The decision by the Supreme Court in Uganda to dismiss a petition filed by opposition Forum for Democratic Change leader, Dr. Kizza Besigye seeking a nullification of the February 23rd Presidential elections results seems to be a win-win for both parties.
Both the petitioners and the respondents have claimed victory in the ruling that was in many ways similar to the one of 2001. All judges of the court agreed there were irregularities in the elections but the majority of the judges said they were not substantial enough to cause the court to nullify the elections. As was the case in the 2001 ruling, the Supreme Court has not granted costs to either party following the dismissal, arguing that each party should meet their own costs in the suit.
In March 2006, Dr. Kizza Besigye, the leader of the leading opposition party, Forum for Democratic Change, petitioned the Supreme Court over the results of the February 23rd elections, in which incumbent Yoweri Museveni was declared winner with 59 %.
Besigye claimed the election was fraught with numerous irregularities and he accused Museveni of personally committing several electoral offenses. He also accused the Electoral Commission of colluding with Museveni to rig the election.
With a majority of 5-to-2, the panel of judges of the Supreme Court ruled that Besigye failed to prove that the irregularities and malpractices committed during elections were substantial enough to affect the outcome of the polls or to lead to a nullification of the results. They also said Museveni did not commit substantial crimes to change the result.
Although the Supreme Court dismissed Besigye’s petition, the Court in a highly awaited ruling read today by Chief Justice, Benjamin Odoki, noted that there was non-compliance of some provisions of the Constitution, the Electoral Commissions Act and the Presidential Elections Act in the conduct of the elections.
Odoki said the principle of free and fair elections had been compromised and that voters had been desensitized by the Electoral Commission, which arbitrarily removed some voters’ names from the voters’ register.
In his petition, Besigye was calling for the nullification of the results, recounting of the votes and/or a rerun because the electoral exercise was marred by bribery (including giving out of items like sugar, salt and other beverages together with promises).
Besigye said president Museveni made malicious, derogatory, defamatory, abusive, sectarian, exaggerated and false statements like calling him a terrorist with links to the rebels Lords Resistance Army and an opportunist among others.
He also contended that the election was characterized by massive involvement of the military and other state agents to intimidate voters while there was also vote stuffing.
The Supreme Court hearing the petition comprised seven Judges; Bart Katureebe, Joseph Mulenga, John William Tsekoko, Arthur Oder, Alfred Karokora, George William Kanyeihamba and the chief Justice Benjamin Odoki who presided over the court proceedings.
In the ruling that must have brought a big sigh of relief to President Museveni and his party, the Supreme Court also absolved Museveni of any wrongdoing. Justice Odoki said there was insufficient evidence to prove that the president had bribed voters or used malicious and sectarian language to describe Besigye in his campaigns.
Not everyone had it easy, though. The Supreme Court issued a warning against the involvement of security forces in the elections. Justice Odoki said the presence of security forces had intimidated voters.
He also pointed a finger at the Uganda Electoral Commission, for what he called the partial conduct of the elections and inadequate voter education. He also told off the Electoral Commission for their failure to submit reports of Returning Officers to court as required by law.
The Court agreed with the petitioners that the announcement of the results of the election results was not in accordance with the Presidential Elections Act and that the EC failed to nullify results in the areas that were marred by malpractices as is required by law.
The Supreme Court judges pointed out that there was bribery, vote stuffing, multiple voting and intimidation in different parts of the country as well as disenfranchisement of voters by deleting their names from the register without their (voters’) consent.
The judges (4-3) however noted that the evidence provided by the petitioner was not substantial enough to call for the nullification of the results of the presidential elections, only calling on the relevant authorities to revise the Electoral Laws.
Assoc. Prof. Yusuf Nsibambi, one of the petitioner’s lawyers, welcomed the ruling saying it is a positive move in Uganda’s political future because it has specifically pointed out areas that need to be addressed.
Nsibambi said they achieved the biggest percentage of their mission of petitioning because they were not only seeking for the nullification of the results of the election but to address the contradicting laws governing the electoral process as well.
He said that the law that calls for substantial evidence is unrealistic.
“A petitioner cannot afford to raise say 600,000 affidavits and have head counting of all the people who have been denied to vote so as to have the election nullified with the limited time given for one to file a petition,” he said.
The State Minister for Information, Dr James Nsaba Buturo accused the opposition for always advocating ideal situations. “In real life, one cannot be perfect always, but we need to strive to achieve the best which is a process that calls for patience and working as a team towards its realization,” he said in an interview with Ultimate Media.
FDC Secretary of Electoral Affairs, Rubaramira Ruranga said that the verdict is a win for the FDC and generally the opposition, adding that it was only the Supreme Court that could expose the malpractices in the electoral process.
He however blamed the Supreme Court Judges for the loss registered by the petitioners, saying they feared to make a ‘right’ ruling. “With the massive ballot stuffing, bribery and intimidation noted by the judges, the ruling should have been otherwise,” he said.
However, the Solicitor General Lucian Tibaruha who represented Electoral Commission in the case said that if Electoral Commission was found by court to be incompetent, then the election results would have been nullified. “This ruling is the people’s victory. The millions of Ugandans who voted have been answered,” he said.
Kampala advocate and MP Elect for Kampala Central Division (opposition Democratic Party MP), Erias Lukwago said the Electoral Commission has been battered by the Supreme Court and wants the Chairman of the Commission and his team to resign.
“At least the Electoral Commission officials will not go with their heads facing up that they did a good job. The court has exposed their incompetence,” he said.
The chief justice, Benjamin Odoki said they rejected the application by the petitioner seeking for the constitutional court interpretation of the inconsistencies of the Constitution and the Presidential Elections Act on proving irregularities in a substantial manner because the proceedings are special with limited and set time to beat.
He also said the constitution gives power to Parliament to make laws and grounds on which an election can be nullified.
Odoki said that the reasons for each judge’s decision on each issue will be given later as time could not allow them to compile each detail.
