joseph bosa - injuction against elections

8/19/2019 Joseph Bosa - Injuction Against Elections

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THE REPUBLIC OF UGANDA

IN THE CONSTITUTIONAL COURT OF UGANDA, AT KAMPALA

CORAM: HON. LADY JUSTICE A. E. N. MPAGI-BAHIGEINE, DCJ

HON. LADY JUSTICE C. K. BYAMUGISHA, JA

HON. LADY JUSTICE M. S. ARACH-AMOKO, JA

CONSTITUTIONAL APPLICATION NO. 6 OF 2011

[Arising from Constitutional Petition No. 7 of 2011.]

1. JOSEPH BOSSA}

2. DAN MUGARURA }::::::PETITIONERSAPPLICANTS

!ERSUS

1 ATTORNEY GENERAL}

2 ELECTORAL COMMISSION}:::::::::::RESPONDENTS

C"#$%&%'%&"#() )(* + application for an injunction restraining the respondents from holding

presidential , parliamentary and Local Government elections - Article 28 (1), ! (1) and (2),

12" and 1#$ of the 1%% &onstitution' ection %8 of the &ivil rocedure Act, *ules 1! and

2# of the &onstitutional &ourt (etitions and *eferences) *ules' *ules 2 (2)+

he applicants rought this application see.ing orders to stay the 2!11 parliamentary,

presidential and Local Government elections+ he grounds advanced in support of this

application include inter alia the follo/ing' that there /as riery of voters y the incument president, that the voters0 register /as loated, !,!!! voters /ithout photographs,

gerrymandering the allot paper for the residential election to favour candidate o/eri

aguta 3useveni, the sitting arrangement at the polling stations, riery of voters y

candidate o/eri aguta 3useveni, olitical 4ducation programme popularly .no/n as

3cha.a 3cha.a, 5llegal recruitment, training and deployment of the so called 6&rime

preventers0 country/ide, massive deployment of ecurity 7orces to intimidate voters to vote

for the *3 or candidate o/eri aguta 3useveni or astain from voting, ause of pulic

resources to fund *3 campaigns y using a supplementary 9udget to pay shs+ 2! million to

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each 3' hs+ 1!,!!! to each Local &ouncil :fficial and compensation to 3u.ura victims,

Lac. of an independent 4lectoral &ommission+

he &onstitutional &ourt disallo/ed the application+

RULING OF THE COURT

his is an application rought y the aove Applicants under Article 28 (1), ! (1) and (2),

12" and 1#$ of the 1%% &onstitution' ection %8 of the &ivil rocedure Act, *ules 1! and

2# of the &onstitutional &ourt (etitions and *eferences) *ules' *ules 2 (2) and all enaling

la/s+

5n the application, the Applicants see. orders that;

(a) A temporary injunction do issue restraining the second *espondent from conducting

the residential, arliamentary and Local Government 4lections until after the

disposal of &onstitutional etition o+ $ of 2!11+

(b) &osts of this application e provided for+

he grounds of the application are that;

1. he Applicants filed &onstitutional etition o+ $ of 2!11challenging the

constitutionality of conducting the said elections /hile several reaches of the

&onstitution continue, and the prima facie etition is still pending+

2. 5f the second *espondent conducts the said elections /hile the impugned actions of

the *espondents continue, irreparale reach of the &onstitution and 5nternational la/

and violation of the human and constitutional rights of the &iti


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3. he interest of justice re>uires that the said elections e stayed till the

&onstitutionality of the *espondents0 actions regarding the conduct of elections is

determined y the &onstitutional &ourt+

4. 5f the orders sought are not granted, the etition /ill e rendered nugatory and the

etitioners /ill e deprived of their right to access &ourts of La/ and to a speedy and

fair adjudication of their rights+

he application is supported y the affidavit of ?oseph 9ossa, the first Applicant, the

ecretary General of the =ganda eoples &ongress (=&)' a olitical arty duly registered in

=ganda and one of the participants in the elections+

hree affidavits /ere filed on ehalf of the 1 st *espondent y @aniel Gangungo, a tate

Attorney, Asan asingye, the Assistant 5nspector General of olice, and 3ale ?ohn 9aptist,

the 4ecutive @irector of the =ganda 9ureau of tatistics (=9:)+

4ngineer @r+ 9adru 3+ iggundu, the &hairperson of the 2nd *espondent filed an affidavit on

its ehalf+

All of them opposed the application+ &ounsel for oth sides agreed on the rinciples

applicale to applications of this nature, namely, that the applicant must satisfy &ourt that;

(1) he Applicant has a prima-facie case /ith a proaility of success+

(2) 5rreparale injury /ill e occasioned to the applicant /hich cannot e ade>uately

compensated y an a/ard of damages, if the application is not granted+

(3) 5f &ourt is in dout, it /ill decide the case in the alance of convenience+

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3r+ eter Baluiri, learned &ounsel for the Applicants sumitted that there /ere serious

issues /hich ought to e investigated y this &ourt in the main etition+ herefore, pending

that in>uiry a temporary injunction ought to issue+ hese concern the sovereignty of the

people of =ganda, ho/ and y /hom they /ant to e governed+ his can only e done

through free and fair elections+ Ce /ent on to point out the actions of the *espondents /hich

in his vie/ /ould not lead to a free and fair election as envisaged y the &onstitution and

/hich &ourt needs to in>uire into and, in the meantime put to a halt+ hese /ere;

1) A loated voters0 register+

2) !,!!! voters /ithout photographs

3) Gerrymandering the allot paper for the residential election to favour candidate o/eri

aguta 3useveni+

4) he sitting arrangement at the polling stations+

5) 9riery of voters y candidate o/eri aguta 3useveni+

6) olitical 4ducation programme popularly .no/n as 3cha.a 3cha.a+

7) 5llegal recruitment, training and deployment of the so called 6&rime preventers0

country/ide+

8) 3assive deployment of ecurity 7orces to intimidate voters to vote for the *3 or

candidate o/eri aguta 3useveni or astain from voting+

9) Ause of pulic resources to fund *3 campaigns y using a supplementary 9udget to

pay shs+ 2! million to each 3' hs+ 1!,!!! to each Local &ouncil :fficial and

compensation to 3u.ura victims+

10) Lac. of an independent 4lectoral &ommission+

*egarding irreparale injury, 3r+ Baluiri sumitted that the damage that can unfold if this

&ourt does not stop this electoral process is so grave that no amount of damages can atone for

it+

:n grounds # and D, 3r+ Baluiri sumitted that this &ountry is headed for a political crisis if

elections eginning 18th

7eruary 2!11 are not free and fair+ he interest of ?ustice thereforere>uires that the conduct of such elections e stayed till the determination of the etition+

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3r+ Cenry :lu.a, the rincipal tate Attorney /ho represented the 1 st *espondent disagreed

strongly+ Ce sumitted that the application is unconstitutional and misconceived+ hat, the

application is trying to stop the commands of the &onstitution and prevent the people of

=ganda from eercising their &onstitutional rights on ho/ they should e governed and /ho

should govern them+ he right to vote is sacrosanct and cannot e fettered y anyody

including the Applicants+ 5f the elections are stayed, there /ill e a constitutional crisis

ecause the terms of the resident, the 3emers of arliament and Local Government

:fficials are aout to end+

:n the creation of districts, 3r+ :lu.a sumitted that the la/ on creation of districts is clear+

o individual can /a.e up one day and create a district+ 5n any case, candidates are free to

ma.e promises during campaigns+ his allegation is therefore not only speculative ut is

frivolous and veatious as /ell+

3r+ :lu.a denied that there is any 63cha.a 3cha.a0 training going on in the &ountry+

*egarding &rime preventers and massive deployment of security forces, 3r+ :lu.a

contended that under the &onstitution and the olice Act, the olice force is oligated to

preserve la/ and order, to protect life and property and to co-operate /ith the civilian

population in the course of their duties+ he olice has over the years cooperated /ith the

population and used community policing to oost their capacity and efforts in order to ensure

free and fair elections+ he Applicants have therefore not made a prima facie case+

:n ause of pulic funds, he sumitted that the supplementary 9udget /as proposed y the

4ecutive and passed y arliament+ 5t should not ecome a suject of litigation efore this

&ourt ecause of the doctrine of separation of po/ers+

*egarding irreparale injury, he sumitted that this >uestion does not arise in the

circumstances of this case ecause there are other avenues for redress+ he &onstitution

provides for election etitions for those /ho are aggrieved y the results+ 5n any case, the

entire #! million population of =ganda have not as.ed the Applicants to complain on their

ehalf+

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:n alance of convenience, 3r+ :lu.a /as of the vie/ that there is nothing to /arrant the

stopping of these elections /hich =gandans have een contemplating /ith favour+ Ce cited

the case of O))" O))" L&/$%"# O%$ !$ T A%%"#3 G#() (#4 % EC +

C"#$%&%'%&"#() P%&%&"# N". 5 " 2007 (unreported) /here this &ourt found it un/orthy to

stop the conduct of the *eferendum+

Cis sumission on this point /as that, /here events have not yet occurred, &ourt cannot issue

a temporary injunction+ Ce cited the *uling of Con+ ?ustice A+ /inomujuni, ?A,

C"#$%&%'%&"#() A88)&9(%&"# N". ; " 2010. G"/ O*" !$ T A%%"#3 G#() (#4


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he =ganda a ayer has spent over 8!! illion shillings in preparation for the forthcoming

elections+ o, the alance of convenience is in favour of holding the elections rather than

halting them+ 7urther, those points can e raised y the Applicants to set aside the elections+

9esides, etitions ta.e long to e disposed of y &ourts+ 5f the injunction is granted, it might

ta.e the &ourt eyond 3ay 2!11 to dispose of the etition+ his /ould plunge this &ountry

into unconstitutionality and anarchy+

7inally, the Applicants are merely speculating+ he allegations are not serious enough to

/arrant the stoppage of elections+ *egarding the figures, 3r+ andeee /as also of the vie/

that it is not proper to rely on unorthodo figures to halt the forthcoming elections+ he

figures relied on /ere mere projections and the difference et/een them is negligile+

:n the !,!!! voters /ithout photographs, 3r+ andeee sumitted that hotographs /ere

not a &onstitutional or legal re>uirement+ 5t /as just out of transparency that the photographs

/ere introduced+ 9esides, the numer of voters affected is not alarming and it is spread all

over the country+ here are also other /ays of identifying a person such as passports, driving

permits and generally =gandans .no/ each other+ he information on the register also

includes the name, age and name of parents of the voters+ his technical error y the 2nd

*espondent should not therefore e used to deny anyone the right to vote+

:n gerrymandering the names of the residential &andidates on the allot paper, &ounsel

sumitted that this does not raise a >uestion for &onstitutional interpretation+ econdly, the

residential 4lections Act itself is silent on it+ hirdly, the arrangement /as /idely circulated

in the local ne/spapers and none of the candidates >uestioned it+

5t /as only one olitical arty, =&, /hich >uestioned it and the 2nd *espondent handled that

complaint+ =& did not appeal against the decision y the 2nd *espondent+ 7ourthly, the

urden is on the Applicants to prove that the names should e arranged alphaetically

eginning /ith the surname+ he Applicants have not discharged that urden+

he allegation that candidate o/eri aguta 3useveni /ill e favoured y voters is therefore

speculative+

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:n the sitting arrangement at polling stations, 3r+ andeee sumitted that it is la/ful+

7urther, everyody can see /hat is happening at the residing :fficers0 des.s even under the

ne/ arrangement+ 5n any case, due to the large numer of candidates, it /ould e impossile

to accommodate all the agents around the same des.+

:n riery of voters using creation of ne/ districts, 3r+ andeee sumitted that promising

to create a ne/ district per-se is not a rie+ hey have to e ga


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Be also note that halting an election at this late hour /ould not e appropriate under the

circumstances, considering that the country at large has already spent considerale resources

in preparation and is attuned in anticipation of the eercise+

7or those reasons, /e thin. that the Applicants have not made out a case to /arrant the

halting of the ongoing electoral process+ Be accordingly dismiss the application+

&osts shall e in the cause+

@ated at ampala this 11th day of 7eruary, 2!11+

+++++++++++++++++++++++++++++++++++++++++++++++++++

A. E. N. MPAGI-BAHIGEINE

DEPUTY CHIEF JUSTICE

..................................................

C. K. BYAMUGISHA

JUSTICE OF APPEAL

...................................................

M. S. ARACH-AMOKO

JUSTICE OF APPEAL

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joseph bosa - injuction against elections

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