When all is said and done, the election is here and the outcome, at least as relayed by the Electoral Commission (EC), the only entity legally empowered to announce the winner of the presidential election, is out for the world.
Question of the day is: what next for Forum for Democratic Change candidate Kizza Besigye and independent candidate Amama Mbabazi?
Reading Mbabazi’s script can be a huge task, thanks in part to his rather behind the scenes method of work and unwritten rule of unpredictability.
We can, however, peep into Dr Besigye’s tool box to decode what his political roadmap looks like, first from his public statements and precedents of the 2001, 2006 and 2011 elections.
Besigye not going to court
At the height of the presidential campaign, Dr Besigye reiterated his earlier stand on challenging President Museveni’s victory in the Supreme Court in whom he lost confidence and faith after the 2001 and 2006 petitions failed to change the outcome of what he called a fraudulent election.
“If they want to rig this time and they think Besigye will go to court afterwards, let them forget it. It will all be sorted here (using people power),” Dr Besigye told a rally in Busia Town on November 22, 2015, in the company of Kampala Lord Mayor Erias Lukwago, FDC president Maj Gen Mugisha Muntu and FDC secretary general Nathan Nandala Mafabi.
The retired colonel changed his mind on contesting for the presidency under the current electoral system which critics say is skewed to tilt the scale in NRM’s favour.
There is no evidence, however, that he will change his mind on challenging Museveni’s win in the same courts whose decisions in 2001 and 2006 he respected but disagreed with.
Mr Wandera Ogalo is a former active politician and seasoned lawyer who has had a fair share of the trenches with Besigye, representing him both in 2001 and 2006 where he put up a performance that nearly got Museveni’s election over turned.
This time round, Ogalo too has ruled out the avenue of seeking redress in the country’s Supreme Court, telling Sunday Monitor in an interview yesterday, “I tried a last ditch attempt to argue before the Constitutional Court to strike out Section 59 of the Presidential Elections Act which denies us justice but the court last month held that the provision is not unconstitutional.”
Section 59(6) (a) of the Presidential Elections Act states: “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—that 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 of the election in a substantial manner.”
What is substantial? Can we say everything can go wrong in a presidential election so long as it doesn’t substantially affect the outcome of the election? These are some of the questions Besigye, through Mr Wandera wanted the Constitutional Court to answer when they filed the petition in 2009.
Strangely though, the petition gathered dust until last month as though in anticipation from the State of a reference to a pending petition challenging Section 59 which the Supreme Court has always relied on.
Had the court struck out the provision, Mr Wandera says, “I would have convinced Besigye to try the Supreme Court again but now that the provision was upheld, we have no confidence we shall get justice. I would actually humbly decline if my client asked me to represent him and advise against the same.”
Mr Erias Lukwago, a member of Besigye’s legal team, too rules out the option of the Supreme Court, on his part, not entirely because the contested section stands in our law books, but for loss of faith in the courts on matters where Museveni’s political interests are before the judges.
Mr Lukwago told this newspaper in an interview yesterday, “I would also not be part of the team if Besigye wanted to go to court because Museveni has hijacked all State institutions, you saw how my case was handled.”
Mbabazi likely to petition court
Right from the time a maximum tactical surprise was thrown at him at Kyankwanzi in 2014, with Youth minister Evelyn Anite kneeling before Museveni and begging him to offer himself for re-election and later demanding NRM MPs to sign a sole candidate resolution, Mbabazi’s legal team has strolled between court rooms and corridors, filing one petition after another.
As of the time of writing this article, his team had filed not less than eight suits in the High Court and Constitutional Court.
First was the Benjamin Alipanga Vs NRM, Yoweri Museveni and others petition in which he asked the Constitutional Court, through a proxy, to annul the sole candidate resolution and reverse the amendments to the NRM constitution that effectively booted him out of the NRM secretary general office.
Sources close to the Mbabazi team are confident he will in the next 10 days walk to the Supreme Court and attempt to put up a case for an election that was not, in process and event, not free and fair and beseech the justices of the court to annul the same.
Election observers have already punched holes in the election’s credibility with the Citizens’ Election Observers’ Network Uganda (CEON-U) head, Dr Livingstone Ssewanyana, on Friday asserting the election fell short of international benchmarks for a free and fair election.
The chief of the Commonwealth Observer group, former president of Nigeria Olusegun Obasanjo said the polls started off with a wave of “enthusiasm” which was later diminished with the delays which he described as “inexcusable.”
Mbabazi has consistently been on the receiving end of the might of the State machinery. When contacted for a comment, Mr Severino Twinobusingye, a lawyer and strategist of Mr Mbabazi, declined to comment on whether they are preparing a petition but hinted, “Legally speaking the election is fundamentally flawed.
On the basis of what has transpired the election was conducted in total breach of the Constitution, every letter and spirit of all statutes,” before asking to consult Mbabazi on the specific option of the petitioning the court.
They have only 10 days to file their petition which the court will dispose of in 30 days, but whether they take that route, it appears, at least from the submissions of Lukwago, Besigye and Wandera who have tested the waters of that avenue, Mbabazi will only do that to give Museveni a little more heart ache and sleepless nights of uncertainty and not necessarily because the courts will annul the election.
Mbabazi has also said in the past his style of politics is not the type of “agende” (let him go), in essence sending a veiled swipe at Besigye’s ‘power of the people’ approach, a euphemism for ‘harness civic unrest’.
Mr Wandera and Lukwago, speaking in their individual capacities, agree Besigye will not sit back but continue from where he never ended with the defiance campaign.
In 2001, Besigye fled to exile in South Africa after the election “in fear of his life”. In 2006, as he did in 2001, he petitioned the court, respected their decision but said he disagreed with it and sent one message to Museveni after the Supreme Court upheld Museveni’s election on April 21, 2001: “We are ready to enter dialogue with you and your government about how to undertake the necessary reforms to move the country forward…should you choose the path of repression, you will face stiff resistance.”
After the 2011 polls, together with big wigs in the Opposition, he addressed a press conference at Nsambya and declared they rejected the results and will not recognise Museveni’s presidency.
Since then, Besigye refers to his former Bush War comrade as Mr Museveni and deliberately avoids reference to him as President.
He would later join ordinary citizens in protesting the increasing cost of living and runaway inflation attributable to ruling party officials dipping their hands in State coffers to fund one of the country’s most costly campaigns.
After casting his ballot in Rukungiri on Thursday, Besigye dashed to the city only to make news hours after he bust what was alleged to be a police facility where ballot stuffing and pre-ticking was said to be taking place.
He has since become the subject of police’s preventive arrest, but continues to carry his defiance flag. This, his handlers think, will define the post-2016 election Besigye roadmap.
Wandera says, “I think Besigye will refine and expand the defiance campaign. Don’t forget that Nelson Mandela and Oliver Tambo in 1952 started a defiance campaign against apartheid, so Besigye’s campaign will be more sophisticated and refined. He will not sit back and hold his hands.”
Makerere University political science don Sabiti Makara opines that Besigye’s defiance campaign, whatever shape it takes, is not tenable to the extent that, “it can lead to more bloodshed and death because of the militarisation of the police.”
The professor advises Mbabazi and Besigye to jointly petition the court, their reservations with it, not withstanding because, “there is glaring evidence that this was an unfair election from the start to the end. The EC under Badru Kiggundu behaved like the EC under Paulo Muwanga in 1980.”
The meeting point for all these avenues, be it Mbabazi seeking redress in the Supreme Court and Besigye rejecting the election and taking to defy the regime, is that the two have been as tested before.
However, the State appears set for the outcome on both fronts. First the Constitutional Court, headed by Justice Steven Kavuma, disposed of the long standing 2009 petition challenging section 59 of the Presidential Elections Act.
The Supreme Court too saw new faces late last year with legal practitioners reading between the appointments as designed to neutralise a possible election petition.
Should Besigye defy the outcome of the election, President Museveni seems to have prepared himself well.
It remains to be seen how government will react should Besigye continue with his defiance campaign.