Judicial politics: election petitions and electoral fraud in Uganda

Abstract

This paper examines judicial politics in Uganda after the 2011 elections, when a number of election petitions were filed against incumbent parliamentarians alleging electoral fraud and malpractice. The paper argues that Uganda has the structures and procedures in place to enable election petitions to allow for redress when election malpractice has occurred, but this is more likely to occur in the High Court than the Supreme Court. By briefly examining the 2001 and 2006 presidential and parliamentary election petitions, the paper shows that the Supreme Court, which hears presidential election petitions, acknowledged voting irregularities, yet was unwilling to rule against the president. In parliamentary election petitions held before the High Court during the same period, judges were not immune to annulling the election results. Following the 2011 elections, no presidential election petitions were made, but over 100 parliamentary election petitions were filed. Many of the High Court judgements on the 2011 election petitions gave a degree of optimism that due process is being followed since a number of petitions were upheld and MPs removed from their seats. These included some high-profile politicians. However, as the Court of Appeal begins to overturn some of these High Court decisions, perhaps this optimism will be short-lived.

Keywords:

• Constitution
• Uganda
• Election Petition
• Judicial Politics
• Executive

Notes

1. Gloppen et al., “Elections in Court,” p. 53, examines these two concepts.

2. For a discussion of these arguments, see VonDoepp, Politics and Judicial Decision Making; VonDoepp, Judicial Politics in New Democracies; VonDoepp and Ellett, “Reworking Strategic Models”; and Helmke, Courts Under Pressure.

3. For a discussion of this concept, see VonDoepp and Ellett, “Reworking Strategic Models,” p. 147; and Makara, “Deepening Democracy through Multipartyism,” p. 82.

4. Moustafa and Ginsburg, “Functions of Courts in Authoritarian Politics,” p. 2.

5. Moustafa and Ginsburg, “Functions of Courts in Authoritarian Politics,” p. 1.

6. Twinomugisha, “Role of the Judiciary,” p. 7.

7. Widner, “Courts and Democracy,” pp. 64–73.

8. VonDoepp, Politics and Judicial Decision Making, pp. 4–6.

9. Helmke, Courts Under Pressure.

10. VonDoepp and Ellett, “Reworking Strategic Models,” p. 163.

11. VonDoepp and Ellett, “Reworking Strategic Models,” p. 163.

12. Tripp, Museveni's Uganda, p. 1.

13. Tripp, Museveni's Uganda, p. 1.

14. Hansen, “Uganda in the 1970s.” Uganda's current President, Yoweri K. Museveni, was amongst those Ugandan exiled in Tanzania.

15. Mugaju and Oloka-Onyango, No-Party Democracy in Uganda.

16. VonDoepp and Ellett, “Reworking Strategic Models,” pp. 147–65; Tripp, “Politics of Constitution-Making.”

17. Katalikawe, “Freedom of Association”; Tripp, “Changing Face of Authoritarianism”; Bratton and Lambright, “Uganda's Referendum 2000”; Makara et al., “Turnaround: The National Resistance Movement.”

18. Abdallah, “Uganda: Court Nullifies 2000 Referendum.” For other examples of executive interference or not following proper legislative procedures, see Widner and Scher, “Building Judicial Independence”; Kiiza et al., Electoral Democracy in Uganda.

19. Gloppen et al., “Elections in Court,” pp. 56–8.

20. 1995 Uganda Constitution.

21. These include the Electoral Commission Act, Cap. 140 228; Political Parties and Organisations Act, 18 of 2005; Presidential Elections Act 16 of 2005; Parliamentary Elections Act 17 of 2005; Local Governments Act 243; National Women's Council Act, Cap. No. 318; National Youth Council Act, Cap. No. 319; and Referendum and Other Provisions Act 1 of 2005. For more details of these, see Uganda Law Reform Commission, Country Report on Electoral Systems in Uganda.

22. Rwengabo, “Unknown Arbiter,” pp. 119–33.

23. Makara, “Deepening Democracy through Multipartyism,” p. 83.

24. Makara, “Deepening Democracy through Multipartyism,” p. 83.

25. Makara et al., “Lessons from the Referendum”; Petersen, Uganda: Presidential, Parliamentary and Local Elections.

26. Makara et al., Administering Uganda's 2006 Multiparty Elections.

27. The Republic of Uganda in the Supreme Court of Uganda at Kampala (Coram: Odoki, Cj; Oder, Jsc; Tsekooko, Jsc; Karokora, Jsc; and Mulenga, Jsc.) Election Petition No. I of 2001, Col (Rtd.) Dr. Besigye Kizza (Petitioner) Versus I. Museveni Yoweri Kaguta 2. Electoral Commission (Respondents). April 21, 2001.

28. The Republic of Uganda in the Supreme Court of Uganda at Kampala (Coram: Odoki, Cj; Oder, Jsc; Tsekooko, Jsc; Karokora, Jsc; and Mulenga, Jsc.) Election Petition No. I of 2001, Col (Rtd.) Dr. Besigye Kizza (Petitioner) Versus I. Museveni Yoweri Kaguta 2. Electoral Commission (Respondents). April 21, 2001.

29. The Republic of Uganda in the Supreme Court of Uganda at Mengo (Coram: Odoki, Cj., Oder, Tsekooko, Karokora, Mulenga, Kanyeihamba and Katureebe, Jj. Sc.), Presidential Election Petition No. 01 of 2006, Rtd. Col. Dr. Kizza Besigye (Petitioner) Versus 1. Electoral Commission 2. Yoweri Kaguta Museveni (Respondents). January 31, 2007.

30. The Republic of Uganda in the Supreme Court of Uganda at Mengo (Coram: Odoki, Cj., Oder, Tsekooko, Karokora, Mulenga, Kanyeihamba and Katureebe, Jj. Sc.), Presidential Election Petition No. 01 of 2006, Rtd. Col. Dr. Kizza Besigye (Petitioner) Versus 1. Electoral Commission 2. Yoweri Kaguta Museveni (Respondents). January 31, 2007.

31. The Republic of Uganda in the Supreme Court of Uganda at Mengo (Coram: Odoki, Cj., Oder, Tsekooko, Karokora, Mulenga, Kanyeihamba and Katureebe, Jj. Sc.), Presidential Election Petition No. 01 of 2006, Rtd. Col. Dr. Kizza Besigye (Petitioner) Versus 1. Electoral Commission 2. Yoweri Kaguta Museveni (Respondents). January 31, 2007.

32. Kanyeihamba, Blessings and Joy.

33. The Republic of Uganda in the Supreme Court of Uganda at Mengo (Coram: Odoki, Cj., Oder, Tsekooko, Karokora, Mulenga, Kanyeihamba and Katureebe, Jj. Sc.), Presidential Election Petition No. 01 of 2006, Rtd. Col. Dr. Kizza Besigye (Petitioner) Versus 1. Electoral Commission 2. Yoweri Kaguta Museveni (Respondents). January 31, 2007, p. 299.

34. The Republic of Uganda in the Supreme Court of Uganda at Mengo (Coram: Odoki, Cj., Oder, Tsekooko, Karokora, Mulenga, Kanyeihamba and Katureebe, Jj. Sc.), Presidential Election Petition No. 01 of 2006, Rtd. Col. Dr. Kizza Besigye (Petitioner) Versus 1. Electoral Commission 2. Yoweri Kaguta Museveni (Respondents). January 31, 2007, p. 299.

35. Kirya, State of Constitutional Developments.

36. Ellett, Emerging Judicial Power,” p. 464.

37. Gloppen et al., “Elections in Court,” p. 80; Human Rights Watch (HRW), Preparing for the Polls, p. 11.

38. Gloppen et al., “Elections in Court,” p. 80; Human Rights Watch (HRW), Preparing for the Polls, p. 11.

39. McHenry, “Role of the Ugandan Courts,” pp. 18–19.

40. Gloppen et al., “Elections in Court,” p. 86.

41. Semakula, “Judiciary Rushes to Dispose of Petitions.”

42. For example, in Dokolo Country, Paul Amoru (FDC) v. Felix Okot Ogong (NRM); in Kole, George Otim (NRM) v. Fred Ebil Ebil (UPC); and in Oyam-Sam Otto (Ind) v. Betty Amongi (UPC).

43. Bukenya was alleged to have given money, sugar, salt and soap to voters.

44. The Republic of Uganda in the High Court of Uganda, at Kampala, Election Petition No. 029 of 2011, Kasta Hussein Bukenya (Petitioner) versus 1. Bukenya Balibaseka Gilbert 2. Election Commission (Respondents), Judge Hon. Mr. Justice V. F. Musoke Kibuuka, October 5, 2011.

45. The judgement of the case stated: “Court, accordingly makes the following order: (a) the election of the first respondent as Member of Parliament, Busiro North Constituency is set aside under section 61(1)(c) of the PEA; (b) the Parliamentary seat for Busiro North Constituency is declared vacant; (c) a by-election is to be conducted in that constituency in accordance with the law; (d) the petitioner shall recover his costs from the first respondent; (e) as between the petitioner and the second respondent, each shall meet own costs.”

46. The Republic of Uganda in the High Court of Uganda, at Kampala, Election Petition No. 029 of 2011, Kasta Hussein Bukenya (Petitioner) versus 1. Bukenya Balibaseka Gilbert 2. Election Commission (Respondents), Judge Hon. Mr. Justice V. F. Musoke Kibuuka, October 5, 2011.

47. The Republic of Uganda in the High Court of Uganda at Tororo Election Petition No. 0007 of 2011, Dr. Otiam Otaala Emmanuel (Petitioner) Versus 1. Oboth Marksons Jacob 2. Electoral Commission (Respondents), Judge Rugadya Atwoki, September 23, 2011.

48. The Republic of Uganda in the High Court of Uganda at Tororo Election Petition No. 0007 of 2011, Dr. Otiam Otaala Emmanuel (Petitioner) Versus 1. Oboth Marksons Jacob 2. Electoral Commission (Respondents), Judge Rugadya Atwoki, September 23, 2011.

49. The DR form is filled in at the polling station where the votes are cast. The votes and the DR form are then moved to the central area where all votes are tallied up.

50. The Republic of Uganda in the High Court of Uganda at Tororo Election Petition No. 0007 of 2011, Dr. Otiam Otaala Emmanuel (Petitioner) Versus 1. Oboth Marksons Jacob 2. Electoral Commission (Respondents), Judge Rugadya Atwoki, September 23, 2011.

51. Mugisa, “Otaal's Hopes of Seat Recapture Dashed.”

52. Mugisa, “Otaal's Hopes of Seat Recapture Dashed.”

53. Luwaga, “Nalwanga's Candidature in Luweero.”

54. Luwaga, “Nalwanga's Candidature in Luweero.”

55. Luwaga, “Nalwanga's Candidature in Luweero.”

56. Independent, “Interview with Rebecca Nalwanga in ‘NRM Still Strong in Luwero.’”

57. Edward Ssekandi was replaced as Speaker by Rebecca Kadaga. Ssekandi became Vice President on 24 May 2011.

58. The Republic of Uganda in the High Court of Uganda holden at Tororo. Ochwo Nyakecho Keziah v Achieng Sarah Opendi & Anor (HCT-00-CV-EP-0028-2011) [2011] UGHC 70, September 23, 2011.

59. The allegations against the Electoral Commission were dismissed by the judge.

60. The Republic of Uganda in the High Court of Uganda holden at Tororo. Ochwo Nyakecho Keziah v Achieng Sarah Opendi & Anor (HCT-00-CV-EP-0028-2011) [2011] UGHC 70, September 23, 2011.

61. The Republic of Uganda in the High Court of Uganda at Tororo Election Petition No. 0007 of 2011, Dr. Otiam Otaala Emmanuel (Petitioner) Versus 1. Oboth Marksons Jacob 2. Electoral Commission (Respondents), Judge Rugadya Atwoki, September 23, 2011.

62. Human Rights Watch (HRW), Preparing for the Polls, p. 12 n. 36, extends this point further by showing that: “According to the Director of Public Prosecutions Richard Buteera, he could recall two occasions when the high court had submitted such reports, but he was unsure of the follow-up actions of those cases.”

63. One currency point is equal to 20 000/=. With current conversation rates, 1 440 000/ = is the equivalent of US$583.

64. See section 72, ‘Penalty for illegal practices, under sections 68 (5) or (6), 69, 70 or 71. Incidentally, this punishment is also applicable to a person who “solicits” for “money, gift, alcoholic beverage” in exchange for his/her vote’ (according to Section 68(6).

65. Kaija, “DP's Kasta Bukenya Accuses Police.”

66. The Republic of Uganda in the High Court of Uganda at Tororo Election Petition No. 0007 of 2011, Dr. Otiam Otaala Emmanuel (Petitioner) Versus 1. Oboth Marksons Jacob 2. Electoral Commission (Respondents), Judge Rugadya Atwoki, September 23, 2011.

67. The Republic of Uganda in the High Court of Uganda at Jinja Hct-03-Cv-Ep-0007-2011, in the Matter of the Parliamentary Elections Act, 2005 and in the Matter of Parliamentary Elections (Elections Petition) Rules 1996 and in the Matter of Parliamentary Elections held on 18th Day of February, 2011. Mudiobole Abedi Nasser vs Mugema Peter & Anor (Jinja Election Petition No. 07 of 2011) [2011] UGHC 58 (August 20, 2011).