Top Ugandan Lawyer Dismisses Judgement of Supreme Court on Election Petiton
On 31 March 2016, in a unanimous ruling, all nine Justices of the Supreme Court (SC) upheld the declaration by the Electoral Commission (EC) chairman Dr Badru Kiggundu of incumbent Mr Yoweri Kaguta Museveni as validly elected president.
The SC also found the EC grossly incompetent in managing the electoral process. The Court identified several instances of non-compliance with electoral laws. However, the Court proceeded to rule that EC’s gross incompetence and non-compliance with the electoral laws did not substantially affect the final result and subsequently declared that Mr Museveni was validly elected despite the many flaws in the electoral process.
It is troubling that an electoral body that is unanimously declared grossly incompetent for noncompliance of electoral laws by the highest court in the land can still be deemed by the same court SC to have conducted valid presidential and parliamentary elections. The findings and the conclusions are a contradiction in terms.
Having determined that the EC conducted grossly incompetent elections and in violation of several aspects of electoral law, the SC should have ordered nullification of the entire electoral process and directed the holding of fresh elections. Specifically, the SC should have proceeded to direct: (a) the EC to show cause why it should not be disbanded and its members referred to the Director of Public Prosecutions (DPP) for investigations with a view to prosecution; (b) the first respondent (Mr Museveni) to show cause why his declaration of election as president of Uganda should not be nullified and, (c) if the Court is satisfied that he may have committed electoral offences, Mr Museveni should have been referred to the DPP to further investigate the matter. If prosecuted and found guilty, he should be barred from participation in future elections. There is no immunity from prosecution for electoral offences.
The reluctance of the SC to put effect on its findings of violation of the Constitution and Electoral Laws constitutes provocative acts and possible abuse of legal process. The SC failed Ugandans by shying away from its constitutional obligation in drawing the logical and only reasonable conclusion that the electoral process was so flawed that no reasonable court could accept the result as valid. The SC conclusion is apparently based on expediency. Support for, or bias in favour of the National Resistance Movement (NRM) is not necessarily a patriotic act but opportunistic undertaking that undermines efforts to build a constitutional democracy in the country. To understand why the SC let down Ugandans, it is necessary to briefly look at the context under which the presidential and parliamentary elections were conducted.
Before, during and after the February 18 presidential elections, the leading opposition candidate Dr Kizza Besigye was intimidated, harassed and detained by members of the security forces several times over. The Uganda Peoples Defence Force (UPDF) and Uganda Police Force (UPF), the two coercive State organs under the personal control of Mr Museveni, were used by the NRM, not only to humiliate and detain Dr Besigye, but also to intimidate other members of political parties opposed to the NRM. The harassments of Kizza Besigye extended to Mr Mbabazi and his security team. For example, after a brief confrontation between NRM and Mr Mbabazi’s political supporters, his chief of security was arrested by the UPF and then ‘disappeared’. As at the time of writing, application to produce Mr Mbabazi’s chief of security in court (habeas corpus) is still pending. The Electoral Commission chairman Dr Badru Kiggundu did not intervene to protect Mr Mbabazi’s rights to freedom of expression and free movement or that of his political supporters during election process.
Meanwhile, Mr. Museveni, and his political party, the NRM, continued to unlawfully and in violation of presidential and parliamentary electoral laws and norms, used State resources and other State institutions for his personal campaign as well as for NRM parliamentary candidates. The use of civil servants, allegedly to ‘explain government policies’ to voters was summarily dismissed by the SC on the ground that it did not constitute abuse of civil servants or State institutions within the meaning of electoral laws. Similarly, Mr Museveni’s promise, and subsequent distribution of hoes, to voters in West Nile region was dismissed by the SC, by explaining that Mr. Museveni and the NRM were simply implementing existing government policy of ‘wealth creation’. Actions of the NRM, as a political party contesting elections on the one hand, and that of government, on the other hand, were conflated by the SC in its ruling for the benefit of Mr Museveni.
In their reports after the elections, national and international electoral observers, with the exception of the African Union (AU) and the East African Community (EAC), concluded that the elections were not free or fair, did not meet minimum international standards, and did not represent the views of the majority of the voters. The European Union (EU) was particularly critical of the EC. The EU criticised the EC for permitting the incumbent to use state resources for campaign, including denying equal access to opposition parties and candidates’ to State media. Throughout the campaign period, Mr Museveni continued to raid the national treasury for his campaign funds. All these acts are in violation of electoral law.
Let us attempt to explain why the SC ruling, as articulated in the summary judgement, constitutes an act of provocation. First, it is unusual for all nine justices of the Supreme Court to think alike and have the same opinion on all twenty grounds raised by the petitioner. The least Ugandans expected from the SC are dissenting opinions from one or more judges. Nothing happened.
Second, it is intriguing why the SC did not believe in the petitioner (Mr Mbabazi) and his witnesses but believed in the arguments of the respondents (Museveni, EC and AG) and their witnesses notwithstanding Dr Kiggundu’s poor performance under cross-examination.
The petitioner and the respondents relied on different narratives of the same set of events. With respect to the petitioners’ narratives, the SC opined: “Such a scenario needs an explanation.” Yet, as regards the respondents’ narratives, the SC accepted the versions (first, second and third respondents) without further explanations. Hopefully, the SC reasoning will be provided when the full judgement is available and accessible to the public. The summary judgement does not address these issues.
Be as it may, the practice of the SC in election petitions, based on the precedent of 2001 and 2006 judgements, suggest that each judge is expected to give their own individual opinion and reasoning as to whether what they have found substantially affected the final results. In the instant case, it is inconceivable that all nine justices were unanimous on every ground the petitioner raised before the SC.
Thus, to reflect on possible reasons why the SC ruled in favour of Mr Museveni, it is necessary to appreciate the context under which the Judiciary and other state institutions operate in Museveni’s Uganda. Since he seized power in 1986, most informed Ugandans agree that Mr Museveni is a control freak and a bully. He micro-manages all aspects of State institutions and governance. Mr. Museveni directly or indirectly controls the UPDF; UPF, the various intelligence organizations; his own party, the NRM and all State institutions through multiple offices that he holds. Business men and women operate in Uganda at the pleasure of Mr Museveni. All top officials in Uganda are Mr Museveni’s appointees and report directly to him or through his multiple offices.
Mr. Museveni also play direct roles in the appointment and supervision of officials responsible for infrastructure developments, for example, roads and dam constructions; supervision of sale, or donation of lands, approval of tender and contracts, awards of scholarships and general supervision of the civil service work and personnel. Most corrupt activities occur under his supervisions. Nothing gets done in Uganda without Mr. Museveni’s knowledge or approval. The micro-management of State institutions by Mr. Museveni extends to the Judiciary.
The Supreme Court and Presidential Election Petitions
The conduct of presidential petition before the SC has always been flawed and tweaked in favour of Mr Museveni. It was in 2001 that Dr Kizza Besigye first challenged Mr Museveni’s election as president before the Supreme Court. The SC found that there was non-compliance with the electoral laws. The SC identified a number of irregularities but concluded that these non-compliance and irregularities did not substantially affect the result. Similarly, Dr Kizza Besigye’s 2006 presidential petition was dismissed based on the ground that the non-compliance with the electoral law did not substantially affect the final result. The only difference is that in the 2006 Ruling, three Supreme Court Justices dissented and reasoned that Mr. Museveni’s election was unlawful.
Several attempts to reform electoral laws were blocked by Museveni through the use of NRM majority in the national parliament. The law remains tilted in favour of the incumbent.
Recognizing that the SC is fully controlled by Mr Museveni, Dr. Besigye resolved not to petition the Supreme Court in future presidential elections. Thus, in 2011 and 2016, Dr Besigye never went to court to challenge the results of the flawed elections.
In 2016, in particular, even if Dr Besigye wanted to petition the Supreme Court as many independent observers believe he won the elections, he could not have done so because, throughout the relevant period, he was unlawfully detained by Mr. Museveni’s Police, commanded by Gen Kale Kayihura, the Inspector General of Police. It is interesting that a day after the Supreme Court declared Mr Museveni as duly elected president, and there is no appeal against the Supreme Court decision, the release of Dr Besigye from unlawful detention was announced by Gen Kale Kayihura. However, as at the time of writing, Dr Besigye, after 40 days, is still under unlawful detention and his urgent application seeking release from detention is still pending before the High Court.
The very thought that his election as president could be nullified by the Judges of the Supreme Court horrified Mr. Museveni particularly after 2006 petition when three Supreme Court judges dissented. Fortunately for Museveni, prior to the 2016 Presidential Elections, several vacancies became available in the Supreme Court. Justices George Kanyiehamba, John Wilson Tsekoko, Christine Kitumba, Galdino Okello and Chief Justice Benjamin J Odoki, all by reasons of age, retired from the Bench. Mr. Museveni then went on to choose judges he could depend on to deliver judgements in his favour under any circumstances.
While Mr. Museveni, in his public statements and policy statements condemn sectarianism, nepotism and tribalism, in practice he has set the country in the path of disintegration by relying primarily on people from his home region. Western Uganda, a part of Uganda where Mr Museveni’s home is located, has now evolved into a super and dominant State within the Ugandan State. It now rules the country. The top leadership of all State institutions are from western Uganda. This includes the Supreme Court.
In replacing the retired justices of the SC, six out of nine judges appointed by Mr Museveni are from western Uganda. The other three judges, all believed to be devoted NRM cadres, are from the other regions of the country. Mr. Museveni’s appointments in the Supreme Court do not reflect the national character of Uganda as a state. The use of NRM cadres as judges of the Supreme Court undermines attempts to build a constitutional democracy.
To meet his objectives, although Mr Museveni’s favourite judges who were selected have the requisite qualifications, it is also strange that senior justices with proven records who sat interviews conducted by the Judicial Service Commission (JSC), performed well, and were recommended for Supreme Court appointment by the JSC, were passed over. These senior and experienced judges include Remmy Kasule, Solomy Balungi Bossa, and Stephen Martin Egonda-Ntende, to mention but a few. Apparently the only qualification these judges lacked is their respective ethnic backgrounds.
Absent major restructuring of all Uganda’s institutions, including genuine separation of power of the Executive, Parliament and the Judiciary, the country shall continue to hold sham elections under a one-man dictatorship. It is up to the Ugandan citizens to change the current deplorable situation.
Dr Odora Obote, International Lawyer
Author ‘Uganda: Confronting Impunity Through Accountability’