Amama Mbabazi, an opposition candidate, yesterday (1 March) lodged a legal challenge against last month’s presidential elections in Uganda. Kizza Besigye, another candidate, did not.
So now they go to court. Lawyers for Amama Mbabazi, a defeated presidential candidate, yesterday filed a petition with the Supreme Court of Uganda to challenge the result of last month’s disputed elections, officially won by incumbent Yoweri Museveni. The papers were signed just minutes before the ten-day deadline expired. Another aggrieved candidate, Kizza Besigye, failed to file in time.
Mbabazi won just 1.4% of the vote, according to official figures. He does not claim to be the true victor in the poll. But Besigye does: he says the vote was rigged, and that he won far more than the 36% given to him by the Electoral Commission. Besigye has been under house arrest since the day after the vote, with only intermittent access to his lawyers – circumstances , he says, which made it impossible for him to organise a legal challenge.
That may not matter now. The case launched by Mbabazi will examine the conduct of the entire election; lawyers have already said that they will summon Badru Kiggundu, the controversial head of the Electoral Commission, to give evidence. The nine judges of the Supreme Court will have thirty days to reach a verdict, sitting at weekends if necessary. They have the power to annul the elections, or declare a different candidate the winner. In all likelihood, they will do neither.
Under the Presidential Elections Act (2005), there are three grounds for annulling the election. The first – that a candidate is not qualified – is irrelevant in this instance. But on the other grounds, Mbabazi’s team think they have a case.
One ground for annulment is that electoral procedure was not followed. Lawyers will cite widespread irregularities on polling day, including the late delivery of voting materials to many polling stations and reports of ballot-stuffing. But they must prove that any malpractice ‘affected the result of the election in a substantial manner’. The word ‘substantial’ is undefined. In two previous cases, brought by Besigye in 2001 and 2006, a slim majority of judges ruled that irregularities were not enough to substantially affect the election, and the result was allowed to stand.
The other ground for annulment is that an electoral offence has been committed by one of the candidates, either personally or with his approval. Mbabazi’s lawyers will refer to intimidation and harassment, but may focus on allegations that Museveni was involved in bribery. The law forbids the use of government resources for party campaigns, but the Alliance for Campaign Finance Monitoring, a civil society group, have recorded multiple instances of state resources, such as official vehicles, being used by Museveni’s National Resistance Movement (NRM). Likewise, a European Union observation team have documented the distribution of hoes, bought with government funds, at campaign rallies.
Museveni created the modern Ugandan state, and has ruled it for thirty years: the line between the state and the NRM party is blurred. In theory, that makes him culpable. In practice, he will use it to his advantage, denying knowledge of the most egregious examples and passing off campaign spending as welfare programmes. In 2006, although the seven judges unanimously ruled that the election was not free and fair, they also found Museveni not guilty of electoral offences by a majority of 5-2.
The court is not packed with government stooges. Ugandan lawyers have fought hard to preserve their independence. Split decisions in previous cases show that some judges, at least, are prepared to rule against the government. But appointments to the Supreme Court are approved by Museveni, who also has the power to sack judges. The current Chief Justice, Bart Katureebe, voted to uphold Museveni’s victory in 2006; he has previously served as a government minister. And there will be massive institutional pressure to toe the government line.
‘You do not need to be a rocket engineer to know that this was a sham election,’ said Severino Twinobusingye, one of Mbabazi’s lawyers, standing outside the court yesterday. The judges may not agree.
There was much speculation about whether Besigye would also file a petition. In the end, he did not. He has been confined to his house since the 19 February, repeatedly arrested whenever he attempts to leave. For much of that time he has been denied access to lawyers and officials from his party, the Forum for Democratic Change (FDC). There have been two police raids on FDC headquarters, and the party claims that 300 of its activists have been arrested across the country (police will not confirm a figure).
‘The only thing they haven’t stopped us from doing is breathing,’ says Ibrahim Ssemujju, an MP and FDC spokesperson. Party activists say that police harassment has made it ‘practically impossible’ to gather evidence for a petition.
But Besigye’s enthusiasm for another spell in court was always in doubt. He lost faith in the legal process after losing the two previous cases. He did not go to court in 2011, and this time he ruled out doing so before the election had even taken place.
That position appeared to shift over the last week, with civil society groups, diplomats and some in his own party urging Besigye to mount a legal challenge. But failure to lodge a petition is no great disaster for him. He can piggy-back off Mbabazi’s case, while still claiming that he was denied his day in court. With the attention on the courtroom, it will also buy time for Besigye and the FDC to regroup and plan their next move.
In all likelihood, that will involve calls for public protest and ‘defiance’ of Museveni’s government. In a statement issued today, FDC president Mugisha Muntu said that Besigye had won the election, and Museveni ‘has overthrown the political electoral process by use of naked force’. Besigye has previously called the election ‘a creeping military coup’, and told the BBC today that ‘citizens have the ultimate power and can exercise it – with or without an election – to change a system of government’.
Museveni will blame Besigye for any unrest. But by preventing Besigye from filing a petition, the regime has made street protest more likely. ‘It will be the government to blame if the opposition parties resort to any other methods,’ says Martin Mwondha of the Citizen Election Observers Network – Uganda (CEON-U), a civil society observer mission. Many Ugandans will agree.
The election so far has been predictable. What happens next is not. Before the election much was made of the defection of Mbabazi, a former regime insider who was sacked as prime minister in 2014. Initial enthusiasm for his candidacy did not translate into votes. But now Mbabazi has a different role to play, in a two-pronged attack on the government he so recently left.
There is no love lost between Besigye and Mbabazi: for fifteen years the two were on opposite sides of the political landscape. An attempt to unite on a common ticket, mooted last autumn, ended in failure. But they are now united by animosity towards Museveni. Mbabazi has connections, money and know-how, which will strengthen the legal case. Besgiye has the ear of the streets, especially the many jobless young men in Uganda’s cities. With wigs in the courtroom and feet on the streets, the opposition is a stronger force than it was before.
Do not expect the court to throw out the election. But brace for turbulence ahead. There is ‘calmness on the surface,’ as FDC president Muntu said this morning. But, he added, ‘if there is no justice that calmness is just a facade’.