By Haggai Matsiko
Break-ins, ambushes, and strategy
Leading constitutional law expert Wandera Ogalo in January lost a case in the Constitutional Court which he says touches on the ongoing petition in the Supreme Court in which former Presidential Candidate Amama Mbabazi seeks to annul President Yoweri Museveni’s win of the Feb. 18 presidential elections.
Ogalo’s client, four-time former presidential candidate Kizza Besigye had in 2009 challenged the constitutionality of the substantiality test in the Presidential Elections law.
Under this test, the election of a candidate as President is only annulled if, among others, the court is satisfied that the election was not conducted in accordance with the principles laid down in those provisions and that the non-compliance affected the result of the election in a substantial manner.
Ogalo scoffs at the words “in a substantial manner”.
He says the substantial manner requirement, in effect, “turns judges into mathematicians instead of evaluators of evidence”. He says the test does not examine the quality of the election but looks at quantity.
“You must show judges numbers,” he says.
The Constitutional Court dismissed the Besigye case in January shortly before the elections. Now, just two months later, three of the judges who dismissed the case in the Constitutional Court are now hearing Mbabazi’s petition in the Supreme Court.
Chief Justice Bart Katureebe is presiding. The other members of the team are Prof Lillian Tibatemwa Ekirikubinza, Jotham Tumwesigye, Stella Arach-Amoko, Augustine Nshimye Sebuturo, Esther Kisaakye, Faith Mwondha, Ruby Aweri Opio and Eldad Mwangusya.
Mbabazi’s petition before the justices centers on three main issues. The first one is whether the first respondent, President Museveni and the second respondent; the Electoral Commission, conformed to the country’s Presidential Elections Act and the Electoral Commission Act. The second issue is whether the alleged non-conformity, in any, affected the outcome of the Feb. 18 vote in a substantial manner. And the third issue is whether President Museveni personally or through his agents perpetrated the non-conformity with the laws.
Games and gambits
When hearing opened in the Supreme Court on March 14, his lawyers straight away strove to show the court that the nonconformity with the laws in the presidential elections substantially affected the outcome. More precisely that without the non-conformity with the laws, President Museveni would not have got the 60.5 percent and Mbabazi would have got much more than the 1.4 per cent of the vote.
The opening gambits by lawyers for and against, seen as fumbles by some and as tactics by others, provided some early drama. Mbabazi’s lawyers tested Justice Katureebe’s patience when they adopted a piece-meal submission of affidavits, and pleaded for the extended deadlines which they sought to breach. On opening day, Katureebe, who is leading the panel of nine judges, abruptly adjourned the hearing to the following day claiming there appeared to be a “trial by ambush”.
But it appears Mbabazi’s lawyers were determined to ensure that reported break-ins at their offices by suspected criminals a day before the hearing started is felt in the courtroom. They kept insisting that they could not file evidence in time because of the burglaries in which they alleged computers and other files bearing some evidence had been carried off.
It is alleged that unknown elements broke into the law firms of Mohammad Mbabazi, the lead counsel in the petition and that of Fred Muwema, another lawyer in the case. The lawyers and their client have said the burglars wore clothing similar to the uniform of the Uganda Police.
Muwema’s law firm is tucked away on Plot 50, Windsor Loop Road in the leafy green upscale and well policed areas of Kololo while Mohammad Mbabazi’s law firm is located in an equally secure area on Buganda Road.
Police has denied any involvement and set up a committee to investigate. However, the Deputy Attorney General, Mwesigwa Rukutana, who is leading the government team in the petition, led a chorus of those saying the alleged break-ins were, in fact an inside job. The motive was to either attempt to justify unpreparedness or seek public sympathy. But Justice Katureebe was unimpressed and admonished Mbabazi’s lawyers to get on with the case.
The man behind some of these maneuvers on the petitioner’s side is Mohammad Mbabazi, who joined Mbabazi’s team of lawyers after the initial petition. Mbabazi, the only lawyer on that team who has in the past been part of a presidential elections petition, led the efforts to amend that petition and make it more water-tight, The Independent has learnt.
The amended petition added 15 new grounds to the earlier 28 grounds. Most notably, in the amended petition, Mbabazi is demanding a fresh recount of votes in 45 districts of Apac, Moroto, Gulu, Kisoro, Kanungu, Butambala Ntungamo, Kampala, Rukungiri, Rakai, Wakiso, Jinja, Arua, Luweero, Sironko, Serere, Rubirizi and Soroti among others.
Mbabazi’s aim was to show that the malpractices in these districts had a substantial effect on the result and tantamount to noncompliance of the acts by the Electoral Commission.
The EC announced Museveni the winner of the 2016 elections with 5.9 million votes or 60.6 percent followed by Kizza Besigye who scored 3.5 million votes or 35.61 percent of the total votes cast. Amama Mbabazi, on the other hand, polled 136,519 representing 1.4 percent of the total votes cast.
Museveni’s lawyers had asked court to dismiss the amended petition with costs. The day it was tabled before court, they claimed they were seeing it for the first time. That win could prove significant for Mbabazi’s team.
Issues of substantiality
A legal expert The Independent has talked to recalls that when he sought to annul the elections under similar circumstances, Besigye had in 2001 and 2006 elections polled 26% and 37% respectively. But his petition on both occasions, failed to pass the substantiality test. Court ruled on both occasions that there had been inconsistencies but that these had not affected the results substantially.
Dr Busingye Kabumba, another constitutional law lecturer at Makerere University who, together with other dons, is participating in the hearing as an amicus curiae or friend of court, has in the past argued that the trouble is with section 59 (6) (a).
According to the section, the election of a candidate as president shall only be annulled if the court is satisfied that the election was not conducted in accordance with the principles laid down in those provisions and that the non-compliance affected the result of the election in a substantial manner.
As a result, experts say, the section is subject to two interpretations—one which heavily relies on the substantiality test and the other, for which, non-compliance with electoral laws automatically leads to the nullification of the election.
Kabumba has argued that to resolve the problem of the contradicting interpretations of the provision, the section needs to be amended. Interestingly, even the presiding judge in the case, Chief Justice Bart Katureebe has previously called for the amendment of the provision.
But the other grounds of the petition have proved to be of equal interest.
Mbabazi’s lawyers have asked court to look into whether the Electoral Commission chairman, Badru Kiggundu compiled and maintained a national voter register for the 2016 election and whether the EC announced results from the tally centres or not.
On the opening day of the hearing, Kiggundu was the first to be cross-examined by the petitioner’s lead lawyer, Mohammad Mbabazi.
The lawyer has argued that Kiggundu did not use the hard copies of the forms, and as a result failed to comply with the provision of the law and as such there were no election results.
Asuman Basalirwa also argued before court that the EC did not compile a register for 2016 elections as required by the constitution. But when Katureebe challenged him to provide evidence of how many people were disenfranchised, he said he had abandoned that ground after it emerged that he didn’t have affidavits to that effect. In response, Katureebe said court would not allow him to take it on a fishing expedition.
On another issue, court had ordered the EC to submit tally sheets and also Kiggundu to appear before the court for cross examination. During the cross examination, Kiggundu told court that he had not relied on hard copies of the forms but rather their scanned formats. Asked where these were, Kiggundu said they were on EC computers and servers used. Sometimes the exchanges got heated.
In one case, the lawyer said Kiggundu was lacking on transparency regarding the Biometric Voter Verification Kits.
Lawyer Mbabazi said: “The supplier says Uganda is a celebrated case study after using this technology.
Kiggundu: I would not doubt that because we have always been so.
Lawyer: How many voters used the machine?
Kiggundu: Learned friend, bear with me. I will not lose my head.
Lawyer: You do not know the number of verified voters. Where is the transparency?
Kiggundu: You are going too far, but I will not lose my head.
Chief Justice Katureebe: Please do not lose your head. No one needs it. (Laughter in courtroom)
Despite such moments, the proceedings remained tense as other issues in the case, including on electoral offences like bribery of voters, were probed.
Lawyer Michael Akampurira, who was raising this issue, shifted from example to another prompting the judges to ask him to point out the specific evidence. At some point, he asked that one of the paragraphs in the affidavit citing a bribery of Shs250,000 allegedly sent by President Museveni to be “severed” from the evidence.
Commenting on the case, retired former Supreme Court Justice George Kanyeihamba recently told The Independent that this case has more glaring evidence than the 2001 and the 2006 petitions. Kanyeihamba was on the panel that heard the 2006 petition.
“For instance we never had anyone claiming Museveni as a presidential candidate was seen distributing hoes and if proven true, it is a criminal offence that can lead to disqualification of a candidate from standing or becoming president,” he said, “In the previous elections, there were allegations but as judges including Chief Justice Benjamin Odoki, our ruling proved that there was no sufficient evidence to prove that the person committed such a crime. In this case, there happens to be some evidence.”
Kanyeihamba also noted that “never before in the electoral history of Uganda have presidential election results been universally condemned and rejected nationally and internationally”.
But other legal minds, like Human rights lawyer Laudislaus Rwakafuzi, say by their very nature, presidential petitions have tended to be adversarial, requiring petitioners to convince the judges about irregularities. He says that the better way would be for the judges to conduct inquiries and basing on their findings to make recommendations.
Although the clock is ticking to the end of the month, which is deadline day, for the justices to pronounce themselves on the petition, it is still some distance before conclusions about the direction of this case can start to be made.
The Presidential Elections Act provides that if the court is satisfied with evidence presented, it can order for a recount, dismiss the petition, annul the election or declare the candidate who was validly elected.
Mbabazi’s lawyers wanted the court to order a vote recount in the course of the trial but the Supreme Court declined. Justice Katureebe argued that a recount, if any, comes at the end of the trial, as a decision of the court. Among the most awaited questions is whether the issue of the “substantiality clause” will be resolved this time.
In 2006 petition, to make the case for substantiality, the judges were presented with evidence from a statistician. They were not convinced.
At the time, Katureebe also ruled against the petition on grounds that the electoral malpractices committed by Museveni and the Electoral Commission did not affect the outcome in a substantial manner.
“In my view, 153,000 people, whose deletion is indeed reprehensible, is too small a number to affect the result of the election in a substantial manner, even if they had all belonged to one candidate, which was not proved,” he ruled, “I am satisfied that this non-compliance did not affect the result in a substantial manner.”