2001 ELECTIONS: Supreme Court Judges ruling

Friday December 16 2005

Supreme Court Judges Odoki, Order, Tsekooko, Karokora and Mulenga give their ruling in the 2001 Dr Kiza Besigye election petition.

THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA AT MENGO

ELECTION PETITION No ..... of 2001

The Presidential Elections Act 2000

The Presidential Elections
(Election Petitions) Rules 2001

PRESIDENTIAL ELECTION HELD ON THE 12th DAY OF MARCH, 2001

COL. (RTD) DR. BESIGYE KIZZA
VERSUS
1. MUSEVENI YOWERI KAGUTA
2. ELECTORAL COMMISSION
(RESPONDENTS)

JUDGEMENT OF THE COURT:

The Petitioner, Col. (RTD.) Dr. Besigye Kizza petitioned the Supreme Court of Uganda under the Presidential Elections Act 2000, as an aggrieved candidate, challenging the result of the Presidential election held on 12th March 2001 and seeking an order that Museveni Yoweri Kaguta, declared elected as President, was not valid elected, and that the said election be annulled. He cited the said Museveni Yoweri Kaguta as 1st Respondent and the Electoral Commission as the 2nd Respondent.

The Petitioner and the 1st Respondent who is the incumbent President of the Republic of Uganda, were among the six candidates who contested the said Presidential Election. On 14th March, 2001, within forty-eight hours from close of polling, the 2nd Respondent declared that the 1st Respondent, having obtained 69.3% of the valid votes cast in his favour was duly elected President. According to the declared results, the Petitioner was runner-up with 27.8% of the valid votes cast in his favour.

The petition was lodged in the Registry of this Court on 23rd March, 2001, that is within ten days after the declaration of results. The hearing commenced on 27th March, 2001 and ended on 13th April, 2001. Judgement was reserved to be given on notice.

By virtue of article 104 of the Constitution and section 58 of the Presidential Elections Act, the petition must be inquired into the determined expeditiously and the Court must declare its findings not later than thirty days from the date the petition is filed. This Court was therefore bound to deliver its judgement by 22nd April, 2001.

In the petition, the Petitioner makes very many complaints against the two respondents and their agents and/or servants, for acts and omissions which he contends amounted to non-compliance with provisions of the Presidential Elections Act, 2000, and the Electoral Commission Act, 1997, as well as to illegal practice and offences under the Acts.

Among the major complaints he makes against 2nd Respondent are failing to efficiently compile, maintain and up-date the national voters' register, and voters' roll for each constituency and for each polling station; failing to display copies of the voters' roll for each parish or ward for the prescribed period of not less than 21 days, failing to publish a list of all polling stations within the prescribed period of 14 days before nomination;
increasing the numbers of polling stations on the eve of polling day without sufficient notice to candidate; allowing or failing to prevent stuffing of ballot boxes, multiple voting and under-age voting; chasing away the Petitioner's polling agents or failing to ensure that they are not chased away from polling stations, and counting and tallying centres; allowing or failing to prevent agents of the 1st Respondent to interfere with electioneering activities of the Petitioner and his agents; allowing armed people to be present at polling stations; falsification of result; and failing to ensure that the election was conducted under conditions of freedom and fairness.

The Petitioner's case against the 1st Respondent is that he personally, or by his agents with his knowledge and consent or approval, committed illegal practices and offences. These include publication of a false statement that the Petitioner was a victim of AIDS; offering gifts to voters; appointing partisan senior military officers and partisan sections of the Army to take charge of security during the elections; organising groups under the Presidential Protection Unit and Major Kakooza Mutale with his Kalangala Action Plan, to use violence against those not supporting the 1st Respondent; and threatening to cause death to the Petitioner.

In their respective answers to the petition, the 1st Respondent and the 2nd Respondent denied the allegations made in the petition against them.
At the hearing, the learned Solicitor-General Mr. Kabatsi led a team of learned counsel for the 2nd Respondent. Mr. Balikuddembe led the team of learned counsel for the Petitioner. And Dr. Byamugisha and Dr. Khaminwa led the team of learned counsel for the 1st Respondent. At the commencement of the hearing, the Court, in consultation with learned Counsel who appeared for the parties, framed the following five issues for determination:

1. Whether during the 2001 election of the President, there was non-compliance with provisions of the Presidential Elections Act 2000.

2. Whether the said election was not conducted in accordance with the principles laid down in the provision of the said Act.

3. Whether, if the first and second issues are answered in the affirmative, such non-compliance with the provisions and principles of the said Act, affected the result of the election in a substantial manner.

4. Whether an illegal practice, or any other offence under the said Act, was committed, in connection with the said election, by the 1st Respondent personally, or with his knowledge and consent or approval.

5. What reliefs are available to the parties.

All evidence at the trial of the petition is required to be adduced by affidavits. Cross-examination of the deponents may be permitted only with leave of the Court. Accordingly parties filed many affidavits to support their respective cases. The Petitioner filed 174 affidavits both in support of the petition and in reply to the affidavits of the 1st and 2nd Respondents, who in turn filed respective, 133 and 88 affidavits. The filing of affidavits continued throughout the hearing of the petition. In addition leave was granted to the Petitioner to call and cross-examine one deponent, Dr. Diana Atwine, who had sworn an affidavit in support of the 1st Respondent.

Counsel for all parties read the affidavit deponed in support of their cases while making their submissions to the Court. Numerous authorities, from within and without our jurisdiction, were cited and copies were provided to the Court. We have found the authorities very helpful and we are grateful to Counsel for that assistance.

We have, since completion of hearing, had the opportunity to peruse and evaluate the evidence adduced by the parties, and to study the various authorities cited to us. We have each made findings on the issues presented to the Court. We have also come to the conclusion on the outcome of the case.

We are however not in a position to give the detailed reasons for our decision within the limited time available. This not an ordinary case but an important case involving the election of the President of the Republic of Uganda.

It raises serious constitutional and legal issues, the answers to which and the reasons therefor, need to be elaborately articulated for future guidance. The effect of the decision on the governance and development of the country and on the well being of the people of Uganda cannot be over emphasised. We shall for now announce the decision of the Court, and on a later date to be notified, we shall each read the detailed findings and reasons therefor.

The decision of the Court is constituted in the findings on the framed issues. We find:-

1. That during the Presidential Elections 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.
We shall hear further counsel on the question of costs.

DATED at Kampala this ................... Day of April, 2001.
B.J. Odoki
A.H.O Oder
J.W.N. Tsekooko
A.N. Karokora
J.N. Mulenga

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