IT is day four of the election petition filed in the Supreme Court by former presidential candidate Col. Dr. Kizza Besigye.
The hearing is led by Chief Justice Benjamin Odoki. The other judges are Arthur Oder, Alfred Karokora, Wilson Tsekooko and Joseph Mulenga.
Joseph Balikuddembe is leading a team of lawyers for the petitioner, Besigye. Solicitor General Peter Kabatsi is leading the defence of the Electoral Commission while Dr. Joseph Byamugisha is leading the team defending President Museveni.
Alfred Wasike, Milton Olupot and Hamis Kaheru covered the proceedings.
Balikuddembe (JB): My lords, we are ready to start. We begin with the background statement leading to this petition. With the coming into force of the 1995 Constitution of Uganda, the people of Uganda put to an end the political instability and decided to establish the new political order based on democracy and fundamental rights. No one should try to violate them. Article one of the Constitution of Uganda stated, I quote, "All power belongs to the people who shall exercise their sovereignty in accordance to this constitution. And Sub-Article 4 reads, "All power and authority of government and its organs deriving from this constitution which in turn derived its authority from the people who consent to be governed in accordance to this constitution...That was Sub- Article 3...sub-Article 4 is, "the people shall express their consent on who should govern them and how they should be governed...through regular free and fair elections of their representatives or referenda."
Odoki: The purpose of this...? Balikuddembe...do you propose to supply authorities to the court?
JB: Yes, my lords, as I have indicated the list of authorities, and I will supply more as we go on... Article 60 of the Constitution established the Electoral Commission, the second respondent, and was also established by the EC Act of 1997...Under article 61 of the Constitution, the EC, ...sub-Article (a), it has the functions or the duty to ensure regular free and fair elections are held and order and supervise and conduct elections in accordance to this constitution and compile, revise and update the voters register.
Section 12 of the EC Act outlines the functions of the second respondent and I particularly want to emphasise...Section 1,2 and 10...to ensure that the whole process of election under conditions of freedom and fairness...The election of a President will be by universal adult suffrage through a secret ballot using one man's vote... to be held during the first 30 days of the last 90 days before the expiration of the term of the President and in this case, the last day was March 11th 2001.
The second respondent organised the election of the President to be held on Monday 12th march 2001 because 11th March was a Sunday....
It is the petitioners case that the 2nd respondent and all its servants and agents committed a lot of malpractices in contravention of the law and there was a lot of non-compliance with the provisions of the Presidential elections Act 2000 and that there was also non- compliance with the provisions of the Electoral Commission Act of 1997.
It should be noted that under the interpretation, Section 2 sub-section 2 of the Presidential elections Act 2000 defines the EC Act as being one with the Presidential Elections Act, that those two shall be construed as one...
We shall give evidence to show that the 2nd respondent failed to comply with a number of provisions of those two acts. We shall be pointing out in our submission the evidence showing that and proving that the second respondent failed in its duty to comply with these number of provisions in the said Act... The second respondent purposely failed to display the voters rolls as required by law for 21 days and purposely shortened that period which is mandatory to... total of five days and the result was that the voters register and rolls were not cleaned of ghost voters, people who had died, people who were not supposed to vote under the Ugandan laws.
And we shall point out evidence in this... To show that the voters register was never completed by the second respondent and it was in fact inflated and that it contained two million ghost voters. This evidence will be brought out in detail.
Secondly, we shall be pointing out that the second respondent organised the presidential elections on March 12th 2001 using a number of polling stations which were never gazetted as required by law and that they were brought to the notice of the petitioner on March 11th, a matter of hours before polling started the following day.
These polling stations are over 1,000 and that is not a small number.
And....as we shall be pointing out later, the petitioner was unable to appoint his polling agents to supervise all those new polling stations and safeguard his interests.
We shall also be pointing out that he filed the evidence to support the petitioners contention that the ballot papers and voters cards were printed in excess and were not...and were not securely kept by the second respondent and as a result, these voters cards ended in hands which should not have them and the same thing happened with the ballot papers...ballot papers were being stuffed in ballot boxes by agents and supporters of the first respondent.
The fourth area we shall be pointing out is that the first respondent purposely deployed the PPU, which in Rukungiri especially, terrorised voters and particularly the petitioner's supporters and agents. We shall, my lords, be pointing out evidence to show that the first respondent deployed the military all over the country purposely to facilitate his election as president and undermine your petitioner's chances for election as president.
Odoki: Deployed the military all over the country?
Balikuddembe: All over the country, my lord...purposely to facilitate his election as president of Uganda and undermine my client's chances for being elected president of Uganda (coughs). His evidence will show that many voters were harassed and intimidated and did not exercise their right to vote in the way they wanted as provided by the Constitution. We shall be pointing out many other things but the substance... is that the results of the presidential elections held on the 12th March 2001 were substantially affected. And that what was termed as the elections of the president was in fact a sham.
I will be pointing out that there was a systematic rigging of these elections. We shall be pointing out another particle of evidence to support the petitioner's contention that the first respondent committed illegal practices and offences under the Act and that the electoral offences were committed, by evidence, with his consent or approval, and that this by itself is a ground by your lordships to nullify the presidential elections 2001...
I will start with the ground which appears at page 88 of volume one of the petitioner's document filed here, that is the petition paragraph 32 (a) of the petition itself.
Before I start on that ground, I would like to apply that I cross-examine this witness of the 1st respondent, Dr. Diana Atwine, from the Joint Clinical Research centre here in Mengo.
Odoki: Is she here?
JB: My lords, that is why I am giving advance notice so that she can be availed. She is just a mile away, she can be availed by noon.
Odoki: Has she been warned?
JB: I got this affidavit at 7.30pm and I had no time to do that but they have sufficient man-power to get her. We want this witness by noon, my lords, that is my prayer.
Byamugisha: My lords, we are here to hear the petition and we do not have much time. If we go to pursue procedural matters then we may lose sight of the petition itself. The right given under section 14 is not a right. It says with leave of the court, any person who swears an affidavit may be cross-examined...and reasons must be given...no reasons have been given.
Byamugisha: My learned friends are interjecting by saying that they have not finished. If they want to finish, let them make the application formally and I can respond formally and also finish. I stood up because my learned friend wanted to proceed as if nothing had happened and he was not in fact seeking for leave to summon the witness. But if this court has to move on..
JB: I have sighted the law under which I stated that this witness we want to cross-examine is very important and has made statements in her affidavit, which we want to challenge. We are questioning the authenticity of the ennexture to her affidavit and therefore our submission is, her cross-examination is important over the death certificate.
We are also questioning the manner in which it was shown to her, the source where this death certificate came from to the hands of the lawyer for the 1st respondent and on the promptness of the testimony of the 1st respondent. Otherwise, I am ready to proceed, this witness can be called on later in the day.
Tsekooko: Don't you think it is proper for you to make a list of all witnesses you would like to cross-examine.
J.B: My lords, we shall do that in due course but we want to start with this one. We would like to cross-examine the 1st respondent, the 2nd respondent, but we shall apply.
Tsekooko: But your day is only today.
Byamugisha: This rule 14 says documents in favour of or against the petitioner shall be by way of affidavits read in open court. my lords, I submit that that is the procedure the court should substantially adopt and I would like to submit also that this trial is going to be conducted by way of affidavits.
I can see they had yesterday and today, their two days are wasted. My case is a heavy one. I will need the two days I was allotted in full and when I get there, I wouldn't want to be told that hurry up or the time is short. The petitioner seems to be eating up its days. I do not know where they will get the other time from, certainly I am not prepared to volunteer mine... (laughter) so he can proceed if he takes any time... he has not even started and he is saying, I want witnesses to cross-examine. I also wish to add that the reasons he has advanced are not sufficient. When a witness is uncomfortable to your side, you do not say I need you for cross-examination, If she has produced evidence which says that the petitioner is a liar, that is not good reason to call one for cross-examination I do not see any reason why these proceedings should be bogged down by procedural matters.
JB: The application is not a procedural matter because the substance of this evidence is...and the time allocated to us is two days, beginning today. Yesterday was not our day, it was nobody's (laughter, judges consult).
Odoki: The application to cross-examine Dr. Diana Atwine is granted. She will be called this afternoon
JB: We are starting with issue number four. I am starting with ground number 32 (a) of the petition at page 8 of volume one of the petitioner's documents as filed in court. This ground reads that contrary to section 65 of the Presidential elections Act, candidate Yoweri Museveni Kaguta publically and maliciously made a false statement that your petitioner was a victim of AIDS without any reasonable ground to believe that it was true and this false statement had the effect of promoting the election of candidate Museveni unfairly... as the voters were scared of voting for your petitioner who by necessary implication was destined to fail to carry out the functions of the demanding office of the president and serve the full statutory term... on this ground, we have the evidence of the petitioner himself, the petitioner's affidavit appears on page 12 of volume 1.
Dr. Kizza Besigye states that, "I am a Medical Doctor and I know that I am not suffering from AIDS but that the 1st respondent maliciously made false statements that I was a victim of AIDS without any reasonable grounds, to believing that that was true and this false and malicious allegations against me, had the effect of promoting the 1st respondent unfairly in preference of me alleged victim of AIDS as the voters were scared of voting for me who by necessary implication was destined to fail to carry out the functions of the demanding office of the president and to serve the statutory term." He attached a copy of the Monitor of March 8 2001 where the false incident was reported.
Museveni is quoted as saying, "The statement of AIDS was not made by me publically or maliciously for the purpose of procuring an election for myself and that I have known the petitioner for a long time and I made the statement honestly believing it to be true and I said so because of a woman named Judith Bitwire with whom the petitioner cohabited and the petitioners child died of AIDS in addition to his bodily appearance that bears a strong resemblance to that of AIDS victims I have observed in the past...,"
My lords, it is important to note that the 1st respondent does not deny making that statement. He is only saying he did not make it publically or maliciously, but he admits making it.
I would like now to bring to your notice the petitioner's affidavit in reply of the 1st respondent. It was filed yesterday. The petitioner says it is true his companion Judith Bitwire died but he did not know the cause of the death and that he had a child with the late Judith Bitwire but this child did not die of AIDS.
"I hereby state that the statement admitted by the 1st respondent as having been made that the petitioner is a victim of AIDS was meant to stigmatise me and undermine my candidature before the electorate through demoralising my supporters and voters in general and promote his own candidature against me.
"The 1st respondent has never tested or diagnosed me and found me as an AIDS victim and has never spoken to me about my health status. My appearance, which is natural just like any other person, cannot be used to know or make one believe that I am a victim of AIDS.
"There are no obvious resemblance of AIDS victims for knowing or believing that a person is an AIDS victim. During the presidential campaigns, I traversed the country without breaking down or feeling particularly fatigued. The statement was made publically and the journalist of the Time Magazine and the Website in there...this magazine is sold all over the world including in Uganda.
"The 1st respondent said in a press conference that State House is not a place for an invalid or of the invalid. That the place is for someone who is in control of all his faculties both mental and physical and by referring to me as an invalid, without all my faculties and incapable of being a president, the 1st respondent undermined my candidature before the voters while promoting his own candidature to my prejudice at the election...
"I know the meaning of an invalid and I am not an invalid as suggested by the 1st respondent in his March 11 2001 press conference." (lunch break)
The court resumes in the afternoon. Besigye's lawyer, Peter Walubiri, continues cataloguing incidents in which President-elect Museveni allegedly deployed the army nationwide especially the Presidential Protection Unit (PPU) to harass and intimidate his client's supporters.
Walubiri: My lords, we have evidence in form of affidavits deponed by victims in many parts of the country to show how the first respondent (Museveni) used the PPU to assault, intimidate and threaten voters to vote for the first respondent and cause disharmony and a breach of peace throughout the entire campaign period in Rukungiri district and other parts of the country.
In one incident, a one Baronda Johnson was shot and killed. He is named in paragraph 19 of the affidavit in reply. We have attached a copy of the Uganda Government death certificate which shows that he died of bleeding resulting from gunshot wounds. All this was reported by your petitioner (Besigye) to the Electoral Commission (the 2nd respondent).
My lords, the Electoral Commission chairman (Aziz Kasujja) was concerned and I would dare say, gravely about the activities of the PPU and the military who were threatening to wreck the entire electoral process. The chairman accordingly wrote a passionate appeal to the first respondent to intervene and save the democratic process from disintegrating.
Kasujja said in his letter that the Electoral Commission "wishes to appeal to you as the head of state and the fountain of honour to intervene and save the democratic process from disintegrating." At the bottom, it addresses the issue of the PPU. We expect that the deployment of the PPU is made where the President is expected to be. They were telling the incumbent to attend to a very grave situation and there was no reaction from the first respondent.
Byamugisha: I object.
Walubiri: But there is no evidence in reply to the petitioner's affidavit by the first respondent that he replied or addressed the situation which had unfolded. On the contrary, we have evidence that the PPU remained in Rukungiri up to election day and continued to terrorise the population. The PPU spilled over into Kanungu district after Rukungiri was too small for them.
My lords, in volume 2 of your petitioner's affidavit, there are a number of affidavits alluding to the continued intimidation by the PPU. (reads out affidavits sworn by a Monitor newspaper reporter, Patrick Matsiko wa Mucoori, Bernard Matsiko, Sam Kakuru, Henry Kanyahitaho, Nathan Kato, John Kasamunyu, Richard Bashaija and others who claim that the army, especially the PPU under Capt Ndahura, beat up people suspected to be Besigye's supporters.
He also read out affidavits by Mbarara Municipality MP/ Besigye's wife, Winnie Byanyima, detailing how youth MP Rabwoni Okwir was arrested at Entebbe International Airport. Byanyima said she recognised Capt Moses Rwakitarate, who headed the Okwir arrest operation. The lawyer said Okwir, who was abducted on February 20, was not charged with any offence in any court. He also read out Okwir's affidavit in which he claims to have been tortured, forced to sign certain documents by some senior UPDF officers, his telephone conversation with Museveni, how his residence at Bunga was under siege by the PPU/CMI and how he was forced to flee into exile for his safety.
Besigye also complained about the deployment of Major Roland Kakooza Mutale with his forces under the Kalangala Action Plan.)
Byamugisha: My lords, the other witness the petitioner wanted has come. It would be convenient to cross-examine her now. (Dr Diana Atwine from the Joint Clinical Research Centre takes the witness stand and takes an oath to be cross-examined by one of Besigye's lawyers, Kenneth Kakuru. Atwine reportedly signed a death certificate for Besigye's former companion, Judith Bitwire, who died there in 1999)
Walubiri: I will let my colleague Kenneth Kakuru handle this, then I will wrap up the illegalities by the army.
Kakuru: How long have you been a doctor?
Atwine: Since 1997 August. I graduated in February 1997.
Kakuru: when did you finish your internship?
Atwine: in November 1998.
Kakuru: are you a pathologist?
Mulenga: Counsel, slowly
Kakuru: Much obliged, my lords. In your work, do you issue death certificates?
Kakuru: Are death certificates part of medical records?
Kakuru: You don't keep copies of death certificates?
Atwine: Because we keep a summary of the patients. One goes to the relatives of the dead and the other accompanies the body to the mortuary.
Kakuru: In what form do the death certificates appear?
Atwine: they are prepared sheets
Kakuru: Who prepares them?
Atwine: Hospital authorities
Kakuru: So when did you prepare Judith Bitwire's?
Atwine: on 21st May 1999.
Kakuru: What did you do?
Atwine: I handed the original over to her relatives and the carbon copy accompanied the body to the mortuary.
Kakuru: In your affidavit, you said in paragraph 4 that counsel for the first respondent showed you the death certificate. Who is that counsel?
Atwine: Mr Rukutana.
Atwine: Yesterday but one
Atwine: I was summoned to their offices at Nakasero.
Kakuru: Which one did you see?
Atwine: the carbon copy which accompanies the body to the mortuary.
Kakuru: which mortuary?
Atwine: I don't remember.
Kakuru: Are you the one who gave it to Rukutana?
Atwine: I am not the one.
Kakuru: Are you the one who gave it to Museveni?
Atwine: I am not the one. I was merely called because I am the one who signed it.
Kakuru: What we have is a photocopy. Is that the carbon copy you were shown?
Atwine: This is a photocopy.
Kakuru: I insist that counsel for the first respondent shows the witness the carbon copy. (the judges rule that he continues) You said that the patient had advanced immuno-suppression, is it not true for every patient who has ailed for a while?
Atwine: it is not always so.
Kakuru: What happened in this case?
Atwine: It was obvious that this patient had advanced immuno-suppression.
Kakuru: did you divulge this information?
(Rukutana re-examines Atwine): You said you prepared two documents?
Rukutana: Who did you hand over it to?
Atwine: Her brother, her auntie and her father.
Rukutana: you don't remember which mortuary the body was taken to?
Rukutana: What do you actually mean what she died of?
Atwine: I can't discuss that. I took an oath to keep confidentiality about my patients.
Rukutana: Do you recall the name of any of the relatives?
Atwine: the father, Mr Bitwire and her former husband, the one you now call the petitioner. I recall him being there.
Rukutana: Did you know the patient called Judith Bitwire?
Atwine: I knew her.
Rukutana: Did you handle any other patients in those names?
Rukutana: Do you know the former husband?
Atwine: It is the petitioner. I don't want to mention names here.
Walubiri resumes with his catalogue of atrocities allegedly committed against the population during the electoral process. He said there was no legislation to back the deployment of the army to replace the police during the elections. He accused Museveni of threatening his client with death. He said Museveni admitted making the threats in his affidavit) In conclusion, my lords, we invite you to find and hold that several illegal practices and offences under the Presidential Elections Act were committed by the first respondent personally and several were committed by his agents with his intimate knowledge, consent or approval and on this ground alone, order that the presidential elections held on 12th March be annulled.
Finally, on the evidence that has been laid before you, it is clear that offences were committed. We pray that you make a report to the DPP under section 58 sub-section 9 of the Presidential Elections Act so that the DPP may take appropriate action against the first respondent Museveni Yoweri Kaguta and all those other persons implicated by the overwhelming evidence. We so pray.
Hearing continues today.
Besigye Says Stigmatised By Museveni HIV Remarks