Let Doctor State The Cause Of Bitwire's Death - Defence

Judges enter at 9.46am. It is raining outside. President-elect Yoweri Museveni today opens his defence. His lawyers led by Dr Joseph Byamugisha are frequently referring to Museveni's affidavit that Besigye had AIDS.(See The New Vision of March 31, 2001). Alfred Wasike, Milton Olupot and Hamisi Kaheru covered the proceedings. Byamugisha: My lords I appear for the first respondent (Museveni) with my team. The learned Solicitor General (Peter Kabatsi) appears for the second respondent (the Electoral Commission) and Joseph Balikuddembe and his team appear for the petitioner (Besigye). This morning I will read out the affidavits and relate them to issue number 4. Since those affidavits refer to other issues, they will be read out for those issues as well. My lords issue number 4 reads: ( reads)...the commission of offences and illegal practices under section 58 subsection (6)(c) of the Presidential Elections Act. Tsekooko: Repeat Byamugisha: Section 58 subsection (6)(c), I will read: ...the election of a candidate shall only be annulled if...But I will start with the statement made by Balikuddembe, counsel for the petitioner that if an offence is proved under this section then your lordships must annul the election. I have disagreed with my friend that this is not so. I would request you to rule firmly on this matter so that we can get future authorities for reference. Oder: Why do you say that nullification is not automatic? Byamugisha: We say so because the section does not say so. Secondly under previous laws when a candidate was declared to have committed an election offence he was prohibited from standing for five years. Oder: Which laws? Byamugisha: Previous laws like the National Assembly Election Act. In this case the candidate who is declared to have committed an election offence is not prohibited from standing is allowed to stand even if the election is annulled. We rely on Article 1 paragraph 4 of the Constitution which provides that regular and free elections shall be held... Mulenga: Section 1? Byamugisha: Article 1 paragraph 4. I will read it: "...the people shall express their will on who shall govern them..." My lords the people have expressed their will...that someone has committed an election offence has not been proved. We invite your lordships to hold that you cannot annul the election on this ground. The petitioner did not also prove that the commission of offences or malpractices make the election unfree and unfair. I invite your lordships to use Article 2 paragraph 2 of the Constitution which provides that if any other law or custom is inconsistent with the Constitution...is void. Mulenga: The article you have cited? Byamugisha: Article 2 paragraph 4...(reads article) Odoki: You are asking us to declare section 58 void? Byamugisha: To the extent that it is inconsistent with the constitution Mulenga: What do you say it is inconsistent with? Byamugisha: The people in a free and fair election have expressed their will. Mulenga: Which particular part of the Constitution is violated by section 58(6) (c)? Byamugisha: Article 1 of the Constitution. If they have chosen my client and are ordered to vote again, it would be inconsistent with the constitution. If they go back to vote, the result will be the same (the packed courtroom bursts into laughter) Odoki: Will you be assisting us with some authorities? Byamugisha: Yes we shall be assisting you my lords. A lot of the evidence of the petitioner and his grounds is bad in law, is likely heresy. Mulenga: The petition? Byamugisha: The evidence...allegations without proof...I have seen affidavits with unproven allegations contrary to section 58 (6) (c)...under sections 59 and 60 of the Evidence Act. We shall show that the evidence brought by the petitioner is inadmissible. I will read some of the affidavits. I will refer to sections 72, 75 and 76 of the Act. We shall also refer to sections 101 and 102 of the Evidence Act. We shall also refer to the Presidential Elections (Elections Rules 2001)...my lords I now move to the petition and show to you that the facts relied on by the petitioner are indeed not facts. Page 8 of the petition sets out the illegal practices. I will read them my lords starting with the one on AIDS...that President Yoweri Museveni maliciously said that the petition is a victim of AIDS...that voters were too scared to vote for the petitioner because he is a victim of AIDS...the evidence on that is at Page 23 of the petition, the supporting affidavits saying...that I know that I am not suffering from AIDS...that was malicious and it had the effect of scaring away my voters...he (Besigye) also says...I herewith attach a copy of The Monitor of 8th March 2001...my lords this is a repetition of the averment on Page 230...they are just reproducing allegations...let me show you how this is not evidence...(reads section 65)...the petition has to prove that the statement is false...the petitioner says I know I am not suffering from AIDS...is that evidence that the man does not have AIDS? Tsekooko: But isn't that evidence from his own mouth? (laughter ) Byamugisha: But he should take tests Tsekooko: But he has sworn an affidavit. Byamugisha: That is not evidence. I submit that that is not evidence. Mulenga: May be you first complete your list then we take item by item. Need the petitioner prove anymore? Byamugisha: My lords the statement was made to a journalist of Time magazine. But the petitioner has to prove that the statement is false. He also has to prove that it was for purposes of promoting and procuring the election of another candidate. On that part I would like you to consider that... Mulenga: Did you say another candidate? Byamugisha: Yes. He must prove that that statement was made in the knowledge that it was false and or knowing that it was true. My lords I will start with his statement that I know that I am not suffering from AIDS...the petitioner on 5th April 2001 made an affidavit which clearly shows that he too was aware that he had not made a case that he was not suffering from AIDS... Karokora: That what? Byamugisha: Which shows that he has not made the case that he is not suffering from AIDS. It is the petitioner's affidavit-in-reply to the first respondent. It was filed on the 5th of this month. We start with paragraph 3...he (Besigye) says it is true that Judith Bitwire was my companion from 1991 to 1999 when she died...my lords you heard the doctor telling this court that he was one of the persons who took away the body (Bitwire's). Why does he want to hide the cause of his wife's death? He also says that he had a child with Bitwire. The child also died. Why does this medical doctor (Besigye) not tell your lordships what his wife and child died of? He is hiding something. When you got to paragraph 6, he says the statement was false and that the first respondent has never tested or diagonised me to prove that I have AIDS. Why doesn't the petitioner say he has been tested. I will submit later that testing is a very important method to prove that a person has or does not have AIDS. If the petitioner wants this court to believe him then he must produce evidence to contravene the first respondent's statement. The petitioner must show that the statement that he has AIDS is false. He says that his appearance cannot make one believe that one has AIDS. But my client has assured me that... Tsekooko: Is that imagination? Byamugisha: No it is not...under paragraph 9, the petitioner says I have never been bedridden and I travelled the whole of Uganda without getting fatigued...that is his other evidence to prove that he does not have AIDS...Look at Volume 5 Page 200 or 2000, the very last sheet...that is Major Rubaramira Ruranga's affidavit. He (Ruranga) says that I have been living with HIV for 16 years and I go about my duties normally...my lords, this man has been living for that long with HIV. He also sleeps with his wives. He has shown that even with AIDS someone moves normally. So my lords, Ruranga's affidavit disapproves the petitioner. This circumstantial evidence is not proof. I will show you why. Look at the affidavit of his doctor at page 972 of the same volume. He gives a report on the case definition of AIDS. It says AIDS stands for Acquired Immuno Deficiency Syndrome and these words appear in Judith Bitwire's death certificate. Karokora: They appear on Judith Bitwire's death certificate? Byamugisha: Yes my lords. On clinical definition of AIDS using signs and symptoms..this is what my client used...the clinical examination enables you to use physical signs. It must be noted that clinical criteria must be used by trained personnel...likewise, the diagnosis of HIV infection as well as AIDS merely because of loss of partners or loss of children...my client has satisfied the ground and his entitled to say the petitioner has AIDS. On this basis alone, this doctor supports my client on the ground of loss of partner. My lords I will take you to my volume 1 at page 198... Mulenga: Page what? Byamugisha: Page 198. It is the affidavit of Prof John Rwomushana... Mulenga: There is some confusion with the way my volume was bound... Byamugisha: He says in his affidavit that I am the director of research in the Uganda AIDS Commission. I also coordinate all AIDS activities in the country...he has medical and social aspects of AIDS and he is acquainted with them. Under paragraph 7, he says research in Uganda has established that there is community diagnosis of AIDS based on perceptions in Uganda. (Byamugisha also produced affidavits for ministers John Nasasira, Benigna Mukiibi, Crispus Kiyonga, Army Commander, Maj Gen Jeje Odongo and, boda boda cyclist, Sam Kabuga to prove that the road contracts, salary increments, abolition of cost-sharing in hospitals, the deployment of the army that Museveni talked about during the campaigns were not election gimmicks but part of existing Government programmes. Kabuga swore an affidavit to prove that he did not receive a bribe from Museveni but that he was Museveni's campaign agent. The Affidavits John Nasasira l That I am the Minister of Works, Housing and Communications in the Government of Uganda and as such swear this affidavit. l That I have read and understood the affidavit of Col. (Rtd.) Dr. Kizza Besigye dated 5th April 2001 sworn in reply to the affidavit of the 1st Respondent and respond as hereunder. l That the allegation contained in paragraph 22 (d) that 1 publicly and out of the ordinary course of my duties as Minister signed contracts for the tarmacking and upgrading of the roads stated therein, is completely false. l That the road contracts referred to in paragraph 22 (d) of the said affidavit were not signed by myself but were signed by Mr. Charles Muganzi, the Permanent Secretary, of the Ministry of Works, Housing and Communications and I attended the functions in my capacity as the responsible Minister. l That the said road contracts were part of the implementation of the Governments Ten Year Road Sector Development Programme which commenced in 1996 l That the Credit Agreement between the Government of Uganda and the World Bank for the financing of the implementation of the tarmacking and upgrading of the Busunju - Kiboga; Kiboga - Hoima and Arua- Packwach was signed in November, 1999. l That the advertisement for short listing contractors for the tenders for the tarmacking of Busunju - Kiboga; Kiboga - Hoima; and Arua-Packwach was issued in November, 1999. l That the letters inviting the short listed contractors for the tenders for the tarmacking and upgrading of the roads referred to in paragraph S above were issued in July 2000. lThat it is not true that any agreement has been signed for the tarmacking and upgrading of the Ntungamo - Rukungiri Road. l That the tarmacking and upgrading of the Ntungamo - Rukungiri road is part of the Ten Year Road Sector Development Programme referred to in paragraph 6 above and only the contract for tarmacking and upgrading the Ntungamo - Kagamba section has so far been signed as part of implementing this programme. l That the signing of contracts for tarmacking and upgrading of roads under my Ministry has always been done publically. lThat it is false to allege that the award and signing of the road contracts resulted from the First Respondent's campaign manifesto or at all. l That I swear this affidavit in reply to the Petitioner's affidavit in reply to the First Respondent. l That what is stated herein above is true and correct to the best of my knowledge. Sworn on the 6th day of April, 2001. Benigna Mukibi l That I am the Minister of State for Public Service in the Government of Uganda and presently holding the portfolio because the substantive Minister For Public Service is on annual leave. lThat the scope of this portfolio extends to making proposals for the increase adjustment and/or regulation of salaries of public servants and emoluments of pensioners. l That during the National Budget for the Financial Year 2000/2001, the Minister of Finance made provision for the implementation of recommendations in the Pay Strategy Report prepared by the Ministry of Public Service to address the plight of the middle rank professionals. l That on page 25 of the Official Budget Speech under the sub -heading "IMPROVING THE PERFORMANCE OF THE PUBLIC SERVICE", the Minister of Finance outlined the budget for Public Service Reform. Pay and Pensions. l That the modalities for the disbursement of these funds were worked out between our Ministry and the Ministry of Finance to allot these excess funds to increase the salaries for different categories of mid rank professionals. l That in January 2001, the Ministry of Public Service issued a press release relating to the increase of pay for medical workers. l That the increment of salaries for medical workers and teachers was a result of funds designated in the Budget under the Public Service Pay Reform Programme and was not done by the First Respondent to induce voters alleged in paragraph 22 (b) and 22(c) of the Petitioners affidavit in reply dated 5th April 2001. l That I swear this affidavit in support of the First respondent's answer to the Petition. lThat what is stated herein above is true and correct to the best of my knowledge. Sworn 6th day of April 2001. Samuel Kabuga l That I am a male adult Ugandan of sound mind and aged 20 years. l That because of Yoweri Kaguta Museveni's contribution to this country in areas of peace and development, I have always been his ardent supporter and admirer. l That when Y.K. Museveni offered to stand for the Presidential elections 2001, 1 decided to mobilise support for him especially among my peers and colleagues of the boda Boda business. l That on 9th January 2001, I went to Kololo Airstrip with my colleagues to escort our aspiring candidate and witness his nomination. l That while at Kololo Airstrip I was approached by a gentleman who I later came to know as Moses Byaruhanga with a request that I should carry the 1st Respondent from one corner of the Airstrip to the podium as the crowd congestion could not allow easy passage of his motorcade. l That I was only too happy to accept the request and I gladly carried the 1st Respondent as requested. l That after nomination, I continued my mobilisation and was appointed a campaign agent for the 1st Respondent. A copy of my appointment letter as such is attached hereto and marked "KS I" l That later, we agreed with Moses Byaruhanga that the Task Force for 1st Respondent would give me a motorbike to facilitate my mobilisation. The said motorbike was handed over to me by the 1st Respondent on 26th January 2001. l That my mobilisation and campaigning included advertisements, which were broadcast over radio stations. l That it is not true as stated in paragraph 21 of the affidavit of the Petitioner dated 5th April 2001 that I was given the motorbike to influence me to vote for the 1st Respondent as I was already his supporter, mobiliser and agent. l That I swear this affidavit in support of the 1st Respondent's answer to the Petition. l That whatever is stated herein above is true to the best of my knowledge. Jeje Odong - That I am the Army Commander of the Uganda Peoples Defence Forces (UPDF) having held this post since 3rd January, 1998. - That my duties as Army Commander include the overall Command and direction of the UPDF which is enjoined by the Constitution of the Republic of Uganda to preserve the sovereignty and territorial integrity of Uganda. - That by virtue of my duties I am a member of the National Security Council which is enjoined by Constitution to oversee and advise the President on matters relating to national security. -l That I have read the Petition and the affidavit of Col. (Rtd) Dr. Besigye Kizza in support thereof and I wish to respond on matters relating to the U.P.D.F alleged therein as hereunder; - That sometime in January 2001, at one of its routine meetings, the National Security Council noted that there were indications that election-related crimes were on the increase and could jeopardise the general peace and security of the country. - That during the same period I received intelligence reports from various parts of the country pointing to the same situation. - That on the basis of the foregoing I briefed the Commander-in-Chief/President of the country and indicated to him the need to put a mechanism to handle the situation. - That about the same time, I had a discussion with the Minister of Internal Affairs who pointed out to me the inadequacies of the Police Force in relation to the task ahead and requested that Police be augmented by the UPDF. - That I further briefed the Commander-in-Chief and suggested the formation of a joint security task force to oversee, handle and ensure peace and security during the electoral process. - That a joint security task force comprised of the Police, the Army, the LDUs and the Intelligence agencies was formed, under the Chairmanship of the Army Commander, deputised by the Inspector General of Police and the Director General of Internal Security Organisation. - That the joint security task force constituted a joint Command structure whereby in each District, the District Police Commander was the overall in charge of security of the district and the Armed Forces were put on the alert for assistance as and when need arose. - That the formation of such a joint security task force is not a new phenomena in this country as the same course of action has always been resorted to whenever need arises. Examples are: - the 1987 currency exchange exercise - the 1989 expansion of the NRC elections - the 1992 Local Council elections - the 1996 Presidential elections - the 2000 Referendum exercise - the visit of the United States President Bill Clinton. - That for the foregoing reasons, it is not true to state in paragraph 3 (2)(c) of the Petition that the lst Respondent appointed me and other senior officers to take charge of the election process for partisan purposes. It is also not true to state that the army was deployed all over the country and that such deployment resulted into any voters voting the 1st Respondent under coercion or fear or that they abstained from voting. - That to the best of my knowledge, save for the polling stations where members of the Armed Forces were ordinarily registered as voters, I can confirm that members of the armed forces never went to any polling station for the alleged purposes or at all. - That it is not true that the 1st Respondent organised groups under the Presidential Protection Unit (PPU) to use force or violence against the Petitioner as alleged in Paragraph 3(2)d of the Petition. I wish to state that members of the P.P.U, which is a specialised unit for the protection of the President were deployed in Rukungiri in advance to his visit to the area sometime in January 2001 and their stay was necessitated by his planned return to the area, having taken into consideration the safety of the person of the President and the general peace and security of the area. - That the allegations about the members of the PPU harassing, intimidating, or in any way misbehaving against the Petitioner and or/ his supporters contained in paragraphs 16, 18,19,20,21,22,23,25,26,29 and 40 of Col. (Rtd) Kizza Besigye's affidavit are not true. - That in further response to paragraphs 18-29 of the Petitioner's affidavit, I wish to state that on the 3rd March 2001, I received a report that there was a clash between groups of people in Rukungiri after the Petitioner had addressed a public rally and in the process some members of the groups pelted stones, bottles and sticks at the soldiers and in the process of self-defence, one person was fatally wounded by a stray bullet. - That it is not true that I or any other official of the UPDF was partisan in the execution of our duties or that I or any official of the UPDF carried out our duties in such a manner as to promote the candidature of the 1st Respondent as alleged or at all. - That I have also read and understood the affidavit of Hon. Major (Rtd) Okwir Rabwoni dated 23rd March 2001 paragraph 8 thereof in particular and I respond thereto as here below. - That it is not true that Hon. Rabwoni has ever been forced by anybody to make or write any statement denouncing the Petitioner in my presence . l That throughout the Election process and the campaigns generally, I never personally met the Honourable Okwir Rabwoni. - That I depone to this affidavit in support of the 1st Respondent's answer to this petition. - That what is stated herein above is true to the best of my knowledge save for what I have deponed to from official reports which I verily believe to be truthful. (Byamugisha also presented affidavits of police chief, John Kisembo, the acting CMI, Lt Col Noble Mayombo, among others. Hearing continues today. Museveni's lawyers also denied allegations that he threatened Besigye with death. They said that Besigye lacks evidence.) Hearing continues