Court Reads Besigye Petition Judgement

By vision reporters THE five Supreme Court judges led by Chief Jus-tice Benjamin Odoki have finally given their reasons for throwing out Col. Dr. Kizza Besigye's petition to have President Yoweri Museveni's March 12, 2001 re-election nullified. Before the hearing started yesterday, the court and the lawyers for both the petitioner and the respondents (Museveni, and the Electoral Commission) identified five issues to decide in the petition. The issues were whether there was non-compliance with the Presidential Elections Act 2000, whether the election was not free and fair. The third was whether, if the first and second issues were answered in the affirmative, such non-compliance affected the result of the election in a substantial manner. The fourth was whether illegal practices or offences under the Act were committed with the knowledge, consent and approval of Museveni. The other issue was what reliefs were available to the parties. All the five judges agreed that there was non-compliance with the Act and that the principle of free and fair was compromised. However, three of them, Chief Justice Benjamin Odoki, Justices Alfred Karokora and Joseph Mulenga ruled that the non-compliance did not affect the result of the election in a substantial manner and that there was no evidence that Museveni knew or sanctioned what was going on. The other Justices, Arthur Oder and Wilson Tsekooko said that the result was substantially affected and that Museveni had knowledge of what was going on. Oder and Tsekooko ruled that the Electoral Commission failed to comply with the provisions of the law citing the late display and other anomalies in the voters' registers. Oder pointed out the absence of the voters roll and the failure to issue voters cards on time. He said the commission did a poor job of carrying out its responsibility. But Odoki ruled that the petition symbolised the restoration of democracy, constitutionalism and the rule of Law in Uganda. He said, "It demonstrated the fundamental democratic values contained in the 1995 constitution, which include the sovereignty of the people, the right of the people to choose their leaders through regular free and fair elections and the peaceful resolution of disputes. On the freedom and fairness of the exercise, all the judges ruled that the voters were harassed and intimidated by the army, especially the PPU in Rukungiri, Mbarara, Kanungu, Kamwenge districts. They also said there was no transparency in barracks in Mbarara, Gulu, Kitgum, Soroti and Mbuya. Mulenga said there was no justification about the continued stay of the PPU in Rukungiri after the polling day and three weeks after the President's visit. He said the PPU overstepped their specialised duty of protecting the president. He said he found a kind of intimidation that was not pleaded for (not complained about). He said Museveni's agents were near the basin where ballots were ticked so that voters voted to appease them (agents). Oder ruled that the PPU terrorised Besigye's supporters where they operated. "PPU struck terror. It was impossible to hold a free and fair election where PPU operated." But Odoki ruled that there was no evidence that the deployment of the army or PPU was a source of intimidation and harassment. He, however, concluded that harassment was limited to a few areas where it undermined the principles of free and fair elections. Tsekooko ruled that harassment by the army affected the result substantially because Museveni got more votes in areas where harassment was. The judges also pointed out that the arrest of former western youth MP Okwir Rabwoni showed the unfairness and the intimidation by the army. Oder said they did not want Okwir to campaign for Besigye and had to be removed at all costs. He said Museveni had knowledge of the circumstances. But Karokora ruled that the effect of Okwir's arrest could not "be quantified" to determine its effect on the result of the election. Mulenga said he did not find credibility in the rescue version advanced by the Chieftancy of Military Intelligence. He said the manner of execution indicated interference in Besigye's campaigns. But Odoki said the evidence adduced by Museveni and the commission cast serious doubts on Okwir's claim that he was forced to sign a statement withdrawing from the Besigye task force and that he fled to the UK for safety. "No reason was given as to why he alone of all the members of the elect Besigye task force should have feared for his life to force him to flee the country and thereby fail to vote in the presidential election. However, the fact of his arrest, detention and eventual freedom amounted to violation of his liberty. This contravened the principle of free and fair elections," Odoki said. "The petition was bound to affect the entire nation because the election of a president is by universal adult suffrage through a secret ballot," Odoki said. The three judges dismissed the claim that the commission did not comply with the provisions of the Presidential Elections Act. under which the said election was conducted. On the AIDS issue, Odoki and Karokora said Besigye failed to prove that Museveni's remark was false. Odoki said this meant that Besigye failed to prove that Museveni committed an illegal offence. Karokora said the onus was on Besigye to prove that Museveni made the AIDS remark without reasonable grounds. He added that Besigye never called on any witnesses to testify that they never voted for him because of the AIDS remarks. Karokora wondered whether Besigye was conceding that he had AIDS but could still perform his duties. Oder said the AIDS remark was false and that Museveni had no reasonable grounds to believe that Besigye had AIDS. He said he was satisfied that Museveni committed an illegal practice by making a false statement aga-inst a fellow candidate. Mulenga said Museveni did not commit an offence because Besigye failed to prove the AIDS remark was false. On offering of gifts, the judges except Tsekooko said the bicycle Museveni gave to Sam Kabunga, the man on whose boda boda he rode to Kololo for nomination, was not a bribe. He said it was meant to facilitate him as a campaign mobiliser. The four judges also agreed that announcements of increases in salaries for civil servants, tarmacking of roads and abolition of cost-sharing were not bribes. Odoki said the programmes were established much earlier than the campaigns. Mulenga said there was no evidence implicating presidential advisor Maj. Kakooza Mutale in abuses in the election process, other than one oblique case in Tororo. Oder said the only evidence he found about Mutale and Kalangala Action Plan was that of Yusufu Oketcho who said he was tortured in a yellow Movement Bus. "Oketcho's evidence is clear proof that Move-ment opreratives intimidated, harassed or tortured the petitioner's supporters," he said. Ends