5 THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA PRESIDENTIAL ELECTION PETITION NO. O1 OF 2016 (CORAM: KATUREEBE, C.J, TUMWESIGYE, KISAAKYE, 10 ARACH AMOKO, NSHIMYE, MWANGUSYA,OPIO-AWERI, MWONDHA, TIBATEMWA-EKIRIKUBINZA, JJ.SC.) AMAMA MBABAZI …………………………………….PETITIONER VERSUS 15 YOWERI KAGUTA MUSEVENI ……………. 1stRESPONDENT ELECTORAL COMMISSION ……………… 2ndRESPONDENT THE ATTORNEY GENERAL ………………… 3rd RESPONDENT PROFESSOR OLOKA ONYANGO & 8 ORS………..AMICI 20 CURIAE DETAILED REASONS FOR THE JUDGMENT OF THE COURT The Petitioner, who was one of the candidates in the presidential 25 election that was held on the 18th February, 2016 petitioned the 1 5 Supreme Court under the Constitution, the Presidential Elections Act, 2000 and the Electoral Commission Act, 1997 (hereinafterreferred to as the PEA and the ECA, respectively). He challenged the result of the election and sought a declaration that Yoweri Kaguta Museveni, the 1st Respondent, was not 10 validly elected and an order that the election be annulled. On the 31st March 2016, we delivered our decision in line with the Constitutional timeline imposed on the Court to render its judgment within 30 days from the date of filing the petition. We were not, however, in a position to give detailed reasons for our 15 findings and conclusion. We found that the 1st Respondent was validly elected as President in accordance with Article 104 of the Constitution and Section 59 of the PEA. Accordingly, we unanimously dismissed the petition. We made no order as to costs. 20 We promised to give the detailed reasons at a later date, which we now give in this judgment. Background The 18thFebruary 2016 General Elections were the 3rd since the re-introduction of multiparty politics in Uganda as the country 25 shifted from the movement system. The presidential race attracted a total of eight candidates, four of whom were party sponsored while four vied as independent candidates. The Petitioner stood as an independent candidate while the 1st 2 5 Respondent stood on the NRM party ticket. The others were: Dr. Kizza Besigye Kifefe (Forum For Democratic Change); Abed Bwanika (The Peoples Development Party); Baryamureeba Venansius (Independent); Benon Buta Biraaro (TheFarmers Development Party); Mabiriizi Elton Joseph (Independent) and 10 Maureen Faith Kyalya Waluube(Independent). On the 20th February 2016, the Electoral Commission (hereinafter referred to as the “Commission”), declared the presidential election results as follows: - Abed Bwanika 86,075 (0.93%) 15 - Amama Mbabazi 132,574 (1.43%) - Baryamureeba Venansius 51,086 (0.55%) - Benon Buta Biraaro 24,675. (0.27%) - Kiiza Besigye Kifefe 3, 270,290 (35.37%) - Mabiriizi Joseph 23,762 (0.26%) 20 - Maureen Faith Kyalya Waluube 40,598 (0.44%) - Yoweri Kaguta Museveni 5,617,503 (60.75%) ThePetitioner was aggrieved by the above declared results. He filed this petition before this Court under Article 104 of the Constitution and Section 59(1) of the PEA, based on various 25 grounds and complaints. In the petition,the Petitioner contended that the election was conducted without compliance with the provisions and the principles of the PEA, the ECA and the 1995 Constitution and 3 5 that this affected the result of the election in a substantial manner. For this, he faults the Commission. The specific complaints against the Commission included: illegal nomination of the 1st Respondent, illegal extension of nomination deadline, failure to compile a National Voters 10 Register, failure to issue voters cards resulting in disenfranchisement of voters, use of unreliable Biometric Voter Verification Machine (BVVK), failure to identify voters, late delivery of polling materials, failure to control polling materials, starting voting without first opening the ballot boxes, allowing 15 voting without secret ballot, pre-ticking and stuffing of ballot papers, voting before and after polling time, multiple voting, allowing unauthorized persons to vote in the presidential elections, prevention ofthe Petitioner’s agents from voting, chasing awaythe Petitioner’s agents from pollingstations and 20 denyingthe Petitioner’s agents information. Another set of allegations consisted of noncompliance with electoral laws by the Commission during the process of counting, tallying, transmission and declaration of results namely: counting and tallying of election results in the absence 25 ofthe Petitioner’s agents; declaration of results without Declaration of Results Forms; unlawful electronic transmission of results from districts to the National Tally Centre using theElectronic Results Transmission and Dissemination System( ERTDS); illegal and unlawful declaration of the 1st 4 5 Respondentas the winner of the presidential election without District Returns and District Tally Sheets and lack of transparency in the declaration of results. Among the specific complaints against the 1st Respondent were that several illegal practices and electoral offences were allegedly 10 committed by him either personally, or with his knowledge and consent or approval. They included voter bribery, violence and intimidation, making derogatory statements, war mongering and misuse of Government resources. The Petitioner made no specific complaint against the Attorney 15 General but several allegations were made against public officers and security personnel. ThePetitioner’s prayers to the Court included: an order for vote recount in 45 districts named in the petition; a declaration that the 1st Respondent was not validly elected as president; an 20 order annulling the election of the 1st Respondent and an award of the costs of the petition to him. The 1st Respondent deniedthe Petitioner’s allegations of breaches of the law. The Commission also opposed the petition and contended that the election was held in compliance with the 25 provisions of the electoral laws and asserted that, if there was any noncompliance, which was denied, it did not affect the result of the election in a substantial manner. 5 5 The Attorney General (hereinafter referred to as the “AG”) opposed the petition as well and further contended that it was, in any case, improperly joined as a party to the petition. All the Respondents sought the dismissal of the petition with costs. 10 At the commencement of the hearing, counsel forthe Petitioner applied under Article 126 of the Constitution, Section 100 of the Civil Procedure Act and Rule 15 of the Presidential elections (ElectionPetitions) Rules, 2001 vide Miscellaneous Application No. 1 of 2016 to amend the petition. The application was 15 allowed and the Amended Petition was filed on the 7th March 2016. The Respondents filed their answers to the Amended Petition on the 9thMarch 2016. Two applications were alsobrought before Court prior to the hearing of the petition for leave to intervene as amicus curiae in 20 the petition. The first one, Professor Oloka Onyango & Ors (MA No. 2 2016), was brought by lecturers from Makerere University Law School jointly. The second application, Foundation for Human Rights Initiative & Ors, (MA No. 3 of 2016), was brought by Civil Society organizations. Court allowed 25 Miscellaneous ApplicationNo. 02 of 2016 and dismissed Miscellaneous ApplicationNo. 3 of 2016. The Makerere University lecturers filed their amicus brief on the 17th of March 2016 which was copied to the parties. 6 5 The hearing of the petitioncommenced on 14th March, 2016 and ended on 19th March, 2016. Article 104 of the Constitution and Section 58 of the PEA require that the petition must be inquired into and determined expeditiously and theCourt must declare its findings not later than thirty days from the date of filing the 10 petition.The Judgment was thus set to be delivered on 31st March 2016. In accordance with the Presidential elections (ElectionPetitions) Rules 1996, the parties filed affidavit evidence in support of each party’s case. Furthermore, the chairman of the Commission, 15 Engineer Dr. Badru Kiggundu was cross-examined bythe Petitioner’s counsel. Althoughthe Petitioner stated in his affidavit that he had annexed documents set out in a list mentioned as Annexure ‘A’ as well as copies of Election Observers Reports, that was not the case. These affidavits were in fact never filed in 20 Court, nor were the Election Observer Reports. The Petitioner however, filed other affidavits on or about the 10th of March 2016. At the pre-hearing conference, the parties agreed on the following facts: 25 1. That there was a Presidential election conducted by the Commission on the 18th February, 2016. 7 5 2. That on 20th February 2016, the 1st Respondent was declared as validly elected president with 5,617,503 votes representing 60.75%of the valid votes cast. 3. That on the 20th February 2016,the Petitioner was declared to have polled 132,574 votes representing 1.43% of the valid 10 votes cast. The agreed issues were: 1. Whether there was noncompliance with the provisions of the PEA and Electoral Commission Act, in the conduct of the 2016 Presidential election. 15 2. Whether the said election was not conducted in accordance with the principles laid down in the PEA, and the Electoral Commission Act. 20 3. Whether if either issue 1 and 2 or both are answered in the affirmative, such noncompliance with the said laws and the principles affected the results of the elections in a substantial manner. 25 4. Whether the alleged illegal practices or any electoral offences in the petition under the Presidential election Act, were committed by the 1st Respondent personally, or by his agents