The legal process ground through three important cases in Uganda this week (14-21 March), without reaching resolution.
Uganda’s politics was this week churned through its courts: a process characterized by ponderous speeches and bizarre technicalities, and very little by way of clarity. The headline case has been the Supreme Court challenge by Amama Mbabazi, a presidential candidate, to the result of last month’s election, in which Yoweri Museveni was officially declared the winner. But there have been other important cases too: one concerning the continued house arrest of opposition figurehead Kizza Besigye, and another about the detention of a dissident general, David Sejusa. No part of this legal trilogy has reached resolution. At present, law is the continuation of politics by other means.
Hoes and an anus
Most of the attention has been focused on the Supreme Court. The election challenge is not unprecedented: similar petitions were filed by Besigye, unsuccessfully, in 2001 and 2006. What may be new, however, is the quality of the evidence. This year’s election was the most heavily scrutinised contest in Ugandan history. Mbabazi’s lawyers hope that they can expose enough chicanery to have the result annulled.
There are two ways Mbabazi can win the case. The first is to show that Museveni himself is guilty of an electoral offence, such as bribery or intimidation. But Museveni can easily exploit the ambiguity of his position – as competing candidate, and as sitting president – within a system where there is no clear separation between the state and the ruling National Resistance Movement (NRM).
In court this week, for instance, Museveni’s lawyers argued that the distribution of hoes to rural voters was an official government programme, not bribery. They similarly defended comments in which he warned Mbabazi supporters not to ‘touch the anus of the leopard’, claiming that they were a presidential admonition to lawbreakers.
The second way for Mbabazi to win is to show that there was non-compliance with the terms of the Presidential Elections Act (2005), and that this ‘substantially’ affected the result. Here, the Electoral Commission is key. The Commission chair, Badru Kiggundu, appeared before the court on Monday, though his testimony was less dramatic than some had hoped.
There has been protracted wrangling between Mbabazi’s lawyers and the Commission over access to official documents, such as Declaration of Results forms and tally sheets. Under court orders, the Electoral Commission allowed Mbabazi’s team to view results forms just three days before the trial started; tally sheets were released only last night, after the court ruled that they were admissible evidence.
With the Chief Justice groaning about a ‘sea of documents’, Mbabazi’s lawyers have spent much of today picking out the ‘highlights’: discrepancies between the paperwork and the declared results, or polling stations where the number of votes cast is more than the number of registered voters. But to win, crucially, they must convince the judges that these were more than isolated incidents. In short, they must pass the ‘substantiality’ test.
This test is controversial. Before the election, Besigye had attempted to have the relevant clause removed; the Constitutional Court ruled against him. The Chief Justice, Bart Katureebe, has himself criticised the notion of substantiality. But in 2006 he relied on it to help strike down Besigye’s challenge, arguing that the ‘reprehensible’ disenfranchisement of 153,000 people was ‘too small to affect the result of the election in a substantial manner’.
The weight of precedent hangs heavy over this case. Mbabazi’s lawyers have tried to shake it off, quoting heavily from the dissenting judgements of the three judges (now retired) who voted in favour of Besigye in 2006. Yet history favours Museveni. One of his lawyers argued on Wednesday that Mbabazi’s case is ‘based purely on hope’.
The hearing concluded at 5.30pm today. The judges will have twelve days to consider the evidence before announcing their verdict on 31 March.
Song and dance
The plaster is peeling from the ceiling in Kasangati Magistrates’ Court: a single room building, very different from the grand surroundings of the Supreme Court. Besigye’s lawyers were here to demand an end to his house arrest (since 19 February he has been prevented from leaving his home, near the court and ten miles north of Kampala). The crowd spilled out into the yard, gathering round the windows to hear proceedings inside.
They were not missing much. On Thursday, the magistrate adjourned the court until the next day, to give the police more time to submit evidence. Then, on Friday, after listening to brief arguments from both sides, she announced that the hearing would be suspended again, until Monday. The reason? The Ugandan Law Society was holding its annual ‘Pro Bono Day’, in which lawyers provide free services to the poor, and the Chief Justice had released lawyers from duty to take part.
‘Why are we engaged with this song and dance,’ argued Besigye’s lawyer, ‘when we are actually dealing with constitutional rights?’ He described the continued detention of Besigye as an attack on the rights of every Ugandan, warning that the country was going back to the days ‘when there was no law’.
Besigye has also lodged a parallel case in the High Court, seeking damages from the police. The police representative in court pointed to this process to argue that it would not be right for a lowly magistrates court to rule on Besigye’s house arrest: whether the magistrate will agree remains to be seen.
The retiring type
The final case was that of David Sejusa, a top general and prominent opponent of Museveni. Sejusa fled the country in 2013, after accusing the President of plotting to hand over power to his son. He returned last year, and has since described the NRM as ‘a dictatorial regime that must be dismantled’; many believe he was organizing opposition to Museveni. Sejusa was arrested two weeks before the election, and hauled before a court martial on charges of insubordination.
Once again, this is a case that relies on Byzantine details. Sejusa claims that he has tried to retire from the army, but has been prevented from doing so. If he is no longer a serving soldier, he cannot be court-martialled. The High Court announced this week that it would hold a hearing on Sejusa’s retirement on 5 April; the court martial has been suspended until after a decision has been reached. Sejusa – pensioner or not – remains in detention.
As good as the Greeks
As for Museveni, he has spent the week at a retreat with NRM MPs. In typically grandiloquent terms, he described Uganda’s democracy as ‘much richer than anything anybody has attempted to do in the world, other than the ancient Greeks’.
In any country, that would be a strong claim. It sounds even more improbable here, after the events of the last month. As the three court cases continue, Museveni knows he has influence over the legal system. But there is one court he can’t control: the court of public opinion.