THE REPUBLIC OF UGANDA
IN THE CONSTITUTIONAL COURT OF UGANDA, AT KAMPALA
CORAM: HON. LADY JUSTICE A. E. N. MPAGI-BAHIGEINE, DCJ
HON. LADY JUSTICE C. K. BYAMUGISHA, JA
HON. LADY JUSTICE M. S. ARACH-AMOKO, JA
CONSTITUTIONAL APPLICATION NO. 6 OF 2011
[Arising from Constitutional Petition No. 7 of 2011.]
2. DAN MUGARURA }::::::PETITIONERS/APPLICANTS
2. ELECTORAL COMMISSION}:::::::::::RESPONDENTS
Constitutional law – application for an injunction restraining the respondents from holding presidential , parliamentary and Local Government elections - Article 28 (1), 50 (1) and (2), 126 and 137 of the 1995 Constitution; Section 98 of the Civil Procedure Act, Rules 10 and 23 of the Constitutional Court (Petitions and References) Rules; Rules 2 (2).
The applicants brought this application seeking orders to stay the 2011 parliamentary, presidential and Local Government elections. The grounds advanced in support of this application include inter alia the following; that there was bribery of voters by the incumbent president, that the voters’ register was bloated, 50,000 voters without photographs, gerrymandering the ballot paper for the Presidential election to favour candidate Yoweri Kaguta Museveni, the sitting arrangement at the polling stations, bribery of voters by candidate Yoweri Kaguta Museveni, Political Education programme popularly known as Mchaka Mchaka, Illegal recruitment, training and deployment of the so called ‘Crime preventers’ countrywide, massive deployment of Security Forces to intimidate voters to vote for the NRM or candidate Yoweri Kaguta Museveni or abstain from voting, abuse of public resources to fund NRM campaigns by using a supplementary Budget to pay shs. 20 million to each MP; Shs. 150,000 to each Local Council Official and compensation to Mukura victims, Lack of an independent Electoral Commission.
The Constitutional Court disallowed the application.
RULING OF THE COURT
This is an application brought by the above Applicants under Article 28 (1), 50 (1) and (2), 126 and 137 of the 1995 Constitution; Section 98 of the Civil Procedure Act, Rules 10 and 23 of the Constitutional Court (Petitions and References) Rules; Rules 2 (2) and all enabling laws.
In the application, the Applicants seek orders that:
A temporary injunction do issue restraining the second Respondent from conducting the Presidential, Parliamentary and Local Government Elections until after the disposal of Constitutional Petition No. 7 of 2011.
(b) Costs of this application be provided for.
The grounds of the application are that:
The Applicants filed Constitutional Petition No. 7 of 2011challenging the constitutionality of conducting the said elections while several breaches of the Constitution continue, and the prima facie Petition is still pending.
If the second Respondent conducts the said elections while the impugned actions of the Respondents continue, irreparable breach of the Constitution and International law and violation of the human and constitutional rights of the Citizens of Uganda which cannot be atoned in damages will be occasioned.
The interest of justice requires that the said elections be stayed till the Constitutionality of the Respondents’ actions regarding the conduct of elections is determined by the Constitutional Court.
If the orders sought are not granted, the Petition will be rendered nugatory and the Petitioners will be deprived of their right to access Courts of Law and to a speedy and fair adjudication of their rights.
The application is supported by the affidavit of Joseph Bossa, the first Applicant, the Secretary General of the Uganda Peoples Congress (UPC); a Political Party duly registered in Uganda and one of the participants in the elections.
Three affidavits were filed on behalf of the 1st Respondent by Daniel Gangungo, a State Attorney, Asan Kasingye, the Assistant Inspector General of Police, and Male John Baptist, the Executive Director of the Uganda Bureau of Statistics (UBOS).
Engineer Dr. Badru M. Kiggundu, the Chairperson of the 2nd Respondent filed an affidavit on its behalf.
All of them opposed the application. Counsel for both sides agreed on the Principles applicable to applications of this nature, namely, that the applicant must satisfy Court that:
The Applicant has a prima-facie case with a probability of success.
Irreparable injury will be occasioned to the applicant which cannot be adequately compensated by an award of damages, if the application is not granted.
If Court is in doubt, it will decide the case in the balance of convenience.
Mr. Peter Walubiri, learned Counsel for the Applicants submitted that there were serious issues which ought to be investigated by this Court in the main Petition. Therefore, pending that inquiry a temporary injunction ought to issue. These concern the sovereignty of the people of Uganda, how and by whom they want to be governed. This can only be done through free and fair elections. He went on to point out the actions of the Respondents which in his view would not lead to a free and fair election as envisaged by the Constitution and which Court needs to inquire into and, in the meantime put to a halt. These were:
A bloated voters’ register.
2) 50,000 voters without photographs
3) Gerrymandering the ballot paper for the Presidential election to favour candidate Yoweri Kaguta Museveni.
4) The sitting arrangement at the polling stations.
5) Bribery of voters by candidate Yoweri Kaguta Museveni.
6) Political Education programme popularly known as Mchaka Mchaka.
7) Illegal recruitment, training and deployment of the so called ‘Crime preventers’ countrywide.
8) Massive deployment of Security Forces to intimidate voters to vote for the NRM or candidate Yoweri Kaguta Museveni or abstain from voting.
9) Abuse of public resources to fund NRM campaigns by using a supplementary Budget to pay shs. 20 million to each MP; Shs. 150,000 to each Local Council Official and compensation to Mukura victims.
Lack of an independent Electoral Commission.
Regarding irreparable injury, Mr. Walubiri submitted that the damage that can unfold if this Court does not stop this electoral process is so grave that no amount of damages can atone for it.
On grounds 3 and 4, Mr. Walubiri submitted that this Country is headed for a political crisis if elections beginning 18th February 2011 are not free and fair. The interest of Justice therefore requires that the conduct of such elections be stayed till the determination of the Petition.
Mr. Henry Oluka, the Principal State Attorney who represented the 1st Respondent disagreed strongly. He submitted that the application is unconstitutional and misconceived. That, the application is trying to stop the commands of the Constitution and prevent the people of Uganda from exercising their Constitutional rights on how they should be governed and who should govern them. The right to vote is sacrosanct and cannot be fettered by anybody including the Applicants. If the elections are stayed, there will be a constitutional crisis because the terms of the President, the Members of Parliament and Local Government Officials are about to end.
On the creation of districts, Mr. Oluka submitted that the law on creation of districts is clear. No individual can wake up one day and create a district. In any case, candidates are free to make promises during campaigns. This allegation is therefore not only speculative but is frivolous and vexatious as well.
Mr. Oluka denied that there is any ‘Mchaka Mchaka’ training going on in the Country.
Regarding Crime preventers and massive deployment of security forces, Mr. Oluka contended that under the Constitution and the Police Act, the Police force is obligated to preserve law and order, to protect life and property and to co-operate with the civilian population in the course of their duties. The Police has over the years cooperated with the population and used community policing to boost their capacity and efforts in order to ensure free and fair elections. The Applicants have therefore not made a prima facie case.
On abuse of public funds, he submitted that the supplementary Budget was proposed by the Executive and passed by Parliament. It should not become a subject of litigation before this Court because of the doctrine of separation of powers.
Regarding irreparable injury, he submitted that this question does not arise in the circumstances of this case because there are other avenues for redress. The Constitution provides for election Petitions for those who are aggrieved by the results. In any case, the entire 30 million population of Uganda have not asked the Applicants to complain on their behalf.
On balance of convenience, Mr. Oluka was of the view that there is nothing to warrant the stopping of these elections which Ugandans have been contemplating with favour. He cited the case of Okello Okello Livingstone & Others Vs The Attorney General and the EC – Constitutional Petition No. 4 of 2005 (unreported) where this Court found it unworthy to stop the conduct of the Referendum.
His submission on this point was that, where events have not yet occurred, Court cannot issue a temporary injunction. He cited the Ruling of Hon. Justice A. Twinomujuni, JA, Constitutional Application No. 38 of 2010. George Owor Vs The Attorney General and William Okecho in support of this proposition.
Mr. Kandeebe Ntambirweki, learned Counsel for the 2nd Respondent associated himself with the submissions of Mr. Oluka.
Arguing grounds 3 and 4, Mr. Kandeebe contended that the Constitution creates various bodies including the 2nd Respondent to perform various functions. Anybody who is aggrieved by the conduct of the Electoral process is free to complain to the 2nd Respondent under Article 61 (1) (f) of the Constitution. A person who is aggrieved by the decision of the 2nd Respondent may appeal to the High Court. The framers of the Constitution were therefore mindful that there were other avenues for challenging the electoral process if one was not satisfied with the decision of the 2nd Respondent.
The time frame for handling the elections is also fixed by law. In the case of Presidential elections, a person who is aggrieved may petition the Supreme Court under Article 104 of the Constitution; and the person must be a candidate. The election can be annulled if the challenge is successful and fresh elections held within 20 (twenty) days under Article 104 (6). The Constitution is therefore emphatic not to cause a constitutional crisis. The procedure is clear. The 2nd Respondent first, then the High Court, and this Court, for interpretation of the Constitution. It is only the High Court that can stop these elections.
None of the Applicants are candidates. There are 8 (eight) Presidential candidates, several Parliamentary candidates and Local Government Official candidates. They are not complaining that the electoral process is not free and fair.
The Uganda Tax Payer has spent over 800 billion shillings in preparation for the forthcoming elections. So, the balance of convenience is in favour of holding the elections rather than halting them. Further, those points can be raised by the Applicants to set aside the elections.
Besides, Petitions take long to be disposed of by Courts. If the injunction is granted, it might take the Court beyond May 2011 to dispose of the Petition. This would plunge this Country into unconstitutionality and anarchy.
Finally, the Applicants are merely speculating. The allegations are not serious enough to warrant the stoppage of elections. Regarding the figures, Mr. Kandeebe was also of the view that it is not proper to rely on unorthodox figures to halt the forthcoming elections. The figures relied on were mere projections and the difference between them is negligible.
On the 50,000 voters without photographs, Mr. Kandeebe submitted that Photographs were not a Constitutional or legal requirement. It was just out of transparency that the photographs were introduced. Besides, the number of voters affected is not alarming and it is spread all over the country. There are also other ways of identifying a person such as passports, driving permits and generally Ugandans know each other. The information on the register also includes the name, age and name of parents of the voters. This technical error by the 2nd Respondent should not therefore be used to deny anyone the right to vote.
On gerrymandering the names of the Presidential Candidates on the ballot paper, Counsel submitted that this does not raise a question for Constitutional interpretation. Secondly, the Presidential Elections Act itself is silent on it. Thirdly, the arrangement was widely circulated in the local newspapers and none of the candidates questioned it.
It was only one Political Party, UPC, which questioned it and the 2nd Respondent handled that complaint. UPC did not appeal against the decision by the 2nd Respondent. Fourthly, the burden is on the Applicants to prove that the names should be arranged alphabetically beginning with the surname. The Applicants have not discharged that burden.
The allegation that candidate Yoweri Kaguta Museveni will be favoured by voters is therefore speculative.
On the sitting arrangement at polling stations, Mr. Kandeebe submitted that it is lawful. Further, everybody can see what is happening at the Presiding Officers’ desks even under the new arrangement. In any case, due to the large number of candidates, it would be impossible to accommodate all the agents around the same desk.
On bribery of voters using creation of new districts, Mr. Kandeebe submitted that promising to create a new district per-se is not a bribe. They have to be gazetted and Parliament might even refuse.
Regarding lack of independence on the part of the 2nd Respondent, Mr. Kandeebe argued that the 2nd Respondent is a body corporate and independent. The 2nd Respondent has dealt with all complaints referred to it so far. In any case, its decision is not final. Most importantly, the Applicants have not shown the criteria they have used to establish that the 2nd Respondent is not independent. It is therefore a naked accusation.
The application should be dismissed with costs to the Respondents.
Ms. Lorna Juliet Amutojo made a belief reply on behalf of the Applicants where she reiterated their earlier submissions and emphasised that the cost of going into a flamed electoral process might be more than that of halting it.
After careful consideration of all submissions from both sides and the law applicable thereto, we find that the Constitution in Article 61 (1) (f) and the Electoral Commission Act (As amended), make provisions for dealing with complaints concerning the electoral process raised before and during the voting exercise. Any person with a complaint first lodges it with the Electoral Commission. If dissatisfied with the decision of the Electoral Commission, the person can appeal to the High Court whose decision is final.
Another avenue available to anyone who is dissatisfied with the conduct or the process of elections is the option of filing a petition to challenge the outcome of the elections before the competent Courts.
We also note that halting an election at this late hour would not be appropriate under the circumstances, considering that the country at large has already spent considerable resources in preparation and is attuned in anticipation of the exercise.
For those reasons, we think that the Applicants have not made out a case to warrant the halting of the ongoing electoral process. We accordingly dismiss the application.
Costs shall be in the cause.
Dated at Kampala this 11th day of February, 2011.
E. N. MPAGI-BAHIGEINE
DEPUTY CHIEF JUSTICE
JUSTICE OF APPEAL
M. S. ARACH-AMOKO
JUSTICE OF APPEAL