By Frank Tumwebaze
As usual our opposition groups are beginning to look for scapegoats to try and justify their impending loss in the forth coming 2016 general elections after failing to offer superior alternatives relevant to the Population .
What they fail to comprehend is that political work is very scientific. It's not about how "smart"one postures or schemes for short term political convenience, but its rather on how relevant one's political mobilization is to those whose support he/she seeks to win.
For political mobilization of any contender to be relevant, it must dispense a message of hope and offer realistic solutions to people's livelihood challenges.
It cannot be sustained around quarrels and squabbles of personal ambition driven by rivalry and envy. That is why it's no longer exciting to tell Ugandans that Museveni has stayed for long? So what about it? They have ever witnessed moments when Uganda was changing leaders the way human Beings change their dressings and nothing progressive was achieved.
The message of mobilization therefore has to be relevant to what affects every one's day to day life . This is where NRM scores against all the odds of propaganda and negative publicity in the media it faces all through.
After every election our colleagues only concentrate on demonizing one man called President Museveni instead of carrying out a genuine political Audit on their own political capacity. They continue to leave in denial. They fail to understand that by spending so much time only dreaming of a Tahirir square uprising in kampala and struggling to lure youth to engage in "street protests",only serves them to capture short lived media headlines, but does not in any way build for them a strong political centre of gravity where common interests of majority Ugandans can coalesce and thus win their substantial support. And for that reason the political geography of the country remains the same without themselves seizing any new territory of support. Independent opinion polls have time and again proved this fact.
Our opposition groups however, led mainly by Dr Besigye, and fully aware of all these political realities in as far as their political ratings stand; have resorted now to look for scapegoats. They trade mainly on two "cover" stories. I call them cover stories because they are not real. They are intended to be used as cover ups for their glaring political weaknesses .
The first one they are vigorously trading is the so called electoral reforms campaign. Ideally that would mean that they have a set of proposals suggesting either policy or legal reforms. And these would be specific with clear justifications for the different mandated arms of government to look at and consider.
Unfortunately these so called reforms are not any where articulated. Its all about one and only one obsession of theirs: Museveni and Museveni nothing else. To them electoral reform means removing Museveni. One wonders whether beyond their anti Museveni agenda, they have any thing else crucial to offer to Uganda's development trajectory. This eventually renders their whole crusade illogical.
For example they talk of disbanding the electoral commission; a body created by the constitution and appointed with the approval of parliament. One wonders how and who will disband a constitutionally provided for body? If they want to amend the constitution and perhaps propose a diffident procedure or criteria of appointment of members of the electoral commission let them come up with concrete proposals contained in a formal bill to parliament such that their proposals are subjected to rigorous scrutiny as is always the procedure.
But to dream and push for unconstitutional methods to bring about what they want is not only unreasonable but also unacceptable. When you ask them for a better frame work they clamor for, nothing substantive and serious is put forward. Yet the political frame work we are running is part and parcel of our constitutional order that Dr Besigye and others participated in making during the CA.
If indeed their call for electoral reforms was real, one wonders why they don't support genuine reforms like the national identity card registration exercise that will put to a complete stop all cases of multiple registration and therefore multiple voting. Why are they vehemently opposed to such initiatives that will help to build an irregularity proof-electoral system, if they are serious political actors of integrity?
Their second political cover story equally traded most is this "famous" lie told time and again, by both those who know the truth and those who speak out of ignorance; that the supreme court twice confirmed that elections were rigged and that only judges spared annulling the results on the just mere technicality of the substantiality test. Of course this is mot true.
Of all, I was recently astonished by retired justice Kanyeihamba for going on record at a national debate organized by the civil society echoing the same falsehood. I took serious exception to not only the inaccuracies the retired judge presented in regard to this story of the Supreme Court rulings; but also the way he was seriously contradicting his own earlier rulings on the same and which are on record.
The facts however are available.
In 2006 Besigye challenged the results of the Election in what is known as Election Petition No 1 of 2006. In order to cancel an election you must (under S.59 of the Presidential Elections Act) show that there were irregularities which affected the result in a substantial manner or that a candidate has personally committed an electoral offense. So the "substantiality test" is not a creation of the Supreme Court. That is the first to understand.
What happened in the Petition.
Besigye tried to argue that the substantiality test was a violation of the Constitution which said the only standard is that the election must be free and fair (Article 1(4)). All seven judges disagreed (including Kanyeihamba) and held that the Presidential Election Act does not violate the Constitution. I therefore invite the retired judge prof Kanyeihamba to go back and read that judgment his own piece inclusive.
Besigye made a number of allegations. Basically he said that the election was not free and fair and that a number of irregularities affected the result in a substantial manner to his disadvantage. He also said that Candidate Museveni then, had personally committed illegal acts like bribery and had also defamed him by calling him(Besigye)a musezi at a campiagn rally in Arua. All the irregularities cited were clearly explained in the judgements and could not in any way point to the fact that the election was rigged.
Though alleged by Besigye, they were not proved and so they collapsed. Rigging literally means that one party actually stole the votes at the expense of the other. No judge confirmed this. The magnitude of each of the irregularity raised, including those that were even proved was determined and explained by the judges. It had nothing to do with NRM or President Museveni. And there was no direct causal link established by the court between their effect and Besigye's loss. If the effect was there, it affected both sides. I can delve into some of the cited irregularities and show what the court said;
1. Disenfranchisement of voters: The majority found that about 150,000 people were removed from the Register. The circumstances are that after registration there was a display period for the voters register. Names were removed by parish committees. The Supreme Court found that,the procedure used by those committees was somewhat erroneous. Justice Katurebe said that although the procedure was not followed there was a lacuna in the law. And so the irregularity was systemic and not a creation of neither of the parties.
The judges found no evidence that this was a deliberate plan by NRM to remove FDC supporters from the Registar and there was no proof that the majority of people removed were Besigye supporters. Odoki held that even if they were, surely would 8 Million people be forced to vote again on account of 150,000 missing names? And in any case, if the 150,000 votes of those who did not, were to be donated to besigye, would that make him victorious? Just simple logic. Certainly not. Overturning the choice of the people therefore should be based on more than that.
2. Failure to cancel results where malpractices had occurred in Kiruhura, Paliisa and Manafwa. While this was alleged, the Court found no evidence to support the allegation that there were gross malpractices in manafwa and kiruhura. In Paliisa where the court established malpractices, the results in those particular constituencies were cancelled.
3. Failure to declare results in accordance with the law: The majority judges however dismissed this claim
4.Bribery; The court found bribery had occurred in some parts and that some agents of both parties(NRM and FDC) were involved but on the evidence they rejected the idea that there was "nationwide bribery" that rendered the entire process un free and unfair.
5.Multiple voting and Ballot Stuffing: A solider called Barigye claimed to have voted many times. However his evidence was so contradictory that Katurebe called it "too colored to be relied upon". However they found evidence of ballot staffing in Paliisa to be true but the results of the election in the constituencies in Paliisa had been cancelled by the electoral commission.
6. The court also looked at reports of election monitors. The Observers found the Electoral Commission had displayed significant improvement in the conduct of the elections. The reports showed "exgarrarted nature" of Kiiza Besigye's evidence. The court said Kiiza Besigye should not plead his case in "terns and synonyms" but his case must be "precise, specific and un ambiguous".
The DEMGROUP which had agents in 69 districts used a scientific sampling method that came to the same conclusion as the final result. So how could Kiiza Besigye then finally claim to have been rigged out and that results were doctored at Basima House?
All his allegations were however denied. The President then said that it was Besigye instead who had defamed him in Arua by alleging that he(President)killed Ayume.
By majority of four to three the court held that the irregularities did not affect the result in a substantial manner. By majority of 5-2 (the 5 include Kanyeihamba JSC) it was held that President Museveni did not commit any offenses as alleged by Besigye.
What did this mean?
By reading court judgment in full, it becomes evidently clear that besigye didn't have any strong case, the deliberate misrepresentations of the court judgement over time, notwithstanding.
For example , Justice Katurebe said that even if one voter was removed from the Register it would be a violation of the law. He however paused ; Would that be sufficient to cancel an election? He said that you cannot cancel an election based on evidence that is "flimsy, exaggerated and consists of outright lies." He then evaluated the evidence of Besigye and said that While there had been instances of systemic irregularities, he concluded that the election held reflected the will of the people who turned up to vote and that he would not interfere with the peoples' exercise of their discretion.
In his ruling justice Katurebe further cited examples that exposed glaring falsehoods and contradictions in Besigye's pieces of evidence. Like the case of Farida Nagawa, FDC supporter who alleged she was arrested and dumped in a cell with 400 people in mbarara on polling day. The judge did not believe that there was a cell that could accommodate 400 people in Mbarara. Farida then claimed that at 4pm Edith Byanyima got her released from that cell of 400 inmates in mbarara. The judge further pointed out that Ms. Edith Byanyima had stated in her own affidavit that by that exact time of 4pm, she was at Kiruhura Polling Station almost 100KMS away. So how then could she have been able to help Farida get released at the same time yet they were in two worlds apart? The lies couldn't add up!!
Odoki CJ held that; there was substantial compliance with the law and said "the elections though with some shortcomings enabled the will of the people of Uganda to be expressed and the results of the election reflected the wishes of those who were able to vote and who were the overwhelming majority. This means in effect that the irregularities did not affect the results in a substantial manner. 1st Respondent (Electoral Commission) exhibited significant improvement in the conduct of these elections, which were the first multiparty elections since 1980, and also the first time the Presidential and Parliamentary elections were held on the same day."He noted
Kanyeihamba in his dissenting minority opinion found that the substantiality test was wrong. He said that As long as there was illegality it should be enough to cancel an election, no matter the magnitude and the responsible actor. In his wisdom, He found that both Museveni and Besigye had rigged and when he put this to Besigye, his lawyer argued that for them they are allowed to rig. After all they lost.
The irregularities detected therefore were largely due to system errors and non compliance of different actors( agents, supporters, electoral officials) and these affected all contending sides but couldn't in any way fail the process to determine the winner. That is why any body serious about fighting electoral fraud and malpractices of any form must support initiatives like computerized registration of all eligible voters to totally seal off any loopholes. Such system errors however advanced a country may be in terms of technology, will manifest themselves any where, no matter the level of readiness. What matters is the will on the part of all the contenders to acknowledge and scientifically address them. But they cannot fail the intention of the voters to be known.
Frank Tumwebaze, MP
Minister in Charge of the Presidency and Kampala City