The Supreme Court on Thursday March 31st delivered a judgment on the disputed 2016 presidential elections upholding the Electoral Commission’s February 20th 2016 declaration that Mr. Yoweri Museveni won the election.
First and foremost, Yoweri Museveni with the use of Police and military prevented the collection of credible evidence throughout the country.
The Police and military invaded FDC headquarters and occupied it for nearly a week. The FDC data entrants headed by Deputy Secretary General Harold Kaija were arrested and dumped in Police cells. The FDC Declaration of Results Form collection centre was summarily closed. Polling agents deployed at various stations were not only chased away during polling but many were arrested.
The FDC presidential flag bearer was placed under house arrest and each time he attempted to get out of his house was grabbed, bundled in a Police van, driven and dumped in cells at Naggalama or Kira division police. Until yesterday his home was surrounded by Police and other security agents.
It therefore became difficult and almost impossible for the FDC to successfully retrieve all information pertaining to the 2016 presidential elections from the 112 districts and comply with a requirement to file a petition in 10 days.
The FDC has compiled many cases of interference with the electoral processes by security agents and NRM leaders. This interference was most rampant in districts of Kiruhura, Kabula, Serere, Rakai, Mbarara etc. Specific cases will be listed in our final report on the disputed 2016 general elections.
The FDC therefore didn’t go to court partly because of these conditions. Hon. Amama Mbabazi who did was subjected to similar conditions including the breaking in into the chambers of some of his lawyers.
The FDC now believes that a petition can no longer do justice to the real legal and political issues surrounding the 2016 Election, leave alone enable the citizens of Uganda to know who actually won the election because:
- The limited time available for the preparation, lodgment and determination of a presidential election petition grossly handicaps already disadvantaged aggrieved candidates and pitches them, once again, against the well facilitated and multi-faceted State machinery;
- The narrow judicial interpretation of the quantitative standard set in the Presidential Elections Act 2005, which requires a petitioner to prove by numbers that non-compliance with the provisions of the Act affected the result of the election in a substantial manner, yet some effective means of vote suppression, such as violence, intimidation and misuse of State resources are incapable of being weighed numerically;
- Blatant interference with aggrieved candidates’ efforts to prepare and conduct petitions in the Supreme Court;
- The adversarial judicial system has reduced presidential election petitions from the judge led fact-finding inquiry into the election envisaged in the Constitution to a near farcical contest of what can be proved by the, already grossly handicapped, petitioner on the basis of affidavits compiled in a limited time and under pressured circumstances; and
The possibility of interference with the independence of judicial officers, as revealed to have happened in 2006 by retired Supreme Court Justice Kanyeihamba.
For those reasons the Supreme Court was unlikely to get to the bottom of the issues that dogged the 2016 Presidential Election. The judiciary has an important role to play in a democratic society. Where it is impartial and is seen to be impartial, it can act as an important arbiter in national disputes, thus advancing the democratic process and the rule of law.
We note with deep regret, however, that the judiciary, through negligence, partiality or intimidation, has increasingly abdicated its constitutional mandate to protect the rule of law and fundamental human rights. Too often, these days, justice comes too late, if it comes at all.
And where the court should be the Temple of Justice, in which a citizen might turn to for protection and where the powerful bow before the law, increasingly the court’s doors are shut and its voice is muffled. Consequently, those with power can act with impunity, assured in the knowledge that they stand above the law. Thus, an honest citizen has nowhere in the land to turn to find justice.
The illegal arrests of Dr. Kizza Besigye and his subsequent house arrest in 3lation of the Constitution stand as a prime example of impunity and legality.
Throughout this sad episode, now spanning just under 40 days and with no end in sight, the judiciary has failed to intervene to uphold the law and protect Dr. Besigye’s rights. Instead they have opted to use technical delays to avoid making an order for Dr. Besigye’s release.
The failure of the judiciary to combat the wanton violation of constitutionally guaranteed human rights and to forcefully defend the law extends to the continued persecution of General David Sejjusa, whose political persecution is being conducted under the cloak of the law.
Finally, that the Supreme Court has failed to conduct, as mandated Constitution, the requisite audit of the elections. It failed to verify the az: of the tally forms. It also failed to audit the data from the Biometric Verification Machines. Throughout the proceedings of the petition, the Court never took the initiative to independently inquire into the issues raised in the petition and to verify the accuracy of the election results.
Without carefully gathering and weighing all the evidence, it raises concerns how the Court would have reached an impartial and just decision that will promote the rule of law and democracy and assure peace and tranquillity.
Democracy and the rule of law depend on the independence and the effectiveness of the Judiciary.
It is for these reasons that FDC is of the view that it is better to have an internationally backed Independent Election Audit. The Audit would be an independent inquiry into the process and event of the 2016 Presidential Election to:
Assess whether the election measured up to the constitutionally mandated standards for a elections; and determine the veracity of the Electoral Commission’s declaration of candidate Yoweri Kaguta Museveni as duly elected President;
To the extent possible, declare the true winner of the 2016 Presidential Election
Restore the integrity of the Electoral Commission as a mandated state agency to manage future elections. The trust of citizens in the Electoral Commission has been severely eroded because it cannot demonstrate its control over the electoral process; and
Rescue our men and women in the security forces who are being deployed against the very citizens they are supposed to protect and whose rights, freedoms and liberties they are supposed to defend
To make such recommendations as may be necessary in the circumstances.
An Independent Election Audit is needed in order to objectively assess the credibility of the outcome of the 2016 Presidential Election as well as to ensure we can have free and fair elections in the future. Unlike the limited petition in the Supreme Court, an Audit would be able to assess the political and social issues hampering the holding the free, fair and transparent elections in Uganda.
The rigged 2016 presidential elections
It is clear that the election was rigged and all independent election observers condemned the election for being far less than free and fair. There were several shortcomings in the 2016 Presidential Elections, chief amongst them being:
An incompetent, partial and under-funded Electoral Commission;
A controversially compiled and grossly inflated Voters’ Register;
Complete fusion of the State and ruling National Resistance Movement, which tilted the playing field in favour of candidate Yoweri Museveni and against other candidates;
Intimidation and harassment of opposition political leaders as well as arrest of their supporters in the period running to, during, and after the elections;
Disenfranchisement and deliberate suppression of the Opposition vote in Kampala and Wakiso by grossly delayed delivery of voting materials;
Widespread ballot stuffing;
Fraudulent tallying and suppression or complete exclusion of results from Opposition strongholds such as Kampala, Wakiso, Jinja, Rukungiri, Kabale and Amuru.
These shortcomings were confirmed by Election observers and have also been confirmed by scientific analysis of the results released by the Electoral Commission that was independently commissioned by the FDC.
Commenting about the 2016 Presidential Election, the European Union Election Observer Mission stated that the “domination of the political landscape [by the ruling NRM party] distorted the fairness of the campaign and state actors were instrumental in creating an intimidating atmosphere for both voters and candidates,” and that the “lack of transparency and independence by the Electoral Commission (EC), and its markedly late delivery of voting material on election day to several districts considered opposition strongholds…decreased the opportunity for voters to cast their ballots.”
Commonwealth Observer Group condemned the “the misuse of state resources—which led to significant advantages for the incumbent.” It stated, further, that the Electoral Commission lacked “the competence, credibility and ability…to manage the [electoral] process effectively and impartially.” And that the “practical restrictions on basic freedoms of assembly and movement affected the fairness of the campaign, particularly for the opposition candidates.” Consequently, The Commonwealth Observer Group concluded that Uganda’s 2016 elections fell “short of democratic benchmarks.”
The United States, through the U.S. Department of. State, stated on February 20, 2016 that “we must acknowledge numerous reports of irregularities and official conduct that are deeply inconsistent with international standards and expectations for any democratic process.” However perhaps the most succinct and fitting summary of the election came from a social media post on the U.S. Embassy in Uganda’s Twitter page, which simply stated “Uganda deserved better.”
After the release of results of the 2016 disputed election the FDC commissioned an independent academic expert to carry out a statistical analysis of the results. The expert’s analysis, found out that the EC’s results exhibit:
Evidence of “incremental fraud”, that is mistallying to add ghost voters or to shift actual votes cast in favour of Dr. Kizza Besigye to General Yoweri Museveni, in 31% of the districts casting serious doubts about the validity of more than three million (3,000,000) votes;
Evidence of “extreme fraud”, typified by polling stations that had extremely high turnouts over 90% and some even going up to 100% at which the vast majority of votes were cast in favour of General Yoweri Museveni;
Evidence of an absence of random patterns in the vote counts of General Yoweri Museveni at the 28,010 polling stations, suggesting a likelihood of human manipulation of the tallies in favour of the incumbent.
WHERE HAVE ELECTION AUDITS EVER BEEN HELD?
Independent audits of contested elections is an emerging international best practice that has been used to verify election results or resolve disputed elections in a number of countries. In the last ten years, independent election audits have been held after disputed elections in:
Afghanistan, in 2009 and 2014; Haiti, in 2010; Kosovo, in 2009
WHAT IS THE LEGAL BASIS FOR AN INDEPENDENT ELECTION AUDIT?
The legal basis for an Independent Audit of the 2016 Presidential Election lies in Articles 1 and 3 of the Constitution. Article 1(1) of the Constitution provides that “All power belongs to the people who shall exercise their sovereignty in accordance with this Constitution.” Article 1(2) elaborates on this matter further when it provides that, “Without limiting the effect of clause (1) of this article, all authority in the State emanates from the people of Uganda; and the people shall be governed through their will and consent.” Finally Article 1(4) elaborates on the question of how the people, who are the true sovereign and owners of all power in Uganda, shall express their will and consent when it provides, “The people shall express their will and consent on who shall govern them and how they should be governed, through regular, free and fair elections of their representatives or through referenda.”
From the above it is clear that the people of Uganda are the joint and indivisible sovereign of this Republic. Each Ugandan has one vote, which should weigh exactly the same as every other Ugandan’s vote. Every Ugandan should be able to exercise their right to vote and not be deprived of such opportunity by fraudulent disenfranchisement efforts. Every Ugandan should be free to exercise their choice of who to vote for without that choice being suborned by intimidation or corrupt inducements. Finally, each vote cast must be counted, properly tallied and duly reckoned in the final result.
It follows from the clear provisions of Article 1 set out above that the rigging of elections is a violation of the Constitution. By rigging the election Candidate Yoweri Museveni seeks to retain power without the will and consent of the people and at gun point. This, is why we have called the 2016 Presidential Election and its aftermath a creeping military coup d’etat. In the circumstances, Article 3(4)(b) of the Constitution provides that all citizens of Uganda have a right and, indeed, a duty at all times, “to do all in their power to restore this Constitution after it has been suspended, overthrown, abrogated or amended contrary to its provisions.”
An Independent Election Audit is one of the things that can be done to restore the Constitution and to engender peace, security and stability of Uganda, in particular, and in the Great Lakes Region, as a whole, .by ensuring the credibility of elections is restored.
The finer modalities of the Election Audit, such as appointment of the Audit Team and the powers of the Audit Team to: call witnesses; discover documents; and inspect evidence etc., can be done under the auspices of the Commissions of Inquiry Act Cap. 166 of the Laws of Uganda 2000.
CONCLUSION AND CALL TO ACTION
In conclusion we stress that we are committed to peace. But there can be no peace, at least not in a sustainable and meaningful form, without justice. What we are demanding for is substantive justice and the restoration of the people’s victory.
The people of Uganda must remain vigilant and prepare for a sustained non-violent effort to reclaim our victory.
We call upon you to demand that your vote be honoured and that the regime respect human rights and the rule of law.
We have established a Civic Action Committee to co-ordinate the campaign of non-violent action across the country. This Committee shall be communicating the actions to be taken from time-to-time.
We call upon all Civil Society organizations to exercise all the influence they can mater to this common effort.
Although it may not be immediately apparent to everybody, the Security Forces — the Uganda Peoples’ Defence Forces, the Uganda Police Force and other security agencies — are allies in this struggle for democratic change.
We appreciate the fact that you voted in overwhelming numbers for change. We recognize the fact that you, perhaps more than everybody else, appreciate the need for a sustainable peace with justice in this country because you are at the vanguard of guaranteeing our peace and security. We are working hard to free you from the yoke of partisan exploitation and to restore the respect for the rights of citizens by the State so that you may stop having to be deployed against your fellow citizen. So we call upon you, our gallant brothers and sisters, to exercise maximum restraint and discipline in handling your fellow citizens. Please respect your fellow citizens’ constitutionally guaranteed rights, especially to freedoms of assembly and expression. Desist from abusing the rights of your brothers and sisters and record and expose the abusive actions of the few who are using you to steal the people’s victory.
Lastly to the International Community, we appreciate the steps taken by some to condemn the manner in which the people of Uganda were robbed of their voice in the 2016 Presidential Election and to warn of the dangers posed to national and regional peace and stability by General Yoweri Museveni’s clinging to power. We call upon fraternal countries to emphasize their alliance with the people of Uganda rather than by any single individual or regime by backing the call for peace with justice and offering diplomatic and logistical support for the Independent Audit. Please exert bilateral and multilateral pressure on the regime and key actors within it to safeguard constitutionalism, democracy and the rule of law as the bedrock of sustainable peace and stability in Uganda and the region.
I salute you all.
One Uganda One People!
For God and My Country.
MAJ. GENERAL (Rtd.) MUGISHA MUNTU
PRESIDENT FORUM FOR DEMOCRATIC CHANGE