Museveni was validly elected in spite of EC failings - Supreme Court

The Republic of Uganda
In The Supreme Court of Uganda At Kampala
Presidential Election Petition No. O1 of 2016
(Coram: Katureebe,C.J; Tumwesigye, Kisaakye,Arach Amoko, Nshimye, Mwangusya ,Opio-Aweri, Mwondha, Tibatemwa-Ekirikubinza.)

Amama Mbabazi ...Petitioner
Versus
Yoweri Museveni…1st Respondent
Electoral Commission... 2nd Respondent
Attorney General…3rd Respondent
Professor Oloka Onyango & 8 Others……….. Amici Curiae

Decision of the court
The petitioner, who was one of the candidates in the presidential election that was held on February 18, 2016, petitioned the Supreme Court, under the Constitution, the Presidential Elections Act (PEA) and the Electoral Commission Act. He challenged the result of the election and sought a declaration that Yoweri Kaguta Museveni, was not validly elected and an order that the election be annulled.
On February 20, 2016, the 2nd respondent declared the election results as follows;
- Abed Bwanika 86,075 (0.93 per cent)
- Amama Mbabazi 132,574 (1.43 per cent)
- Baryamureeba Venansius 51,086 (0.55 per cent)
- Benon Biraaro 24,675. (0.27 per cent)
- Kizza Besigye 3,270,290 (35.37 per cent)
- Mabiriizi Joseph 23,762 (0.26 per cent)
- Maureen Faith Kyalya Waluube 40,598 (0.44 per cent)
- Yoweri Museveni 5,617,503 (60.75 per cent)

The petitioner contends that the election was conducted without compliance with the provisions and the principles of the Presidential Elections Act, 2000; the Electoral Commissions Act, 1997 ( hereinafter referred to as the “PEA”, 15 and the “ECA” ) and the 1995 Constitution and that this affected the result of the election in a substantial manner. For this, he faults the 2nd respondent.

Among the specific complaints against the 1st respondent are that several illegal practices and electoral offences were committed by him either personally, or with his knowledge and consent or approval.

The petitioner made no specific complaint against the 3rd respondent but several allegations were made against public servants and security personnel.

The 1st respondent denied the petitioner’s allegations of breaches of the law. The 2nd respondent opposed the petition and contended that the election was held in compliance with the provisions of the electoral laws and asserted that, if there was any noncompliance, which was denied, it did not affect the results of the election in a substantial manner.

The 3rd respondent opposed the petition and also contended that the Attorney General was improperly joined as a party to the petition.
All the respondents sought the dismissal of the petition with costs.

At the commencement of the hearing, counsel for the petitioner applied under Article 126 of the Constitution, Section 100 of the Civil Procedure Act and Rule 15 of the Presidential Elections (Election Petitions) Rules, 2001 vide Miscellaneous Application No. 1 of 2016 to amend the petition. The application was allowed and the amended petition was filed on the 7th March 10 2016. The respondents filed their answers to the amended petition on the 9th March 2016.
Two applications were brought before court prior to the hearing of the petition for leave to intervene as amicus curiae in the petition. The first one, Professor Oloka Onyango & Others (MA No. 2, 2016), was brought by lecturers from Makerere University Law School jointly.

The second application, Foundation for Human Rights Initiative & Others, (MA No. 3, of 2016), was brought by civil society organisations. Court allowed Miscellaneous Application No. 02 of 2016 and dismissed Miscellaneous Application No. 3 of 2016. The Makerere University lecturers filed their amicus brief on March 17, 2016, which was copied to the parties.

The hearing commenced on March 14, 2016, and ended on March 19, 2016. Article 104 of the Constitution and Section 58 of the Presidential Elections Act require that the petition must be inquired into and determined expeditiously and court must declare its findings not later than 30 days from the date the petition was filed. Judgement was thus set to be delivered on March 31, 2016.

In accordance with the Presidential Elections (Election Petitions) Rules 1996, the parties filed affidavit evidence in support of each party’s case. Furthermore, the chairman of the 2nd respondent, Engineer Dr Badru Kiggundu was cross-examined by the petitioner’s counsel. Although the petitioner stated in his affidavit that he had annexed affidavits set out in a list mentioned as Annexture ‘A’ as well as copies of Election Observers reports, that was not the case.

These affidavits were in fact never filed in court nor were the Election Observer Reports. The petitioner, however, filed other affidavits on or about March 10, 2016. At the pre-hearing conference, the parties agreed on the following facts:

1. That there was a presidential election conducted by the 2nd respondent on February 18, 2016.

2. That on February 20, 2016, the 1st respondent was declared as validly elected president with 5,617,503 votes, representing 60.75 per cent of the valid votes cast.
3. That on February 20, 2016, the petitioner was declared to have polled 132,574 votes, representing 1.43 per cent of the valid votes cast.

The agreed issues were:
1. Whether there was noncompliance with the provisions of the Presidential Elections Act and Electoral Commission Act, in the conduct of the 2016 presidential election.

2. Whether the said election was not conducted in accordance with the principles laid down in the Constitution, Presidential Elections Act, and the Electoral Commission Act.

3. Whether if either issue 1 and 2 or both are answered in the affirmative, such noncompliance with the said laws and the principles affected the results of the elections in a substantial manner.

4. Whether the alleged illegal practices or any electoral offences in the petition under the Presidential Election Act, were committed by the 1st respondent personally, or by his agents with his knowledge and consent or approval.

5. Whether the 3rd respondent (Attorney General) was correctly added as a respondent in this election petition.
6. Whether the petitioner is entitled to any of the reliefs sought. 15

Representation
At the hearing, the petitioner was represented by learned counsel Mohamed Mbabazi, Michael Akampurira, Asuman Basalirwa, Severino Twinobusingye and Jude Byabakama. The 1st respondent was represented by learned counsels Didas Nkurunziza, Ebert Byenkya, Kiryowa Kiwanuka, Joseph Matsiko, Edwin Karugire and 30 others.

The 2nd respondent represented by learned counsels Enos Tumusiime, MacDosman Kabega, Elison Karuhanga, Okello Oryem, Enoch Barata, Eric Sabiti, Tom Magezi and Ivan Kyateka.

The learned Deputy Attorney General, Hon Mwesigwa Rukutana, led the team of learned counsels for the 3rd respondent which comprised the learned Solicitor General, Mr Francis Atoke, and learned counsels Martin Mwambutsya, Phillip Mwaka , George Karemera, Elisha Bafirawala, Patricia Mutesi and Jackie Amusugut.

Discussion and court findings
We have since completion of the hearing had opportunity to peruse and evaluate the evidence before us. We have also studied the authorities cited to us and carefully considered the submissions by learned counsel for the parties. We have made findings on each of the allegations presented to court.

We are, however, not in a position to give detailed reasons for our findings and decision due to the constitutional timeline imposed on the court to render judgement within 30 days from the date of filing the petition. We shall, therefore, announce our decision on the issues framed and will give our detailed reasons and findings at a later date.

Burden and standard of proof

Section 59 (6) of the Presidential Elections Act authorises the court to annul an election only if the allegations made by the petitioner are proved to the satisfaction of the court. An electoral cause is established much in the same way as a civil cause: the legal burden rests on the petitioner to place credible evidence before court which will satisfy the court that the allegations made by the petitioner are true. The burden is on the petitioner to prove not only noncompliance with election law but also that the noncompliance affected the result of the election in a substantial manner. Once credible evidence is brought before the court, the burden shifts to the respondent and it becomes the respondent’s responsibility to show either that there was no failure to comply with the law or if there was any noncompliance, whether that noncompliance was so substantial as to result in the nullification of the election.

Where a petitioner in a presidential election petition brings allegations of noncompliance with electoral laws against the electoral body on the one hand and allegations of electoral offences and/or illegal practices against a candidate declared as the President-elect on the other, as is in the matter before us, varying standards of proof exist within the same case.

For the court to be satisfied that an electoral offence was committed, the allegation must be proved beyond reasonable doubt. On the other hand, the standard of proof required to satisfy the court that the Electoral Commission failed to comply with the electoral laws is above balance of probabilities, but not beyond reasonable doubt.

Evidence adduced
The petitioner relied on his amended petition as well as the following evidence to support his case:
(a) The petitioner’s affidavit in support of his amended petition and additional affidavit:
(b) 67 affidavits sworn in support of the petition.
(c) Video CDs attached to his affidavit but which his counsel neither referred to in his submissions nor specifically introduced in evidence and was thus not viewed during the hearing;
(d) Oral evidence adduced by the petitioner through the cross examination of the chairman of the 2nd respondent;
(e) The election results of all the 112 districts of Uganda, which included the Return Form for each respective district as at February 20, 2016, the Results Tally Sheet for each district as at February 20, 2016, and the Declaration of Result Forms for all the 28,010 polling stations in Uganda;
(f) We further note that in both his initial and amended petition, the petitioner indicated that he intended to rely on reports from election observers. The reports were, however, neither attached to the pleadings filed in court nor to the copies that were served on the respondents. When counsel for the 1st respondent brought this matter to the court’s attention, the court directed counsel for the petitioners to file the attachments and also to serve the parties.
On March 12, 2016, the counsel for the petitioner wrote to the counsel for the 1st respondent copied to the Registrar of the Court, enclosing the Observer Reports which he said had been inadvertently left out. However, on March 18, 2016, before the close of the hearing of the petition, counsel for the respondent brought to the court’s attention the fact that they had agreed with counsel for the petitioners for the said documents to be withdrawn. This position was confirmed by counsel for the petitioner.

We further note that on the last day of the hearing, counsel for the petitioner attempted to tender into evidence, a document he referred to as a matrix which he alleged would show polling stations where the total number of persons who voted exceeded the registered voters in the said stations. Upon objection of counsel for the respondents that the matrix was based on forgeries, the court directed counsel for the petitioner to indicate the primary source of the information he was presenting. On failing to do so, counsel withdrew the matrix.

The 1st, 2nd and 3rd respondents each filed various affidavits in rebuttal of the allegations.

Issue No.1: Whether there was non-compliance with the provisions of the Presidential Elections Act and Electoral Commission Act, in the conduct of the 2016 Presidential Election.

In his amended petition, the petitioner made several allegations of non-compliance with the provisions of the PEA and the ECA against the 2nd Respondent, the Electoral Commission (EC). Some of the allegations relate to non-compliance that occurred prior to the elections, while others focus on alleged noncompliance that happened on election day and those that happened after the close of polling up to the time of declaration of the 1st respondent as the winner of the presidential elections.

Illegal Nomination of the 1st respondent - The petitioner alleged that contrary to sections 9 and 10 of the PEA, the 2nd respondent nominated the 1st respondent on the 3rd November, 2015, when he had not yet been sponsored by the National Resistance Movement (NRM) on whose ticket he purportedly contested. The petitioner relied on his affidavit in support of his petition to support this allegation.
The 2nd respondent denied the allegation and contended it properly and duly nominated the 1st respondent after he had complied with all the requirements of the law.

The 1st respondent also denied this allegation and relied on the affidavit of Kasule Lumumba, the Secretary General of the NRM party, which confirmed that the 1st respondent was endorsed by the NRM Delegates’ Conference on 2nd November 2016 as the presidential candidate for the NRM party, in accordance with its constitution.

We have carefully considered the affidavit evidence adduced by the parties. We have studied the provisions of section 9 and 10 of the PEA which govern sponsorship and nomination of presidential candidates. We have also carefully considered section 11 of the PEA which provides for the factors on the basis of which the nomination of a person duly nominated can be invalidated. The allegations made by the petitioner do not fit any of these factors.

Based on our findings above, we find that the 2nd respondent nominated the 1st respondent as a presidential candidate in accordance with provisions of the PEA.

(i) Illegal Extension of deadline for nomination of presidential candidates. The petitioner alleged that contrary to sections 11 of the PEA, the 2nd respondent failed to declare the 1st respondent’s nomination papers null and void and instead acted improperly when it extended the deadline to give the 1st respondent more time after all other candidates had submitted their respective documents.

Counsel for the 2nd respondent acknowledged that the 2nd respondent extended the deadline for nomination. It was averred that section 50 of the ECA empowers the 2nd respondent to extend the time for doing any act and that the extension was necessitated by the late passing of electoral law reforms by Parliament. That the extension was not meant to benefit any of the presidential candidates.

We have carefully considered the affidavit evidence and respective submissions of the parties. We note that indeed section 50 of the ECA grants powers to the EC to extend the time for doing any act. Section 50(2) in particular provides that the provisions of section 50 apply to the whole electoral process, including all steps taken for the purposes of the election which includes nomination. We are also of the view that section 11 of the PEA is not applicable to this situation.