Judges Rule On Besigye's Preliminary Application

The High Court's Room 4 is packed to capacity. Petitioner Besigye surrounded by his lawyers led by Joseph Balikuddembe and respondents President-elect Yoweri Museveni's and the Electoral Commission's lawyers led by Dr Joseph Byamugisha and Solicitor General Peter Kabatsi respectively are checking their books. Everyone in the room is wearing a white tag with the black, yellow and red Uganda flag colours on their chests. The judges who were expected at 2.00pm enter at 3.43pm. Led by Chief Justice Ben Odoki, Wilson Tsekooko, Alfred Karokora, Arthur Oder and Joseph Mulenga enter. Alfred Wasike, Milton Olupot and Hamisi Kaheru covered the proceedings. Kabatsi: My lords, the counsel for the applicant/ petitioner (Besigye) and for the two respondents are as before. We are ready to proceed. Odoki: We really apologise for the delay. We sort of underestimated the issues we were supposed to consider. But we seriously considered the issues framed and reformulated some of them in a more refined manner. Here is our ruling. The applicant Col. (Rtd.) Dr. Besigye Kizza has filed two separate applications one against each of the respondents, Mr. Museveni Yoweri Kaguta and the Electoral Commission respectively seeking an order of this Court that the respondents do produce in Court a list of documents in their possession relating to the Election Petition filed by the petitioner against the respondents. The election petition arises out of the Presidential Elections held on 12 March 2001 in which both the petitioner and the first respondent were candidates, and which were declared by the second respondent to have been won by the first respondent. We consolidated the two applications and heard them together. The applications were brought under Articles 28 and 44(c) of the 1995 Constitution, section 35 of the Judicature Statute 1996, section 101 of the Civil Procedure Act, Order 10 rules 1,12 and 14 of the Civil Procedure Rules and rule 15 of the Presidential Elections (Election Petition) Rules 2001. The list of the documents the petitioner prays the Court to order the first Respondent to produce in court and be received as evidence are as follows: (i)Audio, Visual/video Recordings and Tapes by the Presidential Press Unit of Campaign Agents on Rallies, Press Conferences and interviews. (ii)List of Campaign Agents appointed by the 1st Respondent for the presidential elections. On the other hand the petitioner desires the Court to order the second Respondent to produce in Court and be received as evidence the following documents: (i) The National Voters Register used during the 12th March, 2001 President Elections. (ii) Voters' rolls for each constituency forming part of the Voters' Register. (iii) Voters' rolls for each Polling Station forming part of the Voters' Register. (iv) Gazette Notice published under Section 25 of the Electoral Commission Act, 1997 appointing the period during which the Voters' roll for each parish or ward would be displayed for public scrutiny. (v) List of members of tribunals appointed by returning officers under Section 25 of the Electoral Commission Act, 1997. (vi) Statements showing the number of ballot papers supplied with their serial numbers from Returning Officers to each presiding officer made under Section 27 of the Presidential Elections Act, 2000. (vii) Report book of the objectives made under Section 48 of the Presidential Elections Act, 2000. (viii) All Declaration of Results Forms filled and signed by Presiding Officers under Section 50 of the Presidential Elections Act, 2000. (ix) Return Forms for Transmission of Results by Returning Officers under Section 55 of the Presidential Elections Act, 2000. (x) Tally sheets adding up the Results from Presiding Officers made by the Returning officers under Section 55 of the Presidential Elections Act, 2000. (xi) Report of the elections within the Returning Officers' electoral district. (xii) List of the serial numbers of all ballot papers purchased for use during the 12th March 2001 Presidential Elections. (xiii) Gazette under Section 24(4) declaring the Printed Voters' roll to be used during the Presidential Elections of 12th March 2001 and containing the names of voters entitled to vote at the said election. (xiv) Press releases and other correspondences to the Presidential Candidates relating to the electoral process. (xv) Report of the election offences and malpractices by the Electoral Commission to the Uganda Police. (xvi) Report of the Electoral Commission under Section 56(8) of Act 17 of 2000. The grounds in support of each application are similar and are stated in these general terms: 1. That all documents relate to the matters in question in the above suit and are necessary for the determination of the matters in dispute and shall enable court to fairy, effectually and completely adjudicate and settle all questions involved. 2.That in the Petition the said documents have been referred to and are intended to be relied on for their full effect although in possession of the Respondent. 3.That the Petitioner/applicant requires all the opportunity to a fair hearing through canvassing all such facts, evidence and documents as are necessary to establish the Petitioner/applicant's case and which are in the exclusive possession and/or control of the Respondent. 4.That the ends of justice and to guarantee a fair hearing to the Petitioner/Applicant the matter requires that Court makes order that the said documents be produced and received in evidence. The chairman of the Second Respondent, Mr. Aziz K. Kasujja, swore an affidavit dated 3rd April 2001, in reply to the application. There was no affidavit from the First Respondent presumably because he was not served in time or at all with the application. Despite this apparent lacuna, Dr. Byamugisha learned Lead Counsel for the first Respondent agreed to proceed with the hearing of the application. In his affidavit in reply the Chairman of the Second Respondent, Mr. Kasujja stated in the relevant paragraphs of the affidavit as follows: "3.In answer to paragraph 1(i), (ii) and (iii) of the Chamber Summons the Nationals Voters Register and Voters Rolls can be availed to the Applicant on application in accordance with the law and at his cost after preparation thereof and the process of preparation thereof would take not less than seven days. 4 In answer to paragraph 1(iv) and (xiii) of the Chamber Summons, the Gazette Notices required by the Applicant are public documents and the Applicant is free to acquire them from their publishers. 5.In answer to paragraph I (v) of the Chamber Summons the 2nd respondent is not required to keep lists of Tribunals appointed by the Returning Officer and does not at the moment have them in his possession. 6.In answer to paragraph 1(vi) of the Chamber Summons the statements showing the number of ballot papers supplied with their serial numbers are kept by Returning Officers who have not yet made returns and the statements will be availed as soon as returns are made, at the Applicant's cost. 7.In answer to para I (viii) of the Chambers Summons the 2nd Respondent is not required to collect the Report Books from all presiding officers within a specified period and has not yet received them. 8.In answer to paragraph I (viii), (ix) and (x), the Declaration of Results Forms, the Return Forms for Transmission of Results and tally Sheets adding up the results can be available on application made to the Applicant at his cost. 9.In answer to para I (xi) and I (xvi) the Report of elections within Returning Officers' electoral districts and the Report of the Electoral Commission under S.56 (8) are not yet ready and will be availed to the applicant at his cost when they are ready. 10.In answer to para I (xii) a list of serial numbers of all ballot papers can be obtained on application at the Applicant's own cost 11.That there is no document called Report of Election Offences and Malpractices by the Electoral Commission to the Police". Mr. Muhamed Mbabazi learned counsel for the petitioner submitted that the documents listed in his applications were necessary to meet the ends of justice and to afford his client a fair hearing. He contended that the petitioner had under article 41 of the Constitution a right of access to the documents which were in possession of the respondents. He referred to the decision of this Court in the case of Major General David Tinyefuza vs Attorney General Constitutional Appeal No.1 of 1997 in support of his submission. Mr. Mbabazi dropped his application to produce documents in paragraphs (xv) and (xvi) namely the Report of the election offences and malpractices by the Electoral Commission to the Uganda Police and the report of the Electoral Commission under section 56(8) of the Presidential Elections' Act 17 of 2000. Mr. Kabatsi; the learned Solicitor General for the Second respondent, opposed the application and submitted that it was misconceived and should be dismissed with costs. He contended that the right to a fair hearing was not in issue and the second respondent was not interested in fettering it. He distinguished the case of Major General Tinyefuza vs Attorney General (supra) on the ground that the appellant was faced with a refusal to produce documents which were considered to be privileged whereas in the present case, there was no refusal to produce the documents provided they were obtained in accordance with the law. Mr. Kabatsi, then submitted that some of the provisions under which the application was brought were misconceived. He contended that Section 35 of the Judicature Statute 1996 and Section 101 of the Civil Procedure Act which deal with inherent powers of the Court were inapplicable since there were specific provisions in the Presidential Elections Act 2000 and the Presidential Elections (Election Petitions) Rules 2001 which constituted a self-contained regime to provide the necessary remedies. The learned Solicitor General contended that the provisions of Order 10 rules 1, 12 and 14 of the Civil Procedure rules were inapplicable first because the applicant has not given any interrogatories to Court in respect of the petition which offended rule 2; secondly rule 12 did not deal with production of documents in court, but discovery of document by listing documents on oath; thirdly rule 14 only enabled the court to order production of evidence and not to compel a party to produce a document in court. Mr. Kabatsi submitted that the applicant was trying to use the court to adduce evidence on his behalf through the respondent. It was Mr. Kabatsi's contention that the only way to produce documents in evidence was under rule 14(1) of the Presidential Elections (Election Petitions) Rules 2001 which provides that subject to the provisions of this rule, all evidence at the trial in favour of or against the petition shall be by way of affidavit read in open court. On the question of provision of documents to the applicant, the learned Solicitor General submitted that there was no refusal to produce them in accordance with the law. He contended that there were two sets of documents in question: (a)Those which are required to be there by operation of law and are known to be there; (b) Those which may be there but could be availed on application in accordance with the law. He submitted that according to the Electoral Commission Act 1997, documents which are required by law to be maintained can be accessed in accordance with Section 24(3) which provides, "The Commission shall cause the Voters roll for each constituency to be printed, and any person may obtain from the Commission; on payment of such charges and subject to such conditions as may be prescribed, copies of any voters roll for the constituency or for a parish or ward within it." Mr. Kabatsi referred to the affidavit of Mr. Kasujja and submitted that the documents which are available and those not available were clearly stated and those available could be obtained on payment of a fee. As regards the request for documents in item (vi) relating to statements showing the number of ballot papers supplied with their serial numbers from Returning Officers to each Presiding Officer, learned Solicitor General submitted that they were not in possession of the Chairman of the second respondent and it would take six months to obtain them. Dr. Byamugisha learned lead counsel for the first respondent adopted the submissions of the learned Solicitor General counsel for the second respondent. Learned Counsel emphasized that rule 14 of the Presidential Elections Rules, requires all evidence in the petition to be adduced by affidavit and therefore if leave to produce documents in court was granted it would be unfair on the 1st respondent as it would amount to proving the documents without affidavits. Referring to the specific documents requested for production by his client, Dr. Byamugisha submitted that the Presidential Press Unit does not cover campaign agents on rallies or press conferences. Learned counsel contended that the applicant did not indicate in his petition that he would rely on the list of campaign agents, which in any case was not prepared and therefore could not be produced. We now give our opinion on the applications and submissions made in support and in reply. As regards the procedure adopted by the applicant for discovery we think that there was no compliance with the relevant provisions of Order 10 especially rule 15 which would have enabled the applicant to apply for discovery so that he could have access to the documents in question. We agree with the contention of learned counsel for the respondents that all the evidence at the hearing of an election petition must be by affidavits as provided for in rule 14 of the Presidential Elections (Election Petition) Rules. We recognise the provisions of rule 15 which allow the proceedings during the hearing of an election petition to be regulated by the Civil Procedure Code and the Rules made thereunder, but this licence is subjected to the provisions in the Presidential Elections (Election Petitions) Rules. The Court accepts the submission of the learned Solicitor General that the right to a fair hearing and the right to access to information are not in issue. However, we must recognise the need to jealously protect and guard the right to a fair hearing which is fundamental for the attainment of justice. The right of access to information in possession of the State is relevant in this petition and should be respected as it was emphasised by this Court in the case of Major Tinyefuza vs Attorney General (supra) We now deal with the specific documents requested for production. In respect of the first respondent, the first category of documents requested for are audiovisual/video recordings and tapes by the Presidential Press Unit of campaign agents on rallies, press conferences and interviews. Dr. Byamugisha submitted that there were no such documents, as the Presidential Press Unit does not cover activities of campaign agents. We think with respect however, that there was a drafting or typographical error. What the applicant must have meant must have been the campaign rallies press conferences and interviews of the first respondent. We were not convinced of the relevance of all these documents. We hold that if the applicant is prepared to specify the particular documents, occasions and dates on which they were made, he is free to renew his application for consideration of the Court. As regards the request for the list of all campaign agents we have not been satisfied of its relevance or its existence. Therefore the application in respect of the first respondent to produce the listed documents is refused. As regards the application in respect of the second respondent, we accept the statement of its Chairman that some of the documents are available, and others can be made available in accordance with the law. We therefore order that the applicant be given access to documents listed in paragraphs (I) (ii) and (iii) of the application in accordance with the provisions of Section 24 of the Electoral Commissions Act. With regard to documents in paragraph (iv) and (xiii) of the application we find that they are not in possession of the second respondent as they can be purchased from their publishers. Documents in para (v) were not pleaded and therefore their relevancy has not been established. In respect to the numbers of the ballot papers supplied by the Returning Officer to Presiding Officers as requested in para (vi) we are satisfied on the relevance of that information. If the applicant is in position to specify particular polling stations where he intends to prove malpractices concerning ballot papers he is free to renew his application for consideration. The Court is not satisfied that the record book of objections under para (vii) is in possession of the second respondent. The documents requested for in paragraphs (viii), (ix), (x) and (xii) are available. We therefore order that the applicant be given access to them in accordance with the law. We think that document in para (xi) is similar to that in para (xvii) which was abandoned. As regards documents in para (xiv) of the application, we are of the opinion that they should be in possession of the applicant as one of the presidential candidates. In the result, subject to the orders made these applications substantially fail and are dismissed. Costs shall be in the cause. Chief Justice Odoki's personal assistant, Paul Gadenya told The New Vision that the court is expected to make to the final judgement in the petition by April 22, 2001. Ends