Both sides are gearing up for a court case to challenge last month’s presidential election results in Uganda. But as events of this week have shown, what happens outside court could matter even more.
Today (10 March), in the Supreme Court of Uganda, black-robed lawyers debated affidavits and timetables. Meanwhile, a few hundred metres down the road at Kololo grounds, soldiers lined up for morning inspection. Since last month’s disputed election the grounds, normally used for ceremonial functions, have been converted into a makeshift barracks, with around 30 large field tents and a hundred smaller ones for sleeping.
The contrast – between meticulous legality, and overt force – encapsulates the tensions of Uganda’s ‘hybrid’ regime. Neither a full dictatorship nor a functioning democracy, it is an uneasy alliance between the law and the gun.
The lawyers were in court to discuss a legal challenge to the election results. The official winner was Yoweri Museveni, with 61% of the vote, extending his time in office into a thirty-first year and beyond. Mbabazi, who came a distant third with 1.4% of the vote, says the vote was rigged (Kizza Besigye, who finished second, agrees). Mbabazi is challenging the result, as is his constitutional right; he wants the judges to annul it.
Judges met with lawyers on Monday, and again today, for ‘pre-trial conferencing’: an attempt to agree the terms for the trial proper, which begins next week. It should have been a routine matter. But in recent days tedious procedure has given way to intrigue, allegations and violence. The law has power; but right now, in Uganda, it’s the gun that really counts.
Monday was, in many ways, a good day for Mbabazi’s team. They successfully persuaded the judges to accept an amended version of their petition, adding an extra fifteen charges to the original twenty-eight. The new petition also demands that the Electoral Commission release data from the biometric system used to verify voters, and calls for a recount in 45 districts. The amendments significantly strengthen Mbabazi’s case; the original petition had been pulled together in a rush to meet the ten-day deadline set by the constitution.
But not everything went well. Just a few hours before the court opened, said Mbabazi’s lawyers, the police had detained thirteen witnesses. They added in court today that the witnesses had been taken to several different police stations before being released on Tuesday. In reply Mwesigwa Rukutana, the Deputy Attorney General, said that these claims were ‘false, unfounded and malicious’, brandishing a letter for the police chief stating that no such arrests had taken place.
The mysterious disappearance of the witnesses was just an overture. On Wednesday, at around 3 o’clock in the morning, armed men broke into the offices of Muhammad Mbabazi, the lawyer who is leading Amama Mbabazi’s case. They stole computers and documents related to the case. Two security guards were thrown into a van, beaten, and dumped on the edge of town. The offices of another Mbabazi lawyer were also broken into; shattered glass was left strewn across the floor.
Amama Mbabazi says that the raids were led by men in police uniform. But the police deny any involvement; Rukutana said in court today that the ‘alleged break-in’ could have been a ‘hoax’, stage-managed to buy time and sympathy (Andrew Mwenda, a respected Ugandan journalist, has also said that the raids were ‘an inside job’). No convincing evidence has yet been produced on either side. And if the break-in did involve police officers, it is unlikely that the order passed through official channels.
Whatever the truth of these incidents, the reality is that the law, for all its elaborate formality, cannot seal itself off from events beyond the courtroom. Nor will the official record show the numerous pressures on the nine Supreme Court judges, five of whom were only appointed (by Museveni) in September last year. The legal profession in Uganda has fought hard to retain its independence, but is not immune to influence. Insiders say that a previous petition, by Besigye in 2006, only failed after late night phone calls to the judges (they eventually ruled, 4-3, that malpractice had not ‘substantially affected the result’).
Other state institutions will do their best to be obstructive. The Election Commission is one of the respondents in the case, alongside Museveni and the Attorney General. They have made it difficult for the opposition to access official ‘Declaration of Results’ forms, which could give vital clues about vote-rigging. In court today, their lawyers discovered a sudden concern for the environment, complaining that to provide hard copies of the forms would require 616 reams of paper. A compromise was eventually reached, with Mbabazi’s team being allowed to view the originals on Saturday afternoon.
One of the most telling moments of the week came right at the start, when the legal teams were introduced to the judges. Museveni’s lawyer began reading a list of names, but it took too long. ‘And there are thirty others,’ he said, cutting the roll-call short. In the gallery, the thirty extra lawyers rose silently to their feet. The legal power, as well as the police and military power, is on Museveni’s side.
(Not) staying at home
Despite everything, Amama Mbabazi has faith in the courts. Kizza Besigye does not. He lost similar petitions in 2001 and 2006, and last week described the courts as ‘biased’.
Besigye remains under house arrest at his home in Kasangati, ten miles north of Kampala. His party, the Forum for Democratic Change (FDC), called for Ugandans to stay at home today in a show of solidarity with Besigye. But few did. The streets of Kampala – a city where Besigye has his strongest support – were as hectic as usual.
‘This is Africa,’ said one man in a downtown truck yard. ‘We wish we could stay at home, but we are too poor.’
The stay-at-home was always an odd idea for a protest. Even if thousands of people took part, their protest would, by its very nature, be invisible.
In part, it reflects the weakness of the FDC. It knows that any protest on the streets will quickly be met by police violence: certainly tear gas, and probably worse. And it lacks the organisational capacity to mobilize people for a sustained campaign.
But the stay-at-home – alongside other gestures, such as a boycott of musicians who released a pro-Museveni record – could be a low-key way to buy time. With the court case dominating the headlines, the FDC does not need to be at the forefront of opposition, at least for the next couple of weeks.
There are two other court cases next week which will also be crucial to the opposition plans. On Monday, the High Court will decide whether David Sejusa, a dissident general, has retired from the army or not. The issue might seem bizarre, but could help win Sejusa his freedom: he was recently hauled before a court martial on charges of insubordination, participation in political activities, and being absent without leave. He contends that he has retired from the army, so the charges do not apply.
Then, on 17 March, Besigye will ask Kasangati Magistrates Court to rule on the legality of his house arrest. The case has echoes of a similar one after the 2011 election, when the court found that the house arrest of Besigye was unlawful.
With Besigye constricted, the opposition is rudderless. None of the other leaders in the FDC have his iconic stature or popular appeal. They need him to be released, and soon. As for Sejusa, it looks unlikely that he will be allowed to walk free; the government knows that he could play an important role in organizing support – including, crucially, within the army.
The Supreme Court trial begins on Monday. Judges will have until 31 March to reach a verdict – barely two weeks. The institutional context suggests that the chances of an Mbabazi victory are slim. In any case, supreme courts are typically wary of overturning election results. The only example from recent history is Ukraine, during the Orange Revolution of 2004. In Kenya – a little closer to home – the Supreme Court upheld the victory of Uhuru Kenyatta in 2013.
But the opposition will be hoping that the case reveals enough to embarrass the government, and weaken Museveni politically. Then Besigye could come back into play. In the meantime, the army tents will stay in Kololo. Museveni will use the law where he can, but the gun where he must.