Besigye wrong to reject court verdict
Apr 09, 2006
THE Supreme Court last week, by a majority decision, dismissed the petition filed by Forum for Democratic Change (FDC) President Col. Dr. Kizza Besigye challenging the results of the February 23 presidential elections.
By John Kakande
THE Supreme Court last week, by a majority decision, dismissed the petition filed by Forum for Democratic Change (FDC) President Col. Dr. Kizza Besigye challenging the results of the February 23 presidential elections.
Besigye had asked the court to nullify President Museveni’s re-election. He argued that the Electoral Commission (EC) did not declare the results in accordance with the law; that the election was marred by intimidation, violence and bribery; and that Museveni or his agents committed malpractices. Presidential elections can be nullified by court if it is proved that non-compliance with the electoral law “affected the results of the election in a substantial mannerâ€; if it is proved that the candidate wasn’t qualified; or that the candidate committed an electoral offence.
The judges, however, were unanimous that the EC didn’t comply with the electoral law. But they were split on the effect of this on the results. Four judges felt that although the principle of free and fair election was compromised, the results were not substantially affected. Three judges felt that the results were substantially affected. Furthermore, two judges were of the view that Museveni personally or his agents committed electoral offences. But five judges said he didn’t.
In my view the petition has served a useful purpose. I was surprised that Besigye rejected the judgment and declared that they won’t “associate ourselves with or respect this decision.†Besigye has often criticised President Museveni that he has no respect for the rule of law and the Constitution. Besigye slammed the deployment of the infamous “Black Mambas†at the High Court. It is unfortunate that he could turn around and slam the judges for not ruling in his favour. This is against the rule of law and constitutionalism. It raises questions as to whether Besigye is actually a democrat.
It was also a mistake for Besigye to say that he will never against take an election petition to the court and that “subsequent petitions are likely to be addressed to courts similar to the one in which President Museveni found confidence in 1981.†Museveni in 1981 took up arms to wage a war in which Besigye actively participated. The country cannot afford any more armed political conflict. The ‘court’ that President Museveni resorted to in 1981 is unnecessary and terribly costly, and Besigye himself knows this.
A number of fundamental issues arose from the the Supreme Court judgment. The judges were unanimous that there was ballot stuffing, bribery and intimidation in some areas. Three Supreme Court judges wanted the elections nullified over the malpractice.
The judges specifically raised the issue of the “continued involvement of the security forces in the conduct of elections where they committed acts of intimidation, violence and partisan harassment.†This is a matter that must be addressed by the government.
The Supreme Court said certain provisions of the electoral law are contradictory and need to be reviewed. The court cited sections 24(5) and 59(6) (a) of the Presidential Elections Act as well as Section 25 of the Electoral Commission Act. Section 24(5) prohibits candidates from making statements against rivals which are false, malicious, sectarian, abusive, insulting or derogatory.
In his petition, Besigye cited Section 24 and contended that President Museveni had abused him and made false and misleading statements about him and his party. In my view, section 24 was misconceived. During campaigns, candidates attack rivals and make statements which are obviously false or derogatory. But such false statements shouldn’t be criminalized and relied upon to nullify an election. There are other laws that deal with such defamatory statements that an aggrieved candidate can invoke to get legal redress.
Section 59 (6)(a) of the Presidential Elections Act states that for results to be nullified, they must have been affected in a “substantial manner†by non-compliance with the law or electoral malpractice.
MP Nsubuga Nsambu (Makindye West), reacting to the court ruling, cynically asserted that court had in effect approved “stealing votes†as long as the votes in question are not “substantialâ€. It was, in my view, wise to put this provision in the law. Presidential elections should only be nullified where there is evidence of very serious electoral flaws that render the results a sham.
jkakande@newvision.co.ug
THE Supreme Court last week, by a majority decision, dismissed the petition filed by Forum for Democratic Change (FDC) President Col. Dr. Kizza Besigye challenging the results of the February 23 presidential elections.
Besigye had asked the court to nullify President Museveni’s re-election. He argued that the Electoral Commission (EC) did not declare the results in accordance with the law; that the election was marred by intimidation, violence and bribery; and that Museveni or his agents committed malpractices. Presidential elections can be nullified by court if it is proved that non-compliance with the electoral law “affected the results of the election in a substantial mannerâ€; if it is proved that the candidate wasn’t qualified; or that the candidate committed an electoral offence.
The judges, however, were unanimous that the EC didn’t comply with the electoral law. But they were split on the effect of this on the results. Four judges felt that although the principle of free and fair election was compromised, the results were not substantially affected. Three judges felt that the results were substantially affected. Furthermore, two judges were of the view that Museveni personally or his agents committed electoral offences. But five judges said he didn’t.
In my view the petition has served a useful purpose. I was surprised that Besigye rejected the judgment and declared that they won’t “associate ourselves with or respect this decision.†Besigye has often criticised President Museveni that he has no respect for the rule of law and the Constitution. Besigye slammed the deployment of the infamous “Black Mambas†at the High Court. It is unfortunate that he could turn around and slam the judges for not ruling in his favour. This is against the rule of law and constitutionalism. It raises questions as to whether Besigye is actually a democrat.
It was also a mistake for Besigye to say that he will never against take an election petition to the court and that “subsequent petitions are likely to be addressed to courts similar to the one in which President Museveni found confidence in 1981.†Museveni in 1981 took up arms to wage a war in which Besigye actively participated. The country cannot afford any more armed political conflict. The ‘court’ that President Museveni resorted to in 1981 is unnecessary and terribly costly, and Besigye himself knows this.
A number of fundamental issues arose from the the Supreme Court judgment. The judges were unanimous that there was ballot stuffing, bribery and intimidation in some areas. Three Supreme Court judges wanted the elections nullified over the malpractice.
The judges specifically raised the issue of the “continued involvement of the security forces in the conduct of elections where they committed acts of intimidation, violence and partisan harassment.†This is a matter that must be addressed by the government.
The Supreme Court said certain provisions of the electoral law are contradictory and need to be reviewed. The court cited sections 24(5) and 59(6) (a) of the Presidential Elections Act as well as Section 25 of the Electoral Commission Act. Section 24(5) prohibits candidates from making statements against rivals which are false, malicious, sectarian, abusive, insulting or derogatory.
In his petition, Besigye cited Section 24 and contended that President Museveni had abused him and made false and misleading statements about him and his party. In my view, section 24 was misconceived. During campaigns, candidates attack rivals and make statements which are obviously false or derogatory. But such false statements shouldn’t be criminalized and relied upon to nullify an election. There are other laws that deal with such defamatory statements that an aggrieved candidate can invoke to get legal redress.
Section 59 (6)(a) of the Presidential Elections Act states that for results to be nullified, they must have been affected in a “substantial manner†by non-compliance with the law or electoral malpractice.
MP Nsubuga Nsambu (Makindye West), reacting to the court ruling, cynically asserted that court had in effect approved “stealing votes†as long as the votes in question are not “substantialâ€. It was, in my view, wise to put this provision in the law. Presidential elections should only be nullified where there is evidence of very serious electoral flaws that render the results a sham.
jkakande@newvision.co.ug