By Haggai Matsiko
Behind the scenes manouvres at the Supreme Court
The courtroom, which sits about 200 people, was packed. It was a few minutes to 1:00 O’clock. Severino Twinobusingye, one of Mbabazi’s lawyers – a lanky man who wears an angry look like a badge of honour – was about to present on what he alleged were inconsistencies in the results released by the Electoral Commission. The heat was up. Even the nine justices of the Supreme Court in their red robes, led by Chief Justice Bart Katureebe, seemed to feel it even if their bench is positioned below the three air conditioners.
The sun outside was sweltering but part of the heat inside was from the heavy anticipation.
It was March.19, the last day the court was hearing the petition in which former presidential candidates Amama Mbabazi is challenging the results of the Feb.18 elections. The respondents are President Yoweri Museveni, the Electoral Commission and the Attorney General (AG).
Museveni was declared winner of the election with 60.5%, Kizza Besigye followed with 35%, and Mbabazi was third with 1.4%. The other five candidates scored below 1% each.
But Mbabazi was challenging Museveni’s win on three general grounds; that Museveni and the EC did not conform to the Presidential Elections Act and the Electoral Commission Act, and that the non-conformity affected the outcome of the vote, and that Museveni personally or through his agents perpetrated the non-conformity with the laws.
Twinobusingye’s clean shaven head was shinier than usual as he adjusted his spectacles and announced that he would address two issues; the polling stations where there was a hundred percent voter turnout, and polling stations where the total votes cast exceeded the total number of registered voters.
He had prepared a matrix of 50 polling stations where, he alleged, total votes cast exceeded the number of registered voters and another where there was a hundred voter turnout. After the matrices were shared with the justices, one of Museveni’s lawyers, Ellison Karuhanga, asked whether Twinobusingye would share the documents from which he had generated the matrices. Twinobusingye said the documents were the ones that were already before court and he started rolling his missiles.
His first example was Bumate AK polling station in Bundibujo district, where he said that the votes cast exceeded registered voters by 19. His next example was Kanyangoma Primary School polling station, where he claimed the excess ballots were 101. He followed these two examples with Busamba C.o.U polling station where he said excess ballots were 66 and just as he read the fourth example Kaboijana trading centre, where the excess, he claimed, was 381.
The Pontius moment
At this point, EC Chairman Badru Kiggundu and his team were almost jumping off their seats. With their eyes pinned on Twinobusingye, they all stuck out their necks like a bunch of mongooses that had just sensed trouble and were ready to take off.
They were seated facing Justice Katureebe directly but a few rows behind their lawyers. Kigundu in light-blue shirt, red tie, and brown suit sat with Justine Mugabi, an EC commissioner on his left, and next to her was Sam Rwakojo, the EC secretary.
Kigundu kept scratching his head and frowning. Rwakojo adjusted his frameless lenses and also frowned. On the row behind them was Joshua Wamala, the Head of Election Management and next to him was Jotham Taremwa, the commission’s spokesperson. Taremwa was typing vigorously on his smart phone.
In a matter of seconds, Edwin Karugire, the president’s son-in-law, who was seated with the lawyers just one row in front of the Kiggundu team, scribbled a note on a piece of paper from his notebook and handed it to another man who then handed it to a man sitting next to Kiggundu on the right. On the folded note was a big writing in capital letters reading “PONTIUS”.
That man’s name is Pontius Namugera, the Director of Technical Support Services at the EC. In other words, he was in charge of the national elections tally centre. Throughout the proceedings, Namugera had been busy typing on his laptop on his lap. As the lawyers presented, he highlighted some points in red and others in yellow. Occasionally, he would exchange whispers with Kiggundu, Rwakojo or the two men behind him; Wamala and Taremwa. His name had been mentioned about a hundred times throughout the proceedings that started on March.14. He was a key witness and on this day his role was even more critical. But, it appeared, the thick-necked, chubby-faced man now had a problem.
When Namugera got the chit from Museveni’s son-in-law; Karugire, he opened it close to his chest as if he did not want its contents revealed to another. Then he passed it to Kiggundu, who passed it to Rwakojo and finally to Wamala.
A few minutes later, Namugera shot up and rushed to Karugire’s sit. Karugire whispered a few things to him and when he came back to his sit, he quickly folded his brown mini-brief case and like a bull that had just been stung by a bee, stormed out of court.
The day before, March 18, Mbabazi’s lawyer had finally got the EC to give them the raw data of the election results. It included Declaration of Results (DR) forms, Return of Results (RR) forms and tally sheets.
Houdini of Ugandan law
The petitioner’s lead lawyer, Mohmed Mbabazi, a chubby man with well-oiled close cut hair with hints of grey, an unblinking stare, calm voice, and the debonair air of a successful practice, had told court he would use the documents to expose major inconsistencies the election results.
The lawyers for the EC had protested. Even the justices appeared disturbed. Allowing the request meant more time hearing the case yet they had just a few days left to come up with a ruling. But Mohmed was firm. He told the justices that it was up to them to allow or block him from exposing the EC. Justice Katureebe was stuck. He ordered a short break.
When court resumed, Katureebe said that in the interest of justice and mindful of the matter before them, they had decided to give Mbabazi’s lawyers more time to table their new evidence.
At the moment, it was as if the lawyers for the respondents had been struck by lightning. It was another masterstroke from Mohmed. But what more tricks did he have up his sleeve? It did not help that everyone had to wait a whole night to find out.
That is why Kiggundu and his team looked anxious on the last day.
Mohmed is renowned in legal circles for picking his cases carefully. Therefore, many observers were surprised when he turned up at the Supreme Court to represent Mbabazi. Up to the last minute, Museveni’s lawyers had expected only Michael Akampurira, Twinobusingye and Asuman Basalirwa. Akampurira was expected to lead the team.
But The Independent has learnt that just two days to the deadline of submitting the petition, Mohmed was contacted by Mbabazi himself. In an interview, he confirmed to The Independent that initially, he had been preparing to represent Kizza Besigye.
But Besigye’s camp did not come forth with instructions. Besides, the former presidential candidate knew his name sake well. Back in 2001, he had given him sleepless nights as he represented Musinguzi Garuga in a case that haunted the former prime minister. Mohmed also featured strongly in Besigye’s 2001 presidential petition and also played a minor role in that of 2006. At the time, Amama Mbabazi was on Museveni’s team.
This time around, Mohmed was not the first top lawyer the former prime minister was approaching. The Independent has learnt that most of the others approached had said that the petition was too weak and stood no chance in court. In reality, the conclusion could have been based on precedent; the sense that presidential election petitions were unwinnable.
When Mohmed reviewed Mbabazi’s instructions, he gave his conditions. The petition would have to be amended and he had to lead the team. But even after his terms were accepted, there appeared to be another problem. A presidential election petition had never been amended before and his colleagues assured Mohmed that he would not pull it off. But he was just about to show them that he was the Houdini of Ugandan law.
On March 7, he filed his amended petition with the registrar at exactly 10:04 am.
At about 10:20am, he served the lawyers of the EC and Museveni with the amended petition. The lawyers were taken aback. They protested to the court. Even Justice Katureebe said that the amended petition was not before court. Then he was informed that it had been filed. There was confusion and Mohmed appeared to be the cause of it. Then the Museveni and EC lawyers asked court to dismiss the petition with costs. But Mohmed remained firm. He argued strongly until Katureebe called an adjournment. When the justices returned, Katureebe announced that court would accept the amended petition. It was the first time a presidential petition was being amended. It was a victory for Mohmed. But the war was just beginning. That night, on March 8, unknown people allegedly broke into Mohmed’s offices and those of another lawyer, Fred Muwema, who was initially on the case. It is alleged that the attackers wore police uniforms and carried off evidence.
When Mohmed and team showed up next day, they kept filing evidence piecemeal until Justice Katureebe accuse them of attempting “a trial by ambush”. Mohmed appeared unshaken and he grilled Kiggundu. His case, he told court – over and over- depended on showing court that Kiggundu did not rely on the legal documents while declaring results and therefore, there were no results.
Therefore, when Mohmed said he was coming to show court the inconsistencies in the EC data, there was real tension.
EC on the spot
When he finally presented, Mohmed focused on the data. First, he tabled evidence from Kabale, Rukungiri, Jinja and Kyenjojo district where, he said, the results on the DR forms from polling stations were not the same as those on the Tally Sheets the EC used to declare results. At every polling station, results are first entered into DR forms before they are entered into the Tally Sheets at the district and fed into the transmission system to the National Tally Centre.
Then he showed that the DR forms had had results entered into them on Feb.18 polling day but the tally sheets that Kiggundu used still read zero for all candidates two days later on Feb. 20, the same day Kiggundu announced Museveni winner.
Mohmed told the justices: “These are lies. There was no transparency. Everything was done in secrecy and concealment.” The law, he told them, is clear; that EC should tally in public view.