By Mukiibi Sserunjogi
Have judges resorted to ‘judicial activism’ to address election rigging?
Before the High Court session that is currently hearing election petitions arising out of the February elections opened, few politicians had faith in resorting to courts if they felt their votes were stolen.
One of the pessimists was Augustine Ruzindana, the deputy secretary general for the opposition Forum for Democratic Change (FDC) and former MP Ruhaama County. Even in 2006 when Ruzindana first lost to Janet Museveni, a joint research by Makerere University and CMI, a development research institute in Norway, concluded that the First Lady had used substantial resources to defeat him.
This year, following a hotly contested race, Ruzindana says he documented the “acts of bribery and intimidation”, which he says were repeated on a “larger scale”. But Ruzindana did not go to court. He and others lost faith in the courts’ handling of petitions mainly because of their handling of cases by three-time presidential elections loser and FDC leader, Dr Kizza Besigye.
Besigye challenged President Yoweri Museveni’s victories in 2001 and 2006 and in both cases the Supreme Court Justices unanimously agreed that the elections had been rigged. However, in both cases, they refused to annul the results claiming Besigye had failed to prove that the extent of rigging significantly affected the final results. Besigye vowed not to go to court even after, he says, a repeat of the rigging occurred in the 2011 polls. Many agreed with his skepticism over the courts.
“Since the courts failed to discharge their constitutional duties (to annul stolen elections), they left us with no option but to appeal to the people to reassume their powers,” says Besigye. He resorted to protests, including the Walk to Work.
But the way election petitions have been decided this time has reopened the debate on whether the presidential election would have been annulled had it been challenged.
Several MPs, including former Vice President Gilbert Bukenya, have been thrown out of parliament especially on the basis of bribing voters. During the presidential campaigns and elections, which took place simultaneously with the parliamentary elections, voter bribery was the most decried malpractice. In the middle of the campaign, the government passed an unprecedented supplementary budget, most of which is thought to have been spent on funding Museveni’s re-election.
The nullification of the election of several MPs, most of them belonging to the ruling NRM, raises important questions. Was the 2011 election more rigged than previous ones? If the parliamentary elections, which took place on the same day as the presidential election, were rigged, did the parliamentary candidates rig only for themselves and not for their presidential candidates? Have petitioners become more knowledgeable in the areas of collecting evidence and filing petitions? Or have the judges now become more willing to entertain election petitions?
Kampala lawyer and FDC Vice President for central region Yusuf Nsibambi, who was part of Besigye’s election petition teams in 2001 and 2006, says all the above arguments could be true but the best bet is the forth one.
Nsibambi argues that judges have this time resorted to “judicial activism to put some bit of sanity back into society”. He says the judges are also part of the Ugandan society and have seen how the “situation has deteriorated”. Accordingly, argues Nsibambi, the judges are now more willing to rule against election irregularities “than it has ever been the case in order to stem the practice of rigging”.
If Nsibambi is right about the change of heart among the judges, then his boss, Besigye, was probably wrong to rule out returning to the courts despite alleging that the February election was “massively stolen”.
Nsibambi says in the past, judges appeared more reluctant to annul “blatantly” rigged elections sometimes due to technicalities and the difficulty involved in proving some allegations, like those related to bribery.
“You prove that a voter was beaten up and driven out of a polling station and court accepts a submission by the defence that that was one vote lost,” says Nsibambi.
In such a case, he argues, the court would have failed to take into account the likely effect of such acts like intimidation in relation, for example, to how many more voters could have been turned away or how many would have changed their minds on who to vote for as a result of one of them being beaten up.
The courts seem to have answered Nsibambi’s prayer this time. Perhaps encouraged by the way various petitions have been decided, voters in Vice President Edward Kiwanuka Ssekandi’s Bukoto Central have applied to the Masaka High Court to reinstate a petition that Ssekandi’s challenger Jude Mbabaali had filed but withdrew under unclear circumstances. The four voters, Margaret Nansubuga, Charles Samula, Robert Kasiita and Barbara Kabejja, claim that the petition was withdrawn illegally.
Others who have lost election petitions include Entebbe Municipality’s Muhammad Kawuma, who has since re-won the seat, Lands state minister Sarah Achieng (Tororo Woman), Budama South’s Jacob Oboth-Oboth FDC’s Francis Epatait, Luwero Woman MP Rebecca Nalwanga, Kagoma County’s Fredrick Nkayi Mbagadhi, Butambala’s Faisal Kikulukunyu, Rubaga North’s Marwaha Singh Katongole, among others.
Kikulukunyu has since joined Singh, whose five month tenure as Rubaga North MP that started with a comical reversal of his challenger Moses Kasibante’s victory through a dubious vote recount was halted by the same judge, in criticising Kibuuka-Musoke as biased in favour of the opposition Democratic Party.
What Nsibambi sees as a healthy change of heart on the part of judges is viewed by ruling party politicians who have fallen prey to the judicial decisions as a tendency for judges to favour the opposition. Luckily for Kikulunyu and Singh, they have the option of appeal to two higher courts.
That option was not available to Besigye when his two petitions, which he filed in the Supreme Court and were therefore not appealable, were thrown out. Explaining why he went back to the court after the 2006 election even if he wasn’t satisfied with the court’s ruling after the 2001 election, Besigye said he wanted to give the Supreme Court justices “a chance” to correct the mistake of 2001 when they failed to annul what was “clearly a stolen election”.
The issue of judges determining election petitions basing on their political inclinations was handled, albeit inconclusively, by former Supreme Court Justice Prof. George Kanyeihamba in his 2006 ruling arising out of the petition Besigye filed against Museveni’s re-election.
About the controversial clause in the Presidential Elections Act, 2005 [article 59(6)(a)]that requires a petitioner against a presidential election result to prove that the malpractices he alleges substantially affected the outcome of the election, Kanyeihamba stated in his ruling that this was unnecessary.
Kanyeihamba had asked: Why unanimously find that the 2001 and 2006 presidential elections had been neither free nor fair but then turn around and uphold the results because the petitioner failed to prove that the magnitude of rigging altered the final outcome?
All the petitioner has to prove, he said, is that there was rigging or non-compliance with the Act. Otherwise, argued Kanyeihamba, the justices would be tempted to determine the part concerning whether the results were significantly affected by the rigging basing on their inclinations towards the candidates concerned.
Besigye and his legal team spent time before the 2011 election toying with the idea of filing a petition with the Constitutional Court seeking to delete the provision that requires the petitioner to prove that the rigging was substantial before a presidential election is annulled.
Nsibambi says they eventually decided against filing the petition having considered the politics around the provision. They concluded that the judges would not change their stance.
Perhaps to underline the extent to which the February election could have been stolen, Judiciary Spokesperson Erias Kisawuzi says out of the 350 directly elected and District Woman MP slots that were competed for, 110 resulted in petitions filed.
Within the first four months, 105 of the petitions had been disposed of, resulting in over 40 appeals, according to Kisawuzi. Some of the candidates who lost election petitions like Bukenya and Entebbe Municipality’s Muhammad Kawuma did not appeal. The law requires the High Court to determine all the petitions within six months of being filed.
The over 40 appeals the Court of Appeal has to handle suggests a heavy workload for the appeals bench, which has in the past been probably overwhelmed by work.
The court session that started on Nov. 1 has heard 11 appeals, some of which arose out of elections in the last term and have therefore been overtaken by events. One prominent case is of FDC vice president for eastern Uganda Salaamu Musumba, who appealed a High Court ruling in the petition that arose out of the Kamuli LCV by-election in 2007. Kisawuzi concedes that this case was overtaken by events, but there are “issues like costs which have to be addressed”.
But Kisawuzi says the judiciary has resolved that this time the entire process of hearing election petitions including the appeals has to be concluded within one year. The move by the judiciary follows complaints that in case of election petition losers appealing, justice would in the past be delayed and sometimes almost denied. For example, DP’s Betty Nambooze waited for four years to have former Mukono North MP Bakaluba Mukasa’s election annulled by the highest court.
Kisawuzi is optimistic that by March 2012, all election related appeals will have been decided. These are the seeming winds of change that may leave Besigye licking his lips over not challenging Museveni’s re-election when he had the chance