Petition ruling on April 6

THE Supreme Court hearing Kizza Besigye’s presidential elections petition seeking to nullify President Yoweri Museveni’s re-election entered Day Eight yesterday. Seven judges led by Chief Justice benjamin Odoki are hearing the petition. Others are Arthur Oder, John Tsekooko, Alfred Karokora, Joseph Mulenga, George kanyeihamba and Bert Katurebe. Besigye’s lawyers include Wandera Ogalo and John Matovu. Museveni legal team’s is led by Joseph Byamugisha and includes Didas Nkurunziza, while Peter Kabatsi is for the EC. Anne Mugisa, Hillary Kiirya, Milton Olupot and Hillary Nsambu recorded the proceedings:

9:48am

Matovu: It was contended by the second respondent (Museveni) that the standard required in preparing….petitioner is required to give specific proof of the case....Counsel for the 2nd respondent contended that there was no proof of allegations by the petitioner. It was also contended that the offences were not offences to call for strict liability (reads and then says the other requirements are affidavits only) and the rule does not say that we need other requirements. The case cited by my learned friend is a case of libel.

Tsekooko: Which case is that?

Matovu: I don’t remember the case but it is on record.

Kanyeihamba: Which one? We need as judges to know the case now.

Matovu: We shall provide it later. The petitioner can only raise them (specific proofs) for purposes of enforcing civil rights.

Our submission is that looking at the petition itself and the law, which says that one is liable for offences committed, I wish to cite to you my Lords (Cites authority). What is required there is to show that one had malicious intentions or wicked mind.

The issue here is morality. I submit that you find section 24 (5) had specific liability. The petitioner has proved his case of liability against the respondents.

There is enough proof on record. The affidavit by the petitioner itself is enough to prove the allegations. There is enough proof the 2nd respondent made certain statements while campaigning which were contrary to section 24 (5). He himself admits in his affidavit when he says while campaigning in Koboko.

Kanyeihamba: The statement was general and not directed to the petitioner, what do you say about it?

Mulenga: Are you trying to say that those statements were abusing all the candidates?

Matovu: You can abuse as long as you do not win the election…Now, on proof.

Odoki: Were you not on proof?

Matovu: The final part of proof. It has been stated that we should apply rules of strict interpretation. It is true, but this is a civil matter. You are not going to convict anybody and therefore that rule does not apply. Again it was contended by my learned friend that provocative language provokes a reply in similar terms. He cites the authority of HIBBS v WILKENSON. He says that exaggerated language is provoked by similar language. He is justifying his abusive language. (Cites 2001 presidential elections petition and says) It is the judgment of the CJ (Chief Justice) that provocation is not reason…

Mulenga: What was the ruling?

Matovu: That justification is no defence.

Odoki: I don’t see it.

Matovu: You wrote it yourself, my lord.
The English authority of HIBBS v WILKENSON does not apply here.

Tsekooko: You remember you said you hadn’t read it, now how do you distinguish it?

Matovu: Because I am saying it was useless.

Kanyeihamba: And because you saw it was useless, you would dismiss it without reading it?

Matovu: You can’t argue that I was provoked. Finally on that point it was contended that the petitioner was putting a new case. It was contended that we would not rely on the statements of the respondent to find our case. My lords our humble submission is that we are not putting a new case. We are simply confirming.

Oder: That was in the amendment that you sought?

Matovu: No, my Lord

Oder: Where is the new case?

Matovu: ……………….

Mulenga: Are you saying that you are entitled to?

Matovu: Yes, my Lord?

Mulenga: The two are different.

Matovu: We are saying the case was there, but the petition was only reinforcing an already there case.

He contended that from Migereko’s affidavit, it was clear that Musumba and others blocked government efforts at establishing another dam. He relied on a document which he claimed was an e-mail. We contest the authenticity of that document and its admissibility.

Tsekooko: You are contesting it now, not then?

Matovu: Yes. (Says he did not want to interrupt senior counsel Byamugisha.) First it was not copied to Migereko. Second it was said it was sent by five

Tsekooko: But the MPs are alive and some are in court. You did not get them to rebut the assertion?

Matovu: It should have been presented by the authors or the people to...

Odoki: You are challenging its admissibility?

Matovu: Yes

Odoki: Not content?

Matovu: Yes

Odoki: Not content?

Matovu: Even that, my Lord (laughter).
Look at the content of document. It raises serious national issues and does not seem to indicate the spirit the respondent talked about it.

These are talking of the Basoga spirits, that is not an FDC issue, it is a Basoga issue, corruption…

Mulenga: Are you now arguing for the content?

Matovu: In case you found it admissible, in the alternative….

Mulenga: But do you agree that whoever is the author was trying to block the funding?

Matovu: No, trying to streamline…

Kanyeihamba: There has been allegations that sh6m was disbursed to districts and that they were for bribes, but no body comes to say I received. The respondent said it was for facilitation.

Matovu: (Tries to bring two voters cards)

Byamugisha: Protests and says Matovu cannot bring in new evidence at this point.

Matovu: This is also an inquiry.

Odoki: Who is the judge here, you or us?

Mulenga: Are you going to address us on how to conduct this case at this late stage?

Matovu: (Hesitates)

Mulenga: The rules as you know them are that you can’t

Byamugisha: We are suspicious of the documents because here, the signatures from the petitioner are different from the amendment. We are very suspicious of the documents my learned friends are bringing in.

Matovu: It is an offence to induce a voter to vote even if it was an NRM.

Katureebe: But the law also says that it is an offence to receive a bribe.

Matovu: The money said to be for facilitation of polling agents and others. I want you to note that on that voucher, is a specific sum of money which was approved and sent to agents for that purpose on for 15 polling stations. The sum of 12,600,000 long before the elections. So if anyone received money on polling day it was for bribes.

Kanyeihamba: Where do you get that conclusion?

Mulenga: If that money voucher was approved on 17th, how long would it take to have the money processed?

Matovu: By cheque, four days?

Katureebe: Does every body has cheques?

Matovu: The money raises suspicion?

Mulenga: And what does the law say on suspicion and proof?

Matovu: sell.

(Court adjourns for a break and on resumption 35 minutes later Matovu continues submission.)

Wandera: My lords I intend to begin my submission with the submissions of my learned friend the Solicitor General.
I will address the last category. It was submitted that some affidavits adduced were adduced in contravention of the law and my lords were invited to ignore them on the grounds that they should not have been received.
These are those affidavits which are endorsed with the firm name of Mwenekahima. The submissions raises a legal issue and also raises serious ethical issues.
They have been referred to as forgeries and therefore brings the conduct of counsel for the petitioner in issue.
I will first address the legal issue. It is a mandatory provision that instruments prepared must have the name and place of the person who drew and endorsed. All the affidavits have the name of the firm of Mwenekahima.
So on the face of those affidavits, those affidavits they comply with the provisions of the law. And since they comply with the provisions of the law, I submit that my lords should rely on them and not reject them. And my lords, I would invited you to do so.

On the second issue, we did recognise the seriousness of the accusation and yet the affidavits evidence had already been closed. My lords we invited Mr Mulumba, an advocate who prepared these documents. Mr Mulumba works with Mwenekahima and Company Advocates.

Kanyeihamba: Works or worked?

Wandera: Works.

Odoki: Worked….

Wandera: Mwenekahima has a branch in Kabale.

Kanyeihamba: Did he know that this man works in Kabale?

Wandera: He does know.

Mulenga: He doesn’t know or he knows?

Wandera: He knows.

Nkurunziza: We are at the stage of reply. I would request that my learned friend doesn’t bring in new evidence.

Odoki: You are replying….

Wandera: This is an ethical matter.

Odoki: We are not a court of ethics…We can refer to Law Council.

Wandera: Even if we went to the Law Council, your records will stay like that.

Odoki: You want us to try the case?

Wandera: Can briefly put him (Mulumba) on oath.

Kanyeihamba: But you are replying.

Wandera: Much obliged. I come to Matsiko’s submission, that no number of districts where there was disenfranchisement…. And as such was insufficient. I refer to rule 7 of presidential election petition rule (provides affidavits setting out facts on which petitioner intends to rely) We did and that is sufficient. These are matters of further proof.
I submit that the attack on the petitioner’s affidavit that it has no basis in law. I invited court to disregard the attack.

It was also submitted that the affidavit of Ruranga was incurable. That is was sworn in a sloven fashion and court was invited to find that because of this the credibility of this evidence was very low. I submit that any failure to provide annextures does not undermine the credibility of the witness. Rather, those offending affidavits are severable and reliance can be put on the rest of the affidavits.

Justice Oder’s ruling in the 2001 Presidential Election Petition, that defective part of affidavits can be severed from the rest. I submit that the affidavits of Rubaramira is as good as any. The same affidavit was also attacked on information that …. We did refer to the decision of the CJ. Paragraph by Matsiko does appear in the judgment, but it is not in the way it stated.

The Chief Justice was reviewing authorities when he made the statements. On page 44, it is stated that an affidavit based on information.

Oder: In that affidavit there was a joint decision, but what you are referring to are the reasons that the CJ gave….

Wandera: Justice Karokora said in his ruling that he does not believe that justice would be served by scrupulous…. Of rule 17. So admit Rubaramira’s evidence.

Mulenga: I think you misquoted my brother Karokora….

Wandera: It was submitted by my learned friend that Rubaramira names only 2 centres of disenfranchisement and therefore this was not a nationwide phenomenon. The petitioner brought evidence from Mbale, West Nile, Arua and Nebbi, Iganga, Busia, Kampala and Bushenyi and this proves nationwide disenfranchisement.

Karokora: Did he explain what was involved in this disenfranchisement?

Wandera: I will come to that my lord. Counsel for respondent said that the reports of observers and monitors as mere hearsay and therefore cannot prove a nationwide problems. The 1st respondent annexed the interim report of the commonwealth Observers and relies on it. Having done that counsel cannot turn around and say you can’t rely on them

Odoki: Are those two wrongs or two rights?

Wandera: They were his agents (protests from court)

Karokora: On which affidavit was this attached?

Wandera: On the answer… Their observation are very important. Because these are independent and monitor what happens. Rubaramira mentions in annexture c1 says that 150,000 people were disenfranchised…. While the Commonwealth puts the number of disenfranchisement at 200,000.

Kanyeihamba: This is nationwide?

Wandera: Yes.

It was also said that one may be on register and can be removed for valid reasons and that it is upon him to monitor, and that if he does not do so, he has himself to blame.

Article 59 (2) of the constitution about the right to vote. (Duty of every citizen to register to vote and the state shall do all to ensure that the….) So the duty is on the State.

The first respondent relied heavily on affidavit of Charles Nsimbi to rebut disenfranchisement.
These can be divided in three categories:

• 1. Where voter is on register but he or she is turned away. That in itself is disenfranchisement.


• 2. Those registered at one polling station, but their names appear at a different polling station. This is also disenfranchisement because a voter is entitled to vote where he registered, not to hope from one place to another looking for his name.


• 3. Voters advised by Polling Officers to check at nearby polling stations, when they reported to polling stations at which they were required their vote. This shows that the presiding officers were aware of the problem and confirmed this disenfranchisement.


• 4. The last category which Nsimbi refers to are those removed on the recommendations of the tribunal and he provides a sample as an annexture.
  On that annexture, it was argued that the two people appearing …… were actually part of the tribunal. I submit that this is very important because this is a sample because if this is a way the tribunal acted, it means that very many people were disenfranchised…. The tribunal was also not properly constituted. Because you can’t recommend deletion and also you are part of the deletion.

Odoki: Are recommenders for provided by the law?

Wandera: Yes my Lord…..However, we would recommended that they were only two people who were on tribunal.

Kanyeihamba: Even then, is it alright to remove a voter from the roll without informing them until they turn up for voting.

Wandera: No. This shows that only two people were responsible for deletion of 200,000. On multiple voting, you were invited to disregard the evidence of Allan Barigye. Annexture D2 corroborated it.

Karokora: How does that corroborate it?

Wandera: There was an independent monitor at that station who said that there was multiple voting and agents were not at the station.

(Odoki announced at the end of the hearing that the Court would deliver its ruling on April 6).