What you need to know:
- The law requires a petitioner to prove that there were malpractices committed during the election process that favoured the declared winner or disadvantaged the petitioner, but also that the said malpractices affected the results “in a substantial manner.”
When the Supreme Court reconvened on Thursday morning for a pre-trial session of a petition in which former presidential candidate Robert Kyagulanyi, alias Bobi Wine, is challenging President Museveni’s recent electoral victory, Mr Kyagulanyi’s lawyers had a quick, honest confession: They weren’t ready.
“Some of our witnesses who would have sworn in affidavits have been arrested,” Mr Medard Lubega Sseggona, Mr Kyagulanyi’s lead lawyer of the day, explained to the penal of nine Justices led by Chief Justice Alfonse Owiny-Dollo.
“Some of them were arrested in Mbarara. We couldn’t meet them because they had a meeting with the Deputy Inspector General of Police [Maj Gen Paul Lokech] but we shall see…”
Although Mr Sseggona told the court how they would file around 100 affidavits to support Mr Kyagulanyi’s petition, his confession sheds light on the complications involved in filing a petition and collecting evidence to challenge a presidential election in Uganda.
The law requires a petitioner to prove that there were malpractices committed during the election process that favoured the declared winner or disadvantaged the petitioner, but also that the said malpractices affected the results “in a substantial manner.”
The steep burden of proof on the petitioner aside, President Museveni’s challengers – both current and previous - accuse the State of deploying dark arts to frustrate their efforts to mount serious petitions.
Speaking to Mr Kyagulanyi’s lawyers, one senses a sense of resignation that perhaps theirs will be an uphill task to convince the court that indeed Mr Museveni’s victory was a work of fraud – as they allege – in light of the State machinations that they say they are up against.
“Most of our agents were arrested,” Opposition party Jeema president Asuman Basalirwa, who is part of Kyagulanyi’s legal team, lamented before the justices could enter the courtroom on Thursday.
“They would have sworn in affidavits to support our case.”
This is not the first time Mr Basalirwa, who is the Bugiri Municipality MP, is accusing the State of frustrating a presidential petition challenging Mr Museveni’s election. In 2016, Mr Basalirwa was part of the legal team that represented presidential candidate John Patrick Amama Mbabazi.
When the lawyer appeared before the Supreme Court for the first time, he raised the red flag.
He contended some of the people who were willing to swear affidavits supporting Mr Mbabazi’s case had been incarcerated at the dreaded high security Nalufenya Police Station in Jinja.
Before Mr Mbabazi’s petition could even come up for hearing, two of the law firms that were representing him – Muwema and Company Advocates and Nyanzi, Kiboneka & Mbabazi Company Advocates – were ransacked under the cover of darkness. The lawyers said the break-ins, which they predictably blamed on State agents, greatly compromised the petition since about 300 affidavits were ‘stolen’.
“This traumatised the team and it became clear on our part that everything had been frustrated. Remember the break-in happened the same day we were supposed to file and timelines were on our case. Besides, some of our witnesses had been abducted before they could swear affidavits, while those who had intentions of swearing affidavits stayed away from us for fear of reprimand and arrest by security,” Mr Basalirwa explained five years ago.
Although no such things as break-ins into law firms have been registered this time around, Mr Kyagulanyi’s legal team has a lot to complain about.
The biggest pressure they currently face is to file affidavits in a situation where they say those willing to swear the affidavits are either under arrest or fear to do so.
“We shall be filing affidavits in the coming days but there is a lot of fear in the community, which means we will not file as many as we would have wanted,” a lawyer who is familiar with the operations of Mr Kyagulanyi’s team told this newspaper on condition of anonymity since he is not allowed to speak to the press.
On Tuesday, in the Supreme Court session in which Mr Kyagulanyi’s application seeking to amend his petition out of time was dismissed, Mr William Byaruhanga, the Attorney General, and Mr Ebert Byenkya, Mr Museveni’s lead counsel, said they were frustrated.
“The case under normal circumstances should be going on trial on Wednesday,” Mr Byaruhanga told the court. “But the petitioner is yet to serve the respondents with a single affidavit.”
Lawyers who have participated in previous presidential petitions who were interviewed for this story intimated that to file a strong presidential petition, the petitioner needs both financial and human resources that would aid in collecting of evidence.
“It’s a very big operation and very costly,” constitutional lawyer Peter Walubiri, who was part of the legal team that represented Dr Kizza Besigye in the 2001 and 2006 presidential election petitions, explained.
“But the first problem is that most of the polling agents are demoralised since they expected to win and the candidate hasn’t been declared. So you must motivate them.”
Dr Besigye, who unsuccessfully petitioned the Supreme Court in 2001 and 2006, in an effort to explain how tough it is to collect evidence to support a presidential petition, said it is very hard to recruit lawyers throughout the country whose role was to hunt for evidence all over the place.
Mr Walubiri corroborated Dr Besigye’s narrative. He said: “To meet the substantiality test, which our courts want, you have to collect evidence throughout the country. So in the presidential petitions I have participated in, we had legal teams that collected evidence throughout the country, those who analysed the evidence, and those who presented it in court. That needs a lot of financial resources, which few people have.
The “substantiality test” that Mr Walubiri was referring to is the requirement that for electoral transgressions to warrant a nullification of a presidential election, the petitioner should prove that he had a good chance of winning or the declared winner had no chance of winning if the proved transgressions had not happened. It is what was used to dismiss both Dr Besigye’s petitions despite proving most of their allegations against the conduct of the election.
“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. I am satisfied that this non-compliance did not affect the result in a substantial manner,” Justice Bart Katureebe famously ruled in dismissing Dr Besigye’s petition of 2006.
Dr Besigye took his petitions seriously to the extent his legal teams had to spend some time away from their families.
“We had to shift from our homes to a hotel which only a few people knew such that we could concentrate on the petition,” Mr Walubiri says.
“We were very well resourced financially and logistically.”
The issue of Mr Kyagulanyi’s rather small and relatively inexperienced legal team being overstrained as a result of the amount of work they have to do was on display on Thursday when Mr Sseggona told the justices how they couldn’t meet up with respondents’ legal teams on Wednesday.
The intention of the meeting, which was fixed by the court, was for all parties to thrash out the key issues they will argue out in their final submissions.
“We had to look for some of the witnesses in the case to swear in affidavits,” Mr Sseggona said. “We communicated to our colleagues that we couldn’t go to the meeting.”
Another key issue that makes filing a solid presidential petition difficult is the time factor.
The Presidential Elections Act (PEA) now gives a petitioner 15 days from the day the EC announces presidential elections results to file a petition at the Supreme Court, but before the law could be amended recently, they were only 10 days.
“Drafting a good petition isn’t easy,” former Uganda Law Society (ULS) President John Matovu, who was part of Dr Besigye’s legal team in the 2006 petition, says.
“Getting people to swear affidavits isn’t easy because people fear. But even when you get the affidavits, you must first analyse them and see if they will be of importance to your case. Not everything that you collect is helpful.”
Filing of affidavits is key to a presidential petition as it was discovered by Mr Mbabazi’s legal team, which filed only 67 affidavits - the least ever since 2001 when Dr Besigye pioneered challenging presidential results in the highest court of the land.
Partly as a result of filing few affidavits, Mr Mbabazi’s legal team failed to prove any of the 40 grounds they had set out in their petition.
The allegations ranged from voter bribery, intimidation, chasing away petitioner’s agents from polling stations, blocking his supporters from voting, allowing unauthorised persons to vote, multiple voting, voting before and after legally set time, pre-ticking ballots in Mr Museveni’s favour, and stuffing of ballot papers in boxes, allowing voting without a secret ballot and starting voting without first opening ballot boxes.
All the nine Justices on the panel agreed to throw out Mr Mbabazi’s case, saying he had no evidence to prove any of the grounds in his petition.
In comparison, when Dr Besigye’s legal team filed 174 affidavits in the 2001 petition, the respondents – Mr Museveni and the EC replied with 133 and 88 affidavits, respectively. In the end, he lost that petition in a majority decision of three to two, having proved most of the allegations he made.
In 2006, Dr Besigye upped his game and filed about 200 affidavits while the respondents filed about 280 affidavits in response. He still proved most of the allegations but lost by a majority of four to three, with the majority saying the proved transgressions were not substantial enough to alter the final result.
“The case is purely about affidavits and you must file them within time,” Mr Matovu explained. “The more you have the better, but it’s very hard to get them, very hard.”
Mr Kyagulanyi’s team so far is led by Mr Sseggona, who is aided by a number lawyers with no known experience in dealing with presidential petitions and Mr Walubiri believes they will be challenged in doing the required job.
“The petitioner’ team seems to be made of mainly lawyers from National Unity Platform (NUP),” Mr Walubiri, said referring to Mr Kyagulanyi’s political party.
“But in the Besigye cases, we had lawyers from UPC [Uganda Peoples Congress], like me, from DP [Democratic Party], from FDC [Forum for Democratic Change] and others who had no particular political inclinations. So we got a diverse input from all over.”
Above all, Mr Walubiri insists, the current political environment can’t allow a petitioner to file a formidable presidential petition challenging Mr Museveni’s election victory.
“The violence seen in the previous election was too much. We didn’t experience that in 2006 or 2001. I can imagine many people who would have given evidence are now in fear. It is very hard to get evidence in a presidential petition with the way Uganda is run,” the weathered lawyer said.