2nd Respondent denied refusing to supply to the Petitioner copies of the final Voters Register but stated that the non-delivery was due to insufficient time to prepare the Register. It further denied that it failed to efficiently compile, maintain and up-date the Voters Register and denied knowledge of dead or illegible people remaining of the Register. The 2nd Respondent stated that the Voters Register was displayed for five days throughout the country. It denied knowledge that polling agents of any presidential candidate was chased away, and denied that it or its agents allowed voting before or after official polling hours. The 2nd Respondent denied allowing the stuffing of ballot boxes, or anybody to vote more than once. It denied intruders being allowed to tamper with Voters Registers and Rolls or voting materials.
The 2nd Respondent admitted that one Commissioner and two other employees were arrested and charged in court and their cases had not been determined; and the matter was therefore subjudice. The 2nd Respondent denied knowledge that the agents of the 1st Respondent interfered with the electioneering activities of the Petitioner, or that people below the age of 18 years were allowed to vote. It denied allowing armed people in any Polling Stations. The 2nd Respondent averred that polling agents of all candidates has access to information concerning counting and tallying process, and that the results of the election were declared in compliance with the law. It denied knowledge of any abductions or arrests of the Petitioner’s agents or that its servants/agents ticked ballot papers in favour of the 1st Respondent and gave them to the voters.
The 2nd Respondent further stated in its answer to the petition that the Presidential Election process was conducted under conditions of freedom and fairness and that there was no proof of non-compliance with the Act, and that the non-compliance affected the result in a substantial manner. The 2nd Respondent denied knowledge of any allegations leveled against the 1st Respondent, and avers that the elections were free and fair as it reflected the wishes of the majority of Ugandans and international observers who monitored the elections throughout the country and confirmed this position.
In his answer to the petition accompanied by an affidavit sworn by him, the 1st Respondent denied that his agents/supporters did interfere “with the electioneering activities of the Petitioner and his agents” but he contended that the entire Presidential Electoral Process was conducted under conditions of freedom and fairness and that he obtained “more than 50% of valid votes of those entitled to vote”.
The 1st Respondent stated the statement that the “Petitioner was a victim of AIDS” was not made by the 1st Respondent publicly or maliciously for the purpose of promoting or procuring an election for himself contrary to section 65 of the Act but that it was true that a companion of the Petitioner, Judith Bitwire, and her child with the Petitioner died of AIDS. The 1st Respondent had known the Petitioner for a long time and had seen his appearance change over time to bear obvious resemblance to other Aids victims that the 1st Respondent had previously observed.
The 1st Respondent denied that neither him nor his agents with his knowledge and consent or approval offered gifts to voters with the intention of inducing them to vote for him.
The 1st Respondent stated that the entire electoral process was conducted under conditions of freedom and fairness and secure conditions necessary for the conduct of the election in accordance with the Act and other laws.
The 1st Respondent denied threatening that he would put the Petitioner six feet deep as alleged in the Petition but stated that prior to the election process, in his capacity as President and commander-in-Chief, he warned that any person who interfered with the army would be put six feet deep.
He stated that he made the statement on the 27th November 2000 at the National Conference of the Movement and made this statement for the security, good governance and order of the country to deter subversion in the army. The Respondent did not make the statement for the purpose alleged.
The Issues:
Five issues were framed by the Court in consultation with the Counsel for the parties. These were as follows:
1. Whether during the 2001 election of the President, there was noncompliance with provisions of the Presidential Elections Act, 2000.
2. Whether the said election was not conducted in accordance with the principles laid down in the provisions of the said Act.
3. Whether, if the first and second issues are answered in the affirmative, such non-compliance with the provisions and principles of the said Act, affected the result of the election in a substantial manner.
4. 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.
5. What reliefs are available to the parties?
I answered the first two issues in the affirmative and answered the third and fourth issue in the negative. Consequently I dismissed the Petition and ordered each party to bear its own costs.
The Burden of Proof:
All counsel for the parties in this petition agreed that the burden of proof lies on the Petitioner to prove the allegations made against the Respondents to the satisfaction of the Court. The common position is supported by the provisions of Section 58 (6) of the Presidential Elections Act as interpreted by judicial decisions. Section 58 (6) of the Act provides,
“the election of a candidate as President shall only be annulled on any of the following grounds if proved to the satisfaction of the Court-”

In Mbowe v Eliufoo (1967) EA 240 Georges, CJ in the Tanzanian High Court said at page 241,
“There has been much argument as to the meaning of the term “proved to the satisfaction of the Court.
In my view it is clear that the burden of proof must be on the Petitioner rather than the Respondents because it is he who seeks to have this election declared void”

The decision in Mbowe v Eliufoo (supra) has been cited with approval by the Uganda Courts in the cases of Odetta v Omeda, Election Petition NO.1 of 1996 Margaret Zziwa v Naava Nabagesera, Civil App. No. 39 of 1 997 (CA). Katwiremu Bategana v Mushemeza and 2 Others, Election Petition No.1 of 1966 (HC) Mbarara) and Ayena Odong v Ben Wacha & Another, Election Petition No.2 of 1966 (HC.).

In my view the burden of proof in election petitions as in other civil cases in settled. It lies on the Petitioner to prove his case to the satisfaction of the court. The only controversy surrounds the standard of proof required to satisfy the court. Counsels for the parties were generally agreed on the standard of proof. Mr. Balikuddembe submitted that the standard is not proof beyond reasonable doubt but a standard slightly higher than in an ordinary civil case, that standard being the required to prove an allegation of fraud. For the Respondents both Mr. Kabatsi and Dr. Khaminwa agreed that the standard is not proof beyond reasonable doubt, but very close to it.
The courts in Uganda have not been consistent but the preponderance of opinion has gravitated towards the standard of proof of beyond reasonable doubt, which is the standard required in criminal cases. In Katwiremu Bategana v Mushemeza & Other (supra) Musoke Kibuuka, J said,

“A number of decisions of this Court in recent election petition trials have come out to state in no uncertain terms that the standard of proof which is required for proving allegation in election petition is proof beyond reasonable doubt. This was the position adopted, for instance by Ouma J in Michael A. Qgola v Akika Othieno Emmanuel, Election Petition No.2 of 1996 (at Tororo High Court Registry). It was also the position adopted by G. M. Okello, J in Ayena Odongo K C v Ben Wacha_and R O Apac Election Petition No.2 of 1996 (at Gulu High court Registry). The same position was adopted by Lady Justice Mpagi Bahigeine in Aloysius Liiga v Wasswa John Richard, Election Petition No.2 of 1996 at Mukono. On the other hand Katutsi, J in Alisemera Babiiha v R. O. Bundibugvo v Bikorendia Aida, Election Petition Dir MFP 1 of 1996 at Fort Portal High Court Registry after reviewing the decisions in both Mbowe’s case and Baters case (both supra) had the following to state,
‘The standard of proof therefore required to prove these allegations must be proportionally higher than in ordinary civil suits. This is the standard of proof I will adopt in this case’.”

Musoke Kibuuka, J agreed with the view held by Katutsi, J when he concluded,

“There is therefore one important aspect of this procedural dichotomy. That is the fact that everyone seems to be agreed that whatever name is given the standard of proof required for an allegation to be proved to the satisfaction of the court under Section 91 (1) of the parliamentary Elections (Inter IM Provisions) Statute 1996 is proof which is higher than that which is required in ordinary civil suits. That in my view is sufficient for the disposal of the allegations made in this petition.”

On the other hand in Margaret Zziwa and 2 others (supra) the Court of Appeal of Uganda said,
 
“The effect of the holding in the Mbowe case and the Uganda cases that have followed that decision, is that grounds for setting aside an election of a successful parliamentary candidate set out in S.91 of Statute 4 of 1996 must be proved beyond reasonable doubt. This is because the court cannot be satisfied if there was a reasonable doubt.”
The difference of opinion on the standard of proof in election petitions springs from the interpretation given to the decision of the Court of Appeal in Bater v Bater (1950) 2 All ER 456. This was a divorce case where in dismissing the petition of the wife on the ground of cruelty, the court said that she must prove her case beyond reasonable doubt. On appeal the Court of Appeal held that this was a correct statement of the law and the court had not misdirected itself.
Bucknill L J said,
“I do not understand how a court can be satisfied that a charge has been proved - and the statute requires that the court shall be satisfied before pronouncing a decree - if at the end of the case the court has a reasonable doubt whether the case has been proved. To be satisfied and at the same time to have a reasonable doubt seems to me to be an impossible state of mind. I will add this. I regard proceedings for divorce as proceedings of a very great importance, not only to the parties, but also to the State. If a high standard of proof is required because of the importance of a particular case to the parties and also to the community, divorce proceedings require that high standard.”
Denning LJ on his part sought to play down the difference of opinion on the standard of proof. He thought it was a matter of playing with words as there was no absolute standard in either civil or criminal cases, the standards varying from case to case depending on the gravity of the matter. He observed,
“The difference of opinion which has been evoked about the standard of proof in these cases may well turn out to be more a matter of words than anything. It is true to that by our law there is a higher standard of proof in criminal cases than in civil cases, but this is subject to the qualification that there is no absolute standard in either case. In criminal cases the charge must be proved beyond reasonable doubt, but there may be degrees of proof within that standard. Many great judges have said that in proportion as to the crime is enormous so ought the proof to be clear. So also in civil cases. The case may be proved by a preponderance of probability but there may be degrees of probability within that standard. The degree depends on the subject matter. A civil court when considering a charge of fraud will naturally require a higher degree of probability than that which it would require if considering whether negligence were established. It does not adopt so high a degree as a criminal court, even when considering a charge of a criminal nature, but still it does require a degree of probability, which is commensurate with the occasion. Likewise, a divorce court should require a degree of probability which is proportionate to the subject matter. -
Bater v Bater (supra) was divorce case; but it was followed in Mbowe v Eliufoo (supra), which was dealing with an election petition, because the wording of the sections imposed the burden of proof on the petition to prove the allegations to the satisfaction of the court
In Mbowe v Eliufoo (supra) Georges, CJ said,
“And the standard of proof is one which involves proof to the satisfaction of the court. In my view these words in fact mean the same thing as satisfying the court. There have been some authorities on this matter and in particular there is the case of Bater v Bater (supra). That case dealt not with election petitions, but with divorce, but the statutory provisions are similar i.e. the court had to be satisfied that one or more of the grounds set out in S.99 (2) (a) has been established. There Denning, CJ in his judgement took the view that one cannot be satisfied where one is in doubt. Where a reasonable doubt exist then it is impossible to say that one is satisfied and with that view I quite respectfully agree and say that the standard of proof in this case must be such that one has no reasonable doubt that one or more of the grounds set out in S.99 have been established.”
It should be noted that Georges, CJ carefully avoided holding that the standard of proof was beyond reasonable doubt. On a subsequent English case, Blyth v Blyth (1966) A C 643, the House of Lords in a divorce case based on adultery by a wife, who pleaded condonation, it was held that there was no statutory requirement that the absence of condonation must be proved beyond reasonable doubt. In matrimonial cases, as in other civil cases, the proof must be by a preponderance of probability, the degree of probability depending on the subject matter, so that in proportion as to the offence is grave, so the proof should be clear. It is interesting to note that two out of three Lords dissented. Lord Denning who was among the majority had this to say,
“My Lords, the word “satisfied” is a clear and simple one and one that is well understood. I would hope that interpretation or explanation of the word would be unnecessary. It needs no addition. From it there should be no subtraction. The courts must not strengthen it: nor must they weaken it. Nor would I think it desirable that any kind of gloss should be put upon it. When Parliament has ordained that a court must be satisfied only Parliament can prescribe a lesser requirement. No one whether he is a judge or juror would in fact be “satisfied” if he was in a state of reasonable doubt. It may be however that in some sets of circumstances and in regard to some issues the state of being satisfied (and so eliminating reasonable doubt) is much more easily reached than in others. The measure of what is a reasonable doubt will vary with the circumstance. But the standard of proof has been laid down by parliament when it directs that a court must be satisfied.”
I entirely agree with those observations by Lord Denning. The standard of proof required in this petition is proof to the satisfaction of the court. It is true t hat a court may not be satisfied if it entertains a reasonable doubt, but the degree of proof will depend on the gravity of the matter to be proved.
An election petition is not a criminal proceeding. Section 58 (7) of the Presidential Elections Act provides that nothing in this section confers upon the Supreme Court when hearing an election petition power to convict a person for a criminal offence. The high standard of proof in criminal cases is intended to protect the liberty of the citizen. If the legislature intended to provide that the standard of proof in an election petition shall be beyond reasonable doubt, it would have said so. Since the Legislature chose to use the words “proved to the satisfaction of the court”, it is my view that that is the standard of proof required in an election petition of this kind. It is a standard of proof that is very high because the subject matter of the petition is of critical importance to the welfare of the people of Uganda and their democratic governance.
Affidavit Evidence:
All evidence at the trial of an election petition is required to be adduced by affidavits. Cross-examination of the deponents may be permitted only with the leave of the court. This is provided in Rule 14, which states in material parts as follows:
“(1) Subject to this rule, all evidence at the trial, in favour of or against the petition shall be by way of affidavit read in open court.
(2) With leave of the court, any person swearing an affidavit which is before the court may be cross-examined by the opposite party and reexamined by the party on behalf of whom the affidavit is sworn.”
Accordingly parties filed many affidavits to support their respective cases. The Petitioner filed 174 affidavits both in support of the petition and in reply to the affidavits of the 1st and 2nd Respondents, who in turn filed 133 and 88 affidavits respectively. The filing of affidavits continued throughout the hearing of the petition. However, leave was granted to the Petitioner to call and cross-examine one deponent, Dr. Diana Atwine, who had sworn an affidavit in support of the 1st Respondent.
Mr. Nkurunziza learned counsel for the 1st Respondent submitted that three categories of affidavits were filed by the Petitioner as follows:
(i)     
Affidavits which are inadmissible in law.
(ii)     Affidavits specifically referred to in submission by the counsel for the Petitioner.
(iii)    Affidavits filed but not referred to during submissions.
As regards affidavits, which are inadmissible in law, Mr. Nkurunziza identified again three categories namely,
(i)     
Affidavit sworn outside Uganda.
(ii)     Affidavits sworn before advocates appearing in the petition.
(iii)    Affidavits sworn in breach of Order 17r.3 of the Civil Procedure Rules.
Mr. Balikuddembe learned leading counsel for the Petitioner challenged the admissibility of the affidavit accompanying the answer of the 1st Respondent.
Hon. Okwir Rwaboni filed an affidavit sworn before a Solicitor in the United Kingdom. It was submitted by Mr. Nkurunziza that under section 7(3) of the Statutory Declarations Act No.10 of 2000, a statutory declaration taken outside Uganda cannot be received in evidence unless it is registered under the Registration of Documents Act. In this case, there was no evidence that Hon. Okwir’s declaration was registered. Mr. Balikuddembe learned leading counsel for the Petitioner argued that Hon. Okwir’s affidavit was sown for use in this court and was admissible by virtue of the provisions of Sections 3 and 4 of the Statutory Declarations Act 2000.
Section 3 of the Statutory Declarations Act provides,
“After the commencement of this Act no affidavit shall be sworn for any purpose except -
(a) Where it relates to any proceedings application or other matter commenced in any court of referable to a court
(b
) Where under any written law an affidavit is authorised to be sworn.”

On the other hand Section 4 provides that in every case to which Section 3 does not apply, a person wishing to depose to any fact for any purpose may do so by means of statutory declaration.

Under Section 7(1) a person wishing to depose outside Uganda to any fact for any purpose in Uganda, he may make a statutory declaration before any person authorised to take a statutory declaration by the law of the country in which the declaration is made. It is provided under Section 7(3) that a statutory declaration taken outside Uganda under this section shall not be admissible in evidence unless it is registered with the Registrar of documents under the Registration Documents Act.

The issue in this case in whether the document filed by Hon. Okwir is an affidavit or a statutory declaration. The document is headed “affidavit”. But at the end of it he stated “And I made this solemn declaration conscientiously believing the same to be true and by virtue of the Statutory Declarations Act 1 35.” It was declared before Solicitor/Commissioner for Oaths.

It seems to me the Hon. Okwir intended to swear an affidavit, but the form the document took was that of a statutory declaration. If the document was for use in these court proceedings it could not be a statutory declaration but an affidavit. The document was witnessed by a Solicitor/Commissioner for Oaths who had the power to administer an affidavit. The most important element is that it was made on oath. I think this is a matter of form which I should disregard by applying the principle set out in article 126 that substantial justice shall be administered without undue regard to technicalities, given the special circumstances of this Petition.
Eleven affidavits were challenged as in admissible on account of having been sworn before two advocates who were part of the team of counsel for the Petitioner, namely Mr. Kiyemba Mutale and Mr. Wycliff Birungi. Mr. Balikuddembe counsel for the Petitioner stated from the Bar that by the time the two advocates commissioned the affidavits, there were not members of the team representing the Petitioner. This statement was not challenged.

The proviso to Section 5(1) of the Commissioner for Oaths (Advocates) Act Cap. 53 states,
“Provided that a Commissioner for Oaths shall not exercise any of the powers given under this section in any proceeding or matter in which he is the advocate for any of the parties to the proceedings or concerned in the matter or clerk to such advocate or in which he is interested.”

In view of the fact that Mr. Balikuddembe’s statement was not challenged nor is there evidence to prove that the two advocates were already acting for the Petitioner or otherwise participating in the proceedings I am not satisfied that the affidavits they commissioned are inadmissible.
It was submitted for the 1 St Respondent that the many affidavits filed by the Petitioner offended Order 17 r.3 of the Civil Procedure Rules and were therefore in admissible. Order 17 r.3 provides,

“(1) Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except in interlocutory applications, on which statements of his belief may be admitted provided that the grounds thereof are stated-”
(2) The costs of every affidavit which shall unnecessarily set forth matters of hearsay or argumentative matter or copies of or extracts from documents shall unless the court otherwise directs, be paid by the party filing the same.”

Mr. Nkurunziza learned counsel for the Respondent submitted that this petition was not an interlocutory proceeding but a final proceeding which will determine the rights of the parties conclusively and therefore any affidavit which is not confined to such facts as the deponent is able to prove by his own knowledge is in breach of this rule and should be rejected by the court. Counsel relied on the decisions in Paul Semogerere and Z. Olum v Attorney General, Constitutional Petition No.3/99, Charles Mubiru v Attorney General, Constitutional Appeal No.1 of 2001. Kibwimukva v Kasigwa (1978) HCB –

Learned counsel submitted further that the affidavits did not distinguish which facts were based on knowledge, and which were based on information and belief, nor were the sources of information disclosed. He also contended that is was not possible for a court to server defective parts from other parts in an affidavit but the defective portion vitiated the whole document. He relied on the decision of the High Court in Sirazali C M Hudoni v Amiran, Tejani and Others HCS No.712 of 1995,

Mr. Balikuddembe learned counsel for the Petitioner submitted that the court had discretion to admit some parts of the affidavit and reject other which are defective in the same way the court has power to reject hearsay evidence. He referred to the decision of the Supreme Court in Reamation Ltd. v Uganda Cooperative Creameries Civil Appl. No.7/2000 and Motor Mart (U) Ltd. v Yona Kanyomozi Civil Appl. No.6 of 1999 where he contended that the court exercised its discretion to sever the affidavit and exclude hearsay matters.

In Assanand & Son Uganda Ltd. v East African Records Ltd. (1 959) EA 360 and Caspair Ltd. v Harry Grandy (1962) EA 414, the Court of Appeal held that a court should not act on an affidavit which did not distinguish between maters stated on information and belief and matters to which the deponent swears from his own knowledge, or an affidavit which does not set out the deponents means of knowledge or his grounds of belief regarding the matter stated on information. In Assanand & Sons v EA Records (1 959) EA 360 at p.364, the learned President of the Court of Appeal said,
 
“The affidavit of Mr. Campbell was deficient in three respects. First it did not set out the deponent’s means of knowledge or his grounds or belief regarding the matters stated on information and belief, and secondly it did not distinguish between matters stated in information and belief and matters deposed to from the deponents knowledge (see O. XVIII r.3 (1) and Standard Goods Corporation Ltd. v Harakchand Nathu &. (1950) 17 EACA 99). The court should not have acted upon an affidavit so drawn.”
In Standard Goods Corporation Ltd. v Harakchand Nathu & Co. (1950) 17 EACA 99 the Court of Appeal held that it is well settled that where an affidavit is made on information it should not be acted upon by the court unless the sources of information are specified. At p.100, the court said

“The affidavit in question consisted of seven paragraphs. Para 2 was the facts stated herein are within my knowledge; and para 7 was what is stated herein is true and correct to the best of my knowledge and information. As regards paragraph 2, I would observe that facts can be within a person’s knowledge in two ways: (1) by his own physical observation or (2) by information given to him by someone else. It is clear that reading paragraphs 2 and 7 of the affidavit together, the deponent was stating facts without stating which were from his own observation and which were from information. An affidavit of this kind ought never to be accepted by a court as justifying an order based on the so called facts.”

Affidavits based on information and belief should be restricted to interlocutory matters. In proceedings which finally determine the matter only affidavits based on the deponent’s knowledge should be acted upon. See Paulo K. Ssemogerere and Z Olum v Attorney General, Constitutional Petition No.3 of 1 999, and Charles Mubiru v Attorney General, Constitutional Appeal No.1 of 2001. In Paulo K. Ssemogerere and Z. Olum v. Attorney General (supra) the Constitutional Court of Uganda held (per Berko JA):
 
“except in purely interlocutory matters affidavits must be restricted to matters within the personal knowledge of the deponent. They must not be based on information or be expression of opinion. Affidavits should be strictly confined to such facts, as the deponent is able of his own knowledge to prove. Affidavits by person having no personal knowledge of the facts and merely echoing the statement of claim cannot be used at the hearing.”

The Court of Appeal distinguished the cases of Nassand & Sons (Uganda) Ltd v East African Records Ltd (1959) EA 360, Standard Goods Corporation Ltd. v Harakchand Nathu 7 Co. (1950) 17 EACA 99 and Aristella Kabwimukya v John Kasigwa (1 978) HCB which concerned interlocutory applications.

The Court pointed out,
“A Constitutional Petition is not an interlocutory application. Therefore an affidavit in support of it must be restricted to facts the deponent is able of his own knowledge to prove and not facts based on information and belief”
It held that an affidavit based on information given to the deponent by someone else is hearsay and inadmissible to support the petition.

In Charles Mubiru v Attorney General Constitutional Appeal No. 1 of 2001, the Constitutional Court of Uganda held, relying on its decision in Ssemogerere & Another v Attorney General (supra) that an affidavit by the Petitioner which was merely echoing the information his advocate has given him was not based on his personal knowledge and could not be relied upon in a Constitutional Petition. An election petition is not an interlocutory proceedings but a final proceedings, which is aimed at determining the merits of the case. Therefore affidavits admissible in such proceedings must be based on the deponent’s knowledge, not on his information and belief.

The issue for determination is what should be the fate of affidavits filed by either party, which do not strictly comply with the law as stated above. Specifically, should all the affidavits which do not contain matters deposed from the deponent’s knowledge as well as those based on information and belief be acted upon whether they distinguish which facts are deposed from own knowledge and those based on information and belief?

There are two types of affidavits. The first is one, which distinguishes the facts based on knowledge and those on information and belief. The second category are those affidavits which contain matters based on knowledge, information and belief without distinguishing which facts are based on knowledge. A common formula for ending the second category of affidavits is “That all that is herein stated is true and correct to the best of my knowledge and belief” as most of the affidavits in Vol. 2 of the Petitioner’s affidavits. Facts based on belief are inadmissible in an election petition.

It was submitted for the Petitioner that the Court has discretion to sever the defective parts of affidavit, and act on the rest of the affidavit. There is some authority for the proposition that in proper cases, a court may sever parts of the affidavit, which are defective or superfluous instead of rejecting the whole affidavit.

In Nandala v Lyding (1963) EA 706 the affidavit supporting an application ended in para 6 with the words that “what is stated therein is true to my best of my knowledge, information and belief”.

At the beginning of the hearing of an application, counsel for the defendant submitted that the whole affidavit should be struck off as it contravened 0. 17 r 13 of the Civil Procedure Rules as it did not disclose the source of the deponent’s knowledge, information and belief. Sir Udo Udoma CJ held that the concluding paragraph of the affidavit was empty verbiage and unnecessary and that it should be struck off since the contents of the rest of the affidavit were statements of facts within the knowledge of the plaintiff and related to his own personal knowledge and accordingly 0.1 7 r 3 was not contravened.

Udo Udoma, CJ said at page 710,

“I am satisfied that the contents of pare. 6 of the affidavit are mere empty verbiage - a surplusage - which bear no relation to the contents of the affidavit as a whole. It is therefore severable from the rest of the remaining paragraphs of the affidavit, as in my view, the contents of pares 1-5 of the affidavit are statements of facts pecuniary within the knowledge of the deponent and relate to his own personal activities.
In the circumstances I would strike off para 6 of the affidavit leaving thereby the rest of the affidavit as I am satisfied that the Contents thereof are facts which the deponent is able of his own knowledge to prove. Accordingly para 6 of the affidavit is hereby struck off”

In Zola v Ralli Bros Ltd (1969) EA 691 the East African Court of Appeal held that the trial Judge could exercise his discretion to act on an affidavit which was merely defective in some respects, and was not a nullity. Newbold R said at page 693,
 
“As regards the submission that the affidavit of Mr. Harkness was a nullity because it failed to comply with the provisions of 0.18 and 0.35 and the trial judge should not have acted upon it but should have dismissed the motion. I agree that if the affidavit is a nullity then the trial judge could not act on it and the motion should have been dismissed. As I have said in other cases the courts should hesitate treat an incorrect or irregular act as a nullity, particularly where the act relates to matters of procedure [see Prabhudas & Co. v The Standard Bank Ltd. (1968) EA 670]. It was urged that Mr. Harkness could not swear positively to the facts verifying the cause of action, It is difficult to envisage, in the circumstances of this case, of a more suitable person to swear the affidavit on behalf of plaintiffs, who could not themselves swear to it, than Mr. Harkness, who was the manager of the Standard Bank, one of the plaintiffs, and who had personal knowledge of at least some of the relevant facts and who would be intimately concerned with the accounts of the parties in the Standard Bank. It is to be noted that according to his affidavit the amounts lent by the plaintiffs were credited to the account of the Sisal Co. in the branch of the Standard Bank of which he was manager. It was also urged that the affidavit did not distinguish clearly between those facts within the knowledge of Mr. Harkness and those facts stated on information and belief, nor did it set out Mr. Harkness’s means of knowledge, nor the grounds for belief on matters stated on information and belief. I do not agree. There is scarcely and affidavit, or indeed any document, which cannot be criticised. It may be that the affidavit could have been more explicit in certain respects, but there is set out there in the means of knowledge and the grounds of belief and the source of information in respect of each of the matters stated on knowledge, belief or information. I am satisfied that the affidavit complied with the provisions of 0.35 and 0.18 and substantially with the requirements relating to affidavits as set out in the decisions of this court in Assanand & Sons v East African Records. (1959) EA 360 and Standard Goods Corporation v Nathu & Company (1950), 17 EACA 99, to which we were referred by Mr. Salter. I am also satisfied that there is no reason to hold that the affidavit was a nullity. If it was merely irregular in some respects it was open to the trial judge in his discretion to act upon it. He has done so and I see no reason whatsoever, to interfere with the exercise of his discretion.”
In Reamation Ltd. v UGANDA Corporation Creameries Ltd. and Another Civil Application No.7 of 2001, Motor Mart (U) Ltd. v Yona Kanyomozi Civil Appl. No.6 of 1 99 and Yona Kanyomozi v Motor Mart (U) Ltd. No.8 of 98, the Supreme Court adopted a liberal approach to affidavits. In Yona Kanyomozi v Motor Mart (U) Ltd. (supra) Mulenga, JSC held that some parts of counsel’s affidavits were false and that those parts were irrelevant to the application and could be ignored. On a reference to the full Court, it was argued that the impugned affidavit was capable of severance as the single judge did before arriving at his decision. The full court held that it was unable to interfere with the discretion exercised by the single judge.
From the authorities I have cited there is a general trend towards taking a liberal approach in dealing with defective affidavits. This is in line with the constitutional directive enacted in article 126 of the Constitution that the courts should administer substantive justice without undue regard to technicalities. Rules of procedure should be used as handmaidens of justice but not to defeat it.
In the present case, the only method of adducing evidence is by affidavits. Many of them have been drawn up in a hurry to comply with the time limits for filing pleading and determining the petition. It would cause great injustice to the parties if all the affidavits which did not strictly conform to the rules of procedure were rejected. This is an exceptional case their all the relevant evidence that is admissible should be received in court. I shall therefore reject those affidavits, which are based on hearsay evidence only. I shall accept affidavits, which contain both admissible and hearsay evidence but reject the parts, which are based on hearsay, and only parts which are based on knowledge will be relied upon. As order 17r 3 (2) provides the costs of affidavits which contain hearsay matters should be borne by the party filing such affidavits.
Many affidavits were filed by the Petitioner but not specifically referred to by his counsel in their submissions. Counsel provided a list of such affidavits.
There was also a list showing affidavits of the Petitioner, which had not been rebutted or controverted. It was submitted that such affidavit should be taken to be admitted. I do not agree that they should be taken as gospel truth. I shall take into account all the various affidavits depending on their status and probative value as evidence in determining the issues in this petition.
Objection was raised to the admissibility of the affidavit sworn by the 1st Respondent in support of his answer to the Petition. Mr. Balikuddembe learned counsel for the Petitioner submitted that the affidavit did not conform to the form of the jurat, in that the affidavit does not show before whom the affidavit was sworn.
Section 6 of the Commissioner for Oaths (Advocates) Act states,
“Every Commissioner for Oaths before whom any oath or affidavit is taken or made under this Act shall state truly in the jurat or attestation at what place and on what date the oath or affidavit is taken or made.”
Rule 9 of the schedule provides that the form of jurat is set out in the third schedule to the Rules. The form of Jurat is as follows:
“Sworn/Declared before me……. this ………Day of ………..20….. at……………
COMMISSIONER OF OATHS”
The 1st Respondent’s affidavit did not indicate the name or the title of the person before whom it was made. It merely contained a signature and the seal of High Court. It was submitted for the Respondent that the signature was that of the Registrar of the High Court, Mr. Gidudu who had power to administer an affidavit by virtue of his Office. Mr. Gidudu subsequently made an affidavit confirming that he is the person before whom the affidavit was sworn.
The Registrar of the High Court has by virtue of his Office all the powers and duties of a Commissioner for Oaths in accordance with Section 4 of the Commissioner for Oaths (Advocates) Act. The Registrar’s jurat fulfilled the essential requirements of the jurat namely the place and date the affidavit was made. But it should have included his name and title to strictly comply with the Form of Jurat contained in the schedule. The lack of proper form was however cured by the affidavit sworn by Mr. Gidudu. Accordingly, the objection raised against the affidavit sworn by the 1st Respondent had no merit.
Section 58 (3) of the Act requires this Court to inquire and determine the petition expeditiously and to declare its findings within thirty days from the date the petition is filed. It seems to me that it is by reason of expedition that all evidence at the trial has to be by affidavit. However, this mode of trial may not be suitable for an important and controversial case like this where the court is denied the opportunity to see the witnesses and to subject them to cross examination so that the court can properly and fairly assess the credibility and veracity of the witnesses which is necessary for the ascertainment of the truth. It is hoped that the procedure and period of hearing of petitions in presidential elections will be reviewed.
Issue No. 1: Non-compliance with the Provisions of the Act:
The first issue was whether during the 2001 election of the President there was non-compliance with the provisions of the Presidential Elections Act 2000 Section 58 (6) (a) of the Act provides,
(6.) The election of a candidate as a President shall only be annulled on any of the following grounds if proved to be satisfaction of the Court
(a)     
non-compliance with the provisions of this Act, if the Court is satisfied that the election was not conducted in accordance with the principles laid down in those provisions and that the noncompliance affected the result of the election in a substantial manner.
Due to the manner in which the Section is drafted, four issues were framed arising from it relating to the non-compliance with provisions, non-compliance with principles and the effect of non-compliance on the result. I think that it would have been more convenient to combine the first and second issues because they are closely linked. Mere non-compliance with the provisions of the act does, not seem to be sufficient unless it resulted in a breach of the principles laid down in the Act.
The second difficulty with the Section arises out of the provisions of Section 2 (2) of the Act, which provides,
“The Commission Act shall be construed as one with this Act.”
This formula of drafting was explained in Craines on Statute Law 7th edn. 1 971 at page 1 38 as follows:
“Act to be construed as one with another
It is now a common Practice to insert clauses which make certain Acts one for the purposes of Construction i.e. certain Acts which are to be read with one another Act or Acts. The effect of enacting that an Act shall be construed as one with another is that the court must construe as one with another Act is that the court must construe every part of each of the Acts as it had been contained in one Act, unless there is some manifest discrepancy making it necessary to hold that the later Act has to some extent, modified something found in the earlier Act or that from internal evidence the reference of the later to the earlier Act does not effect a complete incorporation of the provisions of the two Acts.”
A similar interpretation and purpose is given in Halsburys Laws or England 4th edn. Para 890 page 544.
The Presidential Elections Act and the Electoral Commissions Act must therefore be read together and every provision of each of the Acts must be interpreted as if it has been incorporated in one Act, unless there is a clear inconsistency or ambiguity which is resolved by holding that the later Act modified the earlier Act. This technique of drafting is sometimes referred to as incorporation by reference and is not free from difficulties of interpretation.
It seems to me that the grounds for annulling a Presidential Election must be those contained only in the Presidential Elections Act. Therefore the phrase “non-compliance with the provisions of this Act” appears to mean non-compliance with the provisions of the Presidential Elections Act only. However when considering non-compliance with the principles of the Act, it seems to me necessary to take into consideration the provisions of the Electoral Commission Act which contain the principles relating to a free and fair election.
It was submitted for the Petitioner that failure to comply with the provisions of the Electoral Commission Act is a ground for annulling a Presidential Election.
The 2nd Respondent averred in the answered to the Petition that such noncompliance is not a ground for annulling a Presidential Election.
In my view non-compliance with the provisions of the Commission Act is not per se a ground for annulling a Presidential Election. Such non-compliance can be a ground if it affects the principles behind the provisions of the Presidential Elections Act, which govern the annulment of Presidential Elections.
The presentation of the case for the Petitioner on the first issue dealt with all the allegations of non-compliance with the provisions of the Act against the 2nd Respondent. For convenience of consideration of the issues and to avoid unnecessary repetition, I shall deal with the allegations of non-compliance with the Act under the first issue, and those of non-compliance with the principles of the Act under the second issue.
Failure to Supply the Voters’ Register:
The Petitioner alleges in paragraph 3(1) (d) of the Petition that contrary to Section 32(5) of the Act, the 2rd Respondent completed compiling a purported Final Voters Register on Saturday 10th March 2001 and failed when requested by the Petitioner to supply copies of the same to the Petitioner and his agents although the Petitioner was ready and willing to pay for them. In its answer to the Petition, the 2nd Respondent denied ever refusing any request by the Petitioner for copies of the final Voters Register as alleged but stated that non-delivery thereof was due to insufficient time to prepare the Register.
Section 35 (1) of the Act provides that a candidate may be present in person or her representatives or Polling Agents at each Polling Station for the purpose of safeguarding the interests of the candidate with regard to the polling process. Sub-section (5) states,
“(5) The Polling Agents shall have an official copy of the Voters Register of the Polling Station at the candidates cost.”
In his affidavit in support of the Petition, the Petitioner stated that he had applied through his National Co-coordinator to be supplied with copies of the Final Voters Register for use by him and his Polling Agents on payment of the necessary charges by him, but the 2nd Respondent did not do so. In answer to the Petitioner’s affidavit, Mr. Aziz Kasujja, Chairman of the 2nd Respondent, admitted receiving the Petitioner’s request for a copy of the Register on 11 March 2001 but explained that there was no sufficient time to print the Register for the Petitioner on the eve of polling day, and he informed the Petitioner’s Agent verbally.
No sound reason is given why the Voters Register could not be printed in time to be supplied to the Petitioner as required by law.
I am satisfied on the admission of the 2 Respondent that it did not comply with the provisions of Section 32(5) of the Act, in that it failed to supply the Petitioner with an official copy of the Voters Register for use by his agents on polling day.
Non-compliance with Respect to Polling Stations:
The Petitioner complains in para 3(1) (a) of the Petition that on l0th March 2001 less than 48 hours before the Polling day in addition to the Polling Stations duly published in the Uganda Gazettes of 22nd December 2000, 19th February 2001 and 9th March 2001 the 2nd Respondent made and added new Polling Stations out of time contrary to the provisions of Section 28 (1) (a) of the Act.
In paragraph 3(1) (b) of the Petition, the Petitioner complains that contrary to Section 28 of the Act the 2nd Respondent failed to publish a full a list of all Polling Stations in each Constituency 14 days before nomination day of 8th and 9th January 2001.
In his affidavit in support of the Petition, the Petitioner avers that on 11th March 2001 the 2nd Respondent supplied him with a list of gazetted Polling Stations with added new and ungazetted Polling Stations and as a result he failed at the eleventh hour to appoint and deploy his polling agents to supervise all these new polling stations and safeguard his interests.
In the letter forwarding the list of all Polling Stations to all Task Force Mr. Kasujja stated,
“The Electoral Commission informs all Presidential Candidates that the list of all Polling Stations countrywide is herewith attached.
NOTE: That some of the Polling Stations have been split for purposes of easing the voting process.
For this purpose Polling Agents for each candidate should be appointed in the spilt Polling Stations.
Please note that the changes have been alphabetically effected on the Register.
It should also be noted that these are not new Polling Stations. A copy of this letter hereby informs the Returning Officers and the respective Presiding officers.”
In his affidavit in reply to 2nd Respondent affidavit, the Petitioner alleged that there were 29 new Polling Stations in Makindye Division East with different station codes. He also cited new Polling Stations in Soroti Municipality and Nakawa Division in Kampala.
The 2nd Respondent pleaded in answer to the Petition that no new Polling Stations were, created but rather some existing Polling Stations were split for purposes of easing the voting process due to the big voters in those stations and that it was within the 2nd Respondent’s powers to split the said Polling Stations. In his affidavit accompanying the answer, the Chairman of the 2nd Respondent Mr. Aziz Kasujja reaffirmed what had been pleaded in answer and added that all the candidates were duly informed and were able to appoint agents for those polling stations. In his supplementary affidavit in reply Mr. Kasujja denied that the splitting of Polling Stations was done to rig elections in favour of any candidate but to provide voter convenience, and that it was not necessary to display the Voters Rolls for the split Polling Stations as the Voters Rolls for the parent stations which included list of voters for the split stations had already been displayed.
Section 28 of the Act requires the Commission to publish a list of Polling Stations and supply the lists to all returning officers. The relevant provision reads:
“(1) The Commission shall by notice in the Gazette publish
(a) a list of the Polling Stations in each constituency at least fourteen days before nomination; and
(b) A list of the candidates nominated in alphabetical order with surnames first.
(2) The Commission shall forward each list referred to in subsection (1) to all returning officers; and the returning officers shall ensure that the lists relevant to each constituency are published widely in that constituency.”
It was contended for the 2nd Respondent that the list of 11th March one-day before the polling day, did not contain new Polling Stations, but split ones. But according to the evidence of Mr. Mukasa David Bulonge the Head of the Election Monitoring Desk of the National Task Force of the Petitioner, that list contained 1176 new Polling Stations while 303 were missing although originally appearing in the previous gazettes. Examples of new stations were given in Makindye Division East, Soroti Municipality and Nakawa Division in Kampala.
In his supplementary affidavit in reply, Mr. Kasujja admits that some Polling Stations which had been gazetted were deleted from the list published on March 2001 but he explains that this was due to movement of people and the need to create voter convenience. He explains that such was the case in Kotido and Kapchorwa Districts, and also in Kkome Island sub-county in Mukono District. Mr. Kasujja’s explanation about giving separate code number to so-called split Polling Stations was merely for administrative convenience.
The issue is whether the 2nd Respondent published a list of the Polling Stations for each constituency at least fourteen days before nomination of candidates. It is common ground that nomination of candidates was conducted on 8th and 9th January 2001. It is also not in dispute that the list of Polling Stations was published in the Uganda Gazettes of 22nd December 2000, 19th February and 9th March 2001. It is also admitted that the 2nd Respondent supplied the Petitioner with a list of gazetted Polling Stations on 11th March. It is clear that only the publication of the list 22nd December 2000 was within the prescribed period. The lists of February 19th and March 9th and 11th were outside the prescribed period.
The evidence on record shows that in Makindye Division East the list of 11th March 2001 indicated 29 more additional Polling Stations than the list published in the Gazette of 22nd December 2000. The number of Polling Stations in all the 7 (seven) parishes was increased by varying numbers and there is no evidence to show that the split or additional Polling Stations were part of other Polling Stations.
In Soroti Municipality there were originally two Polling Stations as per gazette of 22nd December 2000, but in the list of 11th March 2001, there were four Polling Stations with separate codes. In Kinambogo Parish Buyende sub-county in Kamuli District, the original number of Polling Stations was four but on 11th March the number was increased to five. In Nakawa Division, Mbuya I Parish, the number of Polling Stations was increased from 8 to 10.
After carefully evaluating the evidence on this matter of additional Polling Stations I find that the split stations were in fact new Polling Stations with different codes. It is not necessary to establish the number of additional Polling Stations but the Petitioner’s evidence which was not challenged put the number at 1176. The publication of these additional Polling Stations on 11th March 2001 was grossly out of time.
I must therefore find that the 2nd Respondent did not comply with the provisions of Section 28 of the Act when it failed to publish in the Gazette 14 days prior to the nomination of candidates’ a complete list of Polling Stations that were used in the Presidential Election.
Conclusion on Issue No.1:
In his submission Mr. Mbabazi referred to the functions and powers of the 2nd Respondent in respect of registration of voters, update of Voters Registers, compilation of the Register and supply of Voters Roll to candidates agents, and submitted that there was no National Voters Register by 22nd January 2001, the date appointed by the 2nd Respondent as when the exercise of updating the Voters Register would be completed. He submitted further that the 2nd Respondent failed to supply the Voters Roll to the Petitioner because the Register was not ready.
He argued that the display period was inadequate and contrary to the prescribed period of 21 days. He contended that the issuance of cards was not properly done as the number of registered voters was not known. He submitted that in Makindye Division, there was an excess of votes by 97,787, and yet the 2nd Respondent explained that this was due to arithmetic error.
Mr. Mbabazi learned counsel for the Petitioner submitted that there was no National Voters Register by the 22 January 2001 the date appointed by the Chairman of the Commission as the date when the updating exercise would be completed. He submitted further that the register was not ready by 8th March 2001. As regards the display of the Voters’ Register, Mr. Mbabazi submitted that it was supposed to be done within 21 days and the period must be gazetted to enable the Voters’ Register to be subjected to public scrutiny.
As regards noncompliance with regard to Polling Stations, Mr. Mbabazi submitted that there were 11 76 new Polling Stations while 303 were missing although originally published in the Gazette. He also submitted that there were sham Polling Stations which did not appear in the Gazette or in the list of 11 March 2001. He referred to the affidavit of James Oluka who stated that he knew that there were two designated Polling Stations. But on the final list there were four Polling Stations and two for Akisim NRA Barracks. He referred to the affidavit of the Returning Officer where he admitted that there were three designated stations. Mr. Mbabazi concluded that it can be implied that there were two additional Polling Stations.
Learned counsel also referred to the affidavit of Ebulu Vicent who stated that inside Mbuya Barracks there were seven Polling Stations and Capt. Ondoga admitted they were seven. But in the list of Polling stations there were under Mbuya I and Mbuya II outside Quarter guard and yet in the Gazette there was one Polling Station as a Special area outside Quarter guard. He submitted that therefore there must have been at least six extra Polling Stations, but the number of people who voted there is not known. He asked whether these voters were part of the National Voters Register.
Mr. Mbabazi also referred to the affidavit of Mukasa who stated that there were five sham Polling Stations in Kitgum. These are also referred to by Ongee Marino who stated that they were six new stations not designated. Counsel submitted that the results from the tally sheets indicate that the 1st Respondent benefitted from these sham stations. Mr. Mbabazi concluded that if you examine the web of evidence from the lack of register you end up with the following malpractices multiple voting, ballot stuffing, denial to vote, voting by the under aged, ghost voters and falsification of results.
I think the submissions of Mr. Mbabazi have some merit. However he did not specifically address the principles which noncompliance with the provisions infringed. It is clear however, that the failure to produce an impeccable voter register resulted in a number of malpractices listed by Mr. Mbabazi like multiple voting, ballot stuffing, ghost voters and denial to vote. I shall deal with these aspects individually later.
The principles which were undermined by a defective voters’ register were the principle of voter registration, right to vote, free and fair elections and transparency. The failure to publish the list of Polling Stations in time undermined all the principle of transparency. The failure to supply the Voters Rolls to the Petitioner’s agents also undermined the principle of transparency.
Therefore there was partial compliance with the provisions of the Act.
Issue No.2. Non-compliance, with the Principles of the Act:
The second issue is whether the 2001 election of the President was not conducted in accordance with the principles laid down in the provisions of the Presidential Elections Act 2000. As I have already observed, Section 2 (2) of the Act stipulates that “the Commission Act shall be construed as one with this Act”, thus incorporating the principles laid down in the Commission Act into the Presidential Elections Act.
Mr. Mbabazi learned counsel for the Petitioner submitted that the principles of the Act are transparency, representation of a candidate at a Polling Station, the right to vote, the right to register, freedom to vote and values of a democratic society. The principles were laid down in Section 12 and 19 of the Commission Act and articles 56 and 61 of the Constitution.
Later Mr. Mbabazi summarised the principles to consist of free and fair elections, right to vote, adult suffrage secret ballot and transparency. He concluded that the totality of the principles is that there must be a valid election under Section 51 of the Act and article 104 of the Constitution and a President who is validly elected.
Dr. Khaminwa learned counsel for the 1st Respondent observed that the Constitution and the Act do not define the principles of the Act. He submitted that the principles can be found in the Constitution and its Preamble, the Presidential Elections Act, the Electoral Commission Act, and the Common Law cases. He cited the case of Hackney (1874) 31 L.T. 69, which contains the principles of secret voting, electors having a fair opportunity to cast their votes and arrangement of districts for convenience of voters.
The above principles were adopted in the case of Morgan v Simpson (1 975) Q B 151 (1974) 3 ALL ER 722 (CA) which emphasises that there must be voting by secret ballot, there must be no substantial departure from the procedure set out by Parliament as to render an ordinary person to condemn the election as a sham, and a substantial proportion of qualified voters should not be disfranchised. He summarised the principles to be that the elections must be free and fair, it must be by secret ballot and must be conducted in accordance with the procedure laid down by Parliament. The most important test is that a considerable number of voters must not be prevented from voting. The burden was on the Petitioner to demonstrate that a substantial number of voters were prevented from voting.
Mr. Kabatsi, learned counsel for the 2nd Respondent agreed with Mr. Mbabazi’s list of principles of free and fair elections, vote by secret ballot and universal suffrage. These principles are contained in the Act and the Constitution. He submitted further that the principles of freedom and fairness were laid down in the case of AG v Kabourou (1995) 2 LRC 757 which emphasised that there must be laws put in place that promote conditions of freedom and fairness. He submitted that the Presidential Elections Act did that.
In my opinion, the principles of the Act can be summarised as follows:
• The election must be free and fair
• The election must be by universal adult suffrage, which under pins the right to register and to vote.
• The election must be conducted in accordance with the law and procedure laid down by Parliament.
• There must be transparency in the conduct of elections.
• The result of the elect ion must be based on the majority of the votes cast.
The overriding principle in my view is that the election must be free and fair. It is stated in the Commission Act that the Commission must ensure that the election is conducted under conditions of freedom and fairness. In order to do so, the Commission must be independent and impartial in the conduct of elections.
The concept of free and fair elections is not defined in the Constitution or in any
Act of Parliament. No judicial authority was cited to explain the concept. However, Mr. Walubiri learned counsel for the Petitioner referred to us passages from his book entitled “Uganda. Constitutionalism at Cross Roads 1999 (Walubiri PM (Ed) at p. 312 where he writes,
“Article 69 (1) of the constitution requires that the choice of a political system be done through free and fair elections or a referendum. The Constitution does not define or describe the concept of “free and fair elections or referendum” International law and practice has over the years defined what contributes a free and fair election or referendum. You have to look at the totality of the exercise and make a value judgment.”
The author then quotes from Guy and S Goodwin Gills International, Law and Practice Inter Parliamentary Union Geneva, 1 994 where it is stated,
“A successful election does not depend solely on what happens on ballot day, the totality of the process must be examined, including preliminary issues such as the nature of the electoral system, Voter organisation and civic education. The indices of a free and fair election are especially important with respect to the conduct of the election campaign, at which point a number of fundamental human rights come into play together with the responsibility of the State as described in article 2 of the 1966 Covenant on Civic and Political Rights to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present covenant, without distinction of any kind such as race, colour, sex, language, religion, political of other opinion, national or social origin, property, birth or other status. Specifically national and international observers will need to know whether freedom of movement, assembly association and expression have been respected throughout the election period; whether all parties have conducted their political activities within the law, whether any political party or special interest group has been subjected to arbitrary and unnecessary restrictions in regard to access to the media generally in regard to their freedom to communicate their views; candidates and supporters have enjoyed equal security, whether voters have been able to cast their ballots freely; without fear or intimidation whether the secrecy of the ballot has been maintained; and whether the overall conduct of the ballot has been such as to avoid fraud and illegality.”
Elections are the highest expression of the general will. They symbolise the right of the people to be governed only with their consent. The people have a right to make and unmake a government. Article 21 of the Universal Declaration of Human Rights 1948 provides,
“The will of the people shall be the basis of the authority of government: this will be expressed in periodic and genuine elections which shall be hold by secret vote or by equivalent free voting procedures.”

Article 25 of the UN Covenant on Civil and Political Rights 1966 is in the same terms. The two articles also recognise the rights of everyone “to take part in the government of this country directly or through freely chosen representatives.”

Our Constitution incorporates those principles in article 1 (4) which states,
“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.”

An election is the mechanism whereby the choices of a political culture are known. These choices should be expressed in ways which protect the rights of the individual and ensure that each vote cast is counted and reported properly. An electoral process which fails to ensure the fundamental rights of citizens before and after the election is flawed.

To ensure that elections are free and fair there should be sufficient time given for all stages of the elections, nominations, campaigns, voting and counting of votes. Candidates should not be deprived of their right to stand for elections, and the citizens to vote for candidates of their choice through unfair manipulation of the process by electoral officials. There must be a leveling of the ground so that the incumbents or government Ministers and officials do not have an unfair advantage. The entire election process should have an atmosphere free of intimidation, bribery, violence, coercion or anything intended to subvert the will of the people. The election procedures should guarantee the secrecy of the ballot, the accuracy of counting and the announcement of results in a timely manner. Election law and guidelines for those participating in elections should be made and published in good time. Fairness and transparency must be adhered to in all stages of electoral process. Those who commit electoral offences or otherwise subvert the electoral process should be subjected to severe sanctions. The Electoral Commission must consider and determine election disputes speedily and fairly.
Elections are a vital process in establishing a stable and legitimate political order. They are crucial instruments for peaceful and orderly transfer of power. The ballot must replace the bullet as a means of changing government. They should be conducted regularly in a free and fair manner. Political actors and leaders must be prepared to accept the results of elections and to lose gracefully. The Electoral Commission should be granted adequate powers and facilities, to build capacity, efficiency and credibility in its conduct of elections so that they are free and fair and always reflect the general will of the electorate.

Failure to Compile, Update, and Display Voters Register:

The Petitioner further alleges in para 3(1) (a) that contrary to Sections 12 (e) and 18 of the Electoral Commission Act, the 2nd Respondent failed efficiently to compile, maintain and update the National Voters Register, the Voters Roll for each constituency and the Voters Roll for each Polling Station within each constituency and that as a result the Voters Register and the said Voters Rolls contained many flaws such as dead people’s names and names of people who ought not vote in Uganda remaining on the register while several persons who were eligible voters had their names omitted from the said Register and Rolls.

Furthermore the Petitioner complained in para 3(1) (f) that contrary to Section 25 of the Electoral Commission Act, the 2nd Respondent failed to display copies of the Voters’ Roll for each Parish or Ward in a public place within each Parish or Ward for a period of not less than 21 days and as a result the Petitioner and his agents and supporters were denied sufficient time to scrutinise and clean the Voters Roll and exercise their rights under the law.

The 2nd Respondent also denied that it failed to efficiently compile, maintain and update the National Voters Register or the Voters Rolls for constituencies and Polling Stations and further that it had no knowledge of people who ought not to vote in Uganda remaining on the Register while several persons who were eligible voters had their names omitted from the Register and Rolls. The 2nd Respondent averred that even if the said allegations were true, they did not constitute a ground upon which the election of a candidate as a President could be annulled.
As regards non-display of Voters Register, the Respondent answered that the Voters Register was initially displayed countrywide for three days and everybody was free to scrutinise the said Register. The 2nd Respondent further states that after consultations with and on request by agents of all Presidential candidates including those of the Petitioner, the 2nd Respondent extended the time for display of the Voters Register for another two days. The 2nd Respondent avers that the failure to display copies of the voters Roll for each parish or Ward in a public place for not less than 21 days does not constitute a ground upon which the election of a candidate as a President can be annulled.

Before considering the evidence, which was adduced in support of these grounds, it is necessary to consider the law upon which they are based with a view to ascertaining whether the grounds are maintainable in law. Mr. Mbabazi learned counsel for the Petitioner referred us to the preamble and Sections 2(2) and 29(4) of the Presidential Elections Act. He also relied on Sections 12 and 18 of the Electoral Commission Act 1 997, and as amended in Section 19(7) by the Electoral Commission (Amendment) Act 4 of 2000. Reliance was also placed on article 65(1) of the Constitution.

The Presidential Elections Act 2000 is a special law intended to provide a legal framework to govern future elections to the office of the President. But in Section 2(2) of the Act, it states that “The Commission Act shall be construed as one with this Act.”

Section 18 of the Commission Act lays down the Commission obligation to compile, maintain and update a National Voters Register as follows:
‘‘(1) The Commission shall compile, maintain and update on a continuing basis a National Voters Register, in this Act referred to as the Register, which shall include the names of all persons entitled to vote in any national or local government election.
(2) The Commission shall maintain as part of the voters Register, Voters’ Roll for each constituency under this Act.
(3) The Commission shall maintain as part of the Voters Roll for each constituency a Voters Roll for each Polling Station within the constituency as prescribed by law.”
Section 12 of the Commission Act provides for additional powers to enable the Commission carry out its functions under chapter five of the Constitution. Article 65 of the Constitution sets out the functions of the Commission, which include compiling, maintaining and updating the Voters Register.

The 2nd Respondent has a statutory duty to update the Voters Register before any election is held. The 2’ Respondent must display for public scrutiny the Voters Roll for each Parish or ward for a period of not less than 21 days duly notified in the Gazette. In this connection Section 25(1) of the Commission Act stipulates:

“Before any election is held, the Commission shall by notice in the Gazette appoint a period of not less than twenty one days, during which a copy of the Voters Roll for each Parish or Ward shall be displayed for public scrutiny and during which any objections or complaints in relation to the names included in the Voters Roll or in relation to any necessary corrections; shall be raised or filed.”

In the present case, it admitted that the display was carried out for only five days. The only question to be decided is whether the 2nd Respondent has powers to abridge the period of display. It was contended for the 2nd Respondent that it has powers to do so under Section 38(1) of the Commission Act which provides,

“Where during the course of an election it appears to the Commission that by reason of any mistake miscalculation, emergency or unusual or unforeseen circumstances any of the provisions of this Act or any law relating to the election other than the Constitution, does not accord with the exigencies of the situation, the Commission may by particular or general instructions extend the time for doing any act, increase the number of election officers or Polling Stations or otherwise adapt any of those provisions as may be required to achieve the purposes of this Act, or that law to such an extent as the Commission considers necessary to meet the exigencies of the situation.”

It was contended for the Petitioner that the above provision authorised the 2nd Respondent to increase but not reduce the period of display. I believe counsel was relying on the ejusden generis rule which is explained in Halsburv’s Law of England Vol.44 4” edn. Para 877, page 535 in these terms:
 
“As a rule where in a statute there are general words following particular words, the general words must be confined to things of the same kind as those specified, although this as a rule of construction must be applied with caution and subject to the primary rule that statutes are to be construed in accordance with the intention of Parliament. For the ejusden generis rule to apply the specific words must constitute a category class of genus, and the general words must not by their nature exclude themselves from the category class or genus, so that for example, a superior thing will not be held within a class of inferior things. If the particular words exhaust a whole genus the general words must be construed as referring to some larger genus. It seems that the ejusden generis rule can have no application where the general words precede the enumeration of particular instances and may not be relevant for the construction of international conventions.”

On the other hand counsel for the 2nd Respondent submitted that the Commission has powers to reduce the period of display, to meet the exigencies of the Situation.

In my opinion, the ejusden generis rule of construction does apply to the provisions of Section 38(1) of the Commission Act with the result that the 2nd Respondent has no powers to reduce the period of display of the Voters Register. Display must be given sufficient time to enable the updating and cleaning of the Register to promote the principle of voter registration and transparency. Failure to display for the prescribed minimum period undermined those two principles and was responsible for complaints relating to voting.

The question is whether the 2nd Respondent failed efficiently to compile, maintain and update the National voters Register, the Voters Roll for each Polling Station with each constituency as a result of which the register and Rolls contained many flaws. There is no direct evidence that the Voters Register and Voters Rolls were not efficiently compiled, maintained and updated. It was contended by Mr. Mbabazi for the Petitioner that there was in fact no National Register of Voters. Evidence was called of Mr. Mukasa David Bulonge who testified about the disparity in the total number of voters as communicated by the Chairman of the 2nd Respondent from time to time.

Mr. Mukasa stated in his affidavit that on 10th March 2001 while the display of Voters Register was still in progress the Chairman of the 2nd Respondent announced while addressing International Observers that the number of registered voters was still 11.6 voters, this number having been obtained from the returns received from the field after the National Voters Register update exercise as claimed by the Chairman in his letter to candidates dated 7 March 2001 in which he admitted he had no final Voters Register. But on 11 March 2001, the Chairman of the 2nd Respondent announced at a final briefing for candidates that the number of registered voters was 10,674,080 while the number of Polling Stations was 17,147. But when the results were declared the number of registered voters and Polling Stations had increased to 10,775,836 and 17,308 respectively as per provisional declaration of results. The Petitioner contended that because the exact number of registered voters was not known, the 2nd Respondent procured more ballot papers than the number of voters whose use or whereabouts remain undisclosed.

In his supplementary affidavit in reply, Mr. Kasujja stated that the National Voters Register had existed since 1993 when a National Voters Register was first prepared for the purpose of the Constituent Assembly and that since then the National Voters Register has been maintained and updated. It was updated before the 1996 Presidential Elections and the Register was subsequently cleaned before the Referendum. Re repeated that for the Presidential Election the update of the Register was done at village level from 11th January 2001 to 22nd January 2001. Mr. Kasujja pointed out that in February 2001 the National Voters Register was printed and displayed at Polling Stations in the form of Voters Rolls in four components i.e. the previously registered voters, the newly registered voters, the transferred voters and the voters recommended for deletion for ease of scrutinising the register.

Furthermore Mr. Kasujja stated that the display was carried out for three days and after consultations and in agreement with all candidates’ agents, the period was extended for another two days and both periods were gazetted. He explains that the time of display and update of the Register was affected by a decision to have photographic voters’ cards, which required fresh registration. The exercise was commenced but due to unforeseen delays in delivery of all the necessary equipment which had not arrived by 31st December 2000 the 2nd Respondent was forced to revert to the old system of updating the existing Register having lost a lot of time.

Explaining the disparity in the total number of registered voters Mr. Kasujja stated that after the Referendum of June 2000, the Register on cleaning had about 9,308,173 voters. After the update the number rose to 9,308,173 voters. After the display and cleanup the number reduced to 10,672,389. This number however did not include soldiers and adults living with them and when they were included the number rose by 103,447 to 10,775,836. Mr. Kasujja stated further that the National Voters Register is made up of 214 Constituency Rolls and the Constituency Rolls are in turn made up of all Polling Stations rolls in the Constituency and on 11th March 2001 these had already been printed, and the number of Registered Voters was known.

On the evidence adduced in this petition I am satisfied that the 2nid Respondent did not efficiently compile, maintain and update the National Voters Register and Voters Rolls for each Constituency for the Presidential Elections. This violated the principles of registration of voters, fairness and transparency.

Voting by Underage Persons:

The Petitioner alleges in the petition that contrary to Section 19 (1) (b) of the Commission Act, the 2nd Respondent’s Agents or Servants in the course of their duties allowed people under 18 years of age to vote. The 2nd Respondent in answer to the petition denied the allegation.
Section 19 (1) (b) of the Commission Act provides that any person who is a citizen of Uganda and is eighteen years of age or above shall apply to be registered as voter in a Parish or Ward where the person originated from or resides or works in gainful employment. It is provided in Subsection (2) that no person shall be qualified to vote unless that person is not registered as a voter in accordance with article 59 of the Constitution. This section lays down the principle of universal adult suffrage.

The Petitioner filed several affidavits in support of his allegation, which were controverted by the 2nd Respondent. Suliman Niiro, a Polling Monitor of the Petitioner in Bukode North Constituency, deponed that he visited bus part A Polling Station where he saw soldiers from the RDC’s Office threatening and forcing young children below 18 years to vote. Niiro states that he and others tried to refuse them to vote but the soldiers overpowered them, and arrested him for 30 minutes. After chasing away Polling Agents, the soldiers brought many small children to vote. The Agents went back after almost four hours. He said he saw others vote in the name of the dead people and mentioned two. He states further that the declaration results forms were very inaccurate in a number of stations.

His evidence is challenged by Magezi Abu who was the Presiding Officer at bus Park A Polling Station. Magezi states that no soldiers ever came to his Polling Station nor did they force young children or unauthorised people to vote. He stated that the Petitioner’s Agents witnessed the voting exercise from the beginning to the end and both of them duly signed the Results Declaration Forms.

Nava Nabagesera, the Resident District Commissioner Bugiri District also denied the allegations made by Niiro that soldiers from her Office threatened people and forced young people to vote. She stated that she has three escorts who were all the time with her and did not go to Bus Park (A) Polling Station. She received no reports of soldiers threatening or arresting any person during elections in her District. These two witnesses cast very serious doubts on the claims made by Suliman Niiro that soldiers forced underage children to vote.

John Kijumba who was appointed a Monitor for the Petitioner in Bukonjo West Constituency in Kasese District stated that on the polling day he found six underage children lined up to vote at Kasika Polling Station. The Polling Officials ignored him although he does not say what he did about it. He claimed that the 1st Candidates agent’s threatened to stone him and he went and reported to Bwera Police Station. At Rusese Kyampara Polling Station, he saw two underage people lined up to vote. He pointed them to the Presiding Officer but he allowed them to vote. He does not explain what he meant by underage or how he came to the conclusion that they were underage.

The Presiding Officer Mupaghanja Boniface in his affidavit denied talking to Kajumba. He admitted that Baluku Henry the Polling Agent for Presidential Candidate Mohamed Kibirige Mayanja pointed out to him two girls who had lined up to vote as being underage based on the fact that they were Primary School pupils. He checked the voters register and found their names therein. He also found that they had valid voter’s cards. He questioned the girls’ father Manymayuro Ezra who said that the girls were over 18 years of age. He then discussed the matter with the Polling Agents present and it was resolved that any prospective voter suspected to be underage should provide a birth certificate for verification or that their age be verified by their parents. He allowed the two girls to vote. He denied allowing any underage to vote.

Lucia Naggayi, Head of the Election Monitoring Team of Kiboga District for the Petitioner claimed that at Malagi Polling Station she found a Kasozi Bernard voting using card No.15094729 who upon examination was found to be underage and was thereafter reported to Police. There is no indication that Kasozi voted. Wabuyelele Martin who was the Presiding Officer for Kyalajoni AL Polling Station in Kiboga district denied that there was such Station known as Malagi in Lubiri Parish.

The evidence of Boniface Ruhindi Ngaruyu who was deployed to oversee the performance of the Polling Agents for the Petitioner in Mbarara Municipality states that while he was at Mankeke Polling Station he saw a number of Fuso lorries and pick-ups loaded with students escorted by armed Military Police who were driven to Kakyeka Stadium and the military ordered the election constable to allow them to join the line and vote without agents questioning their identity. The witness does not say whether these children were underage or not registered in the area they voted. This evidence is worthless.

The allegations were denied by Aspol Kwesiga who was the District Registrar of the Commission in-charge of Mbarara District. His evidence was that Makenke was never used as a Polling Station during the Referendum of 2000. He stated that the allegations made by Ruhindi were completely false because as one of the persons, who supervised elections, no such incidents took place at Kakyeka Stadium and the Petitioner’s Polling Agents signed the respective Declaration of Results Forms.

Ssentongo Elias an overseer of the Polling Agents for the petitioner in Ntungamo Town Council and Kahunga Sub-country claimed that at Karegyeya Polling Station he found armed soldiers who had camped at lrenga, the home of Mrs. Janet Museveni and the said soldiers allowed children who were clearly under the age of 18 years to vote for the 1st Respondent.

Another witness Patrick Matsiko Wa Mucoori, a Senior Reporter with Monitor Newspaper claimed that he saw a young girl of about 1 2 years coming to vote with a card and she was given a ballot paper. When he asked why the child was voting, the Presiding Officer said that the girl was voting for her father who was reportedly sick in the barracks. This voting was technically improper.

Byaruhanga Yahaya who was a Polling Agent for the Petitioner at Maracha D Polling Station, South East Parish Busia Town council, Busia District, claimed that there were 6 underage children who were allowed to vote and his attempts to stop them were ignored by the Presiding Officer.

On the evidence adduced it cannot be positively concluded that the alleged children were under 1 8 years. There was no proof of under age. A birth certificate or medical evidence would be credible evidence, See Sang v Re (1971) EA.539

Multiple Voting:

The petitioner complains in paragraph 3 (1) (j) of the petition that contrary to Section 31 of the Act, the 2nd Respondent’s Agents or Servants or Presiding Officers in the course of their duties and with full knowledge that some people had already voted allowed the same people to vote more than once. The 2nd Respondent denied allowing anybody to vote more than once.
Section 31 (1) of the Act provides that “No person shall vote or attempt to vote more than once at any election.” It is an offence under section 71 (b) of the Act to vote more than once at an election. The principle behind this provision is equality and fairness.

Patrick Matsiko Wa Mucoori, a Senior Reporter with Monitor Newspaper, claimed that he saw voters continuing to vote several times at Kanyaruguru Special voting Station for the Army and when he informed the Presiding Officer, he stopped them from voting. He claimed that he saw the Battalion Intelligence Officer voting more than five times by changing his clothes each time he came to vote. He did not name the Intelligence Officer or how he knew his post. When multiple voting was stopped, he got scared and stopped pointing out other malpractices and made arrangements to leave.

He claimed that when he wanted to go the Presiding Officer confiscated his personal effects and ordered him to be taken to the quarter guard where he was detained for 10 minutes and released and taken back to the polling station where they met on the way the Battalion Commanding Officer, Capt. Kankiriho who threatened to beat him if he went near the polling station or revealed what he had seen at the station. Later he was allowed to recover his personal effects and left that very night for Kampala by bus.

Ssentongo Elias, an overseer of the Polling Agents for the Petitioner in Ntungamo Town Council and Kahunga Sub-county claimed that Tom Muhoozi, the Deputy Chairman District Public Service Commission colluded with the Presiding Officer to allow some people to vote more than once at Kabuhame Polling Station. But Tom Muhoozi in his affidavit denied seeing Ssentongo at the Polling Station. He denied colluding with the Presiding Officer to allow people to vote more than once.

Hingiro John who was a Polling Agent of the Petitioner for Kabungo Primary School I Polling Station in Ntungamo claimed that the Presiding Officer Muhwezi Mark and the Polling Assistant Muhumuza Fred were issuing many ballot papers to individuals who were known to be supporters of the 1st Respondent. These included Kilama L and Byaruhanga B. The same Presiding Officers gave many unticked ballot papers to Karuhanga Davis Muvale the LC 111 Chairman of Rwekiniro Sub-county and they were taken to unknown destination. But he does not say what happened to the ballot papers whether they were cast or not. He only says he refused to sign the declaration form though he was forced to do so.

However, Muhumuza Fred denied the allegations made by Hingiro. He stated that he did not issue any ballot papers as alleged since his work as Polling Assistant was to check for the names of the voters in the Register and tick against whoever cast his or her vote. Muhwezi Mark who was the Presiding Officer similarly denied the allegations. He stated that he was the only person who was issuing ballot papers whereas Muhumuza was marking the names of the voters who had come to vote. He issued only one ballot paper per voter and no more. He explained that the Petitioner’s Agents left the Polling Station on their own before the closure of the polling exercise and that is why they did not sign the Forms.

Kasigazi Noel who was a Polling Agent for the Petitioner at Rweranura Polling Station claimed that he saw Sibomaana Amos a Campaign Agent of the 1st Respondent casting a bundle of ballot papers after colluding with the Presiding Officer. He lodged a written objection to the Presiding Officer who rejected it. This is unhelpful. How many ballot papers were cast and how were they cast, one by one or by bundle? Were they already ticked, or he ticked them? When he questioned why Sibomaana was allowed to cast a bundle of ballot papers, he was threatened with violence by the LC I Chairman and LC Ill Chairman and others. He claimed that during the scuffle Turyakira was given all the remaining ballot papers by the Presiding Officer, which he ticketed and put in the ballot box. But Sibomaana Amos denied being a Campaign Agent for the 1st Respondent in Kitashekwa. He denied voting more than once or put a bundle of ballot papers in the ballot box. He also denied threatening anybody.

Karenzyo Eliphaz who was a Polling Agent of the Petitioner at Bihomborwa Polling Station in Kanungu District claimed that at the Polling Station he saw a lady called Specioza Kiiza at the table where ballot papers were being filled and she was insisting on ticking them for voters in favour of the 1st Respondent. She ticked on the open table hundreds of ballot papers for the 1st Respondent. At one time two ballot papers were given to one lady and when she protested1 she was mishandled. He claims he saw Deo Barabona, Vice Chairman LC II cast over 100 ballots as he helplessly watched Barabona did not ink his thumb throughout the process. Another old lady was given five ballot papers and she cast them. Burayobera, a Congolese employee of Kanyabitabo - who was the Parish Movement Chairman, also cast 10 ballots although he was not a Ugandan. He decided to go away and report to the Petitioner’s Campaign Office at Kihiihi. He did not report to any electoral or Police Officer. It is not clear how he was able to count the votes cast when he claims he was being harassed and threatened with death.

Guma Majid Awadson who was a Polling Monitor for the Petitioner in Kuru Division Polling Station in Yumbe District stated that he saw Achaga Safi the LC Ill Vice Chairman of Kuru Division voting at two Polling Stations using different voter’s cards. The Polling Stations are Bura B, Bura A, and the polling cards were No.0027587 and No.00267715 respectively. He reported the matter to the Prison Constable deployed to take charge of the area but he feared to arrest Achaga who was a Member of the Task Force of the 1st Respondent.

He claimed that at Geya Parish Aliba A Polling Station he saw the presiding Officer Abele Young Majid giving six ballot papers to the LC Ill Chairman Kuru County called Drasi Ali, a Member of the Yumbe Task Force of the 1st Respondent. But Drasi Au denied the allegations against him. He stated that he was not given six ballot papers nor did he arrest anybody on polling day.

Ronald Tusiime the Petitioner’s Polling Agent in Mparo, Rukiga County of Kabale District claimed that he saw some people who had voted at Kihanga Playground Polling Station come and vote again at Rukiga County Headquarters Polling Station. He named Baryakira Colling who used D Tindimwensi’s card and Dunga Bugari who used voter card of G. Twesogome. He claimed that the Petitioner’s Agents were forced to sign the declaration forms.

Mugizi Frank who was a Polling Agent of the Petitioner at Rubanga Polling Station, in Ntungamo District, claimed that he witnessed massive rigging whereby people were being allowed to vote more than once, and when he protested, the 1st Respondents supporters namely, Simon, Twahirwa Sura, Kanyogisa, Siriri, and Karyhota Muyambi threatened to assault him and chased him away from the Polling Station. After leaving the Polling Station Ali Mutebi Campaign Manager of the 1st Respondent offered him Shs.15,000/ in order to go back and sign the Declaration of Results Forms but he refused. There is no description of how the multiple voting was done and the names of voters involved.

But Namanya Allen who was the Presiding Officer at Rubanga Polling Station denied that any person voted more than once. He admitted that Mugizi witnessed the polling exercise from commencement but he voluntarily left the Station between 3.00 p.m. and 4.00 p.m. and did not return and therefore did not sign the declaration of results forms.

Kidega Michael who was a Monitor in Nwoya County in Gulu District stated that he went to Alero Polling Station outside the barracks where he found 50 soldiers who had voter’s cards but were not on the register. He says he tried to intervene but the soldiers said they had superior orders from a major to Paraa Polling Station where voting ended at 5.00 p.m. and then started again at 7.30 p.m. and continued to 10.00 p.m. He states that he discovered later that the same soldiers he got at Alere were the same soldiers voting in Paraa where they were led by Lt. Peter.

I find the evidence adduced by the Petitioner on this allegation convincing and I accept it despite denials by evidence from the Respondents. The allegation of multiple voting in several Polling Stations has been proved; it violated the principles of equality and fairness.

Voting Before or After prescribed Time

The Petitioner alleges in his petition that contrary to Section 29 (2) and (5) of the Act, the 2 Respondent and its agents or servants allowed voting before the official polling time and allowed people to vote beyond the polling time by people who were neither present at Polling Stations nor in the line of voters at the official hour of closing. The 2nd Respondent denied the allegation and averred that only people present at the polling stations or those in the line of voters at the official closing time were allowed to vote out of time.
Section 29 (2) of the Act provides that
“At every polling station, polling time shall commence at seven o’clock in the morning and close at five o’clock in the afternoon.”
This section promotes the principle of transparency.
Moses Babikinamu who was a Polling Agent for the Petitioner at Lwebifakuli Polling Station in Mawogola Country, Sembabule District claimed that on the polling day he reported at the Polling Station at 6.30 a.m. but by that time voting had started. He asked the Presiding Officer why the voting commenced before 7.00 a.m. but she simply to him to sit down and concentrate on his work. At about 10.00 a.m. the Member of Parliament Hon. Sam Kuteesa came and asked how many people had voted and he was told 300 whereas he had counted 52. By 5.00 p.m. he had recorded 160 voters, but at the end of the exercise the Presiding Officer declared 510. When he disputed the number declared, the 1st Respondent’s Agents threatened him with arrest. The Presiding Officer forced him to sign the documents without him reading through and he did so. He did not report this matter to any authority. Instead he signed the Declaration Result Forms. He must be deemed to have signed the forms voluntarily in the absence of any other evidence to support his claim of duress.

Oliver Karinkizi denied the allegations made by Babikinamu. He denied being a Campaign Agent of the 1st Respondent. He stated that he was the Presiding Officer at the Polling Station and the voting commenced at 7.00 a.m. in the presence of other agents except Babikinamu who came after 7.00 a.m. He denied making him sit at a distance of five meters away. He admitted Hon. Kuteesa came to the Polling Station but in the afternoon. He stated that the number of people who voted at the Polling Station was 510, which was declared in the presence of al agents. He revealed that Babikinamu and his colleague willingly signed the tally sheets in the presence of many people. Hon. Sam Kuteesa admitted visiting the Polling Station, but denied interfering with the voting process at that Polling Station.

Ngandura John was a Polling Agent for the Petitioner at Nyakabengo Primary School Polling Station in Kisoro District. He claims that he arrived at the Polling Station at 4.00 a.m. and the polling began at 6.00 a.m. despite his request that it starts at 7.00 a.m. which was turned down by the Presiding Officer. Livingstone Tenywa, the District Police Commander, Kisoro District, denied receiving any report from Ngandura on the polling day.

Tumusiime Enock who was in charge of overseeing the operations of Polling Agents for the Petitioner in Kajara Country in Ntungamo District, claimed that at 7.30 p.m. on polling day after completing the tallying of results in Ntungamo Town Council, he received information that voting was still going on at Kayenje Polling Station. At 11 .30 p.m. he and the Returning Officer of Ntungamo District and six Police Officers went to Ntungamo Catholic Social Centre following information that voting was taking place there. They found voters still casting their votes in favour of the 1st Respondent even though the place was not a polling station. They found nine ballot boxes already delivered at the Centre from Ngoma, Rugarama, Kagagu, Kayonza, Kikoni, Kahengyeri, Kabingo, Rwebirizi and Rusunga.

When the Returning Officer questioned the Presiding Officer why he had allowed voting at an ungazetted place, the Presiding Officers responded that the Chairman of the Electoral Commission had extended the time for voting to midnight. Because of these irregularities the Petitioner’s Agents decided not to sign the Tally Sheets and the Declaration of Results Forms for the District. The witness does not say how he came to know that the voters were voting for the 1st Respondent. Secondly he does not indicate what action was taken against the Presiding Officers by the Returning Officer or the Police. His tale is incomplete and is not corroborated.

Musisi Francis a Polling Agent of the Petitioner at Bailambogwe Polling Station in Mayuge District, claimed that on polling day when he reported at the Polling Station at 6.00 a.m., he discovered that the voting exercise had already started in the absence of all other Polling Agents for different candidates. Then who was conducting the elections or who was present? The witness is silent as to who was present. How many people had voted?

I find that the evidence by the Petitioner not credible and convincing. I believe the evidence by the Presiding Officers that they conducted the voting within the prescribed time. Therefore the principle of transparency was not violated.

Pre-ticking of Ballot Papers:
In para 3 (1) (x) of the Petition, the Petitioner alleges that contrary to sections 70 (f) and (j) and 71 (b) of the Act, some of the 2nd Respondent’s Agents or Servants as presiding Officers or Polling Agents, in the course of their duties, ticked ballot papers in the 1st Respondent’s favour and later gave them to voters to put in the ballot boxes, and other interfered with ballot papers and stuffed them with already ticked ballot papers. I shall deal later with the allegation of ballot stuffing. The 2nd Respondent denied the allegation. Section 70 (f) and (j) of the Act provide as follows:

“70. Any person who
(f) Knowingly and intentionally puts into a ballot box anything other than the ballot paper which he or she is authorised to put in, ……………………….
(j) not being authorised so to do under this Act makes any mark on a ballot paper issued to a person other than the person making the mark, with intent that the ballot paper shall be used to record the vote of that other person;
Commits an offence and is liable on conviction to a fine not exceeding two hundred currency points or imprisonment not exceeding five years or both.”

This provision is intended to safeguard the principles of secret ballot and transparency.
I shall now consider the evidence adduced to support the allegation. Muhairwoha Godfrey who stated that he was a Polling Agent for the Petitioner in-charge of Kajaaho 4 in Kajaaho Parish Kikagati Sub-country Isingiro Country South Constituency alleged that he witnessed numerous malpractices and massive rigging at the said Polling Station for the 1st Respondent. He states that at around 10.00 a.m. one Charles Rwabambari a supporter of the 1st Respondent went to the desk of the Presiding Officer accompanied by one Kanyanurwa Parish Chief, Kajaaho Parish, and took over the station from Katsimbazi the Presiding Officer and started issuing ballot papers and ticking them for voters. When he protested, the Parish Chief ordered that he be arrested tied up and taken to Prison at the sub-country but when an armed uniformed UPDF Reserve Force Officer tried to arrest him he escaped.

Mulindwa Abasi of Kabolwe Zone LC I Kibuku Parish in Pallisa District states his affidavit that he was a Monitor for the Petitioner in Kibuku Parish. At all Polling Stations he visited, there were voters who could not vote because on reporting they were told their names had been ticked and they were told they were not supposed to vote. When they complained they were chased away. He claims when he raised complaints he was threatened and his life is still under threat and he is being accused of being a rebel. Mulindwa does not mention which Polling Stations he visited or even a single vote whose name was ticked and he was denied a right to vote. It seems much of his information is hearsay.

Wasunia Amis who was a Monitor for NGO Election Monitoring Uganda (NEMU Group Uganda) in charge of Rurama Polling Station in Kayenje Parish in Ntungamo District, stated that at that Polling Station voters were allowed to tick from the Presiding Officers table under the guidance of the Presiding Officer, one Kamukama H. who was ordering them to vote for the Respondent.

The evidence of this witness is challenged by Tumwebaze Mukiga who was the District Registrar for Ntungamo District, employed by the Electoral Commission. He stated that on polling day he was in charge of supervision of Ruhama County, which comprises Ntungamo Sub-county, Ntungamo Town Council, Nyakyera Sub-County, Rukoni Ruhama and Rweekiniro sub-counties. He stated that he travelled to almost all Polling Stations and could positively state that the polling exercise was conducted peacefully.

Referring to Wasiima’s affidavit, he stated that he knew him very well and Wasiima is not illiterate and the signature on the affidavit is not his signature. He says that he personally reached Rurama Polling Station and found no problem. He received no complaint from Wasiima or any other person. He reached the Polling Station at the closing of the polls shortly after 5.00 p.m. and even talked to Wasiima who assured him there was no problem at the Polling Station. The evidence of Tumwebaze casts serious doubts on the credibility of Wasiima’s affidavit.

Betty Kyimpairwe who was a Polling Agent for the Petitioner in Mbarara claims that at Kyabandasa Kanyegamere Polling Station, she found the Presiding Officer and Polling Officials maliciously spoiling ballot papers cast for the Petitioner by adding small tick on the 1st Respondent. She does not explain at what stage this action was committed because if the ballot papers had already been cast in the ballot boxes, it is difficult to understand how they were taken out and spoilt.
Although the evidence on this allegation is scanty, I believe the Petitioner’s evidence. It is my finding that the Petitioner has proved to my satisfaction that some people pre-ticked ballot papers and put them into ballot boxes or marked ballot papers for other voters to use for voting as alleged, in a few places. This infringed the principles of voting by secret ballot and transparency.

Ballot Stuffing:

The Petitioner complains in para 3 (1) (i) of the Petition that contrary to Section 30 (1) of the Act the 2nd Respondent’s Agents or Servants in the course of their duties, allowed commencement of the poll with ballot boxes already stuffed with ballot papers and without first opening the said boxes in full view of all present to ensure that they were devoid of any contents. The 2nd Petitioner denied the allegation. Section 30 (7) of the Act provides,

“The Presiding Officer at each Polling Station shall at the commencement of the poll and in full view of all present, open the first box, turn it upside down with the open top facing down to ensure to the satisfaction of everyone present that the ballot box is devoid of any contents and after that place the ballot box on the table referred to in paragraph (c) of subsection (5).”

This provision promotes the principles of fairness and transparency.
Betty Kyampaire, who was a District Monitor for the Petitioner in Kamwenge District claims in her affidavit that while she was monitoring with James Birungi and 2 other members of her Monitoring Team, she discovered at Busingye Primary School Polling where Mr. Bwengye LC Ill Vice Chairman stuffed 300 ballots papers into the box. She claims she saw the destroyed ballot books at the Polling Station. She does not explain whether she witnessed the stuffing or merely heard about it. She does not explain how it was done and at what time.

She claims further that she saw that stuffing of ballot boxes by LC Officials and Members of the 1st Respondent’s Task Force and ticking from the table was common at most polling “Stations in Kamwenge sub-county where she monitored. No names of these officials are given, nor how many ballot papers were stuffed. She does not explain what did happen as a result of these malpractices.

Mugenyi Silver who was an Election Officer in charge of Mid-Western Region responsible for preparation and dispatch of election materials and monitoring of elections denied the allegation that at a polling station known as Busingye Primary School 300 ballot papers were stuffed in one ballot box by the LC III Chairman. He stated that there is no such polling station in the District, and the nearest polling station is Busingye Trading Centre Polling Station, which was supplied with 800 ballot papers and declaration of results forms indicated that 792 valid votes were cast, 7 were invalid and 1 remained unused. He stated further that if any ballot papers had been stuffed into the box, it would have inflated the number of votes cast, which was not the case at the said station. He denied instructing the 1st Respondent’s Agents to cast votes for some people, who were not the 1st Respondent’s supporters, nor did he collude with the Presiding Officer to allow people to vote more than once.

In her affidavit, Lucia Naggayi who was the Head of the Election Monitoring Team of Kiboga for the Petitioner claims that at Kyalojani Polling Station (A-M) he found bulky ballot papers stuffed in the ballot box and upon complaint he was chased away. He does not explain how he found that the box had been stuffed before voting. However, Wabuyelele Martin who was the Presiding Officer at the Polling Station denied the allegation of ballot stuffing, prior ticking of ballot papers and chasing away the Petitioner’s Agent. Nkangabwa Godfrey who was a Presiding Officer at Kyalojani MZ Polling station in Kiboga District stated that there was no such a polling station as Kyalojani Polling Station (A-M) but the polling stations in Lubiri are Kyalojani AL, Kyalojani MZ and Katugo. He too denied that any ballot papers were staffed in the ballot box and that some voters were given ballot papers already ticked.

Ntume Noellene who was the Presiding Officer for Bukomero II N-Z Polling Station stated that Naggayi never counted any ballot papers in any ballot book, and it was not true that there were 110 ballot papers in one book. Since he did not count the ballot papers he could not establish the number of ballot papers in the books.
Ndifuna Wilber, appointed election monitor for the Petitioner in Busia Town Council, Busia District, claimed that upon information received, he went with Police Officers and tricked Bazilio that he was a voter and wanted to vote for the 1st Respondent. Bazilio came with bundles of ballot papers, marked voters’ cards and a voter’s register. He then gave one voters’ card and ticked it against the name of Jogo Joseph in the Register. Two girls came and were issued with ballot papers. The Police Officers whom he had tipped came and arrested them and he handed the ballot paper to the Police. The suspects were taken to the Police Station but later released without charge. This was an attempted rigging or stuffing which failed.

Abduraham Mwanja stated that he was the Chairman for Kigulu South Constituency and Chairman Bulamogi Sub-county and was appointed as a monitor. He does not indicate which Presidential Candidate appointed him. He says that he visited Iganga Town Council Polling Station to ensure that the voting was free and fair. He claims that he saw a vehicle, Hilux double cabin Reg. No. UG 0095 B, bringing ballot boxes with ballot papers and deposited them in Iganga Hospital. When he approached the area the people involved shifted the boxes to Kasokoso Primary School, which had two Polling Stations A and B. He followed them on his motor-cycle and when he insisted on checking the ballot boxes, the people involved who were soldiers refused and took the boxes away. It is not clear how Mwanja came to know the boxes to be stuffed with ballot papers. He does not disclose where the ballot stuffing was done and by who.

Mwanja further claims that at around 4 p.m. the Health and Medical Officers and the Mayor of Iganga Ismail Kyeyago ordered those who had old voter’s cards to vote and those who had cards but names did not appear on the list of voters to vote and they voted. But Ismail Kyeyago denied the allegation made by Mwanja in respect to ordering people to vote as alleged because he had no power to do so. Gwaivu Abdalla who was the Election Supervisor in charge of Iganga Town Council stated that he did not receive any report or complaint about the vehicle depositing stuffed ballot boxes at Iganga Hospital or any report against Ismail Kyeyago allowing unauthorised voters to vote.

James Birungi Ozo who states that he was appointed a District Monitor by the Petitioner and also District Campaign Coordinator for Kamwenge District claims that he was informed by Kahesi Slaya a supporter of the Petitioner that the LC II Vice Chairman one Bwengye stuffed 300 ballot papers ticked in favour of the 1st Respondent in the ballot box during the election at Busingye Primary School Station. Kahesi Slaya never swore any affidavit. This evidence is therefore hearsay and inadmissible.

Tukahebwa Kenneth who was a Polling Agent for the Petitioner at Kyenzaza Trading Centre Polling Station in Bunyaruguru, Bushenyi District, claimed that at 200 p.m. one Banyezaki, a driver of one Watuwa Schola from State House tried to stuff ballot papers in the ballot box and they protested against him and a home guard arrested him with the ballot papers. Within five minutes Schola came and took away her driver and the home guard was disarmed. This was a mere attempt; there was no ballot stuffing.

In any case Watuwa Schola denied the allegation. She explained that on polling day while she arrived at Kyenzaza Trading Centre where she received information that her driver Abdu Banyenzaki had a scuffle with a vigilante near the Polling Station.

She was unable to establish the details of the scuffle. She rushed home and found Abdu who informed her that the vigilante was drunk and armed and his identity was doubtful. She went back to the Polling Station with the LC Ill Chairman Frank Mubangizi and found the vigilante drunk and armed near the Polling Station. The Chairman then disarmed the vigilante and then summoned the LDU Commander to deal with him for being drunk and carrying a firearm near the Polling Station.

Mary Frances Ssemambo who was the Chairperson of the Elect Besigye Task Force, Mbarara District, claimed that a lot of malpractices and rigging took place in Mbarara District. Examples of this include the fact that in some polling stations the total number of votes shown as cast for the 1st Respondent far exceeds the total number of votes cast for all the candidates and the total number of ballot papers issued to the Polling Station. In some stations there were large numbers of ballot papers shown as having remained unused even where the number of ballot papers issued to the various polling stations were shown as not exceeding the total number of ballot papers actually used, an anomaly which was not explained. She attached some copies of the Declaration of Results Forms.

Her evidence is challenged by the affidavit of Hezz Kafureka who was the Returning Officer of Mbarara District. He states that the anomalies and discrepancies referred to were all contained in an official document known as the Declaration of Results Form Dr. which are prepared by the Presiding Officers of respective Polling Stations. He was responsible for the supervision of the tallying process in the district whereby apparent anomalies and discrepancies were resolved and recorded in the Official Tally Sheet. He explains that the anomalies in the Forms were a result of human error by the Presiding Officers. He points out that despite the anomalies and discrepancies the Petitioner’s Agents endorsed the Declaration of Results Forms and did not dispute the results of the elections.

Ssemambo does not state she witnessed any malpractice herself. She is relying on information given or compiled by others. Secondly, the statistics do not prove ballot stuffing since in some instances figures indicate many unused ballot papers. Thirdly, the forms she attached to her affidavit were all signed by the Petitioner’s Agents without objections. Therefore her evidence cannot establish ballot stuffing. Moreover the anomalies and discrepancies have been satisfactorily explained away by the Returning Officer.

The evidence adduced on ballot stuffing is credible although some is exaggerated and based on hearsay. There is sufficient evidence to support the allegation. My finding is that the Petitioner has proved to my satisfaction by the evidence adduced that the 2 Respondent’s Agents failed to comply with the provisions and principles of Section 30 (7) of the Act and that there was ballot stuffing as this infringed the principles of fairness and transparency.

Chasing Away Polling Agents from Polling Stations:

The Petitioner complains in para 3 (1) (g) of the Petition that contrary to the Provisions of Section 32 and Section 47 (4) and (5) of the Act, on the polling day, during the polling exercise, the Petitioner’s Polling Agents were chased away from many Polling Stations in many Districts of Uganda and as a result, the Petitioner’s interests at those Polling Stations could not be safeguarded.

The 2nd Respondent denied the allegation. It stated that it had no knowledge that the Polling Agents of any Presidential Candidate were chased away by its servants or any other person and that the Petitioner’s Agents were free to observe and monitor the voting process.

Section 32 (1) of the Act provides,
‘A candidate may be present in person or through his or her representatives or polling agents at each Polling Station for the purpose of safeguarding the interests of the candidate with regard to the polling process.”

According to sub-section (2) not more than two agents may be appointed for each Polling Station. Section 32 (4) provides that the Polling Agents shall be seated in such a place as to enable them observe and monitor clearly the voting process. On the other hand, Section 47 deals with the process of counting votes after the voting. Section 47 (4) and (5) deals with the votes of the Polling Agents during the counting and provides as follows:
 
“(4) Subject to this Act, a candidate is entitled to be present in person or through his or her agents at the Polling Station throughout the voting and counting of the votes and at the place of tallying of votes and ascertaining of the results of the poll for the purposes of safeguarding the interests of the candidate with regard to all stages of the counting and tallying processes.
(5) The Presiding Officer and the candidate or their agents, if any, shall sign and retain a copy of a declaration stating
(a) The polling station;
(b) The number of votes casting in favour of each candidate and the Presiding Officer shall there and then announce the results of the voting at the Polling Station before communicating them to the Returning Officer.”
The objective of these provisions is to promote transparency in the voting, counting and tallying of results.
The Petitioner adduced evidence by affidavit from several districts relating to the complaints of chasing away his Polling Agents from Polling Stations and tallying centres and the problems of tallying of results generally as reflected in the Declaration of Results Forms and Tally Sheets. I shall first consider the evidence in relation to chasing away agents from Polling Stations.
Mary Frances Ssemambo who was the Chairperson of the Elect Besigye Task Force in Mbarara District claimed that in many Polling Stations particularly in Nyabushozi County and lsingiro County South Polling Agents for the Petitioner were harassed, arrested, beaten tied up and detained or threatened with violence and chased away from the Polling Stations by heavily armed UPDF soldiers and the 1st Respondent’s Agents, and therefore the interests of the Petitioner were not safeguarded at the Polling Stations. She swears these facts to the best of her knowledge but does not disclose the source of knowledge whether she actually witnessed these incidents. The names of agents involved and the Polling Stations are not disclosed. It is just an omnibus allegation she attaches to her affidavit about 22 Declaration of Results Forms, which are all, signed by the Petitioner’s Agents from various Polling Stations in Mbarara District. This tends to prove that the Petitioner’s Agents were present during the polling at these Polling Stations. The Returning Officer for Mbarara District, Hezzy Kafureka denied her allegations.
Alex Busingye who was in charge of overseeing the operations and welfare of the Polling Agents for the Petitioner in Kazo County, in Mbarara District claimed hat in the majority of the Polling Stations he visited, he found that the Polling Agents for the Petitioner had been chased away by armed UPDF soldiers. At a Polling Station called Nkungu, he alleges that he found a monitor for that station tied up by the UPDF soldiers and bundled on motor vehicle No. 114 UBS pick-up in which they were travelling.
But Mbabazi Kalinda who was the Presiding Officer at Nkungu Trading Centre Polling Station A-K denied the allegation by Busingye and confirmed that she was a Polling Agent at the said Polling Station. He stated that Busingye did not complain to him about the arrest of a Monitor and he denied that the incident ever took place. He stated further that both Busingye and Byaruhanga Polly who were agents of the Petitioner freely endorsed the Declaration of Results Form.
Basajabalaba Jafari who was the Secretary to the Elect Besigye Task Force for Bushenyi District stated that on the polling day at Kalanda Primary School Polling Station, he saw one agent for the 1st Respondent called Ryamenga manhandling the Petitioner’s Agent and chasing him away from the Polling Station. The Presiding Officer allowed voting to take place for three hours until the Sub- county Chief and the Police intervened following his report to Katerera Police Post.
Evarist Bashongoka, Sub-county Supervisor of the elections in Katerera in Bushenyi District denied the allegation by Basajabalaba that the Petitioner’s Agents were chased away because he found them monitoring elections at Katanda Primary School Polling Station.
Tumwebaze Arthur stated in his affidavit that he was a Polling Agent for the Petitioner at Kataraka Primary School Polling Station. He claims that he was asked to sit 20 metres away by the Election Constable at around 2.00 p.m. He was the Constable handing out voters’ cards to voters while voting was going on. He states that some persons who never appeared at the Polling Station like Bangirana Livingstone and Tukahiirwa Arthur had their names ticked in the voters register as having voted when they never voted and their cards used by other persons who impersonated them.
He also claims that he saw multiple voting at the said station in favour of the 1st Respondent. His complaints were ignored and he refused to sign the Declaration of Results Forms on account of the malpractices.
Wamanya Isaac, who was the Presiding Officer at Kataraka Primary School Polling Station in Ntungamo District, denied the allegation by Tumwebaze Arthur that he prevented him from monitoring the voting on behalf of the Petitioner. He stated that he gave Tumwebaze a seat near other candidate’s agents, and he received no complaint from any of the Agents. He denied that any other per son issued voters cards except himself, nor did he see any person carrying out double voting at the Polling Station. His evidence is that candidates’ agents except for the 1st Respondent went for lunch at 3.00 p.m. but did not return by the time polling had closed; and therefore did not sign the Declaration Forms.
James Musinguzi who was in charge of the Petitioner’s Campaigns in Southern Region of Uganda stated that on the day of election, he visited Kashanja, Nyarurambi, Kijumbire and Ntungamo Polling Centres in Kanungu District and in all these places he found that the Polling Agents of the Petitioner were chased away from the polling area and there was no actual voting since the ballot papers were being pre-ticked in favour of the 1st Respondent by Polling Officials who would then direct the voters to put them in the ballot boxes. He complained about this to the Returning Officers but in vain. He claimed that at Kifumbwe Polling Centre, the Petitioner’s Agents who had been chased away were dragged from their homes to come and sign the Declaration of Results Forms in respect of voting they had not witnessed.
Boniface Ruhindi Ngaruye who is a District Councilor and was a Member of the Elect Besigye Task Force in Mbarara stated that on the polling day he was deployed to oversee the performance of the Polling Agents for the Petitioner in Mbarara, surrounding areas and Ishongororo Sub-county. At Biharwe Polling Station he saw that the Presiding Officer had denied the Petitioner’s Agents to be present until he went at about midday and explained to the Presiding Officer that he had no such authority. He found no Polling Agents at the newly created Polling Station called Makenke A-J, Makenke A-N, Makenke O-Z which had not been included in the parking list handed to him on 11 March 2001 by the Returning Officer, Mbarara. By the time he approached agents for the said stations at Makenke, the polling was about to close and the Petitioner’s candidates only witnessed the counting process.
But Aspol Kwenja, who was the District Registrar, Electoral Commission in- charge of Mbarara District, denied the allegations by Ruhindi Ngaruye. He stated that the persons who were sent as Polling Agents for the Petitioner originally lacked proper documentation but subsequently brought them and they eventual signed the Declarations of Results Forms, copies of which were attached to his affidavit. I have looked at the form and two agents of the Petitioner signed the form for Makenke K-N Polling Station.
Ssentongo Elias who was in-charge of Polling Agents in Ntungamo Town Council on behalf of the Petitioner stated that at Nyaburiza Parish and at Kabuhone Polling Station the Chairman of the District Service Commission and a known supporter of the 1st Respondent, Tom Muhozi chased away all the Polling Agents except those for the 1st Respondent. However, Muhozi Tom denied chasing away candidates agents. He stated that after casting his vote at 10.00 a.m. he went back to his home. He returned later to the Polling Station after the voting closed and he saw all the Petitioner’s Agents present who duly signed the Declaration of Results Forms.
Koko Medad a Polling Monitor for the Petitioner in Kanungu District but does not indicate the area of monitoring stated that at Nyarutojo he found that a District Councilor had chased away the Polling Agents from the Polling Station, and forced to stand 50 metres from the ballot boxes where they could not see what was going on. He states that all people except the Agents of the 1st Respondent had been chased away from the voting area. He further claims that he and another agent were chased away from Nyarugando Parish Polling Station. At Ruhandagazi Polling Station he found that one of his agents had been beaten by the LC Ill Chairman, Arthur Mugisha and his supporters were in disarray. It is not clear whether he witnessed the beating of his agents.
The evidence of Koko is disputed by Rutazaria Silver who was the Presiding Officer at Kyamugaga II (A-K) in Nyantojo Parish, Kambuga Sub-county in Kanungu District. He states that no agents were chased away from his Polling Station by Mugisha or anyone. According to him all the agents sat together with election monitors close to the polling desks during the whole voting process. He stated that the voting area was not deserted until after voting closed at 5.00 p.m.
Tukahirwa David who was a registered voter at Nsambya Polling Station in Mubende District claimed that when he went to the station to collect his votes card on polling day as promised by the Polling Official, the Presiding Officer refused to give one saying his was missing. But others were being issued with cards. He was unable to vote because he had no voter’s card though he had a registration certificate.
He claims that as soon as the voting started the Presiding Officer ordered the Polling Agents for all candidates to go away from the area earmarked with a rope where counting was going to take place. When counting of votes started, the Presiding Officer held the ballot papers close to his chest and read out the names of candidates and thereafter passed over the same to his assistant. He would not show the ballot papers to the people to see in whose favour each ballot paper to the people to see in whose favour each ballot papers was ticked.
After counting of the results he raised a complaint and the Presiding Officer allowed the Election constable to conduct a recount for him.
Barnabas Mutwe, who was the Presiding Officer at Nsambya Polling Station in Mubende District, stated that there were only four people whose names did not appear on the Register and he did not allow them to vote. He told the Agents to move two metres away from the ballot papers so as not to tamper with them. He denied the allegation that he did not show every ballot paper to the public and the candidates’ agents and confirmed that he did so. He denied that there were any soldiers near the Polling Station and nobody threatened anybody during the voting or the counting of the votes. He stated that after the counting nobody raised any complaint, and the Petitioner’s Agent signed the Declaration Results Forms without any complaint.
Hamman Rashid who was a Polling Agent of the Petitioner for Kilangazi A Polling Station in Ngoma Nakaseke County in Luwero District claimed that when he arrived at the Polling Station at 6.30 a.m. polling had started and he saw voters voting more than once. At about midday Major Bwende came and threatened him and ordered him to go away and he did so. He was therefore not able to witness the counting of votes. But Major Bwende denies the allegations made by Rashid. Major Bwende says there was no such Polling Station.
Senyonga John who was a Polling Agent of the Petitioner posted at Katuntu Polling Stations, Lwebitakuli Parish in Sembabule District, claimed that on polling day he went to Lwebitakuli Polling Station and when he introduced himself to the Presiding Officer, and asked for a seat, he was chased away alleging that he was not a resident of the village. He explained to the Presiding Officer that he was appointed a monitor and many people from his village were registered at the Polling Station. After 30 minutes of argument he was allowed to do his work but asked to sit far away from the Presiding Officer’s desk. He accordingly sat 10 metres away from his desk. He also states that he was prevented by the Presiding Agent from looking at the register and voters cards. Later he was given documents by the Presiding Officer and was forced to sign them.
The evidence of Senyonga is disputed by Karamuka Abel who was a Polling Assistant for Kantuntu Polling Station, Lwebitakuli Parish in Sembabule District. He states that on the polling day at 7.00 a.m., the Presiding officer called the Polling Agents of the Petitioner and the 1st Respondent himself and the crowd to witness the opening of the ballot box which he showed to everybody. At around 9.00 am. Senyonga John came to the Polling Station claiming to be an Agent of the Petitioner but he was carrying an appointment letter in the name of Mutyaba Julius. The Presiding Officer refused him to act as an Agent because he did not have his own appointment letter. Senyonga went away and came back at about 12.00 p.m. with an appointment letter in his name after cancelling the names of Mutyaba Julius. The Presiding Officer allowed him to monitor the voting, which went on smoothly. Senyonga and another agent of the Petitioner Mpeke both signed the Declaration of Results Forms freely without any threat from anyone.
Kipala John who was deployed as a monitor for the Petitioner at Mugab Parish Kakunto in Rakai district stated that when he complained to the Presiding Officer about malpractices of people attempting to vote twice and refusing to dip fingers in the ink or ticking ballot papers he was chased away by the Presiding Officer and he was rescued by his colleague Kimera who drove him away in his vehicle at 3.30 p.m. (This affidavit is not controverted).
Suliman Niiro, a monitor for the Petitioner in Bukooli North Constituency claimed that Agents of the Petitioner were chased away for 4 hours from Bus Park A Polling Station in Bugiri town Council by armed soldiers during which period they forced young children to vote. The agents came back after 4 hours before the voting ended. But Magezi Abu who was the Presiding Officer at Bus Park “A” Polling Station disputed the claim of Suliman Niiro. He stated that during the voting no soldiers came to his Polling Station or forced unauthorised people to vote. He stated that the security at the Polling Station was in the hands of one Policeman who was the Election Constable.
Kimunwe Ibrahim who was a Polling Monitor in-charge of Bukoli South Constituency in Bugiri District claimed that at every Polling Station he visited on the polling day, the Petitioner’s Agents had been chased away by the Presiding Officers, 8 metres away. The witness does not explain why he calls this chasing away agents or the effect of being seated 8 metres away.
Kirunda Mubarak, a Polling Monitor of the Petitioner in Mayuge District stated that he found at Mpungwe Polling Station that the appointment letters of the Polling Agents had been withdrawn from them on the ground that the Presiding Officers suspected them to have been fake and they had been chased away. When he asked the Presiding Officer why the Polling Agents had been sent away, he replied that they were not sure of the Agents and had told them to sit far. Kirunda states that the Agents were not allowed to write down anything. He reported the matter to the Chief Administrative Officer who ignored his complaint. He claims further that the LC I Chairman got hold of him and chased him away out of the polling house.
However, the evidence of Kirunda is disputed by Balaba Dunstan who was the Acting Chief Administrative Officer (CAO) of Mayuge District at the time of the election. He states that he does not know Kirunda and he never received a report from him alleging that the Petitioner’s Agents had not been allowed to witness the voting exercise and protect their candidate’s interests.
Helen Ayeko who was a Polling Agent for the Petitioner at Kalapata “A” Polling Station in Kumi District claimed that the Presiding Officer Richard Napokol chased her away when the voting started and refused her to monitor the number of ballot papers and names of registered voters. She stated that the presiding officer did not want her near the table where ballot papers were being issued and the ticking of the register was done. Later she was forced to sign the Declaration of Results Forms.
In his affidavit in reply Napokol admitted knowing Aeko as Agent of the Petitioner, but also her sister in law. He stated that Aeko arrived at the Polling station after polling had started but another agent of the Petitioner had been present at the commencement of the exercise. She was given a seat and monitored the polling process. He stated that the two ballot paper books had been dispatched from the Electoral Commission when they were not full and all the agents who were present at the commencement of the exercise had been informed. At the end of the exercise all Polling Agents endorsed the exercises as having been conducted freely without any irregularities and they duly signed the Declaration of Results Forms. He did not force any agent to sign the forms.
Dennis Odwok a Campaign Agent of the Petitioner in Amida Sub-county in Kitgum District claimed that he found that at the ungazetted Polling Stations for the Army namely, Ngom-Orono (A-4), Ngom-Orono (F-N) and Ngom-Orono (O-Z) UPDF soldiers were the ones conducting the elections instead of Officials of the 2nd Respondent, and there were no Candidates’ Agents to observe and monitor the elections. He alleges further that thereafter the Presiding Officer entered the results from the three Polling Stations in the Tally Sheet for Lukung Sub-county. He does not explain how he was able to monitor all these.
Olanya James, who was the Presiding Officer for Ngom-Orono O-Z Polling Station in Kitgum District, denied the allegation by Dennis Odwok that the election at that Polling Station was conducted by the army instead of officials from the Electoral Commission. He stated that they were all candidates’ agents present at the Station and all of them signed the Declaration of Results Forms, which was attached to the affidavit. I have booked at the form and it is true that one agent for each Presidential Candidate signed the form.
It seems to me there were a number of problems associated with Polling Agents. Some did not have proper identification and when this was corrected they were allowed to carry out their duties. Some complained of having been asked to sit too far away to be able to monitor the voting effectively. The distances are not uniform as they range from 5 to 20 metres. It is not clear what the ideal distance is. In some new Polling Stations, it may be that the Petitioner did not have adequate time to appoint agents. In other cases it may be that the agents were harassed by polling or security officials. Despite these complaints it appears from the declaration of results form attached to the affidavits of both parties that the majority were signed by the Petitioner’s Agents. Most of the Petitioner’s evidence has been seriously challenged by the 2 Respondents witnesses.
On the evidence before me I do not find that it has been proved to my satisfaction that the 2nd Respondent or his agents or any other person chased away the Petitioner’s Agents in contravention of Section 32 (1) and section 47 (4) and (5) of the Act. Therefore the principles of transparency were not violated.
Complaints Relating to the Tallying of Results:
I shall now deal with the complaints relating to the process of tallying the results. Both the Petitioner and the 2nd Respondent adduced evidence in support or defence of their respective cases.
In his affidavit in support of the Petition, the Petitioner challenges the election results of Mawokota County South and Makindye Division East where he alleges that the number of votes cast was more than the number of the registered voters making the percentage as 105.34% and 109.86% respectively. The full details are indicated in his affidavit. He states that from the two constituencies there were 2,184 + 7,797 = 9,981 votes cast in excess of the registered voters. The Petitioner further states that he has looked at the Declaration of Results Form DR for Bukaade Primary school Polling Centre in Buwologoma Parish, Bukenga Sub-county, Luuka County Constituency in Iganga District and noted that the number of votes cast exceeded the number of ballots issued for the Polling Station. The total votes cast were 856 while the number of votes issued was 650. He attached form DR for Bukaade Primary School Polling Station in annexed hereto as annex R4.
Mr. Aziz Kasujja, Chairman of the 2nd Respondent, in his affidavit in answer to the Petition stated that the results received by the Commission and declared on 14 March 2001 were as shown on the Result Form B and detailed in District Result Sheets annexed hereto as R1 and R2. He stated that Annexture R3 to the Petitioner’s affidavit did not contain authentic results as the proper results are contained in the summary result sheets by district attached to his affidavit as R2.
Kasujja denies that the number of votes cast for Makindye County East were more than the number of registered voters. He explains that what was shown in the table of results attached to the Petitioner’s affidavit was an arithmetical error as explained in annexture R 3 (a) and (b) and was corrected as shown in annexture R 3 (c) (I) and (ii).
R 3 (a) is a letter from Mr. G.T. Mwesigye, Returning Officer, and Kampala, addressed to the Chairman of the 2nd Respondent. It is headed “Results for Makindye East” and states,
“On 13th March 2001 I dispatched results for Makindye East which were erroneous. This error came out as a result of faulty tallying from the DR Form. This problem was brought to my attention yesterday 19” March by one Leticia of the Commission.
This morning we revisited the DR Forms and found that our original tallying
was faulty and gave a picture of more voters than those registered in the
Constituency. We regret the error. Attached is the correct result for M
akindye East, and the report of the Tallying Clerk.”
R 3 (b) referred to above is a letter dated 27 March 2001 signed by Tumwesigye David on behalf of the Counting Officers addressed to the Returning Officer Kampala. It is headed “Error made in tallying the Votes for Makindye” states in part,
“The error has been identified and rectified in relation to the recently concluded Presidential Elections.
The error was made by carrying forward for (sic) from one Tally Sheet to another and wrong adding. While on some tally sheets the totals were carried forward on others the totals were not carried forward. And even then the summary that was added for each tally sheet included the totals that were already carried forward. This caused double counting. This led to votes cast for the candidates totaling to 86,087.
The error has been rectified by tallying the votes on new tally sheets.
The correct total vote cast for candidates is 570,018 as indicated on the Transmission Form.”
R 3 (c) (I) is the summary of the Transmission of Results, which indicates the correct total of votes for each candidate, which is reflected in R 3 (C) (ii) Constituency Provisional Results for Kampala District.

According to Mr. Kasujja the results in the Petitioner’s affidavit in respect of Mawokota County South were not correct, the correct results being shown in Annexture 4 to his affidavit, with 40,887 registered voters, and the total number of votes cast as 27,234. Mr. Kasujja denied that the 9981 votes were cast for candidates in the two Constituencies of Mawokota County South and Makindye County East in excess of registered voters as alleged in the Petitioner’s affidavit. He stated that in Mawokota 40,887 voters were registered and 27,234 voted making a percentage of 66.6% and in Makindye there were 79,078 registered voters and the total votes cast were 57,018 which is 72.1% of the registered voters.
Furthermore Mr. Kasujja explained that the tabulation of figures on the Declaration of Results Form “P 4” attached to the Petitioner’s affidavit is not correct and is not an authentic document of the 2nd Respondent. The correct results were as shown in the document annexed to his affidavit as R5.

The Petitioner in his affidavit in reply to Mr. Kasujja makes many allegations including falsification of results, ballot stuffing, results inconsistent with the number of papers issued and cast, ghost voters and multiple voting. Much of the information contained in the affidavit is hearsay or merely his opinion; and not based on his personal knowledge. However he attaches Declaration of Results Forms to support his opinion.

He states that the results announced on Radio and broadcast on TV were finally changed in the results declared on 14 March 2001 and contained in Annexture P 3 to the affidavit of Kasujja. He claims that the results of Makindye Division East where the error was admitted in tallying and corrected on 27 March 2001 are proof of ballot stuffing and alleged correction of an arithmetical error is falsification of the results by the Respondent.

The Petitioner further claims that the Declaration of Results Forms from a number of Polling Stations in Bushenyi, Mbarara, Mbale, Masindi, Mpigi, Mayuge, Mukono, Sembabule, Soroti, Kamuli, Wakiso, Kiboga, Kabarole, Jinja, Ntungamo, Kasese, Kayunga, Luwero and Iganga show that the number of votes cast at the Polling Stations exceeded the number of ballot papers issued to the Polling Stations. Copies of the forms were annexed to his affidavit.

Examples are given. At Bukoko TCA (N-Z) Polling station Bubulo Constituency in Mbale District, the number of votes cast for the 1st Respondent exceeded the number of valid votes cast for all the candidates. At Kimengo (M-Z) Polling Station, Buruli Constituency in Masindi District, the number of ballot papers issued were equal in numbers with the votes cast but the total number of unused ballots was 410 ballot papers. At Mayembe Upper Prison C, Mawokota County North in Mpigi District the number of ballot papers cast exceeded the number of ballots counted as there were 416 ballot papers unused. At Ishaka Adventist College Igara County West, Bushenyi District, the number of ballot papers issued at the Polling Station was 477 equivalent to the number of ballot papers counted yet 353 ballot papers were unused. The Petitioner stated that the above acts, which constituted ballot stuffing, characterised the election countrywide. But it is interesting to note that all the 190 copies of Declaration of Results Forms attached to his affidavit were signed by his agents. The Petitioner alleges further that Annexture P 4 given to him by his Agent was not signed by his Agent and it contrasts with annex R 5 to the affidavit of Mr. Kasujja.

Mr. Kasujja denied the above allegations in his supplementary affidavit. He stated that there was no falsification of election results in favour of any candidate at all and Annextures R 3 (a) (b) (c) (i) (ii) to his previous affidavit were genuine documents and that no tallying was done after announcement of results. What was done was the correction of errors.

Mary Frances Ssemambo was the Chairperson of the Elect Besigye Task force in Mbarara District. She claims that a lot of malpractices took place in Mbarara District, and there was massive rigging of the elections. She states that in some Polling Stations the total number of votes shown as cast for the 1st Respondent far exceeds the total number of votes cast for all the candidates and the total number of ballot papers issued to the Polling Station. She attached copies of the Declaration of Results Forms filled by one of the Polling Stations to demonstrate this and was marked as Annexture MFS-A-l.

She claims that there were large numbers of ballot papers shown as having remained unused in a number of Polling stations even where the number of ballot papers issued to the various Polling Stations were shown as not exceeding the total number of ballot papers actually used, an anomaly which was not explained. She attached about 15 copies of Declaration of Results Forms filled to demonstrate the anomaly.

Edith Byanyima stated that she was a Tallying Agent for the Petitioner in Mbarara District. She was given an official copy of the Return Form for transmission of results (Annexture EB-A-1) and also read the official declaration of results for the Electoral Commission (Annexture EB-A-2). She compared the results from Mbarara on the two documents and found that they were not the same. Whereas on Annexture EBA-l the Petitioner is recorded as having received 37,226 votes in Annexture EB-A-2 the Petitioner is recorded as having received 37,180 votes and the 1st Respondent is recorded as having received 426 votes in Annexture EB-A-1 and 430,929 votes in Annexture EB-A-2.

Ndyomugenyi Robert stated that on 7th April 2001 he was given a letter of introduction by the Head Counsel for the Petitioner to Mbarara and Bushenyi. He reached the two areas on 10 April 2001. Upon presentation of the letter to the District Returning Officer Mbarara who wrote a Minute to the District Registrar to take appropriate action. The District Returning Officer of Bushenyi, Mr. Bitabareho opened 3 ballot boxes in the presence of OC CID Bushenyi and the 1st Respondents four representatives and the District Registrar of the Commission. The three ballot boxes were for Ishaka Adventist College, Mushumba Parish Headquarters and Kalungi Mothers Union Polling Station. He picked the declaration forms together with the voters’ rolls, which were later certified by the Commission as true copies.

He proceeded to Mbarara and met the District Returning Officer and four boxes were opened for the following stations, Ruti 2 (L-Z) Mirongo 4, Nyamityobola and 4 Kyarubungo. At Mirongo the number of voters on Voters Register who voted was 687 and yet the tally sheet certified by the Electoral Commission indicated that the 1st Respondent alone got 781 votes more than the number of people who voted.

Mr. Kasujja, Chairman of the 2nd Respondent denied the above allegation. He stated in his affidavit in reply that the Annextures Mr. Bulonge attached to his affidavit was not correct and his findings in Annexture A are misleading. He explained that the number of voters who voted at Mirongo 4 Polling Station were 827 and not 687 and the correct figures are indicated on the copy of the Declaration of Results Form marked E and the copy of the Tally Sheet marked F. The Polling Agents of the Petitioner endorsed the forms and filed no complaint.

Hezzy Kafureka who was the Returning Officer of Mbarara District denied the allegations made by Mary Frances Ssemambo and Edith Byanyima. In reply to the affidavit of Ssemambo, Kafureka states that the alleged anomalies and discrepancies are all contained in an official document known as the Declaration Results Form DR which were prepared by the Presiding Officers of the respective Polling Stations. Before the official results for Mbarara District were publicly announced the information contained in the Results Forms had to be tallied. The process of tallying involved various forms which included the accountability of Ballot Papers at the Polling Station Form, the Packing List, the Official Report book and form TVB which is filled before opening the ballot box and counting ballot papers. The process of tallying was carried out under his supervision in his capacity as the returning Office of Mbarara District. During the tallying process the tallying clerks for every county would resolve any anomaly or inconsistency arising in the Declaration of Results Form prepared by the respective officers. The apparent anomalies and discrepancies reflected in the Annextures to Ssemambo’s affidavit were all resolved and recorded in the Official Tally Sheet. Kafureka stated that despite the anomalies and discrepancies reflected in the annextures to Ssemambo’s affidavit, all the Polling Agents of the Petitioner endorsed the Declaration of Results Forms and did not dispute the results of the election. He explained that the apparent anomalies in the forms were a result of human error by the Presiding Officers while completing the forms. He stated that Ssemambo did not seek an explanation from him nor participate in the tallying process.

As regards Edith Byanyima’s affidavit, Kafureka stated that she attended the tallying exercise but arrived when the process had begun and left before it was concluded. He said that the Annexture referred to as EB- A-Z in Byanyima’s affidavit was a copy of a newspaper publication of the New Vision dated March 1 6 2001 and was not an official document of the Electoral Commission. But the document referred to as Annexture EB-A-1 by Byanyima is the Official record of the results in Mbarara District.

John Tumusiime who was the Chairperson of the Elect Besigye Task Force for Bushenyi District claimed that there was a large number of ballot papers shown as having remained unused in a number of Polling Stations even where the number of ballot papers issued to the various Polling stations were shown as not exceeding the total number of ballot papers actually used, and this anomaly was not explained. He attached copies of Declaration of Results Forms to demonstrate the anomalies. He alleges that the packing list, which was availed to him, did not indicate how many ballot papers had been issued to each Polling Station. He states that he was denied the tally sheets by the Returning Officer, nor were they availed to the tallying agents for the Petitioner in Bushenyi District.

But Johnston Bitabareho, who was the Returning Officer of Bushenyi District, denied the allegations by John Tumusiime. He denied that there were a lot of malpractices in the conduct of elections in the District, and also denied the specific allegations made by Tumusiime. He stated that the Presiding Officers at the Polling Stations specified erroneously recorded the number of ballot papers issued to the voters at the Polling Station in the place of the number of ballot papers issued by the Electoral Commission to the Polling Station. He attached copies of the official report books of the various Polling Stations showing the actual number of ballot papers issued to the said Polling Stations.

He explained that in order to reach the numbers of unused ballots the Presiding Officers were required to deduct the valid, invalid and spoilt ballots from the number of ballot papers issued to the station but the arithmetic was flawed and affected by wrong entries in the cases cited. Despite the arithmetic errors in the entries, there were no unaccounted for ballot papers in the Polling Stations mentioned and the Presiding Officers nonetheless filled in the actual number of ballots remaining at the Polling Stations. He stated that when the entry regarding the number of ballots issued to the Polling Stations is corrected in accordance with the Official Report book, and the valid, invalid and spoilt ballots are deducted, the figure derived in all the cases mentioned is the same as the unused ballots entered in the declaration of results appearing in annextures to Tumusiime’s affidavit.

He stated further that Tumusiime was not entitled to receive any parking lists, but packing lists containing the number of ballot papers issued were duly sent to every Presiding Officer at every Polling Station in the District. He denied refusing to give Tumusiime tally sheets and stated that in the morning of 13 March 2001, he announced to everyone present including Tumusiime that he would announce the results in the afternoon of the same day and he did so but in the absence of the Petitioner’s Agents. On 15 March 2001 Tumusiime came to his Office and asked for the tally sheets, but he informed him that the District Registrar had taken them to the Electoral Commission in Kampala.
Anteli Twahirwa who was the Kabale District Chairman for the Petitioner’s Campaign Task Force alleged that their Agents were forced to sign Declaration of Results Forms. He stated that he had perused the Declaration of Results Forms from his District and found that nearly all of them are inaccurate. He claims that they indicate the total numbers of ballot papers in possession of Polling Officials, which were higher than the total numbers of ballot papers officially received at the respective Polling Stations. Copies of the some of the forms containing these anomalies were attached to his affidavit. His conclusion is that the elections were massively rigged in favour of the l Respondent. It is not clear how he arrives at this conclusion when 10 out of the 11 Declaration of Results Forms he attached to his affidavit were signed by the Petitioner’s Agents.

Katengwa Samuel who was the Returning Officer for Kabale District denied the allegations made by Twahirwa. He stated that it was Twahirwa as the Petitioner’s Campaign Chairman who went on air at Voice of Kigezi Radio Station calling upon all the Petitioner’s Agents to withdraw from Polling Stations and not sign the Official Declaration of Results Forms. His view that only those agents who may not have heard the announcement or saw no reason for refusing to sign what they had witnessed freely signed the said forms.

Katengwa further explains that the anomalies referred to in Annextures E marked “C 1” - “C l” were partly a result of the Polling Officials running short of ballot papers due to having received insufficient numbers and borrowing from neighbouring stations but this was evidenced by the report of the Electoral Commission Sub-county Supervisor; a copy of which was attached to his affidavit.

As regards the alleged inaccuracies in the Declaration of Results Forms attached to Twahirwa’s affidavit, he explained that they were not deliberately commuted by the Presiding Officers who prepared them but the said anomalies and discrepancies were in some cases a result of human and arithmetical error. He states further that in all cases the Presiding Officers at all the Districts’ Polling Stations forwarded the Declaration of Results Forms to him and before the official results were forwarded to the Electoral Commission in Kampala, he had a duty to carry out a tallying exercise when all candidates were entitled to be present and participate. He explained that during the tallying exercise they rectified the arithmetical errors and therefore the anomalies and discrepancies complained of by Twahirwa were resolved in the presence of candidates tallying agents. The Petitioner’s representatives refused to sign the Transmission of Results Return form due to Twahirwa’s Radio announcement. The results he transmitted from his district were cross-checked and confirmed at the Tallying Centre at the Commission in Kampala.

Suliman Niiro who was a Monitor for the Petitioner in Bukooli North Constituency in Bugiri District stated that he found that some calculations on the Declaration of Results Forms were elevated and very inaccurate at several Polling Stations like Kamango, Nkavule Parish sub-county Kaprani, Buwelya Makoova, Mayenge Parish, Budhaya Primary School.

Ongee Marino was appointed a Monitor for the Petitioner in Kitgum District. He stated that at about 2 p.m. he found that six Polling Stations had been created and voting was conducted without agents for the Petitioner at the Polling Stations of Pajimo Barracks A, Pajimo Barracks B, Ngom-Oromo (A-E), Ngon-Oromo (E-N), Ngom-Oromo (O-Z) and Malim Abondo’s Home II when the results were being tallied the exercise continued smoothly for the gazetted Polling Stations but when it came to the above created Polling Stations the Returning Officer refused to declare the results and said the details would be known later when the ballot boxes and the Declaration of Results Forms had been submitted to him.

When he objected the proposed procedure he was forcefully removed from the place of tallying by the Police. He went and reported the matter to Hon. Okello Okello who was in-charge of the Petitioner’s Campaigns in the district. Hon. Okello wrote a letter to the Returning Officer, which was attached to the affidavit. In his letter Hon. Okello Okello was urging the Returning Officer to allow Ongee to perform his duties including checking all the tallies. On his return to the tallying centre he found the exercise completed and his request to look at the results of Polling Station by Polling Station was refused by the Returning Officer.

Aliga Michael the Presiding Officer for Malim Abondro Home II Kitgum Polling Station denied that the polling went on without Agents of the Petitioner. He denied further that the Returning Officer refused to declare the results but he himself declared the results at the Polling Station in the presence of voters and candidates’ agents. Akena Kennedy a Presiding Officer at Malim Ambondo Home II Kitgum corroborated the evidence of Aliga Michael.

Charles Owor stated that he was requested by the National Elect Kizza Besigye Task Force together with Richard Turyahabwe to go to the Electoral Commission officer to witness the receipt and tallying of election results on behalf of the Petitioner. They carried a letter of introduction to the Chairman of Electoral Commission. At the Electoral Commission they met Mr. Wamala who agreed to show them around the Offices where the results were being received and tallied. But he and his colleague were refused to enter the Data Centre by the person dressed in civilian clothes who demanded that they get permission from the Chairperson of the Electoral Commission himself. After failing to get the permission they left the Commission Offices between 4.30 and 5.30 p.m. and reported the matter to the Legal Counsel to the Petitioner’s Task Force, Mr. Balikuddembe.

Robert Kironde stated that on 13 March 2001 at about 8 p.m. the Petitioner and his task force asked him to go with Mr. Kawalya to the Electoral Commission Offices to witness the counting and tallying of the national results of the Presidential Election. At about 9.00 p.m. Mr. Flora Nkurukenda, the Deputy Chairperson of the Commission allowed them to enter both the Communication Room and the Data Centre and asked Mr. Wamala to take them around.

In the Communication Room he observed the election results were being received from the District Returning Officers by phone, radio voice or radio data or fax. In the Data Centre he found about four men and one lady at a desk receiving electoral information on results, tallying and verifying the results and thereafter handing the results to another desk where they were fed in the computers and then sent back after printing them on the computers for proof-reading by the people on the first desk. Thereafter the results would be forwarded to the International Conference Centre for declaration and publication to the nation.

On the first desk where the election results were being received from the Communication Room, the first person to receive the results was Hon. Charles Bakkabulindi, the Workers’ Member of Parliament and one of the well known Chief Campaign Agents for the 1st Respondent. He knew that Hon. Bakkabulindi was not an employee of the Commission. When he wanted to make his own notes about the figures of the results that were being counted, tallied, Mr. Wamala stopped him and advised him to go to the International Conference Centre where he would get the final figures as they were being declared. He and Mr. Kawalya then left the Commission Offices at about 10.30 p.m.

Flora Nkurukenda, the Deputy Chairperson of the Electoral Commission stated that the Petitioner’s Agents were allowed to witness the tallying of the results at the Commission Headquarters on production of letters of introduction. She admitted that an introductory letters for Charles Owor and Richard Turyahabwe was left at the Headquarters pending its endorsement by the Chairman of the 2nd Respondent. Later in the day Lead Counsel for the Petitioner, Mr. Balikuddembe and Mr. Yona Kanyomozi introduced two gentlemen to her as the Agents of the Petitioner. The gentlemen did not have letters of introduction so their names were substituted in place of Owori and Turyahabwe by the Lead Counsel. She personally introduced the two agents who she learnt to be Dr. Kironde and Mr. Bwogi Kawalya, to the tallying staff and allowed them into the Data Processing Department and they witnessed the tallying of results after which they left on their own accord. I have looked at the copy of the introduction letter in which the names of the agents were substituted as indicated by Mrs. Nkurukenda.

Wamala Joshua who was the Acting Head Election Management Department of the Electoral Commission denied the allegation by Robert Kironde that Hon. Bakkabulindi was the first person to receive results as he was not handling results but observing the tallying process. He explained that Hon. Bakkabulindi was in the tallying centre as an agent of the 1st Respondent as much as Kironde was the agent for the Petitioner.

Frank Mukunzi who claims to be a Data Analyst made an affidavit to which he attached a report entitled Data Analysis Report on the 2001 Presidential Election which was commissioned by the Petitioner. He was requested to establish the practical viability of the results declared by the Electoral Commission. According to his report, he used techniques of applied science in the field of statistics, mathematics and experimental social psychology. He claims that his analysis revealed that whereas the Commission presented figures with high precism, they were grossly inaccurate by an error margin of over 50% in the Commissions’ figures of the voters’ register. His opinion was that the error was so significant that the possibility of the actual poll results showing a different picture from the one given by the Electoral Commission could not be ruled out. However, from the data available, he was unable to determine to what extent the above errors affected each candidate.

Mr. Mukunzi criticises the figure of 10,775,836, registered voters declared by the Commission. He agrees with the figure given by the Bureau of Statistics of 8.9 as realistic. But his own calculations bring him to a figure of 10,627,118, thus making a difference of 10,756 with the figure of the Electoral Commission. In reaching this figure he made a number of assumptions when calculating the number of Ugandans who qualified to vote after the 1991 census, without considering those who died.

I am unable to rely on this opinion. The expertise of Mr. Mukunzi as Data Analyst was not established but was disputed by those in the data analyst profession. His opinion was purely speculative.

I accept the evidence of the Petitioner that here were anomalies and discrepancies in the Declaration of Results Forms and in Tally Sheets. These have been admitted by the 2nd Respondent. However, I accept the explanation given by the 2nd Respondent that the mistakes were due to arithmetic errors committed by Presiding Officers and Tallying Officers, and were not deliberately made to falsify the results or rig the elections. I also accept the evidence of the 2nd Respondent that the Petitioner’s Agents were not refused to witness the tallying of the result. Therefore the principle of transparency was not undermined.

Failure to Control the Distribution and Use of Ballot Boxes and Ballot Papers:

The Petitioner complains in Para 3 (1) (m) of the Petition that contrary to Section 12 (1) (b) and (c) of the Electoral Commission Act, the 2nd Respondent failed to control the distribution and use of ballot boxes and papers resulting in the commission of numerous election offences under part x of the Act. The offences listed are:
(i)     
Unauthorised persons getting possession of ballot papers and other documents relating to the election and using them during the election;
(ii)     Unauthorised persons and or officials of the 2nd Respondent using ballot documents acquired to stuff ballot boxes, tick ballot papers on behalf of the voters voting more than once and or doctoring figures in the Voters Register and Rolls.

The Petitioner alleges that as a result, a Commissioner and other official of the Electoral Commission were arrested on the Election Day and charged on 14th March 2001 before the Buganda Road Chief Magistrates Court under Criminal Case No.344 of 2001. In his affidavit in support of the petition the Petitioner states that he knows that Hajati Miiro a Member of the Commission was arrested with two Senior Officers in the Data Centre of the Commission of the polling day and were charged in Buganda Road Chief Magistrates Court with electoral offences and he attached a copy of the charge sheet.

Mr. Kasujja, the Chairman of the 2nd Respondent admitted that Commissioner Miiro and 2 other Officers were arrested and charged in Buganda Road Court but they were not yet tried or convicted and therefore presumed innocent and their cases were subjudice. It is common ground that Mrs. Miiro, a Member of the Electoral Commission and two others namely, Timothy Wakabi a Statistician and Ibrahim Lutalo, Acting Head Voter Registration in the Commission were charged with two counts of abuse of office and neglect of duty before the Buganda Road Chief Magistrate Court. The particulars of the charge of abuse of office allege that for the purpose of rigging the election and in abuse of their authority they did arbitrary acts prejudicial to rights of the Commission in that they printed excess voter’s cards in various names and for various electoral areas. They are also charged with neglecting to print the correct number of voters’ cards thereby resulting in printing of excess voter’s cards.
 
This is a criminal case, which has not been tried. The accused are presumed innocent until proved guilty. The matter is subjudice and cannot be used as evidence of wrong doing by the 2nd Respondent until the case is determined.

I have already dealt with allegations of stuffing ballot boxes, ticking of ballot papers on behalf of the voters, multiple voting, failure to compile and update Voters Register and Rolls. I shall now first deal with allegations relating to failure to control the distribution and use of ballot boxes and papers.
Section 12 (1) (b) and (c) of the Commission Act provides:
“(1) The Commission shall, subject to and for the purposes of carrying out its functions under Chapter Five of the Constitution and this Act, have the following powers
(b) to design, print, distribute and control the use of ballot papers;
(c) to provide, distribute, and collect ballot boxes.”

The Petitioner alleges that the 2nd Respondent’s failure to control distribution and use of ballot boxes and papers resulted in the commission of numerous election offences under part X of the Act. But Part X deals with election petitions and not election offences. However such offences are covered under Part Xli of the Act, particularly Section 105. I shall now consider the evidence, which was adduced by the parties in relation to the complaint.

Lucia Naggayi claimed in her affidavit that at Bukomero II Polling Station in Kiboga County East Constituency, he found ballot books containing ballot papers with similar serial number viz 3873301-3873400 making the 1 number of ballot papers as 110 in a ballot book. She further claims that at the four Polling Stations he visited the ballot papers in the box were either 40, 50 or 60 instead of the exact number of 100. For instance the numbers at two of the Polling Stations were:
 
Bukomero I:      Serial Nos:      387540-3875450
                          3874741-3874800
Bukomero II:     Serial Nos:      3875451-3875500
                          3876101-3876140
 
I see nothing to suggest that these serial numbers were or could not have been issued to the Polling Stations as they are. There is no evidence to prove that other ballot papers were unused or stuffed in ballot boxes.
Ntume Noellene who was the Presiding Officer for Bukomero II N-Z Polling Station stated that Naggayi never counted any ballot papers in any ballot book and it was not true that there were 110 ballot papers in one book.

Kipala John was a Polling Monitor for the Petitioner at Magabi Parish Kakuuto County in Rakai District. His evidence was that at 7.00 a.m. at Gayaza Polling Station when the ballot box was opened it contained seven booklets, six of which contained 1 00 ballot papers each and the other contained 52 ballot papers only. When he asked the Presiding Officer what had happened to the 48 ballot papers, he said he did not know.

Bernard Masiko who was a Campaign Agent for the Petitioner and a Polling Monitor in Kayonza Sub-county stated that on polling day when he reached the Polling Station at 6.30 a.m. with his agents they found that he voting had already started. He claims that all the voting was done by the 1St Respondent’s Agent called Rehema Biryomumaisho who had about 200 ballot papers. She ticked all of them and put them in the ballot box. He found out that the same had been done in all Polling “Stations by Sulait Mugaye and Ismail, who were the 1st Respondents Agents. He does not say how he found out.

Basajjabalaba Jafari who was the Secretary of the Elect Besigye Task Force for Bushenyi District stated that he was in-charge of overseeing Polling Agents in Bunyaruguru County. At Kyenzaza Trading Centre Polling Station he received information from the Petitioner’s Agents that one Kyomuhangi Allen had 13 ballot papers ticked in favour of the 1st Respondent and that when she tried to cast them she was intercepted and they were removed from her and handed- over to the Monitor of the Station. He approached the Monitor and the ballot papers were handed over to Fr. Vincent Birungi, District Co-ordinator of the NEMO GROUP who took them to Bushenyi Police Station. He went to the Police Station and made his statement. He attached copies of the ballot papers to his affidavit. I have looked at the ballot papers and they are all ticked in favour of the 1st Respondent except one, which has crosses against the Petitioner and Karuhanga Chapaa - Thus making it a spoilt ballot paper.

Patrick Tumuhairwe who was the Presiding Officer at Kyenzaza Trading Centre Polling Station stated that in the afternoon of the polling day, he was approached by a Monitor called Fr. Vincent Birungi. Fr. Birungi asked him about an alleged incident whereby Allen Kyomuhangi was caught with 13 ballot papers while attempting to put them in the ballot box at the Polling Station. He informed Fr. Birungi that the incident could not have occurred without his knowledge and none had reported the matter to him or his Polling Assistants and record of incidents, which occurred, were recorded in the Official Report Book, which he attached to his affidavit. The report book does not contain the allegation or complaint; and it is signed by the Agents of the Petitioner namely Aruho Michael and Tukahebwa Kenneth.

John Tumusiime stated that he was the Chairperson of Elect Besigye Task Force for Bushenyi District. He claims he saw a lot of malpractices and rigging in Bushenyi District. He claims that some Polling Stations received ballot book with some of the ballot papers already plucked off. He attached copies of Declaration of Results Forms to demonstrate this. But the forms do not show how the ballot papers were plucked off and how many. He states that cases reported to Bushenyi Police Station included multiple voting, impersonation being in unlawful possession of ballot papers and selling of voter’s cards. He does not indicate who committed these malpractices and to what extent. He also claims that a large number of ballot papers were shown to have remained unused - in a number of Polling Stations even where the number of ballot papers issued was shown as not exceeding the total number of ballot papers actually used, an anomaly which was not explained. About twelve copies of Declaration of Results Forms were attached, but they were all signed by the Petitioner’s Agents without complaint. He also claimed that he was denied the Tally Sheets by the returning Officer nor were they availed to the Tallying Agents for the Petitioner for Bushenyi District.

John Bitarabeho, who was the Returning Officer for Bushenyi District, denied the allegations made by Tumusiime. He stated that it was not true that the Polling Stations received ballot books with some of the ballot papers already plucked off. He explained that the number of ballot papers dispatched in all cases concurred with those received at the Polling Stations. He attached copies of packing lists showing that in all cases the number of ballot papers dispatched were the same as those received and noted in Annextures JF.A1 and JF. A2.
He also denied that a large number of ballot papers remained unused even when those issued to the Polling Station did not exceed those used. He explained that the Presiding Officers of the said Polling Stations erroneously recorded the number of ballot papers issued to the voters at the Polling station in the place of number of ballot papers issued by the Commission to the Polling Station. He attached copies of the Official Report Books of the various Polling Stations showing the actual number of ballot papers issued to the Polling Stations.

Betty Kyimpairwe who was the District Monitor for the Petitioner in Kamwenge District claimed that at Kyabandara Kanyegaramire Polling Station where the Petitioner had support, she found the Presiding Officer and Polling Officials maliciously spoiling ballots cast for the Petitioner by adding a small tick on the 1st Respondent. As a result of this she complains most of the Petitioner’s ballots became invalid. She states that this same thing happened at Nkongoto Primary School.

But Mugyenyi Silver, who was the Election Officer, Election Management Department in-charge of Mid Western Region denied the allegations. He stated that at the Polling Station only 2 ballot papers were declared invalid and only one ballot paper was recorded as spoilt. A copy of the Accountability of Ballot Papers Form ABP for the Polling station was attached to confirm his statement.

James Birungi Ozo who was a District Monitor for the Petitioner in Kamwenge District claimed that at Kakinga Polling Station at around 3.30 p.m. he found the Parish Chief removing the votes cast for the Petitioner from the ballot box using sticks inserted into the box. He alleged that the said Chief was standing at the ballot box and would check all ballot papers ticked and those ticked for the Petitioner would be torn. But Mugyenvi Silver who was the Election Officer Management Department in-charge of Mid Western Region denied the allegation. He explained that the size of the slot on the ballot box could not allow for the alleged removal of ballot papers.

Magumba Abdu who stated that he was appointed a Polling Agent of the Petitioner at Munyonyo Muslim School Polling Station in Mayuge District stated that of the nine ballot papers booklets one of them had ten (10) ballot papers missing, and upon inquiring from the Presiding Officer, he was informed that the booklet had been handed over to him in that condition.

Balaba Dunstan who was the Returning Officer for Mayuge District stated that he caused the voting materials to be delivered to their respective places while they were still in the sealed form in which they had been dispatched from the Electoral Commission. In support of what Balaba has said, Maigovu Jowali who was the Polling Agent for the 1st Respondent at the said Polling Station, stated that he was present when voting materials arrived at the Polling Station at Minoni Muslim School which is mistakenly referred to as Munyonyo Muslim School by Magumba. The number of ballot papers booklets were verified in the presence of Magumba. He confirmed that of the 9 booklets that he saw each of the 8 booklets contained 100 ballot papers and it was only the 9th booklet which had less than 100 ballot papers. All this tallied with the parking list inside the ballot box. At the end of the polling exercise all other candidates’ agents voluntarily signed the Declaration of Results Forms.

Musisi Francis who was a Polling Agent for the Petitioner at Baitambogwe Polling Station in Mayuge District claimed that at the Polling Station, when the first booklet of papers containing 100 ballot leaves got finished, the Presiding Officers produced a second booklet which had seventy three (73) ballot papers missing as only 27 were displayed to them. On inquiring, they were informed by the Presiding Officer that they had been removed and taken to another Polling station.

Ojok David Livingstone who was the Chairman of the Namatala Ward Task Force for the Petitioner in Mbale Municipality stated that on the polling day he and his fellow Monitor Massa Musa received information at Namatala Police Post that one lady was distributing voter’s cards. Accompanied by a Police Officer, they went to her home. He knew her as Nakintu. On being asked about the allegations she admitted that she had received 50 voters’ cards from one councilor, Charles Wafula to distribute to the supporters of the 1st Respondent. She said she had distributed 11 voter’s cards to her fellow supporters of the 1st Respondent. She produced the remaining cards together with the bottle of jik one tablet of cussons Imperial soap and a drying rug for removing the marking ink. The Police Officer arrested her and took her to the Police Station together with the exhibits. The following day she was released.

Wafula Charles who is a Councillor of Industrial Division Council Mbale Municipality denied the allegations made by Ojok David. He admitted knowing Nakintu Margaret but denied giving 50 voter’s cards to Nakintu to distribute to supporters of the 1st Respondent. He never received any voter cards from any person for distribution to the 1st Respondent’s supporters.

Maliki Bukoli who was a voter at Doko Cell Polling Station in Mbale Municipality claimed that at 11 am. while he was proceeding to the Polling Station he met a crowd of people gathered around a man at the Catholic Church Polling Station. He noticed a man known to him as Mukonge who had been arrested with 5 voter’s cards. He saw him being taken to Mbale Police Station. After 2 days he saw Mukonge back in his area. He does not say whether he actually saw the voters’ cards or what happened to them thereafter.

Helen Ayeko, a Polling Agent for the Petitioner at Kalapata “A” Polling Station in Kumi District alleged that the pads of ballot papers did not contain the regular number of 100 papers per ballot paper pad. One of the pads contained only 29 ballot papers and another had only 20 ballot papers. But she also stated she was chased away from the desk where ballot papers were by the Presiding Officer.

But the Presiding Officer of that Polling Station Napokol Richard explained that the two ballot paper books referred to had been dispatched from the Commission when they were not full and all the Polling Agents who were present at the commencement of the voting exercise were notified of the fact.

Ongee Marino who was the Petitioner’s Monitor in Kitgum District claimed that on the polling day he witnessed the delivery of an additional ballot box destined for Pandwong was apprehended and handed over to the Police with a request that it be opened but the Police refused. He also witnessed the delivery to Kitgum Police Station of a ballot box meant for Palika, which he believes, was used for rigging the election. No time is given, and he does not state whether the boxes were empty or stuffed.

He further claims that Capt. Nuwagaba landed in Kitgum in a helicopter with 3 additional ballot boxes and the Registrar Geoffrey collected the said ballot boxes in a pick-up under army escort together with the said Nuwagaba. He states that the ballot boxes were meant to be taken to Ngom Oromo at around 8.00 p.m. He objected and at around 10.00 p.m. they took the boxes to, the Police Station and requested that the boxes be opened, but the Returning Officer refused since the ballot boxes were stuffed with ballot papers and were heavy.

Godfrey Okot who was the Registrar/Election Officer of Kitgum District stated that he had about 200 Polling Stations both civilian and army. On 11 March 2001 he received all polling materials and distributed them to all Polling Stations without a shortage in his electoral area. On polling day at 7.30 p.m. Capt. Nuwagaba came to Kitgum with 3 ballot boxes meant for Ongom Oromo Polling Stations. He informed Capt. Nuwagaba that there was no shortage in Ngom Oromo and all the army units had voted and Capt. Nuwagaba left with them the ballot boxes sealed. Capt. Nuwagaba, the Returning Officer Kitgum and himself decided to take the three boxes to the Police station. The seal of the boxes has not been opened to date. He denied that the three ballot boxes were stuffed with ballot papers as claimed by Marino because they were not used during the elections.

Katehangwa Samuel the Returning Officer for Kabale District in reply to Anteli Twahirwa’s complaint about anomalies in tally sheets in Annextures Cl-Cl2, he explained that they were partly a result of Polling Officials running short of ballot papers due to having received insufficient numbers and borrowing from the neighbouring stations, but this was evidenced on the report of the Electoral Commission Sub-county Supervisor (a copy was attached marked C). He attached copies of two requests for more ballot papers from two Presiding Officers. Another copy was returning a balance of ballot papers.

Wamala Joshua who was the Acting Head of Election Management Department of Electoral Commission explained the allegation that certain booklets contained less than 100 ballot papers. He stated that the Commission ordered for 11 million ballot papers for the elections, which arrived in the country in booklets containing 100 ballot papers each. Since however the numbers of voters at the various Polling stations were not in denomination of exact 100s and the ballot booklets contained 100 ballot papers each, some booklets had to be split for ease of distribution to Polling Stations.

Looking at the evidence as a whole, I accept the evidence of the 2nd Respondent as regards the explanation as to why some ballot books did not have 100 ballot papers. It was due to convenience of distribution to Polling stations where the number of voters did not require round figures of 100 ballot papers in each ballot book. There is also the explanation that the calculations by Presiding Officers were inaccurate in many Polling Stations. There was borrowing of ballot papers from neighbouring stations. At the end of the polling exercise, the results were correctly tallied to correspond to the actual number of ballot papers issued to the Polling Station. The claims that unauthorised persons were found with ballot papers have also been satisfactorily explained or refuted.

Unauthorised Possession of Voters Cards:

I shall now consider the evidence relating to unauthorised possession of voter’s cards. Both the Petitioner and the 2nd Respondent filed affidavits in support of their respective cases.
Wafid Amir who was a Monitor for the petitioner in Mutoto Bungokho Sub- County in Mbale District stated in his undated affidavit that while he was at Munkaga Stage, the Resident District Commissioner, Hassan Galiwango came in his vehicle and parked at the stage. The Sub-county Chief Nambale - Mutoto was at the stage and went to talk to Mr. Galiwango. After the discussions the RDC continued towards Tororo. At the same time the area Movement Chairman, Geoffrey came from Tororo side on a motor cycle driven by one Sonya David and he went towards Musoto, which was his next destination.

At Musoto, he found Musongole the Vice-Chairman of his village holding discussions with the Sub-county Chief Nambale. When he reached where they were, Sonya drove his motor cycle in the opposite direction allegedly carrying a black handbag which he did not possess when he was driven to Musoto. As he suspected rigging of elections, he told his driver to turn back and give a chase. At the local railway crossing, Sonya’s motor cycle developed a problem and he found him there. He asked Sonya what he was carrying in the black handbag but when Sonya tried to grab the bag and run away he struggled for the bag which got torn and more than 50,000 voters cards and some official stamps plus Return Forms for the Sub-county of Bungoko were poured down. He raised an alarm, which was answered by a crowd, which assisted him to arrest Sonya and retain the bag. The Movement Chairman and the Sub-county Chief came to the scene and tried to rescue Sonya, but in vain. Sonya was detained until Police Officers from Mbale Police Station came and took him into custody together with the exhibits. He escorted Sonya to the Police Station. Two days later, he saw Sonya back home.

Wamaye Kenneth who is the Sub-county Chief of Bungoko Mutoto in Mbale District denied the above allegations. He stated that on the polling day he received a report from the Presiding Officer of Musoto A Polling station that some people had been refused voting because they did not have valid voter’s cards and that some people had voter’s cards but their names were not appearing on the voter’s register. He requested for a lift from Mr. Musonya David to go and find out the position. He carried with him envelopes containing returns for voter’s cards, Registers Rolls inkpads and pens. On his way back, he was ambushed in Marare Village by Wafid Amir who started raising an alarm to the effect that the tax collector meaning him was stealing votes. He ran away for fear of being lynched.

He denied being in possession of 50,000 voter’s cards at the time, and stated the number of voters in the sub-county is 20,000. He said that the balance of the cards he was returning to the sub-county headquarters was less than 3,000. Wafidi Ali and Musongole Julius grabbed from him the balance of voter’s cards from 4 Polling Stations, namely Nauyo “A”, Nauyo “B”, Nauyo “C” and Bunamwami Church of Uganda. He denied engaging in any election malpractices as alleged.

Wafid Amir’s affidavit is technically inadmissible as not being dated. But even if it were admitted, the allegations therein have been rebutted by Wamae Kenneth whose explanation is credible in the circumstances.

Mubaje Sulaiti a voter at Bukwanga Store Polling Station in Bungokho county, Mbale District claimed that he saw a person in-charge of the marking ink holding about 10 voter’s cards and 10 ballot papers and when he complained about this, the Presiding Officer, two armed LDU assaulted him and removed the papers from him and put them in the ballot box. He was not allowed to vote as his voter’s card was removed from him and he was chased away. He reported the matter to Mbale Police Station where he made a statement.

This evidence is refuted by Kasakya Hakim who was the Presiding Officer for Bukwanga Trading Centre B Polling Station. Kasakya states that at about 11 .00 a.m. a group of five people came with valid voter’s cards but whose names were not on the register. He informed them that they could not vote and asked them to leave. Mubaje joined the Petitioner’s Agents and beat him until he was rescued by a Local Defence Unit Officer, whereupon Mubaje left and later reported the matter to Mbale Police Station. He denied that there was any lady who attempted to cast 10 ballot papers into the ballot boxes as alleged. He denied forcefully removing Mubaje’s voter’s card or threatening violence against him.

Arajabu Mugamba who was deployed at Bukwanga “C” Polling Station as a Police Constable denied being armed on that day. He knew Mubaje, who came at 10 a.m. with lssa Kibwiti and went to the Presiding Officer’s table. While at the table, Mubaje and Kibwiti attempted to grab ballot papers from the Presiding Officer, Mr. Kasakya Hakim. He intervened and pushed them away. They grabbed him and bet him severely, after which they ran away. He reported the matter to the Returning Officer when he reported to the Polling Station at 2.00 p.m. He therefore denied assaulting Mubaje and removing ballot papers from him and put them in the ballot box.

Karenzyo Eliphaz a Registered voter at Rwenyerere Polling Station in Kihiihi, Kanungu District stated that when the Voters Register was displayed he went to his Polling Station and was given his voter’s card. But he noticed that many newly registered voters especially youths who had only recently reached voting age had been denied cards on the ground that they were rebels. He alleged that Abel Turaaakira the LC Il Chairman was involved in this practice. He claims that the Polling Officials were left with many “unclaimed cards” which they then distributed to the LC I Chairman for distribution to others; but they never did so. Later, he alleges, Mrs. Jackline Mbabazi wife of Hon. Amama Mbabazi convened a meeting in the Lukiiko Hall at Kihiihi and directed the Chairman to keep the voting cards safely to be used for the 1st Respondent. He claims that he was outside the Hall and heard her clearly.

Jackline Mbabazi denied the allegation made by Karenzyo. She denied convening a meeting in the Lukiiko Hall at Kihiihi where she directed Chairman of LC I to keep voting cards of unclaimed cards safely for use and benefit of the 1st Respondent’s election.

Idd Kiryowa who was a Polling Agent for the Petitioner at Nabiseke Polling Station in Sembabule District claimed that at around 1.00 p.m. one Makasa who was a Campaign Agent for the 1st Respondent was found distributing voter’s cards to some people behind a building. He was offered money to give up supporting the Petitioner but he refused. He left them there and lodged a complaint to the Presiding Officer but to no avail.

Kakuba Nathan who was the Polling Agent for the 1st Respondent at Nabiseke A-L Polling Station where he cast his vote denied requesting Nabosa to approach Idd Kiryowa for any reason whatsoever. He denied being behind any building since he was supposed to keep near the Presiding Officer’s desk all the time. He also denied stuffing any ballot papers in the ballot box.

Fazil Masinde, who was a Monitor in-charge of seven Polling Stations in Mayuge District, claimed that on the polling day, at Babuli Polling Station, he found the area Chairman of LC I Mr. Isa Bwana with voters’ cards which he was distributing to people who were not registered voters instructing them to vote for the 1st Respondent. He reported the matter to Mayuge Police but no action was taken. At Butangalo, one Mrs. Kidiri Mukoda was also distributing voters’ cars to many registered voters and among the people who were given was Isha Nabirye and Baina Nakagolo who was arrested while trying to vote. At Busakera B Polling Station, a Gombolola Security Officer, Ahmed Gesa was also issuing voters’ cards and directing people to vote for the 1st Respondent.

But Gesa Ahmed who was the Defence Secretary LC II Kaluuba Parish and Gombolola Internal Security Officer (GISO) at Katyelera Sub-county, Mayuge District denied the allegation made by Masinde. He stated that he was not an Agent of the Respondent neither did he hold any official position in the electoral process. He therefore did not issue any voters’ cards to any person or direct people to vote for the 1st Respondent. He stated that he was busy performing his duties of monitoring the general security situation in the sub- County and only appeared at the Polling Station of Busakera B at about 2 p.m. to cast his vote and then left. He denied threatening anybody at the Polling Station. The Presiding Officer, Mudaaki Emmanuel also denied the allegation made by Masinde.

Sulaiti Kule who was a Monitor for the Petitioner in Kasese District claimed that one Robert Kanunu came to him complaining and handed him 1 6 voters’ cards allegedly given to him to supply to other people. He took the cards to Kasese Police Station. He noted the names and numbers of the cards in his notebook. There is no indication as to who supplied the cards and for what purpose, and what Polling Station he was at, at the time. Kugonza James who was the Presiding Officer at “Below the Town Agent House L-Z” Polling Station refuted Kule’s allegations about the Petitioner’s Agents sitting 3 to 5 metres away from the Presiding Officer’s desk instead of 2 metres agreed earlier. Kugonza stated that the agents sat 2 metres away. This evidence casts doubts on the credibility of Kule.

Guma Majid Awadson who was a Polling Monitor for the Petitioner at Kuru Division Polling Station at Lomunga, Aleapi and Geya Parish claimed that at Aleapi Parish, Ojinga Polling Station he saw one Mawa a Member of the 1st Respondent’s District Task Force and Campaign Manager distributing voters’ cards to people who were not appearing on the Register and who did not have voters’ cards. He arrested Mawa and got the voters’ cards for one Leila Alungaru No.002279l67. While he was recording the number of the second card, armed Military Personnel came and took Mawa away with the other cards threatening to arrest him. He also claimed that Drasi LC Ill Chairman of Kuru County had been issued with six ballot papers to vote for Aliba A Polling Station.

But Drasi Ali denied that he was given six ballot papers to vote by Abele as alleged above. Okot Araa Sam the District Police commander, Yumbe District admitted receiving a complaint from Guma Majid at 9 am. that Drasi had been issued with 6 ballot papers to vote at Aliba Polling Station. He instructed his junior staff to go to the scene and investigate the matter. The investigations revealed that the allegations against Drasi were false and no arrests were made.

The issue and distribution voters’ cards are the responsibility of the 2nd Respondent and any person or officer it may authorise to do so. In some of the complaints, the Presiding Officers or Polling Officials were criticised for issuing voters’ cards. There was no evidence that they were not so authorised. It may also be true that time for issuing voters’ cards had lapsed. But the allegations of unauthorised possession and distribution of voters’ cards before or on the day of polling have been denied by the evidence adduced by the 2nd Respondent. This evidence has cast serious doubts on the evidence and allegations by the Petitioner. I therefore find that it has not been proved to my satisfaction that the 2nd Respondent failed to control the distribution and use of ballot boxes and ballot papers resulting in the commission of numerous election offences.

Failure of All Commissioners to Sign Declaration of Results Form B:

It is alleged in Para 3 (1) (u) of the Petition that contrary to Section 56 (2) of the Act the 2” Respondent declared the results of the Presidential Election when all the Electoral Commissioners had not signed the Declaration of Results Form B. Section 56 (1) and (2) of the Act provides,
“(1) The Commission shall ascertain, publish and declare in writing under its seal the results of the Presidential Election within forty-eight hours.
(2) The declaration under sub-section (1) shall be in Form B or Form C as specified in the Seventh Schedule to this Act as the case may be.”

The form has places for signatures of seven Commissioners and the Secretary to the Commission.
However, Section 56 (2) of the Act does not provide how decisions of the Commission relating to elections or any other matter are to be taken. This is provided for in Section 8 of the Commission Act, which states in part as follows:
“(1) Every decision of the Commission shall as far as possible be by consensus.
(2) Where on any matter
Consensus cannot be obtained, the matter shall be decided by voting; and the matter shall be taken to have been decided if supported by the votes of a majority of all the Members of the Commission.
(3) In any vote under sub-section (2) each Member of the Commission shall have one vote and none shall have a casting vote.
(4) The quorum of the Commission at any meeting shall be five.
(5) The Commission may act notwithstanding the absence of any member or any vacancy in the office of a member.
(6) The Secretary shall cause to be recorded minutes of al
l proceedings of the Commission

The Declaration of Results Form B was signed by five Commissioners and the Secretary. Mrs. Miiro who was a Commissioner did not sign because she was in custody facing a criminal charge. It is common knowledge that Lady Justice Maitum ceased to be a Commissioner on appointment as a High Court Judge. The Commission had capacity to act notwithstanding any vacancy on it or absence of a member provided it had a quorum of five. The Declaration of Results Form B was signed by five Commissioners and therefore the Commissioners’ decision declaring the results of the election was in accordance with the law. The independence, impartiality and integrity and indeed its authority was not thereby undermined in any way.

Allowing People with Deadly Weapons at Polling Stations:

The Petitioner complains in Para 3 (1) (r) that contrary to Section 42 of the Act the 2nd Respondent and its Agents or Servants in the course of their duties allowed people with deadly weapons to wit soldiers and para-military personnel at Polling Stations - a presence which intimidated many voters to vote for the soldiers boss - the 1st Respondent - while many of those who disliked to be forced for that candidate stayed away or refrained from voting at all.
In reply the 2nd Respondent denied allowing any unauthorised armed people in any Polling Station and stated that no voters were refrained from voting for a candidate of their choice as alleged.
Section 42 of the Act provides,
“(1) No person shall arm himself or herself during any part of polling day with any deadly weapon or approach within one kilometre of a Polling station with deadly weapons unless called upon to do so by lawful authority or where he or she is ordinarily entitled by virtue of his or her office to carry arms.
(2) Any person who contravenes sub-section (1) commits an offence.”

This provision appears intended to provide an atmosphere of freedom at or near the Polling Station. It prohibits the holding of deadly weapons at Polling Stations unless so authorised or unless the weapon is heed by virtue of office. This section creates an offence committed by a person, and it appears to be it may not be breached by the 2nd Respondent unless it unlawfully authorised any person to hold a deadly weapon at a Polling Station. The Act does not contain a definition of a deadly weapon but it must be such a weapon when may cause death when used for offensive purposes. A gun or a panga could be a deadly weapon.

Section 40 of the Act makes a Presiding Officer to require the assistance of a Police Officer or other persons present to aid him or her in maintaining peace and good order at the Polling Station. Section 41 provides that 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 to be an Election Constable to maintain order in the Polling Station throughout the day. But a Presiding Officer may only appoint a person other than a Police Officer to be an Election Constable where there is actual or threatened disorder or when it is likely that a large number of voters will seek to vote at the same time. It is clear therefore that security at Polling stations is required to be maintained by Police Officers or election constables.

The Petitioner adduced the evidence of several witnesses to support his case. Alex Busingye who was in-charge of overseeing the operations and welfare of the Polling Agents for the Petitioner in Kazo County in Mbarara District claims that at the majority of the Polling Stations he visited he found that the Polling Agents for the Petitioner had been chased away by armed UPDF soldiers. She gives only one example of one Polling Station called Nkungu where she found a Monitor for the Station had been tied by UPDF soldiers and bundled on a motor vehicle Reg. No. 114 UBS pick-up in which they were travelling.

Mbabazi Kalinda who was the Presiding Officer at Nkungu Trading Centre Polling Station A-K denied the allegations made by Busingye. He stated that Busingye never complained to him that an Election Monitor had been taken away by soldiers. He denied that at his Polling Station a Monitor was tied up by soldiers and bundled on a pick-up.

Mary Frances Ssemambo who was the Chairperson of the Petitioner’s Task Force in Mbarara District claims that in many Polling Stations in Nyabusozi County and lsingiro County South, Polling Agents for the Petitioner were harassed, arrested, beaten, tied up and detained or threatened with violence and chased from the Polling Stations by heavily armed UPDF soldiers, LDUs and the 1st Respondent’s Agents, and the interests of the Petitioner in numerous Polling Stations were not safeguarded. She does not indicate how she came to know this or any agent who was so treated.

Hezzy Kafureka, the Returning Officer of Mbarara District denied the allegations made by Ssemambo. He stated that the anomalies in the Declaration of Results Forms were a result of arithmetic errors, which were corrected during the polling process, and the forms were endorsed by all Polling Agent of the Petitioner.

Koko Medad who was a Polling Monitor for the Petitioner in Kanungu District claimed that when he reported at his Polling Station, he found Polling Officials working together with non-officials including an army veteran called Kakambe and others. Kakambe was guarding the ballot box armed with a gun and he threatened to kill anybody who touched it. He also claims that the Petitioner’s Agents were chased from the polling area, to stand about 50 metres away. This was done by a District Councillor Peter Mugisha. But Rutanaza Silver who was the Presiding Officer denied the allegations and stated that all Polling Monitors were present till the counting of votes.
John Kijumba who was a Monitor for the Petitioner for Bukonjo West Constituency in Kasese District claims that prior to the polling day, a soldier by the name of Kilindiro William who came to [is area and said that he had been sent by State House to arrest those campaigning for the Petitioner, and that he had their list, which included his name. On the polling day, at Katojo Polling Station, he noted that there were about 10 army men all armed with guns guarding The Polling Centre. He did not say that the soldiers intimidated or interfered with the voting.

Milton Wakabalya who was the Presiding Officer for Katojo Polling Station in Kasese District denied the allegations made by John Kijumba. He stated that on the polling day, Katushabe Marusi identified to him as the appointed Polling Constable. He never saw Marusi carrying any firearm nor did he see any armed men at the Polling Station, nor did he receive any report of their presence.

Imoni Stephen a Campaign Agent for the Petitioner in Kwapa County, Tororo District claimed that on polling day at the close of the polling the Presiding Officer convinced all Agents to sign the Declaration Forms before votes were tallied. Before the votes could be counted, the LC Ill Chairman, Alfred Obore returned to the Polling Station after 6.00 p.m. with a gun cocked it and ordered everybody to disappear.

They disappeared but returned 30 minutes later only to find that at the end of the exercise 1 60 ballot papers had not been used leaving 65 ballot papers unaccounted for. After disagreement the agents of the Petitioner insisted that the 65 votes be destroyed. The matter was reported to CID Malaba who arrested the Presiding Officer but later released him.

Masasiro Stephen who was a Polling Agent for the Petitioner at Nkusi Primary School Polling Station claimed that while at the Polling Station a disturbance was started by the Area Sub-county Chief Abdu Mudoma, the Chairman of the 1 Respondent’s Task Force, All Mukhholi the Sub-county Councillor, Mr. Michael Namundi who came to the Station with 4 armed soldiers. The soldiers shot in the air. The Polling Agents for the Petition - himself and Mr. Wafuba were severely assaulted. After the assault, he alleges that the Sub-county Chief, the Sub-County Councillor and the Chairman of the 1st Respondent’s Task Force put ballot papers in which the 1st Respondent’s picture had been ticked into the ballot box. When they tried to intervene, they were assaulted further and removed from the ballot box. He struggled with Ali Mukholi and snatched 5 ballot papers from him. He took the ballot papers to Mbale Police Station where he made a report. Magezi Abu who was the Presiding Officer at Bus Park “A” Polling Station in Bugiri District denied that any soldiers ever came to his Polling Station and forced unauthorised people to vote as alleged by Niiro.

Baguma John Henry was appointed a Monitor for the Petitioner in the whole of Bukonjo County in Kasese District. He alleges that on 1 2 March 2001, the RDC in-charge of Bukonjo West, one Aggrey Mwami came to Musaa Polling Station, with a lorry full of armed soldiers. Mwami ordered the Presiding Officer to allow all soldiers to vote and handed to the Presiding Officer the names of the soldiers when the Polling Station had its own register before the RDC arrived. When he protested he was overpowered and threatened with death by a soldier in-charge of operations at Nyabwongo Army Battalion Headquarters. He noted that the men who had voted at Nyabwongo Army Barracks had been transported to Rwenghuyo and Kisenga Trading Centre Polling Station where they voted again. When he pointed this out to the Presiding Officer, he was chased away by Major Muhindo Mawa who threatened to kill him if he continued to protest against the soldiers voting from any Polling Station (NB soldiers were voters). No guns were seen. He does not explain how he recognised soldiers who had voted in other Polling Stations.

Major Mawa Muhindo of the UPDF stationed at 13th Battalion Bwera in Kasese District denied the allegations made by Baguma John that he went to Rwenghuyo and Kisenga Trading Centres. He stated that he voted at Kisolholho Primary School Polling Station, which is approximately 20 kilometres away from Kisenga Trading Centre. He denied chasing away Baguma or threatened to kill him as alleged.

Alex Otim who was a Monitor of the Petitioner in Paico Division in Gulu District stated that while he was at Paico P.7 School together with another Monitor, they found that two soldiers were deployed at each Polling Station. He claimed that the soldiers were forcing old people to vote according to their choice. He mentions the following soldiers as being involved in the malpractices - Opoka Denis, Mawa Rasheet, Dumba Julius and Ocen Francis. He alleges that when they chased the soldiers away from the Polling Station, they went to a nearby barracks and came back armed and were also using an army vehicle (mamba). The soldiers assaulted and arrested him and Okello Saul and released them at 8.00 p.m. after voting.

Despite denials by the witnesses of the Respondents, I accept the evidence for the Petitioner that in a few Polling Stations there were some armed people contrary to the law.

Abduction and Arrest of Agents and Supporters:

The Petitioner complains in Para 3(1) (w) of the petition that his agents and supporters were abducted and some arrested by the Army to prevail upon them to vote for the 1st Respondent or to refrain from voting contrary to Section 74 (b) of the Act. The Petitioner does not specify in his supporting affidavit, the names of those abducted or arrested to prevent them from voting for him save for Hon. Rabwoni Okwir. But other witnesses have given statements to support the complaint. It is necessary to consider first the complaint in respect of Hon. Okwir who was the Chairperson of the Youth and Students Committee of the Elect Besigye Task Force.

In his affidavit sworn from London on 23 March 2001 Hon. Major (Rtd.) Okwir Rabwoni MP states that he was illegally arrested, detained and tortured and intimidated during the Presidential Campaigns in Uganda which ran from 8th January to 12th March 2001 when he was in the National Campaign Team of the Petitioner, On 19 January 2001, he was confronted by members of the Presidential Protection Unit (PPU) in Rukungiri District at Kanungu Trading Centre and prevented from meeting with their supporters. He was held hostage with his supporters but later left for his next meeting in Rugyeyo Sub-country, Rukungiri District. Twelve armed soldiers under the command of Capt. Ndahura surrounded him there and his supporters and ordered him to leave the District while assaulting the Petitioner’s supporters.

Hon. Rabwoni further states that on 19th February 2001 he was made to sign a document announcing his withdrawal from the Elect Besigye Task force (EBTF), by two UPDF officers: Major General David Tinyefuza and Lt. Col. Noble Mayombo at Nile Hotel, Kampala on 20 February 2001, he avers that he was unlawfully and violently arrested at Entebbe International Airport, beaten and sat upon in a military police pick-up in the presence of journalists, diplomats and colleagues and illegally detained at the Chieftaincy of Military Intelligence (CMI) Headquarters in Kampala. During the arrest he sustained injuries to his leg and chest and for which injuries he was still undergoing treatment. He went through six-hour grueling interrogation session conducted by seven officers of the Chieftaincy of Military Intelligence.

He further states that on 21st.February 2001, he had a telephone conversation with H.E. the President Museveni when he was in Gulu where he tried to convince him to leave “that wrong group” and promised to allow him leave the country and to take care of his interests while he was abroad.

On the same day he claims that he was freed to make a statement disassociating himself from the Presidential candidate Dr. Besigye’s Task Force, in the presence of Major General Elly Tumwine, Major General David Tinyefuza, Maj. General Jeje Odongo and Lt. Col. Noble Mayombo, a statement which he later read to the press at Parliament Buildings the same evening. He claims that from 21st February 2001 he was virtually under house arrest at his residence in Bbunga, guarded by officers and men of UPDF under the guise of “state protection;” against his own candidate and supporters.

On 27 February 2001, he claims he had to leave the country as he felt his life was in danger and he was currently living in the United Kingdom with his family. He concludes his affidavit by claiming that consequently, he did not vote in the 12th March 2001 Presidential elections, which is a denial of his constitutional right.

Hon Okwir’s account of how he was arrested at Entebbe International Airport is supported by the affidavits of the Petitioner and his wife, Hon. Winnie Byanyima. According to the Petitioner’s affidavit in support of the petition, on 19 February 2001 at about 7 p.m. he arrived from Bundibugyo and found Hon. Okwir at his house with his wife Solange and Ms. Anne Mugisha. Hon Okwir narrated to him how he had been intimidated for two days by Maj. Gen. David Tinyefuza and Lt. Col. Mayombo. He also informed him how he has been taken to the International Conference Centre and forced for his safety to sign a document to the effect that he had resigned from the Petitioner’s Task Force and that they were getting funds from countries hostile to Uganda. After signing the document he had been taken to Nile Hotel for lunch.
The Petitioner defended further that after discussing the matter with Hon. Okwir, it was decided that the public be informed through the press about what had happened and they continued with the campaign normally. After the press conference they went to the Petitioner’s residence where Okwir spent the night. The following day on 20 February 2001 the Petitioner was scheduled to address rallies in Adjumani and Moyo Districts, and had planned to travel by a chartered aircraft from Entebbe at 9.30 a.m. together with some members of his Task force including Hon. Okwir. They arrived at the Entebbe VIP Lounge at about 9.30 a.m. As they proceeded to the aircraft at about 10.00 a.m. an official of the airport informed him that the aircraft has been refused clearance to take off and that they should return to the Lounge while clearance problems were sorted out. As they arrived back in the Lounge and official of the Civil aviation Authority named B. Monday came and informed Hon. Okwir that he had instruction to take him away but Hon. Okwir refused to go. The official went but shortly afterwards Capt. Rwakitarate Moses from the PPU came with some armed men putting on civilian clothes and instructed Okwir to get up and go with him. Hon. Okwir refused to comply, as they were not authorised under the law to arrest him.

At about 3.00 p.m. Col. Kasirye Gwanga arrived with a large group of armed soldiers and forcefully arrested Hon. Okwir and damped him on a pick-up and sat on his head, chest and legs, and drove off. The rest of his affidavit in which he depones on what Hon. Okwir told him about his interrogation and telephone conversation with the 1st Respondent is hearsay.

Hon. Winnie Byanyima also made an affidavit to support Hon. Okwir’s claim that he was abducted from Entebbe Airport. She states that on 19th February 2001 Hon. Okwir turned up at her home at Port Bell in the evening and he narrated how he had been pressurised and coerced by Maj. Gen. Tinyefuza, Lt. Cot. Mayombo, Col. Kasirye Gwanga and other senior army officers to make a statement of withdrawal from the EBTF but he stated that since he had escaped from them he was back into the EBTF although he feared for his life. On 20 February 2001, the Petitioner, Hon Rabwoni and herself and other members of EBTF went to Entebbe International Airport to board a plane to Adjumani where they were scheduled to address a rally. While at Entebbe International Airport, Hon. Rabwoni Okwir was forcefully abducted from the VIP Lounge by a big number of soldiers, which include Capt. Moses Rwakitarate of the PPU who appeared to be in-charge of the operation, which lasted five hours. She states that Hon Rabwoni was never charged with any offence but has since fled into exile.

The allegations made by Hon. Okwir have been answered by the affidavits of the 1st Respondent, Maj. Gen. Jeje Odongo, Maj. Gen. David Tinyefuza, Lt. Cot. Mayombo and Capt. Rwakitarate Moses. In his affidavit in support of the answer to the petition, the 1st Respondent states that it is not true that on 21 February 2001 he had a telephone conversation with Hon. Okwir where he tried to convince him to leave that “wrong group”. He states that on that day he had a telephone conversation with Hon. Okwir where he asked him whether it was Maj. Gen. Tinyefuza or Hon. Okwir himself who was telling the truth about the voluntariness of the statement he had signed stating that he had withdrawn from the Petitioner’s Task Force. He further states that Hon Okwir told him that the Monitor Newspaper report which alleged that he had stated that he was forced to withdraw from the petitioner’s Task Force was false. The 1st Respondent asked him what he intended to do and Okwir replied that he wanted to go abroad for medical treatment and rest. The Respondent asked him further how he would be able to maintain himself abroad as a Member of Parliament of Uganda. He advised Hon. Okwir to notify the Speaker of Parliament so that he could continue to draw his salary until he returned home.

In his affidavit, Maj. Gen. Tinyefuza denied that on 21 February 2001 Hon Okwir was forced to make a statement disassociating himself from EBTF in his presence. He stated that in the ordinary course of his duties as Senior Advisor to the Commander-in-Chief, he details and receives information from various persons acting under lawful covert circumstances, reports concerning security matters within Uganda.

He deponded that on numerous occasions he had assigned Hon. Okwir the task of covertly gathering information and reporting to him matters of highly sensitive nature relating to the security of Uganda. On 15 February 2001 Hon. Okwir requesting him for a meeting which was held on 17 February 2001 at Okapi Gallery in Bbunga where they held long discussions concerning national security matters in which the Petitioner was named. He informed Lt. Col. Noble Mayombo about the information he had received from Hon. Okwir and the three agreed to meet at Sheraton Hotel, the venue selected by Hon. Okwir.

Major Gen. Tinyefuza further states that on 18 February 2001 Hon. Okwir offered to escort him to Sembabule to attend a funeral of a relative. While there Hon. Okwir informed him that he had decided to withdraw from EBTF, and Hon. Okwir addressed mourners informing them of his decision.

On 19 February 2001 he proceeded to the International Conference Centre where he found that Hon. Okwir had already written a statement which was being typed announcing his withdrawal from the EBTF. Lt. Cot. Mayombo was in the room. After the statement was signed Hon. Okwir voluntarily signed it, and the two shook hands. Hon. Okwir promised to put in writing the reports he had given verbally within 3 days, they had lunch with Hon. Okwir and his wife at Nile Hotel.
According to Major General Tinyefuza Hon. Okwir asked for facilities including security to enable him meet his Youth Constituents, at the Ranch on the Lake to brief them about his decision. Security was provided to Hon. Okwir by Lt. Col. Mayombo consisting of a pistol and two guards. In the evening Hon Okwir could not be traced. On 20th February he received information that Hon. Okwir had been apprehended at Entebbe International Airport and taken to the headquarters of the Military Intelligence.

In his affidavit, Lt. Col. Noble Mayombo, the Ag. Chief of Military Intelligence and Security of the Uganda People Defence Forces (UPDF) and a Member of Parliament representing the UPDF denied the allegation by Hon. Okwir and Hon. Byanyima that on 19 February 2001, he and Maj. Gen. Tinyefuza forced him to sign a document at Nile Hotel, announcing his withdrawal from the EBTF.

Lt. Col. Mayombo states that his job involves collection, analysis and dissemination of intelligence reports on matters of security and distribution of such information to the President, Army Commander, Commanders of various units and other security organisations of the country. He further states that on 1st January Hon. Okwir who is his young brother and very close friend came to his house for the New Year celebrations and in the course of a political debate told him of his intention to support the Petitioner. From the time Hon. Okwir returned from Rwanda, he had been using him to collect intelligence and security matters in Uganda and Hon. Okwir had given him very good intelligence reports on security matters in Uganda. Lt. Col. Mayombo states that he encouraged Hon. Okwir to join the EBTF so that he gives him information about security related plans of that group and he agreed to do so. On many occasions between that date and 17 February 2001 Hon. Okwir had given him information of a security nature for which he received remuneration from him. As a result of information received from Maj. Gen. Tinyefuza, a meeting was arranged in Sheraton Hotel where he booked the room. The meeting was held till 4.00 a.m. and food and drinks were served. Hon Okwir informed the meeting that the Petitioner and Naser Ssebagala were planning to start insurgency in the event that the Petitioner lost the elections. Hon. Okwir also informed the meeting that they had linked up with people who were throwing bombs in the city, that they were hatching plots to kidnap their own members and blame it on the Government and had hired assassins to kill prominent politicians and leaders in Government. Hon. Okwir further informed the meeting that they had imported guns and were receiving money from neighbouring countries, which were interested in destabilising Uganda.

Lt. Col. Mayombo stated that on 19 February 2001 he went to Hon. Okwir’s residence where he found many people including his brothers, and had breakfast with them after which he travelled with them to the International Conference Centre room 328. Hon. Okwir wanted typing services for his statement withdrawing from EBTF and his Secretary Aida provided the services. While at the Conference Centre, Hon. Okwir discussed with him and other officers who included Lt. Col. Mugasha, Lt. Col. Gowa, Col. Kasirye Gwanga about his decision to abandon EBTF because it was involved in planning subversive activities. Thereafter, Hon. Okwir signed the document withdrawing from EBTF and they went to have lunch at Nile Hotel.

Lt. Col. Mayombo further states that Hon. Okwir asked for security and he was given a pistol and two armed escorts, one uniformed guard at his house and other in civilian attire to travel with him. After leaving the hotel attempts to contact Hon. Okwir proved fruitless; and Lt. Col. Mayombo got worried. He suspected that Hon. Okwir could have been kidnapped by the EBTF after hearing the statement on radio. He received intelligence information that Hon. Okwir was going to be killed in Adjumani by the EBTF members. He telephoned the Director of CID and the Inspector General of Police and it was decided to stop Hon. Okwir from travelling. He deployed Capt. Monday and Capt. Rwakitarate to stop Okwir from travelling. When these officers were obstructed by the Petitioner and others he informed the Director of CID who instructed his officers at Entebbe to effect the arrest. Hon. Okwir was subsequently arrested and brought to Lt. Col. Mayombo’s office at Kitante Road. Hon. Okwir said he was not feeling well and a doctor was called from Mbuya Military Hospital who checked him and found him with no serious injuries. Hon. Okwir was given a bed, blanket and bed sheets and received food and cigarettes supplied by his wife. Hon. Okwir asked Lt. Col. Mayombo to avail him an opportunity to talk to H.E. the President that he wished to travel abroad for treatment, rest and adequate security.

Lt. Col. Mayombo deponed further that upon the Respondent’s directive he requested the British Government to issue Hon. Okwir and his wife with visas, which were obtained together with tickets and money to use abroad. Hon Okwir was later escorted to his residence in Bbunga where he stayed with his father and 4 relatives for one week before travelling abroad. He states that Hon. Okwir was escorted to the airport by members of his family and received by the staff of the Uganda High Commission in London and he is still in contact with him.

Capt. Moses Rwakitarate made an affidavit to explain his role in the arrest of Hon. Okwir. He is the Intelligence Officer of the Presidents Protection Unit (PPU). He states that he was requested by Lt. Col. Mayombo to oversee the arrest of Hon. Okwir at Entebbe International Airport. He went to the Airport and found the arrest in progress. He asked Hon. Okwir to go with him to Kampala to answer some questions as required by Lt. Col. Mayombo. The Petitioner and others prevented Hon. Okwir from coming voluntarily. Eventually Hon. Okwir was arrested by combined efforts of the Police and Army Officers who include Capt. Kayanja Muhanga.

The provisions of Section 74 (b) are as follows:
“74 A person commits the offence of undue influence
(b)     
if by abduction, duress or any fraudulent device or contrivance impedes or prevails upon a voter either to vote or to refrain from voting.”
The right to vote is a fundamental political right. Article 59 (1) of the Constitution provides that “Every citizen of Uganda of eighteen years and above has a right to vote.” It is also provided in Article 59(3) that “The State shall take all necessary steps to ensure: that all citizens qualified to vote register and exercise their right to vote”. The arrest or abduction of Hon. Okwir from the Entebbe International Airport was a matter of political significance in the Presidential Elections.

The evidence adduced by the Respondents on this matter casts serious doubts as to the credibility of Hon. Okwir’s claim that he was forced to sign a statement withdrawing from the EBTF and that he fled to United Kingdom for his own safety. The possibility that Hon. Okwir was an informer of the UPDF and that he voluntarily made and signed the statement and that he went to the UK for treatment and rest cannot be excluded. No reason was given as to why he alone of all the members of EBTF should have feared for his life to force him flee the country and thereby fail to vote in the Presidential Elections. However the fact of his arrest and detention and eventual flee amounted to violation of his liberty and intimidation of supporters and agents of the petitioner and interfered with his campaigns. This contravened the principle of free and fair election.

I shall now deal with other cases where it is claimed that agents or supporter were abducted or arrested in order to prevent them from voting.

Kiiza Davis who was a Polling Agent of the Petitioner at Ganyenda Polling Station in Kamwenge Town claimed in his affidavit that he was arrested on 11 March at 9.00 at Kamwenge Town by two Local Defence Force Officers and taken to a Railway Line where he found another agent arrested. At about 10.00 p.m. 2nd Lt. Richard instructed the LDF officers to take away his identity card and continue detaining him. At 1 .00 a.m. he was transported to Kamwenge Army Detach and put in a detach where he was guarded by armed soldiers. On the Election Day he was taken to the polling centre of Kamwenge Primary School Block One where Lt. Richard ordered the Presiding Officer to tick for him a ballot paper in favour of the 1st Respondent. He was given the ticketed ballot paper and escorted by 2 armed soldiers to the ballot box where he put the same. He was released at about 6.00 p.m. and aid not to carry out his duties as a Polling Agent.
In his affidavit, Bukenya Samuel who was a campaign Agent of the National task Force Team of the Petitioner in Nakawa Division claims that on 11 March 2001 at 6.30 p.m. while he was at the Trading Centre of Kinawataka Zone, he was forcefully arrested by armed soldiers in a car covered by the 1 Respondent’s posters. He was taken to Mbuya Military Barracks where he was asked which candidate he intended to vote for during the Presidential Elections. He told them that he supported the Petitioner for whom he would vote. He was detained in the cells until 21 March 2001 when he was released after the elections. He claims that he was beaten and tortured during the arrest and detention. No reason is given for his arrest in the first place and why he was detained after the polling day. The witness seems not to have told the whole story. From the evidence of Kiiza Davis and Bukenya Samuel I find that they were arrested by the Military and denied the right to vote for candidates of their choice.

I am satisfied on the evidence adduced that some of the Petitioner’s Agents and Supporters were abducted or arrested in several areas and this caused intimidation and harassment and denial of right to vote which infringed the principle of a free and fair election.

Intimidation by the Army, PPU, and Para-Military Personnel:

The Petitioner complains in Para 3 (1) (v) of the Petition that contrary to Section 12 (1) (e) and (f) of the Electoral Commission Act, the 2nd Respondent failed to ensure that the entire Presidential electoral process was conducted under conditions of freedom and fairness and as a result the Petitioner and his Agents campaigns were interfered with by the military including the Presidential Protection Unit and the Para-military personnel such as that led by Major Kakooza Mutale.
Section 1 2 (1) (e) and (f) of the Commission Act provide for the following powers of the Commission:

“(e) To take measures for ensuring that the entire electoral process is conducted under conditions of freedom and fairness.
(f) to take steps to ensure that there are secure conditions necessary for the conduct of any election in accordance with this Act or any other law.”
The principle behind these provisions is that of free and fair elections. It is convenient to deal with this complaint together with the allegation of interfering with electioneering activities of the Petitioner since this is an aspect of failure to provide conditions of freedom and fairness during campaigning and voting. The Petitioner complains in Para 3 (1) (n) of the Petition that contrary to Section 25 of the Act, the 1st Respondent’s Agents and Supporters interfered with the electioneering activities of the Petitioner and his Agents.

Section 25 of the Act creates an offence of interfering with electioneering activities of any person. The offences is committed by uttering or writing words to create hatred or disharmony; organising groups to train them in the use of violence or force; obstructing the free exercise of voting; compelling a candidate to withdraw; threatening any candidate or voter or inducing candidates or voters to fear through of witchcraft or divine censure. The principle underlined here is again of free and fair election.

Section 2 (1) of the Act defines agent by reference to a candidate as including his representative and polling agent of a candidate. In this complaint it is alleged that it was the 1st Respondent’s Agents and Supporters who interfered with the electioneering activities of the Petitioner and his Agents.

The UPDF was accused of playing a major role in carrying out acts of intimidation, harassment, arrest through violence, which undermined the principle of freedom and fairness. The PPU played a special role in Rukingiri and it was also accused of intimidation, harassment and causing injury and death. Other security agencies like the LDU5 were also accused. The RDCs, DISOs, GISO5 and LC officials and the 1st Respondent’s Supporters were also alleged in participating in these acts of violence and harassment. I shall now deal with the evidence that was adduced by the Petitioner to support the allegations and the evidence in rebuttal by the 1st and 2nd Respondents.

In his affidavit in support to the Petition, the Petitioner alleges that during the whole period of the Presidential Election Campaigns, the 1st Respondent deployed the Army and Major Kakooza Mutale’s paramilitary personnel of Kalangala Action Plan all over the country and directed the Army Commander Major General Jeje Odongo and other Senior Military Officers to be in-charge of security during the whole Presidential Election process and subsequent to this, his supporters, campaign agents and himself were harassed and intimidated and a number of his supporters and campaign agents were assaulted and arrested.

He states that the 1st Respondent deployed the Presidential Protection Unit soldiers in Rukungiri District as soon as the Presidential Election Campaigns started to protect his supporters and these PPU soldiers intimidated and harassed his supporters and campaign agents all the time.

On 16th February 2001 when he went to address a Campaign Rally at Kamwenge Town in Kamwenge District, he found that agents and supporters of the 1st Respondent had organised themselves along the streets of Kamwenge Town carrying posters of the 1st Respondent, singing their campaign slogans and throwing stones at their vehicles and this interfered with his campaign and his supporters were intimidated and assaulted. As the programme of the Presidential Campaigns shows the 1st Respondent was supposed to be doing his campaigns in Gulu on that day.

On 2nd March 2001 at about 10.30 p.m., he arrived in Rukungiri Town in a convoy of motor vehicles of his supporters who had met him at the Kahengye Bridge about 20 km from Rukungiri Town. As the convoy came into Town, many town residents who were his supporters came to the roadside clapping as a sign of welcome. He then saw may soldiers, of the Presidential protection Unit come from all directions wielding truncheons and submachine guns and started beating the people on the roadside ferociously causing them to run screaming in all directions. The soldiers then attacked the people in the vehicles of his convoy and some came to attack the vehicle in which he was seated. The policemen who were detailed as his bodyguards had to threaten to open fire in order to stave off this attack.

His convoy continued slowly under the protection of the police guards to his village home in Rwakabengo. Many of the supporters who had been attacked by the presidential Protection Unit in the town ran to his compound and spent there the night for fear of being attacked if they dared go back home that night.
At about 10.30 p.m. he went back to Rukungiri Town to Rondavles Hotel where he found the Regional Police Commander (South Western) Mr. Stephen Okwalinga and reported what had happened that evening. He reported to him that he had information from them that the PPU soldiers planned to stop people from attending his rallies the following day. The Regional Police Commander assured him that he would effect deployments to ensure that his planned campaign rally would not be disrupted and that he was going to stay in the District to personally supervise the security for the period of the Presidential Election.

On the 3rd March 2001 as he addressed rallies at Nyarushanje, Nyakishenyi, Kanungu and Kihiihi, and at all these places, he observed that all his supporters were in terrible fear for their personal security because of the heavy deployment of the Presidential Protection Unit and the Local Defence Unit in their respective areas by reason of intimidation and harassment. Due to the said heavy deployment of PPU soldiers and LDUs in the whole district of Rukungiri and the resultant tension, he was forced to cut out rallies organised for him at Bwambara and Bugangari in Rujumbura County in order to get the main campaign rally at Rukungiri Town early.

On that day he arrived at the main rally in Rukungiri town at about 5.00 p.m. and in his address to the people he informed them that he was aware of the state of terror created by the PPU soldiers and that for their sake he had to be very brief so that they could return home before dark; and he appealed to all his supporters to refrain from violence even in the face of extreme provocation. The main Rally in Rukungiri Town ended at about 6.00 p.m. and the people moved out of the playground the venue of the Rally peacefully. He then went back to his home to collect his luggage and proceed to Kampala. Shortly after getting home he heard gunshots from the direction of Rukungiri town Centre which continued for about 20 minutes; and then he saw some people come running from town to his home for safety.

He went back to town at about 7.00 p.m. and found the town completely deserted except for the PPU soldiers and a few people wearing campaign T-shirts of the 1st Respondent and he saw next to Ijumo Hotel a White Truck surrounded by about 10 to 12 PPU soldiers who were throwing people onto this White Truck. He stopped by Mr. Charles Makuru’s residence where he found many people having taken refuge in Makuru’s compound and left for Mbarara town where they spent the night.

When he reached Mbarara town he telephoned Mr. Charles Makuru to find out the situation in Rukungiri town and he told him the situation was still tense and that he had tried to get in touch with the Regional Police Commander and discovered that he had been recalled to Police Headquarters in Kampala early that afternoon. Subsequently he went back to Rukungiri and was shown the grave of one Berondera who had been shot dead in that incident.

He stated that he then knew that one person died, 15 persons were seriously injured and hospitalised and very many others sustained minor injuries as a result of the attack by soldiers on that day in Rukungiri Town and all this was reported in the Sunday Monitor of 4th March 2001. He further claimed that all this time when Presidential Protection Unit soldiers were deployed in Rukungiri District, President Museveni was not physically present in that district.

The Petitioner then details out his evidence regarding the Okwir saga, which has already been considered above. The Petitioner claims that the 1st Respondent made repeated statements justifying the actions of the Military including PPU during the Presidential Election process.
He states that following all these events he cancelled his scheduled campaign trip to Adjumani and other Districts of West Nile and lost 3 days of campaign. In the meanwhile he sought audience with the Electoral Commission to complain about the escalating level of violence, intimidation and harassment of his agents and supporters and he did so when he met the Electoral Commission on the 22 February 2001.

Following this meeting with Electoral Commission, the Chairman of the Electoral Commission wrote to the 1st Respondent, of the Armed Forces appealing to him to restrain the army from interfering with the Presidential Election process and not to deploy the PPU where the President of Uganda is not personally present. The letter, which is dated 24th February 2001, read as follows:

“RE: Violence and Intimidation of Candidates
The Commission wishes to appeal to you, Your Excellency, as the head of State and fountain of honour in Uganda, to intervene and save the democratic process from disintegration by ensuring peace and harmony in the electoral process.
The Commission has received disturbing reports and complaints of intimidation of Candidates, their agents and supporters, which in some cases has resulted in loss of life and property.
In a meeting that the Commission held
with Candidate Dr. Kizza Besigye on 22nd February 2001 A number of issues of public concern were raised regarding the way security matters have been handled, particularly during the campaign period.
We wish Your Excellency to draw your attention to the Electoral Commission Act. Section 12 (1) which confers powers to the Commission and we quote:
                 ‘(e) to take measures for ensuring that the entire electoral process is conducted under conditions of freedom and fairness;
                 (f) to take steps to ensure that there are secure conditions necessary for the conduct of any election In accordance with this act or any other law.’
In addition, Section 20 (1) of the Presidential Elections Act, No. 17 of 2000 provides that the Commission shall ensure that the relevant organs of the state provide during the• entire period of campaign, protection of each candidate and adequate security at all meetings of candidates.
The Commission is aware of its operational limitation in enforcing the powers under the above mentioned provisions of the law and had therefore, entrusted the keeping of security during these elections to the Police. The Commission has pointed out to the Police that in case there was need for r
einforcing the security deployment then it would be the Police to seek assistance from other security organs so as to ensure smooth running and conclusion of the entire electoral process.
We also expect that the deployment of PPU is made where the President is expected to be as this is a facility that Your Excellency is entitled to as the incumbent. We have also issued press statements instructing public Institutions including RDCs and DISO to treat all candidates equally as is provided for in the Presidential Act 2000 and we expect them to abide by those instructions.
The Commission therefore, would like to request you as Commander-in-Chief of the Armed Forces to instruct armed personnel not to do anything that would be Interpreted as interference in the electoral process contrary to law and thus jeopardise the democratisation principles that our country has embarked on since the Government of NRM came into power.
Your early intervention in this matter will go a long way to enable us fulfill our duties as laid out in the constitution and other Laws of this country.”

The letter was copied to the Minister of Internal Affairs, the Minister of State for Security, the Inspector General of Police and All Candidates’ Task forces.

Earlier on the 20th February 2001, the Deputy Chairperson of the Electoral Commission wrote to the Army Commander and Inspector General of Police appealing to them to ensure that Candidates’ campaigns continue without unnecessary interference. The letter stated:

“Complaint from Dr. Kizza Besigye
Col. Dr. Kizza Besigye, Presidential Candidate was scheduled to address rallies in Adjumani today. However, Candidate Besigye telephoned the Electoral Commission from Entebbe Airport this morning to inform us that Military Intelligence personnel led by Captain Rwakitarate were insisting on arresting Hon. Major Rabwoni 0kw!, with whom he was travelling to Adjumani. As a result, Candidate Kizza Besigye told the Electoral Commission that he would not proceed with the campaigns because the electoral process was being interfered with. When the Electoral Commission urged Candidate Besigye to continue to Adjumani without Major Rabwoni, he said that he was not leaving Rabwoni behind and that he was besieged by Military personnel.
The purpose of this letter therefore is to draw your attention to Section 12 (1) (e) and (f) of the Electoral Commission Act, 1996 and Section 20 of the Presidential Elections Act 2000 and to request you to ensure that Candidates’ campaigns continue without unnecessary interference, more so as we approach polling day.”

The Petitioner continues that contrary to the pleas of the Electoral Commission, the Army Commander Maj. Gen. Odongo Jeje addressed a press conference and issued a press statement confirming the Army’s involvement in the security of the Presidential Election process. The Press Statement which was dated 9th March 2001, stated,
 
“The Role of UPDF in the 2001 Presidential Elections
Following the contention by some presidential candidates as to the role of the Army involvement in the electoral process, the National Security Task force has found it imperative to explain the need for the involvement of UPDF in the security detail before, during and after elections.
Although the electoral laws do not specifically refer to the Army in regulating the electoral process, the Uganda Police or any other civilian authority can be assisted by the Army under article 209 of the Constitution of the Republic of Uganda where functions of UPDF include:
                
(a) Preserving and defending the sovereignty of Ugandans Directives 4 (I) of the Constitution.
                
(b) Co-operating with civilian authorities in emergency situations.
Indeed the involvement and co-operation of joint forces for security during elections is not a new phenomenon. This can be exemplified by what happened in the 1989 National Resistance Council expansion elections, the 1992 Local Council Elections, 1996 Presidential Elections and Parliamentary Elections where the NRA/UPDF was actively involved without raising any controversy.
In the recent past, threats of especially urban terrorism necessitated the formation of a joint anti-terrorism force involving the UPDF, ISO, ESO and Police who successfully co-operated to eliminate the threat. This was formed in 1998 and is still operational.
Today, as U
gandans campaign and prepare to have their Presidential Elections of 2001, our intelligence information indicates that some negative forces against peace are planning assassinations, riots, demonstrations, acts of violence, looting and other criminal acts during and after elections.
On top of this demand on the Police, there are presently 17000 polling stations, which require policing during the elections. At the same time Police is required to escort electoral materials, officials and still guard Presidential Candidates, above the normal Police schedule of duties.
With all this to be done, there is no doubt that a 15000 strong Police force would not even be adequate to man all polling centres, let alone keeping peace and security. Hence the need for the UPDF to lend a hand.
In fact, the Chairman of the Electoral Commission has written to the Army leadership requesting that the Army uses its personnel and resources to provide security during the electoral period. This is contrary to the erroneous belief that the Army had usurped the powers of the Electoral Commission.
The Army has certainly not been involved in the electoral activities like registration of voters, display of registers, acting as polling agents and will not be involved in the counting of votes or any other related electioneering activity.
On the basis of the above, we wish to assure all Ugandans, Presidential Candidates inclusive, that the UPDF has not, and does not intend to, usurp anybody else’s role but is serving as a STAND-BY force that will come in only when the National Security Task force in conjunction with the Electoral Commission identifies a security need for it to.”
The Petitioner states that at the beginning of March, 2001 the Inspector General of Police assured the public of security during and after the Presidential Election and this was reported in the Monitor Newspaper of 2nd March, 2001. On the 7th March, 2001 4 Presidential Candidates including himself wrote to the 2nd Respondent complaining about flaws in the Presidential election process. The letter stated:

“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 Odongo, the Army Commander together with other senior army officers to take charge of security during the Presidential Electoral process. The Presidential 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 24 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 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’ cards are being issued using a national voter’s register which is not final
According to the National Bureau of Statistics, Uganda cannot have more than 8.9 million citizens of voting age and yet you have quoted a figure of 11.06 million registered 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 such as Army Officers, RDCs, DISOs, GISOS who are supposed to be non-partisan under the law conti
nue to campaign for candidate Museveni.
In view of the above stated flaws, we demand that you convene a meeting of
ALL Presidential candidate
s (and not their representatives) not later than
Friday March 9th, 2001 to resolve these serious and very urgent issues.”


The 2 Respondent reply dated 8 March 2001 stated as follows:
“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, the 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.
b. Serious Flaws in the Electoral Process.
You have expressed concern over the delay in producing the final Voters Register. Please be assured that the final Voters Register will be ready in time for Polling.
Your worry about the number of Voters on the Voters Register has been noted. It is important to note that the last Population Census for Uganda was conducted in 1991. What the National Bureau of Statistics has provided you
with are population projections which might not rhyme with the list of eligible electors. The figure of 11.6 million Voters on the Register is derived from returns received from the field after the national Voters Register Update Exercise. It is during this exercise that new Voters are registered, those who wish to transfer to other voting centres are transferred, the dead and other non bona tide Voters are deleted from the Register. You will recall that at the request of the Presidential Candidates the period for this exercise was extended to allow the Voters more time to scrutinise and clean the Register. There is no way the Commission can cause the number of Voters on the Register to rhyme with the figure of 8.9 million citizens of voting age projected by the National Bureau of Statistics because the mandate, methodology and legal requirements of the two Government bodies are different.
A few blank Cards were mistakenly issued to some Polling Stations. These should have been returned to the Commission and appropriate ones issued. It should be pointed out that these Cards are to be used for the Presidential Elections only. The Electoral Commission could not invest a lot of money in them by way of quality. However, they have sufficient security features to allow for detection of any imitations. Holders of suspected fake Cards should b
e reported to the authorities.
Various factors are considered when creating Polling stations. Should these factors change, new Polling Stations may be created or existing one could be closed. The Commission relies very much on the input from the field. It would have been helpful if you had indicated specific names of Polling Stations affected so that remedial action is taken or reasons are given for their being degazetted if at all.
The matter of the intruders into our Data Processing Centre is being handled by the Police. We wish nevertheless to assure you that our data was not damaged, tampered with or corrupted.
With regard to Army Officers, RDCs, DlSOs and GISOs campaigning for certain Candidates, the Commission issued instructions to all those concerned to stop the practice. The Commission will be grateful to receive specific names and places of persons still engaging in this practice so that appropriate action can be taken.
I
am sure the issues you have raised have been satisfactorily answered and in view of the Candidates’ and Commission’s last minute activities currently going on, the meeting of all Presidential Candidates demanded for will not be practicable.”
The letter was copied to the Command-in-Chief of the UPDF, the Inspector General of Police, the 1st Respondent as a Presidential Candidate and Candidates A. Awori and F. W. Bwengye.

On 9 March 2001 the Candidates again wrote to the 2 Respondent a letter which read,

“RE: FLAWS IN THE PRESIDENTIAL ELECTION PROCESS, 2001:
We acknowledge receipt of your letter dated 8th March 2001 in response to our letter to you dated 7th March 2001. We will respond as follows:
Security:
Although 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 Ugandan: the Police has not yet admitted that it has failed in its work. Refere
nce is made to a letter dated 8th March 2001, addressed to Di Kizza Besigye Task Force by Mrs. Flora Nkurunkenda, Deputy Chairperson, and Electoral Commission.
We are requesting the Electoral Commission to ensure that the army, which has been deployed for the presidential election process by the Commander-in-Chief of the Armed Forces, be withdrawn within 24 hours, otherwise we will have no alternative but to take drastic steps. The police should remain in charge even when they seek reinforcement from other state security organs.
The Electoral Commission will bear the consequences of the confusion that may arise out of deploying different security organs.”

James Musinguzi was in-charge of the Petitioner’s campaigns in the Southwestern Region of Uganda. He claimed that in the course of discharging his responsibilities he was exposed to enormous intimidation, harassment and violence throughout the region. He states that shortly after the Petitioner had announced his intention to stand as a Presidential Candidate soldiers belonging to the Presidential Protection Unit (PPU) were heavily deployed in the Districts of Rukungiri and Kanungu. The said soldiers he alleges unleashed terror and suffering on the local people believed to be supporters of the Petitioner and the people affected including Richard Bashaija, Sam Kaguliro, Henry Kanyabitabo and many others complained to him about the harassment and he forwarded the complaint to the 2 Respondent and the Police, but no action was taken. The soldiers continued to harass suspected supporters of the Petitioner till elections.

During the entire period of the campaigns, he further claims Gad Buluro the Gomborora Internal Security Officer (GISO) for Kihiihi Sub-County, Peter Mugisha a Councillor for Kambuga, Stephen Rujaga, Godfrey Karabenda and many other civilians on the 1st Respondent’s Task Force regularly went around with guns, threatening Besigye supporters to compel them to support the 1st Respondent. He reported the matter to the 2nd Respondent and the Police and the Regional Police Commander Mr. Stephen Okwalinga sent a Mobile Police Unit to Kanungu to arrest Rujaga but without success. The following day, the Regional Police Commander was ordered out of the region, the very day, the Petitioner was to address a rally in Rukungiri Town. The District Police Commander had earlier been withdrawn.

Musinguzi claims that in the absence of any Senior Police Officer in the Town, the PPU soldiers unleashed even more terror and in the process they shot to death one of their supporters and injured 14 others without any provocation whatsoever. He states that as a result of this terror that agents feared to converse for support for their candidate.

It is not clear how much of the above allegations are based on Musinguzi’s actual knowledge or belief since his affidavit is based on both. It may be that part of his evidence is hearsay.

Kakuru Sam who was the Chairman of the Petitioner’s Task Force for Kiruma Sub-county in Kanungu District made several allegations regarding how security agencies interfered with the Petitioner’s campaigns and harassed him. The stated that in early January 2001, they could not hold a meeting at James Musinguzi’s home at Kiragiro because they were surrounded by about 1 4 PPU personnel who came in the vehicle of Deputy RDC, Mugisha Muhwezi. About two weeks later when he went to Kambuga to meet Major Okwir, he found PPU personnel beating up Henry Kanyabitabo and Chappa Bakunzi for mobilising people to meet Okwir. He was also beaten and chased on this motorcycle using the double cabin pick-up belonging to Capt. Ndahura. The PPU also forced them to close their offices.
In mid-February 2001 when their Campaign Task Force went to meet Kirima Task Force, the GISO and his group smashed the windscreen and lights of the vehicle of the said Campaign Task Force, as they stopped at Modern Hotel, Kanungu. On 11 March, 2001, the same group went to Kihanda and rounded up all the Petitioner’s Agents in the Parish and put them in custody until after the polling day. He alleged that PPU was heavily deployed all over the district. On voting day he claimed that all Policemen who voted at the Stadium were ordered to tick their votes at an open table, in the presence of GISO “boys” when he objected to Polling Officials ticking for other people, he was manhandled, beaten and chased away.

At around 5.00 p.m. he claims that he was removed from his house by stone wielding thugs who threatened to demolish it. He did not oblige, and was taken to the Polling Station and ordered to sign the Declaration or Results Forms but he refused. He was taken to the RDC, his Deputy and the GISO and others and forced to sign the forms. He claims that similar incidents were widespread in his area and surrounding counties and he personally witnessed many of them.

John Hassy Kasamunyu was a Campaign and Polling Agent of the Petitioner in Kanungu District claimed that on 17 February 2001 at Kanungu, he found that Makerere student had been molested by the 1st Respondent’s supporters and the matter was reported to Police. When he and Mbabazi was about to reach the Police Station, a gang of people attacked them and threw them off the motorcycle. One member of the gang drove off with his motorcycle. After they had reported the matter to the Police he asked for the motorcycle, but the Police refused, claiming it was a government motorcycle which should not be used for campaign. On 9 March 2001 while they were holding a Task Force Meeting for Kihanda Parish about 15 vigilantes of the 1st Respondent attacked them. They were half named and were carrying sticks, whistles and stones. They started beating up the Petitioner’s Supporters.

They made an alarm and the vigilantes run away when the alarm was answered. They arrested one vigilante whom they took to Kihiihi Police Station. The next day the Police and PPU started hunting for them. Nine people were arrested and taken to Kanungu Police Station where they stayed in custody till 16 March 2001. He claims that these nine people who were the Petitioner’s Agents never voted or monitored the voting. He claims he was hunted and never worked as an agent and he is still hiding away from his home.

Bashaija Richard who was a Polling Agent at Butagazi Polling Station and a coordinator for the Petitioner in Rukungiri District Task Force alleges that on 27 January 2001 at around 3.00 p.m. while they were holding their candidates meeting at Kyeijanga Kirima, four Policemen from Rukungiri came and arrested them claiming the meeting was illegal. They were kept in custody at Rukungiri Police Station for three days after which they were released on police bond and later closed the case.

On 20 February 2001, at Kanungu when he was coming from checking on one of their Agents, he and Owembabazi were arrested by the GISO of Kirima who had set up a roadblock. They were beaten, thrown on a pick-up truck and taken to Karengye. He was thrown in a pit and buried under the soil leaving only the head in the open. After they had left, Owembabazi rescued him. As he was trying to go to Rukungiri, Police Station to report the incident, Police fired tear gas at him preventing him from doing so.

A day later the GISO and Police demanded that he takes them to the scene. They found the owner of the land where he had been buried and he corroborated his statement. They told him to report to the Police Station the next day, but when he did so, he was arrested and locked up for three days, taken to court and charged with leading a demonstration and released on bail.

On 2 March 2001, as they were waiting for the Petitioner in front of their District Campaign Office, PPU soldiers attacked and beat them up, dispersing and preventing them from meeting the Petitioner. In the evening, PPU soldiers found him in Ijumo Hotel, arrested and dragged him to the streets, removed his shoes and kicked him for about 30 minutes and then released him.

On 3rd March 2001, as they were arranging to hold a rally with the Petitioner, he found Capt. Ndahura of the PPU at Hotel Holiday. Capt. Ndahura called him to his table and pulled out his pistol; held it at his head and warned him that he would shoot him if anything happened to PPU personnel in Rukungiri. The same day after the Petitioner’s rally the PPU soldiers went on rampage in the town, shooting many bullets in the air and shooting at their supporters resulting in the killing of one Baronda. He states that they had neither provoked the PPU nor breached the peace but they were just walking back from the venue of the rally. From then on, he claims, the PPU soldiers started actively looking for him and he went into hiding till the morning of the voting when he sneaked in and cast his vote.

Mubangizi Dennis was the Vice Chairman for the Petitioner’s Task Force in Bwambara Sub-country in Rukungiri District, claims that on 5 February 2001, the GISO Kajuna Warren came and arrested him saying that Capt. Ndahura, Commander of the PPU in the district wanted him. He went and reported the incident to Rukungiri Police Station. Q 3rd March 2001, three PPU soldiers arrested him at the Bikarunga rally before the Petitioner arrived. He was taken to Nyarubare Barracks and was beaten. He spent a night there and was released after another thorough beating. He was threatened with death if he reported the assault or went to any hospital. He reported the matter to the District Task Force who sent him a vehicle, which took him to Nyakibale Hospital where he was hospitalised.

Orikiriza Livingstone, a Polling Agent for the Petitioner for Nyarushanje, Rubabo County in Rukungiri District, claims that in the course of campaigns, one Sebagyenzi, Chairman LC Ill and Dezi Rwabona, the Treasurer LC Ill at Nyarushanje restricted him from campaigning for Petitioner and threatened to arrest him until he left the village on 20 January 2001 and took refuge in Kabale Town for a week. When he returned to his village, he started conducting campaigns secretly throughout the period of January.

Around 7 February 2001 a group of armed personnel moved around his village at night targeting homes of the Petitioner’s Supporters and ordering those supporters to desist from supporting and campaigning for the Petitioner. Thereafter it was difficult for him to continue with the campaigns in his area, and the exercise of cleaning up the Voters Register was not conducted at all. On 10 March 2001 the Petitioner’s Campaign Agents from Kampala were prevented from campaigning by Rwabona and soldiers of the PPU, despite Police clearance. He and others hid till the polling day. On polling day, he was forced by Rwabona to sign the Declaration of Results Forms despite irregularities he had observed.
Mpwabwooba Callist, who was the co-ordinator for the Petitioner’s Task Force for Rugyeyo Sub-county in Kanungu District, alleged that on the day of elections the PPU soldiers were deployed throughout his village and neighbouring ones and Gomborora Headquarter to “monitor elections”. The night before some were distributed at the homes of some of the known supporters of the Petitioner such as James Musinguzi and Byaruhanga Benon. That night he found them there and in the whole area. On voting day, the PPU soldiers were distributed in Parishes where the Petitioner was known to have strong support and they kept chasing him and his supporters wherever they went. On his way from one polling station to another he claims that one Mugisha Muhwezi pointed a gun at him while he was in his car, but he continued with his journey.

Koko Medad who was a Polling Agent for the Petitioner in Kanungu District stated that throughout the district, and Rukungiri, generally army men from the PPU had been deployed and were prominently present in Kambuga, Kihiihi, Kayonza and other places. He states that he was travelling a lot and saw them for about three months. They used to move with Mugisha Muhwezi (Deputy RDC) who would point out the Petitioner’s Supporters who would be harassed and dispersed during meetings. When Major Okwir came to address them, they chased him away. They beat up a lot of people including Henry Kanyabitabo and Kalisti. They rounded up the Petitioner’s Supporters and put them in jail at Kambuga. He claims similar incidents were widespread in the area and surrounding counties and he personally witnessed them.

Peter Byomanyire who was a Campaign Agent for the Petitioner co-ordinating Mbarara and Kamwenge District stated that he experienced violence against himself during the campaign. On 1 6 February 2001, at around 5.00 p.m. after the Petitioner had finished addressing a campaign rally at Kamwenge, they met a mob of the l Respondent’s Supporters armed with stones, bricks and sticks who started beating them shouting “kill Besigye Supporters”. They were chased to Kamwenge Police Station where they took refuge. He says that on that day he was badly assaulted and had to go for medical treatment for two weeks. He does not state who assaulted him.

On 8 March 2001 he states that James Birungi Ozo and him went to Mahyoro to consult with agents of the Petitioner and while they were there he was surrounded by five armed and uniformed UPDF soldiers who ordered them to leave the area and they left before consulting their agents.

On the same day they found Capt. Kankiriho, the Commanding Officer of Bihanga with two escorts at RBT Lodge in Ibanda Town. Capt. Kankiriho ordered Birungi who was wearing a T-Shirt bearing the Petitioner’s picture to leave the area. As Birungi was leaving Capt. Kankiriho pulled a pistol and shot at him but the bullet never hit him. He claims that thereafter Capt. Kankiriho went around the town tearing the posters of the Petitioner whenever he saw them. During the night of the same day, he heard six gun shots and the following day he came and reported the matter to the Chairperson of the Task Force at Mbarara.

Bernard Masiko who was a Campaign agent for the Petitioner and a Polling Monitor in Kayonza Sub-county in Kanungu District claimed that on 9 February 2001 at around 3.00 p.m. the Deputy RDC Mr. Mugisha Muhwezi Nyindombi accompanied by the Gomborora Internal Security Officer (GISO) Paul Bagorogozi came to his office with army men from the PPU and ordered the attendant to remove the Petitioner’s posters and sign post and keep them inside and it was done.
Four days before the polling day, Mrs. Jackline Mbabazi came and held a meeting with Sergeant Nankunda Bagorogoza and ordered the 1 s Respondent’s Supporters to beat up all the Petitioner’s Supporters. He further claims that Sam Karibwende, Chairman LC Ill threatened to shoot them if they did not close the Petitioner’s Campaign Office.

Dallington Sebarole who was the Chairperson of Kirima Sub-county Task Force for the Petitioner in Kanungu stated that on 27 January 2001 at 4.00 p.m. after he had held a consultative meeting at his house at Kyeyanga, a vehicle carrying armed Policemen came. Four of them were ordered to board it, himself, Richard Bashaija, Yuro Rwagara and one lady. They were taken to Rukungiri Police Station where they were remanded. They were released on police bond on 30 January 2001 after the intervention of Hon. Bibihuga and others. They continued reporting to the Police until he was finally discharged on 14th March 2001, without being charged with any offence.

On 28 February 2001 after answering his police bond, he boarded a vehicle belonging to the Petitioner’s Task Force at Rukungiri on his way to Kihiihi via Bugangari and Rwambura. At Rwambura, they found a roadblock manned by army officers. When they stopped nine of them were arrested and reported at Rwambura Police Station where they were given a police vehicle to take them to Rukungiri Police and they were remanded at 7.00 p.m. but were released after 3 hours after the intervention of George Owakuriroru.

Anteli Twahirwa who was the Kabale District Chairman for the Petitioner’s Task Force claimed that during the campaigns the RDC Mr. Mwesigye together with LDUs, Parish Chiefs and Gomborora Internal Security Officer (GISOs) kept them under constant harassment. The harassment was widespread and occurred in almost every part of the district they attempted to visit.

Sande Wilson, who was a Mobiliser for the Petitioner’s Task Force in the whole of Kabale District, alleged that during the campaigns the RDC, Mr. Mwesigye kept them under constant harassment. In early March 2001 the RDC mobilised LC Officials and the 1st Respondent’s supporters who were used to violently stop them from holding a rally at Ryakaramira Trading Centre in Rubaya. He claims that the RDC kept threatening them with arrest until they abandoned the Petitioner’s campaign. At public rallies, he claims further that people should compile lists of the Petitioner’s supporters and send them to him. On polling day he found that many of their agents had been chased away from Polling Stations, or arrested and jailed. When they complained to the Chief Administrative Officer, he advised that they should report to the Police. They did but the Police proved powerless. He claims that at almost every Polling Station he visited, he found people ticking votes in full view of the Polling Officials and the public.

Byomuhangi Kaguta who was a Polling Agent for the Petitioner at Rushaaya Polling Station states that on 11 March 2001 on the eve of elections, he was arrested by three armed soldiers of the PPU who had been deployed all over the district. He claims he was thrown in a pit (ndaki) in the barracks where he spent the whole night. The following day, Bulerere and Tukahiirwa also Agents of the Petitioner were brought in custody to join him. They spent the whole of the voting day in the said pit, and accordingly did not vote. He claims there was general harassment of his colleagues on the Petitioner’s Campaign Team in Rukungiri especially from the time the PPU and senior administrators actively started on a deliberate process to prevent any form of support for the Petitioner in Rukungiri and Kanungu Districts.

Owembabazi Placidia who was an Agent of the District Task Force for the Petitioner in Rukungiri District stated that on 11 March 2001 with apparent intention to intimidate and scare her not to vote for the Petitioner, two armed Policemen and one plain clothes Policeman and some other an identified persons without a search warrant surrounded her premises and said they were searching for military equipment in her possession to wit, guns, uniforms and others. But nothing was found in her possession. Surprisingly, she does not mention the arrest of Richard Bashaija who claims to have been buried in a pit and she rescued him on 20 February 2001.

Alex Busingye who was in-charge of overseeing the operations and welfare of the Polling Agents for the Petitioner in Kazo County, Mbarara District, claimed that at a Polling Station called Nkunge, he found a Monitor for that Station tied up by soldiers and was bundled on Motor vehicle Reg. 114 UBS pick-up in which they were travelling. He does not say that the soldiers were stationed at the Polling Stations or had arrested the Monitor from the Station.

James Birungi Ozo who was a District Monitor for the Petitioner in Kamwenge District claimed that during the campaigns, on 8th March 2001, he was shot at by Capt. Kankiriho, the Commanding Officer of Bihanga Barracks in order to prevent him from campaigning for the Petitioner. The shooting was in the presence of Peter Byomanyire and Engineer Dan Byamukama and LC Ill Movement Chairman for Ibanda. The bullet did not hit him. He reported the incident to Ibanda Police Station.

Idd Kiryorwa who was a Polling Agent for the Petitioner at Nabiseke Polling Station in Sembabule District alleges that after seeing people pushing a heap of ballot papers in the ballot boxes he and his colleague refused to endorse the Declaration of Results Forms but the Presiding Officer and a Security Officer threatened to arrest him if he refused and he signed. He did not indicate what kind of security officer was.
Robina Nadunga who was a registered voter at Bugema A Centre in Bungokho Sub-county, Mbale District stated that on the polling day she met two men including one Masaba who assaulted her with a hippo hide stick alleging that she was going to vote for the Petitioner. When her voter’s card fell down Masaba picked it up and never gave it back to her. She reported the matter to LC I Chairman Burahani, who sent her to report to Mbale Police Station. The Police gave her medical forms and a letter to the Presiding Officer at Bugema. She was allowed to vote. On her way back Masaba came with a gun in a vehicle and warned her not to stay on the village. She ran away to Kampala where she stayed for some days.

Julius Okwi, a Polling Agent of the Petitioner at Kereng B Polling Station in Kumi District claimed that at the Polling Station one Okolimong Martin a Clinical Officer at Malera Health Centre and one Ochom Charles the Parish Chief of Kachede had motor cycles which they were given to ferry people to vote. These people voted and yet their names were not in the Voters Register. They voted against the names of the people who did not collect their cards for reasons of death, migration or others. At the time of counting votes, one Okurut alias Tolong was threatening to shoot one Opolot, a Supporter of the Petitioner and he managed to scare other people away from the counting process.

Ediba Justine Emokol who was a Polling Agent for the Petitioner at Kapoken A Polling Station, in Kumi District claimed that on polling day, Haji Okodel came and asked him to leave the Station which he resisted. He was warned that if the Petitioner lost, he would have to leave the area. He ordered the other agent of the Petitioner Iporut to remove his shoes and sent him away from the Polling Station and his whereabouts are not known to-date.

Dan Okello who was a registered voter at Otara Ill Polling Station in Erute North Constituency in Lira District claimed that on the polling day as he and Saul Okot were approaching Aromo Sub-country Headquarters where his Polling Station was situated they met the Commandant of Aromo UPDF detach Sergeant Sempijja who was being given a lift on a motor cycle of the Sub-county Chief or Aromo. The Commandant stopped him and pushed Okot off his bicycle. At Aromo Trading Centre he heard of his imminent arrest and reported to the District Police Commander Lira. He got a letter from the DPC to allow him to go and vote, but on the way they were arrested by t he UPDF Commandant at 3.30 p.m. and taken to Wileta Polling Station where he was locked up in a double cabin vehicle and guarded by soldiers till 6.00 p.m.

The Respondents filed many affidavits in rebuttal of the Petitioner’s evidence. There is evidence of Security Officers involved in the elections or mentioned by the Petitioner’s witnesses. There is evidence of LC Officials, Election Officials and Election Agents of the Respondent. Then there is the evidence of voters and members of the public. I shall start with evidence of Security Officers.

Major General Jeje Odongo who has been the Army Commander of the Uganda Peoples Defence Forces (UPDF) since 3rd January, 1998 stated that his duties as Army Commander included the overall Command and direction of the UPDF which is enjoined by the Constitution of the Republic of Uganda to preserve the sovereignty and territorial integrity of Uganda. He was by virtue of his duties a member of the National Security Council, which is enjoined by Constitution to oversee and advise the President on matters relating to national security.

He stated that sometime in January 2001, at one of its routine meetings, the National Security Council noted that there were indications that election-related crimes were on the increase and could jeopardise the general peace and security of the country. During the same period, he received intelligence reports from various parts of the country pointing to the same situation.

On the basis of the foregoing he briefed the Commander-in-Chief/President of the country and indicated to him the need to put a mechanism to handle the situation. About the same time, he had a discussion with the Minister of Internal Affairs who pointed out to him the inadequacies of the Police Force in relation to the task ahead and requested that Police be augmented by the UPDF. He further briefed the Commander-in-Chief and suggested the formation of a joint security task force to oversee, handle and ensure peace and security during the electoral process.

A joint security task force comprised of the Police, the Army, the LDUs and the Intelligence agencies was formed, under the Chairmanship of the Army Commander, deputised by the Inspector General of Police and the Director General of Internal Security Organisation. The joint security task force constituted a joint Command structure whereby in each District, the District
Police Commander was the overall in charge of security of the District and the Armed forces were put on the alert for assistance as and when need arose.

He explained that the formation of such a joint security task force was not new phenomena in this country as the same course of action had always been resorted to whenever need arose. Examples were:
• the 1987 currency exchange exercise
• the 1989 expansion of the NRC elections
• the 1992 Local Council elections
• the 1996 Presidential elections
• the 2000 Referendum exercise
• The visit of the United States President Bill Clinton.

For the foregoing reasons, he denied that the 1st Respondent appointed him and other Senior Officers to take charge of the election process for partisan purposes. He denied that the army was deployed all over the country and that such deployment resulted into any voters voting the Respondent under coercion or fear or that they abstained from voting. To the best of his knowledge, save for the Polling Stations where members of the Armed Forces were ordinarily registered as voters, he could confirm that members of the Armed Forces never went to any Polling Station for the purposes alleged by the Petitioner.

He stated further it is not true that the Respondent organised groups under the Presidential Protection Unit (PPU) to use force or violence against the Petitioner as alleged in Paragraph 3 (2) d of the Petition. He asserted that members of the PPU, which was a specialised unit for the protection of the President, were deployed in Rukungiri in advance to his visit to the area sometime in January 2001 and their stay was necessitated by his planned returned to the area, having taken into consideration the safety of the person of the President and the general peace and security of the area.

He denied the allegations about the members Of the PPU harassing, intimidating, or in any way misbehaving against the Petitioner and/or his supporters as alleged by the Petitioner. He stated that on the 3rd March 2001, he 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. He denied that either him or any other officer of the UPDF was partisan in the execution of their duties or that they carried out their duties in such a manner as to promote the candidature of the Respondent as alleged.

The evidence of John Kisembo corroborated that of Major Gen. Jeje Odongo regarding the general deployment of the UPDF. John Kisembo who was the Inspector General of the Uganda Police from 9th April 1999 stated that one of the main duties of the Uganda Police Force by the law is the protection of lives and property and the maintenance of peace and order. In the execution of these duties the Uganda Police often and where the need arises acts jointly and in concert with other security organs of the State such as the Army and Intelligence Organs. By virtue of his appointment, he is a member of the National Security Council.
He stated further that it is the requirement of the law that the Electoral Commission ensures that the Police and other relevant organs of the State provide adequate security for the conduct of the elections and the protection of the candidates. Given the magnitude of the electoral process of the Presidential Elections for 2001, it was found out that the Uganda Police which comprises about 15,000 personnel were not going to be adequate to police about 18,000 Polling stations and the related election activities in addition to its ordinary day to day duties.
The intelligence reports he received and incidents recorded indicated a rise in possible election-related crimes which necessitated his requesting the Minister of Internal Affairs on 25th January, 2001 that other security agencies be brought into play during and immediately after the election exercise. The letter read as follows:
‘THE PRESIDENTIAL ELECTIONS 2001
As discussed in the National Security Committee, this is to confirm that the Uganda Police Force will require reinforcement from other security agencies.
There are about 17500 polling stations as against the strength of 14800 police personnel. As we police the polling exercise there is need for continued general surveillance, patrols and management of crime and other offences that may be election related.
I am accordingly requesting that other security agencies be brought into play during and immediately after the election exercise.”
Thereafter, a Joint Security Task Force was set up between the Uganda Police, the Uganda Peoples Defence Forces and the Intelligence Organs to oversee and manage security in the country during the electoral process and the same was chaired by the Army Commander, by virtue of his seniority, and deputised by himself and the Director General of the Internal Security Organisation. He explained that this was not the first time such a joint security task force has been formed and previous instances include. Those already mentioned by Maj. Gen. Odongo Jeje.
He stated that under the Command of the Joint Security Task Force, security in the districts was under the command of the District Police Commander for each district with support from members of the other security organs. However, policing of the polling stations and tallying centres during the electoral process was only under the Uganda Police save for the army barracks for which the Electoral Commission had made other arrangements. He denied that the Uganda Police abdicated from its duties or that the policing of the electoral process was taken over by the Uganda Peoples Defence Forces as alleged.
He concluded that there were no security related incidents reported during the whole period of the electoral process save for a few electoral malpractices which are under investigations or in the Courts of law and he had not received any reports involving the 1st Respondent. The evidence of Capt. Atwooki B. Ndahura is very relevant to the deployment of the PPU and the allegations of intimidation and harassment made against the Unit. Capt. Ndahura stated that he was the Commander of the few troops from the Presidential Protection Unit that were deployed in Rukungiri in advance to the President’s visit in January 2001 as usual to prepare and secure the area for his visit on 16 January 2001. Since the President was soon returning to the District for another rally the soldiers under his command stayed in Rukungiri and were camped at the State Lodge. The PPU always deployed and also retained a skeletal presence at Presidential lodges countrywide and reinforced or reduced as was deemed fit by the unit authorities.
In response to the affidavit of Frank Byaruhanga, he denied that the PPU beat up people in Rukungiri for supporting the Petitioner. He stated positively that no PPU soldier moved out of station without him or his knowledge. These soldiers were permanently stationed at the State Lodge in Rukungiri and only a few at a time moved out with his express permission.
On 3rd March-2001 the Petitioner addressed a rally in Rukungiri Town. On that day, no PPU soldiers moved to Bwambara Sub-county. He denied that the PPU moved to Bwambara on 3d March-2001 or beat up people or dispersed Sebunya’s rally as alleged by Frank Byaruhanga, but it remained in camp until late in the evening when he moved to town with his escorts in response to the shooting which he heard in town, to find out what was happening. He never participated. He stated that he was not aware of the allegation that a one Zikanga was found with voters’ cards and he never instructed Seezi or anybody else to release anybody in connection with election malpractices as alleged by Frank Byaruhanga.
He denied that men from PPU accompanied the Deputy RDC, Mugisha Muhwezi, to Kayonza Sub-county when he allegedly ordered the removal of Besigye’s signpost and posters from his offices as alleged in the affidavit of Bernard Masiko. He also denied that the PPU soldiers in Rukungiri District were deployed and were prominently present in Kambuga, Kihiihi, Kayonza and other places as alleged in Koko Medad’s affidavit. He asserted that he and his soldiers were based in Rukungiri Town at the State Lodge. The PPU also scouted the routes, which the President was likely to use in his visit to the district for purposes of reconnaissance; but this did not include surrounding or entering people’s houses.
He denied that the PPU harassed Supporters of the Petitioner or tore the Petitioner’s posters or dispersed his supporters as alleged by Koko Medard. He also denied that he chased Hon. Rabwoni Okwir from Rukungiri or dispersed his rallies. He only assisted the Kanungu Police with transport to disperse what the O/C deemed an illegal rally, which Hon. Okwir was addressing in Rugyeyo. He also ordered his soldiers to arrest Hon. Okwir’s unauthorised escort who was a UPDF soldier in active service. The police also arrested two people for uttering abusive words against the President. He further denied that PPU beat up people including Kanyabitookye, Kallist and many others.
The allegation in the affidavit of John Hassy Kasamunyu that Police and PPU hunted Besigye supporters for beating a vigilante in Kihinda Parish in Kirima Sub-county was not true. He denied deploying PPU in Kihinda Parish for the purpose or at all. In reply to the affidavit of Mpwabwooba Kallist, he stated that it was not true that PPU was distributed at the homes of the Petitioner’s Supporters nor was PPU present at any Polling Station, They remained encamped at their station and never moved out on polling day.
In reply to the affidavit of Bashaija Richard, Capt Ndahura stated that it was not true that he met him in Hotel Holiday or that he drew a pistol on his head. He never met Bashaija in Hotel Holiday on 3 March 2001 or anywhere else. He stated that the allegation by Byomuhangi Kaguta that on 11th March 2001 he was arrested by armed soldiers from PPU from Bwambara village in Bwambara Sub-county was false. There was no PPU in Bwambara on 11th March 2001 and there was no UPDF barracks in that area where he was alleged to have been thrown in a pit.
He denied sending Kijina Warren or any other person to arrest Mubangizi Dennis as he alleges in his affidavit. He stated that it was not true that the PPU went on the rampage and shot at Besigye’s Supporters. A joint force of Police and UPDF soldiers from the Garrison Battalion 2 Division was charged with the security of the town and PPU was not involved. The joint force was conducting patrols and intervened to disperse a rowdy and violent crowd of the Petitioner’s Supporters who pelted stones at civilians and also at the joint security force. The shooting was in the air and meant to disperse them to save the situation from getting out of hand. Two people had already got seriously wounded by the Petitioner’s stone throwing Supporters. On the previous day, 2nd March 2001, the crowd of the Petitioner’s Supporters had attacked the joint patrol under the command of IP Bashaija and injured 4 soldiers and a policeman who were admitted in Nyakibare Hospital.
The allegations by Mumbangizi Dennis that he was arrested by PPU and taken and beaten in Nyabubare Barracks on 3rd March 2001 were false. There was no PPU personnel who ever left their camp in Rukungiri on that day. In reply to the allegations made by James Musinguzi, he stated that it was not true that he unleashed terror in Rukungiri and he was not responsible for the death of one person and injury of 14 others, which were only a result of clashes between the Petitioner’s supporters and the Joint Security Force. The clashes were provoked by the violence of the Petitioner’s Supporters.
The allegations relating to the deployment of Major Kakooza Mutale and his Kalangala Action Plan para-military were answered by him in his affidavit. Major Kakooza Mutale stated that his duties as a Special Presidential Advisor on Political Affairs among others included mass mobilisation, which involved organising conventions, seminars, conferences, workshops and discussion groups for persons interested in discussing and disseminating political opinions. In pursuance of his duties in mobilisation, he organised a convention of movement mobilisers from all over the country in Kalangala.
The convention was held from the 25th to 28th September 2000 and was addressed by several guest speakers notably Hon. Ruhakana Rugunda, the Minister in charge of the Presidency and the 1st Respondent. The Convention at its closure adopted some policies known as the Kalangala Action Plan. A photocopy of the proposed plans was attached to his affidavit. He denied that the people who attended that convention were members of a para-military force as stated in the petition and he does not lead any para-military group. The Convention was attended by citizens of Uganda of diverse professions and occupations. A list of the persons who attended the Convention was attached to his affidavit. He stated that he knew from his military training that the three days spent at the Convention in Kalangala was too short a period to train and or drill civilians into a para-military force and no military training ever took place. The Convention was attended by the 1st Respondent in his capacity as President of Uganda and the participants presented the Respondent with a Memorandum A photocopy of the Memorandum was attached to his affidavit. The 1st Respondent in his capacity as President of Uganda addressed the Convention. A copy of his speech was attached. After the Convention in Kalangala, the various mobilisers who attended returned to their respective districts and counties to continue with their work of mobilisation. He denied the allegations made by Hon. Winnie Byanyima that he alone or with armed men beat up and intimidated the Petitioner’s Supporters at Mbale Municipality.
Mugisha Muhwezi who was the Deputy Resident District Commissioner for Rukungiri District against whom many allegations were made responded to the affidavits of Bernard Matsiko, Kakuru Sam, Mpwabwooba Callist and Koko Medad. He denied the allegations made by Bernard Matsiko and stated that it was not true that on 9th February 2001, he went with PPU, GISO and Sub-country Chief of Kayonza Sub- County to the Petitioner’s campaign office and ordered the office attendant to remove the Petitioner’s signpost and posters and keep them inside the office. Throughout the campaign period he never went to or entered the said office at all as alleged by Matsiko. He knew the LC Ill Chairman of Kayonza Sub-county as Karibwende but not Beikirize.
With regard to allegations by Kakuru Sam Mpwabwooba Callist he also denied them. He stated that he was not aware that PPU used his vehicle as alleged by both of them. The PPU had its own transport and never used his vehicle. He stated that allegations contained in Sam Kakuru’s affidavit were false. He never went to Kihiihi Police Station to forcefully release the alleged assailant. He never returned to Kihiihi to round up Besigye’s Agents in Kihanda as alleged by Kakuru Sam. It was not part of his job to round up or arrest people. The allegation that the RDC and himself forced Kakuru to sign the Declaration of Results Forms was false. He was not aware that Sam Kakuru was the Petitioner’s Agent for any Polling Station on polling day and he did not know whether he signed or not.
He did not know Mpwabwooba Callist and he never pointed a gun against him as he alleged in his affidavit. In reply to Koko Medad’s allegation, he stated that he never travelled with PPU to point out the Petitioner’s Supporters to be harassed. He did not know which people supported Besigye or any other candidate and never harassed anybody or used PPU to do so.
Mutebe Jerome was the Officer in charge of Kanungu Police Station in Karima Sub-county. He denied the allegations made by Sam Kakuru and John Hassy Kasmunyu. He stated that on 10 March 2001 the Chairman LC I of Kihanda reported to his station that Yatuhonde had been abducted by persons led by Kasamunyo and Tukahiirwa Esau on 9 March 2001 and he did not know his whereabouts. Investigations by the Officer-in-charge of CID revealed that Yatuhinde was a Supporter of the 1st Respondent and the abductors were Supporters of the Petitioner.
He and the Officer-in-charge of CID, the LC I Kihanda and his staff proceeded to Kihiihi Police Station to verify the allegations. On the way they met Yatuhinde who was identified by the area LC I Chairman. Yatuhinde revealed to them the nine culprits who were arrested and the case referred to Rukungiri Police Station. He denied that Kakuru was manhandled while he looked on because no policemen were deployed in Karuhanda Polling Station due to shortage of manpower.
As regards the allegations made by Kasamunyu, Mutebe stated that Kasamunyu had reported to his Police Station that the motorcycle had been stolen yet it was brought to the Station in the company of a policeman. When he demanded documents of ownership from Kasamunyu, he did not return. Later an NGO called Uganda Farmers Association (UNFA) wrote to him stating that the motor cycle should not be released to him because it belonged to the NGO and that the Chairman of UNFA was to personally collect the motorcycle from the Police Station. It is not clear who is telling the truth, Kakuru and Kasamunyu or the Police Officer, Mutebe. One side must be telling lies.
Lt (Rtd.) Jamil Kakombe of Kambuga Rukungiri District denied the allegations made by Koko Medad. He stated that he never worked with Polling Officials at his Polling Station at Nyakulungiira 1 (L-Z) Ruhangazi Parish where he voted. He was not armed when he went to cast his vote, nor did he guard any ballot box or swear to kill anybody at his Polling Station. He went away at 8.00 a.m. and did not return to the Polling Station. He did not prevent or allow anybody to vote or witness the counting of votes as he had left the Polling Station.
Peter Mugisha who was the District Task Force member for the 1st Respondent’s Task Force for Rukungiri District and a District Monitor for his Candidate also denied the allegations made by Koko Medad. He denied chasing away the Petitioner’s Agents from the ballot box because he saw agents seated together at the polling desk. Mugisha stated that he did not see or hear of any deployment of PPU forces in the Polling Stations he visited before during and after the elections and in his view the voting process was free and fair.
Samuel Epodoi who was the district Police Commander of Mbarara District stated that during the elections he headed a joint security command comprising of the Uganda Police Force and Uganda Peoples Defence Forces, which was constituted for purposes of monitoring security in the district. He denied the allegations made by Mary Frances Ssemambo that in many Polling Stations particularly in Nyabushozi County and Isingiro South the Petitioner’s Agents were harassed, arrested, beaten, tied up or threatened with violence and chased away by heavily armed UPDF soldiers, LDUs and the 1st Respondent’s Agents.
He stated that on polling day both Nyabushozi and lsingiro South County were policed by mobile crews constituted by both Policemen and UPDF soldiers under the leadership of Police Officers. He denied that the alleged incidents never took place and the allegations of harassment of the Petitioner’s Agents were false. He asserted that on the Election Day the whole of Mbarara District was peaceful and only two election related incidents were reported.
Emodingo Anthony who was the District Police Commander Lira admitted that Dan Okello came to Lira Police Station and reported to him an impending arrest by one Commandant Sempijja of Aromo UPDF detach. He wrote to the said Commandant a note to allow Okello to vote without hindrance. He denied that Okello recorded a statement with him or that he came back to him the following day. He stated that elections in Lira were free and fair and held in a peaceful and conducive atmosphere.
Sempijja Gerald who was the Commandant of Aromo UPDF detach stated that he received intelligence report on 11 March 2001 that Dan Okello was mobilising voters to create insecurity during the elections. He reported the matter to the Commanding Officer Major Bylima of Aromo UPDF detach on the same day. In the evening Okello came to him with a note from the DPC Lira requesting him to allow Okello to vote. He denied having at any time refused Okello to vote. He also denied arresting Okello at any time or visit Waleta Polling Station as he voted at Otala Polling Station about 10 miles from Waleta, and thereafter he returned to Aromo UPDF detach for duty 13 miles from Waleta where he stayed.
Karebenda Godfrey a registered voter at Kanungu Polling Station in Kanungu Town denied the allegations made against him by Kakuru, Tugume, Kasamanyu and James Musunguzi. He denied no talking to Musunguzi or seeing him on polling day. He voted at his Polling Station at 11 .00 a.m. and never met the Chairman LC Ill at the station. He denied directing the smashing of the windscreen of the vehicle as alleged by Kakuru. He stated that when he reached Kanungu on that day, he found the windscreen already smashed and there was chaos with the Petitioner’s Supporters chasing people with pangas. He called the Police who took over the matter.
He denied that on 10 February 2001 he went with the Deputy RDC to Kihiihi to forcefully release a suspect. He denied moving with the Deputy RDC or travelling outside Kanungu Town. He denied that he returned to the Polling Station and also denied that he and the Deputy RDC forced Kasamunyu to sign the Declaration of Results Forms. He further denied that he was involved in the seizure of Kasamunyu’s motorcycle or handing it over to the Police. He denied Musinguzi’s allegations that he used to move with a gun and stated that he does not own one.
He also denied Bashaija’s allegation that he arrested him. He denied setting up any roadblock in Kanungu Town on 20 February 2001. He denied that Bashaija and others were arrested and thrown on a pick-up and taken to Karengye. He denied that Bashaija was thrown in a pit and buried. He stated that he did not know Bashaija and did not know why he raised totally false allegations against him.
Korutookye Ganeozo was the Presiding Officer at Bikomero Polling Station in Rukungiri District. He denied that 14 soldiers were deployed in his area and surrounding villages before and during the elections. He stated that all the agents were allocated a bench close to the polling desk and none was chased away. He denied being the Presiding Officer at Kifunjo as alleged by Mpwabwooba.
James Mwesigye who was the Resident District Commissioner (RDC) Kabale District denied the allegations made by Sande Wilson because the events alleged never happened. He also denied the allegations made by Antelli Twahirwa. He stated that none of the Government Officials mentioned by Twahirwa were involved in any form of election malpractice before or during the elections. The letter to the Electoral Commission was not copied to him as the Returning Officer Kabale. Didas Kanyesigye Vice Chairman LC 5 - Kabale District Council also denied interfering with the Petitioner’s Polling Agents in Kabale District as alleged by Sande Wilson.
Namara Merab was among those injured in the violence. She stated that on 3 March 2001 at about 5.00 p.m. she was standing on a shop veranda in Rukungiri Town when she was hit by a stone which came from the Petitioner’s Supporters and she got injured on the head. That day, the Petitioner had addressed a rally in the Stadium in Rukungiri Town and his Supporters were coming back from the Stadium. When they approached where she was, they started throwing stones and before she could run away one stone hit her on the head. She was rushed to Rwamahwa Health Centre as the Police tried to chase away the Petitioner’s Supporters.
Jaffar Olupot who was a Polling agent for the 1st Respondent at Kapoken/Akalabai A-E Polling Station denied the allegations made by Ediba as false because Haji Okodol never visited the Polling station and nobody ever chased him away from the Polling Station as evidenced by his signing the Declaration of Results Form which was annexed to the affidavit. He stated that he never heard of any person by the names of Iporut and nobody was arrested at the Polling Station.
Hon Capt. Charles Byaruhanga, who is a Member of Parliament for Kibaale County Kamwenge District, stated that he was actively involved in the campaign for the last Presidential Elections. He admitted knowing Betty Kyampaire and Henry Muhwezi. He denied threatening, intimidating or harassing anyone during the election campaign as alleged in the affidavits of Betty Kyampaire, Muhwezi and Moses Tibanyendera.
On 28 February 2001 he addressed a rally at Kyakazafu but did not see nor speak to Tibanyendera nor did he attend a party at Byodi Training Centre. On that day Noah Kassim stayed at Kyakarafu Trading Centre and did not even attend the rally. He denied tearing down posters of any candidate as alleged by Tibanyendera. He also denied being interrogated by any Police Officer or Human Rights Commission about allegations of torture, intimidation or harassment of any person and he was not aware of any complaint having been filed against him. He asserted that he did not try to convince Muhwezi Henry to support the St Respondent nor did he do so forcefully or by intimidation as alleged.
In answer to Mary Nadunga’s affidavit, Muhamud Masaba of Bungokho Mutoto Sub-county, Mbale District stated that he knew Nadunga as a neighbour and Member of the Petitioner’s Task Force of Bungokho South Constituency. He admitted meeting Nadunga at the Bodaboda Stage in Munkaga Trading Centre in the company of Wamae Kenneth the Sub-county Chief of Bungokho-Mutoto but it was not true that he assaulted her with a hippo hide stick. He denied that he picked her voter’s card while declaring that she was not going to vote for the Petitioner. He stated that he was not rebuked by anybody for assaulting Nadunga.
He admitted going to Mbale Police Station on the polling day but this was in respect of a case of attempted arson of his house and vehicle committed the previous night, and not in respect of Nadunga’s case. He denied that on polling day after Nadunga had voted, he stopped her on her way home and he warned her not to stay in the village. He stated that he was not a member of the security forces and had never held a gun.
Gesa Ahmed who was the Defence Secretary LC II Kulumba Parish and the Gombolola Internal Security Officer (GISO) of Kityelera sub-county in Mayuge District denied the allegations made by Fazil Masinde. He stated that during the campaigns and elections he remained neutral and only performed his duties of monitoring the general security situation in the Sub-county. He denied threatening any voters at Busakira B Polling Station as alleged by Masinde.
Mudaaki Emmanuel who was the Presiding Officer at Bulangata Training Centre Polling Station also denied Masinde’s allegations. He said he did not receive any complaint from him or any other person. The voting proceeded smoothly and in transparent manner and all agents signed the Declaration Results Form.
Karungi Rosebell who was the Presiding Officer at Busheka 2 (A-L) Polling Station in Bukanga County Mbarara District denied the allegations made by Peter Byomanyire. She stated that the Polling Agents of the Petitioner namely Ntaho and Musipari were present and remained at the Polling Station throughout until they signed the Declaration of Results Form. She denied the allegation that the agents sat 30 metres away.
In answer to Ediba Justine’s allegations Haji Umari Okodel the LC 5 Chairperson of Kumi District stated that he does not know nor even met Ediba. On polling day he did not visit any polling station at which Ediba was an Agent. He never ordered one Iporut to remove his shoes nor did he send him away from the Polling Station. He denied the allegation that he monitored the ticking in the basin and watched many people during the voting nor did he intimidate anyone to vote for any candidate against his wish.
Findings of Intimidation:
I accept the evidence adduced by the petitioner. It is detailed, consistent and credible. The denials and explanations in the Respondents’ evidence have not sufficiently rebutted the various allegations of intimidation made by the Petitioner. It is not disputed that the Army was deployed throughout the country at the time of voting. It is not also disputed that the PPU was stationed in Rukungiri throughout the period of election campaign and during the polling.
I find that the highest concentration of intimidation, violence and harassment took place in Rukungiri, Kanungu and Kamwenge. The intimidation interfered with the Petitioner’s campaigns in those Districts. In Rukungiri and Kanungu, it was perpetuated mainly y the PPU. In Kamwenge it was done by UPDF soldiers. The intimidation of Agents and Supporters extended to closing branch offices and tearing of posters, disposing consultative meetings and rallies, abduction, arrest and causing injury or death to Agents and Supporters. On polling day, intimidation consisted of ordering voters to vote for the 1st Respondent and harassing Petitioner’s Polling agents.
Elsewhere in the country, the degree of intimidation was less pronounced. In Kabale intimidation seems to have been perpetuated by the RDS, GISOs and some LC Officials. In Mbale, Kumi and Lira there were isolated intimidation by UPDF soldiers, LC Officials and the 1st Respondent’s Supporters who were civilians.
There is however no evidence that the general deployment of the Army during the polling period was a source of intimidation and harassment of the Petitioner’s Agents and Supporters. There is also no evidence that Major Kakooza Mutale intimidated Agents and Supporters of the Petitioner.
My conclusion on intimidation by UPDF and PPU is that it was established to my satisfaction that they caused intimidation and harassment to the Petitioner’s Agents and Supports but it was limited to a few areas most of which are mentioned above. This intimidation undermined the principles of free and fair election and transparency.
Issue No. 3; Effect of Non-compliance with the Provisions and Principles of the Act on the Results.
I shall now consider the third issue which is whether if the first and second issues are answered in the affirmative, such non-compliance with the provisions and principles of the said Act, affected the result of the election in a substantial manner.
In his Petition, the Petitioner avers in para 3 (1) (y) that such non-compliance affected the result of the election in a substantial manner in the following instances:
“(i) The number of actual voters on the Voter Roll/Register remained unknown and some people were disfranchised; and the number of votes cast during the election at certain Polling Stations exceeded the registered number of registered votes or the ballot papers delivered at the station.
(ii) The identity of the voters could not be verified.
(iii)   
The electoral process regarding the voters’ register was full of serious flaws and voters were denied the chance and sufficient time to correct those flaws.
(iv)     No sufficient time was allowed for the Petitioner and his agents and supporters to scrutinise the voters roll/register and take corrective measures regarding the same.
(v)      The Petitioner’s Polling Agents were denied the opportunity to safeguard their Candidate’s interests at the time of polling, counting and tallying of votes and in the absence illegal voters voted while legitimate voters voted more than once.
(vi)     The Petitioner was unduly hindered from freely canvassing for support by the presence of the Military and para-military personnel who intimidated the voters.
(vii)    It cannot positively be ascertained that the 1st Respondent obtained more than 50% of valid votes of those entitled to vote.”
In answer to the Petition, the 2nd Respondent refuted the allegations and stated:

“(a) that there is no proof that the 2” Respondent did not comply with the provision of the Presidential Elections Act 2000 and the Electoral Commission Act 1997 and that non-compliance in any - which is not admitted - affected the result in a substantial manner.
(b) That in any case non-compliance with provisions of the Electoral Commission Act is not a ground for nullification of results of a Presidential Election.
(c)That the number of Voters on the Voters Register/Ross was known and no persons were disenfranchised and votes were cast following the Voters Registers.
(d)
It is not true that the identity of Voters could not be verified.
(e) There are no serious flaws in the Voters Register and no Voters were denied a chance to scrutinise the Registers with a view to correcting flaws if any.
(f) It is not true that the Petitioner’s Polling Agents were denied the opportunity to safeguard the interests of the Petitioner at the time of polling, counting and tallying of votes and there is no evidence that illegal voters voted and legitimate voters voted more than once as alleged
(g) The 2nd Respondent did not hinder the Petitioner from freely canvassing for support but on the contrary the Petitioner traversed the whole country during the campaign period.
(h)From the results declared by the 2” Respondent, it is evident that the 1St Respondent obtained 69.3% of the valid votes cast.”
The Lead Counsel for the Petitioner and two of his colleagues addressed us on issue No. 3. Mr. Mbabazi who was the first to address us submitted that there are two types of non-compliance. The first one is that which goes to the root of the Constitution. Such act is substantial because the Constitution is supreme. The second is non-compliance with the Act. He contended that the failure to have an up-dated register offended a cardinal principle and therefore affected the results of the election and made the elections a sham. The involvement of the army affected the freedom of elections.
Mr. Mbabazi referred to the history of the country and the desire to hold free and fair elections as contained in Article 1 of the Constitution and the National Objective and Directive Principles of State Policy. He submitted that the noncompliance affected substantially the constitutional values - the value of secret ballot. He contended that substantial effect was not a question of quantity. As regards quantity, he cited instances where ballot papers were stuffed in 22 districts and over 200 ballot papers stuffed at one polling station and about 600 people voted at a sham polling station. He also referred to falsification of results. It was his contention that the results were substantially affected if seen in the context of free and fair elections. However, Counsel was unable to state to what degree the results were substantially affected.
Mr. Walubiri, Learned Counsel for the Petitioner, also addressed us on Issue No. 3. He submitted that the principles of the Act were derived from the Constitution particularly the need to reverse our political history of political and constitutional instability as indicated in the Preamble to the Constitution. The principles in the Preamble are meant to promote peace, freedom, democracy, equality, social justice and progress. There are democratic principles recognised in the National Objective and Directive Principles of State Policy. The principles are meant to empower and encourage active participation of all citizens at all levels in their governance. This tied up with Article 1 of the Constitution, which deals with sovereignty of the people. In terms of Presidential Elections, it was Mr. Walubiri’s submission that the overriding principle and benchmark was that the elections must be free and fair. He referred to Article 1 94) of the Constitution and Section 12 of the Commission Act.
Learned Counsel then submitted that what the Court has to decide is whether the non-compliance affected the results in a substantial manner. The problem was what test would be used to determine “substantial manner”. He contended that the submission by Dr. Khaminwa and Mr. Kabatsi for the Respondents that the test was one of the numbers was a wrong approach.
Mr. Walubiri submitted that the auhtorities both Counsel relied on of Mbowe Eliufoo (1967) EA 240 and Ibrahim v. Shagari (1985) LCR (Cont) 1 were at variance with the underpinnings of the values of the Constitution. In his view Mbowe v. Eliufoo (supra) was dealing with political and constitutional setting that is not in accordance with the democratic setting in Tanzania of today, and the decision should be discarded as out of date. He submitted that instead the Court should rely on the case of Attorney General v. Kabourou (1 995) 2LRC 757 which is more modern.
As regards the Nigerian case of Ibrahim v. Shagari (supra) he submitted that it should be ignored because it exposes poor jurisprudence. In his view, the decision did not assist to promote social and economic stability since the decision was followed by a military dictatorship.
He contended that it is dangerous to use numbers. To determine whether the non-compliance affected the results is a value judgment, a qualitative decision not based on quantities. Counsel submitted that not all numbers can satisfy free and fair elections and if the election is not free and fair, then such an election exercise is invalid and could be nullified if it went to the root of the matter.
Mr. Walubiri emphasised that the Court has to put meaning to a concept of free and fair election, which entails looking at the entire electoral process from voter registration to date of election and the voting, and tallying of the results. There is a need to assess the entire process to determine whether it was free and fair, and make a value judgment. Counsel cited his book on Constitutionalism at Cross Roads (supra) where there is a quotation from G. Grill, Free and Fair Elections International Practice 1994.
He submitted further that non-compliance cannot be quantified in numbers for instance, intimidation, and lack of freedom, and it is impossible to quantify their effect. His argument was that numbers are relevant for proving non-compliance but for proving the effect, one had to look at the principles and values, the gravity, the climate and the activities to see how they affected the results. The question, he submitted was, did the people really exercise their sovereignty? Mr. Walubiri contended that the opinion of the International Observers was not based on any numbers. The 2nd Respondent relied on their opinion not numbers. He submitted that the elections were not free and fair.
Learned counsel contended that even on numbers, the Petitioner had adduced evidence to prove substantial effect. He referred to the evidence of Frank Mukunzi who examined 254 Declaration of results Forms and made a report of his analysis. He also cited the evidence of Twinomasiko Jackson which showed a voters roll printed on 9 March 2001 which showed that all voters were supposed to have voted except one on each page. He submitted that this was not voting.
Mr. Walubiri then referred to the affidavit of Ndomugenyi Robert which showed that a total of 687 people voted whereas the tally sheet certified by the Commission indicated that the Respondent alone got 781.
He cited Mr. Mukunzi’s opinion, which was that nationwide there were 2,579,802 ghost voters that is one in every 3 ballots, because of un updated register, and therefore the numbers made a substantial effect. According to Counsel, Mukunzi showed that the gap had narrowed. He relied on the case of Mbowe v. Eliufoo (supra) which stated that if a making adjustments the gap appears to narrow the results would be annulled.
Winding up submissions for the Petitioner on Issue No. 3, the Lead Counsel for the Petitioner, Mr. Balikuddembe emphasised that the 2nd Respondent did a shoddy job in organising and managing the Presidential elections. The 2nd Respondent had a minimum of four years to prepare for and cause the election to be held under conditions of freedom and fairness but it failed to do so.
Learned Counsel referred to the letter the chairman wrote to the 1st Respondent begging him to rescue the electoral process which was being adversely affected by the deployment of PPU and questioned whether the Court could hold that the elections were held under conditions of freedom and fairness when the petitioner was being prevented from campaigning and his supported were being harassed and injured, resulting in the killing of one of his supporters in Rukungiri by a gun wielding soldier.
Mr. Balikuddembe submitted that the Petitioner had led evidence showing that the 2nd Respondent tailed to comply with the preparation of the register and update the register on continuous basis, that the Petitioner was unable to appoint Polling Agents for additional polling stations and that the failure to comply with the provisions and the principles embedded in the Act affected the results in a substantial manner both in quality and quantity.
Mr. Kabatsi the learned Solicitor General submitted that .the Petitioner had failed to prove the incidents alleged. He contended that the incidents were too few to prove that the elections were not conducted under conditions of freedom and fairness. He referred to the evidence of the Chairman of the 2nd Respondent which attached reports of the following International Observers who declared that the elections were free and fair: the Libyan Ambassador, the Tanzanian Delegation and the Gambian Delegation.
The learned Solicitor General also relied on the Reports of Returning Officers who testified that the elections were free and fair, namely from Kisoro, Kitgum, Mayuge, Tororo, Rukungiri, Ntungamo and Kasese. He also referred to the affidavit of Mr. Francis Bwengye, a former presidential Candidate, who stated that there were no malpractices in the elections. Mr. Kabatsi referred to the interview of Bob Mutebi with the Petitioner in Rukungiri after casting his vote where the Petitioner did not say that the election was not free and fair. Lastly Mr. Kabatsi referred to the affidavits of Maj. Gen. Jeje Odong, Army Commander, and Mr. John Kisembo, Inspector General of Police who stated that the conditions under which the elections were held were free and fair. The learned Solicitor General concluded that the Petitioner had failed to discharge the heavy burden of proof that the elections were not free and fair.
In his submission Dr. Khaminwa learned counsel for the 1st Respondent emphasised that this was not an ordinary petition but one that is in respect of the President of the Republic of Uganda, who is the Head of State and Head of government. He cited the case of Bush v Gore Supreme Court of United States No.00-949 December 1 2, 2000 in which the US Supreme court emphasised that they were dealing with an election of the President of the United States. The Supreme Court said,
“We deal here not with an ordinary election but with an election of the President of the United States. In Burroghs v United States, 290 US 534 (1934) we said,
‘while presidential electors are not officers or agents of the federal government (Green 134 US 377) they exercise federal functions and discharge duties in virtue of authority conferred by the Constitution of the United States. The President is vested with the executive power of the nation. The importance of his election and the vital character of its relationship to and effect upon the welfare and safety of the whole people cannot be strongly stated.
Learned counsel pointed out that the President is the only Chief Executive Officer of the Nation who is elected by universal adult suffrage, and is not confined to a small constituency. He observed that this was the first petition coming before the Supreme Court under the 1 995 Constitution there has been an election in 1 996 but there was no petition. This Court has no authorities on the petition as the only authorities were from inferior courts on election of Members of Parliament. It was his submission that the Court will therefore set the law on this matter.
On the question of substantial effect, Dr. Khaminwa referred to the case of Ibrahim v Shagari (1 985) LRC Const. 1 where it was held that “substantial” does not carry the same meaning as “absolute compliance”. He referred to the judgment of lrikefe, JSC who said, at page 91
“It is not disputed that only one return is contemplated within the intendment of Section 7 of the Electoral Act, 1982 and that ‘exhibit B in this case is such return. A return to an election will not be avoided if it appears to any court hearing the petition that challenges the return that the Electoral Act. (See Section 123 (1) of the Electoral Act). This is that part of the Act relied upon by the appellant and which deals with electoral malpractices. The word used in the section is substantial which does not carry the same clout as absolute compliance.”
Counsel also referred to the judgment of Nnamani JSC at page 21 where he stated,
“As was rightly submitted by the learned Attorney General of the Federation, Chief R.O. Akinjide, S.A.N. (for the 2nd Respondent). The Court is the sole judge and if it is satisfied that the election has been conduced substantially in accordance with Part II of the Act will not invalidate it. The wording of Section 123 is such that it presumes that there will be minor breaches of the regulations but the election will only be voided if the non-compliance so resulting and established in court by credible evidence is substantial. Furthermore the court will take into account the effect if any which such non-compliance with provisions of Part II of the Electoral Act 1982 has had on the result of the election.”
He submitted that the wording of the section presupposes some minor breaches and that the Nigerian Section is substantially similar to the Uganda provision.
Referring to the affidavit of Mr. Frank Mukinzi, Dr. Khaminwa argued that his evidence was in favour of the Respondents because he stated that it was not possible to tell how the irregularities affected each candidate. It was counsel’s contention that one has to show that the mistakes affected the results in a substantial manner.
Learned counsel referred to the votes obtained by the two candidates. He pointed out that the 1st Respondent scored 5,123,360 votes, which was 69.3% of the votes cast. The Petitioner scores 2,255,795 votes, which was 27.8% of the votes cast. He submitted that this was a big number of votes and that one could only score that percentage of 27.8% when the elections were free and fair. He observed that the other three candidates got smaller numbers but they were contended. He concluded by submitting that the difference in votes between the 1st Respondent and the Petitioner of more than three million was a colossal number.
The first question to address is what is the yardstick used in determining the effect of non-compliance on the results. Mr. Walubiri for the Petitioner advanced the proposition that this question is determined by a value judgment - whether the election has been free and fair. He played down the role of numbers. Mr. Walubiri relied on the opinion of the Court of appeal of Tanzania in the case of AG v Kabourou (supra).
In that case it was held that the underlying principle that election should be free and fair meant that an election which was generally unfree and unfair was not an election at all as envisaged by the Constitution and the Elections Act, and anything which rendered an election unfree and/or unfair was a valid ground to annul the election, and any law which sought to protect unfree or unfair elections from annulment would be unconstitutional. On the other hand, a non-compliance with the Elections Act might affect the election results, but not necessarily make the election unfree and unfair. But this opinion was obiter dictum and was not the ground on which the election was declared void.
I am of the view that the value judgment is only relevant in considering the process of the election, and the principles underlying the process. At the end of the elections a value judgment can be made that an election was not free and fair, but that is not the result of the election. It is only one of the principles noncompliance with which may render the election to be set aside if it has affected the result in a substantial manner.
It has been held that the “result” means the success of one candidate over another and not merely an alteration in the number of votes given to each candidate: Clara Eastern Division, Case (1892) 4 GM. & H, 162 at p. 164. In Ruffle y Rogers (1982) GB 1 220, (1982) 2 ALL ER 157, where votes were wrongly rejected and inclusion of such votes would have resulted in a tie, which would then have been determined by the Returning Officer by lot such a tie was a “result” for those purposes. The result of the poll was that the conservative candidate was defeated by a majority of two.
The second question to sounder is when is the result said to be affected by the non-compliance with the Act or irregularities in the election. Courts in Uganda have relied greatly on the decision of Georges, CJ in Mbowe v Eliufoo (supra) in defining the phase “affected the results of the election” which appeared in Section 99 (b) of the National Assembly (Elections) Act 1964. Geroges, CJ referred to the case of Re: Kensington North Parliamentary Election Petition (1 960) 2 ALL. ER 1 50 where the Court said,
“Even If the burden rested on respondent, I have come to the conclusion that the evidence is all one way. Here Out of a total voting electorate of persons who recorded their votes, three or possibly four are shown by the evidence to have voted without having a mark placed against their names in the register and each of them voted only once. Even if one was to assume in favour of the petitioner that some proportion of the reminder of 111 persons, whom we have not seen were in somewhat similar case, there does not seem to be a thread of evidence that there is any substantial non, compliance with the provision requiring a mark to be placed against the voters names in the register; and when the only evidence before the court is that of three, or possibly four people who are affected in that they recorded their votes without having a mark placed against their names, each voted only once, one cannot possibly come to the conclusion that although there was a breach of the statutory rules, the breach could have had any effect on the result of the election. Even if all the 117 persons were similarly affected, it could not possibly have affected the result of this election; therefore, although there was a breach in regard to the matter set out in para 3 (1) of the petition, I should be prepared to say that there was a substantial compliance with the law In this respect governing elections and that omission to place a mark against the names did not affect the result.”
Georges, CJ defined the phrase affected the result in this way, at page 242,
“In my view in the phrase “affected the result,” the word “result means not only the result in the sense that a certain candidate won and another lost. The result may be said to be affected after making adjustments, the effect of proved irregularities the contest seems much closer than it appears to be when first determined. But when the winning majority is so large that even a substantial reduction still leaves the successful candidate a wide margin, then it cannot be said that the result of the election would be affected by any particular non-compliance of the rules.”
In Mbowe v Eliufoo (supra) that unsuccessful candidate in the National Assembly elections petitioned for an order that the election in one constituency was null and void, the ground for the petition were that polling agents were not properly appointed, the eligible voters did not vote because ballot papers were exhausted; and that threats were used to influence voters to vote for the Respondent.
The results of the election were as follows:
-Number of votes in the list -            30,889
-Votes for the Petitioner -               6,393
-Votes for the Respondent -              20,213
-Majority margin -                         13,820
The High Court of Tanzania held that non-compliance with the provisions of the law was not substantial and did not affect the results of the election.
In Gunn v Sharpe (1974) IQB 808 it was held the irregularities had affected the result. This was a local government election for the three councillors. At ten Polling Stations 102 papers were rejected because they did not bear official mark. Of the rejected papers 98 came from one Polling Station, constituting more than half of the 189 papers issued at the station. If the votes on rejected papers had been counted, two petitioning candidates would have been successful instead of the Respondents who had in fact been elected. The Petitioners sought a declaration that the election was not conducted substantially in accordance with the law as to elections within S.37 (1) of the Representation of the People Act 1949 and that the errors affected the result of the election.
It was held that the errors were substantial and such as to be likely to affect the result of the election, since they had resulted in more than halt the voters who had sought to vote at one Polling Station being disfranchised and this prevented them from voting. It was held further that since the errors had in fact affected the result the election of the Respondents would therefore be declared void.
In Morgan v Simpson (1974) 3 ALL ER 722, (1975) 1 QB 151, the elections were declared invalid. The facts of the case were that 23,691 votes were cast in a local government election. Forty-four ballot papers were rejected because they were not stamped with the official mark as required by the applicable rules, the error having been made by the Polling Clerks. It was established that if the 44 ballot papers had not been rejected, but had been counted, the Petitioner who was a candidate at the election would have won by a majority of seven votes over the Respondent. It was held that where breaches of election rules though trivial had affected the result that by itself was not enough to compel the court to declare the election void (though conducted substantially in accordance with the law as to elections. The elections were declared invalid.
Lord Denning made interesting propositions regarding the law governing elections, at (1975) I QB p.164,
“Collating all these cases together I suggest that the law can be stated in these propositions:
1. If the election was conducted so badly that it was not substantially in accordance with the law as to elections, the election is vitiated, irrespective of whether the result is affected or not. That is shown by the
Hackney Case of OM & H 77, where two out of 19 Polling Stations were closed all day, and 5,000 voters were unable to vote.
2. If the election was so conducted that it was substantially in accordance with the law as to elections, it is not vitiated by a breach of the rules or a mistake at the polls
- provided that it did not affect the result of the election. That is shown by the lslington Ca 17 TLR 210 where 14 ballot papers were issued after 8.00 p.m.
3. But even though the election was conducted substantially in accordance with the law as to elections nevertheless if there was a breach of the rules or a mistake at the polls
- and this did affect the result - then the election if vitiated. This was shown by Gunn v Sharpe (1974) QB 808 where the mistake in not stamping 102 ballot papers did affect the result.”
In the Borough of Hackney, Gill v Reed (1874 XXXI L.T. 69 Grove J said,
“The result of the election would in my judgment be affected if instead of majority or 10 or even 10, upon scrutiny the matter might be very different.
In Ibrahim v Shagari (1985) LRC Const. 1, Nnamani JSC held at page 19 that the word return had been defined in Section 164 of the Electoral Act 1982 No.8 as –
“the declaration of the result of the election in accordance with the appropriate provisions of this Act and includes a certificate of return in form EC 8 in the Schedule to this Act.”
The learned Justice of the Supreme Court added,
“It is my view that the result of the election is in Exhibit B and Exhibit Bi. It was by Exhibit B 1 that the l Respondent was declared as winning the election.”
Although the provisions in the English and Nigerian electoral laws are slightly different from the Ugandan law, I am of the opinion that the authorities from these countries are relevant and persuasive.
In the instant petition, the result of the election is contained in the Declaration of Results Form 3, which was signed by the five members of the 2 Respondent and its Secretary, and was dated 14 March 2001. The result indicated the number of valid votes polled by each candidate, the percentage of the total valid votes cast, the total number of valid votes cast for candidates, the total number of invalid votes and the percentage of the total number of votes cast, the number of votes cast and the percentage of the total number of registered voters, and the candidate who was declared to have been elected as President.
In term of figures, the result was as follows:
1. Awori Aggrey - 103,915(1.4%)
2. Besigye Kizza - 2,055,795 (27.8%)
3. Bwengye Francis A. W. 22,751 (0.3%)
4. Karuhanga K. Chapaa - 10,080(0.1%)
5. Kibirige Mayanja Muhammad - 73,790 (1 .0%)
6. Museveni Yoweri Kaguta - 5,123,360 (69.3%).
The total number of votes cast was 7,389,691. The total number of invalid votes was 1 86,453 amounting to 2.5% of the total number of votes cast. The total number of votes cast was 7,576,144 amounting to 70.3% of the total number of registered voters. The candidate who obtained the highest number of votes in the election and the votes cast in his favour being more than fifty percent of the valid votes cast at the election and was declared elected President of the Republic of Uganda was Museveni Y. Kaguta, the 1st Respondent.
Section 65 (a) of the Act lays down the principle that an election cannot be set aside unless the non-compliance with the provisions and principles of the Act has affected the result in a substantial manner. Dealing with a similar provision in the Parliamentary Elections Statute, in the case of Odetta v Omeda, Election Petition No.001 of 1996, Ntabgoba PJ, said,
“What must the Petitioner prove? He must prove that whatever noncompliance with the provisions of the Statute must have affected the result in a substantial manner. Such proof would involve an analysis of the result.”
In Katwiremu Bategana v Mushemeza Election Petition No.1 of 1996 (HC - Mbarara) the irregularities complained of by the Petitioner included lack of or improper display of voters register, voting by unregistered voters, improper assistance to voters to mark ballot papers under pretext of disability, impersonations voting with cares not in own name and voting more than once by some voters. Although some of the irregularities were proved to have been true, it was held that the irregularities had not affected the result of the election in a substantial manner. Musoke Kibuuka J, said,
“Although the Petitioner has in many instances proved to the satisfaction of the Court that there were irregularities in the process of conducting the Parliamentary elections in Sheema South Constituency he has not gone beyond that as the law requires. He had to show that those irregularities affected the result of the election in a substantial manner. That he has not done. The Petition therefore fails on issue number one.”
Similarly in Ayena Odong v Ben Wacha, Election Petition No.2 of 1996 (HC) Okello, J said,
“In the instant case, there was no evidence of the effect of any alleged irregularities on the results that could be adjusted from the result. All that there is an address by the Petitioner from the Bar, that the effect of the communication of the malpractices to the voters, affected the result of the election in a substantial manner because they changed the minds of the voters in favour of the Respondent. That is not evidence ... the winning margin here is 8,000 votes. That is quite a substantial margin. Without any evidence of the effect of the alleged irregularities proved to be adjusted to the above figure, it is difficult to say that the irregularities affected the result of the election in a substantial manner.”
The need to prove that the result was affected in a substantial manner was emphasised by Ntabgoba, PJ in Odetta v Omed Election Petition N.001 of 1996, as follows:
“I must say that with the additional words in our provision in “substantial manner” the standard of proof under s91 of Statute No.4 of 1996 becomes a great deal higher than the standard of proof in the case of Tanzania discussed by Georges, CJ. What must the Petitioner prove? He must prove that whatever non-compliance with the provisions of the Statute must have affected the results of the election in substantial manner. It is not sufficient therefore to allege and even prove that there was harassment, intimidation and house burning. The Petitioner must go further than that and show that the results of the election were thereby affected and not merely affected but affected in a substantial manner-”
Elections must not be set aside on light or trivial grounds. It is a matter of great public interest. In Gunn v Shame (supra). Wills, J said that “elections should not be lightly set aside simply because there have been informalities and errors. In the Hackney Case (supra) cited with approval in Morgan v Simpson (supra) Grove, J emphasised that an election should not be annulled for minor errors or trivialities. He stated,
“An election is not to be upset for an informality or for a triviality. It is not to be upset because the clock at one of the polling booths was five minutes too late or because some of the voting papers were not delivered in a proper way. The objection must be something substantial, something calculated really to affect the result of the election. I think that is a way of viewing it, which is very consistent with the terms of the section. So far as it appears to me the rational and fair meaning of the section appears to me to prevent an election from becoming void by trifling objections on the ground of informality, but the judge is to look to the substance of the case to see whether the informality is of such a nature as to be fairly calculated in a rational mind to produce a substantial effect upon the election.”
The judge concluded,
“That being my construction of the section, I cannot say considering the very large number of electors who have been disabled from voting upon the present occasion, that under these circumstance it has been an election which may be fairly taken to represent the voices of the electors of Hackney.”
What is a substantial effect? This has not been defined in the Statue or judicial decisions. But the cases of Hackney (supra) and Morgan v Simpson (supra) attempted to define what the word substantial meant. I agree with the opinion of Grove, J. The effect must be calculated to really influence the result in a significant manner. In order to assess the effect the court has to evaluate the whole process of election to determine how it affected the result, and then assess the degree of the effect. In this process of evaluation, it cannot be said that numbers are not important just as the conditions which produced those numbers, numbers are useful in making adjustments for the irregularities.
The crucial point is that there must be cogent evidence direct or circumstantial to establish not only the effect of non-compliance or irregularities but to satisfy the court that the effect on the result was substantial.
In this petition, the Petitioner has proved that there was non-compliance with the provisions and principles of the Act in quite a number of instances. There is no doubt that these irregularities and malpractices had some effect on the results one way or the other. If we take the result of the election as indicated on Form B, there is no evidence adduced to show how the non-compliance with the provisions and principles of the Act affected the results of each candidate, including the Petitioner. No adjustments or calculations based on those irregularities were done even taking into account the factor of intimidation or absence of conditions of freedom and fairness in some instances.
It is understandable to argue that the failure to efficiently compile and update the voters register resulted in ghost voters remaining on the Roll and eligible voters being excluded from the register and thus being denied their right to vote. But there was no evidence that only supporters of the Petitioner were omitted from the Voters Register. The number of eligible voters who were denied the right to vote was not produced. The presence of ghost votes on the Register could have facilitated rigging through impersonation and multiple voting. Again we do not know how many ghost voters were left on the Register.
Attempts were made to prove that the total number of voters announced by the 2 Respondent was inflated. But there was no actual or correct number proved from official or private documents dealing with population census. Instead an academic or theoretical analysis of previous population figures by Mr. Makunzi, an Engineer turned Data Analyst, was presented which was in any case inconclusive.
The failure to supply the Voters rolls to the Petitioner to be used during polling and the failure to publish all Polling Stations must have in one way or another affected the Petitioner’s preparations for monitoring elections. But what was the effect of these omissions on the result of the election?
It was submitted that in the new Polling stations especially in the special areas where the Army soldiers voted, there were more irregularities because there were no Polling Agents and that the 1s Respondent got proportionally more votes than in the surrounding areas in the same District. Even if the facts were correct, this only proves that the non-compliance affected the results, but did it do so in a substantial manner? There was no evidence to this effect.
There was no sufficient evidence to prove the effect of other irregularities like multiple voting, ballot stuffing and pre-ticking of votes. The fact that these malpractices were proved to have occurred is not enough. The Petitioner had to go further and prove their exigent, degree, and the substantial effect they had on the outcome of the election.
I would say the same thing for the malpractices and offences, which caused intimidation and harassment to the agents and supporters of the petitioner which were proved to have occurred. Their intensity and effect varied from area to area. They were intense in Rukungiri and Kanungu where the Petitioner originates and was expected to have big support. They were also experienced in Kabale, Mbale and Kamwenge. Again it must be assumed that the intimidation had some effect, but how much effect?
On the other hand objective facts indicate that the Petitioner performed reasonably well by obtaining 2,055,795 votes, which was 27.8% of the total number of votes cast. He won outright in some District even where the special areas for voting by soldiers existed like Gulu and Kitgum. He performed reasonably well in other Districts of Uganda where there was intimidation and irregularities.
The 1st Respondent got overwhelming support from the population as indicated in the result he got of 5,123,360 votes cast which was 69,3% of the total votes cast. The voter turn up of 70.3% was very high. The difference between the votes obtained by the Respondent and the Petitioner is over 3 million votes. This is a big margin, which cannot be bridged by any reasonable adjustment given to the Petitioner say of 10%.
The international election observers gave their verdict that the elections generally were tree and fair and reflected the general will of the people of Uganda. The observers gave an objective opinion on the elections. Their opinions should be given the due respect they deserve.
Therefore although several malpractices and irregularities were proved in this petition, the Petitioner failed to adduce sufficient evidence direct or circumstantial to satisfy me that those aspects of non-compliance with the provisions and principles of the Act affected the result of the election in a substantial manner.
As Anamansi, JSC said in Ibrahim v Shagari (supra) at p. 24
“Although it seems obvious it needs emphasis that courts of law can only decide issues in controversy between parties on the basis of evidence before them. It would be Invidious if it were otherwise.”
My findings on issue No.3:
My conclusions on Issue No.3 are that it has not been proved that the number of actual voters on the Voters Roll/Register remained unknown and that the number of votes cast during the election at certain Polling Stations exceeded the registered number of registered voters or the ballot papers delivered at the station. On the contrary the number of registered voters was declared by the 2nd Respondent and known. Some people could have been disfranchised through errors and inefficiency but the number was not established nor do I consider it significant given the high voter turn up.
I have found that the 2nd Respondent did not display the Register for 21 days but only 5 days. I am of the view that this period was insufficient for public scrutiny of the register by voters, updating the register and efficient cleaning of the register. However it has not been proved as to how this affected the results and whether the effect was substantial. The Petitioner has failed to establish that the identity of the voters could not be verified. There was evidence, which was credible that there was a national register of voters and roll of voters containing the identity of voters. There was also evidence that voters’ cards were issued to facilitate identification of voters. It is true that some registered voters were not issued with cards and could have been refused to vote on this account. But such number was not established nor do I think it was significant. It was not established to my satisfaction that the electoral process regarding the voters register was full of serious flaws and that voters were denied the chance and sufficient time to correct those flaws.
The Petitioner has failed to prove to my satisfaction that the failure to publish a list of additional Polling Stations, and failure to supply his agents with copies of Voter Register and Rolls affected the results of the election in a substantial manner.
The Petitioner has not satisfied me that his Polling Agents were denied the opportunity to safeguard his interests at the time of polling, counting and tallying of votes. The evidence adduced on this allegation was riddled with inconsistencies and exaggerations and was seriously challenged by the Respondents. I am satisfied that the Petitioner’s Agents and Supporters were abducted and arrested, but it has not been proved that this affected the results in a substantial manner.
The Petitioner has not proved to my satisfaction that he was substantially hindered from freely canvassing for support by the presence of the military and paramilitary personnel who intimidated the voters. The evidence on record indicates that the Petitioner was able to campaign freely throughout the country except a few areas where his campaigns were interfered with by the military and paramilitary personnel. These areas included Rukungiri, Kanungu, Ntungamo, Mbale and Kamwenge. The effect of this on the elections was not established leave aside whether it was substantial.
While irregularities in the voting exercise were proved in some areas, they were not widespread throughout the whole country, and their extent, degree and effect were not established or proved to have substantially affected the results.
The burden was on the Petitioner to prove that the 1st Respondent did not obtain more than 50% of the valid votes of those entitled to vote. He failed to do so. His attempt to prove by statistical analysis what percentage of votes the 1st Respondent could have obtained in a free and fair election was academic, theoretical, speculative and lacking in expertise and credibility. There was no attempt to analyze the actual votes cast or not cast to determine the pattern of voting and how the Respondent benefited from it and the Petitioner was deprived by it.
I therefore hold that the Petitioner has failed to prove to my satisfaction that the non-compliance with the provisions and principles of the Act affected the result of the election in a substantial manner.
Issue No4: Illegal Practices by 1st Respondent:
Issue No.4 which is solely directed against the 1st Respondent is whether an illegal practice or any other offence under the said Act was committed in connection with the said election by the Respondent personally or with his knowledge and consent or approval.
There are five illegal practices alleged against the Respondent. These are the allegation that the Petitioner had Aids, the allegation of offer of gifts to voters, the deployment of a partisan army during elections, the allegation of intimidation of the Petitioner’s Supporters by the PPU and Major Kakooza Mutale’s Kalangala Action Plan paramilitary personnel, and the allegation of threat to cause death to the Petitioner. I shall deal with each of these allegations in the order in which they are listed.
Before I consider the various alleged illegal practices of offences, it is convenient to address legal points relating to the scope and effect of the provisions of Section 58 (6) of the Act which provides,
“(6) The election of a candidate as President shall only be annulled on any of the following grounds if proved to the satisfaction of the court
(c)     
that an illegal practice or any offence under this Act was committed in connection with the election by the candidate personally or with his or her knowledge and consent or approval.”
There are two preliminary points that I wish to dispose of in respect of the scope of illegal practices as a ground for nullifying a presidential election. The first point is to emphasise that the three grounds specified in Section 6 are independent of each other. The effect of this is, in my judgment, that there is no requirement to prove that the illegal practice in Section 6 (c) affected the result in a substantial manner. There seems to have been a deliberate intention by Parliament to ensure that candidates conduct themselves in an exemplary manner during the elections and that the commission of illegal practices or election offences makes them unfit to hold the office for which they seek election. But is seems to me there is no bar to such a candidate standing again in a subsequent election. Whether any trivial illegal practice committed by a candidate should be sufficient to nullify an otherwise free and fair election where the illegal practice has not affected the election in a substantial manner, is a matter for future consideration.
The second point is about the principle of agency. Normally a principal or master is liable for the actions of his agent or servant committed in the Course of his employment either with actual, implied or apparent authority. It seems that this is the position under English electoral law.
Mr. Walubiri submitted that a candidate is liable for the actions of the agent done within the scope of his employment even when the agent was strictly prohibited from doing a particular act. He relied in Case Law 2nd edn. 1924 and Vol. 20 of the Digest: 1982 (Butterworth’s) para 646 page 72 where the concept of implied consent is discussed.
He contended that if a candidate employed a candidate who bribed, the candidate would lose his seat. Referring to Section 65 (c) of the Act, he argued that knowledge could be inferred from the fact of appointment and the fact that the agent was acting to solicit votes for the 1st Respondent.
Mr. Bitangaro for the 1st Respondent did not agree with the submissions of Mr. Walubiri. He contended that the authorities cited by Mr. Walubiri were irrelevant. If an Agent were to bribe without the knowledge and consent of the Candidate the latter would not be liable for the illegal practice. He argued that there must be express not implied or apparent authority. There must be evidence of agency.
He submitted that the crucial test is whether there has been employment or authorisation of the agent to do some election work. In the present case, the Respondent appointed his agents and the letters spell out the terms of agency.
With respect, I accept the submissions of Mr. Bitangaro on this point. The wording of Section 6 (c) is clear and unambiguous. It requires that the Candidate be liable for the actions of his agents only when they are committed with his knowledge and consent or approval. To this extent the general principles of the law of agency have been modified.
The Allegation of Aids:
The Petitioner complains in para 3 (2) (a) of the Petition that contrary to Section 65 of the Act, the 1st Respondent publicly and maliciously made a false statement that the Petitioner was a victim of AIDS without any reasonable ground to believe that it was true and this false statement had the effect of promoting the election of the 1 s Respondent unfairly in preference to the Petitioner alleged to be a victim of AIDS and voters were scared of voting for him who was by necessary implication destined to fail to carry out the functions of the demanding Office of President and to serve out the statutory term.
In answer to the Petition, the 1s Respondent states that the statement that the Petitioner was a victim of AIDS was not made by him publicly or maliciously for the purpose of promoting or procuring an election for himself contrary to Section 65 of the Act. However he states that it is true that the companion of the Petitioner, Judith Bitwire, and her child with the Petitioner died of AIDS. He states further that he has known the Petitioner for a long time and has seen his appearance change for a long time to bear obvious resemblance of other AIDS victims that he had previously observed.
Section 65 of the Act provides,
‘Any person who, before or during an election, publishes a false statement of the illness, death or withdrawal of a candidate at that election for the purpose of promoting or procuring the election of another candidate knowing that statement to be false or not knowing or believing it on reasonable grounds to be true, commits an illegal practice.”
In his affidavit in support of the Petition, the Petitioner states that he knows that he is not suffering from AIDS but the 1st Respondent maliciously made false allegation that he was a victim of AIDS without any reasonable grounds for believing that it was true and this false and malicious allegation against him had the effect of promoting the election of the 1st Respondent unfairly in preference to him alleged to be a victim of AIDS as voters were scared of voting for him who by necessary implication was destined to fail to carry out the functions of the demanding office of the President and serve the statutory term. He attached a copy of the Monitor Newspaper of 8 March 2001 reporting the 1st Respondents statement.
In his affidavit in reply to the Respondent, the Petitioner admitted that Judith Bitwire was his companion up to 1991 and that she died in 1999 but that he did not know the cause of her death. He also admitted that he had a child with the late Judith Bitwire and that the child died in 1991 but the child did not die of AIDS. The Petitioner stated that the statement admittedly made by the 1st Respondent that the Petitioner was a victim of AIDS was meant to stigmatise him and undermine his candidature before the electorate through demoralising his supporters and voters in general and to promote his own candidature against his.
The Petitioner asserted that the statement was false in all respects and that the Respondent had never diagnosed him or tested him and found him as an AIDS victim, and had never asked him about his health status. He explained that his appearance which is natural just like any other person could not enable one to know or to believe that he was a victim of AIDS. He stated that there was no obvious resemblance of AIDS victim for knowing or believing that a person was an AIDS victim and none had been given by the 1st Respondent. He was not and had not been bed-ridden in his life and he was able to work normally and during the Presidential Campaigns he traversed the whole of Uganda without breaking down or feeling particularly fatigued.
The 1st Respondent’s false Statement that the Petitioner was an AIDS victim was made publicly in an interview with a Time Magazine Journalist called Marguerite Michaels for publication in the Time Magazine and Website known as http://www.time.com/time/magazine/prinout/0,8816,101373,00.htm. The Time Magazine was sold all over the World including Uganda where copies are purchased on the Street. He attached a copy he purchased from the streets of Kampala. The petitioner states further that the Website of Time Magazine was also publicly available as an electronic version and one can access, read, download or print copies. A copy of the printed article by Marguerite Michaels was attached to his affidavit. He alleges that the 1st Respondent thereafter explained the meaning of his statement in a Press Conference held on 11th March 2001 with all journalists and reporters local and international that his statement meant that “State House is not a place for the invalid. A President should be someone in full control of his faculties both mental and physical”.
He complains that by referring to him as an invalid without all his faculties and incapable of being a President, the 1st Respondent undermined his candidature before the voters while promoting his own candidature to his prejudice at the election. He states that this Statement was published in the Newspapers in Uganda viz New Vision, Monitor, copies of which were attached and broadcast on all Radio Stations namely Radio Simba, Central Broadcasting Service, Radio One, Capital Radio and Uganda Television.
As a result of the 1st Respondent’s said statements he claims his agents appointed during the electoral process and some of his supporters expressed their concern with his health status and sought for his explanation. He asserted that he knew the meaning of an invalid but that he was not invalid as suggested by the Respondent in his Press Conference held on 1 1th March 2001.
Dr. Ssekasanvu Emmanuel who holds a Degree of Bachelor of Medicine and Surgery of Makerere University and a Masters Degree in Medicine - Internal Medicine of Makerere University stated that he has 10 years experience as a Registered Medical Officer in Uganda and was currently doing research in HIV Associated Infections. He gave his professional opinion on the allegation of AIDS made by the 1st Respondent against the Petitioner by giving a professional definition of AIDS. His opinion which was sent to Lead Counsel for the Petitioner by letter dated 1 April 2001 stated,
“Re: Report on case definition of AIDS
Following your request for a case definition of AIDS from me, this is my report on the subject;
The acronym/term AIDS in full stands for acquired immune deficiency syndrome. This is used to mean a conglomeration of signs and symptoms associated with late HIV disease.
The internationally accepted full definition of AIDS has been compiled by the Centres for disease control Atlanta Georgia USA the content of which is included herein; Appendix 1.
However, the World Health Organisation (WHO) experts came up with a clinical definition for AIDS using signs and symptoms. These are grouped as major and/or minor signs; Appendix 2.
Presence of any one of the major signs is diagnostic of underlying HIV disease Combining one Major plus two or more of the minor signs makes a presumptive clinical diagnosis of AIDS.
It must be noted that such a clinical criteria can only be used by trained medical personnel to make a presumptive diagnosis and even then, after detailed examination of the person in question.
Likewise, the diagnosis of HIV infection as well as AIDS cannot be made in a person merely because of loss of a Partner and/or child due to AIDS. This is because on some occasions the infection may not necessarily be passed onto the partner despite intimate contact. Indeed, the issue of discordant couples is not uncommon in clinical practice.
A pathologist can recognise AIDS at post
- mortem examination of an HIV infected body. However, such individuals usually die of HIV associated illnesses as the immediate cause of death other than HIV disease itself, for example, they could die from severe infection with bacteria or respiratory failure etc as the immediate cause of death. The term died from HIV associated illness would be more appropriate.”
Appendix 2 which contains the WHO clinical definition of AIDS using signs and symptoms states,
“The clinical Diagnosis of HIV Disease
A.      
Major Findings/signs:
 
• Kaposis sarcoma
• Crypoloccal meningitis
• Esophageal cadidiasis
• Hepres zooter in patients below 50 years
• Oral thrush in-patients below 50 years.


B.      
Minor Findings/signs
 
• Weight loss > 10% of original body weight
• Recurrent fevers > 1 month
• Recurrent diarrhea > 1 month
• Generalized lymphadenopahty
• Generalised maculopapular rash
• Disseminated tuberculosis
• Risk esposur
e e.g. multiple sexual partners, blood transfusion after 1975”.

The Petitioner also filed an affidavit of Major Rubaramira Ruranga in support of his complaint relating to the allegation of AIDS made against him. Major Ruranga stated that he was 53 years and was the Head of the National Guidance and Empowerment Network of People with HIV/AIDS (NGENT). He disclosed that he had been living with HIV for 16 years but he was going about his duties normally. He was married to two wives, one with whom he had lived for 29 years and had three children with her, and the second one whom he married in 1991 and had one child with her aged 1 1/2 years. He asserted that despite the fact that they interacted sexually whenever they tested for HIV, he and the second wife were positive but his first wife and the 11/2 years old child tested negative. He disclosed that he had sought the consent of his spouses to divulge matters pertaining to their health in his testimony in this case.

The 1st Respondent adduced the evidence of Dr. Diana Atwine to support his allegation of AIDS against the Petitioner. She stated that she was a medical doctor employed by Joint Clinical Research Centre (JCRC). In the ordinary course of her duties at the Centre she signs death certificates in respect of deceased patients of the Centre. She confirmed that she signed a Certificate of Cause of Death of the late Judith Bitwire in the course of her duties at the JCRC.

In the copy of the Death Certificate attached to her affidavit, in respect of Judith Bitwire who was admitted on 11 May 1999 and died on 21 May 1999, the cause of death is indicated as “Empysema, Respiratory Failure”. Other significant conditions contributing to death but not related to disease or condition include “Advanced lmmuno Suppression”.

Dr. Atwine was the only witness whom the parties applied to call for cross- examination. The application was made by the Petitioner. When she testified before the Court, she confirmed that she had signed the death certificate in respect of the deceased, Judith Bitwire. She stated that the death certificate was given to her father and the Petitioner who was by then her husband.

Moses Byaruhanga who was the Secretary to the National Task Force (NTF) of the 1st Respondent stated that he knew Judith Bitwire because he studied with her at Makerere University between 1987-1990. While at Makerere he used to take photographs and at one time she wished him to take photographs of her child at a house on Plot 9 Akii Bua Road Nakasero where she was cohabiting with the Petitioner as wife and husband.

The 1st Respondent also adduced evidence of Prof. John Rwomusana who stated that he is a Medical Doctor who did his Post Graduate Studies in Medicine and Clinical Pathology, involving studies in virology, genetics and immunology, which are basis to the science of HIV Disease. He is the Director of Research and Policy Development at the Uganda AIDS Commission.

He co-ordinates all AIDS related bio-medical and social research in the country, involving the gathering of research results and research related information in the country, packaging such information for dissemination for the purpose of policy development and further research in HIV/AIDS prevention, care and support. He is involved in the development of research guidelines, approaches, standards and plans. He is therefore very conversant with the research results pertaining to both medical and social aspects of AIDS. He revealed that research in Uganda has established that there is a concept of “Community Diagnosis” of AIDS based on Community perceptions, beliefs and observations concerning HIV/ AIDS. The said concept is a useful research tool that enables research into the community awareness as to the risk and dangers of the spread of HIV/AIDS.

He explained that research in Uganda has revealed than it is a common widespread practice in lay conversations to refer to individuals in community who have lost partners and very young children presumably due to AIDS, as person suffering from AIDS. An example of such observations can be taken from research settings such as in Kyamulibwa, Masaka District where the Uganda Virus Research Institute and the Medical Research Council have undertaken community-based research for a period of over ten years.

The practice is common at funerals in reference to deaths of persons and is used by the Community to protect families through guarding against inheritance of spouses who have lost partners and other sexual based relationships. He concluded that the practice is of a societal advantage, which is more widespread in a country where there are high levels of awareness and openness about AIDS, such as Uganda. The practice has developed a right upon people in the community to openly express their beliefs in matters concerning AIDS and its transmission. The research has shown that it is normal practice for ordinary people to make presumptions that an individual is suffering from AIDS upon observation of skin changes and the individual’s AIDS’s related bereavement.

Mr. Balikuddembe learned lead counsel for the Petitioner noted that the 1st Respondent admitted making the statement but denied making it publicly or maliciously. He referred to the affidavit of Dr. Ssekasanvu Emmanuel and Major Rubaramira. He dismissed the affidavit of Marita Namayinja as hearsay. She had claimed to have known how several women friend of the Petitioner had died of aids.
Learned counsel criticised the evidence of Prof. Rwomusana as gossip and idle talk, since his search was not available. He dismissed the evidence of Dr. Atwine as useless as she may have referred to a different person from the one referred to by the Respondent. He contended that death certificate did not conform to the Birth and Deaths Registration Act, as was not signed by a pathologist. Counsel argued that the death certificate does not say that Judith Bitwire died of AIDS since any other condition could cause immune suppression.

Mr. Balikuddembe submitted further that the 1st Respondent as he was interviewed by a journalist and the statement appeared in the Times Magazine and on Internet on 8 March 2001 and therefore he knew it would be published in the press. Learned counsel cited the case of Attorney General V Kabourou (1995) 2 LRC 751 where the Tanzanian Court of Appeal said, at p.783,
“The evidence adduced at the trial shows that these statements were widely published in the press. There can be no doubt that those who uttered those statements were aware that the statements would be published in the press.”

Learned counsel argued that the Petitioner confirmed the publications when he made a statement at a Press Conference on the eve of election on 11 March 2001 where he referred to the Petitioner as an invalid.

As regards the question whether the 1s Respondent made the statement maliciously, Mr. Balikuddembe observed that the 1st Respondent does not explain why he made the statement and repeated it. Counsel submitted that the Respondent therefore made the statement with the intention of undermining the Petitioner’s chances of being elected, and this amounted to malice.

Mr. Balikuddembe also referred to the affidavit of Dr. Ssekasanvu, which attached a Declaration of Paris Aid Conference of 1984 of which Uganda was a signatory. He submitted that since the Declaration obliges political leaders to act with compassion towards AIDS victims, the 1st Respondent must have made the statement maliciously to stigmatise the Petitioner. He argued that the statement was false and therefore maliciously made.
Learned counsel for the Petitioner submitted further that there is no evidence that the 1st Respondent attended the funeral at which occasion it was announced that Judith Bitwire had dies of AIDS. He contended that the 1st Respondent did not specify resemblance of people with AIDS, and that even Prof. Rwomusana did not give signs or resemblance of victims of AIDS.

Mr. Balikuddembe concluded his submission that the sum total of the evidence was that the 1t Respondent made a false statement which he knew to be false and published a malicious statement which he knew was going to be published, in order to promote his election. The 15t Respondent therefore committed an offence under Section.23 (5) (a) (b) and (7) of the Act, and this would dispose of the Petition in accordance with Section 59 (b) and (c) of the Act.

Dr. Byamugisha lead counsel for the Respondent pointed out that para.51 of the Petitioner’s affidavit was a repetition of the allegation in the Petition. He submitted that this was not evidence as Section 65 of the Act provided for proof of evidence. It was his contention that the Petitioner had to produce evidence that he does not have AIDS. He argued that the Petitioner must also prove a publication of a false statement knowing it to be false or believing not to be true and that it was to procure the election of another candidate. He invited the Court to consider whether another candidate involves the same candidate.

Learned lead counsel for the 1st Respondent submitted that the Petitioner was hiding the cause of death of his wife and that of his child since he took away the body and got post mortem report. Referring to the statement by the Petitioner that the lst Respondent had not tested him, he asked why the Petitioner did not himself go for the list. He contended that if the Petitioner is to be believed he must present the diagnosis of his condition. It was not enough for him to claim that his appearance is like that of a normal person and that he had never been bedridden, and had campaigned throughout the whole country. He referred to the affidavit of Major Rubaramira where he stated that although he has AID he goes about his business normally. Counsel submitted that this circumstantial evidence was not sufficient to prove falsity of the statement.

Dr. Byamugisha referred to the affidavit of Dr. Ssekasanvu where it stated that AIDS means Acquired Immune Syndrome which appeared on Judith Bitwire’s death certificate. He pointed out that according to Dr. Ssekasanvu, clinical diagnosis uses signs and symptoms. He submitted that Dr. Ssekasanvu did not carry out this clinical examination on the Petitioner nor did the Petitioner examine himself.

Learned counsel for the 1st Respondent argued further that theist Respondent based his opinion on his own presumptions, since the doctor concluded that a layman could hold that a person had AIDS because his spouse died of AIDS, his client, the 1st Respondent, has reasonable grounds to believe that the Petitioner had AIDS.

Dr. Byamugisha relied on the affidavit of Prof. Rwomusana who he referred to as an AIDS expert who has had medical and social experience of AIDS. Counsel referred to Prof. Rwomusana’s opinion that there was an established concept of community diagnosis of AIDS based on loss of partners and children, which the community uses to protect families by guarding against inheritance of spouses. Counsel submitted that research shows that ordinary people make presumptions based on skin changes. He argued that this evidence was the basis of his client’s honest belief that the Petitioner had AIDS. He contended that the Respondent was not required to prove that the Petitioner has AIDS, but that the 1st Respondent had reasonable grounds for believing that the Petitioner had AIDS. It was the Petitioner who had a duty to prove that he had no AIDS.

On the burden of proof, Dr. Byamugisha submitted that it lay on the Petitioner to prove falsity and he had failed to discharge the burden. As regards the question of promoting the 1st Respondent’s election, learned counsel submitted that the 1st Respondent was telling an American Paper, not promoting his election. Moreover, counsel argued, the Petitioner did say in the Monitor Newspaper that the publication would not affect him because the statement was the sign of a desperate man facing defeat. Furthermore Dr. Byamugisha concluded that the 1st Respondent was responding to allegations from the Petitioner that he was arrogant and had been in power for too long. Therefore the statement was not malicious because the Petitioner knows why it was made.
As regards the question whether the statement was made without reasonable grounds, Dr. Byamugisha referred to the 1st Respondent’s answer to the Petition and his affidavit in support and submitted that the 1 s respondent had reasonable grounds to believe the statement to be true because:
(i) he has known the Petitioner for a long time
(ii) the Petitioner’s wife died of AIDS
(iii) the Petitioner’s body appearance bears resemblance to other AIDS victims
(iv) Prof. Rwomusana supports the above manner of proving AIDS based on community perceptions.

Dr. Byamugisha referred to para.5 of the Petitioner’s affidavit where he states that voters were scared of voting for him. Counsel submitted that the Petitioner did not tell the Monitor Newspaper about this, nor did he adduce any evidence of a single voter who had refused to vote for him because of this statement. Learned counsel concluded that the Petitioner had failed to prove the ingredients of the offence.

It is trite law that the burden of proof lies on the Petitioner to prove all the ingredients of the illegal practice under Section 65 of the Act. In C.D. Field’s Law of Evidence (In India and Pakistan) 1 0th edn. VoI.V at page 4152, para. 87 it is stated,
 
“In Dr. Jagfit Singh v Glenn Singh, AIL 1966 Sc. 772, ft was held that the onus to prove the essential ingredients prescribed by Sub-section (4) of Sec. 123 of the Representation of the People Act is on him who alleges publication of false statements of fact. The election Petitioner has to prove that the impugned statement has been published by the Candidate or his Agent or if by any other person, with the consent of the candidate of his election agent. He has further to show that the impugned statement is false and that the candidate either believed that the statement to be false or did not believe ft to be true. It has further to prove inter alia that the statement was in relation to the personal character or conduct of the complaining candidate. Finally ft has to be shown that the publication was reasonably calculated to prejudice the prospects of the complaining candidate’s election. But though the onus is on the election Petitioner to show all these things, the main things that the election Petitioner to prove are that such publication was made of a statement of fact and that that statement is false and is with respect to the personal character of conduct of the Petitioner. So the main onus on the Petitioner is to show that a statement of fact was published by a candidate and also to show that the statement was false and related to his personal character or conduct. Once that is proved, the burden shifts to the candidate making the false statement of fact to show what his belief was.”

As far as the shifting of the burden of adducing evidence is concerned it is stated in Sarkar’s Law of Evidence Vol.2 14th edn. 1993 Reprint 1997 pages 1338-1340 as follows,
 
“It appears to me that there can be sufficient evidence to shift the onus from one side to the other if the evidence is sufficient prima facie to establish the case of the party on whom the onus lies. It is not merely a question of weighing feathers on one sides or the other, and saying that if there were two feathers on one side and one on the other that could be sufficient to shift the onus. What is meat is that in the first instance the party on whom the onus lies must prove his case sufficiently to justify a judgment in his favour if there is no other evidence Stoney v Eastbourne RD Council (19727) I ch. 367,397).”

The main elements of the illegal practice under Section 65 of the Act which must be proved are as follows:
(I) that a statement was published,
(ii) that the statement was false,
(iii) that the statement concerned illness, death or withdrawal of a candidate,
(iv) that the maker knew that the statement was false, or knew or believed it on reasonable ground to be true,
(v) that the statement was made for the purpose of election of another candidate.

I think it is common ground that the alleged statement was published and that it concerned the illness of the Petitioner. The highly contested question was whether the statement was false or whether the 1st Respondent knew that it was false or knew or believed it on reasonable grounds to be true. In other words, it is not sufficient to prove that the statement was false, it must also be proved that the maker knew that the statement was false or did not believe it to be true.
The first question to consider is whether the 1 Respondent made a false statement. A false statement has been defined in Black’s Law Dictionary, 6th edn. 1 990 at p.602 as follows:

“Statement knowingly false or made recklessly without honest belief in its truth and with the purpose to mislead or deceive.
An incorrect statement or acquiesced in with knowledge of incorrectness or with reckless indifference to actual facts and with no reasonable ground to believe it correct.”

In Halsburys Laws of England Vol.1 5 4 edn. Para. 705 page 540, it is stated that it is an illegal practice before or during an election for any person to make or publish any statement of fact in relation to the candidates personal character unless he can show that he had reasonable grounds for believing and did believe the statement to be true. The authors go on to state,
“It is irrelevant whether the statement has or has not been provoked by a statement of a similar character made on the part of an opponent.” Mommoth Boroughs Case (1901) 5 O’M & H 166 at 173.

The Petitioner adduced no independent or expert evidence to support his statement that he has no AIDS and that his looks are normal and was able to campaign throughout the whole country presumably like a healthy person. The affidavit of Major Rubaramira that he has AIDS but is able to carry out his normal duties and marital obligations and that one of his wives and child are HIV negative did not help much the Petitioner’s case. It only proved that one can have AIDS and enjoyed normal life and that one spouse can be positive and the other negative. Even the evidence of Dr. Ssekasanvu did not advance the Petitioner’s case. Instead, Dr. Ssekasanvu stated that it is contrary to Medical Ethics and Hippocratic Oath for a Medical Doctor to discuss or reveal the ailments of his or her patients to third parties whether dead or alive. It is not clear whether he had examined the Petitioner and was therefore claiming professional privilege.

We are therefore left with the evidence adduces by the 1st Respondent to substantiate his statement. Dr. Byamugisha summarised the evidence in his submissions. It was disputed that the 1st Respondent had closely known the Petitioner for a long time. It was not disputed that the Petitioner’s companion or wife Judith Bitwire and her child died. It is also common ground that she died of Advanced Immuno Suppression. The 1st Respondent also based his opinion on the appearance of the Petitioner, which had changed. The 1st Respondent based his opinion on all above facts to come to the conclusion that the Petitioner had AIDS.

The question is whether the opinion reached by the 1st Respondent was based on reasonable grounds. Would a reasonable, ordinary person who is not an expert on AIDS or health worker come to the same conclusion? Prof. Rwomusana has ably explained the concept of community diagnosis of AIDS based on loss of partners and children, which is used to protect families against inheritance of spouses after death of the husbands. He explained that ordinary people also make presumptions about AIDS based on skin changes. Signs are also listed by Dr. Ssekasanvu as diagnostic signs for AIDS.

The conclusion I make out of the above analysis is that the Petitioner has failed to establish to my satisfaction that the statement made by the 1 Respondent that the Petitioner had AIDS was false. In fact in this case there was no shifting of the burden of adducing evidence on the question of falsity or absence of reasonable grounds because the Petitioner did not establish a prima facie case on either of these ingredients.

Nevertheless the l Respondent adduced credible evidence to prove his grounds for holding that the statement he made that the Petitioner was not false, and that he knew or believed on reasonable grounds to be true. Having failed to prove these two crucial elements, the Petitioner has failed to prove that the 1st Respondent committed the alleged illegal practice under Section 65 of the Act. That being the case, it is not necessary to consider whether the statement was intended to promote or procure the election of the Respondent

Offering of Gifts:

It is alleged by the Petitioner in para 2 (b) of the Petition that contrary to Section 63 of the Act the Respondent and his agents, with the 1st Respondent’s knowledge and consent offered gifts to voters with the intention of inducing them to vote for him. This allegation does not seem to be supported by any averments in the affidavit in support of the Petition and would therefore be technically untenable.

However in reply to the Respondent’s affidavit in support of his Answer to the Petition, the Petitioner gave details of the alleged gifts offered by the 1st Respondent or his agents. In this affidavit the Petitioner stated that the 1st Respondent at a campaign meeting held at the International Conference Centre on Friday 26th January, 2001 to solicit support from Motor-cyclists (Boda-boda) the 1st Respondent gave a gift of a new Motor-cycle to one of the cyclists/voters by the name of Sam Kabugo in order to influence the Motor-cyclists/voters to vote for him. The gift giving ceremony by the Respondent was published both in The Sunday Monitor and Sunday Vision of 28th1 January 2001 copies of which he attached. Subsequently he personally heard the said Sam Kabugo on Central Broadcasting Corporation FM Radio urging his fellow Boda-boda cyclist to support the Respondent in his bid for the Presidency of Uganda.
In rebuttal, the Respondent adduced the evidence of Kabugo Sam aged 20 years old who admitted that he was given a motorcycle by the 1st Respondent but for the reason that he was his Campaign Agent. He stated that he was an ardent supporter of the Respondent. When the Respondent offered to stand for the elections he decided to mobilise support for him especially among his Bodaboda business colleagues. On 9 January 2001 while he was at Kololo Airstrip to witness the nomination of the 1st Respondent he was asked by Moses Byaruhanga to carry the 1st Respondent from one corner of the Airstrip to the podium as the crowd congestion could not allow easy passage of his motorcade. He accepted the request and carried it out.
After nomination he was appointed a Campaign Agent for the 1st Respondent and a copy of his letter of appointment was attached. Later he agreed with Byaruhanga that the Task Force for the 1st Respondent would give him a motorbike to facilitate his mobilisation. The motorbike was handed to him by the Respondent on 26 January 2001. His mobilisation and campaign included advertisement, which were broadcast over radio stations. He therefore denied that he was given a motorbike to influence him to vote for the 1st Respondent because he was already his supporter, mobilise and agent.
Section 63 (1) of the Act provides,
“Any candidate or agent of the candidate who either before or during an election gives or provides any money, gift or other consideration, to a voter with the intention of inducing the person to vote for him or her commits an illegal practice.”
This provision is intended to safeguard the integrity of the electoral process and promote fairness.
I accept the submission of Mr. Bitangaro that the Petitioner must prove the following ingredients to establish the illegal practice of offering gifts:
• That a gift was given to a voter.
• That the gift was given by a candidate or his agent.
• That the gift was given to induce the person to vote for the candidate.
Kabugo’s evidence has not been challenged and I accept it. I find that the motorcycle was not given to him with the intention of inducing him to vote for the 1st Respondent but to facilitate him as a Campaign mobiliser or agent. This action did not amount to offering a gift and therefore did not violate any principle of the Act.
The Petitioner alleged further that the Respondent with the intention of inducing persons to vote for him offered the following:
(a) Abolished Cost sharing in all Government Health Centres including those operated by Local Governments.
(b) Increased the salaries of Medical Workers in the middle of the budget year.
(c) Offered to increase pay to teachers and indeed made this offer in a meeting at the International Conference Centre with all the teachers in Kampala on 5th March, 2001.
(d) Hurriedly caused his Minister of Works and campaign agent Hon John Nasasira to publicly and out of the ordinary in full view of voters to sign contracts for the tarmackng and upgrading of roads using his position as the incumbent President to execute the said contracts and deliver on his promises to the people of the beneficiary districts:
(i) Busunju-Kiboga
(ii) Kiboga-Hoima
(iii) Arua-Pakwach
(iv) Ntungamo-Rukungiri and that the tarmacking and upgrading of these
roads was part of the 1st Respondent’s Campaign Manifesto.
(e)     
At a campaign meeting at Arua on 12 February 2001 the 1st Respondent offered a gift of money to voters who attended the Rally and a record of this rally was Video recorded - a copy of the recording was submitted as an exhibit.
The 1st Respondent denied the allegations in his answer to the Petition. He stated both in the Answer and the affidavit supporting it that neither himself nor his agents with his knowledge and consent or approval offered gifts to voters with the intention of inducing them to vote for him.
The Petitioner adduced no evidence to prove that the increase was directed at voters and intended to induce them to vote for the 1St Respondent. This alone would be sufficient to sustain a finding that such offer of gifts has not been established. However the 1st Respondent adduced evidence to prove that the measures were part of Government programmes decided much before the elections and had been incorporated in the National Budget and other national programmes. In his affidavit rebutting the allegations regarding abolition of cost-sharing in Government Health Centres, Dr. Crispus Kiyonga, the Minister of Health denied that Government abolished cost sharing in Government Health Centres with the intention of inducing persons to vote for the 1 St Respondent as alleged by the Petitioner. He explained that cost sharing had been introduced some years back to assist in filling the financial gaps in Health Sector Budget.
Under the Constitution, Primary Health Care is the responsibility of the Local Governments (Districts) but the Central Government can always come in to assist and finance directly where there is need by prioritising the sector. In 1997, the Government introduced the Primary Health Care Conditional Grants, under which the Government increased funding to the sector aimed at improving the health of the population particularly the poor of the poor. At the same time, there has been an on-going debate and no consensus in government as whether to abolish Cost Sharing or not because it was blocking the poor people’s access to health services.
The conditional grant has been increasing over the years whereby Shs.39 billion was budgeted for Primary Health Care in the Financial Year 2000/2001 compared to Shs. 12 billion of the previous year. Of the Shs.39 billion, one billion shillings was reserved for purchase of supplementary drugs. The Primary Health Care Conditions Grant was inter alia to cater for salaries and allowances of Health workers in peripheral health units which were previously supposed to be paid by Local Council Ills and the districts who have proved to have no capacity to sustain these payments.
In the month of October 2000, well before the campaigns, he addressed Donors to the Health Sector and informed them how the 1s Respondent was concerned that the poor could not meet the user charges which was denying them access to health services. By December 2000, the Central Government had disbursed half of the money budgeted for supplementary drugs in that Financial Year. By February of this year, all the health units were reasonably staffed or supplied with the drugs acquired using money from the conditional grant.
Therefore it was no longer justified to deny the poor health services due to inability to pay under the Cost Sharing policy. With or without elections the Government Agenda on cost sharing has already been set by the budget of the Financial Year 2000/2001. He concluded that it was therefore not correct to say that the 1st Respondent abolished Cost Sharing to induce voters in view of the Government Agenda.
The allegation relating to the increase of salaries for medical workers and teachers was answered by Hon. Benigna Mukiibi, who is the Minister of State for Public Service, currently holding the portfolio because the substantive Minister for Public Service is on leave. She stated that the scope of this portfolio extends to making proposals for the increase of adjustment and or regulation of salaries of public servants and emoluments of pensioners.
During the National Budget for the Financial Year 2000/2001 the Minister of Finance made provision for the implementation of recommendations in the Pay Strategy Report prepared by the Ministry of Public Service to address the plight of the middle rank professionals. A copy of the Budget speech read on 15th June 2000 as attached to the affidavit. On page 25 of the Official Budget speech under the sub-heading “IMPROVING THE PERFORMANCE OF THE PUBLIC SERVICE” the Minister of Finance outlined the budget for Public Service Reform. Pay and Pensions.
The modalities for the disbursement of these funds were worked out between our Ministry and the Ministry of Finance to allot these excess funds to increase the salaries for different categories of mid rank professionals. In January 2001, the Ministry of Public Service issued a press release relating to the increase of pay for Medical workers. A copy of the press release was attached to her affidavit.
The increment of salaries for medical workers and teachers was a result of funds designated in the Budget under the Public Service Pay Reform Program and was not done by the 1 s Respondent to induce voters alleged in paragraph 22 (b) and 22 (C) of the Petitioners affidavit in reply dated 5th April 2001.
There is no evidence to challenge the explanation given by Hon. Mukiibi that the increase of salaries had been planned and budgeted for before elections. The only complaint which can be raised was that the implementation of the programme was close to the campaign period. But there is no evidence to prove conclusively that it was done to induce voters to vote for the 1st Respondent.
Hon. John Nasasira, Minister of Works, Housing and Communications answered the allegations regarding signing of contracts for tarmacking and up-grading roads. He denied the allegation that he publicly and out of the ordinary course of his duties as Minister signed contracts for tarmacking and upgrading the roads mentioned by the Petitioner.
He explained that the contracts referred to by the Petitioner were not signed by him but by Charles Muganzi; the Permanent Secretary of the Ministry of Works, Housing and Communications and he attended the functions in his capacity as the responsible Minister. The said road contracts were part of the implementation of the Governments Ten Year Road Sector Development Program, which commenced in 1996. He attached a copy of the executive summary of the Governments Ten Year Road Sector Development Programme.
The Credit Agreement between the Government of Uganda and the World Bank for the financing of the implementation of the tarmacking and upgrading of the Busunju—Kiboga-Hoima and Arua-Pakwach was signed in November, 1999. A copy of the Credit Agreement was attached to the affidavit. The advertisement for short listing contractors for the tenders for the tarmacking of Busunju-Koboga; Kiboga-Hoima and Arua-Pakwach was issued in November, 1999. A copy of the said advertisement was attached. The letters inviting the short listed contractors for the tenders for the tarmacking and up-grading of the roads referred to above were issued in July 2000. Copies of the letters were also attached to his affidavit.
Hon. Nasasira denied that any agreement had been signed for the tarmacking and up grading of the Ntungamo-Rukungiri Road. He explained that the tarmacking and upgrading of the Ntungamo-Rukungiri Road was part of the Ten Year Road Sector Development Program and only the contract for tarmacking and upgrading the Ntungamo-Kagamba section had so far been signed as part of implementing this programme.
The signing of contracts for tarmacking and upgrading of roads under his Ministry had always been done publicly. He concluded that it was false to allege that the award and signing of the road contracts resulted from the 1st Respondent’s campaign manifesto or at all. I accept Hon. Nasasira’s evidence, which has not been challenged.
Another allegation of bribery made by the Petitioner was that on 12 February 2001, the 1st respondent offered money to voters at a rally in Arua. Counsel for the Petitioner tendered in Court a tape recording of the occasion. This evidence was inadmissible in absence of an affidavit explaining how the tape was recorded. There was no evidence that the people offered money were voters. The allegation was refuted by Moses Byaruhanga who stated that on the alleged day, the 1st Respondent was not in Arua but in Masindi. This allegation was therefore not proved.
As regards offering gifts by agents, Ssali Mukago a registered voter in Rubaale Trading Centre in Ntungamo District, claimed that on 9 March one Daudi Kahurutuka a campaign agent for the 1st Respondent came at around 8.00 p.m. and found him at All Mutebi’s Hotel and told him that he would give him any amount of money he wanted from the 1st Respondent’s Task force so that he could allow to steal the votes. He does not say what his response was. But he alleges that on the polling day at Rubaale Moslem Primary School Polling Station during the counting of votes, he saw ten ballot papers, which were folded together and ticked in favour of the 1st Respondent. When he complained to the Presiding Officer, he said it was allowed.
But David Kahurutuka a resident of Rubaale Trading Centre in Ntungamo District denied the allegations made by Ssali Mukago. He stated that he never met Ssali at Ali Mutebi’s Hotel on 9 March 2001 as falsely alleged. He never asked Ssali to mention any amount of money he wanted from the 1st Respondent’s Task Force. He said he was not a member of that Task Force but only the volunteer group and did not have any plans whatsoever to rig the election as alleged. He asserted that the Volunteer Group had sufficiently canvassed for votes for the 1st Respondent. He concluded that there was no bribery offered to Ssali or rigging of the election as alleged.
Gariyo Wellington who was in charge of overseeing the operation of Polling Agents for the Petitioner in Rubire Sub-county claimed that at around 11.00 am. He visited Kyanyazire Cell and saw Mwesigwa Rukutana loading people on a motor vehicle Reg. No. UAA 006A Nissan pick-up and he was giving Shs. 5,000/ = to every person who was boarding and instructing them to vote for the 1st Respondent. He mentions no date but it may be assumed to be polling day. He does not indicate where the people boarding were going or being taken. Not even one person who was given money is mentioned.
Mwesigwa Rukutana who is a Member of Parliament for Rushenyi County in Ntungamo District stated that he was not an Agent of the 1st Respondent during the Presidential Elections. He denied the allegations made by Gariyo that he was at Kyanyanzira village loading people on pick-up Reg. No.UAA 006 A and giving Shs.5,000/= to every person who boarded it. He stated that on that day he never stepped in the said village, nor did he load anybody on the alleged vehicle or give any money to anybody. He further states that on polling day he cast his vote at Ruyonza Polling Station at around 7.00 a.m. after which he proceed to Omugyenyi where he found Bob Kabonero with whom he moved around his constituency in his vehicle Prado Reg. No. UAA 915 S which was being driven by Richard Asingwire. During his movements he never went to Kyanyanzira Village or Rwaharamira Polling Station.
Bob Kabonero a voter at Omugyenyi Polling Station in Rushenyi Ntungamo District refuted the allegations made by Gariyo Wellington. He stated that he voted at Omugyenyi Polling Station shortly after 7.00 a.m. During the Presidential Elections he was neither appointed nor did he act as a campaign agent for the 1st Respondent. After casting his vote he spent the rest of the day driving around Rushenyi and other parts of Ntungamo in the company of Hon. Mwesigwa Rukutana. He stated that he did not see Hon Mwesigwa Rukutana offering Shs.5,000/= or any sums of money to voters as alleged by Gariyo. Moses Byaruhanga who was the Secretary of the National Task Force (NTF) of the Respondent denied that Mwesigwa Rukutana was either a campaign agent or a polling agent for the 1st Respondent.
Mugizi Frank who was a Polling Agent for the Petitioner for Rubanya Polling Stations in Ntungamo District, claimed that at the Polling Station he witnessed massive rigging whereby people were allowed to vote more than once and when he protested the 1st Respondent’s supporter namely Simon, Twahirwa Sura, Kanyagira Simon and Kakyota Muyambi threatened to assault him and chased him from the Polling Station. After leaving the Polling Station one All Mutebi a Campaign Agent of the 1st Respondent offered him Shs.15,000/= to go back and sign the Declaration of Results Form and not to report the malpractices but he refused to accept the money or to sign the forms.
Omalla Ram who was the co-ordinator of Eastern Region veterans for the Petitioner claimed that on 12 March 2001 while he was monitoring the voting process he received a report from Opio Kalamira that in Pyuwo Polling Station, Councillor Onyango Wilbroad had given his father Odomi money to give to people to vote for the 1st Respondent. He drove to Payawo Trading centre near the Polling Station where he found Onyango’s father was with many people and he denied the allegation. When he contacted other people they denied that Odomi had been given money by Onyango his son. This evidence is not only hearsay but adverse to the Petitioner’s case. It was a false allegation of bribery.
Drabbo Joseph a mobiliser for the Petitioner in Adumi Sub-county, Ayivu County, Arua District claimed that on the polling day he saw the LC I Chairman of Ndru Sub-parish called Godfrey Asea telling people to vote for the 1st Respondent riding on motorcycle. He saw the said Asea giving out unspecified amounts of money to one Odipio Inyasio at Lea Polling Station with directives that the same be given to all women so that they voted for the 1st Respondent. He reported the matter to the Police Constable but the suspect was not apprehended. There is no proof that Asea was an agent of the 1st Respondent and that the 1st Respondent knew and consented or approved his actions. Therefore the allegations of offering gifts by the 1stRespondent or his agents have not been proved.
Threat to Cause Death to the Petitioner:
In para 2 (a) of the Petition, the Petitioner complains that the 1st Respondent threatened that he would put the Petitioner six feet deep - which meant causing death to the Petitioner when he was in the public interest, pointing out grievances on mismanagement in the UPDF and this had the effect of scaring voters to vote for the 1st Respondent to guarantee their own safety.
The 1st Respondent denied the allegation. He stated that prior to the electoral process he had in his capacity as President and Commander-in-Chief warned that any person who interferes with the army would be put six feet deep. He stated further that he made the statement on the 27 November 2000 at the National Conference of the Movement and that he made the statement for the security, good governance and order of the country to deter subversion in the army.
In his affidavit in reply to the Petition, the 1st Respondent denied uttering the threat against the Petitioner. He explained that he made this statement at the National Conference of the Movement on 27 November 2000 and he made for the security good governance and order of the country and to deter subversion in the army. He did not make the statement for purposes alleged in the Petition.
It is not clear under what provision of the law the complaint is based. It seems however that the Petitioner is alleging intimidation of his voters by the 1st Respondent’s threat. The threat is admitted by the 1st Respondent, but not the motive or effect as alleged by the Petitioner.
The Petitioner adduced no evidence to support the allegation that the statement was made in reference to himself as a candidate or to scare his supporters, or that any of his supporters were indeed scared or voted for the 1st Respondent. The statement was made in November 2000 before nomination of candidates and the 1st Respondent has explained the purpose of making statement. I find that the Petitioner has failed to prove to my satisfaction that the 1st Respondent committed an illegal practice or offence by making the alleged statement.
Deployment of Partisan Army During Elections:
The Petitioner complains in para 3 (2) (c) of the Petition that contrary to Section 12 (1) (e) and (f) of the Electoral Commission Act, the 1st Respondent appointed Major General Jeje Odongo and other partisan Senior Military Officers to take charge of the Presidential Election process and thereafter a partisan section of the army was deployed all over the country with the result that very many voters either voted for the 1st Respondent under coercion and fear or abstained from voting altogether.
The 1st Respondent states in his affidavit in reply that the deployment of security forces was done by the Government for the purpose of securing law and order throughout the country. He did not appoint any military officers to take charge of the security of the Presidential Election process as alleged in the Petition. He knows that Government deployed security forces throughout the country for security preservation of law and order.
In his affidavit in answer to the Petition, the 1st Respondent denied knowledge of the allegations contained in para 3 (1) of the Petition except the arrest and charging in court of Hajati Miiro. He stated that he was not present at the times and places where they were alleged to have occurred and did not witness them.
He stated that he instructed his campaign agents to mobilise for his election on the basis of his election manifesto entitled “Consolidating the Achievements of the Movement” only and he had no knowledge of their having acted contrary to law, conduct which he did not consent to or approve of on the part of any person.
He further states that because the Police were inadequate and the security situation so required the government decided to and did deploy, security forces throughout the country to keep peace and order but he had no personal knowledge of nor did he in his capacity as President of the Republic of Uganda, receive any reports of intimidation of voters by soldiers and para-military personnel at Polling Stations. He asserted that the elections were conducted under conditions of freedom and fairness and under secure conditions as a result of sufficient deployment of security forces throughout the country by the Government.
On the allegation of general deployment of the Army during the campaign period, Mr. Walubiri learned counsel for the Petitioner submitted that the 1st Respondent did not deny deployment of the Army but claimed that the electoral process was conducted under conditions of freedom and fairness and explains the need for deployment. Mr. Walubiri refers to the affidavits of Major General Jeje Odongo and Mr. John Kisembo, who supported the 1st Respondent’s reason for deployment namely that it was necessary in order to supplement the Police to curb electoral violence, which was on the increase.
Learned counsel for the Petitioner argued that the Army did not provide security, but it was a cause of insecurity as the evidence on record showed that it was torturing people or making it impossible for the Petitioner to campaign. Counsel then referred to the various affidavits, which gave evidence of harassment by the military, including the affidavits of Kimunyu in Kamuli, Baguma in Kasese, Kijumba in Kasese, Ssemambo in Mbarara, Busingye, Masasiro in Mbale and Twihirwa in Kabale.
Dealing with what he called the legal angle, Mr. Walubiri submitted that the deployment of the army in previous instances like the currency reform, the Local Government elections and the Presidential and Parliamentary election was all illegal. He concluded that there was no provision allowing deployment of the Army in the Currency Reform Statutes or in later Statutes dealing with the elections. He submitted that the role of the UPDF is set out in article 209 and has nothing to do with internal policing which is the mandate of the Police under article 112.
Learned counsel for the Petitioner further argued that under section 41 of the Act, the Police are required to provide security, but if there was no police then the presiding officer would appoint anybody present to act as an election constable, only in restricted circumstances, where there was actual or threat to public order. Since there was no state of emergency, Mr. Walubiri submitted the deployment was unconstitutional and illegal, and constituted an offence under s.15 (b) and (c) of the Act. He further contended that the deployment of the Army and PPU was with the consent of the Respondent, which occasioned intimidation of many people including Major Okwir.
Mr. Walubiri further contended that a candidate is liable for the actions of the agent done within the scope of his employment even where the agent was strictly prohibited from undertaking the particular action. He referred us to The News Digest of English Case Law 2nd ed. 1924, and Digest: Annotated British Commonwealth and European cases 1982 (Butterworth’s para. 646 P. 72) where the concept of implied consent is discussed.
Dr. Byamugisha learned lead counsel for the 1st Respondent submitted that Section 12 (1) of the Commission Act requires the 2nd Respondent to take measures for ensuring that the entire electoral process in conducted under conditions of freedom and fairness. Learned counsel referred to the affidavits of Major General Jeje Odongo explaining why the UPDF got involved in maintaining security after Police had requested for augmentation. The reason was to take charge of security as it had been done on previous occasions. The evidence of Major General Jeje Odongo was corroborated by the Mr. John Kisembo, Inspector General of Police.
Dr. Byamugisha also referred to the evidence that the Commission had written to the candidates informing them how he had contacted the Police and other security agencies to provide security during the entire campaign period. The Chairman of the Commission stated that the security situation had improved after the Joint Security Force had been constituted. Learned counsel concluded that the deployment of the UPDF was therefore not illegal. Secondly, the deployment was not used for an illegal purpose to persuade voters to vote for the 1st Respondent.
As regards the abduction or arrest of Major Okwir, Dr. Byamugisha submitted that the circumstances of his arrest are explained by Lt. Col. Mayombo and his evidence is supported by that of Maj. Gen. David Tinyefuza. Dr. Byamugisha submitted that it is not true that Major Okwir was arrested to remove him from the Petitioner’s group but to save his life from the Petitioner’s group who wanted to deal with him for spying on them.
Dr. Byamugisha further contended that there was no evidence adduced to prove that a partisan army was deployed over the whole country, which harassed and coerced voters. He also submitted that there was no evidence of how many voters abstained from voting due to coercion and fear. He argued that the provision of Section 3 (2) (c) and 12 (1) (a) and (f) of the Commission Act do not constitute an offence but are obligations of the Commission.
On the question of agency, Dr. Byamugisha submitted that the Petitioner went beyond the requirements of the Act by adding officers attached to his office as President since these officers cease to be his agents under the Act. He submitted that the President is not a candidate in his capacity as Chairman of the Movement or Commander-in-Chief of Uganda Armed Forces.
The first point to consider is whether the general deployment of the army was unconstitutional and illegal as submitted by learned counsel for the Petitioner. The Uganda Peoples Defence forces (UPDF) as a state agency is established by article 208 of the Constitution. Clause 3 (2) and (3) of article 208 provide,
“(2) The Uganda Peoples Defence Forces shall be non-partisan, national in character, patriotic, professional, disciplined, productive and subordinate to the civilian authority as established by the Constitution.
(3) Members of the Uganda Peoples Defence Forces shall be citizens of Uganda of good character.”
The Constitution sets out the functions of the UPDF in article 209 which, states,
“209. The functions of the Uganda Peoples Defence Forces are
(a) to preserve and defend the sovereignty and territorial integrity of Uganda;
(b) to co-operate with the civilian authority in emergency situations and cases of natural disasters;
(c) to foster harmony and understanding between Defence Forces and civilians; and
(d) to engage in productive activities for the development of Uganda.”

It seems to me that the purpose of the above provisions was to create a national rather than a partisan or personal Army. There was no evidence that there is a partisan section in the army or that the army, which was generally deployed, was partisan. There was no evidence of appointment of partisan commanders. Maj. Gen. Jeje Odongo was already the Commander of the Army when appointed to take charge of security.

The second objective appears to me to be to create a professional and disciplined army, which would respect the rights of the people. It was mandated to foster harmony and understanding between the army and the public. It was intended to create good civil-military relations and to promote a pro-people army as its name suggests.

The third goal appears to establish an army which though primarily responsible for the defence of Uganda, would co-operate with other security agencies in emergency situations and natural disasters. Other security agencies here include the Police. It was submitted that the army could only come to assist the Police in a state of emergency. I am not persuaded by this argument since the provision does not refer to a state of emergency, but emergency situations, which may involve security.

The fourth objective was to establish a productive army, which contributed to the development of Uganda especially in times of peace. I have attempted to explain the constitutional character and role of the UPDF because it is important for understanding the role it played in these elections.

It is not in dispute that the UPDF was requested by the Police to assist with the maintenance of security during the elections including the campaign period. The reasons for this request have been adequately indicated in the affidavits of the 1st Respondent, the Commander of the UPDF, the Inspector General of Police and Chairman of the 2 Respondent. It is well established that the maintenance of internal security is the primary function of the Police. Article 212 provides for the functions of the Uganda Police Forces to include:
“(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.”
It was under article 21 2 (d) that the Police requested the Army to assist them in maintaining security throughout the country. In my judgment it was not unconstitutional or illegal to deploy the UPDF to assist in maintaining security to ensure that the elections were conducted under conditions of freedom and fairness. Whether the Army exceeded its mandate or engaged in activities incompatible with its role during elections is another matter.

In Liversege v Anderson (1942) AC 206 Lord Macmillan stated at page 253,

“As Lord Park said in the Zamora (1916) 2 A.C. 77,107 those who are responsible for the national security must be the sole judges of what the national security requires. It would be obviously undesirable that such matter should be made the subject of evidence in a court of law or otherwise discussed in public.”

The evidence as a whole does not indicate that intimidation was caused by the general deployment of the Army. Intimidation was restricted to some areas where the soldiers would probably have been even if there was no general deployment. Places near barracks were a case in point. Another case is the PPU, which was deployed in Rukungiri for a specific purpose.
As regards the question of agency, I am of the view that the general principles of agency do not apply. Therefore English decisions and the case of Muwonge v Attorney General (1967) EA 17 are not applicable.

In view of the strict provisions of Section 65 (c) it must be proved that the illegal practices were committed by the agent with his knowledge and consent or approval. There was no express evidence that the 1st Respondent knew and consented or approved the acts of violence or intimidation, which were perpetuated by members of the UPDF. Reliance was placed on the letter written to the 1st Respondent requesting him to take action to save the electoral process from being derailed. There was no evidence that the 1st Respondent received the letter or consented or approved those actions. He expressly denied knowledge of them or their approval. The burden was on the Petitioner to prove this essential element in the illegal practice alleged. It would be dangerous to imply authorisation by the 1st Respondent merely because the soldiers belonged to the UPDF of which he is the Commander-in-chief. The purpose of the law would not be achieved by such an interpretation. A reasonable degree of guilty knowledge is required under the section.

In my judgement, the Petitioner failed to prove to my satisfaction that the 1st Respondent knew and consented or approved the illegal practices committed by members of the UPDF.

Deployment of PPU and Major Kakooza Mutale’s Kalangala Action Plan
Para-military Force:

In para 3 (2) (d) of the Petition, the Petitioner alleges that contrary to Section 25 (b) of the Act, the 1st Respondent organised groups under the Presidential Protection Unit and his Senior Presidential Adviser one Major Kakooza Mutale with his Kalangala Action Plan Para-military personnel to use force and violence against persons suspected of not supporting the 1st Respondent thereby accusing a breach of the peace, disharmony and disturbance of public tranquility and induce others to vote against their conscience in order to gain unfair advantage for the 1st Respondent during the Presidential Elections.

In his affidavit in support of his answer to the Petition, the 1st Respondent stated that he did not directly or indirectly organise groups of persons under the PPU or Major Kakooza Mutale with his Kalangala Action Plan personnel and whatever such persons are stated to have done by the Petitioner was without his knowledge and consent or approval.

Section 25 (b) of the Act states,

“Any person who before or during an election for the purposes of effecting or preventing the election of a candidate either directly or indirectly
(b) organises a group of persons with the intention of training the group in the use of force violence, abusive, insulting, corrupting or vituperative songs or language calculated to malign, disparage, condemn, insult or abuse another person or candidate or with a view to causing disharmony or a breach of the peace or disturb public tranquility so as to gain unfair advantage in the election over that other candidate;
Commits an offence and is liable on conviction to a fine not exceeding eighty currency points or imprisonment not exceeding one year or both.”

This provision prohibits the establishment of special group of people with the intention of training them to interfere with the peaceful organisation of free and fair elections and to intimidate other candidates and supporters in order to gain unfair advantage over the candidate.
There is no evidence that the PPU was established or organised with the intention of training it to interfere with the elections. The evidence on record is that the PPU is a standing facility for the protection of the security of the President of Uganda. Although there was evidence that it was deployed in Rukungiri District; there is no evidence of special training to carry out the activities prohibited in Section 25 (b) of the Act. Whatever activities or electoral offences they were engaged in, there is no evidence that the 1st Respondent personally organised or mandated them to do so. It is therefore not possible to conclude that those provisions of the Act or principles behind them were violated by the PPU.

As regards the allegations against Major Kakooza Mutale and his Kalangala Plan of action, the Petitioner adduced no evidence of their activities, and how they violated the provisions of Section 25 (b) of the Act. In the absence of that evidence it is not possible to understand what principles of the Act were violated. On the contrary Major Kakooza Mutale has given a reasonable and uncontroverted explanation of the origin, composition, purpose and activities of the Action Plan. It does not contain those prohibited acts mentioned in Section 25 (b) of the Act.

In his submissions, Dr. Byamugisha referred to the affidavit of Capt. Ndahura who was the Commandeer of the PPU in Rukungiri who explained why he was sent to prepare and secure the areas for the visit of the 1st Respondent on 16 January 2001. Capt. Ndahura whose evidence has been earlier reviewed denied that the PPU was involved in acts of violence and intimidation. He also denied sending soldiers to Polling Stations and stated that they were permanently camped at State Lodge in Rukungiri.

Learned lead counsel for the 1st Respondent argued that the 1st Respondent’s witnesses had exonerated the 1st Respondent, and he was not personally involved in the acts of terror and violence. He submitted that the PPU are agents of the State not of the President and does not pay them. He contended further that the PPU is in each area where there is a State Lodge, and the President does not deploy PPU, but that is done by the UPDF. He submitted that the 1st Respondent was a Presidential Candidate and therefore the case of Muwonge v Attorney General (1967) E.A. 17 does not apply.

I have already held that the PPU were involved in acts of intimidation in Rukungiri. It is not necessary for me to decide whether their continued stay in Rukungiri was necessary or desirable. The reason given for their continued stay was to prepare for the return of the 1st Respondent probably for campaign. The 1st Respondent was entitled under the Act to retain his security facilities as Head of State. On this basis it cannot be said that the deployment of PPU in Rukungiri was illegal.

The PPU exceeded their powers by engaging in of intimidation and harassment of the Petitioner’s Agents and supporters. The question is whether the 1st Respondent is responsible for their actions. There was no evidence adduced to prove that the 1st Respondent knew and consented to those actions or approved them. It may be said that as Head of State, who is guarded by the PPU, he ought to have known what the PPU was doing in Rukungiri. That may be a good moral judgment or expectation but is not evidence or tact. The 1st Respondent was also a candidate who was busy campaigning throughout the country. There was no evidence that he was responsible for deployment of the PPU. Therefore it cannot be assumed that he knew a consented to their actions. The Petitioner failed to discharge the burden of proof to my satisfaction on this allegation.

Issue No. 5: Reliefs to the Parties:

Issue No.5 was what reliefs are available to the parties? In the Petition the Petitioner prayed for the following reliefs:

“4. Therefore your Petitioner prays that this Honourable Court declares:
                 (a) That Museveni Yoweri Kaguta was not validly elected as President.
                 (b) That the election be annulled
5. The Petitioner prays for costs of this petition.”

In view of my findings on Issue No.3 and No.4 that the Petitioner had failed to satisfy me that the non-compliance with the provisions and principles of the Act affected the results of the election in a substantial manner and that the 1st Respondent committed any illegal practice or offence, I held that the Petition be dismissed. Consequently the reliefs prayed for in para (a) and (b) were refused.

On the question of costs Dr. Byamugisha learned lead counsel for the 1st Respondent submitted that the 1st Respondent be awarded costs of the petition since the petition had been dismissed. He contended that under Section 27 of the Civil Procedure Act, which governs the award of costs, costs of any action should follow the event unless the Court, for good reasons, orders otherwise. In this petition the costs should follow the event of dismissing the petition by awarding the successful party his costs. It was his submission that a person coming to court should weigh the consequences of his action to stop frivolous petitions.

Mr. Deus Byamugisha learned counsel for the 2nd Respondent agreed with the submission of Dr. Byamugisha that costs normally follow the event and therefore since the Petition was dismissed, the Petitioner should pay the costs of the litigation. He asked for a certificate of two advocates.

On the other hand Mr. Balikuddembe learned lead counsel for the Petitioner contended this was a historic and unprecedented case, brought by the Petitioner as an aggrieved party in the interest of Uganda, for the development of electoral law. He argued that the Petitioner had succeeded on some of the issues framed touching on the non-compliance with the provisions of the law. It would be unfair, he contended, to reward the 2nd Respondent for failure to comply with the law. He argued further that litigants should be allowed access to courts when aggrieved. He concluded that the petition was in public interest. He submitted that the 1st Respondent should be responsible for the intimidation which occurred, which forced the Petitioner to appear before this Court. He therefore prayed that each party bears its own costs.

It is well settled that costs follow the event unless the court orders otherwise for good reason. The discretion accorded to the court to deny a successful party costs of litigation must be exercised judicially and or good cause. Costs are an indemnity to compensate the successful litigant the expenses incurred during the litigation. Costs are not intended to be punitive but a successful litigant may be deprived of his costs only exceptional circumstances. See Wambugu vs. Public Service Commission (1972) E.A. 296.

In awarding costs, the courts must balance the principle that justice must take its course by compensating the successful litigant against the principle of not discouraging poor litigants from accessing justice through award of exorbitant costs.

In the present petition, I am of the considered opinion that the interests of justice require that the Court exercises its discretion not to award the costs to the Respondents. I agree with Mr. Balikuddembe that this was a historic and unprecedented case in which a presidential candidate who is a serving President was taken to court to challenge his election. The petition raises important legal issues which are crucial to the political and constitutional development of the country. In a sense, it can be looked at as a public interest litigation. It promotes the culture of peaceful resolution of disputes. The petition was not frivolous or vexations as the Petitioner succeed on issue No.1 and No.2. the petition was therefore of great public importance in the history of Uganda.

In several cases of significant political and constitutional nature, this Court has ordered each party to bear its own costs. This was done in the case of Prince J D C Mpuga Rukidi v Prince Solomon Iguru and Others. C.A. 18/94 (SC) where the right of the King of Bunyoro to succeed to the throne was unsuccessfully challenged. In the case of Attorney General V Major Gen. David Tinyefuza, Const. App. No.1 of 1997 (SC) the party agreed that each party bears their own costs. The position appears to be the same in India: see Charan Lal Sahu and Others v Singh (1985) LRC Const.31.

In Prince Mpuga Rukidi v Prince Salomon Iguru (supra) I said,
“In this case the learned fudge applied the general rule in exercising his discretion in favour of the successful party, the respondents. He did not consider the special nature of the case and the relationship between the parties before he came to his decision on costs. This was an important case, which settled the question of succession to the throne of Bunyoro-Kitara and therefore paved the way to the restoration of the institution of Traditional Ruler in Bunyoro-Kitara Kingdom. It was a matter of great public importance. The fact that the question has been settled also means that there is need for reconciliation among the contestants for the well being of the Kingdom. In those circumstances I agree that each party should bear its own costs here and in the court below.”

What I said in the Iguru Case applies with equal force to this Petition.

Accordingly, it was my view that each party should bear the costs of litigation in this petition.
For the above reasons, I dismissed the Petition and ordered that each party bears its own costs.

 

B. J. ODOKI
CHIEF JUSTICE
 

 
 


 



 
REASONS FOR JUDGMENT OF ODER - JSC
On 21-04-2001, by majority decision, the Court dismissed the petition and declared that the 1st Respondent had been validly elected President of the Republic of Uganda in the Presidential Election held on 12-03-2001. Reasons for the judgment were reserved to be given on a later date. The Court was unanimous about costs. It ordered that each party should bear its own costs, again reserving its reasons for doing so.
My own decision, however, was that the Petition should succeed, and that the election of the 1st Respondent on 12-03-2001 as President of the Republic of Uganda should be nullified, under article 104(6) of the Constitution.
I now give my reasons for doing so.
On 12-3-2001, the Electoral Commission (2nd respondent) held a Presidential Election in Uganda. The election was held under the provisions of the 1995 Constitution, the Presidential Election Act, 2000 (the Act), the Electoral Commission Act 1997 (Act 3/97), and the Presidential Election (Election Petition) Rules, 2001 (the Rules).
Six candidates contested the election. The result of the election as declared on 14-3-2001, was as follows:
(i) Awori Aggrey, 103,915, percentage of votes cast - 1.4%
(ii) Besigye Kizza, 2,055,795                     - 27.8%
(iii) Bwengye Francis, 22,751                     - 0.3%
(iv) Karuhanga Chapa, 10,080                       - 0.1%
(v) Kibirige Mayanja Muhammad, 73,790             - 1 .0%
(vi) Museveni Yoweri Kaguta, 5,123,360,                   - 69.3%

Article 103(4) of the Constitution and section 56(4) of the Act both provide that a candidate shall not be declared elected as president unless the number of votes cast in favour of that candidate of the presidential election is more than fifty percent of valid votes cast at the election.

Museveni Yoweri Kaguta, (1st Respondent) was consequently declared the winner of the election, and, therefore, the elected President of Uganda.

The total number of valid votes cast were 7,576,144, amounting to 70.3% of the number of registered voters.

Col. (Retired) Dr. Besigye Kizza (the Petitioner), the runner-up did not accept the result of the election. He therefore, challenged it by filing this petition under article 104 of the Constitution and section 58(1) of the Act. The former provides that any aggrieved candidate may petition the Supreme Court for an order that a candidate declared by the Electoral Commission elected president was not validly elected. The same provisions are repeated in section 58(1) of the Act.

In accordance with the provisions of rule 4 of the Rules, the petition contains a list of the grounds on which it is based. They are set out in numbered paragraphs: The list is a long one. The grounds of the petition are so numerous that I shall not set out all of them early in this judgment. They will be set out as I consider them.

As required by law, the petition concludes with a prayer in paragraph 4 as follows:

4. Therefore your petitioner prays that this Honourable Court declares:
(a) That Museve
ni Yoweri Kaguta was not validly elected as President.
(b) That the election be annulled.
5. The petitioners prays for the costs of this election.”

Again, as required by law, the Petition is accompanied by an affidavit deponed to by the Petitioner together .with other documents and other affidavits on which the petitioner intended to rely.
Before considering the grounds of the petition I would like to deal with two important matters which are relevant to the petition throughout. Counsels for all three parties have made submissions on them.

Evidence By Affidavit

Subject to two exceptions it is mandatory under rule 14 of the Rules, that all evidence at the trial, in favour of or against the petition, should be by way of affidavit read in open court. One exception is that, with leave of the court, a person swearing an affidavit which is before the court may be cross-examined by the opposite party and be re-examined by the party on whose behalf the affidavit is sworn. The other is that the court may, of its own motion, examine a witness if the court is of the opinion that the witness is likely to assist the court to arrive at a just decision.

In the instant case only one of the 1st Respondent’s witnesses was cross-examined by the petitioner’s counsel, with leave of the court, and re-examined by the 1st Respondent’s counsel. This was Dr. Diana Atwine. Save for that exception air the evidence in support or against the petition was by affidavit. The parties referred to their respective affidavits as they made submissions. The affidavits were not all read at the beginning of the hearing. This followed a ruling by the court that all the affidavits should be deemed to have been read. Altogether, the Petitioner filed 174 affidavits, both in support of the Petition and in reply to the affidavits of the 1st or 2nd Respondents, who in turn filed respectively 133 and 88 affidavits, a total of 395 affidavits.

The affidavit evidence filed in the Court by all parties to the petition is, therefore, too massive for all to be evaluated within the time available to me.

Many of the affidavits from the Petitioner’s witnesses are rebutted by witnesses of the 1st and 2nd Respondents, but some are not. In a case where proof depends entirely on evidence by affidavit such as the instant Petition, it is absolutely essential to file an affidavit in rebuttal as it would assist the court in evaluation of evidence in order to decide which of two or more conflicting versions of events are credible or not credible, if the Court is to avoid the presumption that evidence not rebutted is deemed to be admitted. Many affidavits of the Petitioner’s witnesses were indicated by the Respondent’s Counsel as rebutted but it was not possible for me to trace all the rebuttal affidavits. I certainly had no time to flip through the many volumes of affidavits, without assistance from the parties, to trace some affidavits. The Petitioner’s counsel provided a list of deponents of affidavits under categories of topics contained in the grounds of the Petition.

The requirement for evidence by affidavit in this kind of case is understandable. It is to expedite the proceedings. Time has to be saved in view of the Constitutional requirement that judgment in the Petition must be rendered within 30 days from the time the Petition is filed in Court. However it has serious draw backs. The main one is that the veracity of all the witnesses who deponed to the affidavits cannot be tested by examination by the court or cross-examination by the opposite party as provided for in the exceptions or by any other way. If all the deponents were subjected to examination, or cross-examination, as the case may be, a Petition such as this one would never be completed within 30 days. This, therefore, calls into question, in my view, the wisdom of dependence entirely on affidavit evidence in an inquiry such as the present. It may also encourage involvement of far too many witnesses than would be the case in trial by oral evidence.

Another general observation I wish to make at this stage about the affidavit evidence in this case is that the deponents of nearly all the affidavits could not be described as independent because they were supporters of one party or another. The election was hotly contested. The necessity that the side of a deponent of an affidavit should win must have been a high motivation for testifying the way he or she did. There were, indeed, some apparently independent witnesses. These were few. The vast majority of witnesses may be described as partisan, because they supported the side for which they swore the affidavits. In this case, as nearly in all litigations in our jurisdiction, where the adversarial system of litigation is the norm, a person normally gives evidence favourable to the party which has called him or her as a witness and according to what is within the knowledge of the witness. His or her evidence may be honest and truthful but it is given to enable the party calling the witness to win in the dispute. A witness called by his or her employer or boss in an office, department or organization is far less likely to be an independent witness than the one not in a similar position. The witness has to protect his or her office. Similarly there is no way a witness who is alleged to have committed a criminal offence or malpractice in an official or personal position is going to own up such an accusation.

This kind of behaviour applies to all human beings. Accusations of wrong doing or criminal conduct are normally vehemently denied by the person accused unless there is absolutely no choice for not doing so. It becomes a question of evidence given in self-serving interest. This is common knowledge for which proof is unnecessary. It is on that basis that I shall consider the credibility or otherwise of the deponents of the affidavits in this case on individual basis.

The 1st Respondent’s counsel, Mr. Didas Nkuruziza, criticized the affidavits filed in support of the petition on the grounds that they are bad in law and are insufficient for the purpose of proof required of affidavits. He said that the affidavits fall into three categories. In the first category are those which are in breach of specific provisions of the law. Those ones should be struck out. An example is the affidavit of Major (Rtd.) Okwir Rabwoni, M.R because, it offends the provisions of section 7(3) of Statutory Declaration Act, 2000, under which a statutory declaration deponed outside Uganda is inadmissible in evidence unless it is registered with the Registrar of Documents under the Registration of Documents Act. The learned counsel also contended that the affidavits of certain witnesses for the Petitioner are in breach of the proviso to section 5(1) of the Commissioners for Oaths (Advocate) Act. The proviso prohibits a Commissioner for Oaths exercising the powers given under the Act from acting as such in any proceedings or matter in which he or she is advocate for any of the parties to the proceedings or concerned in the matter. Learned Counsel submitted that where a Commissioner for Oaths contravenes the proviso to section 5(1) the document for which he purports to administer the oath is invalid as an affidavit. Learned Counsel contended that ii affidavits of the Petitioner’s witnesses were in this category. This is because the oaths were administered by advocates, Wycliffe Birungi and Kiyemba Mutate, both of whom had been introduced by the Petitioner’s lead counsel at the commencement of the hearing of the Petition as members of the Petitioner’s team of Lawyers.

The affidavits in question are those of John Livingston Okello Okello, M.R, Mugulula Joseph, and Edith Byanyima, all commissioned by Wycliffe Birungi. As were the affidavits of Dr. Ssekasanvu Emmanuel, Mukasa David Buloge, David Frank Mukunzi, Henry Muhwezi and Major Rubaramira Ruranga. The affidavit of Luwemba Godfrey was commissioned by Kiyemba Mutate. Learned counsel contended that by reason of the breach of section 5(1) these are not affidavits, and ought to be struck out.

Learned counsel submitted that the Petitioner’s affidavits also contravened 0.17 r. 3(1) of the Civil Procedure Rules, which states that affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted, provided that grounds thereof are stated. The affidavits under consideration were filed in support of final proceedings not in an interlocutory application. Learned Counsel submitted, therefore, that, any affidavit not confined to facts which the deponent can prove from his own knowledge is in breach of Rule 3(1), Order 17. The Court should not rely on them. The affidavits should be rejected in their entirety.

The learned counsel cited certain authority’s in support of his submission, namely: Constitutional Petition No. 3/99 P K. Ssemogerere and Z. Olum (unreported); Charles Mubiru vs Attorney General C.C.U. (unreported).

Learned counsel also submitted that an affidavit in breach of 0.17, r.3 is not severable. He referred to: Aristella Kabwinuka vs. John Kasigwa [1978] HLB 251 and Sirazali Goulamali Merali others HCQS No. 12/95 (unreported). In the latter case, Ntabgoba, PJ, said at page 8 of the judgment:
 
“The plaintiff should have disclosed those reliable sources from which he learned the information, especially which refers to in paragraph 7 and 9.
I should state that it does not matter whether some parts of an affidavit are in order while other parts are defective. The defective ones cannot be separated from the proper ones so as to render part of the affidavit acceptable. A defective portion of an affidavit vitiates the whole document.”

The learned counsel indicated as examples of affidavits offending 0.17 r.3 (l) the affidavits of Winnie Byanyima M.P. and that of the Petitioner filed in support of the petition. These and others contain hearsay and have been rebutted by affidavits against the Petition.

The second category of affidavits, according to the learned counsel are those to which the petitioner’s lead counsel referred in support of his submission. They made various allegations against individuals for committing illegal practices. Such affidavits have also been rebutted by denial of truthfulness of the allegations made by them. According to the learned counsel, the criteria of which witnesses to believe and which ones not to believe goes to the issue of burden of proof to the satisfaction of the court.

Mr. Peter Kabatsi, the Solicitor General, representing the 2uid Respondent, also criticized the affidavits filed in support of the petition. His arguments were similar to those advanced by Mr. Nkurunziza.

In reply to Mr. Nkurunziza’s submission on affidavits Mr. Balikuddembe contended that the document deponed to by Major (Rtd.) Okwir Rabwoni is an affidavit for use in court under section 3 of the Statutory Declaration Act 2000 (Act 10/2000). It is not a statutory declaration. As such, and by virtue of the provisions of section 4(1) of Act 10/2000 registration with the Registrar of Documents under s. 7(3) is not required. Counsel urged us to admit the affidavit as valid.

S.3 of Act 10/2000 provides:

“After the commencement of this Act, no affidavit shall be sworn for any purpose, except
where it relates to any proceedings, application or other matter commenced in any court or referable to a court; or
(a) where under any written law an affidavit is authorized to be sworn.”
Section 4(1):
“In every case to which section 3 does not apply, a person wishing to depone to any fact for any purpose may do so by means of a statutory declaration.”

With respect, I do not accept the learned counsel’s contention that Major (Rtd.) Okwir Rabwoni’s document is an affidavit. It appears to be a statutory declaration, although it is headed “Affidavit.” The document in my view, speaks for itself. After citing the parties to the petition, the document is headed AFFIDAVIT’ and gives the particulars of the deponent as:

“Name: Hon. Major (Rtd.) Okwir Rabwoni M.R
Age: 32 years
Occupation: Member of Parliament

The introductory paragraph reads:
“I am a Ugandan Citizen of the above mentioned particulars I would hereby solemnly and sincerely declare as follows:”
This is followed by numbered paragraphs of statements contained in the document. It ends thus:
“AND I MAKE THIS SOLEMN DECLARATION consciefltI0Y believing the same to be true and by virtue of the Statutory Declaration Act 135.
Declared by the said OKWIR RABWONI - M.R
At (name of place not legible).
This 23 day of March 2001
Before me: (Name illegible).
Solicitor/Commissioner for Oaths.”

The expression “Commissioner for Oaths” is crossed off in the jurat, but it is apparent that the document was deponed to before a solicitor, not before a Commissioner for Oaths. Although the document is headed “Affidavit”, it appears to be clear that it is a statutory declaration. It the circumstances, section 7(3) of Act 10/2000 would apply to it. It would therefore, not be admissible in evidence unless it was registered with the Registrar of Documents. Though not so registered it is obviously not an illegal document. The main purpose of the requirement for registration of such a document, in my view, appears to be for authentication of receipt of the document in Uganda and, must be also, for raising some revenue in addition, since fee is payable for registration. To me, the requirement is a technicality which should not vitiate the validity of the document. This is where substantive justice should be administered without undue regard to technicality as article 126(1) (e) of the Constitution requires. For these reasons, in my view, the document of Major (Rtd.) Okwir Rabwoni is admissible in evidence in these proceedings.

Mr. Balikuddembe next commented on the affidavits criticized for having been commissioned by advocates who were allegedly counsel for the Petitioner. He said that at the time the affidavits were commissioned by advocates, Wycliffe Birungi and Kiyemba Mutale, they had no instruction to represent the Petitioner as his counsel in this petition. However, on the day the hearing of the petition commenced, the tow advocates were robed and seated in a row of seats behind Mr. Balikuddembe That was when he introduced them to the Court as part of the Petitioner’s team of Lawyers. When Mr. Balikuddembe subsequently consulted the Petitioner, the latter informed him that he had instructed ten Lawyers only, Mr. Wycliffe Birungi and Mr. Kiyemba Mutale not being amongst them. That was the reason Mr. Balikuddembe prayed for grant of a certificate for 10 counsel for the petitioner when he made his closing submission in the petition.

Mr. Balikuddembe further submitted in the alternative, that the prohibition in section 5(1) is against a Commissioner for Oaths commissioning a matter in which he is an advocate or has interest. The section is silent about the fate of such affidavit or document. Learned counsel contended that non compliance with section 5(1) of the Commissioners for Oaths (Advocates) Act does not render an affidavit deponed to by an innocent party invalid. The affidavit in question should remain valid. This argument is in the alternative if the Court holds that the two gentlemen were Lawyers representing the Petitioner and, therefore, should not have commissioned the affidavits.

In my view, the explanation by Mr. 8alikuddem that Mr. Wycliffe Birungi and Mr. Kiyemba Mutale were not the Petitioner’s Lawyers when they commissioned the affidavits and that they, in fact, were not instructed by the Petitioner to represent him in the petition is sufficient explanation to leave the relevant affidavits unaffected by the provisions of section 5(1) of the Commissioner for Oaths (Advocates) Act. It is, therefore, not necessary to consider Mr. Balikuddembe’s alternative argument about the affidavits.

With regard to affidavits which offend the provisions of Order 17, rule 3 of the C.P.R. Mr. Balikuddembe submitted that this Court has discretion on the evidence by the affidavits in question. It can accept and act on parts of an affidavit which are valid and reject what it considers to be defective, just as it does with oral evidence from witnesses. I accept this argument.

I do not think that an affidavit should be rejected in its entirety because it is vitiated by a defective aspect of the document if there are parts of the affidavit which conform to O.17.r3 of the C.RR or the affidavit is otherwise valid. Defective parts of affidavits should be severed from valid ones. This in my view should be done in the interest of substantive justice without due regard to technicalities. Courts do accept and act on parts of oral evidence from witnesses who personally give testimony in Court, where some evidence is credible or otherwise conform to legal requirements and reject those which do not.

In my view, the same consideration should be given to evidence by affidavit.

To me, there would appear to be no proper reason for treating evidence by affidavit differently. A part or parts of an affidavit which are defective should be severed from the part or parts which is credible or conform to legal requirements. While the valid part should be admissible evidence, the defective part should be rejected. This should be done in the interest of 5drniniStering substantive justice without undue regard to technicalities. Some decided cases support the view that defective parts of affidavits may be severed from parts which are otherwise valid. See: Motor Mart Application No. 6/99 (SCU) (unreported). Reamation Ltd vs. Uganda CP-operative Creameries Ltd., Civil Anneal 7/2000, (SCU) (unreported); Nandala v Father Lyding 1963 EA 706 Mayers and Another VS Akira Ranch 1969 E.A. 169- and ZoIa VS Ralli (1969) E.A.691

In the instant case many of the affidavits to which the 1st Respondent’s learned counsel objected are similar to those in: Nandalas case (supra). The respondents speak of what they saw or heard. In my view the defective parts of the affidavit should be severed from the valid ones. That is what I shall do in this case. The decided cases to the effect that affidavits are not severable and that any defect in an affidavit vitiates the entire document which the 1st Respondent’s learned counsel cited should, I think, not apply to the affidavits in this case for the reason I have given in this judgment.

Another reason is that a short time of only ten days is the period within which under rule 5 of the Rules, like in the instant case, a petitioner in an election petition has to file his/her pleadings together with supporting affidavits and other documents. The affidavits, in effect, are part of the pleadings. It is doubtful, in my view, if this is sufficient time to collect all the evidence a petitioner may need to file affidavits together with the petition. This, of course, is no excuse for affidavits which do not comply with the law, but I think nevertheless that it is a good reason for severing such affidavits.

Burden and Standard of Proof

Section 58 of the Act provides:
(6) The election of a candidate as president shall only be annulled on any of the following grounds if proved to the satisfaction of the, Court
(a) non-compliance with the provisions of this Act if the court is satisfied that the election was not conducted in accordance with the principles laid down in those provisions and that the non-compliance affected the result in a substantial manner;
(b) ………………………..
(c) that an illegal practice or any other offence under this Act was committed in connection with the election by the candidate personally or with his or her knowledge and consent or approval”

[The underlinin
g is mine]

Sub — section 6(b) is not relevant to this case.
Mr. Bitangaro and Dr. John Khaminwa, both counsel for the 1st Respondent made similar submissions on this matter. Dr. Khaminwa submitted that the burden to prove that the election in this case should be nullified is on the petitioner and the burden does not shift. The standard to prove non compliance with the Act to the satisfaction of the court is very high. It is far above the balance of probability. It is near the standard of proof beyond reasonable doubt. For this submission, learned counsel relied on sections 100, 101, 102 and 103 of the Evidence Act and on many decided cases, including: Bater v Bater [1950] 2 ALL E.R. 458, Mbowe vs Eliufoo [1967] E.A 24O, Guru vs. Sharpe [1974] 1 QB 808 Margaret Zziwa vs C. Nava Nabagesera Civil Appeal No. 39/97 CAU (unreported) Odetta Henry John vs Omeda O’max Election Petition No. 1/96 (HCU) (unreported). Dr. Khaminwa urged us to follow Mbowe (supra) which, according to him, had been followed in many election petition cases in Uganda. For instance, in: Y. K. Bategana Vs Musherueza and others Election Petition No. 1/96 (HCU) (unreported).

Mr. P. Kabatsi, the learned Solicitor General, associated himself with the submissions of the 1st Respondent’s learned counsel in this regard.

In reply, Mr. Balikuddembe submitted that the cases on burden and standard of proof on which the Respondents’ counsel have relied are only persuasive and not binding on this court, which is correct, in my view. In any case they make it clear that an election petition is not a criminal trial learned Counsel contended. It is, therefore, not correct to say that the standard of proof is that beyond reasonable doubt or that it is very high. Learned counsel submitted that the expression “if proved to the satisfaction of the Court” appearing in s.58 (6) of the Act imposes a standard of proof that is well below that which is required for conviction in a criminal trial. The standard of proof required under s.58 (6) is just above mere balance of probabilities. It is akin to the standard of proof for fraud in civil cases.

As I see it, Mbow’se case (supra) appears to have acted as an anchor for decisions in election petition cases in this Country during the last several years. It is the one case courts have invariably “followed” with regard to the meaning of the expression “if proved to the satisfaction of the court”, which is a requirement in our electoral laws for setting aside the result of an election. The often quoted view of Georges, CJ. on the subject in that case runs like this:
 
“There has been much argument as to the meaning of the term “proved to the satisfaction of the court.” In my view, it is clear that the burden of proof must lie on the petitioner rather than on the respondent because it is he who wants this election declared void. And the standard of proof is one which involves proof “to the satisfaction of the court.” In my view these words in fact mean the same as satisfying the court. There have been some authorities on this matter and in particular there is the case of: Bater v Bater [1950] 2 ALL E.R. 458 That case dealt not with election petitions, but with divorce, but the statutory provisions are similar. i.e. the Court had to be satisfied that a matrimonial offence had been proved, in this case, in my view, that we have to be satisfied that one or more of the grounds set in s.99(2)(a) has been established. There DENNING, L.J, in his judgment took the view that one cannot be satisfied where one is in doubt. Where a reasonable doubt exists then it is impossible to say that one is satisfied, and with that view I quite respectfully agree and say that the standard of proof in this case must be that one has no reasonable doubt that one or more of the grounds set out in s.99 have been established.”
The view of Denning L.J. (as he then was) in Bater vs Bater (supra), to which Georges CJ referred with approval in Mbowe’s case (supra) was expressed in the following terms at page 459:
“The difference of opinion which has been evoked about the standard of proof in these cases may well turn out to be a mere matter of words than anything else. It is true that by our law there is a higher standard of proof in criminal cases than in civil cases but this is subject to qualification that there is no absolute standard in either case.
In Criminal cases the charge must be proved beyond reasonable doubt, but there may be degrees of proof within that standard. Many great judges have said that in proportion as the crime is enormous, so ought the proof to be clear. So also in Civil cases. The case may be proved by a preponderance of probability but there may be degrees of probability of that standard. The degree depends cm the subject matter. A civil court, when considering a charge of fraud, will naturally require a higher degree of probability than that which it would require if considering whether negligence was established. It does not adopt so high a degree as a criminal court, even when it is considering a charge of a criminal nature, but still it does not require a degree of probability which is commensurate with occasion, likewise a divorce court should require a degree of probability which is proportionate to the subject matter. I do not think the matter can be better put than SIR WILLIAM SCOTT put it in: Loveden
vs Loveden (1810) 161 ER 648
“The only general rule that can be laid down upon the subject is that the circumstances must be such as would lead the guarded discretion of a reasonable and just man to conclude ……”
The degree of probability which a reasonable and just man would require to come to a conclusion
and likewise the degree of doubt which would prevent him from coming to it depends on the conclusion to which he is required to come. It would depend on whether it was a criminal case or a civil case, what the charge was, and what the consequences might be, and if he was left in real and substantial doubt on the particular matter he would hold the charge not to be established. He would not be satisfied about it.
What is a real or substantial doubt? It is only another way of saying a reasonable doubt and a reasonable doubt gets one no further. It does not say that the degree of probability must be as high as ninety per cent, or as low as fifty-one percent. The degree required must depend on the mind of the reasonable and just a man who is considering the particular subject matter. In some cases fifty one percent would be enough but not in others. When this is realized, the phrase “reasonable doubt” can be used just as aptly in a Civil case or a divorce case as in a criminal case, and indeed it was so used by BACK WILL, L.J., in
Davis VS Davis (1950) 1 All E.R 40 and Gower vs Gower (1950) 1 All E.R. 804 The only difference is that, because of our high regard for the liberty of the Individual a doubt may be regarded as reasonable in the Criminal Courts which would not be so in the Civil Courts.”
As it is apparent from this passage of the judgment of Denning L.J., to which I have just referred in: Bater vs Bater (supra) he did not say that “proof to the satisfaction of the Court” meant the same as “proof beyond reasonableas Georges CJ, apparently said in: Mbowe’s case (supra), and as courts in many election petition cases in this Country have held.
In the instant case the learned counsel for both the l and 2 Respondents have suggested a standard proof which is higher than proof on a preponderance of probabilities but short of proof beyond reasonable doubt. I agree with them.
In my view the word “satisfied” is a clear and simple one and one that is well understood. I would have thought that interpretation or explanation of the word would be unnecessary. It needs no addition. From it there should be no subtraction. The Courts must not strengthen it; nor must they weaken it. Nor would I think it desirable that any kind of gloss should be put upon it. Parliament has ordained that a court must be satisfied. Only Parliament can prescribe a lesser or more requirement. Parliament would have said in the Act that election offences should be proved on the balance of probability or beyond reasonable doubt if it wanted to do so. It did not, and left it to the discretion of the courts or judges what is meant by being “satisfied.”
All that is required, in my view, is that the Court must be satisfied that alleged grounds for annulment of an election have been proved, If it has reasonable doubt then the court is not “satisfied.” This is different from saying that for a court to be satisfied, proof must be made beyond reasonable doubt. If in election petitions, illegal practices or non-compliance have to be proved beyond reasonable doubt, then there would appear to be no need for criminal proceedings to be instituted under section 58(9) of the Act.
With regard to the burden of proof, it is the respondent who has to prove to the satisfaction of court the grounds on which the election should be nullified. The burden does not shift.
I shall now proceed to consider the issues in this petition on the basis of my views expressed herein regarding affidavit evidence, burden and standard of proof.
At the commencement of hearing the Court, in consultation with the counsel for the parties, framed the following five issues for determination:
1. Whether during the 2001 election of the President there was non compliance with provisions of the Presidential Elections Act, 2000.
2. Whether the said election was not conducted in accordance with the principles laid down in the provisions of the said Act.
3. Whether, if the first and second issues are answered in the affirmative. Such non -compliance with the provisions and principles of the said Act, affected the result of the election in substantial manner.
4. Whether an illegal practice or any other offence under the said Act was committed, in connection with the said election, by the 1 respondent personally or with his knowledge and consent and approval.
5. What reliefs are available to the parties?
I shall consider the issues in the order in which they have been framed. Many paragraphs of the petition are relevant to the first issue, and I shall deal with them according to the order in which the Petitioner’s learned counsel argued them. So with the other grounds. I shall also reproduce them as I consider them. It should be pointed out at the outset that some of the grounds of the Petition overlap or are repetitive in some parts. The Respondents made no objection on that ground. I shall, therefore, say no more in that regard except when it is necessary to say that a point in a ground of the Petition has been considered together with a similar point in another.
Paragraph 3(1)(d) and (e) - non-compliance regarding Voters’ Register:
(d). contrary to section 32(5) of the Act the 2nd respondent completed compiling a purported Final Voters’ Register on Saturday 10—March 10, 2001, and failed when requested by the Petitioner to supply copies of the same to the Petitioner and his agents although the petitioner was ready and willing to pay for the same.
(e). That contrary to sub-section (e) and section 18 of the Electoral Commission Act the 2
nd Respondent failed to compile, maintain and up-date the National Voters’ Register, the Voters’ Roll for each Constituency and Voters’ Roll for each Polling Station within each Constituency and as a result the Voters’ Register and the said Voters’ Rolls contained many flaws such as dead people’s names and names of those who ought not to vote in Uganda remaining on the Register while several persons who were eligible voters had their names omitted from the said Register and Rolls”
There is an apparent contradiction between the two grounds, one saying that the Voters’ Register was completed late; the other saying that there was a completed failure to do so.
The 2d Respondent countered these allegations by his Answer to the petition as follows:
“3. In reply to paragraph 3(1) (d) of the petition the Second Respondent denies ever refusing any request by the Petitioner for copies of the final Voters’ Register as alleged but non delivery thereof was due to insufficient time to prepare the register.
4. In reply to paragraph 3(1)(e) of the Petition, the 2” Respondent avers:
(a) That it is not true that it (the 2” Respondent) failed to efficiently compile maintain and up-date the National Voters’ Register or the Voters Rolls for Constituencies and Polling Stations and further that it has no knowledge of the allegations that dead people’s names and names of the people who ought not to vote in Uganda remaining on the Register while several persons who were eligible voters had their names omitted from the Register and Rolls as alleged.
(b) That even if the said allegations were true which is not admitted, this could not and did not affect the results of the presidential elections substantially or at all.
(c) Further, even if the said allegations were true, which is not admitted, those allegations do not constitute a ground upon which the election of a candidate as president can be annulled”
It is convenient here to set out the legal provisions concerning the functions and powers of the 2nd Respondent, the requirements for registration of Voters and Voters’ Register. They are relevant to these grounds of the petition.
Under section 29(4) of the Act, only a person whose name appears in the Voters’ Roll of a Polling Station and who holds a valid Voters’ Card is entitled to vote at the Polling Station.
Under section 1(1) of the Act a “Voter means a person qualified to be registered as a voter at an election who is so registered and at the time of an election is not disqualified from voting. “Voters’ Register” means the “National Voters’ Register” compiled under section 18 of Act 3/97. “Voters’ Roll” means the Voters’ Roll of any Constituency or Parish prepared and maintained under the Act 3/97.
The 2F,d Respondent is established by Article 60 of the Constitution and its functions are stated in article 61, as follows:
(a) to ensure that regular free and fair elections are held;
(b) to organize conduct and supervise elections and referenda in accordance with this Constitution;
(c) to ascertain publish and declare in writing under its seal the results of the elections and referenda;
(d) to compile, maintain, revise and up-date the Voters’ Register;
(e) to hear and determine election complaints;
(f) ……………………………..
(g) to perform such other functions as may be prescribed by Parliament by law.”

Act 3/97 gives the 2nd Respondent additional powers for purposes of carrying out its functions under the Constitutions. Section 12(1) provides:
“(a) ……………………………..
(b) to design, print, distribute and control use of ballot papers;
(c) to provide, distribute, and collect ballot boxes;
(d) to establish and operate Polling Stations;
(a) to take measures for ensuring that the entire process is conducted under conditions of freedom and fairness;
(f) to take steps to ensure that there are secure conditions necessary for the conduct of any election in accordance with this or any other law;
(g)
………………………………….
(h) to ensure that the candidates campaign in an orderly and organized manner;
(i) to ensure compliance by all election Officers and candidates with the provisions of this” Act or any other.”

The 2nd Respondent’s duty regarding National Register of Voters and Voters’ Rolls are provided for in s. 18 of Act 3/97.
“18(1) The Commission shall compile, maintain and up-date, on continuing basis, a National Voters’ Register in this Act referred to as the Voters’ Register, which shall include the names of all persons entitled to vote in any National or Local Government Election.
(2) The Commission shall maintain as part of the Voters’ Register, a Voters’ Roll for each constituency under this Act.
(3) The Commission shall maintain as part of the Voters’ Roll for Each constituency, a Voters’ Roll for each Polling Station within the constituency, as prescribed by law
.”
Section 32 (5) of the Act provides:
“(5) The Polling agents shall have an official copy of the Voters’ Register of that Polling Station at the candidates cost.”
Under section 19(7) of Act 3/97 when up-dating the Voters’ Register, the 2 Respondent shall up-date it to such date as the Minister may, by Statutory Instrument, appoint as the date on which the up-dating shall end. In accordance with the provisions of this sub-section the Commission issued Statutory Instrument No. 2 of 2000, appointing 22-01-2001 as the date on which updating the National Voters’ Register would be completed for purposes of the 2001 Presidential Election.
Section 1(2) of the Act provides that The Commission Act shall be construed as one with this Act” (The underlining is mine). What does this mean? According to Craies on Statute Law, 7th Edition by S. G. G. Edgar, 1971, SEM (London) on page 138, the expression “Act to be construed as one with another” means that for purposes of construction certain Acts are to be read with another Act or Acts. The effect of enacting that an Act shall be construed as one with another Act is that the Court must construe every part of each of the Acts as if it had been contained in one Act, unless there is some manifest discrepancy making it necessary to hold that the Act has, to some extent, modified something found in the earlier Act, or that from internal evidence the reference of the latter to the earlier Act does not affect a complete incorporation of the provisions of the two Acts. In the instant case, I think that, that is what section 1(2) of the Act means, with regard to the Act and Act 3/97. I do not see any manifest discrepancy making it necessary to conclude that the Act has modified Act 3/97. On the contrary, I think that section 1(2) of the Act links Act 3/97 with the Act. The Court should construe every part of each of the two Acts as if it has been contained in one Act.
Back to the grounds of the Petitioner in question.
In his affidavit filed together with the petition the Petitioner stated in paragraph 13 thereof that he applied through his National co-coordinator to be supplied with the Final Voters’ Register for use by him and his polling agents on payment of the necessary charges by him but the 2nd Respondent did not do so.
In paragraph 12 of his affidavit filed in support of the 2nd Respondent’s answer to the petition, Mr. Aziz Kasujja, the Chairperson of the 2nd Respondent, answered paragraph 13 of the petitioner’s affidavit. The Chairperson said that the Petitioner’s request for a copy of the Register was received on 11-03-2001, and that there was no sufficient time to print the Register for the Petitioner on the eve of Polling day, and he informed the Petitioner accordingly.
Mr. Aziz Kasujja said more on this in his supplementary affidavit in reply, dated 9-04-2001. In apparent contradiction to what he had said in his affidavit dated 27-03-2001 in support of the 2nd Respondent’s answer to the Petition, Mr. Kasujja said in his later affidavit to the effect that for the Presidential Elections, the up-date of the Register was done at the village level from lithe January to 22 January 2001; that in February 2001, the National Voters’ Register was printed and displayed at polling stations in the form of Voters’ Rolls; and that the Constituency Rolls and Polling Station Rolls which make up the National Voters’ Register had already been printed by 11-03-2001, and the numbers of registered voters was known.
In his submission Mr. Mbabazi contended that the Chairperson’s answer could mean that the Voters’ Register was available much earlier, except, that there 220 was no time to print a copy for the Petitioner. That was not so, learned counsel contended, because in a letter dated 08-03-2001 and headed Flaws in the Presidential Election Process, 2001” addressed to three of the Presidential candidates including the Petitioner, Mr. Kasujja said:
“You have expressed concern over the delay in producing the Final Voters’ Register. Please be assured that the Final Voters’ Register will be ready in time for polling.”
This letter is annexture P18 to the Petitioners’ affidavit in support of the petition.
Learned counsel submitted that this letter indicates that by 08-03-2001 there was no Final Voters’ Register. This inference is supported by the fact that display exercise for purposes of up-dating the Voters’ Register and Voters’ Rolls continued up to 28-02-2001. Learned counsel referred to the affidavit of Mukasa David Bulonge dated 1-4-2001, and its annextures. Annexture 3 conveyed guide lines by the 2d Respondent for display of the Voters’ Register; Annexture 4 was issued under sections 25 and 38 of Act 3/97 saying that display period had been reduced from 21 to 3 days, from 26th to 28th February 2001. Annexture 5 was a letter from the 2 Respondent’s Chairperson to Display Officers informing them of changes in the display guidelines. Instead of the Voters’ Register being displayed, four other documents were to be displayed.
Mukasa David Bulonge, the deponent of the affidavit in question, was the Petitioner’s witness. He was a registered voter, entitled to vote at Kabonera, Kibiba Parish, Kabonera Sub-County, Masaka District. During the 2001 Presidential Election, he was appointed to work in the National Task Force of the Petitioner as Head of Election Monitoring Desk and Electoral process from the time of nomination throughout until polling day and declaration of results. He said in his affidavit of 01-04-2001, that in the course of his work, he attended several consultative meetings with the 2nd Respondent’s officials, representing the Petitioner, and his interest. That he knew the exercise of up-dating the National Voters’ Register for purposes of the Presidential Elections which was set down for 22-01-2001.
He then gave details of what is involved in up-dating of Voters’ Register and
stated in Paragraphs: -
“14. That throughout the electoral process up to polling date, the exact number of registered voters was not known as there was no National Voters’ Register compiled, maintained and up-dated by the 2nd Respondent containing the names of all persons entitled to vote at the Presidential Election of 2001.
15. That additionally, no Voters’ Roll for each Constituency containing the names of voters entitled to vote in the Presidential Election 2001, held on March 2001, was ever printed, neither did the Commission publish a notice in the gazette declaring any printed Voters’ Roll as one to be used for the purposes of identification of voters on the election day of 12th March 2001.”
In the “Summary of Affidavits” (hereinafter referred to as “the Chart”), handed in by counsel for both the Respondents to assist the Court, Mukasa David is listed on page 1 3 of the chart. Against his name does not appear to be any affidavit in rebuttal. But the affidavit of Mr. Kasujja dated 09-04-2001 and of Kiganda Abdullah Musobya dated 02-04-2001 appears to be relevant.
According to Mr. Mbabazi, another indication that the National Voters’ Register was not available is the difference between the number of voters of 10,674,080, announced by the Chairperson of the 2 Respondent at a briefing by him on 11- 03-2001, (Annexture 8 to Bulonge’s affidavit) as the number of voters on the Voters’ Register as by the date of 10-03-2001, and the figure of 10,775,836, shown in annexture R.2 to Chairperson Kasujja’s affidavit filed with the 2 Respondent’s answer to the Petition as the number of voters who had voted. There is a difference of 101,756 between the two figures. Where did the difference come from? Learned counsel asked. This, he contended, showed that there was no National Voters’ Register.
Learned counsel submitted that the next indication that there was no Voters’ Register is the excess number of persons who voted in Makindye East Division and in Mawokota County South. The percentage of voters who voted was 105.34% and 109.86% respectively as shown in the Petitioner’s affidavit from the two Constituencies. There were 2184 and 7797 votes cast respectively in excess of registered voters. Learned counsel contended that the excess was not the result of arithmetical error as it is alleged in paragraph 7 of Mr. Kasujja’s affidavit in reply of 27-03-2001, which does not show how the error arose. No tally sheets are attached. Instead only a letter dated 20-03-2001 written by the Returning Officer, Kampala to the 2nd Respondent is attached, saying that the original tallying was faulty. To the letter was attached a summary of results prepared by the 2nd Respondent’s officials, not tally sheets signed by the candidate’s agents- This was falsification of results to match the register in Makindye East after the results had been declared.
In his reply on the issue of the Voters’ Register, Mr. Kabatsi referred to the following paragraphs of Mr. Kasujja’s supplementary affidavit in reply dated 09- 04-2001:
“18. That I know that a National Voters’ Register exists since 1983, when a National Voters’ Register was first prepared for the purposes of the Constituent Assembly Elections.
19. That since then the National Voters’ Register has been maintained up-dated to date.
20. That before the 1996 Presidential Elections the National Voters’ register was cleared and up-dated and another up-dating and clearing exercise was carried out before the Referendum.
21. That for the 2001 Presidential Elections, the up-date of the Register was
done at Village level from 11th January 2001, to 22nd January 2001.
22. That the said up-date of the National Register was carried out by up-date officers identified by Parish Councils, supervised by the Parish Chiefs and during the said update Tribunals were established to handle complaints.
23. That the staid up-date exercise involved three components:
- Registration of Fresh Applicants, - Registration of transferred voters and clearing of existing Register by deleting dead people’s names, non - qualified voters and non Citizens.
24. That Returns of the said up-date exercise were received from all Districts and entered into computers at the 2” Respondent’s Headquarters.
25. That in February, 2001, the National Voters’ Register was printed and displayed at Polling Stations in the form of Voters Rolls, in four components i.e. previously registered voters, the newly registered voters, the transferred voters and voters recommended for deletion for ease of scrutinizing the register.”
Mr. Kabatsi submitted that the exercise of compiling and up-dating the Voters’ Register is continuous. Mr. Kasujja’s affidavit evidence to that effect is corroborated by the affidavits of Abdullah Musobya Kigonda dated 02-04-200 1 and the affidavit of Balaba Dunstan, dated 02-04-2001, and Banabas Mutwe, un-dated, filed in support of the 2nd Respondent’s answer to the Petition. Kiganda Abdallah Musobya was the Returning Officer of Kisoro District. Part of his affidavit reads:
“5. That prior to the elections, village meetings were conducted throughout the District to afford the residents an opportunity to verify the Citizenships of all persons who registered to vote.
6. That during the verification exercise all non-Citizens were identified and removed from the register.”
The affidavit of Balaba Dunstan does not contain anything relevant to Voters’ Register.
So far as it is relevant on the point Barnabas Mutwe’s affidavit states:
“4. That I remember one Nabachwa has a Registration Certificate but no Voter’s Card and her name was not on the Register and disallowed her from voting.
5. That in all there were only four (4) people whose names did not appear in the Register and I did not allow them to vote.”
As section 18 of Act 3/97 provides, it is the responsibility of the 2nd Respondent to compile, maintain and up-date, on a continuing basis, a Voters’ Register which should include the names and persons entitled to vote in any election. The Voters’ Register consists of a Voters’ Roll for each constituency which in turn consists of a Voters’ Roll for each Polling Station within the Constituency. The display exercise mandated by section 25 must be intended to be an aspect of up-dating the Voters’ Roll. If, as Mr. Kasujja said in paragraph 21 of his supplementary affidavit in reply dated 9-4-2001, the up-date of the Register was done at Village level from 11-01-2001 to 22-01-2001, why is it that a display exercise was still necessary to be done between 26th February 2001, and 28 February, 2001 as per Notice dated 23-02-2001, issued by the 2nd Respondent’s Chairperson (Annex.4), to the affidavit dated 1-4-2001 of Mukasa David Bulonge, the Petitioner’s witness? Further, according to the circular to all Display Officers from the 2u,d Respondent’s Chairperson, Mr. Kasujja (Annex: 5 to Bulonge’s affidavit) the documents to be displayed from 26th to 28th February, 2001, at the polling Stations were not the Voters Rolls for the Polling Stations but four documents which appear to be different, namely:
“(i) Register for old voters (Doc. 1A)
(ii) Register for New Voters (Doc. 1B)
(iii
) Register for New Voters (Doc 1C)
(iv) A list of persons recommended for election during the up-date exercise.”

The circular then goes on to say:
“2. Doc. 1A, Doc 18 and Doc. TC should be used to issue Voters Cards. Cards be issued to the OWNERS and signed for by them. No person should collect a Voters’ Card on behalf of another person at the polling Station.”
According to s.26 (1) of Act 3/97, the 2nd Respondent may issue Voters’ Cards only to Voters whose names appear in the Voters’ Register. But in the Circular in question the 2nd Respondent’s Chairperson instructed Display Officers to issue Cards according to the three documents listed in the circular. If there was a Voters’ Roll at the Polling Stations why were the Voters Cards not issued to voters whose names were on the Voters’ Rolls? Another point in this connection to which I have already referred is, if the Voters’ Register, consisting of the Constituency and Polling Stations Voters Rolls was available, why did the 2nd Respondent not give it to the Petitioner and his Polling Agents when he requested a copy thereof? If the Voters’ Register was available, surely, the Chairperson of the 2nd Respondent would have instructed the Display Officers to issue Voting Cards to persons whose names were in the Voters’ Roll for Polling Stations instead of some three other documents; and the 2nd Respondent would have given the Petitioner a copy of the Register of voters when he requested for them.
In the circumstances regarding paragraphs 18 to 25 of the Supplementary affidavit in reply, by the 2nd Respondent, my view is that the affidavit is not of much assistance to the 2nd Respondent’s case in this regard. It appears to state what, according to the Chairperson, was supposed to have happened; not what actually happened. The affidavits of the Petitioner and his witness Mukasa David Bulonge are more credible on this point. In the circumstances I am satisfied that on the available credible evidence as a whole, the Petitioner has proved and I find that:
(a) Contrary to section 32(5) of the Act, the 2nd Respondent failed when requested to give the Petitioner and his agents a copy of the Voters’ Register.
(b) Contrary to sections 18(o) of Act 3/97 the 2nd Respondent failed to maintain and update the National Voters’ Register, the Voters’ Rolls for each Constituency and each polling station within each Constituency and as a result, the Voters’ Register and the Voters’ Rolls contained many flaws such as dead people’s names and some of those who ought not to vote in Uganda
- remaining on the Voters’ Register, while many people who were eligible to vote had their names omitted from the Voters’ Register and the Voters’ Rolls.”
The 2nd Respondent clearly did a very poor job of carrying out its responsibility under s.18 of Act 3/97. The standard of incompetence was high. There is credible evidence that in consequence thereof, some names of dead people, of those who ought not to vote remained in the Voters’ Register and some people who were eligible to vote had their names omitted from the Voters’ Register and Rolls.
Paragraph 3(1) (f) Failure to display copies of the Voters’ Rolls:
“(f) Contrary to section 25 of the Electoral Commission Act the 2”” Respondent failed to display copies of the Voters’ Roll for each Parish or Ward in a public place within each Parish or Ward for a period of not less than 21 days and as a result the Petitioner and his Agents and supporters were denied sufficient time to scrutinize and clean the Voters’ Roll and exercise their rights under the law.”
The 2 Respondent’s answer to this ground of the Petition is as follows:
“(5) In reply to paragraph 3(1), the 2nd Respondent avers:
(a) that the Voters’ Register was initially displayed Country wide for three days and everybody was free to scrutinize thee said Register;
(b) that after consultations with and on request by agents of all Presidential Candidates including those of the Petitioner, the Second Respondent extended the time for display of the Voter’s Register for another two days;
(C) that in any case the contents of paragraph 3(1) (f) of the Petition do not constitute a ground upon which the election of a candidate as President can be annulled.”

Sub-sections (1) and (2) of section 25 of Act 3/97 provides:
“(1) Before any election is held, the Commission shall, by notice in the Gazette, appoint a period of not less than twenty one days, during which a copy of the Voters’ Roll for each Parish or Ward shall be displayed for public scrutiny and during which any objections or complaints in relation to the names included in the Voters’ Roll or in relation to any corrections shall be raised or filed.
(2) The display of the Voters’ Roll referred to in Sub-section (1) shall be carried out in a public place within each Parish or Ward.”
Paragraph 11 of the Petitioner’s affidavit filed with the petition said:
“14. The 2nd Respondent failed to display the Voters’ Register and Rolls for each Parish or Ward in a public place within each Parish or Ward for a period of not less than 21 days stipulated by law, and as a result, my agents, supporters, and myself were denied sufficient time to scrutinize and clean the Voters’ Rolls and exercise our rights under the law.”
In his affidavit in reply, dated 6-4-2001, the Petitioner deponed
“48. That without the National Voters’ Register the Voters’ Rolls for each Constituency and polling Stations could not be displayed and instead the 2nd Respondent used a number of Registers (Sic) as per the letter of 4th February 2001.
49. The printed Voters’ Rolls for each Constituency containing the names of voters entitled to vote in the Presidential Election 2001 were never published in the Gazette to declare that such Roll was to be used for purposes of identifying voters at the 2001 Presidential Elections.”
In support of its answer to the petition, the affidavit of Mr. Aziz Kasujja, Chairperson of the 2 Respondent, stated:
“13. That in answer to paragraph 14 of the Petitioner’s affidavit, the Voters Register was displayed Country-wide for five days and given very wide publicity, and anybody who wished to scrutinize the same was free to do so. Scrutinizing of the Register was clear and the bulky Nation-wide returns were kept at the Electoral Commission Headquarters.
14. That the Voters’ Register could not be displayed for 21 days or more because of time constraint and this was duly explained to candidates’ agents during a consultative meeting, which was held at the Electoral Commission Offices.”
Documentary evidence available, for instance annextures 4 and 5 to Mukasa David Bulonge’s affidavit, to which I have already referred in this judgment, shows that what was purported to be the Voters’ Register was displayed for three days. That was from 21st to 28t February 2001. The display period according to Mr. Kasujja’s affidavit was extended for two more days, making five days altogether, but the effect would still be the same, whether the display was for 3 or 5 days.
Mr. Kabatsi conceded that the display of Voters’ Register was for 5 days not 21 days. Mr. Kasujja explained this irregularity in paragraph 27 of his affidavit to the effect that the time for display and up-date of the Register was affected by a decision to have photographic Voters’ Cards which required fresh registration. That exercise was commenced but due to unforeseen delays in delivery of all the necessary equipment which had not arrived by 31-12-2000 the 2nd Respondent was forced to revert to the old system of up-dating the existing Register, having lost a lot of time.
According to Mr. Kabatsi, the display exercise was successful although the period was shorter than what the law required. The success is reflected in the fact that as Mr. Kasujja said in paragraph 28 of his affidavit, after the display exercise, the number of voters on the Voters’ Register reduced from 11 ,093,948 to 10,672,383. The learned Solicitor General also submitted that the 2nd Respondent is empowered under section 38(1) of Act 3/97 to abridge the period of doing certain things in case of an emergency. Mr. Kabatsi further contended that in any case even if the 2nd Respondent did not comply with the provisions of s.25(1) of Act 3/97 the non — compliance did not affect the result of the election in a substantial manner.
With respect, I am unable to accept Mr. Kabatsi’s argument that 2 Respondent validly reduced the display period. Section 38(1) gives the 2nd Respondent power to extend the time for doing any act where it appears to it that by reason of any mistake, miscalculation, emergency or unusual or unforeseen circumstances any of the provisions of Act 3/97 or any law relating to election does not accord with the exigencies of the situation. The section gives express power to extend time, not to abridge it.
The language of section 25(1) of Act 3/97 is mandatory. It does not provide for any exception. The 2nd Respondent was under a duty to comply with it without any excuse. In view of the provisions of s.25(1) and the relevant evidence available, I am satisfied and find that the 2nd Respondent acted in breach of section 25(1) of Act 3/97. It did not comply with that law.
The rationale for the exercise of display of Voters’ Rolls is all stated in section 25(2), (3), (4), (5), (6), (7) and (8) of Act 3/97. Briefly, it is to enable the local members of the public, voters, potential voter’s and officials to object to names of persons not qualified to vote or to be registered as voters in the constituency, parish or ward or to complain that names of persons qualified to vote or to be registered have been omitted. Objections are made to the returning officer who subsequently appoints a tribunal of five members to determine the objections. Any decision of a tribunal is subject to review by the 2nd Respondent. In my view, the importance of a display for the period prescribed by Act 3/97 cannot be over emphasised. The exercise is bound to take some time. If Parliament thought that it needed less time, it would have expressly given the 2nd Respondent power to decrease the period. It did not do so. Regarding what effect this non — compliance had on the result of the elections, I shall discuss it with the effect of other incidences of non — compliance later in this judgment.
Paragraph 3(1) (a), (b) and (c) of the Petition failure to gazette Polling Stations within time.
“3(11(a)                  That on 10th March 2001, less than 48 hours before polling day, in addition to the Polling Stations duly published in the Uganda Gazettes of 22nd December 2000, 19th February 2001, and 9th March 2007, the 2nd Respondent made and added new Polling Stations out of time contrary to the provisions of section 28(1) of the Act.
(b)
    That contrary to section 28 of the Act the 2nd Respondent failed to publish a full list of Polling Stations in each Constituency 14 days before nomination day of 8th and 9th January, 2001.
(c)
     That as a result of what is stated in paragraph. 3(a) and (b) above, your Petitioner was disabled from appointing his Polling Agents to supervise all the Polling Stations and safeguard the interests of your Petitioner as he was entitled to do under section 32 of the Act.”

In its answer, the 2nd Respondent pleaded:
“1. In reply to paragraph 3(1) (a) and (b) of the Petition the 2nd Respondent avers:
(a)     That no new Polling Stations were created but rather some existing Polling Stations were split for purposes of easing the voting process due to the big numbers of voters in those stations and that it was within the 2nd Respondent’s power to split the said Polling Stations as was done.
(b)
     In the alternative but without prejudice to the foregoing, the second Respondent avers that there is no evidence that the splitting of the said Polling Stations substantially affected the result of the election or at all.
2. In reply to paragraph 3(1) (c) of the Petition the second Respondent avers that the splitting of Polling Stations affected all the candidates equally and that the Petitioner like all other candidates were duly notified of the splitting of the Polling Stations. There is no evidence that the said splitting affected the result of the election or at all”
Section 28 of the Act provides:
28(1). The Commission shall, by a notice in the Gazette publish
(a) A list of the Polling Stations in each Constituency at least fourteen day before nomination and
(b) ……………….
(2). The Commission shall also forward each list referred to in sub-section
(1) to all Returning Officers; and the Returning Officers shall ensure that the lists relevant to each Constituency are published widely in that Constituency.”
(The underlining is mine)


The Petitioner’s own affidavit in support of the petition in paragraphs 11, 12 and 13, repeated some of the contents of paragraph 3(1 )(a), (b) and (C) of the petition and added that following gazetting of the Polling Stations he appointed 2 Polling Agents for each of the Polling Stations to look after his interests. Copies of the relevant Uganda Gazettes were annexed as “P5”. “P6” and “P7” to the affidavit. He also said that on 11-3-2001, the 2nd Respondent supplied him with a list of gazetted Polling Stations with added new and ungazetted Polling Stations. As a result he failed at that 11th hour to appoint and deploy his polling agents to supervise all those new Polling Stations and to safeguard his interest. A copy of the letter and the list of the newly added Polling Stations were annexed to the affidavit as “P8” and “P9.”

What the Petitioner’s affidavit said in this connection was replied to by the affidavit of the 2nd Respondent’s Chairperson, Mr. Aziz Kasujja, to the effect that no new Polling Stations were created but existing ones were merely split to ease voter congestion and voter convenience as indicated to candidates’ task forces in a circular dated 11-03-2001, annexture “P6” to Mr. Kasujja’s affidavit. In his supplementary affidavit, Mr. Kasujja said that it was not necessary to display voters’ Rolls for the parent stations which included list of voters for the split stations already been displayed. He admitted that some Polling Stations which had been gazatted were deleted from the list published on 11-03-2001, because voters had migrated elsewhere.

In his submission, Mr. Mbabazi referred to the affidavits of the Petitioner, Mukasa D. Bulonge, James Oluka and Vincent Ebulu. The evidence from affidavits, learned counsel submitted, proved how non-gazetted, Polling Stations were created. Also shown were Polling Stations which did not appear on the list of 11-03- 2001. He mentioned certain Polling Stations for purposes of illustrating his point.

In his reply, Mr. Kabatsi said that Mr. Kasujja’s supplementary affidavit explained the reason why certain Polling Stations did not appear on the gazetted list of 11 - 03-2001. It was migration of the population from the areas concerned. He argued that the Petitioner did not adduce evidence that because of reduction in numbers of polling Stations some voters did not vote or were dis-enfranchised. Mr. Kabatsi referred to the affidavits of Francis Bwengye, one of the six Presidential Candidates, which shows lack of evidence that the result was affected by the manner the 2’ Respondent handled Polling Stations.

Notice by the 2 Respondent in the Uganda Gazette of 22-12-2000, listing Polling Stations, under section 28(1)(a) of the Act said:
“NOTICE is hereby given that in exercise of the powers conferred upon the Electoral Commission, by section 28(11(a) of the Presidential Elections Act No. 17 of 2000, the list of Polling Stations in the schedule attached to this notice is hereby published for purpose of the National Presidential Election.”

This was annexture “P5” to the petitioner’s affidavit.
On 19-02-2001, the 2 Respondent under special powers provided for in s.38 of Act 3/97, published a list of Polling Stations for Army Units. This was annexture P6” to the Petitioner’s affidavit.

Then in the Uganda Gazette of 09-03-2001, the 2nd Respondent published a list of what was called “new Polling Stations for the Army Units.” The Notice explained that the new Polling Stations were created as a result of transfers in the Army.

On 11 -03-2001, by a letter (annexture R8 to the Petitioner’s affidavit and annexture R.6 to Mr. Kasujja’s affidavit) addressed to all Task Forces of Presidential Candidates Mr. Kasujja, said:

“The Electoral Commission in forms all Presidential Candidates that the list of all Polling Stations Countrywide is herewith attached.
NOTE: That some of the Polling Stations have been spilt for purposes of easing the voting process. For this purpose the Polling Agents for each candidate should be appointed in the split Polling Stations. Please note that the changes have already been alphabetically effected on the Registers.
It should also be noted that these are not new Polling Stations. A copy of this hereby in forming the Returning Officers and the respective Presiding Officers.”

According to the affidavit of Mukasa David Bulonge of 01-04-2001, and annexture 13 to the affidavit the new list included 1176 new Polling Stations which were different from, and 303 missing from, the originally gazetted Polling Stations.

Following the Court’s order that the 2nd Respondent should let the Petitioner have access to election documents in its possession or control, Mr. Mukasa David Bulonge obtained certified copies of tally sheets from various Districts of Uganda. He attached as samples those from the Districts of Gulu, Kitgum, and Kamwenge to his Supplementary affidavit of 07-04-2001. He deponed in the affidavit that from the tally sheets from Kitgum, for instance, he discovered records of new Polling Stations that were never gazetted originally, nor were on 2 Respondent’s list of 11-03-2001. He named them. They were five. The results in those Polling Stations were tallied along with other results for Kitgum District appearing in Annex “B;” to the affidavit. In those new Polling Stations, the 1st Respondent’s votes contrasted sharply with the Parten of results obtained from Polling Stations that had been gazetted in the list of 11-03-2001. They were much higher. The sharp contrast of results also happened in 5 Polling Stations at Kasubi, in Gulu District which were neither gazetted nor on the list of 11-03-2001; in one Polling Station outside Quarter Guard Station in Pagele Parish, Amuru Sub-County; and in two Polling Stations at Bibia outside the Quarter Guard in Pupwonyo Parish, Atiak Sub-County, Gulu District.

The sharp contrast in votes received by the 1st Respondent and the Petitioner is illustrated by Ngomoromo (A-E); Ngomoromo (F. N. and Ngomoromo (O.) Polling Stations Pawor Parish, Lukung Parish, Lamwo County where the 1st Respondent and the Petitioner got 292, 84, and 233 votes respectively while the Petitioner got 8, 3, 9 votes respectively. In Nkelikongo outside Quarter Guard, the Respondent received 263 and the Petitioner 13 votes.

In his supplementary affidavit of 10-04-2001, Mukasa David Bulonge said that he had looked at the tally sheets for Kamuli, Pader, Mbarara and Bushenyi Districts to identify Polling Stations that were not gazetted but were on the 2nd Respondent’s list of 11-03-2001; and that the results demonstrated that the 1st Respondent received a far higher percentage of the votes cast in the newly created Polling Stations than he did nationwide.

Section 28(1)(a) of the Act enjoined the 2nd Respondent to publish in the gazette a list of Polling Stations in each Constituency at least 14 days before nomination. The Presidential Candidates were nominated on 8th and 9th of January, 2001. The list of Polling Stations therefore ought to have been gazetted on or before 25 December 2000. The list published in the gazette of 22-1 2-2000, was therefore, within the prescribed time, but the list of Polling Stations at Army Units gazetted on 19-02-2001, was not. Nor was the list forwarded to the Petitioner by the 2nd Respondent’s letter of 11-03-2001. On 12-03-2001, as Mukasa Bulonge found new polling stations were created which had not been published even on 11-03-2001.

Although Mr. Kasujja in his affidavit and in that letter emphasized that the list includes split Polling Stations and not new Polling Stations, I accept the evidence adduced for the Petitioner that that list contained some new as well as split Polling Stations which had not been previously published in the gazette and that new polling stations appeared, so to speak, out of the blue, on 1 2-03-2001. A few examples may be given.

In the gazette of 22-12-2000, Kimabogo Parish of Buyende Sub-County, Kamuli, District, 4 Polling Stations were listed, namely, Bugogo Market, Buseete Primary School, Makenga T/C and Nambula Primary School. But in the list of 11-03- 2001, were shown 5 Polling Stations, namely Buseete Primary School, Nambula Leprosy Centre, Bugogo Market, Buseete Primary School and Makaya T/C. the new one was Makaya T/C. The new one was apparently a second Buseete Primary School, Nambula Leprosy Centre did not appear in the 22-12-2000; list.

The affidavit of James Oluka is one of those affidavits Mr. Mbabazi referred to. James Oluka said in his affidavit of 20-03-2001, that he was a Polling Assistant for the Petitioner at Akisim NRA Barracks A — D. He based his statement in the affidavit on his own knowledge and on belief. He does not state his grounds of belief. But I think it is severable. He deponed that in Akisim Ward, Soroti Municipality, where originally there were only two Polling Stations, namely Akisim NRA Barracks A — D, and Akisim NRA Barracks E —Z, on polling day two extra Polling Stations were created inside the Barracks while the first two were outside. Eventually the new un-designated Polling Stations were declared to be Polling Stations for wives of the Soldiers of Chum Barracks, which was outside Soroti Constituency. Apart from the designated Polling Stations of Akisim Barracks A — D and E — Z the other two extra Polling Stations had no Polling Agents and the Voters Register. Voters’ Cards originated from sources unknown to the witness.

James Oluka’s affidavit evidence was rebutted by affidavits of Omuge George William the Chief Administrative Officer who was the Returning Officer for Soroti Districts. He said that there were only three designated Polling Stations in Akisim Ward. These were Akisim Barracks A — D, Akisim Barracks F — Z and Akisim Barracks outside the Quarter Guard.

The affidavit of Omuge George William supports James Oluka that there were two Polling Stations in Akisim Ward designated as Akisim Barracks A — D and Akisim Barracks E — Z; and that, there were two others making a total of four. Oluka said that two of them were created on polling day. He was present in one of them as a Polling Agent and, therefore, was in position to know personally what happened on that day at Akisim Polling Stations. No doubt Omuge George William had the overall responsibility to supervise the election on polling day. A Returning Officer is unlikely to supervise a Polling Station closely.

Onen Francis was the Polling Agent for 1st Respondent at the Quarter Guard outside the Barracks Polling Station. He deponed in his affidavit in rebuttal of a date in April, 2001 that he had carefully read the affidavit of James Oluka. He did not refer to Oluka’s allegations that two new Polling Stations were created on the Polling day. With regard to the allegation that the two new Polling Stations had no Polling Agents he said that at the Quarter Guard outside the Barracks Polling Station, he was the 1st Respondent’s Polling Agent and one Oyuki was the Petitioner’s Polling Agent. The affidavit of Onen Francis does not in my view; properly answer the allegations in Oluka’s affidavit.

In the circumstances, I would prefer Oluka’s affidavit to those of Omuge George William and Onen Francis in this respect.

Another example of a new Polling Station was in Kagugube Parish, Kampala Central, Kampala District. In the gazetted list of 22-1 2-2000, there were six Polling Stations namely, Mr. Mukiibi’s Home, Kagugube, Kitamany’angamba, Kivvulu I, Kivvulu II, and NHCC Flats. But in the 11-03-2001, list, five of them had the same names as before but two were designated as Mr. Mukiibi’s Home (A — M) and Mr. Mukiibi’s Home (N — Z). This appears to have been the result of splitting old Polling Stations.

Mbuya Division in Nakawa Division in Kampala District is another example. In the gazetted list of 22-1 2-2000, Mbuya I and Mbuya II had 6 and 8 Polling Stations respectively. In the 11-03-2001 list, they had 10 and 8 Polling Stations respectively. Vincent Ebulu, the Petitioner’s Youth Co-ordinator for Nakawa Division proceeded to Mbuya Barracks with Polling Agents to over-see voting at the gazetted Polling Stations. He deponed in his affidavit of 23-03-2001, that while at Lower Mbuya at 7.30 a.m. he got to know that voting was being conducted inside the Barracks at 7 other Polling Stations at upper Mbuya. These were new polling stations inside the Barracks. He moved there and found that it was so. Consequently, he conducted the Petitioner’s head office and 5 Polling Assistants were sent to him escorted by Dr. Mukasa. This was because one Captain Ondoga, the Political Commissar of 1st Division, had chased away Ebulu and other Polling Agents he had mobilized to handle the crisis situation. Ebulu based his affidavit on knowledge and belief, but it appears that he only spoke about what he saw and observed. The Respondent’s chart does not indicate that Ebulu’s affidavit was rebutted.

According to the two lists, I have referred to above, there were four more Polling Stations at Mbuya I in the list of 22-12-2000. The list at Mbuya II appears to have remained the same as in the earlier gazetted list. In paragraph 15 of his Supplementary affidavit dated 9-4-2001 Mr. Kasujja said that the gazette indicated Mbuya Polling Stations outside the Quarter Guard. There were 12 Polling Stations for the soldiers outside the Quarter Guard due to the large number of soldiers. Annexture RB to the affidavit indicates 5 Polling Stations at Lower Mbuya and 7 at upper Mbuya which would still exceed the number in the list of 11-03-2001 at Mbuya I. That would tend to support the Petitioner’s case that on Polling day, more Polling Stations were added at Mbuya Parish than had been listed on 11-03-2001.

Other evidence for the Petitioner regarding new Polling Stations created came from several other witnesses and rebutted by equally many affidavits from the Respondents’ witnesses. For the Petitioner they included Hon. Winnie Byanyima, M/P/, Edson Bumeze, E. Bagenda Bwambale, Boniface Ruhindi, Ongee Mawino, and Perus Ogwok. Affidavits for the Respondents in rebuttal are from Rwakitavate, Hassan Galiwango, Zainabu Asiimwe, Mutabazi Pius, Hannington Byamukama, Nuwagaba, Geoffrey Okot, Ngomrom Presiding Officers, and Electoral Commission Presiding Officers. The evidence of the witnesses for the Petitioner as well as that in rebuttal from witnesses for the Respondents are not confined to matters of new Polling Stations. They are relevant to many topics, but for the present, I shall only look at the affidavits concerning new Polling Stations.

Hon. Winnie Byanyima M.P was a Member of the Elect Besigye Task Force. As such she traversed several parts of the Country to campaign for him as a candidate. In paragraph 11 of her affidavit dated 23-03-2001, she said that on 12-03-2001, she asked Ben Kavuya to check at the Barracks and he found that 4 new Polling Stations had been created in Mbarara Municipality. She found out that indeed new Polling Stations namely, Makenke I, Makenke II, Makenke Ill and Kabatereine had been created although the first three were actually located in Kashari County North of the border with Mbarara Municipality. This affidavit was deponed on the basis of knowledge of the deponent.

The Respondents’ summary of affidavits Chart does not appear to indicate that the affidavit was rebutted on this issue. The Hon. M.P’s evidence in this regard; therefore, remains un -controverted and accept it.

Edison Bumenze was a Monitor for the Petitioner for Bukonjo West Constituency for 8 Army Polling Stations in Kasese District. But instead of the 8 Polling Stations three more were added, to make a total of 11. The three extra Polling Stations were not disclosed to him as a Monitor till when the voting was coming to an end at 3.00 p.m., by which time most of the Army voters had cast their votes and left. There were no Polling Agents for the Petitioner at the three additional Polling Stations. Out of the 8 original Polling Stations, Kisebere Quarter Guard Polling Station in Kitholru Sub-County was shifted to Customs in Karombi Sub-County (where two of the new Polling Stations were created), and one Polling Station supposed to be at Karambi Gombolola Headquarters was shifted to Kanyabutumbi Quarter Guard. This affidavit was based on knowledge and belief, without disclosing the source of belief, but I have indicated above appears to be from knowledge. Zainabu Asiimwe, a Women’s Councilor for Kasese District Council, swore an affidavit in rebuttal of the one of Edson Bumenze. She said that on 12-03-2001, he saw Edson Bumenze at the offices of the Sub- County Chief of Kitholru at the time when the election materials arrived at the Sub-County Headquarters.
Immediately thereafter she proceeded to Kithobira Primary School Polling Station where she was registered to vote and she never saw Edson Bumenze again. She did not refer to Bumenze’s affidavit regarding new Polling Stations. It only denies as untrue Bumenze’s allegation that she threatened him with death. Another witness who mentioned Edson Bumenze in his rebuttal affidavit was Mutabazi Pius, the District Police Commander, Kasese. He said that Bumenze’s allegation in his affidavit that he was threatened with arrest and detention by one Major Muhindo Mawa it he did not stop campaigning for the Petitioner was not reported to the Police. In the circumstances Bumenze’s evidence that three Polling Stations were created on Polling day is not controverted. It must, therefore, be accepted.

Bagenda Bwambale Enock was an election Monitor for the Petitioner for Kasese District dated 20-03-2001. He said that at Hima main gate M- Polling Station, he noticed that there were two ballot boxes marked M — Z. When he complained to the Presiding Officer, Bob Kalenzi, one of the boxes was opened and found to be the correct one. The other one was found with Hima Main Gate A — L Polling Station materials contrary to what the label said. When the witness checked the A — L Polling Station, he found that the correct ballot box was there and voting was already in progress. The C.A.O. Hannington Syaluka withdrew the queried ballot box. When at Hima Main Gate U.P.D.F. Polling Station Bambwale noticed that instead of one ballot box, two were being used, he telephoned the C.A.O about the normally. The CAO informed him that Polling Stations had been increased from 6 to 11 on the morning of 1 2-03-200 1 by the 2nd Respondent. Due to the sudden change, the Petitioner did not have a Polling Agent for the second and additional ballot box at Hima Main Gate UPDF Polling Station. The Respondents’ summary of affidavits in the Chart indicates that Hannington Syaluka swore an affidavit in rebuttal of Bagenda Bwambale Enock’s affidavit but it does not indicate where it can be found.

Boniface Ruhindi Ngaruye, a Lawyer in private practice in Mbarara Municipality was a member of the Elect Besigye Task Force in Mbarara. He said in his affidavit dated 21-03-2001, that when he was on his way to Biharwe, he found a number of new Polling Stations at Makenke opposite 2nd Division UPDF Headquarters. They were Makenke A-J, Makenke A-N and Makenke O-Z, which had not been on the list handed over to him on 11-03-2001 by the Returning Officer, Mbarara, when candidates’ agents held a meeting with the Returning Officer in his office. He found voting in progress and there was no single agent for the Petitioner as none had been deployed there because those were newly created Polling Stations which had never been brought to the attention of the Petitioner’s Task Force. By the time he appointed the Petitioner’s agents for those Makenke Polling Stations, polling was about to close and the Petitioner’s Polling agents only witnessed the votes counting process. The deponent of this affidavit verily believed that the information regarding the newly created Polling Stations was concealed deliberately and not availed to the Petitioner’s Task Force in bad faith in so far as there were no credible reasons why the parking list availed to it on the eve of the polling day did not include these Polling Stations. The Respondent’s chart indicates that the affidavit of Boniface Ruhindi Ngaruye was rebutted by Asporo Kwesiga, but there is no indication where his affidavit can be found.

Ongee Marino’s assignment as the Petitioner’s monitoring agent in Kitgum District was to move around the District on polling day to ensure lawful voting and declaration of results. In the course of the day, at 2.00 p.m. he found that six new polling stations had been created and voting was conducted there, without the Petitioner’s Polling Agents at Pajimo Barracks 4, Pajimo Barracks B, Ngomoromo, A — E, Ngomoromo, F — N, Ngomoromo, O — Z and Malimu Abondios Wem. He deponed on the basis of his knowledge and belief, without disclosing the grounds of his belief. But all he spoke about appear to be what he saw and witnessed. The Chart indicates that Captain Nuwagaba, Geofrey Okot and Presiding Officers of Ngomoromo rebutted Ongee Marimo’s affidavit, but it does not show where their affidavits can be found.

Denis Odwok was a campaign agent for the Petitioner in Kitgum District. He deponed to the effect that he moved on a motorcycle to monitor polling in Luking and Padibe Sub-Counties. On information received, he went to Ngomoromo and found there three Polling Stations about which Ongee Marino deponed. The Uganda gazette of 1 9-02-200 1 did not list the three Ngomoromo Polling Stations in question. The only two gazetted Polling Stations in Lukung Sub-County were Nkelikongo (outside Quarter Guard) and outside Quarter Guard (Lukung). In those Polling Stations UPDF Soldiers were the persons conducting the election instead of the 2td Respondents officials. The affidavit was based on knowledge. The Chart indicates that the 2id Respondent’s Presiding Officers of Ngomoromo Polling Stations swore affidavits in rebuttal. But there is no indication where such affidavits can be found.
On the available evidence, there can be no doubt and I am satisfied that:

(a)     
The 2nd Respondent did not publish in the Gazette a list of Polling Stations in each Constituency 14 days before nomination of the Presidential Candidates in this election. This was non-compliance with section 28(1) of the Act. On the contrary the 2” Respondent’s published lists of Polling Stations in the Gazette of 19-02-2001 and another list on 11-03-2001. Many new polling stations not on the list of 11-03-2001 were also created on 12-03-2001. This was well outside the period stipulated in s.28 (1) of the Act.
(b)      The 2” Respondent’s gazetted list of 11-03-2001 contained new Polling Stations that had not been gazetted before totaling 1176. The Petitioner’s. Case was that these were newly created Polling Stations. The 2nd Respondent’s case was that no new Polling Stations were created by the list of I 103-2001 or on the morning of 1203-2001. Only old Polling Stations were spilt- In my view, whether they were old Stations which had been split or new ones, they ought to have been published within the time required by law because, as in Kasujja himself said in annexture R. 6 to his affidavit of 27-03-2001, “for this purpose Polling agents for each candidate should be appointed in the split Polling Stations-”
For all practical purposes split Polling Stations required to be treated as Polling Stations and required Voters Rolls for Polling Stations, polling agents1 ballot boxes, ballot papers, Voters’ Cards, Polling Assistants or other necessary Polling Officials, counting of the ballot papers announcement and tallying of results etc.
As evidence shows the Petitioner did not have polling agents in such Polling Stations or had them appointed when it was too late to serve any useful purpose. Consequently the Petitioner’s interest was not safeguarded in such Polling Stations with regard to the polling process.
(c) The Petitioner was not supplied with an official copy of the Voters Register, contrary to section 32(5) of the Act.
Paragraph 3(1) (q) of the Petition. Persons without Voters’ Cards were allowed to vote.
3(1) (q). That contrary to sections 29(4) and 34 of the Act the 2nd Respondent’s agents/servants in the course of their duties allowed people with no valid Voters’ Cards to vote.”

The 2’ Respondent made a reply to this ground of the Petition as follows:
“15. In reply to paragraph 3(1)(q) of the Petition, the 2nd Respondent avers that it allowed people whose names appeared in the Voters’ Register but had not been able to obtain Voters’ Cards to vote after being properly identified, and that the number of such people was small and insignificant and the 2nd Respondent did this lawfully, in exercise of powers and functions given it by law.”

The 2nd Respondent did not say in his reply what law entitled it to allow voters whose names were in the Register but without valid Voters’ to vote. It was the 2nd Respondent’s duty to cite the law which allowed it to do this.

This ground in my view, is related to the one concerning failure by the 2nd Respondent to compile and publish as required by law the Voters’ Rolls iii the Constituencies and at the Polling Stations, because Voters’ Cards could only be properly issued to Voters whose names were on the Voters’ Register and Voters’ Rolls. If the exercise of compilation and publication of the same was messed up, as I have found was the case, then the exercise of issue of Voters’ Cards was proportionately affected.

Section 29(4) of the Act provides:
“Any person registered as a voter and whose names appear in the Voters’ Roll of a Polling Station and who holds a valid Voters’ Card shall be entitled to vote at the Polling Station.”
Section 34 of the Act:
“(1) A voter wishing to obtain a ballot paper for the purpose of voting, shall produce his or her Voters’ Card to the Presiding Officer or Polling Assistant at the tale referred to in paragraph
(a) of sub-section (6) of Section 30.”

Section 2(1) of the Act says:
“Voters’ Card” means a Voter’s Card issued under section 27 of the Commission Act to a voter whose name appears in the Voters’ Register.”

It is the duty of the 2nd Respondent to design, print and control the issue of Voters’ Cards whose names appear on the Voters’ Register.

In his affidavit of 2303-2001 filed together with the Petition, the Petitioner said in paragraph 47 thereof that on 1 203-2001, he heard Mr. Aziz Kasujja the Chairperson of the 2 Respondent announce on the radio that voters who had no Voters’ Cards were allowed to vote.

In his affidavit of 27-03-20o1 filed with the Respondents’ answer, Mr. Kasujja said in paragraphs 1, 15 and 16 thereof that a Meeting was held on 11-03- 2001 with candidate’s agents to discuss the issue of registered voters who had not obtained Voters’ Cards in time and the meeting resolved that the second Respondent should take a decision on the matter. Thereafter, the 2nd Respondent made a decision that registered voters who had not obtained Voters’ Cards be allowed to vote if they could be properly identified at the Polling Stations. He then made announcements, annexture R.7 to Mr. Kasujja’s affidavit. The announcement was a press release to the effect that as the Constitution gives to every Ugandan Citizen of 18 years and more the right to vote, all Citizens of that age and whose names appear on the Voters’ Register but have no Voters’ Cards should be allowed to vote if they can be identified by the Polling officials and Candidates agents at their respective Polling Stations.

In his affidavit in reply dated 6-4-2001, based on his own knowledge, the Petitioner deponed that the Voters’ Rolls for each Constituency was never published in the Gazette by the 2 Respondent. For purposes of the 2001 Presidential election such Rolls were to be used for purposes of identifying voters at the election. On the basis of such Registers, the 2nd Respondent issued Voters’ Cards to entitle voters to vote, but not all the people were issued with Voters’ Cards although their names were on the Register. In the result, people eligible to vote as of right under the Constitution were denied the right to vote, while others not qualified voted in the 2001 Presidential election.
In his submission on this ground of the Petition Mr. Mbabazi referred to Mr. Kasujja’s briefing to the media, representatives of the candidates and Ambassadors on 11-03-2001’ (Annexture 6 to the affidavit of Mukasa David. Bulenge dated 1-4-2001), in which Mr. Kasujja said that issuing of Voters’ Cards started on 1-3-2001 and ended on 1 003-2001. He also referred to Bulenge’s affidavit and others.

In reply Mr. Kabatsi contended that the 2nd Respondent was merely giving affection to the article 59(1) of the Constitution when it allowed persons whose names were on the Voters’ Register but had no Voters’ Cards to vote. Those not registered did not vote even if they had Voters’ Cards. That is the effect of the Chairperson’s press release and paragraphs 15 and 16 of his affidavit, the learned Solicitor General contended. He then said that the Petitioner has not informed the Court the number of persons who did not vote, because they did not have Voters’ Cards. It is necessary to know the numbers before the Court can decide that the result of the election was affected.

In my view, the right to vote under article 59(1) of the Constitution may be exercised by a Citizen of Uganda of the age of 18 years or more if his or her name appears in the Register of voters and has a Voter’s Card. A Voter’s Card is essential because it is a means of identifying the holder of the card as the person whose name appears in the Voters’ Register. It is mandatory for a voter to possess a Voter’s Card before he or she can exercise the right to vote. It is a condition precedent. For that any other reasons Mr. Kasujja, the 2nd Respondent’s Chairperson issued a statement dated 1 902-2001 (annexture 11 to the affidavit of Mukasa David Bulonge dated 1-4-2001). It was headed “Guide-lines for polling Presidential Elections, 2001.” t stated, interalia
“2.0
1
……………………….
2. A voter wishing to obtain a ballot paper for the purpose of voting shall present his or her Voter’s Card to the presiding Officer or polling assistant (section 34(1).
3 …………………………..
4. A person who holds a Voter’s Card but whose name does not appear on the Voters’ Roll for that Polling Station shall not be allowed to vote.
5. Only those voters with valid Voter’s Card will be allowed to vote if their names appear on the Voters’ Roll for that Polling Station.”

In the circumstances, it was illegal for the 2nd Respondent to allow persons without Voters’ Cards to vote even if their names were on the Register of voters. The argument that by doing so, the 2nd Respondent thereby gave effect to article 59(1) of the Constitution is, with respect, not valid. A provision of the Constitution cannot be implemented by breaking other laws.

The Petitioner filed in Court a list of witnesses whose affidavit evidence is relevant to the matter at hand. The list contains 14 names. Since the 2nd Respondent concedes that it authorized voters without Voters’ Cards to vote if their names were in the Voters’ Register I shall took at some of the evidence to see what actually happened in practice and to gauge the extent of the noncompliance with sections 29(4) and 34 of the Act

Sulaiti Kalule of Habitat Village, Kasese Town Council, was a Monitor for the Petitioner in Kasese District. One Robert Kanunu went and handed to him 16 Voters’ Cards which had been given to him (Kanunu) to hand over to other people to be used illegally. Kule noted the names on the Cards in his note book. The Chart indicates that Kule’s affidavit was rebutted by Kugonza Charles but it is not shown where the rebuttal affidavit can be found.

Fazil Masinde’s affidavit has already been referred to in another context. He was the Petitioner’s Monitor for seven Polling Stations in Mayuge District, which he named. On polling day when he was moving to Bubali Polling Station, Masinde saw the LCI Chairman, Mr. Isa Bwana, distributing Voters’ Cards to people who had not registered as voters and instructing then’ to vote for the 1st Respondent.

The LC.I Chairman of Butangalo, Mrs. Kadiri Mukoda was also distributing cards to non registered voters. Isha Nabinye and Baina Nakagolo were two of them. The GISO, Ahmed Gesa, was also issuing Voters’ Cards and directing people to vote for the 1 Respondent at Busakira B Polling Station and threatening them that if they did not vote for the 1st Respondent, they would see. Gesa Ahmed, Defence Secretary LC2 Kaluuba Parish and the Gombolola Internal Security Officer (GISO) rebutted Masinde’s affidavit. In his affidavit of 2-4-2001, he said that what Masinde said was false. He was not an agent of the 1st Respondent; nor did he hold any official position in the electoral process. He did not issue any Voters’ Cards. He was neutral during Presidential Election.

I do not find Gesa Ahmed’s affidavit convincing. It was a blanket denial. He did not say why Masinde should have fabricated his story with such details. Mudaaki Emmanuel also rebutted Masinde’s affidavit. He was the presiding Officer of Butongala Trading Centre Polling Station. He deponed that he did not know Fazil Masinde since he was not at Butongala as a candidate’s agent. He denied having directed people to vote for the 1st Respondent. The voting exercise proceeded very smoothly and transparently according to him and at the end candidate’s agents signed the declaration forms. Mudaaki’s affidavit did not refer to Masinde’s allegation about distribution of Voters’ Cards. Masinde was not a Polling agent. He was a monitor moving around. Mudaaki did not say why Masinde should have fabricated this detailed story. As an electoral official, Mudaaki would be expected to deny any wrong — doing as a presiding Officer. He would be expected to say what he said namely that election exercise proceeded smoothly and transparently even if it did not.

Idd Kiryowa is from Lwebitakuta, Mawogola, Sembabule District. In his affidavit of 19-03-2001’ he deponed that he and one Tafayo Haussein were Polling agents for the Petitioner at Nabiseke Polling Station. At about 1.00 p.m. on information received, he went behind the building housing the Polling Station. He went there and found one Nabosi distributing Voters’ Cards. Nabosi was the 1st Respondents campaigner. Nabosi sought to give Kiryowa money so that he would conceal what he had seen. He refused, and lodged a complaint with the presiding Officer but to no avail.

Kakuba Nathan rebutted Kiryowa’s affidavit. He was the Respondent’s Polling agent at the same Polling Station, where he also voted. He denied that he was requested as Kiryowa alleged, and that he was requested by Nabosi to approach Kiryowa for any reason what so ever. He could not have gone behind the building since Polling agents were supposed to keep at the presiding Officer’s desk all the time during voting exercise. Kakuba did not refer to Kiryowa’s allegation of distribution of Voters’ Cards. I find that in the circumstances, the evidence to that effect is not rebutted and stands uncontroverted.
Guma Majid Awadson of Lumuga Parish, Yumbe District, in his affidavit of 9-3-2001, said that he was the Petitioner’s election Monitor for several Polling Stations. When he went to Aleapi Parish, Ojinga Polling Station he saw one Mawa a member of the i Respondent’s District Task Team and campaign Manager distributing Voters’ Cards to people whose names were not on the Voters’ Register and who did not have Voters’ Cards.

Drasi Ali, LCIII Chairman of Kuru Sub-County, Yumbe, rebutted Guma’s affidavit. His rebuttal affidavit IS relevant to multiple voting at Aliba Polling Station, not to Voters’ Cards distribution at Ojungo Polling Station.

Maliki Bukoli is from Doko Cell, Namatata Ward, Mbale Municipality. In his affidavit of 2103-2001, he said that on 1 203-2001, at 11.00 a.m. he went to Namatata Polling Station and cast his vote. On his way back he found a crowd of people gathered around a man at the Catholic Church Polling Station. He noticed that one Mukonge a man he knew had been arrested with 5 Voters’ Cards. He was arrested by the Police. Mukonge said that he was the Respondent’s supporter and that he was going to vote for the 1st Respondent. Maluku Bukoli’s affidavit is not rebutted.

Ojok David Livingston of Doko Cell, Namatota Ward, Mbale Municipality was the Namatata Task Force for the Petitioner on 12-03-2001. While on duty with Massa Musa, a fellow monitor for the Petitioner, they were sent to Doko, Nsambya Polling Station by Mr. Mayambala that there was a lady distribUtifl9 Voter’s Cards. They went with a Policeman to the lady’s home. She was Nakintu whom Ojok knew. The Police asked her. She admitted that she had received 50 Voters’ Cards from Councilor Wafula Charles of the Industrial Area Division to distribute them to the Respondent’s supporters. She had distributed 11 to her fellow supporters of the 1st Respondent. She produced the balance of 39 Voters’ Cards and gave them to a Police Officer. She also handed over a bottle of Jik, Cussons Imperial Leather Soap and rug which were intended to wash and remove marking ink from thumbs of people who had voted so that they could vote again.

Wafula Charles, a Councilor of Industrial Area, Mbale rebutted Ojok’s affidavit. In his affidavit of 24-2001, he deponed that it was not true as Ojok alleged that he gave Nakintu Margaret 50 Voters’ Cards to distribute to supporters of the 1st Respondent.

He never received Voters’ Cards from any person for distribution to the 1st Respondents’ supporters. Wafula did not say why Ojok should have invented his detailed story. His is just blanket denial which is not credible I prefer Ojok’s evidence to that of Wafula.

Wafidi Amir, of Nawuyo Village Bumutoto Parish, Bungokho Sub-County, Mbale District, was a Monitor for the Petitioner’s Task Force. His work was to monitor election in Mutoto. On 12-03-2001, when he was at a taxi stage the motor vehicle of the RDC, Hassan Galiwango, parked at the stage. The County Chief for Nambale Mutoto ran to Galiwango who had alighted from the motor vehicle. The two talked and left. Wafidi proceeded to Museto. At the same time, the local Movement Chairman also passed by on a motor cycle driven by one Sonya David towards Musoto, where Wafidi was proceeding to. At the local railway crossing, Wafidi and his own driver noticed Sonya David carrying a Black Hand bag. Wafidi grabbed the bag to see its contents. This was because he and colleagues had got information that plans were afoot to rig the election. As he and David Senya struggled for the bag, it got torn. More than 50,000 Voters’ Cards, official stamps, and Declaration Forms for Bungokho sub-County poured out of the bag.

Wafidi raised an alarm, which was answered by a crowd, who assisted Wafidi to hold Sonya and retained the bag. The Movement Chairman and the Sub- County Chief arrived at the scene and tried to rescue Sonya, but in vain. The crowd held Sonya until the Police arrived; and he and the bag were taken to Mbale Police Station. Wafidi’s complaint at the Police Station was registered SD.1L8/12/03/2001. Two days later Wafidi saw Sonya at large, in their area. The affidavit was based on knowledge and belief. Belief is irrelevant since what Wafidi said was based on what he witnessed.

Geoffrey Wanda rebutted Wafidi’s affidavit. He denied that on 12-03-2001, he was in the company of Sonya David as Wafidi alleged, or that he went to Musoto on that day. His Polling Station was Bukasa Kija Primary School where he cast his vote, and he did not engage in any electoral malpractice. Wanda did not say whether he was the local Movement Chairman as alleged by Wafidi. Wanda’s rebuttal affidavit is blanket denial. He did not say why Wafidi should fabricate such a detailed account of what he said he witnessed, including Police reference of his report at Mbale Police Station. I accept Wafidi’s evidence as true and reject Wando’s denials.

Kakuru Sam of Karuhinda Village, Kijubwa, Kirima Sub-County, Kanungu District, was the Petitioner’s Task Force Chairman for Kirima Sub-County. On l7-3-2001, when he went to collect his own Voter’s Card from Karulinda Polling Station, he found there one Nshekanabo receiving Voters’ Cards. He was given a stack of about 30 Voters’ Cards. When Kakuru asked why, he was told that it was none of his business. The affidavit was based on knowledge and belief. Since what he said in the affidavit in this regard was what he saw, belief is irrelevant.

Kakuru’s affidavit was rebutted by Capt. Atwoki B. Ndahura. Most contents of the Captain’s affidavit related to evidence from many witnesses alleging harassment and intimidation by the Presidential Protection Unit (PPU) in Rukungiri. Regarding Voters’ Cards, he said that he was not aware that Zikanga was found with Voters’ Cards. He did not refer to Nshekanabo who Kakuru said he had found with a stack of Voters’ Cards, which evidence consequently stands unrebutted.

Kako Medard of Kashambya, Ruhandagazi Parish, Kambuga Sub-County, Kanungu District was a registered voter at Komajune, and a Polling Monitor for the Petitioner. I have already referred to his evidence in another context. About Voters’ Cards, he said that as soon as the Cards arrived at his Polling Station, officials including a Mrs. Busingye, initially refused to give him his Card, but did so later after a long quarrel. With others at that time he personally witnessed the LCI Chairman of Koko’s Cell picked many Voters’ Cards saying he would distribute them to the owners.

Koko Medard’s affidavit was rebutted by Constain Atwoki B. Ndahura who was the Commander of the PPU in Rukungiri at the material time. He said in his rebuttal affidavit that he was not aware of the allegation that one Zikanga was found with Voters’ Cards. This is irrelevant to Koko’s allegation that it was LCI Chairman he found picking Voters’ Cards, unless, of course, the LCI Chairman was Zikanga. The Captain does not say why he should have been aware of the incident. He does not say that he was at Kamajune when Koko was there or at all. Consequently, I do not find that Koko’s evidence in this regard is rebutted. In the circumstances, I accept it as true.

It would take a lot of time to consider evidence from all the 14 witnesses listed by the Petitioner on this topic.

What I have referred to above are samples of the evidence which, in my view, illustrates the actual practice and the extent of the malpractices on the issue of Voters’ Cards, which was widely spread throughout the Country.

In the Guidelines for Display of the Voters’ Register for Presidential Election, 2001, issued by the 2 Respondent’s Chairperson, Mr. Kasujja, which was undated, it was said:

“IV ISSUANCE OF VOTERS’ CARDS:
1. Voters’ Cards are to be issued to
all registered voters whose particulars appear on the Voters Register.
2. Voters whose particulars have been crossed out from the Register during the display must not be issued with Voters’ Cards.
3. All Cards must be signed (thumb print) for in the column marked “CHECKED” on the Register, by the OWNERS on receipt.
4. Voters’ Cards which will not have been issued by the end of the display must be returned to the Commissioner along with the rest of the display materials”

These guidelines in my view were issued under section 26 of Act 3/97.

The evidence I have evaluated under the ground of the Petition under consideration obviously indicates that many Voters’ Cards were not issued in accordance with the guidelines issued by the 2nd Respondent’s Chairperson. Such Voters’ Cards were not received by the owners in person. Under section 26(1) of Act 3/7 it is the 2nd Respondent who designs, controls and issues Voters’ Cards to voters whose names appear in the Voters’ Register. It follows that all Voters’ Cards can be issued out only by the 2nd Respondent or its officials and/or servants mainly Presiding Officers or Polling assistants. The Voters’ Cards which the evidence we have considered show were distributed by persons other than the 2nd Respondent’s officials were in the possession of persons who were not the legal owners of the Cards and were issued out not in accordance with the law.

In the circumstances the 2nd Respondent was liable for the acts of its officials such as Presiding Officers or Polling assistants who issued such Voters’ Cards.
The persons which the evidence shows were in possession of the Voters’ Cards illegally committed offences under section 26(2) and section 28(3) (a) of Act 3/97.

In the circumstances, I am satisfied that the Petitioner has proved to the required standard, and I find that:
“Contrary to sections 29(4) and 34 of the Act the 2nd Respondent and its servants/agents, in the course of their duties, allowed people with no valid Voters’ Cards to vote.

I shall consider the effect of this non-compliance on the election together with the effect of other non-compliance later in this judgment.

Paragraph 3(1) (g) and 3(1)(p) - Polling Agents chased away.

“3(11(g) That contrary to the provisions of sections 32 and 47(4) and (5) of the Act on the Polling day during the polling exercise, the Petitioner’s Polling Agents were chased away from many Polling Stations In many Districts of Uganda and as a result the Petitioner’s interests at those Polling Stations could not be safeguarded.”
“3(1) (p). Contrary to section 32 of the Act, the 2nd Respondent’s agent/Servants the presiding Officers failed to prevent the Petitioner’s Polling agents from being chased away from Polling Stations and as a result the Petitioner’s agents were unable to observe and to monitor the voting
progress.”
The 2 Respondent answered these allegations as follows

“In reply to paragraph 3(1)(g) and (p) of the Petition, the second Respondent avers that he has knowledge that Polling Stations agents of the Presidential Candidates were chased away by servants or agents of the second Respondents or by any other person as alleged, and that the Petitioner’s agents were free to observe and monitor the voting process.”

The provisions of section 32 of the Act are in the following sub-sections
 
“(1) A candidate may be present in person or through his or her representatives or Polling Agents at each Polling Station for the purposes of safeguarding the interests of the candidate with regard to the polling process
(2) Not more than two representatives or Polling Agents shall be appointed by a candidate under sub-section (1) and the appointment shall be in writing and presented to the presiding Officers at each Polling Station.
(3) Representatives or Polling Agents appointed under sub-section (2) shall report to the Presiding Officer of the Polling Station on
the polling day.
(4) The Polling Agents shall be seated in such a place as to enable them observe and monitor clearly the voting process.
(5) The Polling Agents shall have an official copy of the Voter’s Register of Polling Stations at the candidates cost.”

Section 47(4), (5) and (6) of the Act provide:

“(4) Subject to this Act a candidate is entitled to be present in person or through his or her agents at the Polling Station throughout the voting and counting of votes and at the place of tallying of the votes and 8scertaining of the results of poll for the purposes of safeguarding the interest of the candidate with regard to all the stages of counting or tallying processes.
(5) The presiding Officer and the candidates or their agents if any shall sign and retain a copy of a declaration stating

(a) the Polling Station;
(b) the number of votes cast in favour of each candidate; and the presiding Officer shall there and then, announce the results of the voting at that Polling Station before 0mmunicating them to the Returning Officer.
(6) Votes cast for each candidate shall be recorded in both figures and words and then counter signed by Polling Agents before the declaration of results.”

These provisions of the Act have their origin in article 68 of the Constitution’

In his submission under this ground of the Petition, Mr. Mbabazi said that affidavits evidence adduced by the Petitioner shows that the Petitioner’s agents were chased away from Polling Stations by the Army. He referred to the affidavits of Kizza Davis which is corroborated by Baringo Ozo. Other affidavits are from Kipala John, James Musinguzi, Sentongo Elias, Robert Kironde, Ongee Marino, Charles Owor, etc. Evidence also shows that such Polling agents neither signed nor retained the declaration forms, which they were entitled to do under s.47(5) of the Act. The Polling agents chased away were not present to sign the declaration forms. Some of the declaration forms show that the votes cast exceeded the number of ballot papers issued at the Polling Stations.

In other cases, learned counsel submitted, candidates’ agents retained declaration forms. These have been exhibited as samples, annexed to the petition. Others are annexed to the Petitioner’s affidavit dated 6-4-2001. In reply to the 2 Respondent, learned counsel referred to the declaration forms as examples from Ishaka Adventist College in Bushenyi District and Makindye Division in Kampala. Declaration forms from such Polling Stations also proved falsification of results, Mr. Mbabazi contended.

In his counter submission under this ground of the Petition, Mr. Kabatsi said that affidavits supporting the Petition in this regard, i.e. chasing away of the Petitioner’s agents from, and excess votes cast over ballot papers issued, at Polling Stations, have been rebutted by affidavits opposing the petition. For instance affidavits of Kirunda Mubarak, alleging chasing away from Mpungwe Polling Station is rebutted by the affidavit of Balaba Dunstan, Ag. Chief Administrative Officer of Mayuge District who was the Returning Officer at the material time. The affidavit of John Tumusiime is rebutted by that of Johnson Bitarabeho, the Returning Officer of Bushenyi. Hamman Rashid, rebutted by Major Jero Bwende; Charles Owor, rebutted by the 2nd Respondent’s Deputy Chairperson, Flora Nkurukenda; Robert Kinende, rebutted by Joshua Wamala.

I shall now move to consider the evidence regarding the alleged chasing away of the Petitioner’s Polling Agents from Polling Stations and the alleged falsification of results through declaration forms and tally sheets and the evidence in rebuttal.

Kizza Davis was a registered voter at Kamwenge Primary School, Block I in Kamwenge District and an appointed Polling agent of the Petitioner. In his affidavit dated 23-03-2001, he deponed that on 11-03-2001, at 9.00 a.m. he was in the company of Wasswa Peter, his brother, and Robert, a friend, in Kamwenge Town, when he was arrested by members of the Local Defence Force named Kenneth and Friday. He was then taken to a railway line where he found another agent i.e. Faida Charles, arrested. Lt. Richard came at about 10.00 a.m. and instructed Kenneth and Friday to take away his identity card and continue to detain him. At 1 .00 p.m. he was transported in Katusabe’s car to Kamwenge Army Detach Barracks and put in a ditch where two armed soldiers guarded him. On polling day, he was taken to the Polling Station at Kamwenge Primary School, where the same 2nd Lt. Richard ordered the Presiding Officer to tick the witness’ ballot paper in favour of the 1st Respondent. Two armed soldiers escorted him to the ballot box where he cast the vote. There were two armed soldiers at the Polling Station. He was released at about 6.00 p.m. Due to the arrest and detention, he was unable to deliver letters appointing 5 other persons (whom he named) as the Petitioner’s Polling agents. Nor was he able to do his work as the Petitioner’s Polling agent. For the same reason the other 5 persons also failed to work as such.

Kizza Davis’ evidence that Kahesi Slaya was one of the 5 persons whose letters of appointment as the Petitioner’s Polling agent was taken away is corroborated by James Birungi Ozo in his affidavit of 22-03-2001. The affidavit of Kizza Davis is not rebutted.

James Birungi Ozo, a registered voter, was the Petitioner’s District monitor and District coordinator for Kamwenge District. In his affidavit of 22-03-2001, he mentioned many election malpractices including the one that Kahesi Slaya’s appointment letter as the Petitioner’s Polling agent was confiscated by the Army and that he (Ozo) was on 8-3-2001 shot at by Captain Komkiriho, C.O. of Bihanga Barracks in order to prevent him from campaigning for the Petitioner. He was shot at in the presence of Peter Byomanyire, Engineer Dan Byamukama and LC.lll Movement Chairman of Ibanda.

He deponed the affidavit on the basis of his knowledge. According to the Respondents’ Chart, Ozo’s affidavit was not rebutted.

Ssentongo Elias a resident of Ntungamo Town Council, Ntungamo District, had the responsibility of overseeing Polling agents for the Petitioner in Ntungamo Town Council and Kalunga Sub-County. When he proceeded to Nyaburiza Parish and Kabuhome Polling Station, one Tom Muhoozi, the Chairman of the District Service Commission and a known supporter of the 1 Respondent chased away all the Polling agents of all candidates except the ones for the 1St Respondent. Muhoozi Tom’s affidavit of 3-4-2001 rebuts that of Ssentongo Elias. Muhoozi said that he was a registered voter at Kabuhome Polling Station in Nyaburiza Parish. On Polling day, he went to the Polling Station at 10.00 a.m. and returned home immediately after casting his vote. Ssentongo Elias, whom he knew, was not at the Polling Station. Muhoozi denied that he chased away any candidates’ agents. He further said that in the evening he returned to the Polling Station. Voting closed in his presence. The Petitioner’s agents were all present and signed the declaration forms.

I have three brief comments on this rebuttal evidence. One is that Ssentongo’s accusation is made directly against Muhoozi. As a result he would not be expected to admit the allegations. If he did so, he would be admitting having committed an election offence. For a Chairman of the District Service Commission, which Muhoozi was, such admission would be unthinkable. It might be said that a person in his position would not be expected to do what Ssentongo alleged against him. That may be so, but it is the kind of action which one could take without serious thought of the consequences.

Secondly, without Muhoozi having been at the Polling Station the whole day it is not possible to say that Ssentongo did not go to the Polling Station at all. Thirdly, since it is Muhoozi who intended to prove that the Petitioner’s agents were not chased away by the fact that they signed the declaration form (if indeed they did) he ought to have annexed the form to his affidavit. He did not do so. Ssentongo’s affidavit is so detailed that I do not think that he would have invented what he deponed therein.

Kipala John of Lubira Zone, Kyotera Town Council, Rakai District deponed in his affidavit of 19-03-2001, that he was deployed at Magabi Parish, Kibanda Sub- County Rakai District as an election Monitor for the Petitioner. He was at Gayaza Polling Station at 7.00 a.m. The ballot box and voting was opened in his presence. In the course of the day, he made many complaints against election malpractices at the Polling Stations, such as missing ballot papers from a ballot papers book, multiple voting and ticking ballot papers for others by the 1st Respondent’s supporters. When Kipala demanded that the Presiding Officer should assert his authority a group of people armed with clubs charged at and threatened to kill him. He was chased away and was only rescued by his colleague, one Kimera, who whisked him away in a motor vehicle. The Respondent’s Chart does not show that Kipala’s affidavit is rebutted.

Senyonga John of Lwebitakuli Village, Lwebitakuli Sub-County, Sembabule District, was appointed the Petitioner’s Polling agent at Katutu Polling Station Lwebitakuli Parish. At Katuntu Polling Station he introduced himself to the presiding Officer Emmanuel. At first the Presiding Officer chased him away, saying that he was not a resident of that village. After explanation to, and argument with, the Presiding Officer, Senyonga was allowed and told to sit far away from the Presiding Officer’s desk. He sat 30 meters away. The Presiding Officer prevented him from looking at the Voters’ Register. At the end of voting, the Presiding Officer gave him documents to sign, but he refused to do so. Ssenyonga was threatened with arrest. His affidavit was based on knowledge and belief. Belief seems to be irrelevant because all that he spoke about was what happened in his presence.

Kiwanuka Fred was the Chairman of the 1st Respondent’s Task Force and Movement Chairman for Lwebitakuli Sub-County. He deponed in his affidavit of 12th April 2001, rebutting Ssenyonga's affidavit. He said that he cast his vote at Kezinga Polling Station and returned home. He denied that he went to Katutu Polling Station and voted there as alleged by Senyonga because he was not registered as a voter there. Kiwanuka Fred’s affidavit is not relevant to Senyonga having been chased away and having to sit 30 meters from the presiding Officer’s desk. It is relevant to other election malpractices, which I shall consider later in this judgment.

Bernard Matsiko was a registered voter at Nyabitunda Polling Station in Ntungamo Parish and a campaign agent for the Petitioner in Kayonza Sub-County. He deponed that on Polling day, he reached the Polling Station at 6.30 a.m. with fellow agents and found that voting had already started. When he attempted to stop the 1st Respondent’s agent, Rehema Biryomumaishoi from stuffing ticked ballot papers in the ballot box, he and other Petitioner’s agents were forcefully chased away from the Polling Station by election officials, with the help of armed personnel and their appointment letters were confiscated. He further went to Kyeshero Polling Station and found similar election malpractice going on. He witnessed Canon Mungakazi and Rwamahe ticking ballot papers as they liked. He found this strange. Rwamahe who was armed with an AK 47 chased Matsiko away with the help of LDU’s and some army men who were threatening voters. The affidavit was based on knowledge and belief but the grounds for belief were not shown. It is clear that belief was irrelevant because the deponent saw, experienced and witnessed what he said in his affidavit.

Bernard Matsiko’s affidavit is rebutted by Mugisha Muhwezi, the Deputy Resident District Commissioner of Rukungiri District. He deponed that he had read Matsiko’s affidavit. It contained falsehood. Muhwezi’s affidavit did not refer to Matsiko’s allegations about the Petitioner’s Polling agents being chased away. It referred to other malpractices, which I shall consider later in this judgment.
James Musinguzi was a registered voter at Ntungamo, Kayonza Sub-County, Kanungu District. He was also in charge of the Petitioner’s election campaign in the South - Western Region of Uganda. His affidavit dated 23-03-2001, speaks of many election malpractices. Regarding chasing away of the Petitioner’s agents, he deponed that on Polling day, he visited Kashojwa, Nyarurembi, Kijumbwe, and Ntungamo Polling Stations in Kanungu District. At all of them he found that the Petitioner’s Polling agents were chased away from Polling area, and there was no actual voting since ballot papers were being pre-ticked in favour of the 1st Respondent by Polling officials who would then direct the “voters” to put them in ballot boxes. He complained about this to the Presiding Officer, but he was disregarded. The GISO of Kiruma, in the presence of the Kiruma LC.lll Chairman, blatantly said to him that his complaints were a waste of time as it had already been decided that the Petitioner should be allowed not more than 4 votes in Kijumbwe Parish. The Petitioner ended up with 3 votes from that polling center comprising of three Polling Stations. At the Polling Station of Kijumbwe Polling Centre the Petitioner’s agents who had been chased away were dragged back after the “vote count” and forced to sign the declaration forms in respect of voting they had not witnessed. The malpractices were being done in the presence of police personnel. In the circumstances the witness did not vote since it was meaningless to do so. The affidavit was based on knowledge and belief. Grounds of belief were not revealed but in essence, the affidavit was based on knowledge of what the deponent witnessed.

The affidavit of Captain Atwoki B. Ndahura rebuts the affidavit of James Musinguzi about allegations against the Presidential Protection Unit (PPU), but not about the Petitioner’s Polling agents being chased away. I shall deal with the allegations about other malpractices later in this judgment.

Koko Medard of Kashambya Village Ruhandagazi Parish, Kambuga Sub-County, Kanungu District, was registered to vote at Komajume Polling Station. He was also a Polling Monitor for the Petitioner. When the Voter’s Register was displayed at the said Polling Station, he went there to check the register but Mrs. Bushingye and other officials in control of the register refused to allow him to search the register although he tried several times to do so. Others, namely Mr. Kuliku, Kijana, Saturday, Rwamulanda and many others also tried to search but they were refused to do so because it was said that they were supporters of the Petitioner, but supporters of the 1st Respondent were allowed to search the register.

Soon after the voting cards were taken there, the said Mrs. Busingye initially refused to give Koko his card, and eventually did so after a long quarrel. Koko monitored other Polling Stations including Nyamuto. When he reached there at 2.00 p.m. he found that Peter Mugisha, a District Councillor and an avowed supporter of the 1s Respondent had chased away the Petitioner’s agents from the Polling area and the agents had been forced to stand 50 meters away from the ballot boxes, where they could not see what was going on. At that time all other people except the 1 s Respondent’s agents, had been chased away from the Polling Station which was deserted. He also visited Nyarugendo Polling Station. As soon as he and one Bakunzi arrived there, one Yoramu, son of Bakunzi pounced on Bakunzi and started boxing him. They took off on their motorcycle as a whole crowd of the 1 Respondent’s supporters chased them away with stones. They lost their record book of voting in the process. Next he arrived at Ruhandazi at 11 .00 a.m. and found Arthur Mugisha Chairman L.C.III had just beaten Kwibwomanya Lawrence the Petitioner’s agent, and whose supporters were scattered in disarray. Koko was not allowed at the Polling Station itself. He found that Kwibonyanga, Polling agent and other agents of the Petitioner had taken refuge 150 meters away from the Polling Station and could not be allowed any nearer. Koko was not allowed any closer and he could not vote at that Polling Station as he was entitled to do. So he never voted.

In the respondents’ Chart, Captain Atwoki B. Ndahura is indicated as having rebutted the evidence of Koko Medard, but the Captain’s affidavit does not refer to the allegation of chasing away the Petitioner’s Polling agents made in Koko’s affidavit.

Kiwume A. Ibrahim, of Indifakula Parish, Bugiri Town Council was the Petitioner’s Polling Monitor for Bukoli South Constituency. On a date he did not mention in his affidavit of 20-03-2001, he said that he was from Bugiri and going to Namayengo. He met soldiers, Army/Civilians on a District Medical Officer’s motor vehicle, carrying 11 soldiers and four civilians. It was a double cabin Pickup. Kiwume had a Card of a Polling Monitor displayed on him. The occupants of the Pick-up stopped and told him to go back to Bugiri. When he was going back, he met Police Officers, a Mr. Mafabi and Mrs. Oteba whom he knew. He reported to the Police Officers that soldiers had harassed him. They allowed him to proceed to Namayengo. The soldiers told him not to move anywhere else, but to remain at Namayengo. Thereafter every Polling Station he reached, the Petitioner’s Polling agents had been chased away to eight meters, and told by the Presiding Officers to keep away.

The Petitioner’s Chairman in charge of Bukooli South West Constituency had been arrested and put inside Namayengo Police Station. He was put in for no reason, nor was a statement recorded from him. There were 11 other supporters of the Petitioner who were detained at Namayengo Police Station. The Chairman was released from custody on the orders of the R.D.C. Ms. Nava Nabagesera, who also ordered the Petitioner’s local office to close until further notice. In her affidavit of 03-04-2001, in rebuttal, Ms. Nava Nabagesera denied the allegation. There is no indication in the affidavit in rebuttal why Kimumwe A. Ibrahim should have fabricated lies against the R.D.C., if he did so. On the other hand, in my view, there is a good reason for her denial. An admission that a highly placed official like the R.D.C., Nava Nabagesera, had committed election offences as alleged against her would be unthinkable. I would therefore reject Ms. Nava Nabagesera’s denial and accept Kiwume’s evidence, and I do.

Suliman Miiro of Nkuusi Village, Naluwerere Parish Bugiri Town Council, Bugiri District, was the Petitioner’s Monitoring agent for Bukuli North Constituency. He also visited Bus Park “A” Polling Station to ensure that voting there was free and fair. In his affidavit of 02-03-2001, he said that soldiers from R.D.C.’S Office came threatening and forced young children below 18 years old to vote. Miiro and others tried to refuse but they were overpowered since the soldiers were armed. The Petitioner’s agents were chased away from the Polling Station by armed soldiers for about 4 hours. Soldiers started bringing small children to vote and they voted.

Ms. Nava Nabagesera, the RDC of Bugiri District also rebutted Suliman Miiro’s allegations. She denied that soldiers from her office threatened people and forced children below 18 years to vote. She further said that at no time did she receive reports of soldiers’ threats, harassment and intimidation of people throughout Bugiri District and that the election was free and fair in the District. The comment I made in respect of Ms. Nabagesera’s affidavit in rebuttal of Kiwume’s affidavit equally applies to her rebuttal of Miiro’s affidavit.

Basajabalaba Jafari resides at Ishaka, Bushenyi Town Council. He said in his affidavit that he was Secretary to the Elect Busingye Task Force for Bushenyi District. On Polling day, he was in charge of Bunyaruguru Sub-District for overseeing operations of the Petitioner’s Polling Agents. On that day, he witnessed at Katande Primary School Polling Station one 1st Respondent’s agent chasing away the Petitioner’s agents from the Polling Station and the presiding Officer allowed such incidence to take place. For about 3 hours voting went on in the absence of the Petitioner’s Polling agents, until the Sub-County Chief, Katerera and the Police, intervened following Jafari’s report to Katerera Police Post. The Respondent’s Chart does not indicate that the affidavit of this witness is rebutted. His evidence, therefore, stands controverted, and I accept it as true.

I have already referred to the affidavit of Boniface Ruhindi Ngaruye in this judgment. He said in paragraph 8 thereof that on Polling day, he witnessed a case where the Presiding Officer at Biharwe Polling Station denied the Polling agent for the Petitioner to be present at the Polling Station until around mid-day when Ngaruye explained to the Presiding Officer that he had no such authority. In the Respondents’ Chart, one Aspro Kwesiga is indicated as having rebutted Ngarunye’s affidavit, but where Kwesiga’s affidavit can be found is not shown.

Muhairwoha Godfrey, of Kijaaho Isingiro, Mbarara District was the Petitioner’s Polling agent at Kajaaho 4 in Kajaaho Parish, Kikagate Sub-County, Isingiro South Constituency. He deponed in his affidavit of 21-03-2001, that there were numerous election malpractices at Kajaaho 4 Polling Station and massive rigging in favour of the 1st Respondent. At around 10.00 a.m. one Charles Rwabambari, the Respondent’s supporter, went to the desk of the Presiding Officer accompanied by one Kanyahurwa Parish Chief of Kajaaho Parish, and took over the station from Katsimbazi, the Presiding Officer, and started issuing ballot papers and ticking them for voters. When Muhairwoha protested, the Parish Chief ordered that he be arrested tied and taken to the Parish Headquarters. One Paskali Katsigano a uniformed and armed UPDF reserve force tried to arrest him but Muhairwoha took off. He left together with his colleagues, equally chased away. The Respondents’ Chart does not show that the affidavit of Muhairwoha was rebutted. His evidence, therefore, is uncontroverted and I accept it as true.

Alex Busingye, of Kakiika, Mbarara, was in charge of overseeing the operations and welfare of the Petitioner’s agents in Kazo County. In his affidavit of 21-03-2001, he deponed that in the majority of Polling Stations he visited; he found that the Petitioner’s Polling agents had been chased away. The deponent does not disclose the source of this information. That part of the affidavit is therefore, defective and inadmissible. However, he also said that at Nkungu Polling Station, he found that the Petitioner’s Polling agent had been tied by UPDF Soldiers and bundled on a pick-up No. 114 UBS, in which they were traveling. The Respondents’ Chart indicates that Busingye’s affidavit is rebutted by Aspro Kwesiga, but where the rebuttal affidavit can be found is not indicated.

Kirunda Mubarak, of Misoli Village, Busuyi Parish, Bunya West Constituency, Mayuge District, was the Petitioner’s Polling Monitor for the entire District of Mayuge. In his affidavit of 20-03-2001, he deponed that at Mpungwe Polling Station, the letters of the Polling agents were withdrawn from them on the grounds that their appointment letters were fake. The agents were sent away; the voting continued. When Kirunda asked the Presiding Officer why, the latter said that they were not sure of them, so they were told to sit far. They were not allowed to write anything. Kirunda reported the matter to the CAO but the complaint was ignored. The LC.I and LC.II got hold of Kirunda and forced him out of the Polling house because he had queried why under age children were voting. In the same Polling Station Mrs. Wamulongo wife of the M.R for Bunya East constituency had Voters’ Cards and Ballot Papers and was giving them to any voter willing to vote more than once. Kirunda and his colleagues tried to arrest Mrs. Wamulongo, but they were overpowered and chased away. They boarded their motor vehicle and took off to Mayuge Police Station where they reported and requested for a Policeman to arrest Mrs. Wamulongo, but the Police said that they had no manpower. The complainants waited until 6.00 p.m. The Police did not assist. The Chart indicates that Kirunda’s affidavit is rebutted by Mrs. Kedres Wamulongo and that the rebuttal affidavit is on page 282. On checking page 282, in two volumes of the 1st Respondent’s volume of affidavits, I found the affidavit of Emodingo Anthony instead, which is irrelevant to the allegations by Kironde.
Ronald Tusiime, of Mparo, Rwamucucu Subsequently, Kabale District was the Petitioner’s Polling agent for Mparo Parish. He deponed his affidavit on 21-03- 2001. He said that he witnessed several election malpractices at Mparo and Kihanga Polling Stations. At Kihanga one of the malpractices was that the Petitioner’s only remaining Polling agent when Tumusiime arrived there was forcefully removed from the Polling agents’ seat and thrown out of the Polling Station. The Respondents’ Chart does show that Ronald Tumusiime’s affidavit was rebutted. It therefore, stands uncontroverted, and I accept it as true.

Charles Owor, an Advocate of the High Court and a registered voter in Nakawa Division, Kampala said in his affidavit of 22-03-2001, that on 13-03-2001, the National Elect Besigye Task Force appointed him and Architect Richard Turyahabe to witness the process of tallying election results at 2nd Respondent’s offices on Jinja Road, Kampala. They went there and showed their letter of introduction. Mr. Wamala the 2nd Respondent’s officer in charge of data processing tried many times to assist them to gain access to the offices concerned, but in vain. A man in plain clothes and seated at the entrance to the tallying center refused them entry into the center.

The man insisted that Owor and his colleague could enter the center only with express written permission of the 2nd Respondent’s Chairman, Mr. Kasujja. Alexandra Nkonge, the Legal and Public Relations Officer of the 2nd Respondent tried to assist, but also failed. Between 4.30 p.m. and 5.30 p.m. they gave up the efforts to enter the 2d Respondent’s tallying center. Unlike all other persons who appeared to be on duty at the center, the man who refused them entry had no identification tag of the 2 Respondent. The affidavit was based on knowledge and belief, but belief is irrelevant since the witness spoke of what he witnessed and heard in person.
The Respondents’ Chart indicates that Charles Owor’s affidavit is rebutted by Joshua Wamala and Mr. Kasujja. Wamala’s affidavit of 6-4-2001, does not mention Owor’s affidavit at all. Mr. Kasujja swore three affidavits in connection with this petition as the 2nd Respondent’s Chairperson. They are dated 27-03-2001, 9-4-2001 and 12-03-2001. None of them mentioned Charles Owor’s affidavit.

Ongee Marino, the Petitioner’s witness, whose affidavit I have already referred to concerning new Polling Stations, also said in his affidavit of 23-03-2001, that when the results were being tallied, the exercise continued smoothly for the gazetted Polling Stations but when it came to the six newly created Stations, the Returning Officer refused to declare the results and said that the details would be known later when the actual Ballot Boxes and Declaration Forms had been submitted to him. Ongee objected and requested that the results of the newly created Polling Stations should also be declared. Instead the Returning Officer ordered that he should be forcefully removed from the place of tallying by the Police. He was ejected and he reported the matter to Hon. Okello Okello M.P. who was in charge of the Petitioner’s Campaign in Kitgum District. The M.P wrote a letter annexture “A” to Ongee’s affidavit, sending Ongee back to his duty and saying that all tallies must be checked by candidates’ agents. Ongee returned to the tallying center but the Returning Officer refused him to see the election results of each Polling Station. Ongee refused to sign the tallying sheets.

He and other agents of the Petitioner and agents of candidate Francis Bwengye wrote a letter to the Returning Officer of Kitgum District dated 13-03-2001 complaining about a number of election malpractices. The letter is annexture “B” to Ongee’s affidavit, listing six such malpractices.

Respondent’s Chart indicates that Ongee Marino’s affidavit is rebutted by Geoffrey Okot and Ngomoromo Presiding Officers, but it is not shown where their rebuttal affidavits can be found.

In his affidavit dated 23-03-2001, Hon. John Livingston Okello Okello, M.P. for Chua Constituency deponed that as Deputy Co-ordinator for the Petitioner, he held a rally at Palabek — Kal on 5-3-2001. Campaign agents for the Petitioner informed him that many voters on the Voters’ Register did not have Voters’ Cards especially those at Paula, which he visited personally. Some voters received cards but their names were not in the Voters’ Register. Numerous soldiers and their wives in Kitgum District were issued with at least two Voters’ Cards. For instance Onek John and Onono Kenneth. The former surrendered both his Cards to Okello Okello M.R He wrote letters to the District Registrar, of the Electoral Commission about such election malpractice and to Kitgum Returning Officer Mr. Alfred Ocen Lalur about exclusion of Ongee Marino from the tallying process.

The affidavit of John Okello Okello M.R is rebutted by one of Colonel Fred Tolit, Assistant Army Chief of Staff, dated 30-03-2001, with particular reference to the allegation that Colonel Fred Tolit was expected on 12-03-2001, to bring ticked ballot papers in favour of the 1st Respondent under cover of darkness, which is not relevant to the allegation of the Petitioner’s Polling agent. Ongee Marino’s allegation that he had been sent away from a tallying center or the allegations of soldiers being issued with two Voters’ Cards were not adverted to in the Colonel’s rebuttal affidavit.

The Respondents’ Chart also indicates that the affidavit of Hon. J. L. Okello Okello, M.R is rebutted by Maj. Okot Wilit, but it is not shown where that affidavit can be found.

Robert Kironde, a Dentist, was asked by the Petitioner’s Task Force to go with one Kawalya to witness counting and tallying of votes at the 2nd Respondent’s Head Offices on 13-03-2001. In his affidavit of 19-02-2001, he said that the Deputy Chairperson Mrs. Flora Nkurukenda allowed them to enter. As Kironde wanted to make notes about the figures of the results being counted and tallied, Mr. Wamala No. 104 stopped him from taking any data and advised him to instead go to the International Conference Centre where the election results were being declared. On the first desk where election results were being received from the Communication room, the first person to receive results was Hon. Charles Bakkabulindi the workers’ M.R who was a well known Chief Campaign Agent for the 1st Respondent.

In the Respondents’ Chart, Kironde’s affidavit is shown as rebutted by “EC” but where the rebuttal can be found is not shown.

Sulaiman Miiro’s affidavit of 20-03-2001 has already been referred to in this judgment. He was the Petitioner’s Monitor in Bukooli North Constituency. He deponed, inter alia, that some calculations on the declaration result forms were inflated and very inaccurate, to with Kamango Polling Station Nkavule Parish, Kapianai, Buwolya Makoova Mayuge Parish, Budhaya Polling Station to mention but a few. The affidavit of Ms. Nays Nabagesera, the Bungiri RDC, dated 3-4-2001 which rebutted Miiro’s affidavit did not refer to his allegation of declaration of results being inflated.

The Petitioner’s learned Counsel Mr. Mbabazi, linked alleged falsification of results to the grounds of the Petition under consideration. He gave examples of incidences where the number of votes cast exceeded the number of ballot papers issued. For instance the Petitioner in his affidavit supporting the Petition said that the declared election result indicates that 109.86% and 105.34% of voters’ voted in Makindye East and Mawokota, respectively. From the two Constituencies a total of 991 votes were cast in excess if registered voters.

In his reply to the alleged falsification of results, Mr. Kabatsi submitted that if there were any errors in the declaration of results for Makindye and Mawokota, the two examples given by Mr. Mbabazi, it was human errors, not a deliberate act to falsify results. So with Makindye declaration of results, Mr. Kasujja said in his affidavit supporting the 2nd Respondent’s Answer, in response to paragraphs 7 and 8 of the Petitioner’s affidavit.

In his affidavit dated 27-03-2001 supporting the 2nd Respondent’s answer, Mr. Azziz Kasujja Chairman of the 2’ Respondent, denied that the number of votes cast in Makindye County East were more than the number of registered voters. What was shown in the table under paragraph 7 of the Petitioner’s affidavit, he said, was an arithmetical error due to a faulty original tallying which was corrected as a letter of 20-03-2001 from the Kampala Returning Officer shows. Mr. Mbabazi calls this election falsification done only by the 2nd Respondent’s officials after the election was completed.

Regarding Mawokota County South, Mr. Kasujja said in his affidavit that the results tabulated in paragraph 7 of the Petitioner’s affidavit were not correct. The correct results as shown by Mr. Kasujja’s annexture 4 votes cast was 27,234 out of 40,887, registered voters.

As evidence shows, these figures in Mr. Kasujja’s affidavit were not verified by any candidates polling agents. They were compiled by the 2nd Respondent’s officials after 12-03-2001 and are, therefore one sided, just as the ones which are said to have been the result of arithmetical errors in tallying the figures.

Some declaration of result forms show that more votes were cast that the number of ballot papers issued. In Bukade Primary School Polling Centre, Buwologoma Parish, Bukanga Sub-County, Iganga District, total votes cast for candidates, total ballot papers rejected, and spoilt ballot papers, add up to 651 yet 650 ballot papers were issued. The name and signature of the agents of the Petitioner are missing on this declaration of results form. But the ones for the Respondent and another candidate are filled in.

87 declarations of results forms from 19 Districts are attached to the Petitioner’s affidavit, dated 6-4-2001, in reply to the 2nd Respondent. The Petitioner’s affidavit in question provides a detailed account of what appear to be falsification of results from 29 Districts. Such falsifications are evidence of ballot stuffing in ballot boxes. The affidavit is too long for a complete evaluation in this judgment. After I have scrutinizing the figures they show, I find that most of them contain excess numbers of votes cast over the numbers of ballot papers issued at the respective Polling Stations. This could be the result either of arithmetical errors by the officials who filed the forms, as Mr. Kasujja deponed, or that more votes were actually counted as having been cast in excess of the number of ballot papers issued to the Polling Stations, in which case it would be the outcome of falsified results. If there were no such discrepancies the total number of votes cast including spoilt or invalid ballot papers plus unused ballot papers should be equal to the number of ballot papers issued at the Polling Stations.

In his supplementary affidavit in reply, dated 9-4-2001, the 2nd Respondent’s Chairman, Mr. Kasujja said that it is not true that in Polling Stations in 19 Districts the number of votes cast exceeded the number of ballot papers issued, but there were few and isolated cases of arithmetical errors, and the Petitioner has named a mere six stations in his affidavit of 6-4-2002. I find that the numb r is not so because in paragraph 19 of that affidavit, the Petitioner listed 19 Districts in which, he said, votes cast exceeded the number of ballot papers issued. In paragraphs 33 to 38 inclusive, he listed another 6, making a total of 25 Districts. He gave detailed figures in respect of Bukholi TCA Polling Station in Mbale District, Kamengo (M — Z) Polling Station in Masindi District; Mayembe Upper Prison C, in Mpigi District, Ishaka Adventist College in Bushenyi District; 2(L — Z) Polling Station in Mbarara Municipality, Mbarara District; and Buyego Trading Centre, Mayuge District.

If the discrepancies in the figures were arithmetical error,, I do not understand why they would be so many and spread in so many Districts. The only inference I draw from this is that many declaration of results forms falsified results.

After a careful consideration of all the affidavit evidence adduced by the Petitioner, by the 1st and 2nd Respondent’s, I am satisfied and find that the Petitioner has proved to the required standard grounds 3(1) (g) and (p) that:

(a) Contrary to sections 32 and 32 of the Act, on polling day during polling exercise, the Petitioner’s polling agents were chased away from many Polling Stations in many Districts of Uganda, and as a result the Petitioner’s interests at those Polling Stations could not be safe guarded.
(b) Contrary to section 32 of the Act, the 2nd Respondent’s agents/servants the Presiding Officers failed to prevent the Petitioner’s polling agents from being chased away from Polling Stations and as a result, the Petitioner’s agents were unable to observe and to monitor the voting progress.

I also find that in many polling stations the declaration of results forms compiled by the 2nd Respondent’s servants/agents after the announcement of the result of the elections falsified the election results.
I shall consider the effect of this non-compliance in the result of the election later in this judgment.

This also disposes of ground 3(1) (y) (v) of the Petition.

Denial Of The Right To Vote:

Mr. Mbabazi submitted that some voters were denied the right to vote in various ways. He did not, however, relate such denial to any specific ground of the Petition or to any Provisions of the Act. However, the Constitution is clear on this. Article 59 provides:
“(1) Every Citizen of Uganda of eighteen years of age or above has a right to vote.
(2) It is the duty of every Citizen of Uganda of eighteen years of age or above, to register as a voter.”

The provisions of Section 19 of Act 3/97 are also to the effect that every registered voter has a right to vote in the Parish or Ward where he or she is registered. To prevent any registered voter from voting is therefore a violation of his or her constitutional and statutory right. In his submission, Mr. Mbabazi gave examples of persons who were prevented from voting by being arrested and detained by the Military; being chased away from Polling Stations; their names in Voters’ Register being ticked by other person or persons etc. He gave examples and named people prevented from voting. Hon. Okwir Rwaboni M.P (hereinafter referred to as “Rwaboni” for the sake of brevity) was a prominent example.

The Solicitor General Mr. Kabatsi did not submit in reply to the Petitioner’s allegation that some registered voters were denied the right to vote. I have already found that Rwaboni’s statutory declaration dated 23-03-2001, made in London, is admissible evidence in these proceedings. Part of his declaration relevant to the matter at hand reads as follows:

“(5) That on the 20th February 2001, 1 was unlawfully and violently arrested at Entebbe International Air Port, beaten and sat upon in a military Police Pickup, in the presence of Journalists. Diplomats and colleagues and illegally detained at the Chieftaincy of Military Intelligence (IMI), Headquarters in Kampala. During the arrest I sustained injuries to my legs and chest and I am still undergoing treatment for these injuries.
(6) That from 4.00 p.m. on the 2
0th February to 5.00 p.m. on 21st February 2001, I went through a grueling six hour interrogation session, conducted by seven officers of the Chieftaincy of Military Intelligence.
(7) On the 21st February 2001, I had a telephone conversation with H.E. Museveni when he was in Gulu where he tried to convince me to leave what he called “the wrong group” and promised to allow me to leave the Country and to take some of my interests while abroad.
(8) That on the 21st February 2001, I was again forced to make a statement disassociating myself from the Presidential Candidate Dr. Besigye Task Force, this time the presence of Ma). Gene. Elly Tumwine. Maj. Gen. Tinyefuza, Ma). Mayombo; a statement I later read to press at Parliament building that same evening.
(9) That between the 21st of February 2001, I was under virtual house arrest at my residence in Bunga, guarded by officers and men of the UPDF under the guises of “State Protection” against my own candidate and his supporters.
(10) That on 27th I had to leave the Country as I felt my life was in danger and presently living in the United Kingdom with my family.
(11) Consequently I did not vote in the 12th March 2001, Presidential elections which is a denial of many constitutional right.”


Lt. Col. Noble Mayombo is the Ag. Chief Military Intelligence and Member of Parliament (hereinafter referred to as “Mayombo” for the sake of brevity). He swore an affidavit in rebuttal of Rwaboni’s statutory declaration. He said that Rwaboni was arrested on 20-02-2001, at Entebbe Airport on his (Mayombo’s) instruction. He was arrested for his own safety. Following the arrest, arrangements were made, at Rwaboni’s request and on the 1st Respondent’s directive, for Rwaboni to travel to the United Kingdom.

There is no doubt that, Rwaboni’s arrest led to his having to go out of the Country and being unable to vote in the 12-03-2001 Presidential Election.

Evidence was adduced to show that other people were also denied the right to vote.

Fazil Masinde, of Butongala Village Kityerera, Mayuge District, was the Petitioner’s Monitor in 7 Polling Stations (which he named). At Butangala Polling Station the Presiding Officer, one Mudaki was directing people openly to vote for the 1st Respondent at the time voters were being issued with ballot papers. Saina Mukade and Zaibo Hambo did not vote because they found that others had received ballot papers and cast votes in their names.
Fazil Masinde’s affidavit was rebutted by Gesa Ahmed, in his affidavit of 2-4- 2001. Gesa of Kuluuba Village, Mayuge District is the GISO of Kityetera Sub- County and the L.C.2 Kaluuba Parish. He said that Fazil Masinde’s affidavit is false. While Gesa’s affidavit is relevant to other malpractices, he did not refer to voters who did not vote because their names in the Voters’ Register had already been ticked.

Mudaaki Emmanuel also rebutted Fazil Masinde’s affidavit. In his rebuttal affidavit of 4-4-2001, he said that he was the Presiding Officer of Butangala Polling Station. He did not know Masinde because the latter was not at that place as a Polling agent for any of the candidates.

Mudaaki denied that he directed voters to vote for the 1s Respondent because he was faithfully exercising his duty as the Presiding Officer. He also said that he did not receive any complaint that Saina Makade and Zaibu Gimbo did not vote. I have three comments on Mudaaki’s rebuttal affidavit. First Masinde did not say that he was a Polling Assistant at Butangala. He was a monitor for seven Polling Stations, of which Butangala was only one of them. Secondly, the fact that Mudaki did not receive any complaint does not mean that Mukade and Gimbo voted. Thirdly, I would not expect Mudaki, a Presiding Officer, to admit that he committed the various election offences which Masinde alleged against him. In my view it is not in the least surprising when Mudaaki said: “The voting exercise proceeded very smoothly and transparently.”

In the circumstances, I reject Mudaaki’s denial, and I accept Masinde’s affidavit as true.

I have already referred to the affidavit of Ronald Tumusiime in another context. He swore in his affidavit that one of the many election malpractices he saw at Mparo Polling Station was that voting was not secret. Shortly after 8.00 a.m. the Presiding Officer announced that voting was not going to be secret, and that all ballot papers should be ticked at the Presiding officer’s desk. The Respondent’s supporters were being allowed to vote for the dead such as V. Konyenda and for the absent such as Allen Asiimwe. On the other hand some of the Petitioner’s supporters such as Ivan Byamukama found their names already ticked as having voted. The Respondent’s Chart does not indicate that Ronald Tumusiime’s affidavit was rebutted. His evidence is not controverted. I accept it as true.
Tumwebaze Arthur of Kiyoora Nisakyera, Ntungamo District, was the Petitioner’s Polling agent at Kataraka Primary School Polling Station. In his affidavit of 21- 03-2001, he said that persons who never appeared at the Polling Station for voting such as Bangirana Livingstone and Tukahiirwa Arthur had their names ticked in the Voter’s Register as having voted when they never voted because their cards were used by other persons who impersonated them.

Kanyima Nilson of Kishoreno Village, Nyakyera, Ntungamo District, rebutted Tumwebaze’s affidavit. In his affidavit of 4-4-2001, Kanyima said that he was an Election Constable at Katakaka Primary School Polling Station, where he was also a registered voter. He knew Tumwebaze Arthur. The latter’s allegation that he asked him to sit 20 meters away from the Polling Station was false. The allegation that he was giving out Voters’ Cards was also false. Kanyima did not refer to Tumwebaze’s allegations that two voters did not vote because others had impersonated them and used their voting cards which, therefore, remains uncontroverted I accept it as true.

Tukahirwa David, of Nsambya Village, Busujju parish, Kakindu, Mubende District, and his wife Nabacwa were registered as voters and received their Registration Certificates on 2201-2001. In his affidavit of 19-03-2001, he said that on 26-02-2001, they went back to collect their Voters’ Cards. They were told by the officials concerned that their cards had not yet been brought. On 11-03-2001, the officer issuing cards, one Kirumira informed them that the cards had not yet arrived from Mityana. On 12-03-2001, Tukahirwa and his wife went to the Polling Station and found Kirumira acting as the 1st Respondent’s agent. The Voters’ Cards were being issued by the Presiding Officer, one Mutwe. They joined the queue. When it was his turn to receive the Voter’s Card he and his wife were told to stand aside. The presiding Officer retained their Registration Certificates. The exercise of issuing cards and voting continued together. Tukahirwa, his wife and two other people, continued to wait for their Voters’ Cards. At 5.00 p.m. voting closed. Tukahirwa and his wife complained to the presiding Officer and requested to be given their Certificates but the presiding Officer refused consequently they never voted.

Kirumira Edward rebutted Tinkahirwa’s affidavit. In his affidavit of 4-4-2001, he said that he was the 1st Respondent’s Polling agent at Nsambya Village Polling Station. He denied that he acted as an official who issued cards. As a candidate’s agent that was not his role. The voting process was conducted in an. orderly manner, and he did not hear or see anybody complaining to the Presiding Officer Bernabas Mutwe. This affidavit does not refer to Tukahirwa’s complaint that he and his wife were never issued with Voters’ Cards. Kirumira did not say why he should have known if Tukahirwa or anybody else had complained to the Returning Officer.

Barnabas Mutwe also rebutted the affidavit of Tukahirwa. In his affidavit, which has no date, except the year 2001, he said that he was the presiding Officer at Nsambya Polling Station. He remembers that one Nabachwa had a Registration Certificate, but no Voter’s Card, and her name was not on the Voters’ Register so he disallowed her from voting. In all there were 4 people whose names did not appear in the Register of voters and he did not allow them to vote.

I find that Barnabas Mutwe’s affidavit corroborates Tukahirwa’s evidence that they did not vote, but for different reasons. Mutwe said that they did not vote because their names did not appear in the Voters’ Register, but Tukahirwa’s reason .is that because they were not issued with Voters’ Cards. Whatever the reason, it is evident that Tukahirwa, his wife and two unnamed other voters were denied the right to vote by the 2nd Respondent.

Mulindwa Abas, of Kobolwa Zone, Kibuku Parish, Pallisa District was the Petitioner’s monitoring agent for Kibuku Parish. In his affidavit of 21-03-2001, he said that at all Polling Stations he went to, there were voters who could not vote, because they were told that their names had been ticked and that they were not supposed to vote. His affidavit is based on knowledge and belief. Belief is irrelevant because all he talked about was what he had observed.

Malik Kitente rebutted the affidavit evidence of Mulindwa Abasi. The rebuttal affidavit of 5-4-2001 is not relevant to the allegation that voters did not vote because their names in the Voters’ Register had already been ticked. Mulindwa’s evidence that some people were denied the right to vote was, therefore, not controverted. I accept it as true.

Ekadu Sam of Soroti Senior Quarters, was registered as a voter at Golf Course Polling Station B. In his affidavit of 20-03-2001, he said that on 9-3-2001, he found that his name was in the Voters’ Register, but his Voters’ Card was not there. He was told that since his name was in the register he could vote using the pink form he was given when he registered. But on Polling day, his name had disappeared from the Voters’ Register. He was thus denied the right to vote. 169 other persons did not vote at that polling Station alone. The affidavit was based on knowledge and belief, but since all he said was what he saw, belief is irrelevant.

Omuge George William was the Returning Officer for Soroti District. In his affidavit of 1-4-2001, rebutting the affidavit of Ekudu Sam, he said that he did not receive any complaint, verbal or written from any agent of a Presidential Agent or an aggrieved person of Golf Course Polling Station B that about 169 people were denied opportunity to vote because their names were missing on the Voters’ Register. In my view there would appear to be no good reason why Ekudu Sam should have fabricated what he said in his affidavit. Further the fact that Omuge George William as the Returning Officer did not receive any complaint about 169 persons not having voted because their names were not in the Voters’ Register does not necessarily mean that the incident did not happen. A Returning Officer’s electoral function covers a whole District. Omuge George William did not say in his affidavit that he visited the Polling Station in question. In the circumstances I believe Ekudu Sam’s evidence and reject Omuge’s denial in this regard.

Bukenya Samuel of Kinawataka Village, Mbuya, Kampala, was a registered voter at Mbuya Lower (A-C), Mbuya Parish, Nakawa Kampala District. He said in his affidavit of 23-03-2001, that he was appointed the Petitioner’s National Election Task Force and was campaign agent. On 11-03-2001, at 6.30 p.m. he was arrested at Kinawataka Trading Centre by armed soldiers in a car covered with the 1st Respondent’s election posters. He was detained at Mbuya Military Barracks, where he was asked which candidate he supported and intended to vote for. He replied that it was the Petitioner. Thereafter he was detained until 21 -03-2001, when he was released at 11 .00 a.m. On the Election Day he did not vote. During his arrest, he was beaten, tortured and bundled into a car, which torture and beating continued while he was in detention in the Barracks.

In the Respondent’s Chart the name of Bukenya Samuel does not appear; nor is it indicated therein whether his affidavit evidence was rebutted.
Ogule Nicholas of Soroti, registered as a voter at Kichinjaji Polling Station. In his affidavit dated 20-03-2001, which he swore because he was a registered voter, he said that his name did not appear in the register. He kept on checking up to 11-03-2001. On Polling day he and 40 other people were denied the right to vote because their names did not appear in the Voters’ Register although they had Voters’ Cards. He also said that on Polling day, the Aide of Hon. George Michael Mukula, MP, came driving a motor vehicle No. UDE 745 to Kichinjaji Polling Station, campaigning and giving people, especially women, soap and salt and enticing them with the symbol of thumps up. This was a well- known election symbol for the 1St Respondent. Richard George Onyait, an Aide to Mukula MP, rebutted Ogule’s affidavit, denying that he went to Kichinjaji Polling Station driving motor vehicle No. UDE 745. He also denied that he campaigned using the “thumps-up” symbol or that he gave out salt and soap. He said that he was a registered voter at Golf Club “A” Polling Station. At no time did he go too Kichinjaji Polling Station. Onyait did not say why Ogule should have made up such detailed allegations. He was only a voter. There is no apparent reason why he should have fabricated all that he said. I find his evidence truthful. I believe it. I do not believe Onyait’s evidence in rebuttal.

Ogule’s affidavit was also rebutted by Omuge George William, who was the Returning Officer for Soroti District. He said in his affidavit in rebuttal that voters whose names were not in the register were not allowed to vote although they had Voter’s Cards. This corroborates Ogule’s affidavit that he and 40 others did not vote because their names were not in the Register. Omuge also said that he did not receive any report from any person in Kichinjaji about his or her failure to vote. Nor did he receive any report that the Aide of Mukula MP campaigned at Kichinjaji by a “thumps up” symbol. I do not find that Omuge’s affidavit makes Ogule’s affidavit any less credible. As a Presiding Officer responsible for the election for the whole of Soroti District, it is doubtful if he would attend to individual Polling Stations. In any case even if he did not receive reports of malpractices from Kichinjaji Polling Station, it does not necessarily mean that what Ogule said in his affidavit in that regard did not happen. It was the duty of the 2nd Respondent to compile Voters’ Register including all the names of persons who registered as voters if their names were not on the register on polling day or before the 2nd Respondent was responsible for that omission.
I have considered the evidence as a whole on the issue regarding denial of the right to vote. I am satisfied that the Petitioner has proved to the required standard, and I find that many voters were denied the right to vote. The effect of this denial on the election result shall be considered with the effect of other malpractices and noncompliance later in this judgment.

Paragraph 3(1)(i) of the Petition: Multiple voting.
“That contrary to section 31 of the Act the 2nd Respondent’s agents/servants/Presiding Officers in the course of their duties and with full knowledge that some people had already voted allowed the same people to vote more than once.”

In its reply, the 2nd Respondent averred:
“9 In reply to paragraph 3(1) (j) of the Petition, the second Respondent denies that it allowed anybody to vote more than once.”

Section 31 of the Act provides:
(1) No person shall vote or attempt to vote more than once at any election.
(2) For the purpose of ensuring that no voter casts a vote more than once, a Presiding Officer or a Polling assistant shall before issuing a ballot paper, inspect the fingers of voters in order to ascertain whether or not the voter has been marked with indelible ink in accordance with section 30; and the Presiding Officer or Polling assistant, as the case may be, shall refuse to issue a ballot paper to that voter if the Presiding Officer or Polling assistant has reasonable grounds to believe that the voter has already voted or if the voter refuses to be inspected.

Counsel for the Petitioner did not submit on this ground but supplied a list of deponents of affidavits in support of the ground. I think that the Court is bound to consider the affidavits and their corresponding rebuttals provided by the 2nd Respondent’s Counsel.

In his submission in reply on this ground, Mr. Kabatsi referred the 2nd Respondent’s answer, which denied the allegation. He then referred to affidavits in rebuttal which, he said, supported the denials.
The Petitioner tiled a list of 17 witnesses who deponed affidavits in support of this ground of the Petition. It is not possible, in the time available, to consider all the affidavits in question and the corresponding rebuttal affidavits. I shall deal with samples to see what happened in practice and to gauge the extent of the problem.

Kirunda Mubarak, whose affidavit I have already referred to in another context was the Petitioner’s Polling monitor in the entire District of Mayuge. He said in his affidavit that the wife of Wamulongo, MP for Bunya East Constituency had Voters’ Cards and ballot papers and was giving them to any willing voter to cast even more that once and there were many who voted more than once. This was at Mpungwe Polling Station. As I said before, Kedres Wamulongo’s affidavit in rebuttal is shown in the Chart as being on page 282 of the Respondents’ volume of affidavits. I checked there and found the affidavit of Emoding Anthony instead. The 2nd Respondent’s Volume of affidavit does not reach page 282. In short, I am unable to trace Kedres Wamulongo’s rebuttal affidavit.

I have considered the evidence of Ssentongo Elias in another context. Regarding multiple voting, he said that he went to Karegeya Polling Station and found that armed Soldiers who had camped at Ireenga, the home of the wife of the 1st Respondent, were supervising the Polling process. The soldiers allowed supporters of the 1st Respondent to vote more than once. Complaints by Polling agents were ignored by the Presiding Officer.

Muhoozi Tom rebutted Ssentongo’s affidavit. He said that on Polling day, he voted at Kabuhowe Polling Station and returned to his home immediately thereafter. He never saw Ssentongo at the Polling Station. In the evening he returned to the Polling Station. Voting closed in his presence. The Petitioner’s agents were present and signed the declaration form. In my view, what Ssentongo said he saw happened at Karegeya Polling Station, was not at Kabuhowe, where Muhoozi Tom voted. Secondly Muhoozi’s affidavit does not refer to Ssentongo’s allegation of multiple voting.

Mugizi Frank of Rubone Cell, Rubone Trading Centre, Rusheyi, Ntungamo District was the Petitioner’s Polling agent for Rubanga Polling Station. In his affidavit of 21-03-2001, he said that at Rubanga Polling Station, he witnessed massive rigging by which people were allowed to vote more than once. When he protested, the 1st Respondent’s supporters namely Simon, Twahirwa Sura, Kanyagira, Siriri, Kakyota Muyambi threatened to assault him and he was chased away from the Polling Station. Musinguzi Siriri, of Rubanga, Rubane, Ntungamo District, rebutted the affidavit of Mugizi Frank. In his affidavit of 4-4-2001, he said that there was no massive rigging, or even any rigging at all as falsely alleged by Mugizi Frank at Rubanga Polling Station. On Polling day as he (Siriri) lined up to vote, one Kapere approached the Presiding Officer’s table. Mugizi Frank then falsely referred to Kapere as “Bateyo” who had already voted. Mr. Simon Twahirwa, the LCI, Chairman objected as they knew the Kapere’s identity. Siriri and others identified Kapere and he duly cast his vote. After the incident Mugizi Frank left for his Village, saying that he was going for lunch. Nobody chased him away from the Polling Station. What Siriri said in his affidavit tends to corroborate Mugizi Frank’s evidence that he complained about people having voted more than once and that Siriri and Twahirwa were persons whom he accused to have been amongst those who chased him away. Siriri’s rebuttal is a blanket denial of Mugizi’s allegation. He did not indicate why Mugizi should have fabricated his detailed allegation. In the circumstances, I would accept Mugizi’s evidence and reject Siriri’s denial.

Kasigazi Noel, of Rwenamira, Kitashekwa, Ruhama, Ntungamo District was the Petitioner’s polling agent for Rwenamira Polling Station. In his affidavit of 21-03-2001, he said that at the Polling Station, one Sibomaana Amos, who was the 1st Respondent’s Campaign agent in Kitashekwa, colluded with the Presiding Officer and was seen casting a bundle of ballot papers. Kasigazi lodged a written complaint to the Presiding Officer who rejected it and refused to initial it or annex it as part of the official record of the Polling Station. When he cross- checked with the Voters’ Register, Kasigazi found out the names of people who had migrated to Rwanda in 1 994, such as Rugaruka John, Bazubagira, Kaitita and Tinkasimire E. were all ticked as having voted.

When Kasigazi and Kikwekije Augustine questioned why Sibomaana was allowed to cast a bundle of ballot papers, they were threatened with beating by LCI Chairman, one Kananura George, Sibomaana Amos, and the LC3 Chairman Karuhanga Denis Muvara. In the middle of the scuffle one Turyakira, a known 1st Respondent’s supporter was given all the remaining ballot papers by the Presiding Officer, which he ticked and put in the ballot box. Kasigazi refused to sign the Declaration of Results Forms.

Sibomaana Amos of Rwenanura, Rwekiniro, Ruhoma, Ntungamo, rebutted Kasigazi Noel’s affidavit. In his affidavit of 4-4-2001, Sibomaana said that he was just an ordinary voter, registered as such at Rwenanura. He was at no time the 1st Respondent’s Campaign agent as falsely alleged by Kasigazi. At no time did he cast more than one vote let alone, a bundle as Kasigazi falsely alleged. Nor did he at any time threaten to beat anybody as falsely alleged by Kasigazi. I find this a blanket denial of Kasigazi’s evidence. There would appear to be, and Sibomaana did not suggest, any sensible reason why Kasigazi should have fabricated the detailed allegations he made in his affidavit. In the circumstances, I reject Sibomaana’s evidence in rebuttal and accept Kasigazi’s evidence, given in his affidavit based on his own knowledge.

Ssali Mukasa of Rubone cell, Rubone Trading Centre, Rushenyi, Ntungamo. On 12-03-2001, he was at Rubone Moslem, Primary School L — Z Polling Station when the Presiding Officer and the Polling assistant counted votes at 5.00 p.m. He witnessed 10 ballot papers, folded together and ticked for the 1st Respondent. When he complained to the Presiding Officer, the latter said that it was allowed. On 9-3-2001, one Daudi Kahurutuka, the 1st Respondent’s Campaign agents found him at 8.00 p.m. at Ali Mutebi’s Hotel and told him to mention any amount of money he wanted from the 1st Respondent Task Force “in order to allow them steal votes.” The affidavit was based on knowledge and belief. Belief is irrelevant since what Mukago said occurred was what he saw. The Chart does not show that the affidavit of Ssali Mukago is rebutted. The evidence therefore, remains uncontroverted. I accept it.

I have already dealt with the affidavit of Idd Kiryowa in another context. In paragraph 7 of his affidavit he said, that Kakuba, the 1st Respondent’s agent at Nabiseke Polling Station where Kiryowa was also the Petitioner’s polling agent, who had earlier cast his vote came back and stuffed a heap of ballot papers in the ballot box. Robert, a security official, also pushed into the ballot box a heap of ballot papers. This time Kiryowa and his colleague, Toferyo Hussein kept quiet because they had already been threatened once before. The earlier threat had been made to Kiryowa and his colleague at 1 .00 p.m. when they complained because one Elias and his wife, Balekye cast their votes but did not dip their thumbs in the indelible ink. Robert told them not to be too critical because they risked being arrested.

Kakuba Nathan was the Respondent’s Polling agent at Nabiseke A — L where he also cast his vote. In his rebuttal affidavit of 1-4-2001, he denied that he stuffed heaps of ballot papers in the ballot box; nor did he see anyone else doing the same, contrary to Kiryowa’s allegations. Voting was done in the presence of Polling agents law and order officials and the public, thus ruling out the possibility of stuffing heaps of ballot papers in the ballot box. Kabuba’s rebuttal is a bare denial. There would appear to be no sensible reason, and Kakuba does not indicate any, why Kiryowa should have fabricated this detailed allegation. Moreover it would be unthinkable that Kakuba would admit having committed an electoral offence which is what Kiryowa’s allegations amounted to. In the circumstances I would reject Kakuba’s rebuttal evidence and accept Kiryowa’s evidence.

Kana Harward, a registered voter at Kochi Parish, Romogi, Yumbe District was a Polling agent for the Petitioner at Kochi B Polling Station. At that Polling Station, he saw a ballot box without code number, a Voters’ Register containing names of 171 army men and 17 women. He again saw Betty Angudu, the daughter of his cousin, Silver Opidio, born in 1985, on the queue with other soldiers, where upon Kana complained to the Presiding Officer about the girl and the number of 15 women in the queue when all the 17 women on the Register had already voted. When the Presiding Officer called her, Betty Angudu was found to be holding a Voter’s Card of a 50 year old woman. The Chart does not show that Kana’s affidavit is rebutted. His evidence is, therefore, not controverted. I accept it as true.
 
I have already referred to the affidavit of Guma Majid Awodson in another context. He said that on 12-03-2001, he saw LC3 Vice Chairman of Kuru Division and members of the 1st Respondent’s Task Force, Achaga Safi, cast a ballot paper at Bura B Polling Station where he was registered with Voter’s Card No. 0027587. He again cast a ballot paper at Bura A Polling Station, where his Voter’s Card was No. 00267715. Guma complained to a Prisons Constable deployed to take charge of the Polling Station and the Presiding Officer, but the two told Guma that they could not arrest Achaga Safi as he was a member of the 1st Respondent’s Task force. At Alibi A polling station, Guma saw the Presiding Officer, Abale Young Majid, giving six ballot papers to the LC.lll Chairman of Kuru sub-county Drasi All a member of the 1st Respondent’s Task Force. He got the register and saw that 23 people had voted. When he checked the serial numbers of the ballot papers issued to 23 voters he found that the serial numbers ran from 531 to 560, which was in excess by six. He directed one Olenga, his colleague, to arrest Drasi All while he (Guma) went to the police. When Guma returned to the polling station he found Olenga absent and he (Gum a) was threatened with arrest. Drasi All rebutted Guma’s affidavit saying that he never saw Guma at Alibi polling station. He denied that he was given six ballot papers by Abele as Guma alleged. This is a blanket denial by Drasi Au of Guma’s detailed evidence. He does not say, nor there appears to be any sensible reason, why Guma should have fabricated such allegations with such details, which should be the case in view of Drasi’s blanket denial. Guma took the trouble to check the Register of voters to compare with the number of votes cast, and he found that six extra ballot papers had been issued which tallies with the six ballot papers which Guma said was given to Drasi by the presiding Officer, Abele Young Majid. It would also be unthinkable for Drasi, an LC 1ll Chairman to admit that he committed an electoral offence. In the circumstances, I believe Guma’s evidence and reject Drasi’s as a lie.
Kassim Seganvi of Kibuku village, Kibuku sub-County, Pallisa District was the Petitioner’s polling agent at Kobolwa polling station, where he was also registered voter, and voted. One Haji Bubakali Nangeje, not a voter at the polling station, came and campaigned that all women should vote for the Respondent. Seganyi appealed to the Presiding Officer and the polling constable in vain. One Naulo, who had cast his vote in the morning returned at 2.00p.m., was given a ballot paper and again voted at about 3.00p.m. Another man, not a resident of the area came, holding a voter’s card from that polling station. His thumb showed that he had already voted. Seganvi appealed to the presiding Officer to investigate the matter, but the presiding Officer allowed the man to vote the second time. The presiding Officer and polling constable told Seganyi that he was wasting his time because whatever he did his candidate, the (Petitioner), would not succeed.
The rebuttal affidavit of Haji Abubakali Nangeje said that he was at Kabolwa polling station only for the purpose of assisting his mother Mary Garrett Kyagala, aged 85 years to vote. He did not campaign there for the 1st Respondent. Nangeje’s affidavit does not refer to Seganyi’s allegation that one Naulo voted twice. To that extent therefore he did not rebut Seganyi’s affidavit regarding multiple voting, which remains uncontroverted I accept it as true.
Byaruhanga Yahaya of Customs Road, Busia Town Council, Busia District was the petitioner’s polling agent at March “D” polling station. On polling day at 6.00 a.m. before voting began he noticed that 100 ballot papers meant for the polling station were missing with serial numbers 3596381.3596400 and 35972013597300. He also noticed that one Birungi voted twice at March “D” polling station with voters card No.0872813
A Kenyan called Muhamed, and known to Byaruhanga very well, crossed into Uganda to vote at March “D” with voters card 084100 bearing the name of Hassan All. He was arrested and handed over to the police.
The affidavit was based on knowledge and belief. Belief appears to be irrelevant because what Byaruhanga deponed was what he witnessed. Byaruhanga’s affidavit was not rebutted. i accept his evidence as true.
Patrick Matsiko wa Mucoori is a senior reporter with “Monitor” Newspapers. He was not an agent of the Petitioner. To that extent he should be regarded as one of the few truly independent witnesses for the Petitioner. He registered to vote at his home village Bihanga. He was there from 1st March to 13th March 2001. After voting on 12th March, 2001 he proceeded to Kanyarugiri, Nyamarebe sub-county, Ibanda Sub-District to cover the electoral process there in his duties as a journalist. On his way to Kanyarugiri Polling Station for the army he was intercepted by a soldier in civilian clothes, who told him that nobody was allowed at that polling station, because it was a special area. All the same Mucoori managed to reach the polling station.
The presiding Officer, Charles Muchuguzi, was a soldier and teacher in Bihanga Barracks. When he asked the presiding Officer whether all the six candidates had their polling agents there, he replied that only the 1st Respondent’s agents were present.
A man who was the 1st Respondent agent was standing near the basin, where voters ticked their ballot papers. The 1st Respondent’s polling agent was carefully observing which of the six candidates’ voters ticked. As voting progressed Matsiko noticed that people who had already voted did vote again. At this same polling station, many voters voted multiple times.
The chart does not show that the affidavit of Patrick Matsiko wa Mucoori is rebutted. I therefore accept his evidence as truthful. What happened in this polling station and others was in contravention of the instruction by the 2nd Respondent’s Chairman Mr. Aziz Kasujja, contained in his circular letter of 22nd February 2001 addressed to all Returning Officers, to the effect that presiding Officers and Polling Assistants for each polling stations should be civilians.
The circular is headed “Polling stations for the Army” and attached as annex “A” to Lauis Otika’s affidavit of 23rd March 2001 who was the National Coordinator for the Petitioner with overall supervision monitoring and coordinating the electoral process on behalf of the Petitioner.
Zeyi Patrick of Makuttu sub-county Bugweli Constituency, Iganga District, was the Petitioner’s monitoring agent for Nonchwe Makondhwa and Busiro A and B polling stations amongest others. At 12.00 p.m. (the date not stated) he met the Presiding Officer and LC 1 Chairman distributing ballot papers to people whose names were not in the Register of Voters to cast votes and he saw them cast votes.
He also met a Cadre fl the area ordering the presiding Officer to allow all people whose names were not in the Register to vote without any restriction from anybody. Zeyi questioned why, because some had already voted. They stopped for about ten minutes but when the sub-county Chief arrived with the second Register, he ordered them to use both the old and the new Registers. They were used and voting continued with both Registers. Zeyi went to Busiro A and B and Makandwa Polling Stations in Makandwa Parish. He found the same thing happening at those Polling Stations.
The Chart does not show that the affidavit of Zeyi Patrick was rebutted. His evidence therefore remains un- controverted. I accept it as true.
Mrs. Odong Margaret of Layibi Anywer, Pece Division, Gulu Municipality was the Petitioner’s Polling agent at Barracks (O— O) Polling Station. In her affidavit, she said that an Army Major came and chased away the Polling assistants sent from the office of the 2nd Respondent. Soldiers voted without identification. The names in the Voters’ Cards did not rhyme with the tribe and real age of the persons written on the Voters’ Cards. When Mrs. Odong and another Polling agent tried to report about the abnormality in the voting process the Army Polling assistants reported to their Senior Officers in the Barracks who, as a result, harassed the Polling agents. The affidavit was based on knowledge and belief. Belief is irrelevant since the deponent spoke only of what she witnessed. The Chart indicates that Mrs. Odong’s affidavit was rebutted by Pius Margaret Obol. However, Pius M. Obol’s affidavit dated 1-4-2001, is relevant only to what one Joyce Bangomu alleged in her affidavit of 22-03-2O01. In any case Pius M. Obol deponed about what apparently happened at Pece Polling Station, another place, where she stayed as the 1st Respondent’s throughout the day on 12-03-2001. Mrs. Odongo’s evidence therefore remains uncontroverted, and I accept it.
Kedega Michael of Kabedo Opong Village, Bar Dege Division, Gulu Municipality was working as the Petitioner’s Monitor in Nwoya County, which took him to Alero Polling Station outside the Barracks. He found about 50 soldiers who had Voters’ Cards but their names were not on the Register of voters. When he tried to intervene, the soldiers told him that they had got orders from their superior who was a Major. Later he went to Paraa Polling Station where voting ended at 5.00 p.m. but started again at 7.30 p.m. and continued to 10.00 p.m. He discovered that the same soldiers he had found in Alero Polling Station were the same soldiers voting at Paraa Polling Station, led by a Lieutenant Peter. The affidavit was based on knowledge and belief, but belief is irrelevant since the deponent only spoke about what he saw. The Chart indicates that Kedega’s affidavit is rebutted by the “Electoral Commission,” but it does not say by who in the Electoral Commission and where the rebuttal affidavit can be found. I accept Kedega’s evidence.
On the evidence as a whole from all parties to the Petition, which evidence I have carefully considered I am satisfied and find that the Petitioner has proved paragraph 3(1)(J) of the Petition to the required standard. The 2nd Respondent’s agents/servants, namely, presiding Officers and Polling assistants, with full knowledge that the voters concerned had already voted allowed them to vote more than once. This was an act of non compliance with section 31 of the Act. The 2nd Respondent is accountable for the acts or omission of its agents/servants done in the course of their duty, which happened in this case. I shall consider the effect on the election of this non-compliance together with the effect of the other incidences of noncompliance.
Paragraph 3(1)(h) of the Petition
Voting before or beyond time allowed.
“3(1)(h) That contrary to section 29(2) and (5) of the Act the 2nd Respondent’s agents/servants allowed voting before the official Polling time and allowed people to vote beyond the Polling time by people who were neither present at the Polling Stations nor in line of voters at the official hour of closing.”
The 2nd Respondent’s answer to this allegation is that:
“7. In reply to paragraph 3(1) (h) of the Petition, the 2” Respondent avers that neither itself nor its agents or servants allowed people to vote before or after official Polling time. Only people present at Polling Stations or those in the line of voters at the official closing time were allowed to vote out of time.”
Section 29(2) of the Act provides:
“(2) At every Polling Station, Polling time shall commence at seven O’clock in the morning and close at five O’clock in the afternoon.”
Sub-secti0n (5):
“(5) If at the official hour of closing the Polling in subsection (2) there are any voters In the Polling Station in the line of voters under sub-Section” (3) of section 30 who are qualified to vote and have not been able to close, the Polling Station shall be kept open to enable them to vote, but no person who is not actually present at the polling Station or in the line of voters at the official hour of closing shall be allowed to vote even if the Polling Station is still open when he or she arrives.”
The Petitioner’s learned Counsel did not make any submission on this ground of the Petition but merely filed a list of deponents who swore affidavits to support the allegation.
In his reply, Mr. Kabatsi also said little apart from referring to certain affidavits in support of, and in opposition to, this ground of the Petition. Musisi Francis, of Lugolole, Baitabongwe Sub-County, Mayuge District, was the Petitioner’s Polling agent at Baitabongwe Sub-County Headquarters Polling Station. In his affidavit of 20-03-2001, he said that he arrived at the Polling Station at 6.00 a.m. only to discover that the voting exercise had already started in the absence of all other Polling agents for the different candidates. When the first booklet of ballot papers containing 100 leaves got finished, the Presiding Officer produced a second booklet which had only 23 ballot papers. The rest were missing. Only 23 ballot papers were displayed to the Polling agents from that booklet. When Musisi enquired, the presiding Officer told him that they had been removed and taken to another Polling Station.
The affidavit was based on knowledge and belief, but belief is irrelevant since the deponent related only what he saw. The Chart does not show that Musisi’s affidavit is rebutted.
Tumusiime Enock said in his affidavit that he was the Petitioner’s agent overseeing the operation of Polling agent for him in Kajara County, Ntungamo District. He was also a tallying agent. At 7.30 p.m. after the tallying exercise was completed one Moses Rinyerere brought information that at Polling Station Kayenre in Rwikiniro, voting was still going on. At about 11.30 p.m. the Returning Officer of Ntungamo District, Mr. Nshemereize, Tumusiime and six Police Officers proceeded to Ntungamo Social Centre following information that voting was still in progress. Reaching there, they found people still casting votes. They were casting votes for the 1st Respondent only although the Catholic Centre was not a Polling Station. At the center, the team also found nine ballot boxes had been delivered from Ngoma, Rugarama, Kasugu, Kayonze, Kikoni, Kalungyere, Kabuigo, Rwebirizi and Rusinga.
When the Returning Officer asked the presiding Officer why he allowed voting at an ungazetted place, and beyond official time the latter responded that the Chairperson of the 2nd Respondent had extended the voting time to mid-night. Consequently, only the 1st Respondent’s tallying agents signed the declaration of results form. Those of the other candidates did not. The affidavit was based on knowledge. The Chart indicates that the affidavit of Tumusiime Enock is rebutted by Nshemereza Topher, but there is no indication where the rebuttal affidavit can be found.
Moses Babikinamu, of Lwebitakuli, Mawogola, Sembabule District was Chairman of the Petitioner’s Lwebitakuli campaign Task Force. Together with Kafero Anthony, he was also the Petitioner’s Polling agent at Lwebitakuli Polling Station. He arrived at the Polling Station at 6.30 a.m. and found that people had already started voting. The presiding Officer who was also the 1st Respondent’s campaigner, Oliver Karinkiza, wondered why Babikinamu was querying the voting before time. She simply told him to sit down and concentrate on what he was supposed to be doing. She showed him where to sit which was 5 meters away from the desk at which he should have sat. So Babikinamu was prevented from scrutinising Voters’ Cards vis--vis the Register.
The affidavit was based on knowledge and belief, but belief IS irrelevant since the deponent said what he saw.
Babikinamu’s affidavit was rebutted by Oliver Karinkiza. In her affidavit dated 2-4-2001, she said that she was the presiding Officer of Lwebitakuli Polling Station on 12-03-2001. She denied that she was a campaigner for the Respondent. At that Polling Station, voting started at 7.00 a.m. not 6.30 a.m. as Babikinamu alleged. Voting started in the presence of Byaruhanga Fredrick, Polling agent for the 1st Respondent and many others including Bakinga Monica. Babikinamu arrived at the Polling Station after 7.00 a.m- and introduced himself as the Petitioner’s Polling agent, and Karinkiza showed him where to sit with other Polling agents, not 5 meters away. The effect of her affidavit is that Babikinamu fabricated what he said in his affidavit. It was, therefore, a pack of lies. There would appear to be no sensible reason, and Karinkiza does not suggest any, why Babikinamu should tell lies against her. On the other hand; it would be unthinkable for her to admit having committed electoral malpractice as a presiding Officer which Babikinamu’s allegations amounted too. In the circumstances, I would accept Babikinamu’s evidence and reject that of Karinkiza.
I have already referred to the affidavit of Kedega Michael in another context. One of the things he said therein is that after voting ended at 5.00 p.m. voting was restarted at 7.30 p.m. and continued until 10.00 p.m.
As I have said before fl this judgment, the Chart indicates that Kedega’s affidavit was rebutted by the “Electoral Commission.” it does identify who in the Electoral Commission and where the rebuttal affidavit can be found. Kedega’s evidence, therefore, remains uncontroverted.
I have considered the evidence from all sides of the Petition regarding this ground of the Petition. I am satisfied that the Petitioner has proved it to the required standard, and I find that in some Polling Stations, presiding Officers and/or Polling assistants, as agents/servants of the 2nd Respondent commenced polling before the stipulated time and closed polling beyond the official time, in contravention of section 29(2) and (5) of the Act. The effect of this noncompliance on the result of the election shall be considered together with the effect of other incidences of noncompliance.
Paragraph 3(3) (i) of the petition stuffing ballot boxes with ticked ballot papers.
“3(3) (i) That contrary to section 30(7) of the Act, the 2nd Respondent’s agents/Servants’ in the course of their duties, allowed commencement of the Poll with ballot boxes already stuffed with ballot papers and said boxes in full view of all present to ensure that they are devoid of any contents.”
The 2 Respondent’s reply to this ground of Petition that:
“8. In reply to paragraph 3(1)(i) of the Petition, the 2nd Respondent avers that it never allowed commencement of the poll, with ballot boxes already stuffed with ballot papers in full View of all presents as alleged.”
The provisions of section 30(7) of the Act are that:
“30(7) The presiding Officer at each polling Station shall, at the commencement of the Poll and in the full View of all present open the first ballot box, turn it upside down with the open top facing down to ensure to the satisfaction of every one presents that the ballot box is devoid of any contents and after that place the ballot box on the table referred to in paragraph (c) of sub-section (j).”
The Petitioner’s learned Counsel did not make submissions under this ground of the Petition, but they filed in Court a list of witnesses and their affidavits for purposes of proving the ground.
In his submission, Mr. Kabatsi said that he had not seen any affidavits in support of this ground, proving when and where the provisions of section 30(7) of the Act were not followed. Alternatively, if there were such affidavits they were rebutted by affidavits opposing the Petition. He then criticized some of the affidavits filed to support this ground of the Petition.
Abdurahman Mwanja’s affidavit is indicated as one of those filed in support of this ground of the Petition. I have already referred to the affidavit in another context. He said in his affidavit of 2-3-2001, that as Chairman of the Petitioner’s Task Force for Kigulu South Constituency and Bulamogi Sub-/County he visited Iganga Town Council Polling Station to ensure that voting was free and fair. He saw a motor vehicle Hilux Double Cabin No. UG. 0095B bring ballot boxes and “plant” them at Iganga Hospital. The ballot boxes already had ballot papers in them. Mwanja approached the people who brought the ballot boxes and they were forced to leave the area. The boxes were shifted to Kagekobo Primary School which had two Polling Stations, A and B. He followed them with his motor cycle, and he insisted to check the ballot boxes but they refused. Since they were armed, they overpowered Mwanja and his colleagues and took the boxes away with one of the Petitioner’s agents, who later jumped off the vehicle. At 3.30 p.m. they returned, picked up the Petitioner’s agent under arrest, and took him to Iganga Police Station. The arrested agent was released on Police bond of Shs. 50,000 =, and was bound to report back on 29-03-2001.
Ismail Kyeyago rebutted Mwanja’s affidavit. In his affidavit of 4-4-2001, Kyeyago said that he was the Chairman of LC lll, Iganga Town Council and of the Movement in Iganga Town Council. He was also Chairman of the 1 Respondent’s Task Force in Iganga Town Council. He said that Mwanja’s affidavit was false because he never ordered any persons to vote as alleged by Mwanja. Ismail Kyeyogo’s affidavit did not refer to Mwanja’s allegation about stuffed ballot boxes, which evidence, therefore, stands uncontroverted.
Ndifuna Wilber of Busia Town Council, Busia District, was an Electoral Monitor for the petitioner in Busia Town. In his undated affidavit, he said that in the course of his movements he met a man called Bazilio, a beer seller at Marach “b” area, with two girls in his bar. On information that he had bundles of ballot paper he was issuing to people Ndifuna went to him with two plain clothes Police Officers, and asked Bazilio that he (Ndifuna) was a voter and wanted to go and vote for the 1st Respondent. This was a trick, which worked. Bazilio came out with a bundle of ballot papers marked Voters’ Cards and Voters’ Register. Bazilio gave Ndifuna one Voter’s Card in the name of Jogo Joseph and ticked that in the Register. The two girls were also going out with ballot papers they had obtained from Bazilio. Police Officers, whom Ndifuna had tipped, came and arrested all of them, including Ndifuna. Later the same day, the suspects were released from Police custody, allegedly on orders of Busia District Officials. The affidavit was based on knowledge and belief, but since what Ndifuna said was what he witnessed, belief was irrelevant. The affidavit appears to be undated but the date of 22-03-2001, is written above the stamp of the Chief Magistrate of Tororo, before whom the affidavit was apparently sworn. That date appears to be adequate for the validity of the affidavit.
The Chart does not show that Ndifuna’s affidavit is rebutted. It therefore, remains uncontroverted I accept the evidence.
I have already referred to the affidavit of Moses Babikinamu in another context. He said, inter alia, that when Hon. Sam Kutesa, MP appeared at Lwebitakuli Polling Station, at 10.00 a.m. the M.P. asked the presiding Officer, the number of people who had by then voted. The presiding Officer, Oliver Karunkiza replied, 300, but Babikinamu had counted only 52 to have voted. Between 7.00 a.m. and 5.00 p.m. he recorded the number of people who had cast their votes. They were 160. After counting the cast ballot paper at the end of the Poll, the Presiding Officers declared that the votes were 510. Babikinamu disputed that figure, but the 1st Respondent’s agents threatened him and his colleagues saying that they were going to be arrested. The presiding Officer got annoyed with Babikinamu and told him to sign the documents without reading through. He signed and left immediately for fear of his life.
Oliver Karunkiza, the presiding Officer at Lwebitakuli rebutted Babikinamu’s affidavit. She denied that she was the 1st Respondent’s campaigner during the Presidential Election. She said that Polling started at 7.00 a.m., not at 6.30 a.m. as Babikinamu alleged, in the presence of Byaruhanga Fred Olwick, Polling agent for the 1st Respondent and many others. On that day Babikinamu arrived after 7.00 a.m. and introduced himself, and she did not make him sit at a distance as he alleged. The M.P. for Mawogola, Hon Sam Kutesa came to the polling Station in the afternoon; not at 10.00 a.m. as alleged. The total number of votes cast was 510. This was counted in the presence of Polling agents for both candidates. Babikinamu willingly signed the declaration of results and tally sheets together with Kafero Anthony, Byaruhanga Fredrick, Polling agents’ and Nabakoza Joyce and Bekinga Munica, Polling assistants. She did not threaten Babikinamu with arrest. The rebuttal was therefore, a complete denial of what Babikinamu alleged Oliver Karinkiza as the presiding Officer did. She did not say why he should have made up such serious lies against her if the allegation were lies. It would be difficult to imagine credible reasons for such a complete fabrication of what did not happen. Further, Karinkiza would not be expected to admit to have committed such electoral malpractices as a Presiding Officer. In the circumstances my view is that it is Karinkiza’s denials which were false, not Babikinamu’s account of what happened. I accept the latter’s evidence as true.
Imoni Steven, of Mella Village, Kwasa Sub-County, Tororo District was a campaign agent for the Petitioner for Mella Parish. In his affidavit of 22-03-2001, he said that, while he was at Mella Primary School Polling Station, he saw the presiding Officer Arthur Etyang Osilo issuing more than one ballot papers to some voters especially members of the clan of the MP — Tororo County, Hon. Paul Etyang, whom Imoni knows very well since they are his relatives. He pointed this out to the polling officials and Polling agents, but the presiding Officer ignored his concerns. Before voting started, the LC3 Chairman Kwapa sub-County, arrived at the Polling Station, called aside the presiding Officer and the Polling agents of the 1st Respondent and had a long discussion with them. At the close of poll, the presiding Officer convinced all the Polling agents to sign declaration forms before the votes were tallied. Before the votes could be counted, the LC3 Chairman, Mr. Alfred Obore returned to the Polling Station at 6.00 p.m. with a gun, cocked it and ordered everybody to disappear. All ran away except the Polling officials. After about 30 minutes Imoni and some other people gained courage and returned to the Polling Station, and found that the votes were not tallying, because 750 ballot papers were recorded when the poll began and 525 voters cast their votes, 160 ballot papers had not been used, leaving 65 ballot papers unaccounted for. The ballot papers unaccounted for had been ticked in favour of the 1st Respondent. Thereafter a disagreement ensued between the Polling agents. The Petitioner’s Polling agents wanted the 65 votes destroyed. The CID Officer of Malaba present held on to the 65 ballot papers. The O.C., CID, Malaba was called. He purported to arrest the presiding Officer. The following morning Imoni found the presiding Officer in Malaba Town, out of custody.
The affidavit was based on knowledge and belief. Belief appeared to be irrelevant
since what Imoni said in it was what he witnessed.
Alfred Obore, Chairman LC3, Kwapa Sub-County was also the Chairman of the 1st Respondent’s Task Force for Kwapa. In his rebuttal affidavit dated 3-4-2001, he said that what Imoni Steven said in his affidavit was false. On 12-03-2001, he visited Mella at about 7.30 a.m. where voting had already started, not before as alleged. While there, he called his agents aside to find out if they had any problem and to give them lunch allowance. I think what Obore called “my agents” were the 1st Respondent’s agents. He said that he did not call the presiding Officer aside for a discussion or at all, because voting was already in progress, and he was issuing ballot papers to voters in the line. On his way back to Malaba, he passed by Mella Polling Station at 7.00 p.m., where he found a group of people arguing. The O.C. Police Malaba came by and advised that due to darkness, the ballot box should be carried to Malaba Police Station for purposes of counting and tallying the ballots because of insufficient light. He did not follow the ballot boxes; nor did he participate in the counting of votes, or tallying as alleged. He did not have a gun, nor order anybody to disappear as alleged.
I find that Obore’s affidavit is consistent with that of Imoni in certain particulars for instance presence of the O.C. Malaba Police Station. Imoni called him O.C, CID. The two affidavits differ with regard to what Obore allegedly did, which he says was false. Obore says nothing about the excess 65 ballot papers, about which Imoni went on details. There would appear to be no sensible reason, and Obore does not suggest any, why Imoni would make up all he said in his affidavit. On the other hand it would be unthinkable for Obore to admit the criminal acts which Imoni alleged against him. I would therefore, believe Imoni’s evidence and reject Obore’s, which I do.
Tukahebwa Kenneth was from Kyenzaza, Kichwamba, Bunyaruguru, Bushenyi District. In his affidavit of 21-03-2001, he deponed that he was a Polling agent for the Petitioner at Kyenzaza Trading Centre Polling Station. At about 2.00 p.m. on Polling day the driver of Watuwa Sikola alias Maama Chama, by the names of Ntare Banyenzaki Abdu, arrived at the Polling Station. Watuwa Sikola is employed in State House and was a vigorous Campaign Manager for the 1st Respondent. At about 2.00 p.m. the said Banyenzaki tried to stuff several ballot papers into the ballot box. Tukahebwa and his colleague protested. A home guard was called and he arrested Banyenzaki with the ballot papers. Within five minutes Watuwa Sikola alias Mama Chama arrived and took away her driver and the home guard. The latter returned, disarmed.
Kyomuhangi Allen, sister in law of Sikola was caught red handed with 13 ballot papers all ticked in favour of the 1st Respondent at the same Polling Station, while trying to stuff them into the ballot box. The same were removed from her and handed over to the Monitor who in turn handed it over to the coordinat0r, and they were taken to Bushenyi Police Station, where a case was opened vide SD 39/12/3/2001, CRB. 107/2001. The affidavit was based on knowledge.
Watuwa Sikola, of Kyambura Bunyaruguru Bushenyi District, rebutted Tinkahebwa’s affidavit. In her rebuttal affidavit of 3-4-1001, she said that she served on the District Task Force of the 1st Respondent. On Polling day she was coming from Monitoring election in Kichwamba and arrived at Kyenzaza Trading Centre in the late afternoon. She got information that her driver Abdu Banyenzaki had had a scuffle with a vigilante. At the Polling Station she and LC3 Chairman Frank Mubangazi found the vigilante drunk and armed, near the Polling Station. The Chairman disarmed the vigilante and summoned the LDU Commander to deal with the vigilante for being drunk and carrying a gun near the Polling Station. It is not true, as Tukahebwa alleged, that she rescued Abdu from arrest or that she disarmed a home guard. Nor is true that Allen Kyomuhangi is her sister — in — law. Her late husband was from Mbale and could not have had a sister with that name, which is a name indigenous to Western Uganda. I find that the affidavit of Watuwa and that of Tukahebwa agree in certain particulars except with regard to the alleged possession by Watuwa’s driver and Kyomuhangi of ticked ballot papers, about which Watuwa did not refer to in her affidavit. She does not mention anything about ballot papers at all. There would appear to be no sensible reason for Tukahebwa to fabricate the detailed account of what he said happened. His evidence is preferable to that of Watuwa.
Abdu Ntare Banyenzaki also rebutted Tukahebwa’s affidavit. In his affidavit of 3-4-2001, he said that on Polling day, his task was to transport the sick after they had voted at Kyenzaza to their respective homes. He did not stuff or attempt to stuff ballot papers into a ballot box as alleged by Tukahebwa. It is not true that he was arrested by a home guard with ballot papers. On the contrary, he was accosted by a drunk and armed vigilante near the Polling Station, who wanted to know who he was and what he was doing there. As a result he went home where Mrs. Watuwa Sikola his employer, found him. She proceeded to the polling Station. It is not true that he was arrested by a home guard with ballot papers or that Mrs. Watuwa rescued him (Banyenzaki) as alleged by Tukahebwa. Banyenzaki’s evidence is simply a denial of Tukahebwa’s evidence. If the denial is true, then Tukahebwa must have invented what he said in his affidavit. It would appear to be unlikely that such detailed evidence would be invented. I do not accept Banyenzaki’s denial. I accept Tukahebwa’s evidence as true.
Bangirana James, Asp. and O.C., CID. in Bushenyi District also rebutted Tukahebwa’s affidavit. In his rebuttal affidavit of 1-4-2001, he said that in preparation for the election Police Mobile Units comprising officers and men were deployed in every route in Bushenyi District, well equipped with transport and communication which made frequent checks at all Police Posts and polling Stations. All election related offences were reported to Police Posts and transmitted to the mother Police Station at the District level. A tabulated Chart of such reports was annexture “A” to Bangirana’s affidavit. This evidence in my view does not rebut Tukahebwa’s affidavit. The police mobile units were not stationed at Kyenzaza Polling Station at all times. On the contrary the tabulated Police Chart reported electoral offences corroborates .Tukahebwa’s evidence. The Chart shows No. 15, SD 39/12/3/2001. CRB 107/2001 (the Police reference mentioned by Tukahebwa) as reported by Rev. Fr. Birungi. Tukahebwa said that the ballot papers were handed over to a Monitor who handed them over to a co-ordinator. He did not say whether Rev. Fr. Birungi was any of these. It is well known that election was monitored by a Christian Coalition. Presumably Rev. Fr. Birungi was a member of that group. Tukahebwa’s evidence, therefore, still remains credible.
On the evidence available on this ground as a whole, which I have carefully considered, I am satisfied that the Petitioner has proved to the required standard, and I find that at the commencement and during the course of polling, the 2’ Respondent’s agents/servants1 namely the Presiding Officers allowed ticked ballot papers to be stuffed into ballot boxes, contrary to section 30(7) of the Act.
Paragraph 3(1) (o) of the Petition under-age voting.
3(1)(o) That contrary to section 19(1)(b) of the Electoral Commission Act, the 2nd Respondent’s agents/servants in the course of their duties allowed people under 18 years of age to vote.”
The 2nd Respondent’s reply to this allegation was pleaded as follows:
“14. In reply to paragraph 3(1)(o)of the Petition the second Respondent denies that people below the age of 18 years voted.”
Section 19(1) (b) of Act 3/97 provides:
“19(1). Any person who
(a) ………………………….
(b) is eighteen years of age or above, shall apply to be registered as a voter in
a parish or ward where that person
(i) Originates from;
(ii) Resides;
(iii) Works in gainful employment.”

The Petitioner’s learned Counsel did not make any, submission on this ground of the Petition, but filed a list of relevant witnesses and their affidavits.

In his submission on this ground0 Mr. Kabatsi criticized the affidavit of Kirunda Mubarak, one of the Petitioner’s witnesses, saying that the affidavit is useless, because Kirunda does not say how many such voters were and the criteria he used for assessing their age. There was no proof that they were under age. Mr. Kabatsi further said that Kirunda’s affidavit has been rebutted by Balaba Dunstan, who was the Ag. Returning Officer of Mayuge District. I shall return to this rebuttal affidavit shortly.

I have already referred to the affidavit of Sulaiman Miiro in another context as the Petitioner’s monitoring agent in Bukooli North constituency, he went to Bus Park “A” Polling Station. Soldiers from the Bugiri RDC’S Office came, threatening and forcing young children below 18 years of age to vote. Miiro and others tried to object but they were-over powered by the soldiers, who were armed. Miro’s affidavit is rebutted by that of Ms. Nava Nabagesera, the RDC of Bugiri District. I have already evaluated this rebuttal evidence and rejected it.

I have already referred to the affidavit of Patrick Matsiko Wa Mucoori in another context. He was a Senior Reporter with “The Monitor News Paper.” He is one of the few witnesses for the Petitioner who was not his agent. He may, therefore, be regarded as an independent witness. In the present context, he said that he saw a young girl of about 12 years of age with a Voter’s Card coming to vote. Mucoori asked the presiding Officer about this. The reply was that the girl was voting for her father, who was reported to be sick in the Barracks. This was a special area Army Polling Station, Kanyarugiri 07 Polling Station. The Chart does not show that Mucoori’s affidavit is rebutted. His evidence, therefore, remains uncontr0vert

Kirunda Mubarak is one of the Petitioner’s witnesses to whose affidavit I have already referred in another context. He said that at Mpugwe Polling Station in Mavuge District he found young children below the age of 18 years voting. When he asked why, he was told that the children were of age1 yet according to Kirunda, they were only 14 years old. The LC1 & II Chairman got hold of him and forced him out of the Polling Station because he was asking questions. The Chart indicates that Kirunda’s affidavit is rebutted by Kedres Wamulongo, on page 282, but page 282 of the 1st Respondent’s volume of affidavits has the affidavit of one Emoding Anthony and the 2nd Respondent’s volume does not reach page 282. I am therefore, unable to lay my hands on Kedres Wamuolongo’s rebuttal affidavit.

As Mr. Kabatsi correctly pointed that Kirunda’s affidavit was also rebutted by Balaba Dunstan, the Ag. Chief Administrative Secretary and the Returning Officer, of Mayuge District. In his rebuttal affidavit of 2-4-2001, he said that he never received any report about under age persons voting at Mpugwe Polling Station. This means that the GAO was not at Mpugwe Polling Station. This is to be expected, because as the Returning Officer his function covered the whole of Mayuge District. He would not expect to supervise closely what happened at this or any other Polling Station. The fact that he did not receive any report does not necessarily mean, in my view, that Kirunda’s allegation about voting by under age children did not happen. Kirunda said that the children being allowed to vote were either 14 years or below. Kirunda was not cross-examined on this. So, his evidence must be regarded to have been admitted by the opposite party not withstanding Mr. Kabatsi’s contention, which is not evidence.

Ssentongo Elias is another one of the Petitioner’s witnesses to whom I have already referred. In his affidavit of 21-03-2001, he said that on 12-03-2001, he went to Karegyeya Polling Station in Ntungamo District. Soldiers allowed children who were clearly under the age of 18 years to vote for the 1st Respondent. Ssentongo’s affidavit is rebutted by Muhoozi Tom, but the rebuttal affidavit does not refer to Ssentongo’s allegation of voting by under age children. Accordingly his evidence in that regard remains uncontroverted.

Byaruhanga Yahaya, to whose affidavit I have considered in another context, said that at March “D” Polling Station in Busia Town Council area, 6 under age children were allowed to vote. His attempts to stop them were ignored by the presiding Officer. Byaruhanga’5 affidavit IS not indicated in the Chart to have been rebutted. Accordingly his evidence stands uncontroverted
 
After considering available evidence on this ground as a whole, I am satisfied that the petitioner has proved to the required standard, and I find, that in some Polling Stations, the 2nd Respondent’s presiding Officers allowed persons under the age of 18 years to vote and did vote, contrary to section 19(1)(b) Act 3/97.

I shall consider the effect of this noncompliance together with the effect of other incidences of non-compliance.

Paragraph 3(1) (q) of the Petition - Allowing people without Voters’ Cards to

“3(1) (q) That contrary to sections 29(4) and 34 of the Act, the 2nd Respondent and its agents/Servants the presiding Officers in the course of their duties allowed people with no valid Voters’ Cards to vote-”

The 2nd Respondent made a reply to this ground of the Petition fl its Answer as follows:
 
“15. In reply to paragraph 3(1) (q) of the Petition, the 2nd Respondent avers that it allowed people whose names appeared in the Voters’ Register but had not been able to obtain Voters’ Cards to vote after being properly identified, and that the number of such people was small and insignificant and the 2nd Respondent did this lawfully in exercise of powers and functions given it by law-”

The 2nd Respondent did not state in his reply what law permitted it to allow voters with their names on the Voters’ Register but without valid Voters’ Cards to vote.

Section 29(4) of the Act provides:
 
“29(4) Any Person registered as a Voter and whose name appears in the Voters’ Roll of Polling Station and who holds a valid Voter’s Card shall be entitled to vote at a Polling Station.”

Section 34(1) of the Act provides:
 
“A voter wishing to obtain a ballot paper for the purpose of voting, shall produce his or her Voter’s Card to the Presiding Officer or Polling assistant at the table referred to in paragraph (a) of sub-section (5) of section 30.”

As far as my notes of the Proceedings show, the Petitioner’s learned Counsel did not specifically submit on this ground. Nor did Mr. Kabatsi in reply, unfortunately, because if he made a submission in reply, he would have referred to the relevant law (if any) on which the 2nd Respondent allegedly relied.

The Petitioner’s learned Counsel filed a list of deponents and their affidavits relevant to this ground of the Petition.

Zeeyi Patrick, of Mukutu Sub-County, Iganga District said in his affidavit of 20-03-2001 that he was the Petitioner’s monitoring agent for Nondoe, Makandwa and Busimo A and B Polling Stations. At 12.00 noon, he met the Presiding Officer (he does not say of which Polling Station) and the LCI Chairman distributing ballot papers to people whose names were not on the Register of Voters to cast votes and he saw them cast votes. He met a Cadre in the area also ordering the Presiding Officer to allow all people whose names were not on the Register to vote without restriction from anybody. When Zeeyi questioned why this was happening, they stopped for about ten minutes, but when the Sub-County Chief arrived with the second Register, he ordered them to use both the old and the new Registers and voting continued with both Registers. When he went to Polling Stations in Busimo A and B, he found the same problems. I find contradictions in this witness’ evidence. If people whose names were not in the Register were being allowed to vote, why was a Register necessary and used when the Sub-County Chief arrived with a second Register? In the circumstances, I do not accept Zeeyi’s evidence in this regard.

Bwambale Solomon Kisaka, of Habitat Kamaiba, Kasese Town, was a Polling agent for the Petitioner at Kamaiba Primary School Polling Station. He saw a person calling himself Karuhanga John, holding a card in those names, was allowed to vote although his name did not appear on the Voters’ Register. Maate Joseph, also holding a Voter’s Card also voted although his name did not appear on the Voters’ Register. The Chart shows that Bwambale’s affidavit is rebutted by Grace Maiso, but it is not shown where the rebuttal affidavit can be found. This evidence shows that people with valid Voters’ Cards but whose names were not in the Register were allowed to vote, which the 2nd Respondent has said it was authorized to do by law.

I have already referred to Lucia Naggayi’s affidavit in another context. At Budimbo Polling Station, Rwansama and Naggayi were informed by the Petitioner’s agent that many soldiers, whose names were not on the Voters’ Roll, were allowed to vote and did vote. David Kkeeya, of Kateera Parish, Bukomero, Kiboga District, was the presiding Officer at Bukomero A — M Polling Station. In his rebuttal affidavit of 4-4-2001, he said that Lucia Naggayi, was the Petitioner’s election Monitor where he was presiding Officer. He denied that the several electoral malpractices alleged by Naggayi occurred at the Polling Station. Lucia Naggayi did not give the source of her information. Her evidence was therefore hearsay, and inadmissible.

Baguma John Henry was the petitioner’s electoral Monitor for Bukonjo County, Kasese District. In his affidavit of 20-03-2001, he said that on 12-03-2001, the RDC in charge of Bukonjo County, one Aggrey Mbomi went with a lorry full of armed soldiers to Munsana Polling Station and ordered the Presiding Officer to allow all the soldiers to vote. He handed to the presiding Officer a parcel allegedly containing names of the soldiers. Presiding Officer already had his Voters’ Register before the RDC brought his. Baguma protested but he was overpowered after he had been threatened with death by a soldier in charge of operations at Nyabirongo Army Battalion headquarters. He noted that army men who were voting at Nyabirongo Army Barracks were transported to Rwenghuyo and Kisinga Trading Centre Polling Station A, where they voted again. When Baguma pointed this out to the presiding Officer at those two polling stations, he was chased away by one Major Mawa, who threatened to kill Baguma if he continued with his “nuisance about the soldiers voting from many polling stations”.

The Chart shows that the affidavit of Baguma is rebutted by Mumywami Johnson on page 270, but page 270 contains the affidavit of Achaga Safi which is irrelevant to Baguma’s affidavit. Aggrey Mwami the Deputy Resident District Commissioner of Kasese, based at Bwera, rebutted Baguma’s affidavit. In his rebuttal affidavit of 2-4-2001, he said that the affidavit of Baguma contains false allegations against him Mwami e denied that he went with a lorry full of armed soldiers and ordered the presiding officer to allow them to vote. Nor it is true that he handed over a list to the presiding officer as alleged by Baguma. On Polling day he moved around to ensure that security was alright. He was not traveling in a lorry and he had no soldier’s in his company. He never entered any polling stations. It is therefore false allegation that he ferried soldiers to the polling stations and ordered the presiding Officer to allow them to vote. He never saw any lorry carrying soldiers.

According to what Mwami’s rebuttal affidavit means, all that Baguma said in his affidavit was fabricated. But he does not suggest why Baguma should invent such serious and detailed lies against him. Due to his office, Mwami would not be expected to admit that as a Deputy R.D.C he committed such electoral offences or malpractice. In the circumstances, it is his denial that I find to be false. I accept Baguma’s evidence as true.

Major Mawa Muhindo also rebutted the affidavit of Baguma. He was stationed at the 13th Battalion in Bwera. He said that he did not go to Rwenjuhya and Kisinga Trading Centre as Baguma alleged. The allegation by Baguma that he (Muhindo) chased away and threatened to kill Baguma never took place and it is completely false. Again, according to Muhindo’s affidavit in rebuttal, all that Baguma said in his own affidavit is a fabrication. But he did not say why Baguma should have invented such false stories against him. Major Muhindo would not be expected to admit having committed the electoral and other offences which Baguma alleged against him. It is to be expected that he old deny them. In my view, it is the Major’s evidence which is false, not Baguma’s evidence, which I believe to be true.

Bwambale Kasinini, of Kirembo Village, Kagando, Kisinga, Kasese District, was a Polling agent for the Petitioner at Kirembo polling Station. He said in his affidavit that the ballot box arrived at 12.00 noon instead of 7.00 a.m. Soldiers came looking for their Register of Voters, but it was not there. The Soldiers left on a hired motor vehicle and returned with a Register upon which 62 of them voted. It was a separate Register from the one civilians used at the Polling Centre. The affidavit is based on knowledge and belief. Belief is irrelevant because Bwambale spoke of what he saw. The Chart does not show that Bwambale’s affidavit is rebutted. The evidence therefore, stands uncontroverted.

Magumba Abdu was the Petitioner’s Polling agent at Munyonyo Muslim School Polling Station. He deponed in his affidavit that out of nine ballot paper booklets one of them had only 10 ballot papers. He was informed by the Presiding Officer that the booklet had been handed over to him in that form. Thereafter people whom Magumba knew and whose names he listed in his affidavit did not have their names in the Voters’ Register and had no Voters’ Cards but they were allowed to vote on the instructions of the area LC5 Chairman, one Abubaker Ikoba. Magumba and other Polling agents, except the ones for the 1st Respondent, resisted the malpractice in vain. They were forced to sign the declaration of results form by army men who had been summoned by the said LC5 Chairman.

Mainogovu Jowali rebutted Magumba’s affidavit. In his rebuttal affidavit of 2-4-2001, he said that he was the 1st Respondent’s Polling agent at Mioni Muslim School, which he said Magumba must have meant when he referred to Munyonyo Muslim School. The Polling agents, including Mugumba verified the ballot papers and found that only one out of 9 booklets had less than 100 ballot papers. All this tallied with the Packing list in the ballot box. At no time did any army man come to the Polling Station and no person whose names were not on the Voters’ Register or who had no valid Voter’s Card was allowed to vote. The whole voting exercise went on freely and fairly and was endorsed by all Polling agents by willful signing of the declaration forms.
Mainogovu does not mention Abubaker Ikoba, the LC5 Chairman whom Mugumba accused of giving instructions to allow thirteen people whose names were not on the Voters’ Register to vote. Nor did he suggest any reason why Mugumba should have fabricated what he said in his affidavit, including inventing names of thirteen people out of the blue. In the circumstances, I do not believe Mainogovu’s denials. In my view, they are false. I find Magumba’s evidence preferable and I accept it.

I have already referred to the evidence of Musisi Francis in another context. He said further that at Baitambogwe Sub-County Headquarters Polling Station, Yasin Muyinda, Mbowa, Richard Basi, Waiswa John, and others whose names Musisi could not be ascertained, were allowed to vote when their names were not on the Register. The affidavit was based on knowledge and belief. Belief is irrelevant since Musisi spoke of what he witnessed.

The Chart does not show that Musisi’s affidavit was rebutted. His evidence, therefore, stands uncontroverted, and I accept it.

I have already referred to the affidavit of Abdurahaman Mwanja in another context. He further said that at around 4.00 p.m. the Health Council Medical Officers and the Mayor of Iganga, Ismail Kyeyago, ordered those who had old Voters’ Cards to vote and those who had cards but whose names did not appear on the list of Voters’ Register to vote and they voted. He further saw that in Bulamogi Sub-County, at Kasolo Mosque Polling Station one Councilor called Adam Wambuzi gave children (below 18 years) Cards to go and vote and told them that “go and vote Museveni or the one who has got the hat.” The 1st Respondent election poster pictured him with a hat. At Walugogo Primary School Polling Station, students-teachers who had registered in 1 996, when they were at Iganga Teachers’ College and Iganga Technical and whose names came back in the Register yet they had completed their studies and gone away, their Cards were given to other people who used them to vote and voted. At Budwege Primary School Polling Station, the area of the Vice President of Uganda, “soldiers in her company were allowed to vote yet they were not registered voters at that Polling Station.”
Ismail Kyeyago rebutted the affidavit of Abdurahaman Mwanja in another context. He is the LCIII Chairman — Iganga Town Council, the Chairman of the Movement in Iganga Town Council and Chairman of the 1st Respondent’s Task Force in Iganga Town Council. In his rebuttal affidavit he said that Mwanja’s affidavit was false. He denied that he ever ordered any person to vote as Mwanja alleged or at all. It was not part of his duties and he had no power to do as it was alleged. He said that he monitored all the Polling Stations in Iganga Town Council, and he confirmed that the election in his area of jurisdiction was freely and fairly conducted. The same reasons I gave for rejecting Kyeyago’s rebuttal evidence earlier in this judgment apply to the instant denial of what Mwanja said Kyeyago did in this connection. I also accept Mwanja’s evidence in this regard.

The affidavit of Mrs. Odong Margaret has already been considered earlier in this judgment. It is also relevant to this ground of the Petition. In the Chart it is indicated as rebutted by Pious Margaret Obol, but Obol’s rebuttal affidavit is not relevant to Odong’s affidavit. It rebuts what one Joyce Bongomu had alleged against Obol that she distributed money to voters. In the circumstances, Odong’s affidavit in this regard, stands uncontroverted, and I accept it as true. What I have said about the affidavit of Mrs. Odong Margaret equally applies to the affidavit of Kedega Michael under this ground of the Petition.

The 2nd Respondent’s answer to the ground of Petition under consideration, admitted that it allowed people whose names appeared in the Voters’ Register but had no Voters’ Cards to vote after proper identification. The 2nd Respondent contends that it did this because it was authorized by law to do so.
However, it did not indicate what law it was. My view is that the 2nd Respondent is under a duty to cite the law which justifies its action in this regard.

In a “Press Release” dated 11-03-2001, the 2nd Respondent stated:

“Although the Commission has been issuing Voters’ Cards since the lst March, 2001, complaints are still being received that some Voters have not received their cards and yet their names appear on the Voters’ Register.
The Constitution gives a right to every Ugandan Citizen of 18 years or above to be registered and vote. The Commission therefore wishes all to note that all Citizens of 18 years or above whose names appear on the Register but have not received their Cards
but can be identified by the Polling Officials and Candidates’ agents at their respective Polling Stations, should be allowed to vote.”

As I understand them the effect of the combination of sections 29(4) and 34(1) of the Act, is that a Citizen of Uganda wishing to vote and whose name is in the Register of Voters, must produce his or her Voter’s Card to the presiding Officer of the Polling Station at which he or she wishes to vote. The requirement for a valid Voter’s Card is mandatory. That is the only way in which a person can exercise his or her right to vote under article 59 of the Constitution. The 2nd Respondent by its press release, I have referred assumed that it was thereby implementing the Constitution. With due respect, I think that it was mistaken. It was acting in contravention of sections 29(f) and 34 of the Act.
 
The evidence I have evaluated under this ground of the Petition has proved that the 2nd Respondent contravened the law in theory as well as in practice. In the circumstances, I am satisfied that the Petitioner has proved to the required standard and I find that contrary to sections 29(4) and 34 of the Act, the 2nd Respondent allowed some people with no valid Voters’ Cards to vote and they voted.

Paragraph 3(1) (k) of the Petition: Intruders into 2nd Respondent’s offices.
=========================================================
“(k). That Contrary to the provisions of section 12(1)(f) and section 18 of the Electoral Commission Act, the 2nd Respondent failed in its Statutory duty of properly compiling and securely maintaining the integrity of the National Voters’ Register and Rolls when it (the 2nd Respondent) failed to take steps to ensure that intruders were prevented from tampering with the Voters’ Register and Rolls and voting materials in its possession as it happened a few days before the 2nd Respondent completed compiling the Final Voters’ Register on 10th March, 2001.”

In its answer to the Petition, the 2nd Respondent’s reply to this ground of Petition is that:
“10. In reply to paragraph 3(1)(k) of the Petition, the 2nd Respondent avers that no intruders ever tempered with the Voters’ Register and Rolls or with voting materials in its procession for compiling of the Final Voters’ Register as alleged or at all”

Section 12(1) (f):
“12(1) The Commission shall, subject to, and for the purposes of carrying out its functions under Chapter Five of the Constitution and this Act have the following powers
(f) to take steps to ensure that there are secure conditions necessary for the conduct of any election in accordance with this Act or any other law.”

Section 18 of Act 3/97 has already been reproduced earlier in this judgment.
The Petitioner’s learned Counsel did not make any submission on this ground of the Petition. Nor did the 2nd Respondent submit in reply. The ground was not proved by any affidavit evidence. Nor did the 2nd Respondent adduce any evidence in opposition.

In the circumstances, I find that this ground of the Petition was not proved at all. It must therefore, fail.

Paragraph 3(1) (I) of the Petition Arrest of Hajati Miiro:
=========================================================
“(1) That Hajati Miiro a Member of the Respondent failed to live up to the Oath of Office as a result of which she was arrested in connection with electoral offences. Hajati Miiro, a Member of the 2nd Respondent was arrested and detained by the Police and charged in Court with two other Seminar Officers in charge of the Data Centre of the 2nd Respondent for being found to have indulged In practices amounting to electoral offences contrary to section 70 of the Act. Thus seriously undermining the whole electoral process.”

The 2nd Respondent’s answer to this ground of the Petition is that:
 
11. In reply to paragraph 3(1) (l) of the Petition, the Respondent avers that Hajati Miiro and two other employees of the 2nd Respondent were arrested and charged in Court and their cases have not been finalized. Furthermore, there is no evidence that the Commission of the alleged offences if any, affected the results of the election substantially as alleged or at all and in any event this matter is subjudice.

Section 70 of the Act creates a long list of offences under the Act. It is not necessary to reproduce the long list of offences in this judgment. Only some examples may be given. These include forging, counterfeiting or destruction of ballot paper; without authority, supplying ballot paper to anybody etc.

In his submission, Mr. Balikuddembe mentioned Hajati Miiro’s case as an example of the 2nd Respondent’s failure to organize a free and fair election. Mr. Kabatsi said in his reply that the case is still in Court. Until proved guilty she is still innocent of the offence with which she has been charged.

In his affidavit filed with the Petition, the Petitioner said:
 
“49. That I know that Hajati Miiro a Member of the Electoral Commission was arrested together with two other Senior Officers in the Data Centre of the Electoral Commission the Polling day and were charged in Buganda Road Chief Magistrate’s Court with electoral offences and I herewith attach a copy of the Charge Sheet and is marked “P20.”

The affidavit of Mr. Kasujja, supporting the 2nd Respondent’s Answer to the Petition said:
 
“17. That in response to paragraph 49 of the Petitioner’s affidavit while It is true that Commissioner Miiro and two other officers were arrested and charged in Buganda Road Court they are not yet tried or convicted and one therefore, presumed innocent and their cases are subjudice.”

The charge in question is dated 14-03-2001 and was prepared at the CID Headquarters, as reference E/71/2001. It cites Mrs. Miiro Nassanga Hadija, a Member of the Electoral Commission; Timothy Wakabi, a Statistician, working with the Electoral Commission; Ibrahim Lutalo Acting Head of Voter Registration Department, Electoral Commission as co-accused. They are charged jointly on two counts. The offence in Count I is abuse of Office, contrary to Section 83 of the Penal Code Act, the particulars of which are that between February and March, 2001, at Plot No. 53/56 Jinja Road in Kampala District being persons employed by the Electoral Commission as Members of the Commission, Acting Head, Data Processing Department and Acting Head — Voter Registration Department respectively, did for purposes of rigging the Presidential Election 2001, and in abuse of authority of that office, arbitrary acts prejudicial to the rights of the Electoral Commission in that they printed excess Voters’ Cards in various names and for various electoral areas.

The offence charged in Count 2 is Neglect of duty, contrary to section 108 of the Penal Code Act. The particulars are that all the three accused persons on the same date and place, being persons employed by the 2nd Respondent, neglected to print the correct number of Voters’ Cards thereby resulting in printing of excess Voters’ Cards.

The Director of Public Prosecution gave written consent to the charge.

Under section 83 of the Penal Code Act, on conviction, the maximum sentence is seven years imprisonment and under section 108, the maximum sentence is five years imprisonment. These may be contrasted with the punishments for offences under section 70 of the Act, which is a fine not exceeding Shs. 100,000= or imprisonment not exceeding five years or both under the Penal Sections there is no alternative of a fine.

By charging the accused persons in question under the Penal Code Act the prosecuting authority, in my view, appears to have considered that the offences the accused persons are accused of are more serious than the offences under the Act.
Be that as it may, the accused persons are no more than that. They are innocent until they are proved guilty. However, their being suspected and charged in Court with electoral offences does not speak very well of the image of the 2nd Respondent as a respectable Electoral Commission which should organize and conduct a clean election, a free and fair election. This is because the accused persons are very high officials of the 2nd Respondent, not minor officials whose misdemeanours could not have serious consequences. They are charged with offences of dishonesty in the process of election, allegedly committed in the course of their duties.

Although they are still innocent, an adverse interference to a limited extent about the 2nd Respondent is in, my opinion, inevitable.

As the officials in question of the 2d Respondent are not convicted of the electoral offences they are charged with there is no evidence that this ground has been proved by the Petitioner. Ground 3(1) (l) of the Petition must, therefore, fail.

Paragraph 3(1) (m) of the Petition:

“(m) That contrary to section 12(b) and (c) of the Electoral Commission Act, 1997, the 2nd Respondent failed to control the distribution and use of ballot boxes and papers resulting in the Commission of numerous election offences under part X of the Act as hereunder:
(i)     
Unauthorised persons got possession of ballot papers and other ballot documents relating to an election and used them during the election.
(ii)     (Unauthorised persons and/or officials of the 2nd Respondent used the ballot documents acquired to stuff ballot boxes, tick ballot papers on behalf of the voters, voted more than once, and/or docter figures in the Voters’ Register and Rolls.
In the result, a Commissioner and other officials of the Electoral Commission were arrested on the Election Day and charged on 14-03-2001.”

In its Answer, the 2nd Respondent replied to this ground of the Petition as follows:
“12. In reply to paragraph 3(1) (m) of the Petition the 2nd Respondent avers that:
(a) It never allowed any unauthorized persons to use ballot boxes and papers or any election materials contrary to the law as alleged.
(b) If there was unauthorized use of ballot boxes and papers, knowledge of which is denied by the 2
nd Respondent this never affected the results of the election in a substantial manner or at all”

The complaints made in this ground of the Petition are similar to those I have already dealt with in this judgment under paragraphs 3(1)(j), 3(1)(i) and 3(1)(l), which also disposes of paragraph 3(1)(m), except for the issue of the effects of the incidences of non-compliance on the result of the election. So I shall not consider 3(1) (m) separately. It would be unnecessary repetition.

Paragraph 3(1)(s) of the Petition:
“(s) That contrary to section 47 of the Act, the 2nd Respondent’s agent/servants in the course of their duties, denied the Petitioner’s Polling agents information concerning counting and tallying process.”

The 2nd Respondent answered this ground of the Petition as follows:
“17. In reply to paragraphs 3(1)(s) and (t) of the Petition, the 2nd Respondent avers that it freely allowed Polling agents of all candidates access to information concerning the counting and tallying process and there was no forced absence of the Petitioner’s agents as alleged.”

The complaints raised in this ground of the Petition are similar to those in paragraphs 3(1 )(g) and (p) of the Petition, which I have already dealt with in this judgment, save for the issue of the effect of those paragraphs on the result of the election, which I shall consider later in this judgment. It would therefore, be unnecessary repetition to consider paragraph 3(l)(s) separately.

Paragraph 3(1) (t) of the Petition:
“(t) Contrary to section 47 of the Act the 2nd Respondent’s agents/servants allowed the voting and carried out the counting and tallying of votes in the forced absence of the Petitioner’s agents whose duty was to safeguard the Petitioner’s interests by observing the voting, counting and tallying process and ascertain the results.”

The 2nd Respondent made one reply to this and ground 3(1) (s) of the Petition. The reply has been reproduced underground 3(1) (s) above.

This ground of the Petition makes complaints similar to those in ground 3(1) (g) and (p), which I have already considered in this judgment, except the effect of the non — compliance on the results of the election, which I shall deal with later in the judgment.

Paragraph 3(1) (u) of the Petition:
“(u) That contrary to section 56(2) of the Act, the 2nd Respondent declared the results of the Presidential Election when all Electoral Commissioners had not signed the Declaration Form B.”

The 2nd Respondent’s Answer to the Petition replied to this ground of the Petition as follows:
“18. In reply to paragraph 3(u) of the Petition, the 2nd Respondent avers that the results of the Presidential election were declared in compliance with the law and in particular s. 56(2) of the Presidential Elections Act.”

Ascertainment, publication and declaration of the Presidential Election results are governed by section 56 of the Act.
“56(1). The Commission shall ascertain, publish and declare each in writing under its seal, the results of the Presidential Election within forty-eight hours from the close of polling.
(2). The declaration under subsection (1) shall be in Form B or C as specified in the Seventh Schedule to this Act as the case may be.”

Form B is used when there is a winning Candidate as there was in the instant case. However, not all the seven Member of the 2nd Respondent (including the Chairman and the Deputy Chairperson) signed the declaration of results form, annexture R. 1. to Mr. Aziz Kasujja’s affidavit, filed with and in support of the 2nd Respondent’s Answer to the Petition. All, except one member, signed it.

Mrs. Miiro Nassanga Hadija is the 2nd Respondent’s Member who did not sign the results declaration Form. This may be because she was already involved with the Criminal Charge referred to earlier in this judgment.

The 2nd Respondent declared the results under its power provided by article 103(7) of the Constitution, which is repeated in section 56(1) of the Act, which I have reproduced above. The Constitution and Act 3/97 are silent on how the seal of the 2nd Respondent may be applied. Section 10 of Act 3/97 simply says:
“10. The Commission shall have a seal which shall be in such a form as the Commission may determine and shall, subject to the provisions of any law be applied in such circumstances as the Commission may determine.”

Under section 8 of Act 3/97, the quorum of the 2nd Respondent is five and its decision should, as far as possible, be by consensus. If a consensus cannot be obtained decision is by majority. By article 60(1) of the Constitution, its composition is seven Members, including the Chairperson and the Deputy Chairperson. Consequently a majority may consist of four Members. The declaration of results under consideration was signed, and presumably sealed, by six Members, more than the required majority. This was not contrary to the law.
 
Consequently there was not any non-compliance with the Act by the 2nd Respondent in this connection. Ground 3(1) (u) of the Petition must therefore, fail.

The grounds of the Petition Which I have so far dealt with in this judgment do not include those which allege that the 2nd Respondent did not comply with provisions of the Act with regard to alleged violence intimidation, harassment and threats against the supporters and/or agents of the Petitioner by the military in general and the PPU in particular. Evidence adduced indicates that violence; harassment, intimidation and threats were also perpetrated by others, such as RDC’s, Deputy RDC’s, LDUs, vigilantes, GISO, L.C. officials and the 1st Respondent’s agents or supporters. Certain grounds of the Petition also allege that the 1st Respondent used the army, the PPU and others to perpetrate such threats, harassment and intimidation to interfere with the Petitioner’s electioneering activities. Such allegations against the 2nd and 1st Respondents are supported by the same pieces of evidence and have been argued together by the respective learned counsel of the three parties.

I shall, therefore, set out the grounds in question together. They are:

“3(1) (n). That contrary to section 25 of the Act, the 1st Respondent’s agents/ supporters interfered with the electioneering activities of the Petitioner.”

“3(1) (r). That contrary to section 42 of the Act the 2nd Respondent and its agents/ servants in the course of their duties allowed people with deadly weapons to wit soldiers and para military personnel at polling stations, a presence which intimidated many voters to vote for the soldier’s boss and candidate Museveni while many of those who disliked to be forced to vote for that candidate stayed away and refrained from voting at all”

“3(1) (v). Contrary to section 12(1) (e) and (f) of the Electoral Commission Act, the 2nd Respondent failed to ensure that the entire Presidential electoral process was conducted under conditions of freedom and fairness and as a result your Petitioner’s and his agent’s campaign were interfered with by the unit and the para Military personnel such as that led by Major Kakooza Mutale.

(w). That the Petitioner’s agents and supporters were abducted and some were arrested by the Army to prevail upon them to vote for the First Respondent or to refrain from voting, contrary to section 74(b) of the Act.”

“3(1) (y). In the results such non-compliance with the provisions of the Presidential Elections Act, 2000, and the Electoral Commission Act aforesaid affected results in a substantial manner as hereunder:

(vi). The Petitioner was unduly hindered from freely canvassing the support by the presence of Military and paramilitary personnel who intimidated the voters.”
“3(2) (c). Contrary to section 12(1) (e) and (f) of the Electoral Commission Act the
1st Respondent appointed Major General Jeje Odong and other partisan senior military officers to take charge of security of the Presidential Election process and thereafter a partisan section of the army was deployed all over the country with the result that very many voters either voted for the 1st respondent under coercion and fear or abstained from voting altogether.

(d) That contrary to section 25 (b) of the Act the Respondent organized groups under the Presidential Protection Unit and his senior Presidential Advisor one Major Kakooza Mutale with his Kalangala Action Plan paramilitary Personnel to use force and violence against persons suspected of not supporting candidate Museveni thereby causing a breach of peace, disharmony and disturbance of public tranquility and induce others to vote against their conscience in order to gain unfair advantage for candidate Museveni in the Presidential Election.”
(e) ………………………….
(2)(f). The aforesaid illegal practices and offences were committed by the 1st Respondent personally or and his agents and supporters with his knowledge and consent or approval through the military, Presidential Protection Unit and other organs of the state attached to his office and under his command as the President, commander in Chief of the Armed Forces, Minister of Defence, Chairman of the Military Council, and High Command and chairman of Movement Organization.”

In his answer to the Petition, the 1st Respondent replied to some of grounds targeted at him, which I have just reproduced, as follows:
“2.       it came to the 1st Respondent’s knowledge that Hajati Miiro was arrested and charged in Court with two others but it is specifically denied that the 1st Respondent’s agents/supporters did interfere “with the electioneering activities of the Petitioner and his agents” as alleged and the 1st Respondent contends that the entire Presidential Election process was conducted under conditions of freedom and fairness and that the 1st Respondent obtained a lot more than 50% of valid votes of those entitled to vote.” The 1st Respondent therefore, states that he has no personal knowledge of and does not admit the contents of paragraph 3(i) of the Petition.”

The numbering “3(1)” appearing in the immediately foregoing paragraph of the 1st
Respondent’s Answer must be an error, because paragraph 3(I) does not exist in the Petition.

“5. The contents of paragraph 3(2)(c) and (dl of the Petition are denied and the 1st Respondent will say that the entire electoral process was conducted under conditions of freedom and fairness and secure conditions necessary for the conduct of the election in accordance with the Act and other laws.”

In its Answer to the Petition the 2nd Respondent replied to the grounds of the Petition which concern it and which I have reproduced above. Some of its replies tend to repeat what the 1st Respondent pleaded in his Answer.

“19. In reply to paragraph 3(1) (v), of the Petition, the 2nd Respondent avers that the Presidential Election process was conducted under conditions of freedom and fairness and the 2nd Respondent denies any knowledge of any interference with the Petitioner’s or his agents’ campaigns, and that if there was any interference, which is not admitted, there is no proof that it affected the campaigns the electoral process or the result of the election in a substantial manner or at all.
20. In reply to paragraph 3(1) (w) of the Petition, the 2nd Respondent denies any knowledge of abduction or arrests of the Petitioner’s agents and supporters to prevail upon them to vote for the 1st Respondent or for any other candidate.
21 ………………
22. In reply to paragraph 3(1) (y) of the Petition, the second Respondent avers as follows:
(g) The Second Respondent did not hinder the Petitioner from freely canvassing for support but on the contrary the Petitioner traversed the whole Country during the campaign period.
23. In reply to paragraph 2 of the Petition, the Second Respondent denies any knowledge of the allegations imputed against the first Respondent and it is not aware of an illegal practices or offences committed by the First Respondents his agents and/or supporters with his knowledge and consent or approval as alleged or at all
24. That the Second Respondent avers that there is no evidence that there was non
compliance with the Presidential Act 2000 which affected the results of the Presidential Elections in a substantial manner or at all and that there is no evidence of any illegal practices or offences committed by the First Respondent, his agents and/or supporters with his knowledge and consent or approval as alleged.
25. The 2nd Respondent avers that the elections were free and fair as it reflected the wishes of the majority of Ugandans and international observers who monitored the elections throughout the Country confirmed this position.”

Section 12(1) of Act 3/97 provides:

“12(1). The Commission shall, subject to and for the purposes of carrying its functions under Chapter Five of the Constitution and this Act, have the following powers:
(e) To take measures for ensuring that entire electoral process is conducted under conditions of freedom and fairness;
(f) to take steps to ensure that there are secure conditions necessary for the conduct of any election in accordance with this Act or any other law.”

Section 25(c) of the Act provides:
“25. a person who, before or during an election for the purpose of preventing the election of a candidate either directly or indirectly
(a) …………………..
(b) ……………………
(c) Obstructs or interferes or attempts to obstruct or interfere with the free exercise of the franchise of a voter or compels or attempts to compel a voter to vote or refrains from voting;
Commits an offence and is liable to conviction to a fine not exceeding eight currency points or imprisonment not exceeding two years or both.”

Section 42 of the Act provides:
“42(1). No person shall arm himself or herself during any part of polling day, with any deadly weapon or approach within one kilometer of a polling station, with deadly weapon unless called upon to do so by lawful authority or where he or she is ordinarily entitled by virtue of his or her office to carry arms.
(2) Any person who contravenes sub-section (1) commits an offence.”

Section 74 of the Act states:
“74. A person commits the offence of influence
(a) if that person directly or indirectly in person or through any other person:
(I) makes use of, or threatens to make use of, any force or violence;
(ii) Inflicts or threatens to inflict in person or through any other person any temporal or spiritual Injury, damage, harm or loss upon or against any person, in order to induce or compel that person to vote or refrain from voting, or on account of that person having voted or refrained from voting.
(c) if by abduction, duress, Of any other fraudulent device or contrivance, impedes or prevails upon a voter either to vote or to refrain from voting.”

Mr. Walubiri the petitioner’s learned Counsel who made submissions on the Petition’s complaints against activities of the military and the PPU, directed his arguments at allegations that the 1st Respondent, by deployment of the Army, committed illegal practices or other offences under the Act personally or with his knowledge and consent or approval. Commission of illegal practices or other offences in relation to the Presidential Elections is relevant to issue number four of the Petition.

In his reply, Dr. Byamugisha the 1st Respondent’s learned Counsel, also concentrated his counter arguments on the 1st Respondent’s alleged commission of illegal practices or offences through the Army.

In my view, the same arguments as have been made by the respective learned Counsel of the petitioner, the 1st and 2nd Respofldeflts1 and evidence adduced by all the three parties concerning the activities of the military and PPU whether in respect of allegations against the 1st Respondent or the 2nd Respondent also applies to the grounds in question of the Petition. I shall deal with the grounds of the petition concerned on that basis.

In his submission under the foregoing grounds Mr. Walubiri contended that evidence adduced by the Petitioner proves that contrary to section 25 of the Act, the 1st Respondent personally or by his agents interfered with the Petitioner’s electioneering activities and committed an offence. The first limb of this Criminal interference, Counsel contended, was constituted by the 1st Respondent’s deployment of the Presidential Protection Unit (PPU) in Rukungiri and other Districts throughout the campaign period. This is pleaded in paragraphs 3(1) (v) and 3(2) (C) and (f) of the Petition.

Learned Counsel referred to paragraphs 16, 18, 25, 26, 28 and 29 of the Petitioner’s affidavit in support of the Petition, giving details of PPU’s activities and how it was interfering with the Petitioner’s electioneering activities; it was shooting around and threatening voters. It killed one of the Petitioner’s supporters.

In paragraphs 18, 19 and 20 of the Petitioner’s Reply to the 1st Respondent’s affidavit the Petitioner showed how the PPU, a facility attached to the 1st Respondent’s office as an incumbent, assaulted, intimidated and threatened voters to vote for the 1st Respondent and caused disharmony and breach of the peace throughout the campaign period in the entire Rukungiri and other Districts. So intense was the intimidation that one Baronda Johnson was shot and killed. Baronda’s Uganda Government Death Certificate, attached to the Petitioner’s affidavit, showed that he died of bleeding following gunshot wounds on 3-3-2001. The havoc wreaked by PPU a facility attached to and enjoyed by the 1st Respondent at the time, was reported by the Petitioner to the 2nd Respondent. The Chairman of the 2nd Respondent was also gravely concerned about the activities of the PPU and the Military that was threatening to wreck the election process. Consequently, the Chairman wrote passionately to the 1st Respondent, requesting him to intervene and save the democratic process. The letter of the 2nd Respondent’s Chairman dated 24-02-2001 is annexed as “P.9” to the Petitioner’s affidavit in reply. There is no evidence that the 1st Respondent replied to that letter. On the contrary, there is evidence that the PPU remained in Rukungiri to continue to terrorise the population in that District up to 12-03-
2001.

Learned Counsel said that there are a number of affidavits about the continued intimidation by the PPU. He referred to some of them as examples, such as those from Bernard Matsiko, Kakuru Sam, Koko Medard. Learned Counsel submitted further that the PPU also operated in Kanungu District, as indicated by the affidavit of John Hassy Kasamyamunyu, Mawa Bwooba Callist, Bashaija Richard, Owembabazi — who was so traumatised that he could not vote. All this was long after Mr. Kasujja’s letter to the 1 Respondent. Another witness about the PPU is Byomuhangi Kaguta. These are only examples of what was happening in Rukungiri which, learned Counsel contended, became a fortified area. What happened there clearly interfered with the Petitioner’s electioneering; he said

Mr. Walubiri submitted that another limb of interference was the arrest, abduction and torture of Rwaboni by the Military Intelligence at Entebbe International Airport. In his affidavit in reply, the Petitioner gives in details the back ground to how Rwaboni came to be arrested and abducted at Entebbe Airport from where he was due to fly with Rwaboni to Adjumani to address a campaign rally. The affidavit of Hon. Winnie Byanyima, MP also gives an eye - witness account how Rwaboni was abducted. She recognized Captain Moses Rwakirate of the PPU as the person who was in charge of the operation. This was on 20-03-2001. The abduction made it impossible for the Petitioner to travel to Adjumani, because he had to find out why the Chairman of Youths of his campaign, Rwaboni, had been abducted. After his abduction, Rwaboni was never charged with any offence or produced in Court. So he was the victim of the illegal activities of the Military unleashed by the 1st Respondent to intimidate the Petitioner’s supporters and to interfere with the Petitioners electioneering activities.

Learned Counsel submitted that paragraph 15 of the 1st Respondent’s affidavit in support of his Answer shows that he had knowledge of Rwaboni’s abduction and detention. Counsel submitted that as a result of what happened to him, Rwaboni had to flee to exile and he abandoned his campaign for the Petitioner. An account of how Rwaboni was arrested, tortured and detained is also narrated in his own affidavit. Because of Rwaboni’s torture at the hands of Military, the Petitioner lost a useful campaign agent.

The third limb of interference, Mr. Walubiri submitted, was the general deployment of the Military throughout the Country. This forms the basis of grounds 3(1) (n), (r), (v), (w), and (y), (v) and (vi) and 3(2) (c), (d) and (f) of the Petition.

Mr. Walubiri contends that the 1st Respondent does not deny deployment of the army. In his affidavit in support of his Answer to the Petition, the 1st Respondent said that the army was deployed because the Police was inadequate, but he claims in his Answer and the affidavit in support thereof that the elections were conducted under conditions of freedom and fairness and under secure conditions as a result of sufficient deployment of security Forces throughout the Country by the Government. The Army Commander, Major General Jeje Odong also deponed an affidavit in support of the 1st Respondent. The essence of that affidavit is that the army was deployed because the Police was not adequate to deal with the election process.

The learned Counsel said that the Petitioner had two arguments on army deployment. First, on the evidence available, the Army did not provide security. Evidence on record shows that the Army arrested, tortured people and made it impossible for the Petitioner to campaign. For instance, in Rwaboni’s case, it could not have been the Army providing security, but insecurity. Learned Counsel then referred to the affidavits of Kimumwe A. Ibrahim, and Sulaiman Miiro of Bugiri, proving arrest and harassment by soldiers; the affidavit of Baguma John Henry, who was threatened with death by a soldier, when he protested against Kasese RDC’s allowing soldiers to vote more than once. John Kijumba of Kasese deponed that a soldier by the name of Kilindiro William told them that he had been sent by State House to arrest those campaigning for the Petitioner and that he had a list of the Petitioner’s campaign agents and supporters including him (John Kijumba). Examples from Mbarara District are found in the affidavits of Mary Francis Ssemambo, Boniface Ruhindi Ngaruye, and Alex Busingye. In Mbale District, an example is Masiro Stephen. In Kabale District, examples are Anteli Twahirwa, to whose affidavits are annexed copies of correspondences he wrote to the 2nd Respondent, complaining about intimidation and electoral malpractices. Sande Wilson, James Musinguzi who filed a complaint with the 2nd Respondent and the Police but there was no action in return. Patrick Matsiko Wa Mucoori from Ibanda a Sub — District. Orikiriza Livingston from Rukungiri District. Mr. Walubiri contended that these individual experiences showed that the Army was not deployed to provide security, but to harass the Petitioner’s agents and supporters.

Learned Counsel submitted that there was a claim for legal basis for this Army deployment. The 1st Respondent, the Army Commander, and the Inspector General of Police, in their respective affidavits, claimed that the Army was deployed as part of the security team just as it had been done during the 1987 Currency Reform; 1989 expansion of the Constitution Assembly; 1992 Local Council elections and the 1999 Referendum. Counsel contended that Army deployment during those occasions was illegal. There were no legal provisions allowing it in the Currency Reform Statute No. 2 of 1987; in Legal Notice No. 1 of 1986 and Legal notice No. 1 of 1989, all were silent on army deployment. So was the R.C. Statute of 1987 as amended by Statute No. 5/92.

The Presidential Election Statute, 1996 provided in section 7(1) thereof that the Electoral Commission shall provide security for protection of candidates. Under article 209 of the Constitution, the function of the Army does not include internal policing. That is the role of the Police under article 212 of the Constitution. Counsel further submitted that the makers of the Act were alive to those Constitutional provisions because in section 41(1) of the Act it is provided that 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. This function of maintenance of order at Polling Stations is normally the duty of the Police. Counsel contended that if the Army had to be deployed to do internal policing, it must have been presumed that there was a state of emergency under Article 209 of the Constitution. There was no state of emergency declared by the President, which would have legalized deployment of the Army. Deployment of the Army and the PPU by the 1st Respondent personally involving harassment and intimidation, as the evidence shows, constituted the offence of undue influence under section 74 of the Act.
The learned Counsel further submitted that deployment of Major Kakooza Mutale and his Paramilitary Kalangala Action Plan resulted in harassment, intimidation of the Petitioner’s supporters. It also interfered with his electioneering activities. Major Kakooza Mutale doubled as a Presidential Advisor. Learned Counsel said that this is the subject of ground 3(2) (d) of the Petition and is supported by paragraph 15 of the Petitioner’s affidavit in support of the Petition.
Dr. Byamugisha, the 1st Respondent’s lead Counsel replied to Mr. Walubiri’s submission regarding ground 3(2), starting with ground 3(2) (c), which alleged contravention of section 1 2(e) and (f) of the Electoral Commission Act.

Section 12(1) (e) and (f) has already been reproduced in this judgment.

Dr. Byamugisha referred to the affidavit in reply of Major General Jeje Odong, the Army Commander (referred to hereafter as “Jeje” for the sake of brevity), which replied to the Petitioner’s affidavit The learned Counsel contended that according to the affidavit in reply, the purpose of deployment of the army was not to coerce voters but to improve security. A letter dated 8-3-2001, written by Mr. Kasujja to the Petitioner and two other candidates in reply to their letter of 7-3-2001, raising issues of violence, intimidation, and other electoral flaws, said that the 2nd Respondent had 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 carried out their mandate under article 212 of the Constitution. The learned counsel submitted that following those communications, Mr. Kasujja’s letter said, that reports from the Police indicated that the security situation during the campaign had improved and acts of violence and intimidation had reduced considerably countrywide.

The learned Counsel contended that this is supported by the affidavit of the Inspector General of Police (I.G.R) Mr. Kisembo. Learned Counsel also referred to the affidavit of Mayombo and of Major General Tinyefuza concerning the arrest of Rwabwoni. The affidavits in question, learned Counsel contended indicated that Rwaboni was arrested for his own safety because he was going to be killed in Adjumani. Not to force him to leave the Petitioner’s camp.

Regarding the military and PPU in Rukungiri, the learned Counsel referred to the affidavit of Captain Atwoki B. Ndahura, the Commander of the PPU in Rukungiri at the material time. Learned Counsel contended that the witnesses to whose affidavits he has referred exonerate the 1 Respondent to the effect that he was not personally involved in intimidation. Counsel said that he would provide authorities relevant to the separation of the President and presidency. He referred to article 98(4) of the Constitution which provides that while holding office, the President shall not be liable to proceedings in any court, but article 104(8) provides that article 98(4) shall not apply to article 104, which is about challenging Presidential election. Regarding ground 3(2) (c) of the Petition, Dr. Byamugisha contended that there is no evidence of how many voters were coerced, how many feared or abstained. The same argument applies to ground 3(2) (d) of the Petition.

Learned Counsel also submitted that the ingredients of section 25(c) of the Act must be proved. The Petitioner advanced no evidence on this. Regarding allegations about Major Kakooza Mutale’s activities, Dr. Byamugisha referred to Mutale’s affidavit, which shows who he is and what he does. The convention forming the Kalangala Action Plan group was held before the Presidential Elections candidates had been nominated. The group is not paramilitary as the affidavit shows and did not do things it is alleged to have done. In the circumstances, Counsel contended, the allegations in ground 3(2) (d) have been proved false.

Regarding ground 3(2)(e) of the Petition Dr. Byamugisha referred to paragraph 12 of the 1st Respondent’s affidavit supporting his Answer to the Petition, which says that he never threatened to put the Petitioner six feet deep, nor stated as alleged in paragraph 3(2)(e) that prior to the election process, he made a statement on 27-11-2000, in his capacity as President and Commander In Chief, warning that any person who interfered with the army would be put six feet deep. The Statement was not made for the purposes stated in ground 3(2) (f) of the Petition.
Regarding ground 3(2) (1) of the Petition, Dr. Byamugisha submitted that the military or PPU were not the 1st Respondent’s agents under the Act, and that no illegal practices or offences were committed by the 1st Respondent personally or through his agents with his knowledge and consent or approval. He concluded that the 1st Respondent has shown that the Petitioner lacks evidence and that the former has gone to demolish the little evidence that there shall now turn to consider the evidence relevant to these grounds of the Petition.
Certain paragraphs of the Petitioner’s affidavit filed in support of the Petition state:

“15. That during the whole period of the Presidential Election Campaigns the 1st Respondent deployed the Army and Major Kakooza Mutale’s Pare Military Personnel of Kalangala Action Plan all over the Country and directed the Army Commander, Major General Jeje Odong and other Senior Military Officers to be in charge of Security during the whole Presidential Election process and subsequent to this, my supporters campaign agents and myself were harassed and intimidated and a number of my supporters and campaign agents were assaulted and arrested.

16. That the Respondent deployed the Presidential Protection Unit soldiers in Rukungiri District as soon as the Presidential Election Campaigns started to protect his supporters and these PPU Soldiers intimidated and harassed my supporters and campaign agents all the time.

17. That
on 16th February, when I went to address a Campaign Rally at Kamwenge Town in Kamwenge District, we found that agents and supporters of the 1st Respondent had organized themselves along the streets of Kamwenge Town carrying posters of the l’ Respondent, singing their campaign slogans and throwing stones at our vehicles and this interfered; with my campaign and my supporters were intimidated and assaulted. As the programme of Presidential Campaign shows the 1st Respondent was supposed to be doing his campaigns in Gulu on that day. A copy of this programme is attached and marked “P 10.” I also attach a copy of the Resolution of 6th February, 2001, by the Candidates’ agents regarding the Presidential Campaigns and it is marked “P11. “

18. That on 2nd March 2001, at about 20.30 hours, I arrived in Rukungiri Town in a convoy of motor vehicles of my supporters who had met me at the Kahengye Bridge about 20 Km. From Rukungiri Town. As the convoy came into town, many Town residents who were my supporters came to the road side, clapping as a sign of welcome. I then saw many soldiers of the Presidential Protection Unit come from all directions wielding truncheons and sub-machine guns and started beating the people on the road side furiously causing them to run, screaming in all directions. The soldiers then attacked the people in the vehicles of our convoy and some came to the vehicle in which I was seated. The Policemen, who were detailed to me as my body guards, had to threaten to open fire in order to stave off this attack.

19. That our convoy continued slowly under the protection of the Pol
ice guards to my Village home, Rwakabengo. Many of the supporters who had been attacked by the presidential Protection Unit in the Town ran to my compound and spent the night there for fear of being attacked if they dared go back home that night.

20. That at about 23.30 hours, I went back
to Rukungiri to Rondavels Hotel, where I found the Regional Police Commander Okwalinga and reported what happened that evening. I reported to him that I had information from them that the PPU soldiers planned to stop people from attending my rallies the following day. The Regional Police Commander assured me that he would effect deployments to ensure that our planned campaign rally would not be disrupted and that he was going to stay in the District personally to supervise the security for the period the presidential Election.

21. That on the 3rd March, I addressed rallies in Nyarushanje, Nyakishenvi, Kanungu, Kihihi, and at all places I observed that all my supporters were in terrible fear for their personal security because of the heavy deployment of the Presidential Protection Unit and Local Defence Unit in their respective areas by reason of intimidation and harassment.

22. That because of the said heavy deployment of PPU and LDUs in the whole District of Rukungiri and the resultant tension, I was forced to cut out rallies organized for me at Bwambara and Bubangari in Rujumbwa County In order to get to the main campaign rally at Rukungiri Town early.

23. That I arrived at the main rally in Rukungiri Town at about 17.00 hours and in my address to the people I informed them that I was aware of the state of terror created by the PPU soldiers and that for that sake / had to be very brief so that they could return home before dark, and I appealed to all my supporters to refrain from violence even in the face of extreme provocation.

24. That the main Rally in Rukungiri Town ended at about 18.10 hours and the people moved out of the play ground venue of the Rally peacefully.

25. That I then went back home to collect my luggage and proceed to Kampala and shortly after getting home I heard gun-shots from the direction of Rukungiri Town Centre, which continued for about 20 minutes; and then I saw some people running from town to my home for safety.

26. That I went back to town at about 19OO hours and we found the Town absolutely deserted, except for the PPU soldiers and a few people wearing campaign T-Shirts of the Pt Respondent and I saw next to Ejumo Hotel a white truck surrounded by about 10 to 12 PPU soldiers who were throwing people on to this white truck.

27. That then I stopped by Mr. Charles Chakuru’s residence where I found people having taken refuge in his compound, left for Mbarara where we spent the night.

28. That when I
reached Mbarara Town I telephoned Mr. Charles Makuru to find out the Situation In Rukungiri Town and he told me that the situation was still tense and that he tried to get in touch with the Regional Police Commander and discovered that he had been called to Police Headquarters early that afternoon. That I subsequently went back to Rukungiri and I was shown the grave of Berondera who had been shot dead in that incident.

29. That I now know one person died, 15 were seriously Injured and were hospitalized and many others sustained minor injuries as a result of the attack by the PPU soldiers on that day in Rukungiri Town and all this was reported in the Sunday Monitor of 4th March, 2001, a copy of which Is attached and marked “P12” and all this time when Presidential Protection Unit soldiers were deployed in Rukungiri District, President Museveni was not physically present In that District.

30. That on 19th February, 2001, while on my way from Bundibugyo, I received a telephone call from Hon. Okwir Rwaboni the Chairperson of our Youth and Students Committee, who informed me that his life was in danger, and that he had tried to seek protection from the U. S. Embassy unsuccessfully. I advised him that I was on my way to Kampala and that he should look for a place to stay safely until I would arrive in Kampala and we discuss the details.

31. 1 got to my home in Kampala at about 19.00 hours that evening and Hon. Okwir was at my home with his wife Solonge and Ms. Anne Mugisha. He narrated to me the story of how he had been for two days intimidated and even threatened with death by Major General David Tinyefuza and Lt. Colonel Noble Mayombo He informed me that
on the morning of February, 2001, Lt. Col. Noble Mayombo, Acting Chief of Military Intelligence went to his house and took him to the International Conference Centre where he found other Senior Military Officers including Major General D. Tinyefuza, the Special Presidential Advisor and Col Kasirye Gwanga Campaign agent of lit Respondent in Mubende District and was told that for his own safety he had to sign a document to the effect that he had resigned from our task force and that we were getting funds from Countries hostile to Uganda.

32. He told me that he signed the document, after which he was taken to Nile Hotel for lunch where he was joined by his wife. He said that after lunch he requested to take a sick child to a clinic and then return to join the officers in Nile Hotel. He left with his wife and headed for the American Embassy to seek for protection because he left that his life was in danger following the threats he had been given and thereafter he actually signed the documents.

33. After discussing with Hon. Okwir, it was agreed that he should inform the public through the press about what had happened and that we should continue with our campaigns normally. We invited Pressmen and gave them his story. We decided that he should spend a night at my residence.

34. The following day on 20th February, 2001, I was scheduled to address a rally in Adjumani and Moyo Districts. I had planned to travel by a chartered Aircraft from Entebbe Airport at 09.30 hours together with some members of my Task Force including Hon. Okwir. We arrived at Entebbe VIP Lounge at 09.30 hours. As we proceeded to the Aircraft at about 10.00 hours, an official of the Airport informed us that the Aircraft had been refused clearance to take off, and that we should return to the lounge while the clearance problem was being sorted out.

35. As we arrived back in the lounge, an official of Civil Aviation named B. Monday came where I was seated with Hon. Okwir and others and informed him that he had instructions to take Hon. Okwir. Hon. Okwir told Mr. Manday that he could not go with him as he had no authority in law to do what he was trying to do. Mr. Monday left, but shortly afterwards, an officer from the known to me as Captain Rwakirate Moses came with some armed men who were putting on civilian clothes, and they instructed Hon. Okwir to get up and go with them. Hon. Okwir refused to comply informing them that they were not authorized under the law to arrest him.

36. About 15.00 hours, Col. Kasirye Gwanga arrived and at the same time a large group of armed soldiers arrived an
d forcefully arrested Hon. 0kwir and dumped him on a Pick-up truck and armed soldiers sat on his head, on his chest and on his legs. The vehicle drove off as other soldiers were kicking him.

37. I have since talked to him on telephone and listened to him speak on radio programmes where he has described what happened to him since the violent arrest at Entebbe. He told me that he wa
s taken to offices of Military intelligence on Kikante Road and interrogated for eight hours. He was only asked questions about our campaigns and the statement he had made to the press the previous evening while at my home. He also informed me that President Museveni telephoned and talked to him while he was at the headquarters of Military Intelligence and asked him what led him to support me, and what he thought of the team I was within the campaigns.

38. That President Museveni then proposed to Hon. Okwir that he would offer a job to him at the Uganda High Commission in London and sponsor him to take further studies provided he cooperated and left my campaign immediately and continued to cooperate with him. Major Okwir informed me that he accepted this offer as a way to safety, and was then required to write a statement disassociating himself from my campaign team and reaffirming the earlier statement which he had signed at the International Conference Centre. He said he was taken to Parliament where he read out the statement then driven to his residence where he stayed under close guard while arrangements to move him and his wife to London were being finalized. He rang me while at his house to give me the above story, and I have also talked to him since his arrival in London.

39. That I verily believe Hon. Qkwir was particularly tortured by my opponents because Hon. Okwir was heading the Youth Task Force and it was well known that I enjoyed tremendous popular support among the youth and students countrywide.

40. That the
1st Respondent had made repeated statements justifying the actions of the Military including PPU including the Presidential Election Process.

41. Following all these events, I cancelled my sc
hedule campaign trip to Adjumani and other Districts in West Nile and I lost 3 days of campaign and meanwhile I sought audience with the Electoral Commission to complain about the escalating level of violence, intimidation and harassment of my agents and supporters and I did so when I met the Electoral Commission on 22nd February, 2001.

42. That following this meeting with the Elect
oral Commission, the Electoral Commission reported to the 1st Respondent Commander in Chief of the Armed Forces appealing to him to restrain the army from interfering with the Presidential Election process and not to deploy the PPU where the President of Uganda Is not persona fly present. A copy of this letter is dated 24th February 2001, is herewith attached and marked P. 13.”

43. That before this, on 20th February 2001, Deputy Chairperson of the Electoral Commission wrote to the Army Commander and the Inspector General of Police appealing to them to ensure that candidates’ campaigns continue without unnecessary interference. A copy of this letter is attached and marked “P.14.”

44. That contrary to the pleas of the Electoral commission the Army Commander addressed a press conference and issued a press statement 0n firming the Army’s involvement in the security of the Presidential Election process. A copy of this press statement dated 9th March, 2001, is herewith attached and marked “R 15.” Involvement in the security of the Presidential Election process. A copy of this press statement dated 9” March, 2002, is herewith attached and marked “R16.”

45. That the beginning of March 2001, the Inspector General of Police assured the public of security during and after the Presidential Election and this was reported in the Monitor News paper of 2nd March 2001, a copy of which is attached and marked R 16.”

46. That on 7th March, 2001, 4 Presidential Candidates, Including myself wrote to the 2nd Respondent complaining about flaws In the Presidential Election process and this letter IS attached and marked, “P.1 7, and the 2nd Respondent’s reply dated 9th March, 2001, is attached and marked “R 18.” On March 9th 2001, the candidates again wrote to the 2nd Respondent and this letter is attached and marked R 19.”

In reply to the 1st Respondent’s affidavit, the Petitioner said in his affidavit in reply dated 5-4-2001:
“18. In reply to paragraphs 4 and 5 of the Respondent’s affidavit, the 1st Respondent used the Presidential Protection Unit a facility attached to and utilized by his office as the President to assault, intimidate, threaten, and to consedisharmdry on a breach of the peace throughout the campaign period in the entire Rukungiri District and thereby interfere with my campaign and electioneering activities in the District of Rukungiri to the prejudice of my candidature. The 1st Respondent during the Presidential campaigns retained the use of security facilities including attached to the President as per Statutory Instrument dated 29-12-2000 herewith attached as

19. That in Rukungiri my home district where I had massive supports the armed Presidential Protection Unit was deployed there by the 1st Respondent during the campaign period to unduly influence my supporters through intimidation, force and threats of force of violence to support and vote for the l’ Respondent against me, resulting in one incident, in the death of one Baronda Johnson my supporter and injuring up to 15 of my supporters and many others injured over the campaign periods a copy of the Death Certificate is herewith attached and marked
“P.29.)

The
paragraphs of the Petitioner’s affidavit I have just reproduced relate to the role of the army and the PPU in the Presidential Election under consideration. The affidavit relates to other matters as well, which I shall defer for the moment for consideration later in this judgment.

The Petitioner’s affidavit is based on his knowledge information, and belief. Where deponed on information he disclosed the source of his Information, and where it is based on belief, he gave the grounds of his belief, otherwise most of what he said was based on knowledge. I find the affidavit admissible.

The Chart indicates that the Petitioner’s affidavit is rebutted by the affidavits of several witnesses, filed in opposition to the Petition. Some of the rebuttal affidavits relate to the role of the Army and PPU. Others relate to other matters; while others partly concern the Army and PPU and partly concern other matters. For now, I shall first consider those rebutting parts of the Petitioner’s affidavit concerned with the Army and PPU.

In his affidavit supporting his Answer to the Petition, the 1st Respondent denied all the allegations made against him in the Petition. His affidavit then went on to say:
“3. That I instructed my campaign agents to mobilize for my election on the basis of my election manifesto entitled “Consolidating the Achievements of the Movement” only and I have no knowledge of their having acted contrary to the law, conduct I did not consent to or approve of on the part of any person.

4. That because the Police were inadequate and the security situation so required, the Government decided to and did deploy, security forces throughout the Country to keep peace and order, but I have no
personal knowledge of, nor did I, in my capacity as President of the Republic of Uganda, receive any reports of intimidation of voters by soldiers and paramilitary personnel at Polling Stations.

5. The elections were conducted under conditions of freedom and fairness and under secure conditions as a result of sufficient deployment of security forces throughout the Country by the Government.

9. That the deployment of security forces was done by the Government for the purposes of securing law and order throughout the Country. I did not appoint any military officers to take charge of security of the Presidential Election process as stated in paragraph 3(2) (c) of the Petition. I know that Government deployed security forces throughout the Country for security and preservation of law and order.

10. That I did not directly or indirectly organize groups of persons under the Presidential Protection Unit or Major Kakooza Mutale with his Kalangala Action Plan personnel and whatever such persons are state
d to have done in paragraph 3(2)(d) of the Petition was without my knowledge and consent or approval

11. That I never threatened to put the Petitioner six feet deep as stated in paragraph
3(2)(e) of the Petition, prior to the election process in my capacity as President and Commander In Chief, I warned that any person who interfered with the army would be put six feet deep.

12. That I made this statement at the National Conference of the Movement on the
27th November, 2000, and I made It for security, good governance and order of the Country and to deter subversion in the army. I did not make this statement for the purposes stated in paragraph 3(2) (e) of the Petition.

13. That no illegal practices or offences were committed by myself personally or through my agents and sympathizers or through any person whatsoever with my knowledge and consent or approval.

14. That concerning Hon
. Major (Rtd.) Okwir Rwaboni M.P, I state that 1 have perused and understand the affidavit of Hon. Major (Rtd.) Okwir Rwaboni dated 23rd March 2001, in support of the Petition. It is not true that on 21st February, 2001, I had a telephone conversation with Hon. Major (Rtd.) Okwir Rwaboni where I tried to convince him to leave “that wrong group.”

15. That on 21st February, 2001, I had a telephone conversation with Hon. Major (Rtd.) Okwir Rwaboni where I asked him whether it was Major General Tinyefuza or Hon. (Rtd) Okwir Rwaboni himself who was telling the truth about the voluntariness of the statement he had signed stating that he had withdrawn from the Petitioner’s Task Force.

16. That Hon. Major (Rtd) Okwir Rwaboni told me that the Monitor News Papers report which alleged that he had stated he was forced to withdraw from the Petitioner’s Task Force was false. I asked him what he intended to do and he replied that he wanted to go abroad for medical treatment and rest. I asked him how he would be able to maintain himself abroad as a Member of Parliament of Uganda. I advised him to notify the Speaker of Parliament so that he continues to draw his salary until he returned home.”

I have already reproduced paragraphs 5 to 11 of Rwaboni’s affidavit in connection with denial of his right to vote. The whole of the affidavit is, in fact, relevant to denial of his right to vote and to the role of the military and PPU in the elections under consideration. It will be recalled that the affidavit, was made as a Statutory Declaration in London, to which Rwaboni had fled. The remaining part of his affidavit reads:

“1. I was illegally arrested, detained, tortured and intimidated during the Presidential campaigns in Uganda that ran from the 8th January 2001, and 12th March, 2001 and at this time I was In the National Campaign Team.

2. That on 19th January 2001, I was confronted by members of the Presidential Protection Unit in Rukungiri District, (Kanungu Trading Centre) and prevented from consulting with our supporters. I was there to meet the supporters of the Presidential Candidate Dr. Kizza Besigye between 10.00 a.m. and 12.00 noon. I was surrounded together with my colleagues and our supporters. We were then held hostage by members of the Presidential Protection Unit (PPU) who were under the command of one Captain Ndahura. I managed to leave the scene but the PPU and Police kept the people hostage for the next two hours. They later followed me to the venue of my next meeting Rugyeyo Sub-County, Kinkizi County, Rukungiri District.

3. That on the same day members of the said force
PPU surrounded me and other supporters of Col. (Rtd.) Dr. Kizza Besigye In Rugyeyo Sub County, Kinkizi County, Rukungiri District immediately. About 12 soldiers ruled out their guns, cocked them ready to shoot, pointed them at me and ordered me to leave the District. The same soldiers under the command of the said Capt. Ndahura assaulted Dr. Besigye’s supporters and arrested others as they forcefully dispersed the gathering.

4. On l9th of February 2001, I was made against my will to sign a document announcing my withdrawal from the Elect Besigye Task Force (EBTF). I was made to sign this document by two Senior UPDF Officers, Maj. General David Tinyefuza and Lt. Col. Noble Mayombo at Nile Hotel, Kampala.”

The affidavit of Hon. Winnie Byanyima M.R shows that Rwaboni informed her that he had been coerced to withdraw from the Petitioner’s Task Force. It also corroborates the Petitioner’s account of how Rwaboni was arrested at Entebbe Airport. The affidavit is also relevant to allegations of harassment and intimidation of the Petitioner’s supporters by supporters of the 1 Respondent and UPDF soldiers. She starts by saying what she was informed, giving sources of her information. She said in her affidavit dated 23-03-2001:

“3. That in my travels through the Country I encountered reports from our agents of harassment and intimidation by Resident District Commissioners, District Internal Security Officers, UPDF soldiers, para-military personnel and other armed personnel organized by candidate Museveni and his agents and that in particular:

a) I w
as informed by Mr. Wagyega, Mbale District Task Force Chairman that two days prior to our campaign in Mbale Municipality candidate Besigye Kiiza’s posters were torn down by gangs organized and led by the Resident District Commissioner and Hon. James Wapakhabulo and further that several of our supporters were beaten up and intimidated by Major kakooza Mutale and his band of armed men and by the time of the rally the entire municipality was gripped by fear.

b) I was informed by Dr.
Ekure one of candidate Besigye’s supporters that Haji Okodel the L.C 5 Chairman and agent of candidate Museveni moved around Kumi Town intimidating people not to attend candidate Besigye’s rally.

c) I was informed by one of
our agents that Hon. Grace Akello together with L. C. Ill officials of Amuria accompanied by armed personnel tore down all candidate Besigye’s posters before our rally in Amuria and at the time of the rally I did not see a single poster in Amuria Town.

d) In Kiboga Town I arrived to find the Town gripped by fear and witnessed a heavy presence of UPDF soldiers and this had the effect of scaring away some voters from attending our campaign rally and instead they miserably watched us from the shop verandas.

e) In Sembabule candidate Besigye’s campaign agents informed me about the intimidation and threats meted out to them by the Resident District Commissioner Ms. Margaret Baryehuki together with the District Internal Security Officer.

f) In Kyenjonjo, I was informed by candidate Kizza Besigye ‘s campaign coordinator for Toro Region Mr. Sam Kawamara that there was heavy shooting at night by UPDF soldiers to scare people and that in the mornin
g a pick-up with candidate Museveni’s posters went ahead warning people not to attend candidate Besigye’s rally. I saw the pick-up moving around the Town after we had arrived.

g) In Kamwenge, I and other task force members who had gone to address a rally were confronted by a crowd of people who shouted at us and tried to block our way. I was told by the Kamwenge team that this was the work of Hon. Capt. Byaruhanga.

h) When I addressed a women meeting in Kabale Municipality, the women confided in me that they feared for their lives as they had been intimidated by the Resident District Commissioner and requested me to have the R.D.C. transferred.


i) At Ishongoro, our local teams told me that the night before the rally Hon. Capt. Guma Gumisiriza led a gang of people who tore down candidate Besigye’s posters and warned people of trouble if they dared to attend Besigye’s rally the following day.

4. That sometime on 18th February, 2001, I received a telephon
e call from Hon. Major Okwir Rwaboni, the Chairman of the National Youth Desk of the elect Besigye Task Force requesting me to provide him with transport to come from Kampala and meet candidate Besigye in Fort Portal.

5. That I told Major Okwir to waft in Kampala since I and candidate Besigye were traveling back to Kampala the next day but he insisted that the issues he wanted to discuss were very urgent and I promised to send him a vehicle but failed to do so.

6. The following day (19 February 2001), 1 was shocked to
receive reports that Major Okwir Rwaboni had resigned from the Elect Kizza Task Force.

7. That very day in the evening Hon. Major Okwir turned up at our home in Port Bell, Kampala where he narrated how he had been pressurized and coerced
by Maj. Gen. Tinyefuza, Lt. Col. Mayombo, Col. Kasirye Gwanga and other Senior army Officers to make a statement of withdrawal from EBTF but he stated that since he had escaped from them he was back into the EBTF although he feared for his life.

8. The following day (20th February, 2001), candidate Besigye, Hon. Major Rwaboni, myself and other members of EBTF went to Entebbe International Airport to board a plane to Adjumani where we were scheduled to address a campaign rally.

9. That while at Entebbe Int
ernational Airport Hon. Major Rwaboni Okwir was in my presence forcefully abducted from the VIP by a big number of soldiers. I noticed that Capt. Moses Rwakitarate of the PPU seemed to be in charge of the whole operation which lasted about 5 hours.

10. That Hon. Major Rwaboni Okwir was never charged with any offence or produced in any Court but has since fled into exile. I have talked to him several times since.”

The affidavit of Maj. Gen. Odong (Jeje), the Army Commander is indicated in the Chart to have rebutted the Petitioner’s affidavit. He deponed in his affidavit dated 28-03-2001 that as the Army Commander, his duty included overall command and direction of the UPDF. As such he is a member of the National Security Council (NSC), which is enjoined by the Constitution to oversee and advise the President on matters relating to National security.

Sometime in January, 2001, at one of its routine meetings, the NSC noted that there were indications that election related crimes were on the increase. Intelligence Reports he received from various parts of the Country pointed to the same trend. On that basis, he briefed the Commander in Chief (President of the Country) and indicated to him the need to put a mechanism to handle the situation. About the same time, the Minister of Internal Affairs pointed out to him the inadequacies of the Police Force in relation to the task ahead and requested that Police be augmented by the UPDF. He further briefed the Commander — in — Chief and suggested the formation of a joint security task force to oversee, handle, and ensure peace and security during the electoral process.

Such a joint task force was formed, comprising of the Police, the Army, the LDUs and the Intelligence agencies under the Chairmanship of the Army Commander, deputised by the Inspector General of Police and the Director General of Internal Security Organization. The joint security task force constituted a joint command structure whereby in each District, the District Police Commander was the overall in charge of security in the District, and armed forces were put on alert for assistance as and when need arose. The formation of such a joint security task force was not a new phenomena in this Country as the same course of action had always been resorted to whenever need arose. For examples, are the 1987, currency exchange exercise; the 1989 expansion of the NRC elections; the 1992 Local Council elections; the 1996 Presidential elections; the 200 Referendum exercise; and the visit of the United States President, Bill Clinton.

For the foregoing reasons, Maj. Gen. Odong said, it was not true to state in paragraph 3(20(c) of the Petition that the 1st Respondent appointed the deponent and other Senior Officers to take charge of the election process for partisan purposes. It was also not true that the army was deployed all over the country and that such deployment resulted into many voters voting the 1st Respondent under coercion or fear or that abstained from voting. To the best of his knowledge, save where they were registered to vote, members of the Armed Forces never went to any Polling Station for the alleged purposes or at all. It was not true that the 1st Respondent organized groups under the PPU to use force or violence against the Petitioner as alleged fl paragraph 3(2) of the Petition. He wished to state that members of the PPU which was a specialised unit for the protection of the President were deployed in Rukungiri in advance to his visit to the area sometime in January 2001 and their stay was necessitated by his planned return to the area, having taken into consideration the safety of the person of the President and the general peace and security in the area. The allegations about members of the PPU harassing, intimidating, or in any way misbehaving against the Petitioner and/or his supporters contained in paragraphs 16, 18, 19, 21, 22, 23, 25, 26, 29 and 40 of the Petitioner’s affidavit are not true.

In response to paragraphs 18 — 29 of the Petitioner’s affidavit, Jeje stated 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.

Jeje further deponed that is not true that he or any other official of the UPDF was partisan or that he or any official of the UPDF carried out their duties in such a manner as to promote the candidature of the 1st Respondent as alleged or at all. Regarding Rwaboni’s affidavit Jeje said that it was not true that Rwaboni had ever been forced by anybody to make or write any statement denouncing the Petitioner in his presence.

Without saying so, the affidavit of John Kisembo dated 28-03-2001, in effect, rebutted the Petitioner’s affidavit. His affidavit is similar to that of Odongo Jeje in matters concerning the Joint Security Task Force. Repetition of what he said is, therefore, unnecessary except, what he said differently.

He said that it was the requirement of the law that the Electoral Commission ensured that the Police and other relevant organs of the State provided adequate security for the conduct of the elections and the protection of the candidates. Given the magnitude of the electoral process of the Presidential Elections of 2001, it was found that the Uganda Police which comprises about 15,000 personnel were not going to be adequate to Police about 18,000 Polling Stations and the related election activities in addition to its ordinary day to day duties.

Although there was a joint security task force at District level under the command of the District Police Commander, policing of the Polling Stations and tallying Centres during the electoral process was only under the Uganda Police, save for the army barracks for which the Electoral Commission had made other arrangements. It was not true that the Uganda Police abdicated its duties or that the policing of the electoral process was taken over by the UPDF.

There were no security related incidents reported during the whole period of the electoral process save for a few electoral malpractices which are under investigations or in the courts of law and he has not received any reports involving the 1st Respondent.

The affidavit of Major Gen. David Tinyefuza dated 4-4-2001, rebuts the affidavits of the Petitioner, Rwaboni and Hon. Winnie Byanyima, M.R, about Rwaboni’s arrest in considerable detail. This is what he said:

“1. THAT I am a male adult Ugandan of sound mind serving at the rank of Major General in the Uganda Peoples Defence Forces.
2. THAT I am a Senior Advisor to the Commander
in —Chief of the Uganda Armed Forces.
3. THAT I have perused the petition of Col. (Rtd.) Dr. Kizza Besigye and the Affidavits of Hon.
“Major (Rtd.)” Okwir Rwabwoni and of Hon. Winnie Byanyima both dated 23d March 2001 in support of the said Petition and I wish to reply thereto as hereunder.
4. THAT it is not true as stated in the Petition, paragraph 4 of the affidavit Hon.
“Major (Rtd)” Okwir Rwabwoni (hereinafter called “Hon. Okwir”) and paragraph 7 of Hon. Winnie Byanyima, that on the 19th February 2001, he was made by Lt. Col. Noble Mayombo and myself to sign a document at Nile Hotel, Kampala announcing his withdrawal from the Elect Besigye Task Force (hereinafter referred to as “EBTF”)
5. THAT it is not true that on 21st February, 2001, Hon. Okwir was forced to make a statement disassociating himself from EBTF in my presence as stated in paragraph 8 of the said affidavit of Hon. Okwir.
6. THAT in the ordinary course of my duties as Senior Advisor to the
Commander-in-Chief, I detail and receive from various persons acting under lawful covert circumstances, reports concerning security matters within Uganda.
7. THAT on numerous occasions Hon. Okwir was assigned by me the task of
covertly gathering information and reporting to me matters of highly sensitive nature relating to the security of and in Uganda.
8. THAT on numerous occasions Hon. Okwir did report to me on matters of a highly sensitive nature relating to the security of and in Uganda.
9. THAT at about 5.00 p.m. 15th February 2001, Hon. Okwir telephoned me and requested for a meeting. I agreed to meet him on 17th February 2001. on the evening of 17th February 2001, Hon. Okwir and I met at Okapi Gallery Bunga, where we held a long discussion concerning National security matters in which the Petitioner was named.
10. THAT I called Lt. Col. Noble Mayombo the Acting Chief of Military Intelligence and informed him that I had received information from Hon. Okwir on important national security matters to discuss. The three of us agreed to meet at Sheraton Hotel, a venue selected by Hon. Okwir.
11. THAT a meeting was held at the Sheraton where Hon. Okwir repeated the information pertaining to the Petitioner’s involvement in subversive activities against the state of Uganda.
12. THAT on the
18th February 2001, Hon. Okwir offered to escort me to Sembabule where I was to attend the funeral of a relative. At Sembabule Hon. Okwir told me that he had decided to withdraw from EBTF. Hon. Okwir then addressed the mourners and told them he had withdrawn from EBTF. We later returned to Kampala where we had dinner together.
13. THAT on the morning of the
19th February, 2001, 1 proceeded to the International Conference Centre where I found Hon. Okwir had already written a Statement which was being typed announcing his withdrawal from the EBTF. In the room were other officers namely Lt. Col. Mayombo and Lt. Col Gowa. The room where we were is ordinarily used by the Army for the Kisangani Probe Committee of which Lt. Col. Gowa is a member.
14. THAT after the statement was typed, Hon. Okwir voluntarily signed it in my presence and we shook hands. He promised to put in writing the reports he had given us verbally relating to security matters. He requested for three (3) days to make his report. He (Okwir) telephoned his wife Solange who came and we had lunch together at Nile Hotel

15. THAT before lunch we considered inviting the members of the Press for a Press Conference but on a second thought Hon Okwir suggested that being a Youth M.R, he would prefer briefing members of his constituency (the Youth) first. He asked whether Government could arrange for him facilities at Ranch on the Lake to enable him meet his constituents. He also requested for security in view of the information he had divulged to us. Lt. Col Noble Mayombo then rang Military Intelligence whose personnel then brought a pistol and two guards with rifles. Lt. Col. Mayombo gave Hon. Okwir the pistol and the guards were assigned to him. I asked him to prepare details of his requirements for Ranch on the Lake and asked Lt. Cal. Mayombo to handle, and then I left.
16. THAT in the evening, I received a telephone call from Lt. Col. Mayombo who told me that he could not trace the whereabouts of Hon. Major Okwir Rwaboni. Fearing that he could have been harmed by the EBTF after hearing his statements over the radio. We decided to trace his whereabouts but to no avail
17. THAT on the 20th February 2001, I received information that Hon. Okwir was apprehended at the Entebbe Airport and taken to the Headquarters of Military Intelligence. I proceeded to the said offices where I met Lt. Col Mayombo and Hon. Okwir. He informed us that the Monitor story of that morning alleging that he had stated that he had been forced to make a statement withdrawing from EBTF was not true.
18. THAT Hon. Okwir talked to the 1st Respondent on telephone in our presence and again denied the truth of the Monitor story. He told the 1st Respondent that he wanted to go abroad for treatment and rest. The 1st Respondent Lt. Col. Mayombo to facilitate him to go.
19. THAT Hon. Okwir then personally voluntarily wrote a statement announcing his withdrawal from the EBTF in my presence. I later learnt from the media that he read the same statement to the Press at Parliamentary Buildings.
20. THAT I visited Hon. Okwir at his home two days later where he appeared to me to be in good spirits and health.
21. THAT I know Hon. Okwir voluntarily decided to withdraw from ETBF.
22. THAT at no time what so ever did I force Hon. Okwir to sign a statement withdrawing from EBTF nor was Hon. Okwir forced to sign such a statement by any other person in my presence as alleged.”
The affidavit of Lt. Col. Noble Mayombo also rebutted the affidavits concerning the arrest of Rwaboni. The rebuttal affidavit is also set out below:
“3. THAT I AM a Member of Parliament representing the Uganda People’s Defence Force (UPDF) and also the Ag. Chief of Military Intelligence and Security of the UPDE
4. THAT my job involves collection, analysis and dissemination of intelligence reports on matters of security and distribution of such information to the President, Army Commander, Commanders of various units and other Security Org
anisation of the Country.
5. THAT I
have perused the Petition of Col (Rtd) Dr. Kizza Besigye and the Affidavits of Hon. “Major (Rtd)” Okwir Rwabwoni and of Hon. Winnie Byanyima both dated 23rd March 2001, in support of the said Petition and I wish to reply thereto as hereunder.
6. THAT it is not true as stated in the Petition, paragraph 4 of the affidavit Hon. “Major (Rtd)” Okwir R
wabwoni (hereinafter called “Hon. Okwir”) and paragraph 7 of Hon. Winnie Byanyima, that on the 19th February, 2001, he was made by myself and Maj. Gen. David Tinyefuza to sign a document at Nile Hotel, Kampala an announcing his withdrawal from the Elect Besigye Task Force (hereinafter referred to as “EBTF”).
7. THAT ft is not true that on 21 February 2001 I forced Hon. Okwir to make a statement disassociating himself from EBTF as stated in paragraph 8 of the said affidavit of Hon. 0kw!,.
8. THA
T on 1st January 2001, Hon. 0kwir my younger brother and very close friend, came to my house for the New Year Celebrations and in the course of a political debate told me of his intentions to support the Petitioner.
9. THAT from the time Hon. Okwir returned from Rwanda, I have been using him to collect intelligence on security matters in Uganda.
10. THAT Hon. Okwir often gave me very good intelligence on security matters in Uganda.
11. THAT in my capacity as Ag. Chief of Military Intelligence I encouraged him to join the Elect Besigye Task Force (EBTF) so that he gives me information about security related plans of that group and he agreed to do so.
12. THAT on many occasions between that date an
d 17th February, 2001, Hon. Okwir gave me in formation of a security nature and received remuneration from me for that purpose
13. THAT on the 17th February 2001, at 11.30 I received a telephone call from Maj. Gen. Tinyefuza who informed me that he had been meeting Hon. 0kwir, for three hours and that it was in the interest of national security that I go to Okapi Gallery Bunga and join them.
14. THAT I
suggested that we meet elsewhere. Hon. 0kwir suggested that we meet at the Sheraton Hotel. I went ahead and booked room 1006 for $202 and paid Mr. Isingoma who is known to both myself and Hon. 0kwir
15
. THAT Maj. Gen. Tinyefuza and Hon. Okwir came and we had a meeting till 4.00 a.m. While meeting we were served with food and drink including Champagne.
16. THAT in the meeting Hon. Okwir informed us that the Petitioner and Nasser Ssebagala were planning to start insurgency in the event that the Petitioner lost the elections. That they had linked up with people who were throwing bombs in the City, they were hatching plots to kidnap their own members and blame it on the Government and had hired assassins to kill prominent politicians and leaders in Government. Further that they had imported guns and were receiving money from neighbouring countries, which were interested in destabilizing Uganda.
17. THAT on Sunday 18 February 2001, at 7.30 a.m. I went to the house of Hon. 0kwir in Bunga, had breakfast with him and traveled with him to Maj. Gen. Tinyefuza’s residence at Kyangera where he repeated these allegations. I left him with Maj. Gen. Tinyefuza and went to meet the Army Commander over the said intelligence reports.
18. THAT on Monday 19th February 2001, 1 went to Hon. Okwir’s residence, found many people including my brothers, had breakfast with them and traveled with him in the same car to International Conference Centre Room 328. Hon. Okwir Rabwoni wanted typing services for his statement withdrawing from EBTF and my Secretary Aida provided the services. While at I.C.C. 0kwir met and discussed with officers like Lt. Col. Gowa, Lt. Cal. Mugisha, Col. Kasirye Gwanga about his decision to abandon EBTF because it was involved in planning subversive activities.
19. THAT Hon. Okwi
r signed the document withdrawing from EBTF and Hon. Okwir, Maj. Gen. Tinyefuza and I proceeded to the Nile Hotel and booked a Room No. 220 and we had lunch together with his wife Solange as the document was being faxed.
20. THAT in view of the intelligence he had given Hon. Okwir asked for security from me and 1 gave him a pistol for his personal protection and two armed escorts, one uniformed to guard his house and the other in civilian attire to travel with him.
21. THAT Hon. Okwir asked for facilitation to call his youth supporters to Ranch on the Lake on the Wednesday 21 February 2001, to explain his decision that he was leaving the EBTF.
22. THAT after leaving the hotel, my attempts to contact Hon. Okwir were fruitless as his phone was switched off. I got worried.
23. THAT on the 20th February 2001. I approached Maj. Gen. Tinyefuza and we decided to start looking for Hon. Okwir I was convinced that the EBTF had seen him with us and heard the statement on the radio and had kidnapped or killed him.
24. THAT at 9.30 a.m., I received a telephone call from one of my intelligence contacts in EBTF that Hon. Okwir was going to be killed in Adjumani by the EBTF members.
25. THAT I telephoned the Director of CID and the Inspector General of Police and we decided to stop him from traveling.
26. THAT I am the one who deployed Lt. (flow Capt.) Monday and Capt. Rwakitarate to stop Hon. Okwir Rabwoni from travelling.
27. THAT I gave the orders in my capacity as Ag. Chief of Military Intelligence. By virtue of my office, I can give orders to any intelligence officer in the Military regardless of whether he is in Presidential Protection Unit or other unit of the Military.
28. THAT Capt. Rwaki
tarate informed me that he was at Entebbe Barracks at the time and I ordered him in his capacity as an Intelligence Officer of the UPDF being the highest ranking officer in the Entebbe area at the time to take charge of the events at Entebbe Airport.
29. THAT when the officers were obstructed by the Petitioner and others. I informed the Director CID who instructed his officers at Entebbe to effect the arrest.
30. THAT I kept being informed by my officers that the Petitioner obstructed the Police and Military Intelligence and Military Police from 10.00 a.m. to 3.00 p.m. and all attempts to persuade him to release Hon. Okwir were futile.
31. THAT Hon. Okwir was subsequently arrested and brought to my office at Kitante because the Petitioner’s camp was mobilizing their supporters in Kampala to interfere with the arrest and remove him from any Police Station forcefully.
32. THAT while at my office Hon. Okwir said that he was not feeling well. I called Dr. Karongo of Mbuya Military Hospital who checked him and reported to me no particular, complaint, no evidence of bodily injury and no necessity for medication.
33. THAT while in Kitante Hon. Okwir received a bed, blanket and bed Sheets, took a bath, received food and cigarettes supplied by his wife.
34. THAT his sister Gertrude Katuramu, brothers David Olimi, Dan Itwara, nieces Dorothy and Rachael, nephews Job and Paul came and visited Hon. Okwir for three hours.
35. THAT Hon. 0kwir
asked me to avail him an opportunity to talk to H. E. the President, which I provided. That he talked to the 1st Respondent in my presence and he told the Respondent that he wished to travel abroad for treatment rest and adequate security as the said arrangements were being made.
36. THAT upon the 1st Respondent’s directive I requested the British Government to issue Hon. Okwir and his wife with Visas and I obtained them tickets and money to use while abroad.
37. THAT Hon. Okwir was escorted to his residence in Bunga where he stayed with his father and relatives for one week before traveling abroad. That while at home he did not disclose to me or to anybody that I know he had been tortured while at my office by any of my officers.
38. THAT I know Hon. Okwir was escorted by members of the family to the Airport and that he was received by Uganda High Commission staff in London and is still in contact with me by phone.
39. THAT I have never tortured or ordered the torture of anybody in my 16 years of Military service.
40. THAT it is not true as alleged in paragraph 8 of the affidavit of Hon. 0kwir that he was forced to make a statement disassociating himself from the EBTF in my presence or by me. He made the statement voluntarily in the presence of his wife Solange and Brother Dan.”
Captain Moses Rwakitarate the Intelligence Officer of the PPU was apparently the Officer who supervised Rwaboni’s arrest at Entebbe Air Port. In his affidavit of 12-4-2001, he said that on 20-02-2001, he was at the Entebbe Barracks for the PPU when Mayombo instructed him by telephone to oversee the Rabwoni’s arrest at Entebbe International Airport. He went to the Airport and found the arrest in progress. The Petitioner, Hon. Winnie Byanyima and Rwaboni were in the VIP Lounge. He (Rwakitarate) asked Rwaboni to go with him to Kampala. Although Rwaboni was willing to go to Kampala, the Petitioner and other members of his group urged Rwaboni not to go and threatened to use force to stop him. The Divisional Police Commander, Entebbe, and other Police Officers arrived at the scene to effect Rwaboni’s arrest. Police Officers in plain clothes proceeded to the lounge but returned and informed the DPC that Rwaboni had resisted arrest and physical force was necessary to effect the arrest.
Rwakitarate returned to the lounge to attempt to convince Rwaboni, but Rwakitarate was threatened with physical harm by the Petitioner and Edith Byanyima. The Petitioner and his wife, Hon. Winnie Byanyima deliberately encouraged Rwaboni to resist arrest. He (Rwakitarate) reported the matter to Mayombo. Rwakitarate’s group was later joined by Captain Kayanja Mulenga who had been requested to reinforce the Police with Military Police who subsequently effected the arrest.
I accept the evidence of Rwabon
i, the Petitioner and Hon. Winnie Byanyima that Rwaboni was a member of the Task Force for the election of the Petitioner. He was the Chairman of the Petitioner’s Youth and Student’s Campaign Committee. I also believe their evidence that on 20-02-2001, Rwaboni was brutally arrested at Entebbe International Airport by the PPU, tortured and detained at the Officers of the Chieftaincy of Military Intelligence on Kitante Road, Kampala. In my considered opinion, the purpose of Rwaboni’s arrest was to force him to abandon the Petitioner’s team. This was successfully accomplished by all concerned. It must also have had the effect of intimidating and discouraging other people from supporting1 the Petitioner as the incident had wide publicity in the media throughout the Country.
I do not accept the evidence in rebuttal that Rwaboni was a spy planted in the Petitioner’s election campaign team and that he was working as an undercover agent for the Chieftaincy of Militant Intelligence and that he was arrested to save his own life because there was a plot to kill him (Rwaboni) by the Petitioner’s team in Adjumani. There are several reasons for this.
First, Rwabon
i resisted the arrest.
Second, because it is absolutely incredible that the Petitioner would want to have the campaign Chairman of his Youth and Student’s Committee killed during the campaign. What would the Petitioner and his campaign team achieve by committing murder of the head of its Youths and Students Committee, Rwaboni? Would the purpose be: to enhance or to destroy his chances of being elected President? What would be the purpose? It is self-evident that the suggestion that the Petitioner would kill an important member of his campaign team is completely devoid of any sense.
Third, Rwaboni was not informed of the reason for his arrest at the time or at all. Nor was he produced or charged in court. Only a person who had committed a heinous crime would have been arrested with so much brutality as Rwaboni was arrested.
Fourth, if Rwaboni was a spy as it was claimed, why was he arrested with so much brutality and torture? He was forcefully arrested, bundled on to a pick-up truck by armed soldiers. On the truck the soldiers sat on his head, his chest and his legs. When the motor vehicle drove off, other soldiers were kicking him. In my view that is not the manner in which a person would be handled by his colleagues with whom he or she is working for the same cause. That is not how to treat an ally for whatever cause the allies are working.
Fifth, arrangements were made to send Rwaboni, though at his request, out of the Country where he would be unable to be physically involved in the Petitioner’s electoral campaign any more. That was the best way to make sure that Rwaboni was completely removed away from the Petitioner’s campaign efforts. Exiled overseas, he would be physically of no use to the Petitioner any longer. Rwaboni’s request for a trip and treatment abroad was the direct outcome of the torture he had received. In that sense his trip abroad was not entirely voluntary. It was the result of coercion for him to flee overseas.
Sixth, prior to his arrest on 20-02-2001, Rwaboni had been twice prevented by the PPU from consulting with the Petitioner’s supporters in Kanungu Trading Centre, Rukungiri District. Rwaboni himself and many other witnesses have testified to that effect. This, in my view, reinforces the view that the Military and other authorities did not want him to campaign for the Petitioner’s election. He had to be removed at all costs.
I also find that in view of paragraphs 15 and 16 of his affidavit, the 1st Respondent had knowledge of the circumstances regarding Rwaboni’s arrest.
I shall now move on to consider other evidence regarding involvement of the Military, and other government and L.C. officials, organizations and others in harassment, threats and intimidation of the Petitioner’s supporters and agents. There are over one hundred such witnesses from all the sides in the Petition. It is impossible to evaluate all their evidence within the time available. Consequently, I shall consider only samples of such evidence, sufficient to give an overall view of the size of the complaints and the denials.
Bernard Masiko was
a registered voter at Nyabitunda Polling Station — Ntungamo Parish, Rukungiri. He was also the Petitioner’s campaign agent at Kayonza Sub- County. In his affidavit dated 20-03-2001, he deponed that on 9-2-2001, at 3.00 p.m. he saw Deputy RDC Mugisha Muhwezi Nyindombi, accompanied by Gommbolola Internal Security Officer (GISO), one Paul Bagorogoza who went to their office with army men from PPU and ordered their office attendant to remove their candidate’s (the Petitioner’s) posters and the sign post to their office and keep it inside, which the office attendant did for fear of being harmed.
Four days to polling day Mrs. Jackline Mbabazi went and held a meeting with Sergeant Nankunda, Paulo Bagorogoza and ordered the 1st Respondent’s supporters to beat up all the Petitioner’s supporters. Masiko personally heard her giving that order. Sam Karibwende, Chairman LC III also threatened to shoot Masiko and others if they did not close the Petitioner’s District Campaign Office. When Masiko returned the following day, he found another lock had been fixed on the office door. From then on they gave up the office.
On Polling day, he arrived at the Polling Station at 6.30 a.m. He and their other agents found that polling had already started earlier. All the voting was done by the 1st Respondent’s agents. One Biryomuhaisho had about 200 ballot papers. He ticked all of them and put them in the ballot box. Masiko found that the same thing was done in all other Polling Stations of that area by Sulait Mugaye and Ismail, all of them the 1 Respondent’s agents. When Masiko and other Petitioner’s agents tried to stop the practice1 they were forcefully chased away from the Polling Station by Polling officials with the help of armed men and their appointment letters confiscated. By 3.00 p.m. voting had already ended. Many of the Petitioner’s supporters1 especially the youths found that their names had already been ticked and their ballot papers cast by the 1 Respondent’s agents. Masiko went to a nearby polling station called Kyeshero and found there the same procedure. He witnessed Camen Muryakazi and Rwamahe also ticking ballot papers as they wished. Masiko found this strange and Rwamahe who was armed with an A1C47 chased him away with the help of LDUs and some army men who were threatening voters. Incidents similar to those ones were widespread in their area and the surrounding Sub Counties and Masiko personally witnessed many of them. In the circumstances it became impossible for them to hold free and fair elections, he said. The affidavit is based on knowledge and belief. Belief is irrelevant since Masiko deponed to what he witnessed.
Masiko’s
affidavit was rebutted by Mugisha Muwhezi. In his rebuttal affidavit of 2-4-2001, he said that he was the Deputy RDC for Rukungiri District. He had read Masiko’s affidavit. It was not true that on 9-2-2001, he went with PPU, GISO and Sub-County Chief of Kayonza to the Petitioner’s campaign office and ordered the office attendant to remove the Petitioner’s sign post and posters and keep them inside the office. Throughout the campaign period, he never entered that office at all. The LCIII Chairman of Kayonza Sub-County is not called Karihwende, but called Baikirize. Muhwezi did not say why Masiko should have fabricated such allegations against him if they were lies. On the other hand as the Deputy RDC, Muwhezi would not be expected to admit that he committed electoral Offences, which Masiko’s allegations amounted to if they were true, I would expect the Deputy RDC to deny them, as he did. In the circumstances, I would accept what Masiko said and reject Masiko’s denials, and I do.
Bernard Matsiko’s affidavit was also rebutted by Captain Atwooki B. Ndahura, the Commander of the deployed in Rukungiri. In his rebuttal affidavit of 4- 4-2001, he said that it is not true that men from the PPU accompanied the Deputy RDC, Mugisha Muhweze to Kayonza Sub-County when he allegedly ordered the removal of the Petitioner’s posters from his offices as alleged by Bernard Matsiko. The Captain did not say that he was present at the scene, nor why Matsiko invented such an accusation if he did. On the other hand, the Captain had every reason for denying the PPU of which he was the Commander, did such criminal acts. He would be expected to deny what Matsiko said. For those reasons, I would accept Matsiko’s evidence as true and reject the Captain Ndahura’s denial as false.
The affidavit of Sam K
akuru, of Karuhinda Village, Kijububwa Kirima, Kanungu District has already been referred to in another context in this judgment. In his affidavit of 2003-2001, he said that he was registered to vote at Karuhinda Polling Station. He was also the Petitioner’s Task force Chairman for Kirima sub-County.
In early January, 2001, the task f
orce held a meeting at James Musinguzi’s placer in Kiragiro. Suddenly, they were surrounded by PPU soldiers, numbering about 14. They went in the vehicle of the Deputy RDC, Mugisha Muwhezi. The PPU soldiers just stayed around, staring at the people in the meeting until the meeting was abandoned to let the participants go home early.
About two weeks later, Kakuru went to Kambuga to meet Rwaboni. He found PPU personnel beating up Kanyabitabo and Chappa Bakunzi because they had been mobilizing people to meet Rwaboni. As soon as the PPU soldiers saw Kakuru, they hit him with a stick, but he was able to turn his motor cycle round and he drove off. They chased him with their double cabin pick-Up but failed to catch up with him.
Around mid February, Kakuru’s
campaign Task Force went to meet the Petitioner’s Kirima Task Force. As soon as they stopped at Modern Hotel, Kanungu GISO and his group smashed the task force’s vehicle, breaking its windscreen and headlights. On 10-02-2001, two days before polling the same GISO’s Kihanda group found Kakuru’s Task Force meeting. The task force members at the meeting apprehended one of their assailants and took him to Kihihi Police Station. L.C.lll Chairman, one Beshesya Charles who was also the Chairman of the 1st Respondent’s Task Force, with GISO, soldiers, and Deputy RDC, Muwhezi, stormed the police station and forcefully released the said assailant, alleging that he had been abducted. On 11O3-2OO1, the group of the Deputy RDC, GISO and PPU returned to Kihinda and rounded up all of the Petitioner’s agents in that Parish and detained them until after the elections. As a result, the Petitioner had no polling agents in Kihinda Parish on the polling day. Kakuru said that PPU was heavily deployed all over the District. Member of the Petitioner’s Task Force and agents were finally released without being taken to court. Kihinda had been the Petitioner’s strong hold. Kakurku further said that on polling day he got up at 5.00 a.m. On the way, he was intercepted by people unknown to him singing “No change, Kaguta.” They chased him back to his home. He later managed to reach the polling station at 7.00 a.m., and he voted. Kakuru noticed that all the Policemen who voted at the stadium were ordered to tick their ballot papers at an open table, in the presence of the GISO “boys.” When Kakuru identified himself, the Presiding Officer, one Tindyebwa Eugino, ordered him to sit far from the polling agents’ table, saying that the table was for government people, not for rebelslike Kakuru and his colleagues. Tindyebwa and other officials started ticking ballots for people on the table. Kakuru objected and was manhandled and beaten up. Policemen looked on helplessly for they had earlier on been warned that they were known to be “anti MuseveniKakuru was chased away from the polling station. He stayed at home until about 4.00 p.m. eventually, he said, all the Petitioner’s other agents were also chased away. At about 5.00 p.m. stone wielding thugs led by Stephen Rujaga, Rubondo and other 1st Respondent’s task force members went on two pickups and surrounded Kakuru’s home, demanding that he should go and meet the RDC. He refused and he entered his house. They threatened to demolish his house, and that forced Kakuru to go with them. They took him to the polling station, where he was ordered to sign the declaration of results forms. He refused, and he was taken to the ROC, the Deputy RDC, the GISO and others. Kakuru said that he told all of them that he would not sign because he had not witnessed the balloting. They insisted and threatened him until he signed.
The Petitioner was allocated only
one ballot paper per ballot box, from that cluster of polling stations. All other ballot papers ticked for the Petitioner were destroyed and the Petitioner ended up with only three voters in his favour, only after Kakuru and his colleagues had signed the declaration results forms were they allowed to go home.
The Chart shows that the affidavit of Sam Kakuru is rebutted by Captain Ndahura, but a scrutiny of Captain Ndahura’s rebuttal affidavit, dated 4-4-2001, shows that paragraph 4 thereof refers to Sam Kakuru, as follows.
“4. That I have read the affidavits of Bernard Matsiko, Kakuru Sam, Frank Byaruhanga and found them to certain falsehood.”
That is all that Captain Ndahura’s rebuttal affidavit says about Sam Kakuru’s affidavit. It says nothing else about it.
This implies that, according to Captain Ndahura, all that detailed evidence Kakuru said in his affidavit is made up. It is all false. I do not believe that denial any more than I have believed the Captain’s denial in respect of the other witnesses he has referred to in his affidavit.
In my view, Kakuru’s affidavit evidence is c
redible as against Captain Ndahura’s rebuttal for the reasons I have given for believing, for instance, the affidavit of evidence of Bernard Matsiko, whose evidence I have just considered in this judgment.
Byaruhanga Frank was an Administrator of the Elect Besigye Task Force. In his affidavit dated 23-03-2001, he deponed that on 3-3-2001, the Petitioner was scheduled to address a rally at Bikurungu in Bwambora Sub-County, Muhingi, but he could not do so due lack of time. Consequently, Byaruhanga and Hon. Robert Sebunya were sent to address the rally. On their arrival, Byaruhanga’s driver called Batuma was called aside by four soldiers of the PPU. The soldiers started beating the driver Oil the pretext that no one else was supposed to campaign that day except the Petitioner. Thereafter, the Area Chairman of the Petitioner’s Task Force, one Doma, was caned and his shirt stripped off by the PPU soldiers, who said that it was punishment for mobilizing and welcoming Byaruhanga, and his colleagues for the day’s campaign. The task force’s Sub- County agent was similarly called aside by the PPU and beaten for getting involved with the Petitioner’s group, “yet he was working with the Government.”
In such circumstances, the PPU started beating and Harassing people and ordering them to disperse. In the result, the rally was abandoned by the people, Sebunya and Byaruhanga. On 17-03-2001, at Rwerere, Rusoroza I, in Rujumbura, Byaruhanga was informed by one Erika Mukuru, the Petitioner’s agent1 that the presiding Officer, one Twinomatsiko Robert, who also acted as the 1st Respondent’s agent during the registration of voters and display of register exercise, had issued out many Voters’ Cards to persons not being the registered voters shown on the cards. The agents in the area kept an eye on Twinomatsiko until his shamba boy called Zikanga was caught with 20 Voters’ Cards in his pockets and was arrested by the local people. Byaruhanga tried to put Kikanga in his car to take him to the police but the presiding Officer refused on the ground that Byaruhanga was not an arresting Officer. Byaruhanga then rushed to Rukungiri District headquarters informed the DPC who gave him a car a Sergeant and a Prisons Officer. They then proceeded to the scene of the incident. On reaching there, they found that the L.C. Ill Chairman, one Turahimbise had ordered that the said Zikanga be released and that he had received order from Captain Ndahura of the PPU to release the man.
Byaruhanga further said that he was informed by one Gifuti Turinawe, the Petitioner’s agent at Kigugu I that the presiding Officer, one Kamutoro, of the neighbouring polling station Kagugu I and the Headmaster of Rwerere Primary School had been seen with Voters’ Cards and giving them to children. Byaruhanga proceeded to Kagugu I with Counselor James Bwete and Kamutoro who accepted cards at home where the said James and Byaruhanga then went. At home they got seven Voters’ Cards that were in his (Kamutoro’s) custody and another 20 cards from his daughter’s school uniform. The uniform and cards were retained by the police. In the meantime an observer from the American Embassy appeared. Byaruhanga and his colleagues briefed her about everything. She also interviewed the presiding Officer, about the anomalies. The presiding Officer admitted that there were under-aged voters and that he was forced to accept them to vote.
Captain Ndahu
ra rebutted Frank Byaruhanga’s affidavit. In his rebuttal affidavit of 4-4-2001, Captain Ndahura deponed that on 3-3-2001, the Petitioner addressed a rally at Rukungiri Town. On that day, no PPU soldiers moved to Bwambara sub-County. It is not true that the PPU moved to Bwambara on 3-3-2001, beat up people or dispersed Sebunya’s rally as alleged by Byaruhanga, but it remained in camp until late in the evening when he (Capt. Ndahura) moved to town with his escorts in response to the shooting which he heard coming from town, to find out what was happening. Capt. Ndahura said that he never participated in the shooting. He further said that he was not aware of the allegation that one Zikanga was found with Voters’ Cards Capt. Ndahura also said that he never instructed Seezi or anybody else to release anybody in connection with election malpractices as alleged by the Petitioner’s witnesses.
I do not believe Captain Ndahura’s denials of the allegations made against him by Frank Byaruhanga in his affidavit. My reasons for doing so are the same as those I gave for disbelieving Capt. Ndahura’s denial of the allegations made against him by Bernard Matsiko. Another reason for not accepting Capt. Ndahura’s denial with regard to Byaruhanga’s affidavit evidence is that on the one hand the Captain said in paragraph 9 of his affidavit that on 3-3-200L the day the Petitioner addressed a rally in Rukungiri, the PPU remained in camp until late in the evening when he (the Captain) moved to town with escorts in response to the shooting which he had heard in town to find out. As all available evidence shows, that shooting was by the PPU. This means that the PPU could not have been in camp throughout until late in the evening when the Captain moved to the town in response to the shooting. The PPU could not have been contained in camp and at the same time shoot in town before the Captain moved out in response to the shooting.
I have already referred to the affidavit of Koko Medard in another context. In the present context, he said that throughout the District of Rukungiri, generally, army men whom he learnt were from the PPU were deployed and were prominently present throughout Kambuga, Kihihi, Kayonza and other places. He was traveling a lot and saw them every day for about three months. They used to move with Mugisha Muwhezi (Deputy RDC) who used to point out to them whom to harass. During the period they tore up the petitioner’s posters1 dispersed any group of three or more people, saying that they were the Petitioner’s supporters. When Rwaboni went to address people, they chased him away. They beat U a lot of the Petitioner’s supporters including Henry Kanyabitabo, Kalisti and many others. They rounded up the Petitioner’s supporters and put them in jail at Kambuga, such as the said Kanyabitabo who was eventually released but whose motor cycle was retained.
Incidents
similar to the ones Kakoko has described, he said, were wide-spread in their area and the surrounding Counties and he personally witnessed many of them. In the circumstances it became impossible to hold a free and fair election. Since what he deponed to was mostly what he witnessed, belief is irrelevant. Koko’s affidavit was based on knowledge and belief. Kakoko’s affidavit was also rebutted by Mugisha Muwhezi, who said that he never traveled with the PPU to point out the Petitioner’s supporters to be harassed. He did not know who supported the Petitioner or any other candidate. He never harassed anybody or used PPU to do so. What I have said about Muwhezi’s rebuttal of Masiko’s affidavit, applies equally to his rebuttal of Koko’s affidavit.
The affidavit of Koko Medard was also rebutted by Captain Ndahura in his rebuttal affidavit of 4-4-2001. He said that it is not true that PPU soldiers in Rukungiri District were deployed and were prominently present in Kambuga, Kihihi, Kanyonza and other places as alleged in Koko Medard’s affidavit. He further said that he and the soldiers were based in Rukungiri at the State House Lodge. The PPU also scouted the routes which the President was likely to use in his visit to the District for purposes of reconnaissance; this did not include surrounding and entering people’s houses. It is not true that he chased Rwaboni when the latter in Rukungiri or dispersed away his rallies. He only assisted the Kanungu Police with transport to disperse what the O/C deemed an illegal rally which “Rwaboni was addressing at Rugyeyo.” He also ordered his soldiers to arrest Rwaboni’s unauthorized escort who was a UPDF soldier in active service. The police also arrested two people over uttering abusive words against the President.
I do not believe Capt. Ndahura’s
denial of what Koko Medard had said in his affidavit. The reasons are the same as those I gave for rejecting the Captain’s denial of Bernard Matsiko’s contents of his affidavit; believe that Koko Medard spoke the truth. It is incredible that so many witnesses whose evidence about the PPU is similar and tend to corroborate each other made up their evidence and that only Capt. Ndahura spoke the truth. I do not believe it. I believe that the PPU did what those witnesses said they did.
I have already referred to the affidavit of John Hassy Kasamunyu in another context in this judgment. He said that on 17-02-2001, he was accompanying Mbabazi David, a Maakerere University Student, who was going to meet his fellow students at Kanungu. When they reached Ishugu, they found that the students had been molested by the 1st Respondent’s supporters and the students had gone to report the incident to the Police, to where Kasamunyu and colleague followed them. About 300 meters from the Police Station a gang of people rushed on to the road with a Pole and stopped them. As soon, Kasamunyu halted, they seized and manhandled him, throwing him off his motor cycle. One member of the gang, Stephen Rujaga, drove off on the motor cycle as Kasamunyu and companions went back to the Police to report. After they had finished reporting a different man arrived on the motor cycle, carrying a Policeman. The Policeman said that he would not return the motor cycle to Kasamunyu until the man who had it returned to the police station.
Kasamunyu
waited until 6.00 p.m., when the officer in charge told Kasamunyu that the GISO who had seized the motor cycle had said that it was a Government motor cycle. Kasamunyu left and went home and never recovered the motor cycle.
On 9-3-2001, Kasamu
nyu and others were holding a meeting of the Petitioner’s Task Force for Kihanda Parish when 15 vigilantes of the 1st Respondent went and attacked them. They were half naked and carried sticks, whistles and stones. They started beating up the Petitioner’s supporters. When the victims of the attack made an alarm, other people answered the alarm and the vigilantes ran away. They got hold of one of them, who said that they and other vigilantes were on a mission to terrorise the Petitioner’s supporters. Kasamunyu and colleagues took the arrested vigilante to Police Station and the victims of the beatings to Kihihi Health Centre. Next, day the Police and PPU started hunting them. Some of them were arrested and taken to Kanungu Police Station. Those arrested were: Tukahirwa Sam, Mugisha Geoffrey, Kwesiga, Kwiragira, Robert Hashaka Kimama, Ntare, Richard Bikamya, Tusingwire Kalima. They were remanded at Kanungu Police Station until 16-03-2001. They were the Petitioner’s supporters. They never voted. Kasamunyu ended that as he was being hunted, he never voted, nor worked as the Petitioner’s agent. Up to 20-03-2001, when he swore the affidavit he was still in hiding and could not go to his home.
The Chart shows that Kasamunyu’s affidavit was rebutted by Jamil Kakombe, but Kakombe’s rebuttal affidavit evidence is not relevant to Kasamunyu’s affidavit. It is relevant to Koko Medard’s affidavit in connection with stuffing ballot papers into ballot boxes and forcing voters to vote for the 1st Respondent. Accordingly Kasamunyu’s evidence regarding harassment by GISO, PPU and the 1st Respondent’s agents remains uncontroverted and I accept it.
The affidavit of John Hassy Kasamunyu was also rebutted by Captain Ndahura in his rebuttal affidavit of 4-4-2001. He said that the allegation in the affidavit of John Hassy Kasamunyu that the police and hunted the Petitioner’s agents for beating harassment by vigilantes in Kihinda Parish Kirima Sub-County is not true. Captain Ndahura said that he did not deploy PPU in Kihinda Parish for the purpose or at all. I do not believe Captain Ndahura’s denial of Kasamunyu’s evidence for the same reason I gave in respect of the other witnesses.
The affidavit of Mpwabwo
oba Callist has already been referred to in another context in this judgment. He was a registered voter at Murara Village, Kashoijwa Parish Rugyeyo Sub-County, Kanungu District. He was also a coordinator for the Petitioner’s Task Force for Rugyeyo. In his affidavit of 2003-2001, he said that in early January, 2001, they held a meeting at the place of James Musinguzi in Kiragiro. Suddenly they were surrounded by soldier’s numbering about
14. They went in the vehicle
of Deputy RDC Mugisha Muwhezi.
They deployed all around, staring at them, until they had to abandon the meeting to let people go home early. Two weeks later he went to Kambuga to meet Rwaboni. There Mpwabwooba found PPU soldiers who had gone with Captain Ndahura’s vehicle beating UP Henry Kanyabitabo and Chappa Bakunzi because those had been mobilizing people to meet Rwaboni. As soon as the soldiers saw Mpwabwooba they attacked and hit him with a stick, but he was able to turn his motor cycle and drove off. They chased him with their double cabin pick-up but failed to catch up with him.
At Rugyeyo where Rwabo
ni was to address the people, the PPU soldiers went and ordered people to disperse, although Mpwabwooba had informed the Police and the Gombolola authorities of the rally. The GISO of Rukungiri, one Twagira was with them. People dispersed amid beatings. In particular they apprehended two of the Petitioner’s supporters namely Isaac Katente and Kyarikora, put them on a pick-UP1 roughed them up and took them away. They were released the following day. The O.C. sent a verbal message to Mpwabwooba that if he did not resign from the Petitioner’s Task Force, he would be taken next.
On 3-3-2001, when the Petitioner was going to Kanungu, the GISO, Baguma John and Edson Safari, LCIII Chairman, Kayonza Elias, went around telling people that if they went to the rally, they would be “dealt with-” Throughout the two weeks to the elections, some people used to go around directing people to turn UP and vote for the 1st Respondent, and that if they did not, their houses would be burned down.
On Election Day, the PPU soldiers were deployed throughout Mpwabwooba’s village and neighbouring villages and the Gombolola headquarters to “monitor elections.” The night before the elections, some soldiers were distributed at the homes of known supporters of the Petitioner, such as James Musinguzi and Byaruhanga Benon. That night Mpwabwooba’s found them there and what he called the whole area. In the evening as he and others were listening to the radio, one Mugisha Peter, Councilor went near them and shot two bullets in the air. On voting day the Petitioner’s agents were ordered to remain 50 meters from the Polling desk. The PPU soldiers were distributed in parishes where the Petitioner was known to have strong support and they kept chasing after them wherever they went.
At Kifunjo
the Petitioner’s monitor was seriously beaten and thrown into a road side trench with his motor cycle. At that Polling Station, Mpwabwooba found the presiding Officer, Korutookye Gandioza personally ticking the ballot papers for the 1st Respondent before handing them over to voters to cast them in the ballot box. The Petitioner’s agents counted about 500 votes before they lost count and gave up. At Katojo, Mpwabwooba found the same thing being done by the presiding Officer, Kabarashera.
At Kashojwa, the presiding Officer Mwebesa Michael did the same. There one Kazahura Gervase insisted on ticking his own ballot paper only to find that it was already ticked for the 1st Respondent. He insisted, and he was given another one. At Nyarurambi; Ndyomujuni was the Petitioner’s monitor, but the GISO took away his Monitor’s badge, arrested and kept the monitor in his car until polling closed.
Apollo Arinaitwe, the presiding Officer, was also actively ticking ballot papers with his other polling officials. On Mpwabwooba’s way from one Polling Station to another, the said Mugisha Muwhezi met Mpwabwooba. The former was in a car. He pointed a gun at Mpwabwooba and continued with his journey. At Kifunjo, the 1st Respondent’s agents threw stones at MpwabwOOba’5 car, but an International observer arrived at the scene and the stone throwers feared to carry on. Then after the elections the GISO called Mpwabwooba showed him a bullet and told him: “This was meant for you but you survived.” The same day Mugisha, a Councilor, met Mpwabwooba in the presence of Kinyata, M.P., and the RDC and introduced him to them as the rebel who was trying to overthrow them so as to become RDC in the petitioner’s Government. In the circumstances, Mpwabwooba said, it became impossible to hold free and fair elections. The affidavit was based on knowledge and belief, but as the witness deponed to what he saw, belief is irrelevant.
Captain Atwooki Ndahura also rebutted the affidavit of Mpwabwooba Kallist. The Captain deponed in his affidavit of 4-4-2001 that it is not true that was distributed at the homes of the Petitioner’s supporters; nor was PPU present at any polling station. The PPU remained encamped at their station and never moved out on polling day. I do not accept the denials by Captain Ndahura’s of Mpwabwooba’s evidence about the PPU for the same reasons I gave in respect of the other witnesses. I believe that Mpwabwoobwa s evidence is credible.
Bashaija Richard was a Rukun
giri District Coordinator on the Petitioner’s Task Force. In his affidavit of 2O032001, he said that on 27-01-200, at 3.00 p.m. when they were in their candidate’s meeting at Kyeijanga Kirima, four Policemen from Rukungiri, went to the venue and arrested them saying that their meeting was illegal. The people attending the meeting were rounded up and detained at Rukungiri Police Station for three days, and released on Police Bond. When the victims returned to honour the bond, the bond papers were torn up and they were told that the case was closed.
On 20-32-2001, at Kanungu Bashaija and one Owembabazi were arrested by the GISO of Kirima at a road — block, set UP by him. They were beaten UP, thrown on a pick-UP and taken to Karegye where Bashaija was thrown in a pit and buried under soil/mud, leaving only his head above ground. After the GISO and his group had left Owembabazi rescued Bashaija. As he was trying to go to Rukungiri Police Station to report the incident the same day, Police fired tear gas at him, preventing him from making the report. A day later, the GISO and Police demanded that he should take them to the scene. They found there the owner of the land in which Bashaija had been buried. The former corroborated the latter’s statement. Bashaija was told to report to the Police Station the next day. When he did so he was locked up for three days, taken to Court and charged with holding a demonstration. He was released on bail.
On 23-03-20
01, as the Petitioner’s supporters were waiting for him in front of their District Campaign Office, PPU soldiers attacked them and beat them U dispersing and preventing them from waiting for their candidate. That evening PPU found Bashaija in Ijimo Hotel, arrested him and dragged him to the streets, removed his shoes, kicked him over thirty minutes and released him. On 3-3- 2001, when Bashaija and others were arranging to hold a rally with the Petitioner, Bashaija found Captain Ndahura of the PPU in Hotel Holiday. The latter called the former to his table, pulled out his pistol held it at Bashaija’s head and warned him that he would shoot him if anything happened to PPU personnel in Rukungiri. After the Petitioner’s rally the same day PPU soldiers went on the rampage in Town, shooting many bullets in the air and at the Petitioner’s supporters killing one Beronda in the process. The Petitioner’s supporters had not provoked the PPU in any way. They had not breached the peace nor were they demonstrating. They were just walking back from the venue of the rally. From then on PPU soldiers started actively looking for Bashaija. He went into hiding until the morning of the Polling day, when he sneaked out to the Polling Station and cast his vote. Bashaija said that what he said in his affidavit were mere examples of the kind of harassment he and his colleagues on the Petitioner’s campaign team in Rukungiri went through, especially from the time the PPU and Senior District administrators actively started a deliberate process to prevent any form of support for the Petitioner in Rukungiri and Kanungu Districts. The affidavit was based on information and belief. Knowledge was derived from what Bashaija witnessed and the grounds of belief were what he saw.
In his affidavit rebutting what Bashaija said in his affidavit, Captain Atwoki B. Ndahura, the Commander of the PPU in Rukungiri at the material time, denied that he met Bashaija in Hotel Holiday on 3-3-2001, or that he drew a pistol on him.
He said that he never met Bashaija on that day at Hotel Holiday or anywhere else. This was a blanket denial. Captain Ndahura did not say why Bashaija should invent such an allegation against him. Captain Ndahura would not be expected to admit having committed a criminal offence as alleged by Bashaija, if the allegations were true. He would be expected to deny it, given his official position. I would believe Bashaija’s evidence as true and reject Ndahura’s denial as false, and I do.
Owembabazi Placidia, of Kakabada, Northern Ward, Rukungiri Town Council said in his affidavit of 20-03-2001, that he was a member of the District Task Force f or the Petitioner. On 11-03-2001, with the apparent intent to intimidate and scare him not to vote for the Petitioner, two armed Policemen and one plain — clothes Policeman and some other unidentified persons, without a search warrant surrounded his premises and said that they were searching for Military equipment in his possession, to wit, guns uniforms and others. Nothing was found in his possession. The affidavit is based on knowledge and belief, but belief is irrelevant since the witness depend to what he saw.
The Chart does not show that the affidavit of Owembabazi is rebutted. His evidence therefore stands uncontroverted, and I accept it.
Byomuhangi Kaguta, of Bwambara Village, Bwambara Sub-County, Rukungiri District was a polling agent for the Petitioner. In his affidavit of 20-03-2001, he said that on 11-03-2001, he was arrested by three armed soldiers of the PPU who had been deployed all over the District. He was thrown into a pit (Ndaki) in the; barracks, and suffered a lot. The following night Buterere and Tukahiirwa, two of the Petitioner’s agents were also brought in to join Kaguta.
They spent the whole of Polling day in the pit. Accordingly, they did not vote. Kaguta said that these are mere examples of the kind of harassment he and other members of the Petitioner’s campaign team in Rukungiri went throu
gh, especially from the time the PPU and Senior District administrators actively started on a deliberate process to prevent any form of support for the Petitioner in Rukungiri and Kanungu Districts. The affidavit was based on knowledge and belief, but belief is irrelevant, since what the witness deponed to was what he saw. The chart does not show that Kaguta’s affidavit was rebutted. His evidence therefore, remains uncontroverted, and I accept it.
John Kisumba of Kasenge I Village, Bwera Sub-County, Kasese District was the Petitioner’s Monitor for Bukonjo West Constituency. In his affidavit of 20-03-2001, he said that prior to Polling day, a soldier by the name of Kihindiro William went to Kisumba’s area of control and said that he had been sent by State House to arrest those campaigning for the Petitioner, and that he had a list of the Petitioner’s agents, including Kisumba, whom he intended to arrest.
On 12-03-2001, Kisumba was monitoring the election when he found at Kasika Nyakimasa Polling Station that six under-aged. Children tried to vote. The Polling officials ignored Kijumba, and the 1st Respondent’s agents threatened to stone him if he continued to question voting by the under-aged children. He reported the incident at Bwera Police Station. At Rusese, Kyampala Polling Station, he saw two under-aged children lined up to vote. The Presiding Officer said that since the children had Voters’ Cards, they were free to vote and they voted. At Katojo Polling Station, Kisumba noticed that there were 10 armed army men guarding the Polling Station. The Chart indicates that Kijumba’s affidavit was rebutted by Boniface Mupaghasya but it does not show where the rebuttal evidence can be found.
Edison Gumenze was a Monitor for the Petitioner at 8 Army Polling Stations in Rukonjo West Constituency. In his affidavit of 20-03-2001, he deponed that three new Polling Stations were created to make 10. At Isango and Kisabu in Kitholhu Sub-County, he noticed that armed soldiers were guarding the Polling Stations. He was threatened by the GISO, Sibaligana and Zainabu a woman Councilor for Kitholhu — Ihandiro Sub-Counties, who told him that he, would die if he continued to monitor the area. Earlier on 25-02-2001, during his campaign exercise, he was arrested by Sgt. Kalindiro William attached to Nakasongola D.M.I. who said that he had been sent by State House to stop those campaigning for the Petitioner against the 1st Respondent, like Bumenze.
During the voting he noticed that lorry loads of armed soldiers from the Congo were ferried from there, shouting “No change” as they passed near Polling Station. After voting in one Polling Station, the same soldiers were ferried to vote in another.
Sgt. William Kilindiro threatened to kill Bumenze as Kihindiro said he had killed one Jacob the brother of George Kayiwa or arrest him and detain him at Luzira Prison, as he had done to a Martin Bwambale. In February, 2001, in Mpondwe — Bwera, Township, Gumenze was threatened with arrest and detention by Major Muhindo for campaigning for the Petitioner. The affidavit is based on knowledge and belief. Belief is irrelevant since the deponent spoke of what he saw.
Zainabu Asiimwe who rebutted Bumenze’s affidavit said in her rebuttal affidavit of 4-4-2001, that she was a woman Councilor for Kasese District Council. On 12-03-2001, she saw Kamenze but the allegations made by him against her were false. She was not met at Kisabu and Isango Polling Stations as alleged by Bumenze. Zainabu did not say why Bumenze should have told lies against her. I would not believe that Bumenze invented her name out of the blue. On the other hand, I would not expect that Zainabu, a Councilor would admit that together with the GISO she threatened a Polling agent at a Polling Station Zainabu would not be expected to admit that what Bumenze said was true. I would therefore reject Zainabu’s denial and accept Bumenze’s evidence as true, and I do.
Mutabazi Pius was a Superintendent of Police and Kasese District Police Commander. In his affidavit of 2-4-2001, he rebutted paragraph 15 of the affidavits of Edison Bumenze. Mutabazi said that the complaint raised therein was not reported to the Police. Bumenze did not say that he reported the incident at the Police Station. If it was not reported, it does not in my view, necessarily mean that it did not happen. Mutabazi, SR also said that he was not aware that soldiers were ferried on lorries and voted at several Polling Stations as alleged by Baguma John Henry and Bumenze, as no reports thereof were made to the Police, nor was a report received of what John Kajumbe said had happened at Bwera Police Post. I find that the rebuttal affidavit of Mutabazi S.R not helpful, because he was not at the Polling Stations where these witnesses alleged the malpractices happened. Secondly, the fact that no reports were not made at Police Posts does not necessarily mean that they did not happen.
Mutabazi SP also said that Sulait Kule dumped 16 Voters’ Cards at the Police Station without disclosing where he has got them from, and never returned to follow up the report. Again, this does not mean, in my view, that Kule’s allegation about those Voters’ Cards was false.
Mary Frances Ssemambo was the Chairperson of the Elect Besigye Task Force, Mbarara District. In her affidavit dated 21-03-2001, she said, inter alia, that in many Polling Stations, particularly in Nyabushozi, and Isingiro Counties, Polling agents for the Petitioner were harassed, arrested, beaten, tied up and detained or threatened with violence and chased away from the Polling Stations by heavily armed UPDF soldiers, LDUs and the 1 Respondent’s agents. The interests of the Petitioners in numerous Polling Stations were, therefore, not safeguarded. The affidavit was based on knowledge. The Chart shows that the affidavit of Ssemambo is rebutted by Samuel Epodoi, the District Police Commander of Mbarara District. In his rebuttal affidavit of 3-4-2001, Epodoi said that paragraph 6 of Ssemambo’s affidavit was false. On 12-03-2001, both Nyabushozi and Isingiro South Counties were policed by Mobile crews, constituted both by Policemen and UPDF soldiers under the leadership of Police Officers. That the incidents alleged to have taken place in Nyabushozi County and Isingiro County South, never occurred and the allegations of harassment of the Petitioner’s Polling agents were false. Epodoi did not say why Ssemambo should have fabricated a lie if that was what her allegations were. Presumably what he said came from reports he had received, if he did, because he himself did not visit the Polling Stations. But he did not say so. On the other hand as the District Police Commander, he would be the last person to admit that such incidents occurred, if indeed they occurred. For it would not reflect very well on him. I would, therefore, prefer what Ssemambo said to Epodoi’s denial, and I do. The Chart indicates that the affidavit of Ssemambo is also rebutted by Kafureka (CAO) but it does not indicate where Kafureka’s rebuttal affidavit can be found.
The affidavit of Boniface Ruhindi Ngaruye a practicing Lawyer, in Mbarara, has already been referred to in another context. In his affidavit he deponed that he was a member of the Elect Besigye Task Force, Mbarara. His consultative meetings on behalf of the Petitioner in Ishongerero Sub-County were gravely interfered with to the extent that on 21-02-2001, he was harassed and chased away from Ishongorero by an armed LDU Commander of Ishongerero Sub-County who threatened to shoot him and fired a gun he was wielding. The case is pending before the Chief Magistrate’s Court as IB CRB. 66/2001, Criminal Case No. 1 92/2001. As a result of the threat to his life, he was denied the opportunity to hold consultative meetings on behalf of his candidate and to canvass support for him freely.
Ngaruye said that he was not only a leader, but also very popular. On the eve of the Election Day at about 7.30 p.m., there was heavy deployment of heavily armed UPDF soldiers in Mbarara Municipality and the Petitioner’s Task Force had planned a meeting to begin at 8.00 p.m. and end at 11.00 p.m. The meeting aborted as freedom of movement in the Municipality was that night interfered with. The affidavit is based on knowledge save one paragraph (which is irrelevant here) which is based on belief and reason thereof is given.
Epodoi, S.R, also rebutted Ngaruye’s affidavit. He said that the Criminal Case referred to by Ngaruye was a result of the LDU Commander, Saad Gumisiriza’s effort to apprehend suspected criminals in Ishongerero Sub-County. The allegation of heavy troop deployment interfering with the Petitioner’s Task Force meeting on 11-03-2001 was completely false because the joint security teams were in charge of security in Mbarara Municipality and their presence did not affect the residents’ freedom of movement. The comments I made above about Epodo’s rebuttal of Ssemambo’s affidavit equally applies to his rebuttal of Ngaruye’s affidavit. I therefore, reject Epodoi’s rebuttal and accept Ngaruye’s evidence as true.
Alex Busingye, of Kakiika, Mbarara, was a registered voter and during the 2001 Presidential Elections, he was in charge of overseeing the operations and welfare of the Petitioner’s Polling agents for Kazo County, Mbarara District. In his affidavit of 21-03-2001, he said that at the majority of Polling Stations he visited, he found the Polling agents for the Petitioner not present; they had been chased away by armed UPDF soldiers. At Nkungu Polling Station he found the monitor for that station had been tied by the UPDF soldiers and bundled on Motor vehicle No. 114 UBS in which they were traveling. The Chart indicates that Busingye’s affidavit has been rebutted by Aspro Kwesiga, but it does not show where Kwesiga’s affidavit may be found.
Masasiro Stephen of Bukabalyenda Village, Jewa Parish Bungokho, Mbale District was a Polling agent for the Petitioner at Nkusi Primary School. In his affidavit of 21-03-2001, he deponed that he arrived at the Polling Station at 6.30 a.m. Later there was a disturbance started by the Area Sub-County Chief Abdu Mudema, the Chairman of the 1st Respondent’s Task Force Ali Mukholi, the Sub-County Councilor, Michael Namudi, who went to the Polling Station with four armed soldiers. All the soldiers shot in the air. Masasiro and Wafula, the Petitioner’s Polling agents were severely assaulted. After they were assaulted, the Sub-County Chief, the Sub-County Councilor, and the Chairman of the 1st Respondent’s Task Force put into the ballot box ballot papers on which the 1st Respondent’s name was ticked. Masasiro and his colleague tried to intervene but they were further assaulted; but he insisted that the ballot papers put in by the three be removed, but the three men continued to put more ballot papers into the ballot box. Masasiro struggled with the 1st Respondent’s Task Force Chairman from whom he removed five ballot papers, already ticked for the 1st Respondent. Masasiro ran to Mbale Police Station and handed over to the Police the five ballot papers. His statement to the Police was received, with reference SD1 5/12/3/2001. Up to the day Masasiro deponed to the affidavit, the Police had not yet called him back for further action. The affidavit was based on knowledge and belief, but since the deponent related only what he witnessed, belief is irrelevant.
Masasiro’s affidavit was rebutted by Michael Namundi, a District Councilor, Mbale District. In his rebuttal affidavit of 2-4-2001, he said that he was a member of the Respondent’s Mbale District Task Force. On 12-03-2001, he went to Nkusi Primary School Polling Station at 8.00 am. to cast his vote. On arrival there, he noticed a scuffle between some women voters and Masasiro, who was blocking those women to vote by grabbing their ballot papers because they were going to vote for the 1st Respondent. Namundi went to make a report to the Bufumbo Sub-County Chief, Abdu Mudema. As a result, Mudoma, Ali Bulobe s/o Mukholi Chairman of the Bufumbo Task Force for the 1st Respondent and Namundi returned to the scene. They found Masasiro seated on the ballot box and preventing everybody from voting. The Presiding Officer was looking on helplessly. Abdu Mudema cautioned Masasiro about his behaviour. With the help of a Police Constable the ballot box was wrested away from him. Thereafter, Masasiro ran away and voting continued smoothly. According to Namundi’s account of what happened, Masasiro was the person who committed crimes at the Polling Station. As there was a polling Police Constable present, according to Namundi, why was Masasiro not arrested? Instead it was the culprit (if Masasiro was one) who reported the matter to Mbale Police Station, a report given a reference number. It would have been helpful if the Police explained this by affidavit evidence.
As it is, I do not believe that it was normal for the accused person who went to the Police Station instead of his accusers if Namundi’s account is true. As it was Masasiro who made a report to the Police I do not think that he was the culprit as Namundi painted him to be. In the circumstance
s, I prefer Masasiro’s version of events to that of Namundi.
Antelli Twahirwa, of Kingengi, Kabale Municipality, was the Kabale District Chairman of the Petitioner’s Task Force. In his affidavit of 21-03-2001, he said that during the campaign, the RDC, Mwesigye, with LDUs Parish Chiefs, and GISOs kept the Petitioner’s Task Force under constant harassment. The harassment was wide spread and occurred in almost every part of the District which Members of the Task Force attempted to visit. The Petitioner’s Kabale District Task Force had a wide range of complaints about the conduct of the pre-election process which they found to be fundamentally flawed. They forwarded their complaints to the 2 Respondent, but nothing was done to redress the situation. A copy of the written complaints, detailing the irregularities was annexed to Twahirwa’s affidavit as annexture “A.” On election day itself, Twahura said, their agents gave him reports of widespread intimidation by Government officials, forcing them to vote for the 1 Respondent and many other electoral malpractices, ranging from allowing people to vote when they were not entitled to do so; forcing voters to tick their votes in the open and for the 1 Respondent; forcing the Petitioner’s agents to sign declaration forms when they had been prevented from witnessing the Polling exercise; and many others to the extent that the District Task Force, of which Twahirwa was Chairman also forwarded their complaints to the 2nd Respondent. They also forwarded similar complaints to the NGO Monitoring group (NEMGROUP) and Polling officials at all levels, but nothing was done to regularize the elections. A copy of their complaint with details of malpractices was annexed to Twahirwa’s affidavit as annexture “B.”
The contents of the annextures are too long and numerous to be reflected in this judgment. Only a brief summary may be given here.
Annexture A, dated 5-3-2001 was addressed to the Chairman of the 2nd Respondent and the Kabale District Returning Officer. It said, inter alia that the RDC, Kabale, James Mwesigye, on his campaign tour for the 1st Respondent urged voters to tick a candidate of their choice, but further urged people to punish or report whoever would vote for the petitioner. The problem was rampant in Bufundi, Kamwezi, and Rubaya sub-counties. The deputy RDC, Coax Nyakairu, and his Assistant RDC, Dan Kaguta, were touring the district spreading the same message. The whole group told voters that even if the Petitioner won the elections he would not be allowed to lead Uganda. The document then said under a sub-heading “PETITION”:
“I would like to lodge my petition for the removal of the following persons from the list of polling officials. They campaign for the presidential candidate Yoweri Kaguta Museveni”
This is followed by a long list of election officials sub-county by sub-county, and the reason why they should be removed. For instance being on the first Respondent’s sub-county Task Force; attending his agents meetings at Parish or other levels; or for tearing out the petitioner’s posters or for being the 1st Respondent’s mobiliser, for being LDUs; for dispersing rallies of the Petitioner’s supporters, etc. The list contains 233 names of election officials for removal, from the sub-counties of Bubare, Kabale Northern Division, Rubaya, Maziba Hamurwa, Kitumba, Kamunganguzi, Bifindi, Nyamihyango and Nyabikoni.
Between sections of the list of names there were statements like: “Rubaya sub-county has one of the most notorious LDUs in the District”. This particular one is followed by names of 18 LDUs who were indicated to be the 1st Respondent’s agents.
Another was: “We would also call for the removal of the Polling Officials whose names are listed below because they campaign for Presidential candidate Museveni’ this was followed by numerous names
The chart shows that the affidavit of Twahirwa was rebutted by James Mwesigye, the RDC of Kabale District. In his rebuttal affidavit he said that the allegations by Twahirwa that the RDC, (Mwesigye), LDUs, GISO’s and Parish Chiefs kept harassing the Petitioner’s agents or supporters were totally false because none of the Government officials referred to, including himself, the RDC, was involved in electoral malpractices before, during and after the Presidential Elections. The letter of complaints referred to by Twahirwa was neither copied to him nor brought to his attention by the Returning Officer of Kabale. Mwesigye did not, in his rebuttal affidavit, say why Twahirwa should have invented such big and serious lies against him and other Government officials in his affidavit if the allegations were totally false as Mwesigye said. On the other hand if the allegations were not false Mwesigye would not be expected to admit them. A whole RDC would not be expected to admit having committed such electoral malpractices. In the circumstances I would prefer Twahirwa’s evidence to Mwesigye’s denials and I do.
Sande Wilson, of Kitohwa Kaharo, Ndorwa, Kabale District was a mobiliser for the Petitioner’s Kabale District Task Force. In his affidavit of 21.3.2001 he said that during elections campaigns, the RDC, Mwesigye kept that Task Force under constant harassment. In early March, for example, he mobilized LC Officials and the 1st Respondent’s supporters and used them to violently stop the Petitioner’s supporters from a rally at Ryakarimira Trading Centre in Rubaya. There were many other similar acts.
The said RDC kept threatening the Petitioner’s Supporters with arrest if they did not abandon the petitioner’s camp. At several rallies, he publicly and openly directed that the people should compile lists of the Petitioner’s supporters and send them to him. The said RDC also directed that ballots should be ticked in the open. On Polling day, this is what Sande found was being done at virtually every polling station he visited. Towards voting day, Sande found out that many 1st Respondents’ mobilisers were also appointed as polling officials. Those included Muhazi Maziba, Charles Byasigehraho Kaharo and Kwarikunda of Rwesasi. On the Polling day Sande monitored Polling Stations at Bufundi and Muko sub-counties. At almost every Polling station he visited, he found people being made to tick ballots in the full view of the polling officials and the rest of the public. In Bufundi, the Vice-chairperson, L.C.5, Kabale moved from station to Station directing Polling officials not to allow any agent of the Petitioner at the polling stations. That order was widely complied with as Sande found out that all the Petitioner’s agents had been chased away from their stations or arrested and jailed. Sande and colleagues complained to the Chief Administrative Officer, but he advised them to go to the Police. They did, but the police was powerless. They then decided to compile a report and send it to the said 2nd Respondent. This was the report annexed to Twahirwa’s affidavit, to which I have just referred, in this judgment. Sande said that the incidents he mentioned in his affidavit were mere examples of the irregularities which were glaringly manifest throughout the area of his operation aforementioned. In the circumstances, Sande said, the elections in their area were manifestly rigged in favour of the 1st Respondent and were not free and fair.
Sande’s affidavit was rebutted by James Mwesigye to whose rebuttal I have already referred in connection with Antelli Twahirwa’s affidavit. He said that all of the contents of Sande’s affidavit were false because the events alleged therein never occurred. My comments about Mwesigye’s rebuttal of Twahirwa’s affidavit equally apply to his rebuttal of Sande’s affidavit. I therefore reject Mwesigye’s denials as not true and accept Sande’s evidence true. Sande’s affidavit was also rebutted by Didas Kanyesigye. In his short rebuttal affidavit Kanyesigye deponed that what Sande alleged against him was completely false. He was the Vice-chairman L.C.5 of Kabale to whom Sande referred in his affidavit. Kanyesigye did not say why Sande should make up such serious allegations if the allegations were completely false. On the other hand, Kanyesigye would be expected to deny them because of the serious implications. A deputy chairman of a whole L.C.5 of a District would not admit that he had been involved in electoral offences. He would be expected to deny such allegations. In my view that is what happened here. In the circumstances, it is Kanyesigye’s denials which I find false. I accept Sande’s evidence as true.
James Musinguzi, of Ngungamo, Kayonza Sub-County, K
anungu District was in — charge of Petitioner’s elections campaigns in the South — Western Region of Uganda. In his affidavit of 23-03-2001, he said that in the course of discharging his responsibility, the team which he led was exposed to enormous intimidation, harassment and violence throughout the Region. Shortly after the Petitioner announced his intention to stand as a Presidential candidate, soldiers of the PPU were heavily deployed in the Districts of Rukungiri and Kanungu. The PPU soldiers unleashed terror and suffering on the local people believed to be the Petitioner’s supporters. These included Richard Bashaija, Sam Kaguliro, Henry Kanyabitabo and many others who complained to Musinguzi about the harassment, and he forwarded the complaints to the 2nd Respondent and Police, but no action was taken. The said soldiers were deployed and continued to harass suspected Petitioner’s supporters up to the elections. During the entire period of campaigns, Gad Buturo, GISO of Kihihi Sub-County, Peter Mugisha, a Councilor for Kambuga, Stephen Rijaga, Godfrey Karabanda, and many other Civilians on the 1st Respondent’s Task Force regularly went around with guns threatening the Petitioner’s supporters to compel them to support the 1st Respondent. Musinguzi’s team reported their activities to the 2nd Respondent to the Police and the Regional Police Commander, Stephen Okwalinga, who promised to handle the issue, and sent a Mobile Police Unit to Kanungu to arrest the said Rujagu, without success. The following day the said Regional Police Commander was ordered out of the Region on the very day the Petitioner was to address a rally in Rukungiri Town. The District Police Commander for Rukungiri had also earlier been withdrawn in the absence of any Senior Police Officer in Rukungiri Town, the PPU soldiers unleashed even more terror and in the process they shot dead one of the Petitioner’s supporters and injured 14 others without provocation whatsoever. As a result of that terror, the Petitioner’s agents feared to canvass for him as a candidate.
The affidavit was based on knowledge and belief. Belief is irrelevant since what the witness deponed to, appears to be from his knowledge. The Chart indicates that Musinguzi’s affidavit is rebutted by Captain Ndahura. My comments and finding on Captain Ndahura’s rebuttal affidavit concerning Musinguzi’s evidence are the same as what I have said in respect of other witnesses. I do not believe the Captain’s denial.
Dr. Muhumuz
a Julius is a Medical Officer attached to Bundibugyo Hospital. On 12-03-2001, he received four Polling agents of the Petitioner from Bubandi Sub-County and one from Bubukwanga Sub-County. According to their appointment letter and they also informed the Doctor that, they had been beaten by UPDF soldiers and chased away from their respective Polling Stations. He examined and treated them. They all had bruises and haematona on their limbs and trunks of variable length, and some had multiple soft tissues which according to the doctor, were inflicted as a result of repeated stroking of the cane. A copy of the medical examination report was attached to the doctor’s affidavit as annexture “A” I have seen the medical report. The injuries therein are consistent with assault and beating.
The affidavit of Patrick Matsiko Wamucoori has already been considered in another context in this judgment. He further said that at the special area of Kanyarugiri 07 Polling Station for the Army in Nyamarebe Sub-County, Ibanda Sub-District, he noticed multiple voting by Battalion Intelligence Officer and others. He pointed out this irregularity too the Presiding Officer, who asked him why he was observing voters and he replied that it was part of his job as a Journalist. The Presiding Officer confiscated Mucooris mobile phone, documents, identity card, money, belt, note book, and a pen, and instructed the Regimental Police (RP) to take him to the Quarter Guard and thereafter to the barracks for detention. The R.R did that and Mucoori was locked up in an abandoned house inside the barracks. There were broken sticks and clubs inside the house. He was released by a soldier who took him back to the army Polling Station. On the way, Mucoori met the Battalion Commanding Officer, Capt. Kankiriho, who threatened to beat him if he dared go near the Polling Station or if he revealed anything he had seen. He later recovered his property. That very night Mucoori boarded a bus to Kampala.
The Chart indicates that Mucoori’s affidavit is rebutted by Captain Nuwagaba, but it does not show where the rebuttal affidavit may be found. Orikiriza Livingston was a Campaign and Polling agent for the Petitioner for Nyarushanje, Rubabo Sub-County, Rukungiri District. In his affidavit of 23-03-2001, he deponed that in the course of campaigns Sebagenzi, the Chairman LC3 and Dezi Rwabonahe Treasurer — L.C.3 of Nyamishanje, restricted him from campaigning for the Petitioner and threatened to arrest him, until he left the Village, which he did and took refuge in Kabale Town for a week. Later, he returned to his village to continue with the campaigns in Bureno and did so secretly throughout January, 2001. Around 7-2-2001, a group of armed men moved around Orikiriza’s village at night targeting homes of the Petitioner’s supporters and ordering them to desist from supporting, and campaigning for, him. As a result of the threats, his campaign in the area became difficult to the extent that the clean up exercise of Voter’s Register was not conducted at all. The Chairman of the Movement Committee of the Sub-County, one Tushembelire Tofa, took away and kept in his custody Voters’ Cards for the dead, and those who were not picked. On polling day names of such people in the Register of Voters were ticked. On 10-03-2001, when the Petitioner’s Agents from Kampala visited the area to conduct campaigns — including Jovinta Kinaheirwe and Anne — they were denied the right to campaign by the said Dezi Rwabonahe and the PPU soldiers despite Police clearance. The Petitioner’s agents went into hiding throughout Sunday, 11-03-2001, up to 12-03-2001, the Polling day. On the Polling day, the Presiding Officials allowed people to vote using Voters’ Cards which did not bear their names and Orikiriza strongly protested, but to no avail. Thereafter Deezi Rwabonahe instructed the Presiding Officer that, whoever objected should be handed over to the PPU or Police. During that time, Orikiriza many people voting more than once without any hindrance from the Presiding Officer. These included Tofa Tushembelire, Banjo Bakuda, Mwesigwa Ronald, Tusingwire Josam, Ruzoora Julius Agaba, a Muluka Chief called Mgabe, and Gakyalo, from 3.00 p.m. to 5.00 p.m. The Presiding Officer waived the requirement for secret ballot and voters were told to tick in favour of the 1st Respondent at the desk of the Presiding Officer. A voter called Kacururu, son of Matayo, of Buneno Village, and who was under-aged, presented the Voter’s Card of Orikiriza’s brother, Davis Mashango residing in Kampala. He protested but the Presiding Officer ignored him. The Petitioner’s defeat of 47 votes to the 1st Respondent’s 299 votes was due to intimidation and the aforesaid malpractices, because the former had tremendous support in Orikiriza’s village.
The affidavit was based on knowledge and belief. Ground of belief that the Petitioner obtained 47 votes due to intimidation was given. The Chart does not show that Orikiriza’s affidavit was rebutted. His evidence therefore, remains uncontroverted. I believe it as true.
Mubangizi Denis, of Kikongi, Rukungiri District was Vice Chairman of the Petitioner’s Task Force in Bwambara Sub-County. In his affidavit of 20-03- 2001, he deponed that on 5-2-2001, the local GISO, Kajuma Warren, went to arrest him, saying that Captain Ndahura Commander of the PPU troops deployed in the District wanted him. Mubangizi went to Rukungiri Police Station to report the incident. He was allowed to return home. On 3-3-2001, three PPU soldiers arrested him at the Rukungiri rally before the Petitioner arrived. They led him to Nyabubare Barracks and beat him up. Hs spent the night there and he was released after another thorough beating. The soldiers threatened him that if he reported the assault or went to any hospital, they would kill him. For fear of rearrest, he sent one Geoffrey Byaruhanga to the Petitioner’s District Task force who reported his plight, and sent a vehicle which took him to Nyakibale Hospital. Captain Atwooki B. Ndahura, who was the Commander of the PPU deployed in Rukungiri, rebutted the affidavit of Mubangizi Dennis. In his rebuttal affidavit, dated 4-4-2001, he said that he never sent Kajuma Warren to arrest Mubangizi Dennis as the latter alleged in his affidavit. The allegations by Mubangizi that he was arrested by PPU, taken and beaten at Nyabubare Barracks, on 3-3- 2001, was false, as no PPU personnel ever left their camp in Rukungiri, on that day. The Captain did not say why Mubangizi should invent the detailed allegations he made if they were false. On the other hand it is the Captain who would have reasons for denying that PPU soldiers under his command perpetrated what so many witnesses testified by affidavit that they did.
In my view, it is Captain Ndahura’s denials which are false and the evidence of Mubangizi and many other witnesses like, him would be credible. I so find.
Ediba Justine Emokol is from Kapokin Parish, Atutur Sub-County, Kumi district. In his affidavit of 20-03-2001, he said that he was a Polling agent at Kapokin “A” Polling Station. He did not say whose Polling agent he was, but the context indicates that he was the Petitioner’s Polling agent. He said that during polling, it was the 1st Respondent’s agents guiding the elderly and the illiterate to do polling. When he protested, the Presiding Officer told him to leave things as they were as “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 L
ira 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 1
st 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.
Gi
doi 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 e
vents 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 “A” Centre, in Bungokho Sub-County, Mbale District. On 12-03-2001, before she cast her vote, she first left for home to take lunch to and check on, her children who were staying with her mother at Nauyo. On the way, she met the Bungokho Sub-County Chief, one Mutoto. He was in the company of one Masaba, a resident of Nauyo. The two men stopped her, Masaba then said “These are the people who disturb us with Kizza Besigye.” He severely assaulted Nadunga, using a hippo whip. Masaba caned her until the polythene bag containing milk and bread she was carrying fell down and he stepped on it. He also caned her hand which was holding a small booklet containing her Voter’s Card. The booklet dropped on the ground and the Voter’s Card came out. Masaba picked up the Voter’s Card declaring that Nadunga was not going to vote for the Petitioner. She was rescued by one Watira, who rebuked Masaba for assaulting her. Masaba refused to return her Voter’s Card. So, she left the scene. She reported the matter to the area LC.I Chairman, who gave her a letter to report to Mbale Police Station. She went there and made a statement. She was given Police Medical Forms for medical examination. She was examined and treated at Masaba Wing, Mbale Hospital. The Police Officer who handled her case gave a chit to the Presiding Officer, Bugema “A” Polling Station. Before Nadunga left the police station, Masaba was brought in by two men in plain clothes, who ordered that he be detained. Before she left the Police Station, two army men came and ordered for the release of Masaba, Nadunga’s assailant. Nadunga left the Police station for the polling station where she voted using the chit from the police. The Presiding Officer checked and found her name in the Voters’ Register. She voted. On her way home, she met Masaba who was in a motor vehicle. He stopped, alighted out and warned Nadunga that she should not stay in the village. He was then armed with a gun. Because of fear, she returned to Mbale Police Station and again recorded a report, and made additional statement.
The O.C. C.I.D. confirmed to her that Masaba had signed for a gun from Mbale Police Barracks. Nadunga then said:
“The O.C., C.I.D. warned me to take care of myself as it was a very bad time.”
Because of fear for her life, she had to stay away from her home. She rented a room in Mbale Municipality. Next morning, 13-03-2001, when Nadunga was going to meet her friend, one Nambuya, at West End Inn, she met Masaba in a group. He stopped and warned her that “we shall meet.” From the West End Inn, she went to Kampala and returned to Mbale on 1 9-03-2001. The affidavit is based on knowledge and belief. Since all she said in the affidavit was what she saw, belief was irrelevant.
Muhamad Masaba rebutted Nadunga’s affidavit. In his rebuttal affidavit of 2-4-2001, he denied everything Nadunga said about and against him in her affidavit. He added, however, that Nadunga is his neighbour and that she was a member of the Petitioner’s Task Force in Bungokho South Constituency. He also said that he was not a member of security forces and that he had never held a gun. It was true that he went to Mbale Police Station, but it was in respect of a case of attempted arson against his house and vehicle the night before, not in respect of Nadunga’s case. Masaba did not say why Nadunga should have made such serious accusations against him falsely without foundation. In my view, these are not the kind of allegations which one invents completely out of the blue without any grain of truth. In any case, no person would admit having committed the crimes Nadunga accused Masaba of committing, if he could get away with
it. Masaba apparently, had
‘God fathers” who spirited him out of police detention. So, he must have been confident that he would get away with what Nadunga alleged against him. In the circumstances, I would reject Masaba’s denials and accept as true Nadunga’s affidavit.
This was not a direct case of harassment or intimidation by the military. But, it shows, that some civilians who were against the Petitioner’s election were just as ferocious and active in their activities against his supporters, as it is apparent from the evidence on record, as some members of the military, LDU, PPU, L.C.s, were.
In any event army men were involved in Nadunga’s case because two of them rescued Masaba from Mbale Police detention.
Mubaje Sulaiti, of Bunewooze Village, Bubyangu Parish, Bufumbo, Bungokho
County Mbale District was the Petitioner’s supporter. In his affidavit of 21-03-2001, he deponed that he was entitled to vote at Bukwanga Store Polling Station. He went there with his Voter’s Card, arriving at 12.00 noon. On reaching the polling station, he saw the person in charge of dipping thumbs in ineligible ink holding ten Voters’ Cards, with which she moved towards the ballot box. Mubaje held her and sought assistance from the Presiding Officer as he removed the ballot papers from the lady. Before he could be assisted, two armed LDUs present at the scene intervened and assaulted Mubaje severely, removing the ballot papers away from him. One of the LDUs then put all the ten ballot papers in the ballot box. Mubaje was not allowed to vote and his Voter’s Card was forcefully removed away from him. He was chased away from the polling station by one of the LDUs, who threatened to shoot him if he did not leave.
From the polling station, he went and made a report at Mbale Police Station, referenced SD20112/312001. He was given a police medical form, which he took to Mbale Hospital, where he was examined and given medical treatment. The affidavit was based on Mubaje’s own knowledge and belief. Belief was irrelevant, since all he said in the affidavit was what he witnessed.
Arajabu Mugomba rebutted Mubaje’s affidavit. In his rebuttal affidavit of 3-4- 2001, he said that he was an LDU Constable stationed at Bufumbo Sub-County.
On polling day, he was deployed at Bukwanga “C” Polling Station as a Polling Constable and he was not armed with a gun. Mubaje Sulaiti was personally known to him. At 10.00 a.m. Mubaje arrived with one Issa Kibwiti and went to the Presiding Officer’s table. While at the table, they attempted to grab ballot papers from the Presiding Officer, one Kasakya Hakim. Mugomba said that he intervened and pushed them away. Both of them grabbed Mugomba and started assaulting him severely, thereafter they ran away. When the Chief Administrative Officer called at the polling station at 2.00 p.m. Magumba made a report to him. Mugumba denied that he assaulted Mubaje, removed ballot papers from him and put them in the ballot box. It was not true that Mubaje was not allowed to vote and that his Voter’s Card was forcefully removed from him. Mugumba also denied that he attempted to shoot at any one. I do not accept Mugumba’s affidavit for the following reasons.
Firstly, Magumba’s version of the story about a struggle for ballot papers is only slightly different from the account of events given by Mubaje.
The main difference is that Mubaje said that he tried to grab the ballot papers from a lady responsible for marking thumbs of voters who had voted, but Mugamba said that Mubaje was grabbing the ballot papers from the Presiding Officer.
Secondly, if Mubaje attempted to grab ballot papers from the Presiding Officer, it was a serious electoral offence of causing disturbance at a polling station, and the Presiding Officer, would and should have taken it seriously and have Mubaje dealt with according to the law.
Thirdly, it is Mubaje who reported the incident to Mbale Police Station if his version is true. The accused became the accuser.
Fourthly, Mubaje was apparently injured and obtained treatment at Mbale Hospital, which would be consistent with his story that he was the one assaulted.
Fifthly, if it was Mugamba who was assaulted by Mubaje and Issa, he would have been expected to report the assault to the police and go for medical treatment if it was necessary to do so. He did not. Mubaje’s story is too detailed to have been a total invention as Mugamba’s affidavit evidence implies.
Seventhly, and finally, Mugamba would not be expected to admit the kind of criminal acts Mubaje alleged to have been committed by the LDUs at the polling station. In the circumstances, I accept Mubaje’s affidavit evidence as true and reject Mugamba’s denial.
Mulindwa Abasi, of Kobol
wa Zone L.C.l, Kubuku Parish, Pallisa District, deponed in his affidavit dated 21-03-2001, that he was a monitor for the Petitioner in Kibuku Parish. After casting his vote at Kobolwa Polling Station at 7.00 a.m. he started his work of monitoring within Kibuku Parish. His affidavit then continues:
“(a) When I was at Kibuku Trading Centre, I detected that Mrs. Mujwi, the Sub-County Chief, Kibuku Parish, was issuing out some Voters’ Cards to the crowd which was around her at the Trading Centre. I was with Gideon Kalaja who was the Sub-County Monitor for Colonel Dr. Kizza Besigye. We went and challenged Mrs. Mujwi, but we were roughed up by the Local Defence Unit personnel who were heavily armed. They told us that they together with Museveni, are in power and we cannot do anything. They told us to keep quiet.
(b) There were motor vehicles which were bringing voters from villages and they were all told to vote for Candidate Yoweri Museveni. Some soldiers were traveling in a mini bus all around the Trading Centre where the S
ub-County Chief, Mrs. Mujwi, Haji Nangeje Abubakali, Sub-County Councilor Maiiki Kitente, and Nyaigolo Peter L.C.II Chairman, were telling the people that if they vote for Besigye, the soldiers will kill them. There were three polling stations within the Trading Centre, namely, Kobolwa, Kibuku Secondary School and Ginnery Polling Station. Mrs. Mujwi and her group were going round these polling stations giving Voters’ Cards even to those who had already voted. I complained to the Presiding Officers in the 3 polling stations, but in vain. Instead I was being laughed at.
(c) All the Polling Stations I went to, there were voters who could not vote because on reporting they were told that their names had been ticked and they were told they were not supposed to vote. When they complained they were chased away.
(d) Because of the complaints I raised during the elections, my life is under threat as a result and confined to my residence all the time. I am being told by Museveni’s supporters that I am a rebel. I am under great fear for my life.
(e) The contents hereinabove are true and correct to the best of my own knowledge and belief.”
Since what Mulindwa said in his affidavit was what he saw and heard, belief is irrelevant.
The affidavit of Mulindwa Abasi is rebutted by three witnesses for the 1st Respondent. The Chart indicates that they are Malik Kitente, Teopista Mujwi and Haji Nangeje. In his rebuttal affidavit, Kitente did not say that he was a Sub-County Councilor as Muhindwa had described him. He denied that on polling day, he in the company of Mujwi, Nangeje and Nyaisolo, went around telling people that if they did not vote for the 1st Respondent soldiers would kill them. Nor did he go to the polling station giving Voters’ Cards to those who had already voted. He further said that he cast his vote at 9.00 a.m. at Ginnery Polling Station and returned home to make arrangements for the burial of his late grandfather. Thereafter he left with his family for the burial in Nasanga Village, seventeen miles away.
In her rebuttal affidavit, Teopista Mujwi said that she was the Sub-County Chief of Kibuku Sub-County, and was an election supervisor during the Presidential elections. She denied that Mulindwa challenged her for issuing cards to a crowd at Kibuku Trading Centre. She was not an officer for issuing cards. Nor did she tell Mulindwa that she was with the 1 Respondent who was in power and there was nothing he could do about it. On polling day she was extremely busy supervising all the 24 polling stations in her Sub-County. She did not meet with Nangeje, Kitente or Nyaigolo on that day. Nor did she tell people that if they did not vote for the 1st Respondent, soldiers would kill them.
In his rebuttal affidavit of 5-4-2001, Haji Abubakali Nangeje said that Mulindwa Abasi was mentally unstable. On polling day, Nangeje said, he cast his vote at 8.00 a.m. at Kibuku Senior Secondary School Polling Station. He denied that together with Mujwi, Kitente and Nyaigolo they went around Kibuku Trading Centre telling people that if they did not vote the 1st Respondent, soldiers would kill them. It was not true that they went around polling stations distributing Voters’ Cards to people who had already voted. These three witnesses denied what Mulindwa said in his affidavit in a similar manner. The only difference is Nangeje’s allegation that Mulindwa was mentally unstable. This appears to be a suggestion that Mulindwa made the allegations due to his mental condition. The other two witnesses, who said they knew Mulindwa well, said nothing about his mental health. Muhindwa made serious allegations of electoral malpractices against the three rebutting witnesses. They have not said why Muhindwa should have picked on them if what he deponed in his affidavit was a fabrication. On the other hand the three of them being officials of one kind or another, would certainly not wish to be associated with electoral malpractices. They would therefore, be expected to deny that they played any role in such malpractices. Their denials are normal. In the circumstances, I would prefer Mulindwa’s affidavit evidence to the denials by Kitente, Mujwi, and Nangeje, and I do.
Arinaitwe Wilcen was the Petitioner’s coordinator for Bufundi Sub-County, Ndorwa, Kabale District. In his affidavit of 21-03-2001, he deponed that during the week before polling day, they tried to hold a rally at Kyevu in Nyamirango parish, but they were chased away by the L.C.I Chairman, Barangirana, acting with the assistance of L.C.l officials from the village and the neighbourhood.
On 11-03-2001, as he returned from distributing appointment letters to the Petitioner’s Polling agents, he found many road blocks had been set up all the way. He was able to dodge three, but at the fourth one near the lake shore, where Arinaitwe had left his boat, he found the L.C.I Councilors manning the road block. Bangirana and Inyahureba were among them. They had already arrested Arinaitwe’s boat “driver.” He was also arrested on sight, severely beaten, stripped naked and taken to the home of the L.C.II Chairman. Arinaitwe’s money and documents were also removed from his pockets. At the L.C.II Chairman’s home, he was tortured to reveal the names of the Petitioner’s agents, so that they would also be arrested. They got the names from the documents removed from him, anyway. Arinaitwe was then taken to the home of David Mirasanyi, MP of the area. The M.P directed people who had brought Arinaitwe to share his money, and then take him to the Sub-County Headquarters. He gave them a motor vehicle to carry Arinaitwe. On the way, one Nyangire, an L.C.I Defence Secretary who had by then joined the group, suggested that they should kill Arinaitwe and throw his body in Lake Bunyonyi. They instead decided to break up into two groups. One group to take him to the home of Local GISO, and the other to hunt down the Petitioner’s agents, using the list they had obtained from Arinaitwe. From the GISO’s home, he was taken to the Sub-County Headquarters. At the headquarters, he was beaten up all the way, and he was directed to make a statement and thrown into jail.
On 1
2-03-2001, he was moved to a cell in Kabale Police Station, where he was held until 14-03-2001. He was released on Police Bond. He was not charged with any offence. At Kabale Police Station, he found a number of the Petitioner’s agents in detention, including the Student’s Guild President of the African College of Commerce. In the circumstances, Arinaitwe never voted.
The affidavit is based on knowledge and belief. Since the deponent said only what he witnessed, belief is irrelevant. The Chart indicates that Arinaitwe’s affidavit is rebutted by David Mulasanyi, but it does not indicated where the re
buttal affidavit may be found.
Matsiko Armstrong was the Petitioner’s Polling agent at Omurakoko and campaign agent for Kabale. In his affidavit of 21-03-2001, he deponed that whenever he and other Petitioner’s agents went to campaign in Kabale District, L.C. officials constantly harassed them, mobilized people to throw stones at them, dispersed their rallies, making it virtually impossible to campaign in places, such as Rubaya and others. On polling day, he voted and proceeded to Rurembo for his duty as a Polling agent. As he entered the polling station within a school fence, a group of men led by one Kugaga, who knew Matsiko as a supporter of the Petitioner, confronted him and demanded that he (Matsiko) should go far away. When he explained that he was a Polling agent, they replied that they were self sufficient and did not need any “visitor.” At this polling station when Matsiko refused to leave, they started kicking, boxing and trampling on him. They wounded him on the eye and hand, and tore his jacket. He managed to go away as they called a crowd to arrest him for being a Petitioner’s agent. They shouted that if the Petitioner’s agents went to the polling station, they should be killed. On the way, he met other agents of the Petitioner, whom he warned not to step in Rurembo Polling Station. He reported the matter to the Police Station, where he recorded a statement and got a Police Medical Form. The Police said that they could not go to Rurembo because they had no fuel. The Chart does not show that the affidavit of Matsiko Armstong is rebutted. His evidence, therefore, remains uncontroverted. I accept it.
James Birungi Ozo was a District Monitor for the Petitioner, Kamwenge District. His affidavit dated 22-03-2001 has already been referred to in this judgment. He said that on 8-3-2001, he was shot at by Captain Kankiriho, the C.O. of Behanga Barracks to prevent him from campaigning for the Petitioner. The shooting was in the presence of Byonduyire (whose evidence to the same effect I have already referred to), Engineer Dan Byamukama, and L.C.lll, Movement Chairman. The L.C.lll Movement Chairperson is the one who identified Ozo to captain Kankiriho, who had prior knowledge of Ozo’s campaign for the Petitioner. Fortunately the bullet did not hit Ozo, but passed between his legs as he entered his car. He drove off. He reported the incident to Ibanda Police Station. A file was opened and he was told that the police would investigate the matter.
Earlier on the same day, Ozo was stopped from campaigning for the Petitioner by armed UPDF soldiers at Matsyono Trading Centre. Ozo’s team of seven people were arrested and ordered to leave at gun point. The Petitioner’s supporters were sent away and the rally stopped. On the same clay, five members of the Petitioner’s Ntara Sub-County Task Force, were arrested by a GISO, and detained at Ntara Police Post and later released without any charges against them.
Ozo said that the Petitioner’s Chairman of Kamugye Sub-County Task Force, one Gervazio, was attacked at his home by UPDF soldiers and L.C.’s and his house was burned and, thereafter, went into hiding. Gervazio could not thereafter perform his duty, especially identifying ghost voters on the Voters’ Roll, which exercise was going on at the time. Nor did he monitor elections on polling day.
The Petitioner’s Publicity Secretary, one Muhwezi Henry was picked up from Kamwenge Town by escorts of the MP for Kibale County, Captain Byaruhanga and taken outside town, where he was beaten and asked to denounce the Petitioner. Thereafter he was attacked at his home in Kakinga Parish by Abdalla and the Parish Chief and Presiding Officer of Kakinga. His house was shot at, but he escaped. He left the District and took refuge in Fort Portal. The affidavit is based on knowledge and belief. Some parts also appear to be based on information without the source thereof being disclosed. Only what is based on knowledge of the deponent is valid. What appears to be based on information is not. The Chart does not show that Ozo’s affidavit is rebutted. So, his acceptable evidence stands uncontroverted. I accept it.
Patrick Kikamberwa, of Kanyegaramire, Kanyenda Parish, Kamwenge District, was a polling agent for the Petitioner at Kanyegaramire Polling Station. He deponed in his affidavit that he and other fellow agents, of the Petitioner were threatened two days before polling by the Parish Chief one Ganyenda and son of Byabagambi that they would be burnt to death if they appeared for the Petitioner as his agents on polling day. He said that they feared and did not work as polling agents but went to vote. At Kanyegaramire Polling Station where Kikamberwa went to vote, he was told by one lady, Kasiime, the NEM Group Polling Monitor to tick the 1ST Respondent. The Presiding Officer, Kyampi, asked him to do so in front of him. He refused, but they followed him up to the basin to see whether he would vote for the Petitioner. Due to fear and threat, he voted for the 1st Respondent against his will. Mugisha, a voter at the same polling station was also forced to vote for the 1st Respondent, but he got angry and left the polling station without casting his vote. Whoever was suspected to be a supporter of the Petitioner would be forced to tick the ballot paper in front of them or the person was being followed to the basin. Kikomberwa’s wife, Prossy, did not vote because her Voter’s Card was confiscated by L.C. officials who knew that she was the Petitioner’s supporter. One Mulefu later returned her card and informed her that he had ticked for the 1st Respondent. The affidavit was based on knowledge and belief, but belief is irrelevant since the deponent said what he witnessed. The Chart does not show that the affidavit is rebutted.
The evidence of Kikomberwa therefore, stands uncontroverted and I accept it.
Moses Tibanyendera of Kyakarata parish, Kahuge Sub-County, Kamwenge District, was the head of the mobilization desk and polling agent for the Petitioner in Burembo. In his affidavit of 22-03-2001, he deponed that on 28-02-2001, Hon. Capt. Byaruhanga, MP and his escorts, one of whom was Noah Kassim, went to Kyakarata and threatened him with death if he did not denounce the Petitioner. They tore down all the Petitioner’s posters which had been hang up in Kyakarata Parish. Tibanyendera reported about the incident to Ntabona in the office of their Sub-County Task Force for the Petitioner at Kahuge Trading Centre. While he was there, Mutegeki, Capt. Byaruhanga’s driver arrived wielding a gun and picked them up, saying that they were wanted by the L.C.lll Chairman for Kahuge, Mukidadi Hajji. On arrival where Mukidadi was, he told them that he was arresting them because they had abused him and had reported Capt. Byaruhanga to have torn down the Petitioner’s posters at Kyakarata. Byaruhanga’s car immediately arrived with one Kassim Noah who beat Tibanyendera and his colleagues badly. They were repeatedly told to denounce the Petitioner. Thereafter they were driven to Kahunge Sub-County cell for detention but the Sub-County Chief refused to detain them, because G. Turwanwe the Sub-County Task Force Chairman for the Petitioner had just been detained there and released thirty days previously. The affidavit was based on knowledge and belief, but since the deponent gave account of what he witnessed, belief is irrelevant. The Chart shows that Tibanyendera’s affidavit is rebutted by Silver Mugeriyi but it does not show where the rebuttal affidavit may be found.
Evelyne Nzige’s affidavit has already been referred to in this judgment. She deponed that she received an anonymous letter on 11-03-2001, threatening her to go with the Petitioner or die if she ever appeared at Kaburaisoke Polling Station as the Petitioner’s polling agent. She sent her son to one of Kamwenge Streets, and he confirmed the threat to be real. She was aware that 5 of the Petitioners Polling agents had been arrested and detained by the Army in Kamwenge Sub-County. She feared to work as a Polling agent at the Polling Station. Geoffrey Byamukama, L.C.lll Chairman, demanded that she crossed to the 1st Respondent’s camp or hand over her Voter’s Card to him or serious action would be taken against her. She chose to hand over her Voter’s Card to Byamukama through her son. She received a message from him that he was happy and that nothing would subsequently happen to Nzige. The affidavit is based on knowledge and belief only what she is based on her knowledge is admissible. She did not give the source of her information about arrest of five polling agents. That part of the affidavit is inadmissible. The Chart indicates that Nzige’s affidavit is rebutted by Silver Mugenyi but it does not show where the rebuttal affidavit may be found.
Kiiza Davis of Bukundere, Busingye, Kamwenge, was the Petitioner’s Polling agent. On 11-03-2001, he was in Kamwenge Town with his brother, Peter Wasswa and Robert, a friend, when he was arrested by Kenneth and Friday, LDUs. He was taken to a railway line, where he found another Polling agent Faida Charles arrested. At 10.00 p.m. 2nd Lt. Richard, instructed the LDU to remove their identity cards. At 1 .00 am., they were taken in Katusabe’s car to Kamwenge Army Barracks. There, Kiiza and his colleagues were put in a ditch/trench and guarded by two soldiers. On the Polling day, at 10.00 a.m., Kizza was taken to the Polling Station at Kamwenge Primary School, Block I where the same Lt. Richard ordered the Presiding Officer to tick Kiiza’s ballot paper in favour of the 1 Respondent. He was then given the ballot paper and two armed soldiers escorted Kiiza to the ballot box to cast his vote. Thereafter, he was taken back to the barracks for detention. After polling, he was released at about 6.00 p.m. As a result Kiiza did not do his work as a Polling and monitoring agent for the Petitioner. He also tailed to deliver, as he was supposed to do, letters of appointment as the Petitioner’s Polling agents to Manyindo Robert, Herbert Vincent Kagonyera, Fede Kagonyera, and Kahesi. Faida Charles with whom Kiiza had been arrested also had his ballot paper ticked for him in favour of the l Respondent.
The affidavit was based on knowledge. It is admissible. The Chart does not show that Kiiza’s affidavit is rebutted. His evidence therefore, stands uncontroverted, and I believe it as true.
Betty Kyampaire of Kamwenge Town, Kamwenge District, was the District Monitor for the Petitioner. In her affidavit dated 22-03-2001, she deponed that while monitoring with colleagues, James Birungi and two others, she discovered that at Bushinge Primary School Polling Station, one Bwengye, L.C.IIl Vice Chairman had stuffed 300 ballot papers in a ballot box. She saw destroyed ballot papers at the same polling station. Some were stained with ink. Ticking of ballot papers was done in front of the Presiding Officer, Mwesigye.
At Kitonzi Primary School Polling Station, where the Petitioner’s agents had been detained, rigging was rampant. Kyampaire saw some people voting ten times without dipping fingers in ink. Kyampaire further said that one Rugirinyangi Eric, Movement L.C.I Chairperson for Kamwenge, went around at every polling station warning the officials, where the Petitioner’s agents were monitoring, so that they should be careful when they rigged. The same Rugirinyangi rode on a bicycle to all polling stations in Kibale County harassing all the Petitioner’s Polling agents. At Kyabondara, Kanyegaraire Polling Station where the Petitioner had much support, Kyampaire found the Presiding Officer and Polling officials maliciously spoiling ballots cast for the Petitioner by adding a small tick on the 1st Respondent’s picture. As a result, most of the Petitioner’s ballots became invalid. The same thing happened at Nkongero Primary School Polling Station, where the Petitioner had 40 votes, 38 were made invalid and only two remained. Kyampaire saw stuffing of ballot boxes by L.C. officials and members of the 1 Respondent’s Task Force, and ticking from the table was common at most polling stations in Kamwenge Sub-County where she monitored the elections. Her fellow agents, Kiiza Davis, Faida, Wasswa and Manzi had been arrested and detained the night of 11-03-2001.
She had just handed over to them their appointment letters and others, which they had to distribute to their colleagues. This corroborates what Kizza Davis said about his own arrest together with colleagues of his. Kyampaire said that she had to appoint fresh polling agents for Kitonzi and Kaburaisoke Polling Stations at around 10.00 a.m. At Kanyegaranure Polling Station, she saw one Mrs. Peace Tusingwire being forced to tick for the 1st Respondent at the Presiding Officer’s table. At the same polling station, Hope Tukahirwa was forced to tick for the 1st Respondent at the table, but she refused, and she was followed up to the basin, to see whom she would vote for. One Kasiime, an official at that polling station, insisted that she should tick the 1st Respondent, and she did so. At Kamala Polling Station, one Charles, the Petitioner’s polling agent was chased away by a group of men including Eric Rugirinyangi, Movement L.C.l Chairman, Chairman L.C.lI of Nyabami Leo, and Chairman L.C.V, Misekeera, who were moving with an armed soldier. Kyampaire further said that earlier during the campaign, she was constantly harassed threatened and her shop in Kamwenge Town was vandalized, door shattered, property looted by a group of hooligans headed by the said Rugyeranyengi, Karela, Capt. Charles Byaruhanga, the MP for Kibale County. The Petitioner’s Task Force Offices were constantly closed down and reopened, and Petitioners posters torn down by people from the 1st
Respondent’s Task Force. The affidavit was based on knowledge and belief. Since what the deponent to and said was from her knowledge, belief is irrelevant. The Chart does not show that Kyimpaire’s affidavit was rebutted. The evidence, therefore, stands uncontroverted. I accept it as true.
Alex Otim, of Gulu, said in his affidavit of 22-03-2001, that on 1 2-03-2001, he went to vote and to monitor the elections in Paico Division (Sub-County). He did not say whether he was a monitor for any of the Presidential Candidates, but the context shows that he was the Petitioner’s agent. He said that while he was at Paico R7 Primary School Polling Station, he and other fellow agents found that two soldiers were deployed at each polling station. The soldiers started forcing voters, especially old ones, to vote for a candidate of the soldiers’ choice. The soldiers involved in such malpractices were Opoka Denis, Maj. Rasheet, Dumba Julius, and Ocen Francis. The Petitioner’s agents chased away the soldiers, but the soldiers returned armed and using an armoured army vehicle (Mamba). They assaulted Otim and Okello, arrested them, and released them at 8.00 p.m. after the polling had closed. The affidavit was based on knowledge and belief since the deponent said only what he witnessed, belief was irrelevant. Otim’s affidavit was rebutted by Nyeko Charles, who was the Presiding Officer at Paico R7 School Polling Station. In his rebuttal affidavit dated 1-4-2001, he deponed that it was not true, as alleged in Otim’s affidavit, that soldiers were deployed at the polling station, nor did any soldier force any one to vote at all. On polling day, no military vehicle went to the polling station, and no soldier assaulted or arrested anybody at that polling station. The election was conducted in conditions of peace, freedom and security. I do not believe Nyeko’s denial of what Otim deponed in his affidavit for the reasons, first, that it is difficult to imagine that Otim invented what he said, including names of four soldiers, whom he said forced old people to vote for candidates favoured by the soldiers and that the soldiers ran to the barracks and returned armed and had an armoured army vehicle. Second, Nyeko would not be expected to admit that malpractices alleged by Otim occurred under his very nose. It was also against the law that armed soldiers should be at a polling station, which Nyeko is presumed to known. For these reasons, I believe Otims evidence as true and Nyeko’s denials as false.