How Besigye lost 2001, 2006 election petitions

Ms Winnie Byanyima (R), Dr Kizza Besigye’s wife, stands next to his poster during the 2006 campaigns.

The election of 1980 is a vital reference point in Uganda’s history mainly because ballots transformed into bullets.

Mr Yoweri Museveni, a minor candidate in the election leading the emerging Uganda Patriotic Movement party, took it upon himself to avenge what he called a stolen election by waging war against the government of Milton Obote, who controversially defeated Democratic Party’s Dr Paul Ssemogerere.

Obote was, for the second time, eventually overthrown by the military in 1985, having also been deposed by the military led by Idi Amin in 1971.

Obote’s own use of the military had prevented the country from going to scheduled polls in 1967, leading to an 18-year lag from 1962 to 1980 without elections.

As he campaigned in 1980, Mr Museveni preached the importance of elections as a way of choosing leaders, and threatened to wage war against the government if the polls were rigged.

Mr Museveni eventually captured power in 1986 and ruled for 10 years before the country went to presidential elections again in 1996 when he faced Dr Ssemogerere, with Muhammad Mayanja Kibirige as an also-run.

Dr Ssemogerere had served in Mr Museveni’s government for almost a decade before resigning to challenge him. Whereas the scale of irregularities may differ between the 1980 and 1996 elections, Dr Ssemogerere says “much of what went wrong in 1980 went wrong in 1996”.

He alleged a number of irregularities in 1996, including ballot box stuffing, changing results and multiple voting.

Enter Besigye
Dr Ssemogerere, who during his time as an active politician filed several petitions, winning a couple of landmark cases in the fight to open up political space, says he did not go to court to challenge the 1996 election because “you have to make a number of considerations before you go to court”.

It was left to Dr Kizza Besigye to, on two occasions, test the court process by filing petitions after the elections in 2001 and 2006. Both petitions failed in the same style, being swung in Mr Museveni’s favour by Mr Benjamin Odoki, then Chief Justice, because there was a tie among the other justices. In 2001, it was a three-to-two decision, and then a four-to-three decision in 2006.

The rulings in both cases were virtually carbon copies of each other. All the Supreme Court justices, after agreeing that the election had been riddled with various irregularities, to which we shall return shortly, concluded that the irregularities were not sufficient to alter the final results and upheld the election.

In both cases, a clause in the Presidential Elections Act was invoked, which requires a petitioner to prove that the irregularities he alleges were to the extent that the final outcome changed to favour whoever was eventually declared winner.

Gen David Sejusa, the estranged former coordinator of intelligence services, maintains that Dr Besigye won the 2006 election by close to 70 per cent, but that an operation conducted by the military changed the results and gave Mr Museveni 58 per cent of the votes.

Dr Besigye, according to the official results published by the Electoral Commission, polled 37 per cent of the votes in 2006, with the remainder going to the then DP president Ssebaana Kizito, UPC’s Miria Obote, and the independent candidate Abed Bwanika.

In 2001, the official results show Mr Museveni won by 69 per cent, followed by Dr Besigye with 28 per cent. The rest of the votes were shared between Mr Aggrey Awori, Mr Kibirige Mayanja and Mr Chapaa Karuhanga.

The petitions
In the 2001 petition, Dr Besigye alleged that the Electoral Commission falsified results and failed to conduct a free and fair election.

He said the Commission allowed armed people to be present at polling stations, failed to efficiently compile, maintain and up-date the national voters’ register and to display it as required by law.

The number of polling stations, Dr Besigye said, was increased on the eve of polling day without sufficient notice to candidates, and that the Electoral Commission allowed or failed to prevent stuffing of ballot boxes, multiple voting and voting by under-age people.

He further alleged that his agents were turned away from polling stations, counting and tallying centres, paving the way for rigging, and that his campaign activities were interrupted by State or President Museveni’s agents.

Mr Museveni was personally accused of publishing “a false statement” that Dr Besigye was suffering from Aids, and that he offered gifts to voters, appointed partisan senior military officers and partisan sections of the army to take charge of security during the elections.

Mr Museveni was further accused of organising groups under the Presidential Protection Unit and Maj Kakooza Mutale with his Kalangala Action Plan, to use violence against those not supporting him, and threatening to cause Dr Besigye’s death.

Whereas the justices agreed with Dr Besigye on many of the allegations, three of them – Mr Benjamin Odoki, Mr Joseph Mulenga and Mr Alfred Karokora ruled to uphold the election, arguing that the extent of irregularities did not alter the final outcome.

The late Arthur Oder and Mr Wilson Tsekooko ruled to annul the election.
In 2006, Chief Justice Odoki, Mr Mulenga and Mr Karokora were joined by Mr Bart Katureebe, the current Chief Justice, to uphold the election.

Prof George Kanyeihamba, Mr Tsekooko and the late Oder ruled to cancel the election.

Drawing on the lessons of 2001, Dr Besigye looked to beef up his petition for the 2006 election. He said in a statement after the ruling on the 2006 petition was delivered that many FDC members had advised against going to court because they thought, basing on the experience of 2001, that they would not get a favourable ruling regardless of whatever evidence was adduced.

He said, however, that they decided to lodge the petition to “expose and resolve the inconsistencies between the Presidential Elections Act and the Constitution”, particularly the requirement for the petitioner to not only prove that there were irregularities in the election, but also that those irregularities had a substantial effect on the outcome.

His preliminary application for this question to be referred to the Constitutional Court with the view of removing the requirement by the petitioner to prove that the irregularities substantially affected the outcome was rejected by the Supreme Court.

The justices argued that they had limited time – 30 days to hear and rule on the petition – and that if Dr Besigye saw this as an important issue, he should have referred it to the Constitutional Court before the time for lodging the petition came.

After the election petition was rejected, Dr Besigye petitioned the Constitutional Court to review this requirement, but the matter has never been heard by the court going into this election.

The second reason Dr Besigye went to court, he said, was to “provide the Supreme Court judges with an opportunity to show that they had reflected on the 2001 election”, which he thought they should have annulled on the basis of the evidence he adduced.

The 2006 election petition was different in some respects from the 2001 petition. Dr Besigye, for instance, hired a statistician to deduce from the evidence available how many votes Dr Besigye could have lost or Mr Museveni gained as a result of the irregularities in order to prove that the outcome was affected substantially.
In his affidavit, Dr Jonathan Odwee, the statistician, argued that one million voters had been removed from the voters roll, disadvantaging Dr Besigye.

Dr Besigye had claimed in his affidavit that many of the people who had registered as voters shortly after his return from exile had been removed from the voters roll. He claimed that many of them intended to vote for him.

In his ruling, then Chief Justice Odoki wrote in connection to this: “There was no proof that many voters who registered after the return of the petitioner (Dr Besigye) were deliberately removed from the register or that they were his supporters.

I found that the total number of those disenfranchised were about 150,000 since many voters were in the register but did not know their polling stations.

There was no proof that the majority of those disenfranchised were supporters of the petitioner, and would have voted for him.

Even if all the 150,000 voters were supporters of the petitioner, their votes would not have had substantial effect on the result as they would not have significantly reduced the winning majority.”

Regarding the complaint that Dr Besigye’s votes were reduced and Mr Museveni’s votes increased, Mr Odoki ruled: “Once again the loss of 962 votes by the petitioner, even if added to 150,000 votes lost through disenfranchisement, could not have affected the result in a substantial manner given the margin of votes between him and the second respondent (Mr Museveni) which was over 1.5 million votes.”

After the ruling, Dr Besigye complained about the law governing presidential election petitions, which he said “places a greater burden of proof on the petitioner”.

He also bemoaned a presidential election petitioner being allowed only 10 days after the election to compile evidence from the entire country and file a petition, with all the evidence presented in form of affidavits, which requires the petitioner to have several legal teams in different parts of the country drawing up the affidavits, at a substantial cost.

Petitioners in parliamentary elections, on the other hand, are allowed 30 days to compile evidence and file petitions despite having to cover much smaller areas.

Dr Besigye argued that had he been given more time, he would have produced more evidence of rigging. He insisted, however, that whatever evidence had been presented was enough basis for annulling the election.

Prof George Kanyeihamba, who ruled to annul the 2006 election, has since claimed that some two of the four judges who upheld the election have since changed their minds.

“I will not mention them,” Prof Kanyeihamba told Sunday Monitor of October 3, 2010, “You can find it out easily by reading their individual statements. They do not say it in so many words but that is what they mean. The Supreme Court was split, four to three. Two of those four have since changed their minds. They have said the minority were very right; we were wrong to dismiss the petition.”

In the 2006 petition, court also heard that in some areas, the number of ballots cast exceeded the number of registered voters, particularly in the districts of Kiruhura, Pallisa and Manafwa.
Take the following example.

Mr Anthony Adome, the FDC chairperson for Pallisa District, wrote in his affidavit that the district registrar for Pallisa, Pabire Higenyi, printed a copy of the presidential election results for Pallisa where he had declared the total number of polling stations received as 415 out of 440 total number of polling stations.

When Mr Adome queried the registrar over the difference of 25 polling stations, he said in the affidavit, it was discovered that the registrar had not tallied other polling stations where the number of votes which were received had returned more total votes than the number of registered voters in the respective polling stations.

The Electoral Commission, in response, relied on the affidavits of Mr Mpima Kolonero, the presiding officer at Kobolwa polling station, and Mr Higenyi himself. The Electoral Commission admitted to irregularities having taken place at some of the polling stations.

At one polling station, for instance, Mr Kolonero explained: “While he was executing his duties as presiding officer at Kobolwa Primary School polling station on February 23, 2006, at about 2pm, there was a heavy rain down pour.

I asked the voters to go to the nearest classroom and shelter, which they did. At about 2.30 pm, a numberless pick-up with many people armed with sticks alighted from the vehicle, locked voters inside, and returned to the room where I was held hostage. They grabbed the ballot papers and started ticking them.”

In general terms, Dr Besigye argued that the 2006 election, beginning with the campaign period up to polling day, was riddled with “acts of intimidation, lack of freedom and transparency, unfairness and violence and the commission of numerous offences and illegal practices.”

These, he said, breached the provisions of the Presidential Elections Act, the Electoral Commission Act, and the Constitution.

He, like in 2001, also accused Museveni of having committed a number of electoral-related offenses.

At crossroads
Following lack of success in the two petitions, Dr Besigye vowed never to return to the courts over election irregularities.

In the statement he issued after the ruling on the 2006 election, Dr Besigye warned of a possibility of future petitions being directed to courts “similar to the one in which Mr Museveni found confidence in 1980.” He was referring to war over election disputes.

In 2011, Dr Besigye again lost to Mr Museveni and alleged rigging. He, as he had vowed in 2006, did not challenge the election in court.

He, instead, launched protests through the banner of walk-to-work, paralysing Kampala and other townships for much of 2011 and part of 2012.
In the current campaigns, he has reiterated his vow “never” to go back to the courts over elections. He insists in his current campaign of “defiance”, however, that he will resist “rigging” in the coming election.

It is not clear whether the entry of former prime minister Amama Mbabazi will change something regarding resort to the courts should elections be disputed. A number of observers say Mr Mbabazi seems to be building a case with the view of going to the courts if Mr Museveni is declared winner and there is controversy. Only time will tell.

Continues next Saturday