{UAH} Uganda's supreme court set a dangerous precedent---Anne Mugisha

When the petitioner's lawyer in Election Petition No. 1 of 2001 turned to cataloguing the violence of the election he stated that the President-elect Museveni had deployed the army nationwide. The Presidential Protection Unit (PPU) was singled out for harassing and intimidating the petitioner's supporters especially in southwestern Uganda.

Peter Walubiri who led this part of the petitioner's case stated:

'My lords, we have evidence in form of affidavits deponed by victims in many parts of the country to show how the first respondent (Museveni) used the PPU to assault, intimidate and threaten voters to vote for the first respondent and cause disharmony and a breach of peace throughout the entire campaign period in Rukungiri district and other parts of the country. In one incident, a one Baronda Johnson was shot and killed... We have attached a copy of the Uganda Government death certificate which shows that he died of bleeding resulting from gunshot wounds. All this was reported by your petitioner (Besigye) to the Electoral Commission (the 2nd respondent). My lords, the Electoral Commission chairman (Aziz Kasujja) was concerned and I would dare say, gravely about the activities of the PPU and the military who were threatening to wreck the entire electoral process. The chairman accordingly wrote a passionate appeal to the first respondent to intervene and save the democratic process from disintegrating. Kasujja said in his letter that the Electoral Commission "wishes to appeal to you as the head of state and the fountain of honour to intervene and save the democratic process from disintegrating."

'We expect that the deployment of the PPU is made where the President is expected to be. They were telling the incumbent to attend to a very grave situation and there was no reaction from the first respondent... there is no evidence in reply to the petitioner's affidavit by the first respondent that he addressed the situation which had unfolded. On the contrary, we have evidence that the PPU remained in Rukungiri up to election day and continued to terrorise the population. The PPU spilled over into Kanungu district after Rukungiri was too small for them. My lords, in volume 2 of your petitioner's affidavit, there are a number of affidavits alluding to the continued intimidation by the PPU.'

The New Vision chronicled Walubiri's statement - Some of the affidavits on election violence were sworn by...Patrick Matsiko wa Mucoori, Bernard Matsiko, Sam Kakuru, Henry Kanyahitaho, Nathan Kato, John Kasamunyu, Richard Bashaija and others who stated that the army, especially the PPU under Capt Ndahura, beat up people suspected to be Besigye's supporters. Mbarara Municipality MP/ Besigye's wife, Winnie Byanyima, submitted an affidavit detailing how youth MP Rabwoni Okwir was arrested at Entebbe International Airport. Byanyima deponed the she recognized Capt. Moses Rwakitarate, who headed the Okwir arrest operation. The lawyer said Okwir, who was abducted on February 20, was not charged with any offence in any court. Walubiri also read out Okwir's affidavit in which he revealed that he had been tortured, forced to sign certain documents by some senior UPDF officers, his telephone conversation with Museveni, how his residence at Bunga was under siege by the PPU/CMI and how he was forced to flee into exile for his safety. The affidavits also described the deployment of Major Roland Kakooza Mutale with his forces under the Kalangala Action Plan.

At some point Chief Justice Benjamin Odoki asked the Solicitor General Peter Kabatsi how he thought the killing of Baronda, had affected the election. I was astounded by his sarcasm when Kabatsi responded that the impact of Baronda's murder was that the petitioner had lost one vote!

By and by the submissions for the petitioner and the respondents were completed and now we waited for the judgement with bated breath. Rumors abounded that the judges had failed to reach a unanimous finding and that they were under pressure from the executive to conclude the hearing a certain way so that things would go back to normal, that the President warned of more violence if the election results were not upheld. All we could do was wait.

The courts finding?
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 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.

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 .

And there we had it! It was all subjective! Everyone agreed that the election was stolen but 3 judges out of 5 disagreed that the stealing was substantial! That was like saying a chicken thief is not guilty if he left you some chickens! 3 of the 5 judges also felt that the president-elect was blameless, but what about the the opinion of the other two members of the bench? We now knew that in Uganda there was no objective means of ascertaining exactly what it meant to steal and who was a thief.

At 50 I know that Uganda's supreme court set a dangerous precedent that meant that: What two people may call a thief because they stole your chicken, another three may say it wasn't that bad since you still had some chickens left! ~Come on!

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Abbey Kibirige  Semuwemba

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