Court starts at 10: 18am
Mwesigwa Rukutana (Deputy Attorney General): Appearance for all the other parties is still the same. My lords, we are ready to proceed. But before we proceed, the respondents have some issues to raise.
My lords, when we appeared before court on March 7, 2016, counsel for the petitioner, Mr Asuman Basalirwa raised an alarm to your lordships alleging that 15 of the petitioner’s witnesses had been arrested by police and other security agencies at the petitioner’s residence and that they were being detained at Kireka SIU.
My lords, counsel sought this court’s protection for the witnesses. My lord the Chief Justice, you ordered the Attorney General to look into the matter that if the witnesses were arrested on unlawful charges, they should be released and be given protection. The AG has carried out exhaustive inquiries and the allegations were found to be false and malicious.
Our inquiries have revealed that no one by the names mentioned before this court had been arrested from Mbabazi’s residence or anywhere else and detained at Kireka SIU. My lords, we communicated our findings to this court yesterday by our letter. I presume our letter is on record. Our letter attaches a letter from the IGP denying the allegations.
I am now registering a protest against this unprofessional, unbecoming and malicious behaviour of counsel for the petitioner. This is perjury. We appreciate this is a very important case and all local and international media have keen interest in the proceedings. Indeed the allegations were widely carried by both local and international media. These allegations were false.
Counsel’s behavior therefore, begs for an answer why the petitioner or his counsel raised such malicious allegations against the police force or the security agencies of this country.
My lord, against that background in mind yesterday we were served a copy of a letter addressed to this court claiming that the petitioner’s lawyers’ chambers were broken into on the night of March 8, 2016, and that their computers, affidavits and documents were stolen.
My lords, I don’t intend to assume the role of an investigating officer but considering the behaviour of counsel I have already alluded to, I won’t be surprised if the alleged break-in was a stage-managed inside arrangement or a hoax intended to raise sympathy from this honourable court, the public or cover-up for some gaps or just buy time.
Having said that my lords, it is my pleasure that counsel for the petitioner should be prevailed upon to refrain from that unbecoming behaviour or be reprimanded by this court. As lawyers, we are officials of this court and our role is to assist the court to reach a fair and just decision. We cannot do that by misleading court by telling lies and raising false alarms.
Chief Justice Bart Katureebe (CJ): You have made your point.
Rukutana: Much obliged, my lord.
Didas Nkurunziza (Museveni’s lawyer): My lords, when this court sat on Monday, you ordered the petitioner to serve the amended petition, their affidavit evidence and also the annexures that we complained about missing from the original petition.
The same day, we were served the amended petition but nothing else since then; neither the affidavit nor the annexures we have consistently complained about.
My lord, I pray that the lawyer be admonished.
Enos Tumusiime (counsel for EC): My lords, I associate with what the AG has stated as well as counsel for the 1st respondent. In addition, I wish to point out to court that up to now, the petitioner has not served a copy of the amended petition and the additional affidavits upon the 2nd respondent and that includes the 2nd respondent’s counsel.
Yesterday, we wrote to the registrar of this court drawing to his attention this fact and a copy was delivered to Micheal Akampurira & Co Advocates (counsel for Mbabazi), as directed by this court. We have had to rely on photocopies of counsel for the 1st respondent in the interest of time. We beg this court that we should be served.
Secondly, at the last hearing before this court, we pointed out that the affidavits which were supposed to be attached to the amended petition were not attached. This court directed the petitioner to serve all the parties copies of the amended petition and those affidavits before close of business on Monday afternoon. This was not done and I believe that time the alleged break-in had not happened. At least there is no allegation of break-in at Akampurira’s Chambers.
(CJ asks Mbabazi lawyers to respond)
Asuman Basalirwa: My lords, I have listened to the submission by the AG and I wish to respond as follows: When I raised this matter before this court, I had an informal discussion with the learned AG Fred Ruhindi outside the court premises.
My lords, we shared contacts and he promised to follow up this matter on that same day at 18:42 hours. The learned AG sent me a text message indeed following up on that matter. At about 8:55am yesterday, I rang the AG notifying him of the break-in of our offices but also the status of the witnesses.
When I raised this matter indeed, the AG made a follow-up. Those arrested were transferred from Kireka and to Nalufenya Police Station in Jinja. On Tuesday, they were released, so my lords, for me we are grateful that the AG exercised great responsibility when that matter was raised. If that was unprofessional and discourteous, I leave it to court. My lords, finally, we have interacted with some of these witnesses arrested and enlisted statements from them and part of what is in the affidavit is their ordeal and will be in court.
CJ: Before you sit. There was a reference to paragraph 31 of your petition.
Basalirwa: My colleagues will respond to that other aspect. (courtroom breaks into laughter)
Michael Akampurira: My lords, I state that on the night of March 8, 2016, chambers of my colleagues Muwema and Co. Advocates and Nyanzi, Kiboneka and Mbabazi were broken into by some individuals wearing police and military uniforms and during the break-in, a number of vital documents which were essential for this petition, were stolen.
My lords, in addition a number of computers were stolen and as a result we spent the entire day trying to reassemble evidence which we consider to be essential for this court. My lords, it is therefore unfortunate for someone to state this was stage-managed because we have absolutely nothing to gain from such.
Nevertheless, my lords, we have tried within our means to ensure and assemble some affidavits and my colleague will address you on that matter. Lastly my lords, my learned friend Didas [Nkurunziza] stated before this court that we were being discourteous and unserious. My lords, we don’t agree. When we wrote to inform this court and professional colleagues about the unfortunate incident, we were being courteous to both. We have asked the campaign team to reconstitute the video recordings we undertook to supply as annexures, the process is underway.
CJ: Before you sit down, there is a question you are not answering. You filed your petition on March 1, you had nine days within which to prepare. In paragraph 31, you stated and I quote, “The petition is accompanied by the petitioner’s affidavit together with other affidavits whose names appear in this annexure marked A.”
When we first convened here, this issue was raised to you; that the affidavit hadn’t been filed and you undertook to serve them by close of business on Monday before this break-in. Question is, where are these affidavits and why didn’t you comply with a directive of court?
Akampurira: My lord, we left court late, assembled at chambers of my colleague, the affidavits we are referring to were in Muwema’s Chambers; over 100 affidavits.
CJ: I am not bothered by how many they were. You said they were accompanying the petition, we pointed out to you the petition wasn’t so accompanied, you undertook to deliver. You can’t start using the excuse of the break-in that happened yesterday!
Akampurira: My lord, if I recollect, I instructed one of my colleagues to serve that day. I am surprised they were not made available.
CJ: Either you are serious or not, this is a very important petition. You claim in your petition, these affidavits accompanied your petition. Explain to your client why you are messing up his petition.
Akampurira: My lord, we apologise, we shall endeavour today.
CJ: On a matter of this importance, go an extra mile to be serious.
I don’t see that seriousness. However, if anybody is unlawfully detained, agencies of government must inquire into that and whoever is behind it be brought to book. If any lawyer is being accused of unprofessional conduct, the relevant bodies such as the Law Society should take interest. For now, let’s proceed with the important matter of today.
We were supposed to be dealing with a proper pre-hearing in terms of identifying issues. Perhaps time for consultations. You agree among yourselves and we return to facts and issues. We assume in the days you have been exchanging these documents you have issues that have come to mind. Let’s give you an hour. Court will reconvene at midday.
(Court resumes at 12pm)
Rukutana: Counsel for the petitioner and respondents have agreed on issues and facts. One; whether there was non-compliance with the Presidential Elections Act (PEA) and the Electoral Commission Act in the conduct of the 2016 presidential election.
Issue number two, whether the said election was not conducted in compliance with the principles laid down in the provisions in the PEA and EC Acts. Three, if issue one and or two above are answered in the affirmative, whether such non-compliance affected the result of the presidential election in a substantial manner.
Issue number four, whether the offence under the PEA was committed in connection with the election by the first respondent (Museveni) personally or with his knowledge and consent or approval. Issue number five, whether the third respondent, the AG is properly joined as a party to this petition.
Issue six, whether the petitioner is entitled to any of the reliefs sought.
My lords, we now come to the agreed facts. It is agreed number one that there was a presidential election conducted by the second respondent on February 18. Number two, that on the February 20, 2016, the first respondent was declared as validly elected president with 5,617,503 votes representing 60.75 per cent of the valid votes cast.
My lords, the third agreed fact is that on the same day (February 20, 2016), the petitioner was declared to have polled 132,574 votes representing 1.43 per cent of the valid votes cast. My lords, counsel for the petitioner has some issues we didn’t agree upon. We leave it to court.
Mbabazi (Mbabazi’s lawyer): My lords, we had an issue whether the second respondent relied on any results from the polling station and district tally centres as a basis to declare the first respondent winner of the presidential election;
Whether the petitioner is entitled to the preliminary relief of vote recount in the areas specified in the petition;
Whether there was a national voter register compiled and maintained by the second respondent for the 2016 presidential election.
Rukutana: My lords, we didn’t agree with these issues because we deemed them superfluous as they are properly addressed under the issues framed and agreed facts. In particular, issue number one, we have already agreed with the respondent on the total votes the first respondent got. Where else would he have got them? If the allegation is that these votes were not got from tally centres, that would be addressed in the issue of non-compliance with the law. So for that matter, we regard it as superfluous.
Regarding the ballot recount as an issue, we don’t agree because under section 59(8) of the PEA, the court upon hearing the petition and before coming to a decision if it is satisfied that a recount is necessary and practical, it may, whether prayed for or not, order a recount of votes cast. In my view, framing it as an issue is superfluous.
The same issue is repeated under the rules passed by the CJ in the presidential election petition rules 2001, rule 21 which reads, “where upon hearing a petition and before coming to the decision, the court is satisfied that a recount is necessary and practical it may order a recount of the votes cast. So this is a matter of law and as such we regard it superfluous.
Enos Tumusiime (EC lawyer): The issue whether there was a national voter register compiled and maintained by the EC is already covered under issue number one that’s been agreed upon; whether there was non-compliance with the PEA and EC Act in the conduct of the 2016 election, so we don’t need to have it as an additional issue at all.
CJ: Mr Mbabazi, you want to say something?
Mbabazi (petitioner’s lawyer): My lord, these are fundamental breaches of the principles of the law akin to a situation where the election is held without secret ballot…
CJ: Well, that would be non-compliance with the law.
Mbabazi: I leave it to your discretion.
CJ: For example, on your proposed issue number two, the law doesn’t give vote recount as a preliminary relief. You know one of the reliefs court can give is declare a candidate who was validly elected and it is not a preliminary relief.
Mbabazi: From my reading of section 59, I think it is a preliminary relief.
CJ: The law requires that you can declare the person who was validly elected.
Mbabazi: My lord, we thought these are issues which can be included in the framed issues, we leave it to your discretion to determine.
(Judges consult each other on the issue)
CJ: It’s the view of the court that the issues as agreed are sufficient for the determination of the petition. The issues suggested by the petitioner are well covered. Accordingly, court endorses the agreed issues.
Way forward; we shall stick to the timetable we agreed on Monday.
Mbabazi: My lord, there was an issue that wasn’t covered; we were seeking leave for extension of time to gather affidavit evidence.
CJ: That I can answer straight away; I don’t have the time to give. The timelines are set by the constitution. Today is the 11th day. You can still serve your affidavits, they should have been served yesterday but you have already given yourself an extra day, they should be served by close of business today so people can respond and raise skeleton arguments.
Mbabazi: There is the issue of documents. My learned friend, Mr Enos Tumusiime has written a letter which is on record. We had requested for several documents, he has answered in respect to one set of the documents and suggested Saturday for inspection of all the required results declaration forms. The day on our side is really tight. We ask them to bring the day forward but that is in respect to DR forms. Tally sheets and data base are not mentioned anywhere.
Tumusiime: We clearly pointed out that these DR forms will be ready for inspection on Saturday at 2pm. Besides, this information was handed over to the petitioner on February 23.
CJ: Meaning the information is available?
Tumusiime: It is available but for the physical inspection they seemed to be interested in, they want to compare what they have with our documents. We could not do it earlier because of the volume of work and elections are still ongoing. We are looking at 28,000 polling stations.
CJ: Mr Mbabazi, I am inclined to say on Saturday after court. If it becomes necessary, on Monday I can extend time for you.
Mbabazi: We can get DR forms electronically. The tally sheets duly signed by the returning officers we can’t get them, he says he will return to us.
Tumusiime: My lord, as we already pointed out, the petitioner was provided copies of the tally sheets. If he is interested in hard copies, they will be availed at the time. We can have them electronic.
Mbabazi: We are not looking for national results summary, we are looking at the tally sheets. These ones online are signed by Dr Badru Kiggundu, the ones we are looking for are signed by returning officers.
Tumusiime: As long as they are in our possession, they will be provided but he should be prepared to wait for the hard copies of the results declaration forms signed by the returning officers.
CJ: (reads the law that requires the returning officers to submit the results declaration forms to EC within seven days after the election. The section says each returning officers shall immediately after declaring the number of votes obtained by each candidate transmit the same in the prescribed form to EC). This is a matter of what the law requires to have been done. Seven days after elections, these are documents that are meant to be in EC possession.
Justice Eldad Mwangusya: Even today, if the chairman says tomorrow we want districts to send these forms you can have them.
Tumusiime: Much obliged my lords. I request time to consult my client and will write back to court this afternoon and inform what time they will be ready.
(Court adjourns and will resume tomorrow to hear the application by other parties seeking to join the petition)