Uganda Elections 2006: Besigye Presidential Election Petition Testing the Courts
Besigye arrives at Supreme Court April 3, 2006.

Uganda Elections 2006: Besigye Presidential Election Petition Testing the Courts

Why every Ugandan should pay attention. What is next after the Supreme Court ruling on Besigye's petition?

By Gideon Munaabi
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First published: April 5, 2006

This week will be Besigye presidential Election Part II as the Supreme Court makes another landmark and historical political ruling on whether to uphold or annul the results of a Presidential election.

This follows the marathon hearing of an election petition by Forum for Democratic Change leader Presidential candidate, Dr. Kizza Besigye challenging the outcome of the February 23 polls. This is the second time Besigye is petitioning Court, the first being in 2001.

Besigye alleges in this petition that in addition to electoral malpractices, none of the candidates got over 50 percent required for anyone to be declared President. According to the Uganda laws, in case one fails to get the required over 50 percent mark, it necessitates a re-run between the two leading candidates.

Like in 2001, Besigye petitioned the Supreme Court to nullify the election of National Resistance Movement candidate, President Yoweri Museveni, for allegedly rigging the polls and the Electoral Commission for mismanaging the Electoral process.

The hearing of the case closed last Thursday with Besigye lawyers asking the court to overturn the election that may lead to new polls (contrary to Besigye's prayer for a re-run) should the Court rule in favor of the petitioner.

Basing on the Supreme Court proceedings and Dr. Besigye's statement after the Court failed to nullify the March 12, 2001 Presidential Elections, anything (including the nullification of the polls) is possible and Ugandans should be ready to accept any outcome. Why?

The Court has first of all to interpret the contradictions in the law where at one point, it requires that the evidence should be substantial enough if the polls are to be nullified and at another point it requires evidence of a candidate committing an electoral offence.

It is on the issue of substantial evidence that the Supreme Court in 2001 based to okay the election of President Yoweri Museveni. Three out of five judges noted that although there was rigging, it was not sufficient enough to nullify the election.

This time round, the acting Director of Civil Litigation, Joseph Masitko while submitting on behalf of the Electoral Commission (defendant number 1) also prayed Court to dismiss the petition because the petitioner (Besigye) has no substantial evidence to support his petition. Besigye lawyers insisted, they had submitted enough evidence.

While concluding the petition hearing, the Chief Justice said that the verdict on the petition will be on April 6 and that is what many Ugandans and other 'interested parties' are anxiously waiting for. But one thing remains a constant. Whether the petition is held or dismissed, it has a lot to contribute in Uganda's political history.

In case the petition is upheld:
Normally, we would go for new polls on April 26. This is because according to Article 104 (6) of the Constitution: Where an election is annulled, a fresh election shall be held within 20 days from the date of annulment.

Kampala lawyer and Kampala Central MP, Erias Lukwago says the cancellation of the February 23 presidential elections will mean fresh nomination of candidates, campaigns and elections. This means that any qualified Ugandan including those who participated in the previous election, would be eligible to contest for the highest office in Uganda.

Fresh elections including nominations, printing of new ballot papers etc would have to be done in less than 20 days in order to have the polls conducted on April 26 2006 in accordance with the laws. The Electoral Commission is already prepared for the exercise.

The deputy chairperson of the Electoral Commission, Sr. Margaret Magoba says that the electoral body is eagerly waiting for the courts' decision and will not hesitate to implement whatever decision the Supreme Court comes up with.

But this time may not be enough and may sink the country's political future further should the malpractices remain and another petition is lodged.

According to Article 104 (7), 'if after a fresh electionthere is another petition which succeeds, then the presidential election shall be postponed; and upon the expiry of the term of the incumbent President, the Speaker shall perform functions of the office of the President until a new President is elected and assumes office'.

Besigye arrives at Supreme Court April 3, 2006
Besigye arrives at Supreme Court April 3, 2006.

In less than 20 days, the Electoral Commission would need to secure the money for the exercise; do purchases, clean the registers (to prevent cases of multiple voting) among others. There is high chance of the repeat of electoral fraud in addition to failing to carryout the exercise in the stipulated time.

Magoba however says that the procurement process of election materials, including ballot papers that usually take longer than expected would be dealt with legally. She says that in case of fresh elections coming on a short notice, the Public Procurement body would waive some of the procedures and regulations to make it easier for the Commission to secure electoral materials.

But Lukwago cautions the EC that whereas 20 days are sufficient, the Electoral Commission should not underestimate the petition and get caught off guard. Going by experience where the Commission has been having time and it fails to be organized, it is very unlikely that it would do a good job this time.

The other worry is that the candidates will not be having trust in the electoral body especially if it is found that it participated or facilitated fraud. The opposition has all along been against the composition of the Electoral Commission, saying it is President Museveni's commission, which works according to his wish.

On the delivery of the ruling, it is expected that there would be a lot of jubilation, especially by Besigye's supporters. This will most likely trigger the military to take charge of the situation by beating up the 'rowdy' supporters. The situation will most likely lead to the arrest and imprisonment of FDC supporters on charges of terrorism.

In case the petition is dismissed:
The government will come out quickly to argue the FDC leader to accept the verdict of the Court and wait for another turn in 2011. He will be lectured on why he needs to 'organize' his political party if he wants to win the next polls instead of using 'illegal methods'.

On the other hand, Besigye will like in 2001, protest the outcome. In 2001, Besigye said in his first statement after the dismissal of the petition that, "While we strongly disagree with the ruling of the court, we will respect it and abide by the constitution."

Like you and me, the government will also be waiting for Besigye's 'Plan B'.

His first reaction will like in the 2001 statement be that "We have not won the legal case in the Supreme Court, but in the political consciousness of the Ugandan people, we have won the case in the court of public opinion."

As has already been murmured by other FDC top officials and hinted on by his lawyers, Besigye will show his disappointment to the Judiciary, this arm of the government has disappointed Ugandans who want a free electoral process.

Of course the government will interpret this as the FDC leader planning a rebellion against 'the legally elected government' and will trail him the more wherever he goes and tap every phone call he makes. This will be the same thing that will be done to FDC officials.

As a consolation to his supporters, Besigye will tell Ugandans how they have both lost and won. He will repeat his 2001 message that Uganda has lost the opportunity to realize the full potential of the judiciary in checking and balancing the balance of executive power.

Come April 6, many people are waiting to see where Uganda will be heading whether the petition is upheld or dismissed. The courts have the last say on this but the biggest prayer remains that any decision taken and the events that will follow should be towards a stable Uganda. Like Justice John Bosco Katutsi said recently 'God Bless the Pearl of Africa'.

By Gideon Munaabi
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First published: April 5, 2006
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Gideon Munaabi is a journalist and public relations practitioner with Ultimate Media Consult (U) Ltd. He has been and continues writing widely for different publication locally and internationally. He is a founding member of Ultimate Media Consult (U) Ltd and is currently the chairman of the organisation.