FDC president Kizza Besigye has petitioned the Supreme Court challenging the presidential elections results declared by the Electoral commission (EC). The petition was filed jointly by M/S Matovu & Matovu Advocates, M/S Sam K. Njuba & Co. Advocates and M/S Victoria Law Offices. Below we reproduce the petition and the affidavit in support of the petition, sworn before Kenneth Omoding, a commissioner for oaths and advocate
THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA HOLDEN AT MENGO
PRESIDENTIAL ELECTION PETITION NO. 001 OF 2006
IN THE MATTER OF THE PRESIDENTIAL ELECTIONS OF FEBRUARY 23RD 2006
IN THE MATTER OF THE PRESIDENTIAL ELECTIONS ACT, ACT 16 OF 2005
RTD. COL KIZZA BESIGYE ------- PETITIONER
1. THE ELECTORAL COMMISSION
--- 1ST RESPONDENT
2. YOWERI KAGUTA MUSEVENI
--- 2ND RESPONDENT
The humble petition of (Rtd). Col. Dr. Kizza Besigye whose address for purposes of service of this Election Petition is C/O M/S MATOVU & MATOVU M/S NJUBA & CO. ADVOCATES, M/S VICTORIA LAW OFFICES, and whose names are stated at the foot of this petition showeth and states as follows;
1. Your petitioner (Rtd) Col. Dr. Kizza Besigye is a person who was a candidate and did participate in the February 23, 2006 presidential elections in Uganda having been duly nominated as a candidate with a right and qualifying to be elected as the President of the Republic of Uganda.
2. Your petitioner is an aggrieved candidate within the meaning of Article 104(1) of the Constitution (of) 1995 and S.59(1) of The Presidential Elections Act 16 of 2005.
3. And your petitioner states that he was a candidate in the presidential elections held on the 23rd day of February, 2006 together with Abed Bwanika (an independent candidate), Besigye Kizza (FDC candidate), Obote Kalule Miria (UPC candidate), Ssebaana John Kizito (DP candidate), Yoweri Kaguta Museveni (NRMO candidate) and the Electoral Commission returned Yoweri Kaguta Museveni as the validly elected president by its declaration dated 25th February 2006.
4. The petitioner avers that the 1st respondent did not validly declare the elections in accordance with Act (103)(4) of the Constitution and Section 57 of the Presidential Elections Act, Act 16 of 2005 thereby rendering the 2nd respondentâ€™s declaration as the successful candidate invalid and shall seek an order of recount.
5. Your petitioner contends that the above election was conducted in contravention and contrary to the provisions of the Constitution, Electoral Commission Act and the Presidential Elections Act 16 of 2005.
6. The petitioner shall contend that the provisions of Section 59 (6) (a) of the presidential election act are contrary to the provisions of Article 104 (i) of the Constitution and he shall apply to refer the issue to the Constitutional Court under Article 137 (5) (b) of the Constitution.
7. IN THE FURTHER ALTERNATIVE but without prejudice with the foregoing paragraph the election of the 2nd respondent was invalid on the ground that the election was not conducted in accordance with the principles laid down in the provisions of the presidential elections Act and that such non compliance affected the results in a substantial manner.
8. Your petitioner avers that the entire electoral process on the 23rd day of February, 2006 presidential elections, beginning with the campaign period up to the polling day was characterised by acts of intimidation, lack of freedom and transparency, unfairness and violence and commission of numerous electoral offences, and illegal practices contrary to the provisions of the Presidential Electionsâ€™ Act, Electoral Commission Act and the Constitution;
a. Contrary to S.19(3) and S. 50 of the Electoral Commission Act, the 1st respondent disenfranchised voters by deleting their names from the voterâ€™s roll/register.
b. Contrary to S.32 of the Presidential Elections Act, the 1st respondent allowed multiple voting and vote stuffing in many electoral districts in Uganda.
c. Contrary to S.57 the 1st respondent failed to cancel results of polling stations where gross malpractices and irregularities took place in particular the districts of Kiruhura, Manafa and Pallisa.
d. Failing to declare the results of the election in accordance with S.56 and S. 57(4) of the Presidential Elections Act 16 of 2005 and Electoral Commission Act.
e. Contrary to S.12 (e) and (f) of the Electoral Commission Act, failing to take measures to ensure that the entire electoral process is conducted under conditions of freedom and fairness.
f. Contrary to Section 9 of the Presidential Elections Act the 2nd respondent was neither sponsored as a candidate by a registered political organisation or party or as an independent candidate.
g. Misleading the voters by printing and using ballot papers which indicated that the 2nd respondentâ€™s party was the NRM which is not a registered party participating in the elections.
h. Misleading the voters by allowing the use of a symbol of the â€œBusâ€ which was used by the movementâ€™s political system during the referenda.
9. Your petitioner avers that the 2nd respondent directly benefited from the above none compliance with the provisions of the Presidential Elections Act and Electoral Commission Act.
10. IN THE ALTERNATIVE and without prejudice failing to declare the result of the election in accordance with Article 103(4).
11. Your petitioner avers that the 2nd respondent personally committed the following illegal practices and or offences, while campaigning;
(a) Used words or made statements that were malicious contrary to S.24(5)(b) of the Presidential Elections Act.
(b) Made statements containing sectarian words or innuendos against your petitioner and or his party and other candidates contrary to S.24(5)(c) of the Presidential Elections Act.
(c) Made abusive, insulting and or derogatory statements against the petitioner, F.D.C and other candidates contrary to S.24(5)(d) of the Presidential Elections Act.
(d) Made exaggerations of the petitionerâ€™s period of service in government and the reason why he was moved from the several portfolios your petitioner held in government and he also variously ridiculed the petitioner contrary to Section 24(5)(e) of the Presidential Elections Act.
(e) Used derisive or mudslinging words against the petitioner.
(f) Used defamatory and or insulting words contrary to section 23(3)(b) of the Presidential Elections Act.
12. The petitioner further contends that the 2nd respondent committed acts of bribery of the electorate by his agents with either his consent and or approval;
(a) Bribery of voters just before and during the elections contrary to S.64 of the Presidential elections act.
(b) Attempting and interfering with the free exercise of the franchise of voters contrary to S.26(c) of the Presidential Elections Act.
(c) By agent procuring the votes of individuals by giving out tamplins, saucepans, water containers, salt, sugar and other beverages and making promises of giving such beverages.
WHEREFORE your petitioner prays;
1. That it may be determined that the said Yoweri Kaguta Museveni was not validly elected.
2. Order that a re-run be held.
3. An order for a recount.
4. For an order for costs of this petition.
5. For such other remedy available under the electoral Laws, as the court considers just and appropriate in the circumstances.
Dated at Kampala this
7th day of March, 2006
Rtd. Col Kizza Besigye
THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA HOLDEN AT MENGO
PRESIDENTIAL ELECTION PETITION NO.001 OF 2006
IN THE MATTER OF PRESIDENTIAL ELECTIONS HELD ON FEBRUARY 23RD 2006
IN THE MATTER OF PRESIDENTIAL ELECTIONS ACT, ACT 16 OF 2005
RTD. COL KIZZA BESIGYE--------- PETITIONER
1. THE ELECTORAL COMMISSION
---- 1ST RESPONDENT
2. YOWERI KAGUTA MUSEVENI
---- 2ND RESPONDENT
AFFIDAVIT IN SUPPORT OF THE PETITION
I, Rtd. Col. Kizza Besigye, of c/o P. O. Box 24455, Kampala do solemnly take oath and state as follows;
1. THAT I am an adult Ugandan citizen of sound mind and the Petitioner here in and I swear this affidavit in that capacity.
2. THAT I was a candidate in the presidential elections held on the 23rd day of February, 2006, sponsored by the Forum for Democratic Change (FDC) while the 2nd respondent was sponsored by the National resistance Movement (NRM-O).
3. THAT the 2nd respondent was declared to be the winner of the elections by the 1st respondent (see â€œAnnexture Aâ€).
4. THAT I have investigated the circumstances under which the elections were held and I have discovered that they were full of malpractices, irregularities and electoral offences.
5. THAT on polling day many voters who had duly registered and were holders of voterâ€™s cards were unable to vote because their names did not appear on the votersâ€™ roll.
6. THAT on polling day many duly registered voters in most districts were not allowed to vote because their names did not appear on the voters register.
7. THAT many voters were transferred without their knowledge.
8. THAT many voters who registered after my return from exile were removed from the register and were denied their right to vote for me.
9. THAT the 1st respondent declared results from the districts without a return form, reports of the elections, tally sheets and declaration of the results forms.
10. THAT on 17th January, 2006 while campaigning in Jinja the 2nd respondent referred to me as a false prophet and referred to the opposition as night dancers.
11. THAT on 14th January 2006 while campaigning in Kasangati the 2nd respondent referred to UPC and DP as failures and FDC as non starters.
12. THAT on 27th December 2005 while campaigning in Luzira the 2nd Respondent stated that the FDC controlled parliament had frustrated all his efforts to build two new Hydro Power Dams at Bujagali and Karuma and that if it was not for FDC â€“Uganda would have 700 additional megawatts.
13. THAT on 4th February, 2006 while campaigning in Koboko the 2nd Respondent stated that opposition politicians are liars and mentally sick.
14. THAT on the 2nd February, 2006 while speaking on Radio Mega in Gulu the 2nd respondent stated that I was liable for the suffering of the people of Northern Uganda because I was linked to the Lordâ€™s Resistance Army rebels and that I am working with terrorists.
15. THAT on 9th February, 2006 while campaigning in Hoima the 2nd respondent said that I was a liar who had no programme who was greedy for political power. The 2nd respondent further re-stated that FDC was in alliance with LRA rebel group, which rebel group was named as a terrorist organisation.
16. THE 2nd respondent wrote an article published in The New Vision of 10th February, 2006 in which he inter alia called me a traitor, an opportunist and a rebel.
17. THAT on 15th February, 2006 the 2nd respondent published an article in The New Vision newspaper in which the said respondent stated that I was one of those who designed the 1995 constitution in such a way as to weaken the presidency.
18. THAT on February 1, 2006 while campaigning at Apac the 2nd respondent stated that I was one of those responsible for the Barlonyo massacre, where armed thugs or rebels attacked an internally displaced peopleâ€™s camp and massacred hundreds of innocent civilians.
19. THAT while campaigning in Luweero on 23rd December, 2005 the 2nd respondent referred to me as unpatriotic.
20. THAT while campaigning at Boma Ground Fort Portal on 6th January, 2006 the 2nd respondent referred to DP and UPC as failures and FDC as scattered millet.
21. THAT during the campaign period the agents of the 2nd respondent throughout the country interfered with the free exercise of the franchise of voters and my party raised objection both to the 1st respondent and the Police (see annexture â€œCâ€) but nothing was done to put a stop to this.
22. THAT during the campaign period 3 (three) of my supporters were murdered by an NRMO party functionary and agent driving a vehicle covered with the 2nd respondentâ€™s campaign posters at Bulange.
23. That an election day, Fox Odoi, a legal aide of the President who is the 2nd respondent, harassed, assaulted and intimidated my supporters in Tororo district.
24. That on the 12th day of December 2005 my supporters at the party headquarters were attacked by the army personnel and the party chairman of the Electoral Commission Major Ruranga was assaulted by the Commandant of the group, Col. Dick Bugingo.
25. THAT the 1st respondent mismanaged the elections by failing to stop vote stuffing, vote buying, intimidation and violence.
26. THAT the 1st respondent did not rely on the figures submitted by the returning officers in those districts in declaring the results.
27. THAT I believe the said irregularities and malpractices affected the results of the elections substantially given the margin between the petitioner and the 2nd respondent.
28. THAT I am swearing this affidavit in support of my petition to nullify the presidential elections held on the 23rd day of February, 2006.
29. THAT what is stated in paragraphs 1,2 ,3 ,4,5 , 9, 10, 11, 12, 13, 14, 15, 16, 17,18, 19, 20, 22, 23, 24, 25, and 28 is true and correct to the best of my knowledge and paragraphs 6, 7, 8, 21, 26 are true and correct to the best of my information from my agents and paragraph 27 is true to the best of my belief.
Sworn at Kampala by the said Rtd. Col. Kizza Besigye
this 7th day of March, 2006